West Virginia Property Division | WV Settling Disputes for Marital and Non-Marital Divorce Assets and Debts

When a couple gets divorced, all assets and debt from the marriage must be sorted out by the courts in order to restore the parties to their pre-marriage state as closely and equitably as possible. One of the things a court decides on is property division, specifically West Virginia property division.

No divorcing couple should go to court without retaining a licensed Family Law attorney. Property division can be far more complicated than you think. Lawyers have the proper training and experience to tell the judge what a divorcing spouse wants or needs from the property division.

Property Division Divorce Laws in West Virginia

The purpose of West Virginia property division laws is to make sure that marital property is allocated to each spouse equally in a 50-50 split. West Virginia marital property is divided under the considerations of West Virginia Code §48-7-103 but the trial court judge receives great discretion when converting West Virginia marital property into separate West Virginia divorce property.

West Virginia is an equitable distribution state. This means that with regard to West Virginia divorce assets, anything the spouses had before a marriage usually will not be included in West Virginia divorce assets or West Virginia divorce property.

What is considered Marital and Non-Marital Property?

West Virginia Code §48-1-233 defines marital property as “all property and earnings acquired by either spouse during a marriage...regardless of the form of ownership.” This also includes any increase in value to a spouse's separate property as a result of using marital assets or the efforts of the other spouse.

West Virginia Code §48-1-233 defines non-marital property as some of the following:

Property acquired before marriage
Property acquired in exchange for separate property acquired before the marriage
Property excluded from treatment as marital property by a valid agreement of the parties
Property acquired by gift, bequest, devise, descent or distribution
Any increase in the value of separate property due to inflation or to a change in market value resulting from conditions outside the control of the parties

Dividing Assets and Debt

After the court decides which property is available for distribution, the next step is property valuation. The final step is the allocation of marital property.

Under West Virginia Code §48-7-103, the court considers a number of factors in dividing assets and debt. Some of these are:

The parties' contributions or foregone opportunities to enhance the other's career
The parties' various contributions to the marital property
The parties' conduct as it relates to economic consequences to the marital property

Using statutory factors, judges decide how a marriage's assets should be divided. Here is a list of the most common property items and the most common allocation scheme used.

Cash: Divided equally among the spouses.
- Example 1: A joint savings account has $5,000. The court would most likely award $2,500 to each spouse.
- Example 2: A joint savings account has $5,000. One spouse contributed $4,000 and the other contributed $1,000. The amount may be divided in a 50-50 split or may be more balanced if the $1,000 contributor has fewer assets than the $4,000 contributor.
Retirement Plans: Divided based on the duration of the marriage at the time the benefits accrued, looking at the present value of the plan and/or survivor benefits.
- Example 1: A spouse got benefits in a retirement plan after working for 25 years and was married for 20 of those years. The ex-spouse would be entitled to 50% of the retirement plan that was acquired during the marriage.
- Example 2: A spouse has an unvested retirement plan. No division takes place until the plan is payable to the spouse who has it. However, a portion may be marital property subject to the court's property division.
Vehicles: Divided based on the values at the date determined by the court. May be sold or given to a spouse outright.
- Example 1: A car is owned by a spouse The car may be sold with the proceeds divided in a 50-50 split or given to a spouse outright.
- Example 2: A boat has a shared title. The boat may be sold with the proceeds divided 50-50 or given to a poorer spouse outright.
Insurance: Determined based upon each spouse's health, availability of alternate insurance and premium payments from marital income.
- Example 1: One spouse has covered the other under employer provided health insurance. The other spouse is in poor health and could not afford alternate health care coverage. The court may order the first spouse to continue covering that spouse for a set time period and/or award 50% of the portion that is marital property to the ailing spouse to get new coverage.
- Example 2: One spouse has a life insurance policy where the ex-spouse is to get survivor benefits. The spouse may be required to remain on the policy or may receive 50% of the benefits.

Settling Disputes in a Divorce Case with Property and Asset Division

Under West Virginia Code §48-7-107, if a party does not comply with a transfer of property under the property division order by executing a deed to transfer title, the court may appoint a special commissioner to execute the deed or other relevant legal instrument. You may go to court to seek a modification to the property division order but the court must decide whether that will be permitted.

The trial court's determinations will not be changed by a higher court unless there was a clear abuse of discretion.

Help From a West Virginia Property Divorce Lawyer

Retaining a West Virginia property divorce lawyer is key to getting the fairest and most equitable result in the property division phase of a divorce. The lawyer can provide professional guidance, keep you informed of likely outcomes and help you present the best arguments and presentation to the trial judge handling the divorce.

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