West Virginia is an equitable distribution state. This means that although the judge will presume that you and your husband's property should be divided exactly in half in your divorce, she can divide the property unequally if it leads to a fair and just result. If you and your husband agree to split your property unequally in a separation agreement or a prenuptial agreement, a West Virginia judge will usually approve the agreement if it appears fair and both spouses made the agreement knowingly and without threats or pressure from the other.
Factors the Judge Will Consider
Although the judge will assume that all property should be split equally between the husband and wife, in West Virginia the judge can decide to split the property unequally, or deviate, if you provide proof that it is fair to do so. The judge may award you a larger percentage of a certain asset if you did more to acquire, preserve, maintain or increase the value of the asset than your husband did. The judge can also consider how your work in the home, or work raising children, contributed to you and your husband's ability to acquire the property. The judge can also evaluate how your labor and your husband's labor -- either paid or unpaid -- contributed to acquiring or managing the marital assets. The judge can also look at how each spouse acted during the marriage, and if one spouse acted in ways that either furthered or limited the other spouse’s earning potential. Finally, the judge can divide marital property unequally when one spouse’s actions depleted the marital assets.
The court will only divide the "marital estate." The marital estate is all of the assets the court considers as yours and your husband's together. Any income you made during the marriage, and anything you bought with that income is usually considered marital property. Non-marital property is called separate property and the judge will assign it to the spouse that owns it and not consider that property when dividing the estate. Generally, separate property is property that you brought into the marriage, or was given to you alone as a gift, or property that you inherited.
Many times your retirement account will be your most valuable asset. Part of your retirement account can be marital property and part can be separate property. For example, if your retirement account had money in it when you got married, that money is considered separate property and your husband is not entitled to that sum. However, if your retirement account increased in value over the course of your marriage, your husband can claim that increased value as marital property. If you did not start your retirement account until after you were married, the entire value of the account is typically marital property.
West Virginia, like most states, requires that you tell your husband about all of your property, or fully disclose your assets, whether you believe the assets are separate property or not. If you fail make a full disclosure, the judge may decide to assume that the value your husband assigns to the property or asset is the true value, even if you have proof otherwise. The judge could also make you put your property into a trust, which is a special account managed by the court, until your divorce is final. If your failure to disclose is very serious, the judge may find you guilty of “false swearing” or perjury, which is lying to the court, and subject you to civil or criminal sanctions.