Senate Bill No. 639
(By Senator Boley)
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[Introduced February 22, 1999;
referred to the Committee on the Judiciary.]
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A BILL to amend and reenact section one, article two, chapter
forty-eight of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, relating to divorce,
annulment and separate maintenance; and providing a
definition of "best interest of the child".
Be it enacted by the Legislature of West Virginia:
That section one, article two, chapter forty-eight of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted 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) "Best interest of the child" means the medical,
physical, psychological, legal, emotional and spiritual as well
as the basic housing, food and clothing needs of the child, to
the best of the ability of the parent or guardian of the child.
(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 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) (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 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) (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.
NOTE: The purpose of this bill is to provide a definition
of "best interests of the child".
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.