West Virginia Marital Property Laws

West Virginia is an equitable distribution state. During a divorce or legal separation, spouses divide marital property fairly, but not always down the middle. Most states use some form of equitable division during divorce.

A few states, such as California and Texas, follow community property laws. In these laws, marital property is divided 50/50 between the parties. West Virginia divorce laws consider other factors besides an even property split.

West Virginia Marital Property Law

Under West Virginia state law, marital property is all property acquired by either spouse during the marriage that is not separate property. Marital property may include:

• The family home or other real estate in either spouse's name
• Wages and other income earned during the marriage
• Retirement accounts and pension plans that accrued during the marriage
• Increases in the value of the marital property due to the actions of either spouse

Separate property is property acquired by a spouse before the marriage. It is also property:

• Acquired during marriage in exchange for property acquired before marriage
• Property excluded from marital property by a valid prenuptial agreement or other written agreement
• Property acquired by gift, inheritance, or bequest
• Property acquired during the marriage but after a legal separation
• Increase in value of separate property, not due to actions by either spouse

If spouses retitle separate property or use it as a marital asset, courts may consider it marital property during a divorce. For instance, if a separately owned home becomes the marital home, and both spouses use joint assets for upkeep and refurbishment, the property could become "marital property" during the divorce case.

Property Division

If the divorcing spouses have a prenuptial agreement or other separation agreement, the court usually accepts it if it is fair to both parties. If the couple doesn't have an agreement or their arrangement is not fair to one party, a family law judge will make an equitable distribution of property.

Even in an equitable distribution state, the courts aim for equal property division. The judge may consider several factors when dividing the marital estate:

• Each spouse's income and earning ability
• Contributions to the marital estate
• Non-monetary contributions, including homemaking and childcare services
• The effect of marital waste or dissipation on marital funds
• The effect of child custody on the distribution of property, for instance, if the primary custodian of minor children needs the family home while the children are in school

West Virginia family courts do not consider marital fault during property division. Although fault may affect spousal support, child custody, or other parts of a dissolution, property division is not calculated based on fault.

Get Legal Advice from a West Virginia Divorce Attorney

Divorce and marital property division are never easy. If you and your spouse are considering divorce or legal separation and want to protect your property rights, you need legal advice from an experienced West Virginia divorce attorney.