West Virginia

Post Divorce Property Division

What is property division in a West Virginia divorce?

Also known as equitable distribution, property division is the process of dividing property rights and obligations between spouses during the process of a divorce. Property division may be agreed upon between the soupses through a property settlement, or it may be decided in court during the judicial process of divorce. The process of property division is affected by state laws such as community property laws, definitions of marital contributions, etc.

West Virginia is an equitable distribution state, and assets acquired both during and prior to the marriage can be subject to division following divorce. Some factors considered by West Virginia courts in a property division case include non-monetary contributions, contributions to a partner's education, economic misconduct and a list of other factors defined in West Virginia law. This page summarizes the most important aspects of property division laws in West Virginia.

West Virginia divides marital assets via equitable distribution, which means that the court attempts to divide marital assets in a fair and equitable manner between the spouses, taking multiple factors into account in order to determine the equitable distribution for each spouse.

Under West Virginia law, marital property is that which is acquired or is a direct result of the labor and investments of the parties during the marriage is subject to equitable division. Equitable division does not mean marital property is divided equally, it is divided in manner that results in a fair or equitable result for each spouse.

Courts will consider each party's age, health, earning capacity ned as property acquired by one spouse prior to the marriage or property acquired by a spouse intended not to be considered marital property is not subject to equal division.

Alternatively, non-marital property or property defined as property acquired by one spouse prior to the marriage or property acquired by a spouse intended not to be considered marital property is not subject to equal division.

Is West Virginia a community property state?

West Virginia is NOT a community property state, which means that marital property is not automatically divided 50/50 between the spouses in a divorce case.

Instead, West Virginia judges determine property division under the equitable distribution policy, which means that the court divides property between the spouses in what is believed to be a fair distribution, based on each individual's contributions to the marriage and their earning ability and needs following separation. Factors such as one spouse's economic misconduct may also be considered.

In practice, judges in an equitable-distribution state like West Virginia often divide marital property with approximately 2/3 of marital assets going to the higher-earning spouse, and 1/3 going to the lower-earning spouse.

Does state of West Virginia only divide marital property after a divorce?

West Virginia is one of a minority of states that not only divide marital or community property acquired during the course of a marriage, but may also divide assets earned prior to the marriage regardless of which spouse is the title owner. This may result in a significant surprise for spouses who entered a marriage with high-value assets.

Is there a set list of statutory factors for determining property division in the state of West Virginia?

West Virginia has a list of factors set by statute that specify what the court will use to determine a fair property division. Examples of factors that are often taken into consideration during property division cases include:

• Marital Fault - In states that allow at-fault divorces, the fault of one spouse may be used by the judge to justify a higher percentage to the injured spouse.
• Economic Misconduct - In West Virginia, spouses who wastefully or fraudulently spent marital assets may receive a lower percentage of the marital property.
• Income and Earning Capacity - The court may consider the relative incomes and earning capacity of each spouse, which may be affected by factors such as age, education, and health. The spouse with lower economic prospects may receive a larger percentage of the estate.
• Educational Contributions - In West Virginia, spouses who contributed significantly to their partner's education or earning capacity may receive a percentage of the marital property.
• Custody of Children - If one spouse has full custody of the couple's children following the breakup, this may result in higher likelihood of receiving a higher percentage of the estate, or certain pieces of marital property (like the family house).

Do courts in the state of West Virginia consider nonmonetary contributions?

In West Virginia, statutory law requires judges deciding a property division case to account for the nonmonetary contributions of both spouses to a marriage when determining how to divide property between them. In practice, this generally means that the judge will consider the value of the labor a stay-at-home spouse contributed to the marriage. Nonmonetary contributions may include activities like the following:

• Household chores, cooking, homemaking
• Taking care of children
• Supporting their spouse professionally

Does West Virginia consider a spouse's economic misconduct in property division?

West Virginia law allows courts to consider economic misconduct of a spouse as a factor in determining equitable property division. Economic misconduct generally means dissipation of assets, which is the legal term for the wasting or loss of marital funds or assets by a spouse through means like excessive spending, gambling, fraud, etc.

If a spouse is found to have dissipated marital funds in a way that injured the other spouse, the court may take punitive or restorative action by awarding a higher percentage of divided property to the injured spouse.

Are a spouse's contributions to their partner's education considered in the state of West Virginia?

West Virginia statute does provide for court consideration of a spouse's contribution to their partner's education during the course of a marriage. If one spouse supported (financially or otherwise) the other and enabled them to obtain education or other training that increased their earning power, these contributions can be considered by a West Virginia judge when determining how to divide marital property.

Can a pre-nuptual agreement affect property division in West Virginia?

A prenuptual agreement, or pre-nup, is a binding legal contract signed by both spouses prior to getting married in West Virginia. A prenup containing a property division agreement can take precedence over West Virginia's property division laws by establishing what is considered as separate vs marital property, as well as agreeing on how finances will be structured during the marriage and divided in the event of a divorce.

The existance of a valid prenuptual agreement can prevent a West Virginia court from having full reign to determine how assets are divided between the spouses, and instead allow them to be divided in a way agreed to by both spouses prior to the event.

How can I enforce a property division order in West Virginia?

A West Virginia property division order is a court order issued by a court order issued by a judge, describing how property is to be divided between spouses following a divorce. A property division order is a binding legal obligation, and failure to comply with the terms in full by either spouse can result in being charged with contempt of court. If your spouse is not complying with a property division order, you can consult a family lawyer to discuss potential legal avenues.

Dower and Curtesy?

Dower and curtesy abolished (§43-1-1)