Introduced Version
Senate Bill 539 History
| Email
Key: Green = existing Code. Red = new code to be enacted
Senate Bill No. 539
(By Senators Sypolt, Barnes, Blair, Carmichael, Cole, M. Hall,
Nohe, Walters and Williams)
____________
[Introduced March 15, 2013; referred to the Committee on
Military; and then to the Committee on the Judiciary .]
____________
A BILL to amend and reenact §48-5-510 of the Code of West Virginia,
1931, as amended; to amend and reenact §48-7-101 of said code;
and to amend and reenact §48-8-103 and §48-8-105 of said code,
all relating to excluding disability income received by a
veteran from the United States Department of Veterans' Affairs
for service-related injuries from any calculation used to
determine spousal support.
Be it enacted by the Legislature of West Virginia:
That §48-5-510 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; that §48-7-101 of said code be amended
and reenacted; and that §48-8-103 and §48-8-105 of said code be
amended and reenacted, all to read as follows:
ARTICLE 5. DIVORCE.
§48-5-510. Consideration of financial factors in ordering temporary relief.
(a) In ordering temporary relief under the provisions of this
Part 5, the court shall consider the financial needs of the
parties, the present income of each party from any source, their
income-earning abilities and the respective legal obligations of
each party to support himself or herself and to support any other
persons. Notwithstanding any other provision of this code to the
contrary, disability income received by a veteran from the United
States Department of Veterans' Affairs for service related injuries
is not income for purposes of this article.
(b) Except in extraordinary cases supported by specific
findings set forth in the order granting relief, payments of
temporary spousal support and temporary child support are to be
made from a party's income and not from the corpus of a party's
separate estate, and an award of such relief shall not be
disproportionate to a party's ability to pay as disclosed by the
evidence before the court: Provided, That child support shall be
established in accordance with the child support guidelines set
forth in article thirteen of this chapter: Provided, however, That
the corpus of the estate of a veteran receiving disability income
for service related injuries cannot be used as a means of replacing
the value of the disability income.
ARTICLE 7. EQUITABLE DISTRIBUTION OF PROPERTY.
PART 1. MARITAL PROPERTY DISPOSITION.
§48-7-101. Equal division of marital property.
(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) Notwithstanding any other provision of this code to the
contrary, disability income received by a veteran from the United
States Department of Veterans' Affairs for service related injuries
shall not be considered as property for the purposes of this
article.
ARTICLE 8. SPOUSAL SUPPORT.
§48-8-103. Payment of spousal support.
(a) Upon ordering a divorce or granting a decree of separate
maintenance, the court may require either party to pay spousal
support in the form of periodic installments, or a lump sum, or
both, for the maintenance of the other party. Payments of spousal
support 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 award of spousal
support shall not be disproportionate to a party's ability to pay as disclosed by the evidence before the court.
Notwithstanding any
other provision of this code to the contrary, disability income
received by a veteran from the United States Department of
Veterans' Affairs for service related injuries is not income for
purposes of this article. Nor can the corpus of the estate of a
veteran receiving disability income for service related injuries be
used as a means of replacing the value of the disability income.
(b) At any time after the entry of an order pursuant to the
provisions of this article, the court may, upon motion of either
party, revise or alter the order concerning the maintenance of the
parties, or either of them, and make a new order concerning the
same, issuing it forthwith, as the altered circumstances or needs
of the parties may render necessary to meet the ends of justice.
(c)(1) For the purposes of subsection (b) of this section,
"altered circumstances" includes evidence in the form of genetic
testing that establishes that a child conceived during the marriage
of the parties is not the child of the former husband, or that a
child was born to a woman other than the former wife because of the
adultery of the former husband.
(2) Prior to admitting evidence of genetic testing, the court
shall preliminarily determine whether genetic testing evidence
should be admitted for the purpose of disproving or establishing
paternity. The facts that may be considered by the court at this hearing include the following:
(A) The length of time that has elapsed since the party was
first placed on notice that a child conceived during the marriage
of the parties is not the child of the former husband, or that a
child was born to a woman other than the former wife because of the
adultery of the former husband;
(B) The length of time during which the individual desiring to
challenge paternity assumed the role of parent to the child;
(C) The facts surrounding the party's discovery of
nonpaternity;
(D) The nature of the parent/child relationship;
(E) The age of the child;
(F) The harm which may result to the child if paternity were
successfully disproved;
(G) The extent to which the passage of time reduced the
chances of establishing paternity in favor of the child; and
(H) All other factors which may affect the equities involved
in the potential disruption of the parent/child relationship or the
chances of undeniable harm to the child.
(d) For the purposes of subsection (c), genetic testing must
be performed pursuant to the following guidelines:
(1) The tests show that the inherited characteristics
including, but not limited to, blood types, have been determined by appropriate testing procedures at a hospital, independent medical
institution or independent medical laboratory duly licensed under
the laws of this state, or any other state, and an expert qualified
as an examiner of genetic markers has analyzed, interpreted and
reported on the results; and
(2) The genetic test results exclude the former husband as the
father of the child.
§48-8-105. Rehabilitative spousal support.
(a) The court may award rehabilitative spousal support for a
limited period of time to allow the recipient spouse, through
reasonable efforts, to become gainfully employed. When awarding
rehabilitative spousal support, the court shall make specific
findings of fact to explain the basis for the award, giving due
consideration to the factors set forth in section 8-103 one hundred
three of this article.
(b) An award of rehabilitative spousal support is appropriate
when the dependent spouse evidences a potential for self-support
that could be developed through rehabilitation, training or
academic study.
(b) (c) The court may modify an award of rehabilitative
spousal support if a substantial change in the circumstances under
which rehabilitative spousal support was granted warrants
terminating, extending or modifying the award or replacing it with an award of permanent spousal support. In determining whether a
substantial change of circumstances exists which would warrant a
modification of a rehabilitative spousal support award, the court
may consider a reassessment of the dependent spouse's potential
work skills and the availability of a relevant job market, the
dependent spouse's age, health and skills, the dependent spouse's
ability or inability to meet the terms of the rehabilitative plan
and other relevant factors as provided for in section 8-103 one
hundred three of this article.
NOTE: The purpose of this bill is to exclude disability income
received by a veteran from the United States Department of
Veterans' Affairs for service related injuries from any calculation
used to determine spousal support.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.