WEST virginia legislature

2021 regular session

Introduced

House Bill 2931

By Delegates Foster, Kimes, Steele, and Barrett

[Introduced March 05, 2021; Referred to the Committee on the Judiciary]

A BILL to amend and reenact § 48-8-103 of the Code of West Virginia, 1931, as amended, relating to standardization of the criteria for awarding spousal support in cases of separation and divorce.

Be it enacted by the Legislature of West Virginia:

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 based on a discounted present value from the calculated monthly amount for a period to be determined by the court or agreed to by the parties, 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. Spousal support, also called alimony, shall be calculated in all instances as follows:

(1) If there are no children for whom support is paid, then the following formula shall be applied:

Payor’s Gross Monthly Income:         __________

Multiply Payor’s Gross Monthly Income by 0.3 =       _____

Recipient’s Gross Monthly Income:   _____

Multiply Recipient’s Gross Monthly Income by 0.5 =             _____

Subtract Recipient’s adjusted Gross Monthly Income from Payor’s Gross Monthly Income: _____

If the difference is a positive number, the Payor pays this monthly spousal support/alimony amount, if the difference is zero or a negative number, then no monthly spousal support/alimony is paid.

(2) If there are children for whom child support is paid, then the following formula shall be applied:

Payor’s Gross Monthly Income:         __________

Multiply Payor’s Gross Monthly Income by 0.28 =     _____

Recipient’s Gross Monthly Income:   _____

Multiply Recipient’s Gross Monthly Income by 0.58 =           _____

Subtract Recipient’s adjusted Gross Monthly Income from Payor’s Gross Monthly Income: _____

If the difference is a positive number, the Payor pays this monthly spousal support/alimony amount, if the difference is zero or a negative number, then no monthly spousal support/alimony is paid.

(b) The legislature does not find that an award of spousal support is necessary or recommended in each case. However, if a court finds that an award of spousal support is in order, the court shall calculate such spousal support in accordance with the formula se forth in §48-1-103(a) of this code.

(b) (c) 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) (d)(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) (e) For the purposes of subsection (c) (d), 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.

NOTE: The purpose of this bill is to standardize the criteria for awarding spousal support in cases of separation and divorce in the courts of the State of West Virginia.

Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.