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:
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.
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:
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.
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.
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.
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.
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.
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.