Asset and debt division can be one of the most stressful parts of any divorce, and that’s saying a lot. Divorce is not usually a pleasant prospect for anyone involved, and that emotional strain can be badly compounded when your financial future or ownership over your favorite property is thrown into uncertainty by the legally mandated division of marital assets.
Debts and assets are extremely different concepts in terms of how they affect your lifestyle, your reputation, and your financial stability. They are literal opposites in accounting terms. But when a marriage is being legally dissolved, the court treats assets and debts pretty much the same.
When a couple moves from separation to legal divorce, anything they share must be divided and assigned to one ex-spouse or the other. All of their marital assets — meaning any accounts, property, or valuable objects that are jointly held as part of the marriage — will be evaluated and divided equitably between the two former spouses.
Debts are treated in essentially the same way. If you and your wife began a joint savings account after your marriage, and that account holds $1,000 at the time of divorce, you might expect to be awarded $500 each. Likewise, if you divorce while a shared credit card has a $1,000 balance, you will probably each be on the hook to pay for $500 of the outstanding debt once the final court orders are entered into the record.
The State of West Virginia divides up marital assets through a process known as “equitable distribution.” Under the equitable distribution model, a judge will make every effort to split up marital assets between the ex-spouses in a way that is fair and sustainable for everyone involved. This process takes many different factors into consideration and allows for a judge to make subjective and nuanced decisions regarding each spouse’s claims and needs.
“Equitable” does not necessarily mean that parties will see an even 50/50 split of all marital assets and debts in a West Virginia divorce case. A common rule of thumb in equitable distribution states says that the higher-earning spouse will be awarded 2/3 of the marital assets, and the lower-earning spouse will be awarded the remaining 1/3. The actual calculation is often far more complex than that and takes into account things like custody, childcare, and non-financial contributions each spouse brought to the relationship.
If you believe certain assets or properties should be excluded (or included) in the division of property, the family law experts at the Erica Lord Law Group can help draft the necessary legal strategy to safeguard your legacy and your livelihood.
Currently, West Virginia is not a “community property law” state. In short, this means that it is not automatically assumed that any and every asset or debt accrued by either spouse during a marriage is going to be shared marital property. This can make divorces more time-consuming and tedious to process if there are disagreements about the nature of such assets or debts, but it also leaves more room for you and your legal representation to develop a sound strategy for protecting your individually held personal assets.
Because West Virginia does not adhere to community property law, it is often in the best interests of divorcing couples to work with their legal representation to come up with a valid marital settlement agreement before ever filing the divorce with the West Virginia courts. Even in more contentious divorces where the couple is not able to communicate productively, a marital settlement agreement that will hold up in court can often be achieved using the assistance of family law attorneys and expert mediators.
Marital assets are any jointly held property or financial instruments that were acquired during a marriage. Because West Virginia is an equitable distribution state and not a community property law state, not every asset accrued during a marriage will automatically be considered a shared marital asset.
When a married couple divorces, their marital assets must be divided. This means that any jointly held property or financial accounts must be appraised and then assigned to each spouse. If this cannot be done equitably (such as if a shared home is the couple’s only asset of any real value), then one spouse may be ordered to receive a one-time equalization payment.
A marital debt is essentially the inverse of a marital asset. Marital debts are any shared debts that were incurred by the married couple during their marriage. The court can consider a debt jointly held even if the account was opened in only one spouse’s name; the final decision will be based on the available evidence.
When a married couple divorces, their shared marital debts are divided much like their shared assets. Typically, this means each spouse will be ordered to pay one-half of each outstanding debt that is determined to be a shared marital debt. Extenuating circumstances and legally actionable evidence can be presented to the court to limit a spouse’s liability for debts that they do not rightfully consider “shared.”
If you’re concerned about how your assets and debts will be divided once you file for divorce, take the time to contact Erica Lord Law Group for a no-obligation review of your circumstances. The Charleston asset and debt division attorneys at Erica Lord Law Group have a track record of success navigating their clients through even the most complex and emotionally charged divorce cases so that they leave the courtroom feeling fairly treated and set on the path to a better future. Regardless of your situation, our team can help you through your divorce.