Senate Bill No. 700
(By Senator Kessler)
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[Introduced February 23, 1998; referred to the
Committee on the Judiciary.]
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A BILL to amend and reenact sections one and thirty-two, article
two, chapter forty-eight of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, all relating
to providing that contingency legal fees which have not yet
been collected or otherwise realized remain the separate
property of a party spouse pursuant to a divorce proceeding.
Be it enacted by the Legislature of West Virginia:
That sections one and thirty-two, article two, chapter
forty-eight of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, be amended and reenacted, all to
read as follows:
ARTICLE 2. DIVORCE, ANNULMENT AND SEPARATE MAINTENANCE.
§48-2-1. Definitions.
(a) "Alimony" means the allowance which a person pays to or in behalf of the support of his or her spouse or divorced spouse
while they are separated or after they are divorced. The payment
of alimony may be required by court order or by the terms of a
separation agreement. Alimony may be paid in a lump sum or paid
in installments as periodic alimony. Alimony includes temporary
alimony as that term is used in section thirteen of this article,
as well as alimony as that term is used in section fifteen of
this article and elsewhere throughout this article.
(b) "Antenuptial agreement" or "prenuptial agreement" means
an agreement between a man and woman before marriage, but in
contemplation and generally in consideration of marriage, whereby
the property rights and interests of the prospective husband and
wife, or both of them, are determined, or where property is
secured to either or both of them, to their separate estate, or
to their children or other persons. An antenuptial agreement may
include provisions which define the respective property rights of
the parties during the marriage, or in the event of the death of
either or both of the parties, and may provide for the
disposition of marital property upon an annulment of the marriage
or a divorce or separation of the parties. A prenuptial
agreement is void if at the time it is made either of the parties
is a minor.
(c) "Earnings" means compensation paid or payable for personal services, whether denominated as wages, salary,
commission, bonus, or otherwise, and includes periodic payments
pursuant to a pension or retirement program. "Disposable
earnings" means that part of the earnings of any individual
remaining after the deduction from those earnings of any amounts
required by law to be withheld.
(d) "Income" includes, but is not limited to, the following:
(1) Commissions, earnings, salaries, wages and other income
due or to be due in the future to an individual from his employer
and successor employers;
(2) Any payment due or to be due in the future to an
individual from a profit-sharing plan, a pension plan, an
insurance contract, an annuity, social security, unemployment
compensation, supplemental employment benefits, workers'
compensation benefits, state lottery winnings and prizes and
overtime pay;
(3) Any amount of money which is owing to an individual as
a debt from an individual, partnership, association, public or
private corporation, the United States or any federal agency,
this state or any political subdivision of this state, any other
state or a political subdivision of another state or any other
legal entity which is indebted to the obligor.
(e) "Marital property" means:
(1) All property and earnings acquired by either spouse
during a marriage, including every valuable right and interest,
corporeal or incorporeal, tangible or intangible, real or
personal, regardless of the form of ownership, whether legal or
beneficial, whether individually held, held in trust by a third
party or whether held by the parties to the marriage in some form
of coownership such as joint tenancy or tenancy in common, joint
tenancy with the right of survivorship, or any other form of
shared ownership recognized in other jurisdictions without this
state, except that marital property shall not include separate
property as defined in subsection (f) of this section; and
(2) The amount of any increase in value in the separate
property of either of the parties to a marriage, which increase
results from: (A) An expenditure of funds which are marital
property, including an expenditure of such funds which reduces
indebtedness against separate property, extinguishes liens or
otherwise increases the net value of separate property; or (B)
work performed by either or both of the parties during the
marriage.
The definitions of "marital property" contained in this
subsection and "separate property" contained in subsection (f) of
this section shall have no application outside of the provisions
of this article, and the common law as to the ownership of the respective property and earnings of a husband and wife, as
altered by the provisions of article three of this chapter and
other provisions of this code, are not abrogated by implication
or otherwise, except as expressly provided for by the provisions
of this article as such provisions are applied in actions brought
under this article or for the enforcement of rights under this
article.
(f) "Separate property" means:
(1) Property acquired by a person before marriage; or
(2) Property acquired by a person during marriage in
exchange for separate property which was acquired before the
marriage; or
(3) Property acquired by a person during marriage, but
excluded from treatment as marital property by a valid agreement
of the parties entered into before or during the marriage; or
(4) Property acquired by a party during marriage by gift,
bequest, devise, descent or distribution; or
(5) Property acquired by a party during a marriage but after
the separation of the parties and before the granting of a
divorce, annulment or decree of separate maintenance; or
(6) Any increase in the value of separate property as
defined in subdivision (1), (2), (3), (4) or (5) of this
subsection which is due to inflation or to a change in market value resulting from conditions outside the control of the
parties; or
(7) Any attorney's fee not yet collected or otherwise
realized by a party that may arise as the result of a contingency
fee agreement involving a legal matter that was handled, or is
intended to be handled by the party.
(g) "Separation" or "separation of the parties" means the
separation of the parties next preceding the filing of an action
under the provisions of this article, which separation continues,
without the parties cohabiting or otherwise living together as
husband and wife, and without interruption.
(h) "Separation agreement" means a written agreement entered
into by a husband and wife whereby they agree to live separate
and apart from each other and, in connection therewith, agree to
settle their property rights; or to provide for the custody and
support of their minor child or children, if any; or to provide
for the payment or waiver of alimony by either party to the
other; or to otherwise settle and compromise issues arising out
of their marital rights and obligations. Insofar as an
antenuptial agreement as defined in subsection (b) of this
section affects the property rights of the parties or the
disposition of property upon an annulment of the marriage, or a
divorce or separation of the parties, such antenuptial agreement shall be regarded as a separation agreement under the provisions
of this article.
§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: Provided, That
employment income shall not include an attorney's fee not yet
collected or otherwise realized by a party that may arise as the
result of a contingency fee agreement involving a legal matter
that was handled, or is intended to be handled by a party; 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 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;
(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) 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.
NOTE: The purpose of this bill is to exclude contingency
fees which have not yet been earned or otherwise realized from
the definition of marital property.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.