A question that comes up sometimes with couples divorcing in West Virginia is whether the spouse can be prevented from getting a portion of your retirement accounts. The answer to that question is generally no. However, there are a few exceptions. One exception is if there is a prenuptial agreement. That’s one way to stop the spouse from getting a portion of your retirement. The second exception is by agreement between two spouses. If two people divorcing can come to an agreement on the distribution of the property, then there’s a very good chance that the court is going to accept that.
The other way that you can potentially stop the spouse from getting a portion of the retirement account is if there’s otherwise an unequal distribution of property. For example, say that one spouse has a retirement account worth a hundred thousand dollars. That person also has a car, a home of some sort, but paid off and the home is worth a hundred thousand dollars. What the court can do is they can take those two numbers and they can offset the other. In that example, the court might offset the two. They may say that one gets the entirety of the retirement account and the other person gets the home..
The way it works with retirement accounts in West Virginia is one is only entitled to the part of the retirement account that was built up during the marriage. If it was actually built up during the marriage, the spouse is entitled to receive part of that under ordinary circumstances. It really just comes down to crunching the numbers. Even if the other person is totally at fault in the divorce, under West Virginia law, that’s not going to be a factor in terms of the distribution of property. The other person can be the most horrible person in the world, but that’s not something that the court is going to really consider.
Now, the flip side to that is that there’s no way to prevent the other spouse from getting a portion of their retirement. Now, something that some people do sometimes is they try to balance it out. One person will keep their own retirement and the other person will keep their retirement. The problem with that though is that usually there’s a big difference between the actual value of the spouses retirement accounts. This would be one thing to keep in mind with that.
