Marital Separation Agreement

Note: This summary is not intended to be an all inclusive discussion of the law of separation agreements in West Virginia, but does include basic and other provisions.

General Summary:

Separation and Property Agreements may be entered into before a divorce is filed to be effective immediately. The parties may define the property distribution, the amount, if any, of alimony and child support by complying fully and completely with the statutory disclosure guidelines, statutory guidelines regarding child support, and obtaining the approval of the court.

Statutes:

Relief upon ordering divorce or annulment or granting decree of separate maintenance:

(f) (1) 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 or the payee 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 or payee or is to cease, or when the parties have not entered into a separation agreement and alimony is awarded, the court shall have the discretion to determine, as a part of its order, whether such payments of alimony are to be continued beyond the death of the payor or payee or cease. In event neither an agreement nor an order makes provision for the death of the payor or payee, alimony other than rehabilitative alimony or alimony in gross shall cease on the death of the payor or payee. In event neither an agreement nor an order makes provision for the death of the payor, rehabilitative alimony continues beyond the payor's death. In event neither an agreement nor an order makes provision for the death of the payor or the payee, alimony in gross continues beyond the payor's or payee's death.

(2) 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 payments of alimony are to be continued beyond the remarriage of the payee. In the event neither an agreement nor an order makes provision for the remarriage of the payee, alimony other than rehabilitative alimony or alimony in gross shall cease upon the remarriage of the payee. Rehabilitative alimony does not cease upon the remarriage of the payee during the first four years of the rehabilitative period. In event neither an agreement nor an order makes provision for the remarriage of the payee, alimony in gross continues beyond the payee's remarriage. § 48-2-15.

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 [§§ 48-2-13 and 48-2-15] 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 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. § 48-2-16.

Disclosure of assets required:

(a) In all divorce actions and in any other action involving child support, all parties shall fully disclose their assets and liabilities within forty days after the service of summons or at such earlier time as ordered by the court. The information contained on these forms shall be updated on the record to the date of the hearing.

(b) The disclosure required by this section may be made by each party individually or by the parties jointly. Assets required to be disclosed shall include, but shall not be limited to, real property, savings accounts, stocks and bonds, mortgages and notes, life insurance, health insurance coverage, interest in a partnership or corporation, tangible personal property, income from employment, future interests whether vested or nonvested and any other financial interest or source.

(c) The supreme court of appeals shall make available to the circuit courts a standard form for the disclosure of assets and liabilities required by this section. The clerk of the circuit court shall make these forms available to all parties in any divorce action or action involving child support. All disclosure required by this section shall be on a form that substantially complies with the form promulgated by the supreme court of appeals. The form used shall contain a statement in conspicuous print that complete disclosure of assets and liabilities is required by law and deliberate failure to provide complete disclosure as ordered by the court constitutes false swearing.

(f) Any failure to timely or accurately disclose financial information required by this section may be considered as follows:

(1) Upon the failure by either party timely to file a complete disclosure statement as required by this section or as ordered by the court, the court may accept the statement of the other party as accurate.

(2) If any party deliberately or negligently fails to disclose information which is required by this section and in consequence thereof any asset or assets with a fair market value of five hundred dollars or more is omitted from the final distribution of property, the party aggrieved by such nondisclosure may at any time petition a court of competent jurisdiction to declare the creation of a constructive trust as to all undisclosed assets, for the benefit of the parties and their minor or dependent children, if any, with the party in whose name the assets are held declared the constructive trustee, such trust to include such terms and conditions as the court may determine. The court shall impose the trust upon a finding of a failure to disclose such assets as required under this section.

(3) Any assets with a fair market value of five hundred dollars or more which would be considered part of the estate of either or both of the parties if owned by either or both of them at the time of the action, but which was transferred for inadequate consideration, wasted, given away or otherwise unaccounted for by one of the parties, within five years prior to the filing of the petition or length of the marriage, whichever is shorter, shall be presumed to be part of the estate and shall be subject to the disclosure requirement contained in this section. With respect to such transfers the spouse shall have the same right and remedies as a creditor whose debt was contracted at the time the transfer was made under article one-a [§ 40-1A-1 et seq.], chapter forty of this code. Transfers which resulted in an exchange of assets of substantially equivalent value need not be specifically disclosed when such assets are otherwise identified in the statement of net worth.

(4) A person who knowingly provides incorrect information or who deliberately fails to disclose information pursuant to the provisions of this section is guilty of false swearing. § 48-2-33.

Statement of purpose and intent:

It is the purpose of the Legislature in enacting this chapter to improve and facilitate support enforcement efforts in this state, with the primary goal being to establish and enforce reasonable child support orders and thereby improve opportunities for children. It is the intent of the Legislature that to the extent practicable, the laws of this state should encourage and require a child's parents to meet the obligation of providing that child with adequate food, shelter, clothing, education, and health and child care. § 48A-1-2.

Case Law:

W. Va.Code § 48-2-16(a) makes clear, settlement agreements which are executed prior to the issuance of a final decree of divorce must be presented to the court for approval. In re Estate of Hereford, 162 W. Va. 477, 487, 250 S.E.2d 45, 51 (1978) (holding that "parties may do anything which they wish by their property settlement agreement as long as it is approved by the Court.)

Even though there is an express legislative preference in divorce cases for a separation agreement to be in writing and signed by the parties, the practice of orally placing on the record the terms of a separation agreement if certain conditions are met is not prohibited per se." Gangopadhyay v. Gangopadhyay, 184 W. Va. 695, 403 S.E.2d 712 (1991).

A post-decree settlement agreement, whether written or oral, must be presented to the family law master and circuit court just as a pre-decree agreement must be submitted for approval pursuant to W. Va.Code § 48-2-16(a) (1986) to permit the court to make the necessary inquiries to determine that the agreement is fair and reasonable and that it was not procured through fraud, duress, or other unconscionable conduct.

Where decree of annulment or dissolution of marriage is awarded, or divorce is granted, the court has power to decree further concerning the estate of either or both of the parties acquired during marriage, as the court may deem expedient, including an equitable division thereof. Philips v. Philips, 106 W. Va. 105, 144 S.E. 875 (1928).

Under "equitable distribution", the contributions of time and effort to the married life of the couple - at home and in the workplace - are valued equally regardless of whether the parties' respective earnings have been equal. "Equitable distribution" contemplates that parties make their respective contributions to the married life of the parties in that expectation. Mayhew v. Mayhew, 197 W. Va. 290 (1996)475 S.E.2d 382

Claims for equitable distribution may be settled and foreclosed by "property settlement agreements" fairly negotiated by the parties as in the case of other "property settlement agreements". Mayhew v. Mayhew, 197 W. Va. 290 (1996)475 S.E.2d 382

W. Va. Code § 48-2-33 [1993], requires a full disclosure of one spouse's financial assets to the other spouse at the time of divorce, and contemplates a meaningful hearing on the subject of equitable distribution of property at which the spouse submitting financial data may be cross-examined concerning the nature, origin and amount of assets." Hamstead v. Hamstead, 178 W. Va. 23, 357 S.E.2d 216 (1987).

When the parties enter into a separation agreement that is later incorporated into the divorce order subsequent modification may be avoided only through clear, plain and unambiquous language to that effect. See W. Va. Code, 48-2-16(a)[1999].

Any award of periodic payments of alimony shall be deemed 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. In effect, where the parties and the court wish to do something other than award judicially decreed periodic payments for alimony or alimony and child support enforceable by contempt and subject to modification by the court, the parties must expressly set forth the different terms to which they agree and the court must expressly indicate his approval of their agreement. In re Estate of Hereford, 162 W. Va. 477, 250 S.E.2d 45 (1978).

Under W. VaCode, 48A-2-8(a)(1)[recodified as 48A-1B-14], it is possible for the parties to establish by a separate agreement a different amount than that required by the child support guidelines. This can only be done according to the statutory mandate by a disclosure of the guideline amount and a knowing and intelligent waiver of that amount. The court will still have continuing jurisdiction over child support provisions. "Child support shall, under all circumstances, always be subject to continuing judicial modification." W. VaCode, 48-2-16(a) (1984). Under the provisions of W. Va.Code, 48-2-15, as amended, jurisdiction to provide for the support, maintenance and education of a minor child is not abrogated or limited by the existence of child support provisions in a property settlement agreement which has been "ratified and confirmed" in a divorce decree. Agreements concerning child support, when those agreements are part of an overall settlement of the affairs of the parties, should not be disturbed by the trial court unless a modification is necessary for the welfare of the child. Grijalva v. Grijalva, 172 W. Va. 676, 310 S.E.2d 193 (1983).

W. VaCode, 48-2-33 [1984], requires a full disclosure of one spouse's financial assets to the other spouse at the time of divorce, and contemplates a meaningful hearing on the subject of equitable distribution of property at which the spouse submitting financial data may be cross-examined concerning the nature, origin and amount of assets. Without the required financial disclosure, the requirement of a "meaningful hearing" is not satisfied.

West Virginia Code § 48-2-16(a) essentially creates a formula under which court approval of a separation agreement is a condition precedent to the incorporation of that agreement into a final divorce decree. A necessary corollary to the requirement of a finding of fairness or reasonableness is an investigation sufficient to justify such a finding. Especially when interpreted in conjunction with the financial disclosure provisions of West Virginia Code § 48-2-33, West Virginia Code § 48-2-16(a) compels a lower court to investigate the financial resources or circumstances of the parties and to accumulate clear and definitive evidence regarding such financial concerns and the value of properties being apportioned. Grijalva v. Grijalva, 172 W. Va. 676, 310 S.E.2d 193, 196 (1983).

West Virginia Supreme Court Reports

THOMPSON v. THOMPSON, 189 W. Va. 278 (1993)

430 S.E.2d 336