Primarily servicing the greater New York City metropolitan area



LEONARD M.WEINER, ESQ, Ph.D.
DIVORCE SOLUTIONS
206 East 38th Street
New York, N.Y. 10016
(212) 370-1660

FINANCIAL ISSUES - MARITAL PROPERTY V. SEPARATE PROPERTY

Question #252:
Divorcing in the state of WV. My husband moved out September 27, 2011; I filed for divorce in March 2011; he is living with a woman since January 2011; I have been living in our home and he wants the house as well. His name is the only one on the deed at court house; however my name is on the mortgage and deed of trust. Can he remove me from my home? Who has rights to the house?

Answer:
West Virginia is an equitable distribution state. 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, after a consideration of the following:
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 employment income and other earnings and funds which are separate property.
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:
1. Homemaker services;
2. Child care services;
3. 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;
4. Labor performed in the actual maintenance or improvement of tangible marital property;
5. Labor performed in the management or investment of assets which are marital property.
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:
1. 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.
2. 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.
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.
[Based on West Virginia Code; Sections 48-5-610 and 48-7-103]
If the house was acquired during the marriage with funds earned during the marriage, you would have an equitable right to one half of such property regardless of in whose name the property is held in.
If it was acquired prior to the marriage, or with separate funds , such as savings held separately from before the marriage or from an inheritance or gift your husband had or received,
It would be separate property and not marital property and you would not have an ownership interest, though you may claim that one half of any upkeep expenses or
Mortgage payments made during the marriage from money earned during the marriage should be credited to you.
The fact that title is in his name only is not determinative as to your marital interest in the property.

Leonard M. Weiner, Esq./Divorce Solutions
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