Behind child custody and alimony the most hotly contested part of divorce is deciding who gets what and dividing the property brought into the marriage by each and dividing what was purchased jointly. Property includes both real property such as your home, and personal property such as household items or cars. Courts use many factors in deciding property division issues and final orders. It can be very complicated.
State laws generally govern property division issues and vary by state. West Virginia uses what is called equitable distribution. Know the basics of property division and you’ll be ready to work through this important issue in your divorce.
In West Virginia, each spouse is generally entitled to half the property acquired during the marriage. This is the basis of “equitable distribution.”
Not all property is equitably divided in half. Spouses may have and keep their separate property. “Separate property” typically includes:
- Property or businesses you owned before marriage
- Gifts and inheritances received by you
- Pension proceeds that vested before marriage
In most other states, courts divide a couple’s assets in an “equitable” (fair) manner, called equitable distribution. Equitable is what is fair to both spouses, and fair may not mean equal.
State laws give the factors courts use in deciding what is “equitable.” Generally, factors include:
- Marriage length
- The work history and job prospects of each spouse
- The physical and mental health of each spouse
- The source of particular assets
- The type of assets, and liquidity of the assets
- Whether or not one spouse should keep the family home, or the right to live there for a time
- Tax considerations
Property Settlement Agreements
If you and your spouse can agree on how to divide your assets, whether it follows your state’s guidelines or not, your lawyers will write up a formal agreement called a “property settlement agreement.” Detailed lists of who gets what are included in this agreement.
Many states’ laws spell out that a voluntary property settlement is preferred to having the court decide those issues. There’s no way to predict or guarantee how a court will decide property division issues, so many couples prefer to work out a property settlement on their own.
Do read the property settlement agreement carefully, and ask your lawyer about anything you do not understand. Once an agreement is signed and approved by the court, it’s likely to be difficult and expensive to change.
If you have questions about, or need representation for, property settlement cases, schedule a consultation with Pepper and Nason, call (304) 346-0361 today.