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West Virginia Property Division
Property Distribution Laws in West Virginia

In West Virginia the courts generally accept a fair and reasonable property division the parties agree to, but if the parties cannot agree, the Circuit Court divides the marital estate within the Judgment of Divorce.

Factors in Equitable Distribution

An equitable distribution state, West Virginia uses dual classification. The appreciation of separate property is separate. The Circuit court divides the marital estate when the spouses cannot. Equitable does not mean equal, or even half, but rather what the Circuit Court considers fair.

The court does not consider marital misconduct.

According to the West Virginia Code - Sections 48-5-604, 48-5-612, 48-7-101, the court divides marital property after considering the extent to which each party:

  • has contributed to the acquisition, preservation and maintenance, or increase in value of marital property by monetary contributions;
  • has contributed to the acquisition, preservation and maintenance or increase in value of marital property by non-monetary contributions;
  • expended his or her efforts during the marriage in a manner which limited or decreased such party’s income-earning ability or increased the income-earning ability of the other party; and
  • may have conducted himself or herself, during the marriage, so as to dissipate or depreciate the value of the marital property of the parties.

Marital Property vs. Separate Property

In West Virginia, property acquired or earned during the marriage is marital. Property that belonged only to one spouse before marriage is separate. Separate property also includes gifts or inheritances.

Valuing and Dividing Property

First, the court classifies assets and liabilities, property and debt, as marital or separate. Then it assigns a monetary value to the marital property and debt. Finally, it distributes the marital assets between the two parties in an equitable manner.

The Marital Home

The court may give one spouse exclusive use and occupancy of the marital home for a specific period of time as well as the use of its furniture and furnishings. In West Virginia, as in many jurisdictions, the equity of the marital home is often one of the biggest marital assets. Equity is the current market value of the home at the time of separation, less any liabilities against the property, such as a mortgage, taxes, or home equity loans. Normally, making this calculation requires a paid real estate appraisal or a real estate agent can prepare a market analysis for free.

From there, couples choose one of three options to divide the equity:

  • The spouses sell the home and divide the proceeds.
  • One of the parties may refinance the home and “buy out” the other party.
  • One spouse (usually the custodial parent) remains in the home with the exclusive use and possession for a certain period of time (for example, until the youngest child graduates from high school), then either buys out the other spouse or sells the home and divides the proceeds.

Pensions and Retirement Accounts

Several different methods of valuation are used in determining how much a marital asset is worth, depending upon the asset to be valued and the level of agreement between the parties. Courts generally accept the value when the spouses mutually agree on a value of a particular asset. Experts may be retained by the parties or by the courts to determine the value of marital assets if the parties cannot agree. Such experts may include accountants, real estate or business appraisers, or pension valuators. The use of experts adds to the cost of the divorce.

In West Virginia the court may include the retirement benefits and plans earned by both spouses as marital assets available for division. Retirement benefits vary greatly but can generally be divided into two groups:

  • Defined Contribution Plans: A defined amount of money belonging to the employee. The employee and/or the employer make defined contributions. The balance of the plan is constantly changing, but its value is definable at any given point. 401(k)’s, 403(b)’s and profit sharing plans fall into this category.
  • Defined Benefit Plans: A retirement benefit where an employer promises to pay a benefit to an employee sometime in the future, based upon some type of formula. Normally, this formula is based on the employee’s salary near the end of his or her career and the number of years he or she worked for the employer before retirement. Defined benefit plans are much more complicated to value and often require the professional evaluation of an actuary to determine exact values.

In West Virginia if spouses share in each other’s retirement or pension plan, a Qualified Domestic Relations Order must be completed. A QDRO is a written set of instructions that explains to a plan administrator that two parties are dividing pension benefits. The instructions set forth the terms and conditions of the distribution - how much of the benefits are to be paid to each party, when such benefits can be paid, how such benefits should be paid, etc.

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