Property Distribution

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The divorce and family law attorneys at Klie Law Offices in West Virginia have the experience to handle complex property distribution cases and reach a fair resolution. If you’re going through a divorce and concerned about property division, give us a call today.

Remember, West Virginia is not a 50/50 divorce state

West Virginia follows the principle of “equitable distribution” in divorce; it’s not a 50/50 or community property state. That means the court needs to find a division of property that is fair, but not necessarily equal. There are many factors that can affect the division of property and result in something other than a 50/50 division.

How the court determines which property to divide

First, the court has to take an inventory of your assets and determine which items are marital property (which means they are subject to division) and which are separate property (and thus stay with the spouse who owns them). In general, anything you acquired during the marriage is considered marital property, even if it only has one spouse’s name on it. For example, if you bought a car during the marriage, it’s most likely considered marital property, even if only your name is on the title and registration.

There are only a few exceptions to this rule. The big one is inheritances: if you received an inheritance during the marriage solely in your own name, that is most likely considered separate property.

Also keep in mind that for separate property to maintain its character, it has to be kept, well, separate. If you mix your separate property with your spouse’s property (the legal term for this is “commingling”), for instance by depositing it in a joint account, then it becomes marital property. Separate property can also become marital property if you add your spouse’s name to the title or refinance it in your spouse’s name. And this is a one-way trip – once it becomes marital, it can’t become separate again.

Factors the courts consider when dividing property

• Each spouse’s income and earning capacity.
• Each spouse’s contributions to growing the marital property, both monetary and non-monetary (for instance, childcare or maintenance).
• Each spouse’s economic misconduct (like wasteful or fraudulent spending).
• Which spouse has primary custody of the children (especially when determining who gets the house).

If there is a valid prenuptial or postnuptial agreement, the courts will usually honor that agreement when dividing property if they find it fair and in compliance with state law.

Broadly speaking, the courts understand that marriage is a partnership and all the contributions to that partnership have value. So if one spouse contributed to the marital property mostly by earning a paycheck, that’s certainly taken into account, but if the other spouse contributed by taking care of the children, completing household chores, and supporting their spouse in their education and career, that is also taken into account.

What happens to the house?

The marital home is often the biggest piece of property and also the hardest to divide. There are a few ways to divide the marital home:

• Sell the house and divide the proceeds.
• Have one spouse take sole ownership of the house, buying out the other spouse’s equity.
• Keep the house jointly owned for a time, often to give the children a place to live until the youngest turns 18 years old.

Which option you choose depends on your overall financial situation, your family’s needs, and the equity in the house. We understand how to navigate these situations and negotiate solutions that work for everyone.

The court also has to divide your debt

Debt division is similar to property division: debts that you individually incurred prior to the marriage are separate, but any debt either spouse acquired during the marriage is generally considered marital debt, even if only one spouse’s name is on the account. In some cases, you can be held responsible for debts you didn’t even know about.

There are only a few types of debt that are considered separate no matter when they were acquired:

• Gambling debts
• Some types of student loans
• Anything spent on an extramarital affair

When it comes to secured debts (that is, debts that are attached to a particular piece of property, like a mortgage or auto loan), the debt is normally distributed along with the associated property. If you get the car, you’re responsible for the car loan. Otherwise, debts are distributed based on factors like each spouse’s contribution to the debt and ability to pay.

One thing to remember about debt division is that the court order is binding on you and your spouse, but not on your creditors. So for instance, if the court orders your spouse to pay off a credit card, but your name is still on the credit card, then your spouse’s failure to pay that debt can affect your credit score. It’s usually best to pay off or refinance anything that’s not in the right spouse’s name as soon as possible to make a clean break financially.