Senate Bill No. 215
(By Senator Deem)
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[Introduced January 26, 1999;
referred to the Committee on the Judiciary.]
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A BILL to amend and reenact sections one, fifteen and sixteen,
article two, chapter forty-eight of the code of West
Virginia, one thousand nine hundred thirty-one, as amended,
all relating to relief upon ordering divorce or granting
decree of separate maintenance; amending the definition of
income; specifying what may or may not be considered in
awarding alimony or separate maintenance; establishing a
maximum amount of alimony or separate maintenance that may
be awarded, expressed in terms of a certain percentage of
the payor's income; requiring alimony to cease upon
cohabitation for two years; and prohibiting requiring
alimony payment by certain parties.
Be it enacted by the Legislature of West Virginia:
That sections one, fifteen and sixteen, 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) "Cohabited" means lived with another as or as if husband
and wife.
(c) (d) "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) (e) "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 or her
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 and 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: Provided,
That this subdivision does not include income or other
employment-related tax returns.
(e) (f) "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 co-ownership 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) (g) "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.
(g) (h) "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) (i) "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.
§48-2-15. Relief upon ordering divorce or annulment or granting
decree of separate maintenance.
(a) Upon ordering a divorce or granting a decree of separate
maintenance, the court may require either party to pay alimony in
the form of periodic installments, or a lump sum, or both, for
the maintenance of the other party. Payments of alimony are to
be ordinarily made from a party's income, but when the income is
not sufficient to adequately provide for those payments, the
court may, upon specific findings set forth in the order, order
the party required to make those payments to make them from the
corpus of his or her separate estate. An The primary
consideration of the court in any award of alimony or separate
maintenance shall not be disproportionate be that the amount
ordered, if any, is proportionate to a party's the relative need and ability to pay of both parties, as disclosed by the evidence
before the court: Provided, That notwithstanding any provision
of law to the contrary, no award of alimony or separate
maintenance may exceed fifty percent of the income of the party
ordered to pay alimony or separate maintenance.
(b) Upon ordering the annulment of a marriage or a divorce
or granting of decree of separate maintenance, the court may
further order all or any part of the following relief:
(1) The court may provide for the custody of minor children
of the parties, subject to such rights of visitation, both in and
out of the residence of the custodial parent or other person or
persons having custody, as may be appropriate under the
circumstances. In every action where visitation is awarded, the
court shall specify a schedule for visitation by the noncustodial
parent: Provided, That with respect to any existing order which
provided for visitation but which does not provide a specific
schedule for visitation by the noncustodial parent, upon motion
of any party, notice of hearing and hearing, the court shall
issue an order which provides a specific schedule of visitation
by the noncustodial parent;
(2) When the action involves a minor child or children, the
court shall require either party to pay child support in the form
of periodic installments for the maintenance of the minor
children of the parties in accordance with support guidelines
promulgated pursuant to article one-b, chapter forty-eight-a of
this code. Payments of child support are to be ordinarily made
from a party's income, but in cases when the income is not
sufficient to adequately provide for those payments, the court
may, upon specific findings set forth in the order, order the
party required to make those payments to make them from the
corpus of his or her separate estate;
(3) When the action involves a minor child or children, the
court shall provide for medical support for any minor children in
accordance with section fifteen-a of this article;
(4) As an incident to requiring the payment of alimony or
child support, the court may order either party to continue in
effect existing policies of insurance covering the costs of
health care and hospitalization of the other party: Provided,
That if the other party is no longer eligible to be covered by
such the insurance because of the granting of an annulment or divorce, the court may require a party to substitute such the
insurance with a new policy to cover the other party or may
consider the prospective cost of such the insurance in awarding
alimony to be paid in periodic installments. Payments made to an
insurer pursuant to this subdivision, either directly or by a
deduction from wages, shall be deemed to be are alimony or
installment payments for the distribution of marital property, in
such proportion as the court shall direct: Provided, however,
That if the court does not set forth in the order that a portion
of such the payments is to be deemed installment payments for the
distribution of marital property, then all such payments made
pursuant to this subdivision shall be deemed to be are alimony:
Provided further, That the designation of insurance coverage as
alimony under the provisions of this subdivision shall may not,
in and of itself, give rise to a subsequent modification of the
order to provide for alimony other than insurance for covering
the costs of health care and hospitalization;
(5) The court may grant the exclusive use and occupancy of
the marital home to one of the parties, together with all or a
portion of the household goods, furniture and furnishings reasonably necessary for such the use and occupancy. Such The
use and occupancy shall be for a definite period, ending at a
specific time set forth in the order, subject to modification
upon the petition of either party. Except in extraordinary cases
supported by specific findings set forth in the order granting
relief, a grant of the exclusive use and occupancy of the marital
home shall be limited to those situations when such the use and
occupancy is reasonably necessary to accommodate the rearing of
minor children of the parties. The court may require payments to
third parties in the form of home loan installments, land
contract payments, rent, property taxes and insurance coverage if
the amount of such the coverage is reduced to a fixed monetary
amount set forth in the court's order. When such the third party
payments are ordered, the court shall specify whether such the
payments or portions of payments are alimony, child support, a
partial distribution of marital property or an allocation of
marital debt: Provided, That if the court does not set forth in
the order that a portion of such the payments is to be deemed
child support or installment payments for the distribution of
marital property, then all such the payments made pursuant to this subdivision shall be deemed to be are alimony. When such
the third party payments are ordered, the court shall specify
whether such the payments or portions of payments are alimony,
child support, a partial distribution of marital property or an
allocation of marital debt. If the payments are not designated
in an order and the parties have waived any right to receive
alimony, the court may designate the payments upon motion by any
party. Nothing contained in this subdivision shall may abrogate
an existing contract between either of the parties and a third
party or affect the rights and liabilities of either party or a
third party under the terms of such contract;
(6) As an incident to requiring the payment of alimony, the
court may grant the exclusive use and possession of one or more
motor vehicles to either of the parties. The court may require
payments to third parties in the form of automobile loan
installments or insurance coverage if available at reasonable
rates, and any such payments made pursuant to this subdivision
for the benefit of the other party shall be deemed to be are
alimony or installment payments for the distribution of marital
property, as the court may direct. Nothing contained in this subdivision shall may abrogate an existing contract between
either of the parties and a third party or affect the rights and
liabilities of either party or a third party under the terms of
such the contract;
(7) When the pleadings include a specific request for
specific property or raise issues concerning the equitable
division of marital property as defined in section one of this
article, the court shall order such relief as may be required to
effect a just and equitable distribution of the property and to
protect the equitable interests of the parties therein;
(8) Unless a contrary disposition is ordered pursuant to
other provisions of this section, then upon the motion of either
party, the court may compel the other party to deliver to the
moving party any of his or her separate estate which may be in
the possession or control of the respondent party and may make
such further order as is necessary to prevent either party from
interfering with the separate estate of the other;
(9) When allegations of abuse have been proven, the court
shall enjoin the offending party from molesting or interfering
with the other, or otherwise imposing any restraint on the personal liberty of the other or interfering with the custodial
or visitation rights of the other. Such The order may
permanently enjoin the offending party from entering the school,
business or place of employment of the other for the purpose of
molesting or harassing the other; or from contacting the other,
in person or by telephone, for the purpose of harassment or
threats; or from harassing or verbally abusing the other in a
public place;
(10) The court may order either party to take necessary
steps to transfer utility accounts and other accounts for
recurring expenses from the name of one party into the name of
the other party or from the joint names of the parties into the
name of one party. Nothing contained in this subdivision shall
may affect the liability of the parties for indebtedness on any
such account incurred before the transfer of such account.
(c) When an annulment or divorce is denied, the court shall
retain jurisdiction of the case and may order all or any portion
of the relief provided for in subsections (a) and (b) of this
section which has been demanded or prayed for in the pleadings.
(d) When a divorce or annulment is granted in this state upon constructive service of process and personal jurisdiction is
thereafter obtained of the defendant in such case, the court may
order all or any portion of the relief provided for in
subsections (a) and (b) of this section which has been demanded
or prayed for in the pleadings.
(e) After the entry of an order pursuant to the provisions
of this section, the court may revise the order concerning the
maintenance of the parties and enter a new order concerning the
same, as the circumstances of the parties may require.
The court may also from time to time afterward, upon motion
of either of the parties and upon proper service, revise such the
order to grant relief pursuant to subdivision (9), subsection (b)
of this section, and enter a new order concerning the same, as
the circumstances of the parties and the benefit of children may
require. The court may also from time to time afterward, upon
the motion of either of the parties or other proper person having
actual or legal custody of the minor child or children of the
parties, revise or alter the order concerning the custody and
support of the children, and make a new order concerning the
same, issuing it forthwith, as the circumstances of the parents or other proper person or persons and the benefit of the children
may require: Provided, That all orders modifying child support
shall be in conformance with the requirements of support
guidelines promulgated pursuant to article one-b, chapter
forty-eight-a of this code: Provided, however, That an order
providing for child support payments may be revised or altered
for the reason, inter alia, that the existing order provides for
child support payments in an amount that is less than eighty-five
percent or more than one hundred fifteen percent of the amount
that would be required to be paid under the child support
guidelines promulgated pursuant to the provisions of said
section: Provided further, That the child support enforcement
division may review a child support order and, if appropriate,
file a motion with the circuit court for modification of the
child support order pursuant to the provisions of section
thirty-five, article two, chapter forty-eight-a of this code.
In granting relief under this subsection, the court may,
when other means are not conveniently available, alter any prior
order of the court with respect to the distribution of marital
property, if such the property is still held by the parties, and if necessary to give effect to a modification of alimony, child
support or child custody or necessary to avoid an inequitable or
unjust result which would be caused by the manner in which the
modification will affect the prior distribution of marital
property.
(f) When a separation agreement is the basis for an award of
alimony, the court, in approving the agreement, shall examine the
agreement to ascertain whether it clearly provides for alimony to
continue beyond the death of the payor party or to cease in such
event. When alimony is to be paid pursuant to the terms of a
separation agreement which does not state whether the payment of
alimony is to continue beyond the death of the payor party or is
to cease, or when the parties have not entered into a separation
agreement and alimony is to be awarded, the court shall
specifically state as a part of its order whether such payments
of alimony are to be continued beyond the death of the payor
party or cease.
(g) When a separation agreement is the basis for an award of
alimony, the court, in approving the agreement, shall examine the
agreement to ascertain whether it clearly provides for alimony to continue beyond the remarriage of the payee party or to cease in
such event. When alimony is to be paid pursuant to the terms of
a separation agreement which does not state whether the payment
of alimony is to continue beyond the remarriage of the payee
party or is to cease, or when the parties have not entered into
a separation agreement and alimony is to be awarded, the court
shall specifically state as a part of its order whether such that
payments of alimony are to be continued beyond cease upon the
remarriage of the payee party. or cease. The court shall also
specifically state as a part of its order that payments of
alimony are to cease when the payee party has cohabited with
another person for a period of at least two years.
(h) In addition to the disclosure requirements set forth in
section thirty-three of this article, the court may order
accounts to be taken as to all or any part of marital property or
the separate estates of the parties and may direct that the
accounts be taken as of the date of the marriage, the date upon
which the parties separated or any other time in assisting the
court in the determination and equitable division of property.
(i) In determining whether alimony is to be awarded, or in determining the amount of alimony, if any, to be awarded under
the provisions of this section, the court shall consider and
compare the fault or misconduct of either or both of the parties
and the effect of such the fault or misconduct as a contributing
factor to the deterioration of the marital relationship:
Provided, That notwithstanding any provision of law to the
contrary, the court may not order an award of alimony against a
faultless party nor may the court order an award of alimony
against one party when that party has greater need or lesser
ability to pay than the other party. However, Alimony shall not
be awarded when both parties prove grounds for divorce and are
denied a divorce, nor shall an award of alimony under the
provisions of this section be ordered which directs the payment
of alimony to a party determined to be at fault, when, as a
grounds granting the divorce, such the party is determined by the
court:
(1) To have committed adultery; or
(2) To have been convicted for the commission of a crime
which is a felony, subsequent to the marriage if such the
conviction has become final; or
(3) To have actually abandoned or deserted his or her spouse
for six months.
(j) Whenever under the terms of this section or section
thirteen of this article a court enters an order requiring the
payment of alimony or child support, if the court anticipates the
payment of such the alimony or child support or any portion
thereof 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) Any order which provides for the custody or support of
a minor child shall include:
(1) The name of the custodian;
(2) The amount of the support payments;
(3) The date the first payment is due;
(4) The frequency of the support payments;
(5) The event or events which trigger termination of the support obligation;
(6) A provision regarding wage withholding;
(7) The address where payments shall be sent;
(8) A provision for medical support; and
(9) When child support guidelines are not followed, a
specific written finding pursuant to section fourteen, article
one-b, chapter forty-eight-a of this code.
(l) (1) Unless the best interests of the child require
otherwise, every final order and every modification order which
provides for the custody of a minor child of the parties shall
also provide for the following:
(A) The custodial parent shall be required to authorize
school authorities in the school in which the child is enrolled
to release to the noncustodial parent copies of any and all
information concerning the child which would otherwise be
properly released to the custodial parent;
(B) The custodial parent shall be required, promptly after
receipt, to transmit to the noncustodial parent a copy of the
child's grades or report card and copies of any other reports
reflecting the status or progress of the child;
(C) The custodial parent shall be required, when
practicable, to arrange appointments for parent-teacher
conferences at a time when the noncustodial parent can be
present;
(D) The custodial parent shall be required to authorize
medical providers to release to the noncustodial parent copies of
any and all information concerning medical care provided to the
child which would otherwise be properly released to the custodial
parent;
(E) The custodial parent shall be required to promptly
inform the noncustodial parent of any illness of the child which
requires medical attention; or, if the child is in the actual
physical custody of the noncustodial parent during a period of
visitation, the noncustodial parent shall be required to promptly
inform the custodial parent of any illness of the child which
requires medical attention;
(F) The custodial parent shall be required to consult with
the noncustodial parent prior to any elective surgery being
performed on the child; and in the event emergency medical
procedures are undertaken for the child which require the parental consent of either parent, if time permits, the other
parent shall be consulted, or if time does not permit such the
consultation, the other parent shall be promptly informed of such
the emergency medical procedures: Provided, That the same duty
to inform the custodial parent applies to the noncustodial parent
in the event that the emergency medical procedures are required
while the child is in the physical custody of the noncustodial
parent during a period of visitation: Provided, however, That
nothing contained herein shall be deemed determined to alter or
amend the law of this state as it otherwise pertains to
physicians or health care facilities obtaining parental consent
prior to providing medical care or performing medical procedures.
(2) In the event a custodial parent shall fail or refuse to
authorize the release of school or medical records as provided
for by subdivision (1) of this subsection, then upon the ex parte
application of the noncustodial parent, the family law master
shall prepare an order for entry by the circuit court which
appoints the family law master as a special commissioner
authorized to execute a consent for the release of such records
and direct it to the appropriate school authorities or medical providers.
§48-2-16. Effect of separation agreement; what considered in
awarding alimony, child support or separate
maintenance.
(a) In cases where the parties to an action commenced under
the provisions of this article have executed a separation
agreement, if the court finds that the agreement is fair and
reasonable, and not obtained by fraud, duress or other
unconscionable conduct by one of the parties, and further finds
that the parties, through the separation agreement, have
expressed themselves in terms which, if incorporated into a
judicial order, would be enforceable by a court in future
proceedings, then the court shall conform the relief which it is
authorized to order under the provisions of sections thirteen and
fifteen of this article to the separation agreement of the
parties. The separation agreement may contractually fix the
division of property between the parties and may determine
whether alimony shall be awarded, whether a court shall have
continuing jurisdiction over the amount of an alimony award so as
to increase or decrease the amount of alimony to be paid, whether
alimony shall be awarded as a lump sum settlement in lieu of periodic payments, whether alimony shall continue beyond the
death of the payor party or the remarriage of the payee party, or
whether the alimony award shall be enforceable by contempt
proceedings or other judicial remedies aside from contractual
remedies. Any award of periodic payments of alimony shall be
deemed determined to be judicially decreed and subject to
subsequent modification unless there is some explicit, well
expressed, clear, plain and unambiguous provision to the contrary
set forth in the court approved separation agreement or the order
granting the divorce. Child support shall, under all
circumstances, always be subject to continuing judicial
modification.
(b) In cases where the parties to an action commenced under
the provisions of this article have not executed a separation
agreement, or have executed an agreement which is incomplete or
insufficient to resolve the outstanding issues between the
parties, or where the court finds the separation agreement of the
parties not to be fair and reasonable or clear and unambiguous,
the court shall proceed to resolve the issues outstanding between
the parties. The court shall consider the following factors in determining the amount of alimony, child support or separate
maintenance, if any, to be ordered under the provisions of
sections thirteen and fifteen of this article, as a supplement to
or in lieu of the separation agreement:
(1) The length of time the parties were married;
(2) The period of time during the marriage when the parties
actually lived together as husband and wife;
(3) The present and potential employment income and other
regularly recurring earnings of each party from any source:
Provided, That notwithstanding any provision of law to the
contrary, in ordering an award of alimony or separate
maintenance, the court may not consider one-time
employment-related income that does not recur regularly in terms
of either frequency or amount, such as compensation paid for
personal services as overtime pay or income or other
employment-related tax refunds;
(4) The present and potential income-earning abilities of
each of the parties, based upon such factors as educational
background, training, employment skills, work experience, length
of absence from the job market and custodial responsibilities for children;
(5) The distribution of marital property to be made under
the terms of a separation agreement or by the court under the
provisions of section thirty-two of this article, insofar as the
distribution affects or will affect the earnings of the parties
and their ability to pay or their need to receive alimony, child
support or separate maintenance;
(6) The ages and the physical, mental and emotional
condition of each party;
(7) The educational qualifications of each party;
(8) The likelihood that the party seeking alimony, child
support or separate maintenance can substantially increase his or
her income-earning abilities within a reasonable time by
acquiring additional education or training;
(9) The anticipated expense of obtaining the education and
training described in subdivision (8) above;
(10) The costs of educating minor children;
(11) The costs of providing health care for each of the
parties and their minor children;
(12) The tax consequences to each party;
(13) The extent to which it would be inappropriate for a
party, because said party will be the custodian of a minor child
or children, to seek employment outside the home;
(14) The financial need and ability to pay of each party;
(15) The legal obligations of each party to support himself
or herself and to support any other person; and
(16) Such other factors as the court deems determines
necessary or appropriate to consider in order to arrive at a fair
and equitable grant of alimony, child support or separate
maintenance.
NOTE: The purpose of this bill is to establish a maximum
amount of alimony or separate maintenance that a court may award
against a party, expressed in terms of a certain percentage of
the payor's income, to amend the definition of income and to
specify certain factors or conditions that a court must take into
consideration in awarding alimony or separate maintenance.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.