Individual Changes to Basic Family Law
§48-2-4a. Petition instituting a domestic relations action; answer.
(a) A domestic relations action is instituted by the filing of a verified petition. On and after the first day of October, one thousand nine hundred ninety-nine, the formal style of a domestic relations petition and the caption for all subsequent pleadings is as follows:
(1) In an action for divorce, separate maintenance or annulment the action may be styled "In Re the marriage of ________ and ________"; and
(2) In an action to establish a child support obligation or to allocate custodial responsibility and decision-making responsibility when the parties are not married, the action may be styled "In Re the Child(ren) of __________ and ___________." The parties are identified in all pleadings as "petitioner" and "respondent".
(b) The responsive pleading to a petition instituting a domestic relations action is denominated an answer. The form and requisites for an answer to a petition for divorce or any other responsive pleading shall be verified in accordance with the provisions of section ten, article two of this article and are governed by the rules of civil procedure.
(c) The provisions of this section will become effective on the first day of October, one thousand nine hundred ninety-nine.
A verified answer to a divorce complaint alleging as one of the grounds
for divorce, the ground of irreconcilable differences as contained in
subdivision (10), subsection (a), section four of this article, may be
in the form or effect as follows:
IN THE CIRCUIT COURT OF ............... COUNTY, WEST VIRGINIA ..........................,
Plaintiff
vs. CIVIL ACTION NO.............
.........................., Defendant
ANSWER
Now comes the defendant for answer to the complaint and says as follows:
(1) The defendant admits all the allegations contained in the complaint
except the allegations contained in paragraph number(s) .......................,
which allegations the defendant denies. (2) That irreconcilable differences
exist between the parties.
........................... Defendant
VERIFICATION
STATE OF WEST VIRGINIA,
COUNTY OF ...........................,
....................................., the defendant named in the
foregoing answer, being duly sworn, says that the facts and allegations
therein contained are true, except so far as they are therein stated to
be on information, and that, so far as they are therein stated to be on
information, the defendant believes them to be true.
........................... Defendant
Taken, sworn to and subscribed before me this ..............day of
............................., ..........................
My commission expires ....................................................................
Notary Public
CERTIFICATE OF SERVICE I have mailed a true copy of the foregoing
answer to ..........................., plaintiff's attorney, by first-class
mail, at his last known address at ........................... on the
.................. date of .................., .............
........................... Defendant.
§48-2-15. Relief upon ordering divorce or annulment or granting decree of separate maintenance.
(a) Upon ordering a divorce or granting a decree of separate maintenance, the court may require either party to pay alimony in the form of periodic installments, or a lump sum, or both, for the maintenance of the other party. Payments of alimony are to be ordinarily made from a party's income, but when the income is not sufficient to adequately provide for those payments, the court may, upon specific findings set forth in the order, order the party required to make those payments to make them from the corpus of his or her separate estate. An award of alimony shall not be disproportionate to a party's ability to pay as disclosed by the evidence before the court.
(b) Upon ordering the annulment of a marriage or a divorce or granting of decree of separate maintenance, the court may further order all or any part of the following relief:
(1) The court may provide for the custody of minor children of the parties, subject to such rights of visitation, both in and out of the residence of the custodial parent or other person or persons having custody, as may be appropriate under the circumstances. In every action where visitation is awarded, the court shall specify a schedule for visitation by the noncustodial parent: Provided, That with respect to any existing order which provided for visitation but which does not provide a specific schedule for visitation by the noncustodial parent, upon motion of any party, notice of hearing and hearing, the court shall issue an order which provides a specific schedule of visitation by the noncustodial parent;
(2) When the action involves a minor child or children, the court shall require either party to pay child support in the form of periodic installments for the maintenance of the minor children of the parties in accordance with support guidelines promulgated pursuant to article one-b, chapter forty-eight-a of this code. Payments of child support are to be ordinarily made from a party's income, but in cases when the income is not sufficient to adequately provide for those payments, the court may, upon specific findings set forth in the order, order the party required to make those payments to make them from the corpus of his or her separate estate;
(3) When the action involves a minor child or children, the court shall provide for medical support for any minor children in accordance with section fifteen-a of this article;
(4) As an incident to requiring the payment of alimony or child support, the court may order either party to continue in effect existing policies of insurance covering the costs of health care and hospitalization of the other party: Provided, That if the other party is no longer eligible to be covered by such insurance because of the granting of an annulment or divorce, the court may require a party to substitute such insurance with a new policy to cover the other party or may consider the prospective cost of such insurance in awarding alimony to be paid in periodic installments. Payments made to an insurer pursuant to this subdivision, either directly or by a deduction from wages, shall be deemed to be alimony or installment payments for the distribution of marital property, in such proportion as the court shall direct: Provided, however, That if the court does not set forth in the order that a portion of such payments is to be deemed installment payments for the distribution of marital property, then all such payments made pursuant to this subdivision shall be deemed to be alimony: Provided further, That the designation of insurance coverage as alimony under the provisions of this subdivision shall not, in and of itself, give rise to a subsequent modification of the order to provide for alimony other than insurance for covering the costs of health care and hospitalization;
(5) The court may grant the exclusive use and occupancy of the marital home to one of the parties, together with all or a portion of the household goods, furniture and furnishings reasonably necessary for such use and occupancy. Such use and occupancy shall be for a definite period, ending at a specific time set forth in the order, subject to modification upon the petition of either party. Except in extraordinary cases supported by specific findings set forth in the order granting relief, a grant of the exclusive use and occupancy of the marital home shall be limited to those situations when such use and occupancy is reasonably necessary to accommodate the rearing of minor children of the parties. The court may require payments to third parties in the form of home loan installments, land contract payments, rent, property taxes and insurance coverage if the amount of such coverage is reduced to a fixed monetary amount set forth in the court's order. When such third party payments are ordered, the court shall specify whether such payments or portions of payments are alimony, child support, a partial distribution of marital property or an allocation of marital debt: Provided, That if the court does not set forth in the order that a portion of such payments is to be deemed child support or installment payments for the distribution of marital property, then all such payments made pursuant to this subdivision shall be deemed to be alimony. When such third party payments are ordered, the court shall specify whether such payments or portions of payments are alimony, child support, a partial distribution of marital property or an allocation of marital debt. If the payments are not designated in an order and the parties have waived any right to receive alimony, the court may designate the payments upon motion by any party. Nothing contained in this subdivision shall abrogate an existing contract between either of the parties and a third party or affect the rights and liabilities of either party or a third party under the terms of such contract;
(6) As an incident to requiring the payment of alimony, the court may grant the exclusive use and possession of one or more motor vehicles to either of the parties. The court may require payments to third parties in the form of automobile loan installments or insurance coverage if available at reasonable rates, and any such payments made pursuant to this subdivision for the benefit of the other party shall be deemed to be alimony or installment payments for the distribution of marital property, as the court may direct. Nothing contained in this subdivision shall abrogate an existing contract between either of the parties and a third party or affect the rights and liabilities of either party or a third party under the terms of such contract;
(7) When the pleadings include a specific request for specific property or raise issues concerning the equitable division of marital property as defined in section one of this article, the court shall order such relief as may be required to effect a just and equitable distribution of the property and to protect the equitable interests of the parties therein;
(8) Unless a contrary disposition is ordered pursuant to other provisions of this section, then upon the motion of either party, the court may compel the other party to deliver to the moving party any of his or her separate estate which may be in the possession or control of the respondent party and may make such further order as is necessary to prevent either party from interfering with the separate estate of the other;
(9) When allegations of abuse have been proven, the court shall enjoin the offending party from molesting or interfering with the other, or otherwise imposing any restraint on the personal liberty of the other or interfering with the custodial or visitation rights of the other. Such order may permanently enjoin the offending party from entering the school, business or place of employment of the other for the purpose of molesting or harassing the other; or from contacting the other, in person or by telephone, for the purpose of harassment or threats; or from harassing or verbally abusing the other in a public place;
(10) The court may order either party to take necessary steps to transfer utility accounts and other accounts for recurring expenses from the name of one party into the name of the other party or from the joint names of the parties into the name of one party. Nothing contained in this subdivision shall affect the liability of the parties for indebtedness on any such account incurred before the transfer of such account.
(c) When an annulment or divorce is denied, the court shall retain jurisdiction of the case and may order all or any portion of the relief provided for in subsections (a) and (b) of this section which has been demanded or prayed for in the pleadings.
(d) When a divorce or annulment is granted in this state upon constructive service of process and personal jurisdiction is thereafter obtained of the defendant in such case, the court may order all or any portion of the relief provided for in subsections (a) and (b) of this section which has been demanded or prayed for in the pleadings.
(e) After the entry of an order pursuant to the provisions of this section, the court may revise the order concerning the maintenance of the parties and enter a new order concerning the same, as the circumstances of the parties may require.
The court may also from time to time afterward, upon motion of either of the parties and upon proper service, revise such order to grant relief pursuant to subdivision (9), subsection (b) of this section, and enter a new order concerning the same, as the circumstances of the parties and the benefit of children may require. The court may also from time to time afterward, upon the motion of either of the parties or other proper person having actual or legal custody of the minor child or children of the parties, revise or alter the order concerning the custody and support of the children, and make a new order concerning the same, issuing it forthwith, as the circumstances of the parents or other proper person or persons and the benefit of the children may require: Provided, That all orders modifying child support shall be in conformance with the requirements of support guidelines promulgated pursuant to article one-b, chapter forty-eight-a of this code: Provided, however, That an order providing for child support payments may be revised or altered for the reason, inter alia, that the existing order provides for child support payments in an amount that is less than eighty-five percent or more than one hundred fifteen percent of the amount that would be required to be paid under the child support guidelines promulgated pursuant to the provisions of said section: Provided further, That the child support enforcement division may review a child support order and, if appropriate, file a motion with the circuit court for modification of the child support order pursuant to the provisions of section thirty-five, article two, chapter forty-eight-a of this code.
In granting relief under this subsection, the court may, when other means are not conveniently available, alter any prior order of the court with respect to the distribution of marital property, if such property is still held by the parties, and if necessary to give effect to a modification of alimony, child support or child custody or necessary to avoid an inequitable or unjust result which would be caused by the manner in which the modification will affect the prior distribution of marital property.
(f) (1)When a separation agreement is the basis for an award
of alimony, the court, in approving the agreement, shall examine the agreement
to ascertain whether it clearly provides for alimony to continue beyond
the death of the payor party or the payee or to cease in
such event. When alimony is to be paid pursuant to the terms of a separation
agreement which does not state whether the payment of alimony is to continue
beyond the death of the payor party or payee or is to cease,
or when the parties have not entered into a separation agreement and alimony
is to be awarded, the court shall specifically state have the
discretion to determine, as a part of its order, whether such payments
of alimony are to be continued beyond the death of the payor party
or payee or cease. In the event neither an agreement nor an
order make provision for the death of the payor or payee, alimony other
than rehabilitative alimony or alimony in gross shall cease on the death
of the payor or payee. In the event neither an agreement nor an order
make provision for the death of the payor, rehabilitative alimony continues
beyond the payor's death, in the absence of evidence that the payor's
estate is likely to be insufficient to meet other obligations or that
other matters would make continuation after death inequitable. Rehabilitative
alimony ceases with the payee's death. In the event neither an agreement
nor an order make provision for the death of the payor or payee, alimony
in gross continues beyond the payor's or payee's death.
(g) (2) When a separation agreement is the basis for an
award of alimony, the court, in approving the agreement, shall examine
the agreement to ascertain whether it clearly provides for alimony to
continue beyond the remarriage of the payee party or to cease in
such event. When alimony is to be paid pursuant to the terms of a separation
agreement which does not state whether the payment of alimony is to continue
beyond the remarriage of the payee party or is to cease, or when
the parties have not entered into a separation agreement and alimony is
to be awarded, the court shall specifically state have
the discretion to determine, as a part of its order, whether such
payments of alimony are to be continued beyond the remarriage of the payee.
party or cease. In the event neither an agreement nor an order
make provision for the remarriage of the payee, alimony other than rehabilitative
alimony or alimony in gross shall cease on the remarriage of the payee.
Rehabilitative alimony does not cease upon the remarriage of the payee
during the first four years of a rehabilitative period. In the event neither
an agreement nor an order make provision for the remarriage of the payee,
alimony in gross continues beyond the payee's remarriage.
(g)(1) In the discretion of the court, an award of alimony may be reduced or terminated upon specific written findings by the court that since the granting of a divorce and the award of` alimony a de facto marriage has existed between the alimony payee and another person.
(2) In determining whether an existing award of alimony or spousal
support should be reduced or terminated because of an alleged de facto
marriage between a payee and another person, the court should elicit the
nature and extent of the relationship in question. The court should give
consideration, without limitation, to circumstances such as the following
in determining the relationship of an ex-spouse to another person:
(A) The extent to which the ex-spouse and the other person have held themselves
out as a married couple by engaging in conduct such as using the same
last name, using a common mailing address, referring to each other in
terms such as "my husband" or "my wife," or otherwise conducting themselves
in a manner that evidences a stable marriage-like relationship;
(B) The period of time that the ex-spouse has resided with another person
not related by consanguinity or affinity in a permanent place of abode;
(C) The duration and circumstances under which the ex-spouse has maintained
a continuing conjugal relationship with the other person;
(D) The extent to which the ex-spouse and the other person have pooled
their assets or income or otherwise exhibited financial interdependence;
(E) The extent to which the ex-spouse or the other person has supported
the other, in whole or in part;
(F) The extent to which the ex-spouse or the other person has performed
valuable services for the other;
(G) The extent to which the ex-spouse or the other person has performed
valuable services for the other's company or employer;
(H) Whether the ex-spouse and the other person have worked together to
create or enhance anything of value;
(I) Whether the ex-spouse and the other person have jointly contributed
to the purchase of any real or personal property;
(J) Evidence in support of a claim that the ex-spouse and the other person
have an express agreement regarding property sharing or support; or
(K) Evidence in support of a claim that the ex-spouse and the other person
have an implied agreement regarding property sharing or support.
(7) On the issue of whether alimony should be reduced or terminated under this subsection, the burden is on the payor to prove by a preponderance of the evidence that a de facto marriage exists. If the court finds that the payor has failed to meet burden of proof on the issue, the court may award reasonable attorney's fees to a payee who prevails in an action that sought to reduce or terminate alimony on the ground that a de facto marriage exists.
(8) The court shall order that a reduction or termination of alimony is retroactive to the date of service of the petition on the payee, unless the court finds that reimbursement of amounts already paid would cause an undue hardship on the payee.
(9) An award of rehabilitative alimony shall not be reduced or terminated because of the existence of a de facto marriage between the alimony payee and another person.
(10) An award of alimony in gross shall not be reduced or terminated because of the existence of a de facto marriage between the alimony payee and another person.
(11) An award of alimony shall not be reduced or terminated under the provisions of this subsection for conduct by an alimony payee that occurred before the first day of October, one thousand nine hundred ninety-nine.
(12) Nothing in this subsection shall be construed to abrogate the requirement that every marriage in this state be solemnized under a license or construed to recognize a common law marriage as valid.
(h) In addition to the disclosure requirements set forth in section thirty-three of this article, the court may order accounts to be taken as to all or any part of marital property or the separate estates of the parties and may direct that the accounts be taken as of the date of the marriage, the date upon which the parties separated or any other time in assisting the court in the determination and equitable division of property.
(i) In determining whether alimony is to be awarded, or in determining
the amount of alimony, if any, to be awarded under the provisions of this
section, the court shall consider and compare the fault or misconduct
of either or both of the parties and the effect of such fault or misconduct
as a contributing factor to the deterioration of the marital relationship.
However, alimony shall not be awarded when both parties prove grounds
for divorce and are denied a divorce, nor shall an award of alimony under
the provisions of this section be ordered which directs the payment of
alimony to a party determined to be at fault, when, as a grounds granting
the divorce, such party is determined by the court:
(1) To have committed adultery; or
(2) To have been convicted for the commission of a crime which is a felony,
subsequent to the marriage if such conviction has become final; or
(3) To have actually abandoned or deserted his or her spouse for six months.
(j) Whenever under the terms of this section or section thirteen of this article a court enters an order requiring the payment of alimony or child support, if the court anticipates the payment of such alimony or child support or any portion thereof to be paid out of "disposable retired or retainer pay" as that term is defined in 10 U.S.C. §1408, relating to members or former members of the uniformed services of the United States, the court shall specifically provide for the payment of an amount, expressed in dollars or as a percentage of disposable retired or retainer pay, from the disposable retired or retainer pay of the payor party to the payee party.
(k) Any order which provides for the custody or support of a minor child
shall include:
(1) The name of the custodian;
(2) The amount of the support payments;
(3) The date the first payment is due;
(4) The frequency of the support payments;
(5) The event or events which trigger termination of the support obligation;
(6) A provision regarding wage withholding;
(7) The address where payments shall be sent;
(8) A provision for medical support; and
(9) When child support guidelines are not followed, a specific written
finding pursuant to section fourteen, article one-b, chapter forty-eight-a
of this code.
(l) (1) Unless the best interests of the child require otherwise,
every final order and every modification order which provides for the
custody of a minor child of the parties shall also provide for the following:
(A) The custodial parent shall be required to authorize school authorities
in the school in which the child is enrolled to release to the noncustodial
parent copies of any and all information concerning the child which would
otherwise be properly released to the custodial parent;
(B) The custodial parent shall be required, promptly after receipt,
to transmit to the noncustodial parent a copy of the child's grades or
report card and copies of any other reports reflecting the status or progress
of the child;
(C) The custodial parent shall be required, when practicable, to arrange
appointments for parent-teacher conferences at a time when the noncustodial
parent can be present;
(D) The custodial parent shall be required to authorize medical providers
to release to the noncustodial parent copies of any and all information
concerning medical care provided to the child which would otherwise be
properly released to the custodial parent;
(E) The custodial parent shall be required to promptly inform the
noncustodial parent of any illness of the child which requires medical
attention; or, if the child is in the actual physical custody of the noncustodial
parent during a period of visitation, the noncustodial parent shall be
required to promptly inform the custodial parent of any illness of the
child which requires medical attention;
(F) The custodial parent shall be required to consult with the noncustodial
parent prior to any elective surgery being performed on the child; and
in the event emergency medical procedures are undertaken for the child
which require the parental consent of either parent, if time permits,
the other parent shall be consulted, or if time does not permit such consultation,
the other parent shall be promptly informed of such emergency medical
procedures: Provided, That the same duty to inform the custodial parent
applies to the noncustodial parent in the event that the emergency medical
procedures are required while the child is in the physical custody of
the noncustodial parent during a period of visitation: Provided, however,
That nothing contained herein shall be deemed to alter or amend the law
of this state as it otherwise pertains to physicians or health care facilities
obtaining parental consent prior to providing medical care or performing
medical procedures.
(2) In the event a custodial parent shall fail or refuse to authorize
the release of school or medical records as provided for by subdivision
(1) of this subsection, then upon the ex parte application of the noncustodial
parent, the family law master shall prepare an order for entry by the
circuit court which appoints the family law master as a special commissioner
authorized to execute a consent for the release of such records and direct
it to the appropriate school authorities or medical providers.
(l) Effective the first day of October, one thousand nine hundred ninety-nine, any order entered that provides for the payment of child support shall also include a statement that requires both parties to report any changes in gross income, either in source of employment or in the amount of gross income, to the child support enforcement division and to the other party. The notice shall not be required if the change in gross income is less than a fifteen percent change in gross income.
§48-2-16. Effect of separation agreement; what considered in awarding alimony, child support or separate maintenance.
(a) In cases where the parties to an action commenced under the provisions of this article have executed a separation agreement, if the court finds that the agreement is fair and reasonable, and not obtained by fraud, duress or other unconscionable conduct by one of the parties, and further finds that the parties, through the separation agreement, have expressed themselves in terms which, if incorporated into a judicial order, would be enforceable by a court in future proceedings, then the court shall conform the relief which it is authorized to order under the provisions of sections thirteen and fifteen of this article to the separation agreement of the parties. The separation agreement may contractually fix the division of property between the parties and may determine whether alimony shall be awarded, whether an award of alimony, other than an award of rehabilitative alimony or alimony in gross, may be reduced or terminated because a de facto marriage exists between the alimony payee and another person, whether a court shall have continuing jurisdiction over the amount of an alimony award so as to increase or decrease the amount of alimony to be paid, whether alimony shall be awarded as a lump sum settlement in lieu of periodic payments, whether alimony shall continue beyond the death of the payor party or the remarriage of the payee party, or whether the alimony award shall be enforceable by contempt proceedings or other judicial remedies aside from contractual remedies. Any award of periodic payments of alimony shall be deemed to be judicially decreed and subject to subsequent modification unless there is some explicit, well expressed, clear, plain and unambiguous provision to the contrary set forth in the court approved separation agreement or the order granting the divorce. Child support shall, under all circumstances, always be subject to continuing judicial modification.
(b) In cases where the parties to an action commenced under the provisions
of this article have not executed a separation agreement, or have executed
an agreement which is incomplete or insufficient to resolve the outstanding
issues between the parties, or where the court finds the separation agreement
of the parties not to be fair and reasonable or clear and unambiguous,
the court shall proceed to resolve the issues outstanding between the
parties. The court shall consider the following factors in determining
the amount of alimony, child support or separate maintenance, if any,
to be ordered under the provisions of sections thirteen and fifteen of
this article, as a supplement to or in lieu of the separation agreement:
(1) The length of time the parties were married;
(2) The period of time during the marriage when the parties actually lived
together as husband and wife;
(3) The present employment income and other recurring earnings of each
party from any source;
(4) The income-earning abilities of each of the parties, based upon such
factors as educational background, training, employment skills, work experience,
length of absence from the job market and custodial responsibilities for
children;
(5) The distribution of marital property to be made under the terms of
a separation agreement or by the court under the provisions of section
thirty-two of this article, insofar as the distribution affects or will
affect the earnings of the parties and their ability to pay or their need
to receive alimony, child support or separate maintenance: Provided,
That for the purposes of determining a spouse's ability to pay alimony,
the court may not consider the income generated by property allocated
to the payor spouse in connection with the division of marital property
unless the court makes specific findings that a failure to consider income
from the allocated property would result in substantial inequity;
(6) The ages and the physical, mental and emotional condition of each
party;
(7) The educational qualifications of each party;
(8) Whether either party has foregone or postponed economic, education
or employment opportunities during the course of the marriage;
(9) The standard of living established during the marriage;
(8) (10) The likelihood that the party seeking alimony,
child support or separate maintenance can substantially increase his or
her income-earning abilities within a reasonable time by acquiring additional
education or training;
(11) Any financial or other contribution made by either party to the
education, training, vocational skills, career or earning capacity of
the other party;
(9) (12) The anticipated expense of obtaining the education
and training described in subdivision (8)(10) above;
(10) (13) The costs of educating minor children;
(11) (14) The costs of providing health care for each of
the parties and their minor children;
(12) (15) The tax consequences to each party;
(13) (16) The extent to which it would be inappropriate
for a party, because said party will be the custodian of a minor child
or children, to seek employment outside the home;
(14) (17) The financial need of each party;
(15) (18) The legal obligations of each party to support
himself or herself and to support any other person; and
(19) Costs and care associated with a minor or adult child's physical
or mental disabilities; and
(16) (20) Such other factors as the court deems necessary
or appropriate to consider in order to arrive at a fair and equitable
grant of alimony, child support or separate maintenance.
§48-2-32. Marital property disposition.
(a) Except as otherwise provided in this section, upon every judgment of annulment, divorce or separation, the court shall divide the marital property of the parties equally between the parties.
(b) In cases where the parties to an action commenced under the provisions
of this article have executed a separation agreement, then the court shall
divide the marital property in accordance with the terms of the agreement,
unless the court finds:
(1) That the agreement was obtained by fraud, duress or other unconscionable
conduct by one of the parties; or
(2) That the parties, in the separation agreement, have not expressed
themselves in terms which, if incorporated into a judicial order, would
be enforceable by a court in future proceedings; or
(3) That the agreement, viewed in the context of the actual contributions
of the respective parties to the net value of the marital property of
the parties, is so inequitable as to defeat the purposes of this section,
and such agreement was inequitable at the time the same was executed.
(c) In the absence of a valid agreement, the court shall presume that
all marital property is to be divided equally between the parties, but
may alter this distribution, without regard to any attribution of fault
to either party which may be alleged or proved in the course of the action,
after a consideration of the following:
(1) The extent to which each party has contributed to the acquisition,
preservation and maintenance, or increase in value of marital property
by monetary contributions, including, but not limited to:
(A) Employment income and other earnings; and
(B) Funds which are separate property.
(2) The extent to which each party has contributed to the acquisition,
preservation and maintenance or increase in value of marital property
by nonmonetary contributions, including, but not limited to:
(A) Homemaker services;
(B) Child care services;
(C) Labor performed without compensation, or for less than adequate compensation,
in a family business or other business entity in which one or both of
the parties has an interest;
(D) Labor performed in the actual maintenance or improvement of tangible
marital property; and
(E) Labor performed in the management or investment of assets which are
marital property. (3) The extent to which each party expended his or her
efforts during the marriage in a manner which limited or decreased such
party's income-earning ability or increased the income-earning ability
of the other party, including, but not limited to:
(A) Direct or indirect contributions by either party to the education
or training of the other party which has increased the income-earning
ability of such other party; and
(B) Foregoing by either party of employment or other income-earning activity
through an understanding of the parties or at the insistence of the other
party.
(4) The extent to which each party, during the marriage, may have conducted
himself or herself so as to dissipate or depreciate the value of the marital
property of the parties: Provided, That except for a consideration of
the economic consequences of conduct as provided for in this subdivision,
fault or marital misconduct shall not be considered by the court in determining
the proper distribution of marital property.
(d) After considering the factors set forth in subsection (c) of this
section, the court shall:
(1) Determine the net value of all marital property of the parties as
of the date of the commencement of the action separation of
the parties or as of such later date determined by the court to be
more appropriate for attaining an equitable result. : Provided, That
for contractual rights to contingent and other future earned fees that
are considered to be marital property, the valuation date is the date
the parties separated. Contractual agreements for contingent or other
future earned fees entered into during the marriage and before the parties
separated is marital property. The court shall not delay a division of
marital property by retaining continuing jurisdiction over the matter
until the amount of the contingent or other future earned fee has been
ultimately decided, but shall make a valuation of the contractual agreement
contemporaneously with the valuation of other marital property; Where
the value of the marital property portion of a spouse's entitlement to
future payments can be determined at the time of entering a final order
in a domestic relations action, the court may include it in reckoning
the worth of the marital property assigned to each spouse. In the absence
of an agreement between the parties, when the value of the future payments
is not known at the time of entering a final order in a domestic relations
action, if their receipt is contingent on future events or not reasonably
assured, or if for other reasons it is not equitable under the circumstances
to include their value in the property assigned at the time of dissolution,
the court may decline to do so, and
(A) Fix the spouses' respective shares in such future payments if and
when received, or,
(B) If it is not possible and practical to fix their share at the time
of entering a final order in a domestic relations action, reserve jurisdiction
to make an appropriate order at the earliest practical date.
If a valuation is made after a contingent or other future fee has
been earned through the personal services or skills of a spouse, the portion
that is marital property shall be in the same proportion to the total
fee that the personal services or skills expended before the separation
of the parties bears to the total personal skills or services expended.
The provisions of this subdivision apply to pending cases when the issues
of contingent fees or future earned fees have not been finally adjudicated.
(2) Designate the property which constitutes marital property, and
define the interest therein to which each party is entitled and the value
of their respective interest therein. In the case of an action wherein
there is no agreement between the parties and the relief demanded requires
the court to consider such factors as are described in subdivisions (1),
(2), (3) and (4), subsection (c) of this section, if a consideration of
factors only under said subdivisions (1) and (2) would result in an unequal
division of marital property, and if an examination of the factors described
in said subdivisions (3) and (4) produce a finding that a party: (A) Expended
his or her efforts during the marriage in a manner which limited or decreased
such party's income-earning ability or increased the income-earning ability
of the other party; or (B) conducted himself or herself so as to dissipate
or depreciate the value of the marital property of the parties, then the
court may, in the absence of a fair and just alimony award under the provisions
of section fifteen of this article which adequately takes into account
the facts which underlie the factors described in subdivisions (3) and
(4), subsection (c) of this section, equitably adjust the definition of
the parties' interest in marital property, increasing the interest in
marital property of a party adversely affected by the factors considered
under said subdivisions who would otherwise be awarded less than one half
of the marital property, to an interest not to exceed one half of the
marital property;
(3) Designate the property which constitutes separate property of the respective parties or the separate property of their children;
(4) Determine the extent to which marital property is susceptible to division in accordance with the findings of the court as to the respective interests of the parties therein;
(5) In the case of any property which is not susceptible to division, ascertain the projected results of a sale of such property;
(6) Ascertain the projected effect of a division or transfer of ownership of income-producing property, in terms of the possible pecuniary loss to the parties or other persons which may result from an impairment of the property's capacity to generate earnings; and
(7) Transfer title to such component parts of the marital property as
may be necessary to achieve an equitable distribution of the marital property.
To make such equitable distribution, the court may:
(A) Direct either party to transfer their interest in specific property
to the other party;
(B) Permit either party to purchase from the other party their interest
in specific property;
(C) Direct either party to pay a sum of money to the other party in lieu
of transferring specific property or an interest therein, if necessary
to adjust the equities and rights of the parties, which sum may be paid
in installments or otherwise, as the court may direct;
(D) Direct a party to transfer his or her property to the other party
in substitution for property of the other party of equal value which the
transferor is permitted to retain and assume ownership of; or
(E) Order a sale of specific property and an appropriate division of the
net proceeds of such sale: Provided, That such sale may be by private
sale, or through an agent or by judicial sale, whichever would facilitate
a sale within a reasonable time at a fair price.
(e) In order to achieve the equitable distribution of marital property, the court shall, unless the parties otherwise agree, order, when necessary, the transfer of legal title to any property of the parties, giving preference to effecting equitable distribution through periodic or lump sum payments: Provided, That the court may order the transfer of legal title to motor vehicles, household goods and the former marital domicile without regard to such preference where the court determines it to be necessary or convenient. In any case involving the equitable distribution of: (1) Property acquired by bequest, devise, descent, distribution or gift; or (2) ownership interests in a business entity, the court shall, unless the parties otherwise agree, give preference to the retention of the ownership interests in such property. In the case of such business interests, the court shall give preference to the party having the closer involvement, larger ownership interest or greater dependency upon the business entity for income or other resources required to meet responsibilities imposed under this article, and shall also consider the effects of transfer or retention in terms of which alternative will best serve to preserve the value of the business entity or protect the business entity from undue hardship or from interference caused by one of the parties or by the divorce, annulment or decree of separate maintenance: Provided, however, That the court may, unless the parties otherwise agree, sever the business relationship of the parties and order the transfer of legal title to ownership interests in the business entity from one party to the other, without regard to the limitations on the transfer of title to such property otherwise provided in this subsection, if such transfer is required to achieve the other purposes of this article: Provided further, That in all such cases the court shall order or the agreement of the parties shall provide for equitable payment or transfer of legal title to other property, of fair value in money or moneys' worth, in lieu of any ownership interests in a business entity which are ordered to be transferred under this subsection: And provided further, That the court may order the transfer of such business interests to a third party (such as the business entity itself or another principal in the business entity) where the interests of the parties under this article can be protected and at least one party consents thereto.
(f) In any order which divides or transfers the title to any property, determines the ownership or value of any property, designates the specific property to which any party is entitled or grants any monetary award, the court shall set out in detail its findings of fact and conclusions of law, and the reasons for dividing the property in the manner adopted.
(g) If an order entered in accordance with the provisions of this article requires the transfer of title to property and a party fails or refuses to execute a deed or other instrument necessary to convey title to such property, the deed or other instrument shall be executed by a special commissioner appointed by the court for the purpose of effecting such transfer of title pursuant to section seven, article twelve, chapter fifty-five of this code.
(h) As to any third party, the doctrine of equitable distribution of marital property and the provisions of this article shall be construed as creating no interest or title in property until and unless an order is entered under this article judicially defining such interest or approving a separation agreement which defines such interest. Neither this article nor the doctrine of equitable distribution of marital property shall be construed to create community property nor any other interest or estate in property except those previously recognized in this state. A husband or wife may alienate property at any time prior to the entry of an order under the provisions of this article or prior to the recordation of a notice of lis pendens in accordance with the provisions of section thirty-five of this article, and at anytime and in any manner not otherwise prohibited by an order under this article, in like manner and with like effect as if this article and the doctrine of equitable distribution had not been adopted: Provided, That as to any transfer prior to the entry of an order under the provisions of this article, a transfer other than to a bona fide purchaser for value shall be voidable if the court finds such transfer to have been effected to avoid the application of the provisions of this article or to otherwise be a fraudulent conveyance. Upon the entry of any order under this article or the admission to record of any notice with respect to an action under this article, restraining the alienation of property of a party, a bona fide purchaser for value shall take such title or interest as he or she might have taken prior to the effective date of this section and no purchaser for value need see to the application of the proceeds of such purchase except to the extent he or she would have been required so to do prior to the effective date of this section: Provided, however, That as to third parties nothing in this section shall be construed to limit or otherwise defeat the interests or rights to property which any husband or wife would have had in property prior to the enactment of this section or prior to the adoption of the doctrine of equitable distribution by the supreme court of appeals on the twenty-fifth day of May, one thousand nine hundred eighty-three: Provided further, That no order entered under this article shall be construed to defeat the title of a third party transferee thereof except to the extent that the power to effect such a transfer of title or interest in such property is secured by a valid and duly perfected lien and, as to any personal property, secured by a duly perfected security interest.
(I) Notwithstanding the provisions of chapter eleven of this code, no transfer of interest in or title to property under this section shall be taxable as a transfer of property without consideration nor, except as to alimony, create liability for sales, use, inheritance and transfer or income taxes due the state or any political subdivision nor require the payment of the excise tax imposed under article twenty-two, chapter eleven of this code.
(j) Whenever under the terms of this article a court enters an order requiring a division of property, if the court anticipates the division of property will be effected by requiring sums to be paid out of "disposable retired or retainer pay" as that term is defined in 10 U.S.C. §1408, relating to members or former members of the uniformed services of the United States, the court shall specifically provide for the payment of an amount, expressed in dollars or as a percentage of disposable retired or retainer pay, from the disposable retired or retainer pay of the payor party to the payee party.
(k) A court may not award support or order equitable distribution of property between individuals who are not married to one another in accordance with the provisions of article one of this chapter.
(k) (l) The amendments to this section effected by the
reenactment of this section during the regular session of the Legislature,
one thousand nine hundred ninety-six, are to be applied prospectively
and shall have no application to any action for annulment, divorce or
separate maintenance that was commenced on or before the effective date
of this section.
§48-2-37. Calculation of interest; accumulation of simple interest; prejudgment interest.
(a) If an obligation to pay interest arises under this chapter and the
rate is not specified, the rate is that specified in section thirty-one,
article six, chapter fifty-six of this code. On or after the effective
date of this section, the ninth day of June, one thousand nine
hundred ninety-five, interest shall accrue only upon the outstanding
principal of such obligation. This section shall be construed to permit
the accumulation of simple interest, and may not be construed to permit
the compounding of interest. Interest which has accrued on unpaid installments
accruing before the effective date of this section the ninth
day of June, one thousand nine hundred ninety-five, may not be modified
by any court, irrespective of whether such installment accrued simple
or compound interest: Provided, That unpaid installments upon which interest
was compounded before the effective date of this section the
ninth day of June, one thousand nine hundred ninety-five, shall accrue
only simple interest thereon on and after the effective date of this
section the ninth day of June, one thousand nine hundred ninety-five.
(b) Except as otherwise provided in this subsection, prejudgment interest shall not be awarded in a domestic relations action. The circuit court may only award prejudgment interest in a domestic relations action against a party if the court finds, in writing, that the party engaged in conduct that would violate subsection (b), rule eleven of the West Virginia rules of civil procedure. If prejudgment interest is awarded, the court shall calculate prejudgment interest from the date the offending representation was presented to the court.