Justin Raber Attorney at Law


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How is property divided during divorce?

To say that property division is complex is an understatement, particularly in states like West Virginia that do not have community property rules. In West Virginia, courts start with the presumption that all marital property (property that the couple has acquired during their marriage) should be divided equally. There are, however, a number of factors that can change this distribution.

How will your property be divided? What factors go into making the decision and what can you do to ensure you receive your fair share? How will property division ultimately affect your ability to maintain an acceptable lifestyle once the divorce is final?

Let's start with the basics.

Marital property vs. separate property

Marital property is the property that a couple has acquired since they were married. This is distinguished from separate property, which is typically property that the spouses acquired separately before marriage. Some property that individuals received since the marriage began may be identified as separate, including inheritances, gifts and even some retirement accounts.

Typically, courts will keep separate property separate and divide marital property as equally as possible.

Marital property vs. community property

In a community property state, marital property is to be divided 50/50 in the event of a divorce. In an equitable distribution state, the division depends on what the court deems as fair, which may or may not mean dividing things down the middle.

Under West Virginia's domestic relations code, courts should consider factors such as:

  • Each person's ability to support themselves in a satisfactory matter
  • How much each person has contributed to the marital property (this includes financial contributions as well as less tangible contributions such as child care services and contributions to the home)
  • One party's contributions to the other party's education, if that education increased his or her income
  • Any choices between the parties that prevented one party from pursuing employment
  • Any conduct that may have depreciated the value of marital property

How you can influence the decision

The couple also has a certain amount of control in property division. Many people choose to work with mediators in order to come up with a fair distribution of their assets on their own. One person might want the family home, while the other wants to have claim to some other property or shared accounts. When couples come up with their own agreements, the courts will typically honor them as long as they are equitable.

Determining property division outside of court is not for everyone. If you don't believe you and your spouse can agree on property division, court may be the best option.

Will you have enough?

It takes more resources to run two households than it does to run one household, so it is difficult for many newly divorced people to have the same standard of living as a single person as they had when they were together. Early planning can help you prepare for the change. It is important to develop a post divorce budget that assumes you will have a lower income than you do presently. If you aren't going to be in your house, research lower cost alternatives.

There is a lot of value to be found in freedom and the opportunity to start over and once again pursue your own happiness that can make having a little less money less of a sacrifice. Your divorce attorney or a financial advisor or accountant can often direct you toward budgeting strategies and resources that may make the transition easier.

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