H. B. 2759
(By Delegate Beane)
[Introduced February 24, 1995; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact sections one, fifteen and thirty-two,
article two, chapter forty-eight of the code of West
Virginia, one thousand nine hundred thirty-one, as amended,
relating to domestic relations; divorce, annulment and
separate maintenance; definitions; relief upon ordering
divorce or annulment or granting decree of separate
maintenance; and marital property disposition.
Be it enacted by the Legislature of West Virginia:
That sections one, fifteen 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 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 or
contingent and other future owed fees pending at the time of
divorce; 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.
(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.
§48-2-15. 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 award of alimony shall
not be disproportionate to a party's ability to pay as disclosed
by the evidence before the court.
(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: Provided, however, That a court, in
its discretion, may enter a finding that both parents are fit as custodial parents and enter an order of joint custody of the
parents, which discretionary order may be entered over the
objection of the primary caretaker and shall include a visitation
schedule appropriate to the circumstances of the case considering
the best interests of the child.
(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 section eight, article two, chapter
forty-eight-a of this code: Provided, That as an incident to
requiring the payment of child support, the court may order any
party receiving child support in excess of one thousand dollars
per month to account for expenditure of the support to the paying
party on a quarterly or other periodic basis. 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 insurance because of the granting of an annulment or
divorce, the court may require a party to substitute such
insurance with a new policy to cover the other party or may
consider the prospective cost of such 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 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 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 alimony:
Provided further, That the designation of insurance coverage as
alimony under the provisions of this subdivision shall 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 use and occupancy. Such 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 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 coverage is reduced to a fixed monetary amount
set forth in the court's order. When such third party payments
are ordered, the court shall specify whether such 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 payments is to be deemed child
support or installment payments for the distribution of marital
property, then all such payments made pursuant to this
subdivision shall be deemed to be alimony. When such third party
payments are ordered, the court shall specify whether such
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 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 alimony
or installment payments for the distribution of marital property,
as the court may direct. Nothing contained in this subdivision
shall 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.
(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 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 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) At any time after the entry of an order pursuant to the provisions of this section, 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.
The court may also from time to time afterward, upon motion
of either of the parties and upon proper service, revise or alter
such order to grant relief pursuant to subdivision (9),
subsection (b) of this section, and make a new order concerning
the same, issuing it forthwith, 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 section eight, article two, 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.
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 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 where 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 party or cease.
(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 fault or misconduct as a contributing
factor to the deterioration of the marital relationship.
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 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 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 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;
(9) When child support guidelines are not followed, a
specific written finding pursuant to section eight, article two,
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
consultation, the other parent shall be promptly informed of such
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 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.
§48-2-32. Marital property disposition.
(a) Except as otherwise provided in this section, upon every
judgment of annulment, divorce or separation, the court shall
divide the value of each item of the marital property of the
parties equally between the parties. as defined in section one of
this article determined by the length of time the parties were married to each other, in accordance with the following schedule:
If the parties were Percentage share of Percentage share
married to each other value of the of value of the
acquiring party nonacquiring
party
Less than 2 years ...............97% .................. 3%
2 years but less than 3 years ...94% .................. 6%
3 years but less than 4 years ...91% .................. 9%
4 years but less than 5 years ...88% ..................12%
5 years but less than 6 years ...85% ..................15%
6 years but less than 7 years ...82% ..................18%
7 years but less than 8 years ...79% ..................21%
8 years but less than 9 years ...76% ..................24%
9 years but less than 10 years ..73% ..................27%
10 years but less than 11 years .70% ..................30%
11 years but less than 12 years .66% ..................34%
12 years but less than 13 years .62% ..................38%
13 years but less than 14 years .58% ..................42%
14 years but less than 15 years .54% ..................46%
15 years or more ................50% ..................50%
(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; 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;
(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 said subdivisions (3) and (4),
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 (3) and (4) 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;
(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 though an agent, or by judicial
sale, which ever 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 of said chapter
eleven.
(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) A court shall not award support and order equitable
distribution of property between a man and a woman who are not
married to one another in accordance with the provisions of
section five, article one of this chapter.
NOTE: The purpose of this bill is to amend the divorce
statutes relating to child support, custody and equitable
distribution of marital assets. It requires an accounting of the
expenditure of money received for child support if the award is
for more than $1000.00 per month. The bill also provides a
schedule for distribution for marital assets based upon the
length of the marriage and who purchased the asset.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.