West Virginia Law Review

Document Type

Special Topic: Equitable Distribution


The 1984 session of the West Virginia Legislature passed a comprehensive bill which sought to establish both the substantive and procedural elements of equitable distribution. The legislature apparently intended to codify the exact parameters of the doctrine of equitable distribution in West Virginia. This legislative action was at least partly motivated by a desire to clear up some of the confusion which had resulted from the recent judicial adoption of the equitable distribution doctrine. The equitable distribution portion of the law found in West Virginia Code section 48-2-32 establishes the presumption that all marital property shall be divided equally between the parties without regard to marital fault which may be alleged or proven in the divorce action. Great care was taken by the legislature in defining and distinguishing "marital" and "separate" property, but there are at least three major provisions of the statute which continue to give rise to confusion and ambiguity, and which will require fairly extensive judicial interpretation. Those areas of ambiguity relate to: (1) The extent to which "separate" property can be distributed; (2) The treatment of mixed "separate/marital" property; and (3) The mechanics of judicial decisionmaking on equitable distribution. This Essay will identify these ambiguities and offer suggestions on how the intent of the legislature should be interpreted and how that intent could be clarified through statutory amendments.

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