Community Property vs. Separate Property in West Virginia – All You Need to Know

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Two common terms that will come up as you begin researching your options for divorce and legal separation are “community property” and “separate property.” You may also see the term “marital property.” These labels will be important as you move through the divorce process and go before a judge to have your shared marital assets and debts divided. In the State of West Virginia, judges are bound to adhere to the principles of equitable distribution, meaning that each party in a marriage should walk away with what is fairly and reasonably theirs. However, certain types of separate, individual property may be excluded from these calculations.

The concepts of community and separate property are fairly simple and true to their names:

  • Community property. Any property jointly held by two or more people. When talking about divorce court and family law, community property refers to the property acquired by a couple during their marriage. A common example would be an automobile with two owners on the title.
  • Separate property. Property that is solely and exclusively held by a single, private individual. A valuable comic book collection that was curated prior to your marriage could be argued to be your separate property. Property that was acquired before or after a marriage is separate property. Property acquired during a marriage may also be argued to be separate property if the spouses never shared it in any meaningful way.
  • Marital property. Marital property is a special class of community property that is shared by a married couple. Most assets accrued during the marriage are considered marital property in a court of law unless it can be established through evidence that they are the separate property of one spouse or the other. The family home is a quintessential example of marital property.

The definitions of each type of property involved in the dissolution of a marriage are fairly simple to follow. What is often not so simple is determining what exactly qualifies as community property and what is separate property. In divorces with high-value estates, this process can become especially contentious. Quality legal representation can bring you significant peace of mind by putting this delicate process in the hands of an experienced expert and removing you from the heat of attempting to directly negotiate with an estranged partner.

Community Property vs. Separate Property – Examples

Because West Virginia is an “equitable distribution” state, judges are often more concerned with making sure each party walks away with their fair share of assets rather than determining who has the better claim to each individual asset. To protect assets and property from this process, it must be established that they are your separate property and should not be a factor in the evaluation or division of your marital assets.

Here are some real-world examples to show the distinction between community and separate property:

  • Community property. Salaries and wages accrued by you and your spouse during the marriage (but the amount that each spouse contributed will likely factor into the eventual division of assets).
  • Separate property. Savings bonds that your grandfather gave you prior to your marriage.
  • Community property. The home on which you and your ex-spouse share a mortgage.
  • Separate property. Real estate that you inherited from a family member after you had legally filed for divorce.
  • Community property. Wedding gifts from your friend circle.
  • Separate property. A birthday gift from your sibling.

Of course, things in real life can get more complex than these examples. In such instances, it will be up to a West Virginia judge to make the final determination as to whether an asset is separately or jointly held. Hiring a high-powered divorce attorney to argue your case can be invaluable when this occurs.

FAQs About West Virginia Community Property vs. Separate Property law

How is marital property divided in WV?

West Virginia divides marital property using the principle of equitable distribution. This means that when a married couple divorces, their marital assets are evaluated and divided in a way that the court deems “equitable.” A rough rule of thumb says that the higher-earning spouse will be awarded about 2/3 of the marital assets, with the lower-earning spouse getting the remaining 1/3. In cases where the marital property cannot readily be equitably divided, for example, when a jointly held primary residence is the only marital asset of significant value, then the spouse awarded less of the marital property may receive a court order for an equalization payment.

How are assets split in a divorce in WV?

The State of West Virginia operates under the principles of “equitable distribution.” This is to say that when a married West Virginian couple divorces, their shared assets are divided in a way that the court deems “equitable” based on each spouse’s contributions, needs, and other relevant circumstances. A rough guideline for equitable distribution states is that the higher-earning spouse will be awarded about 2/3 of the total marital assets, but equitable distribution leaves room for a judge to exercise nuance and subjectivity, so the actual split can vary quite significantly from case to case.

What is the difference between separate and community property?

Separate property is any personal property or accounts held by a single individual. For the typical unmarried person, almost everything they own would be considered separate property. Married people can also own separate property, which would consist of any accounts or belongings not relevant to their marriage. Community property is any property or asset jointly held by two or more people. When talking about divorce, community property almost always refers to marital property, a special category of community property that is jointly held by the partners in a marriage. When a marriage is dissolved, any community property must be divided up by the courts. The same concepts of separate and community ownership will also apply when dividing up any outstanding debts in a dissolved marriage.

Who gets the house in a divorce in West Virginia?

There is no hard rule for determining which spouse will be awarded jointly held real estate under West Virginia’s equitable distribution laws. Who keeps possession of the family home will depend on many factors, such as the value of the home, the value of any other assets involved, and what the court deems to be an equitable split of resources. One important aspect in deciding which parent gets to remain in the family home can be which parent has been awarded primary custody of any minor children. It can sometimes be argued that the custodial parent should retain ownership of the family home to maintain their children’s safety and standard of living.

Protect Your Assets With Erica Lord Law Group

If you’re going through a complicated or contentious divorce and are concerned about the future of your assets, we’re here to help. Don’t let your ex or their lawyers intimidate you into accepting a marital property agreement that doesn’t meet West Virginia’s equitable distribution standards. Erica Lord Law Group can help you assert your rights and keep what’s yours. Call us for a no-pressure consultation.