One of the most pressing questions in any divorce: What happens to our home, savings, and retirement accounts? West Virginia uses equitable distribution, governed by W. Va. Code § 48-7-101.
Equitable Distribution — What It Means
“Equitable” means fair, not necessarily equal. Courts start at a 50/50 presumption and adjust based on each spouse’s circumstances.
Marital Property vs. Separate Property
Marital Property (Subject to Division)
- Income earned by either spouse during the marriage
- The family home purchased after the wedding
- Vehicles, bank accounts, investment accounts
- Retirement benefits earned during the marriage
- Business interests acquired during the marriage
- Debts taken on during the marriage
Separate Property (Not Divided)
- Property owned before the marriage
- Inheritances received by one spouse
- Gifts made specifically to one spouse
- Assets excluded by a valid prenuptial agreement
Separate property can become marital property if mixed with joint funds. For example, depositing an inheritance into a joint account may make it divisible. Keep separate assets in separate accounts.
Factors Courts Consider
Under W. Va. Code § 48-7-104, courts weigh:
- Each spouse’s monetary and non-monetary contributions
- Length of the marriage
- Each spouse’s economic circumstances and earning capacity
- Whether either spouse dissipated (wasted) marital assets
Marital misconduct (e.g., adultery) generally does not affect property division — only financial misconduct does.
The Family Home
Common outcomes: one spouse buys out the other’s equity; the home is sold and proceeds split; or one spouse stays temporarily (often for the children’s schooling) with a later sale or refinance.
Important: Being removed from the deed does not remove you from the mortgage. A refinance or sale is needed to remove mortgage liability.
Retirement Accounts and Pensions
Retirement benefits earned during the marriage are marital property. Dividing them requires a Qualified Domestic Relations Order (QDRO) — a specialized court order. Only the portion earned during the marriage is typically subject to division.
Debt Division
Courts consider who took on the debt, who benefited, and each spouse’s ability to repay. If a joint debt is assigned to one spouse in the decree but they fail to pay, creditors can still pursue the other. Pay off or refinance joint debts where possible.
Resources
This page is for informational purposes only and does not constitute legal advice.