dissenting:
Because this opinion is the fruit of the “poisonous tree” of Whiting v. Whiting, 183 W.Va. 451, 396 S.E.2d 413 (1990), I dissent. Once again the majority opinion is based on a misunderstanding of human nature, an incorrect statutory interpretation and a flawed analysis of legislative intent. See Whiting, Id. (Neely, C.J., dissenting). *482The decision by the majority in this case highlights the failures of Whiting.
The issue in this case concerned the interest Mrs. Koontz had in a jointly titled house and the bank account, both of which came from insurance proceeds paid on a house owned by Mr. Koontz before his brief marriage to Mrs. Koontz. The majority opinion applies Whiting’s presumption in favor of marital property disregarding the W.Va.Code, 48-3-10 [1984] requirement of an affirmative proof of a gift between the spouses.1
I
The circuit court determined that the house was separate property based on the testimony of the seller of the lot who said that Mr. Koontz told him to title the house only in Mr. Koontz’s name and that Mr. and Mrs. Koontz argued about the title. The record also indicates that the marriage was of brief duration and that the lot and house were paid for from Mr. Koontz’s separate property.
W.Va.Code, 48-2-l(f) [1986], includes in the definition of separate property, “[p]rop-erty acquired in exchange for separate property which was acquired before the marriage_” (Emphasis added). The house in this case was acquired, through insurance proceeds, in exchange for Mr. Koontz’s burned and flooded house. If the majority correctly applied Whiting’s rebuttal presumption, Mr. Koontz would be awarded the house because the record shows that the house was titled jointly to get Mrs. Koontz to return the money needed to finish the house. The majority notes that there was “a controversy” as to why Mrs. Koontz’s name was put on the home. However, the majority fails to disclose that immediately after Mr. Koontz directed the lot’s seller to title the lot in his name only, Mrs. Koontz, taking $15,000 from the joint checking account, went to Richmond to visit her girlfriend. Although a reconciliation followed, Mrs. Koontz and the money returned only after Mr. Koontz agreed to title the lot jointly.
Other courts have refused to consider the property as marital in similar circumstances.2 See Peterson v. Peterson, 595 S.W.2d 889 (Tex.Civ.App.1980) (refusing to find a gift based on joint title, when the wife refused to move into the house unless her name was added to the title); Mochida v. Mochida, 5 Haw.App. 348, 691 P.2d 771 (1984) (refusing to consider the house as marital property because “by use of threats Wife ‘forced’ [husband] to place the residence in their joint names”). The failure of the majority to recognize that the presumption was rebutted in this case, reinforces my criticism that the majority is creating “marital property” by fiat. The majority’s determination that the record does not address the “property transaction in this case in relation to the marital estate” (Emphasis in original) 183 W.Va. at 455, 396 S.E.2d at 417 is wrong.
Sometimes separate property can become marital property by gift. In Roig v. Roig, 178 W.Va. 781, 364 S.E.2d 794, 798 (1987), this Court discussed the type of proof required to show that the property was intended as a irrevocable gift.3
In this regard, jewelry and fur coats are the type of “gift” that can almost be proven by circumstantial evidence, however, when real property, stock, bonds, or other stores of family wealth are at stake, it requires considerably more than the simple fact that property was transferred from one spouse to the other to establish a qualified Code, 48-2-l(f)(4) *483[1986] gift. In all instances, the burden of proof is upon the spouse who would claim the gift.
This holding in Roig was in part based on an understanding that “[m]ost people do not intend unjustly to enrich the other man.” Id.; Patterson v. Patterson, 167 W.Va. 1, 277 S.E.2d 709 (1981).
Other jurisdictions also treat interspousal gifts the same as gifts from third parties, requiring an intention to make a gift, delivery, and acceptance. See Moser v. Moser, 117 Ariz. 312, 572 P.2d 446 (1977); Potter v. Potter, 280 Ark. 38, 655 S.W.2d 382 (1983); In re Marriage of Weinstein, 128 Ill.App.3d 234, 83 Ill.Dec. 425, 470 N.E.2d 551 (1984); Smith v. Smith, 472 A.2d 943 (Me.1984); Lowry v. Lowry, 375 Pa.Super. 382, 544 A.2d 972 (1988).
In addition to a signed agreement and gift, this Court has recognized that a spouse’s intent to change separate property into marital property can be shown by certain fact patterns. In Vance v. Vance, 180 W.Va. 63, 375 S.E.2d 427, 430-31 (1988), an ambulance business begun by Mr. Vance before his marriage was determined to have become marital property by the time of the divorce. Among the factors considered to show the change into a joint enterprise, and, therefore, marital property, were: (1) payment of part of the purchase price was made with marital earnings; (2) both parties actively participated in the operation of the business (in fact Mrs. Vance ran the business alone for two years); (3) additional training was taken by Mrs. Vance to participate more fully in all aspects of the business; and (4) the stock was jointly owned at some time in the business. In Caldwell v. Caldwell, 177 W.Va. 61, 350 S.E.2d 688, 691 (1986), this Court indicated that although the down payment for the marital home was made with separate funds, the house at the time of the divorce was considered marital property.4 Among the factors this Court considered to show the changes were: (1) the length of the marriage, (2) the joint obligation for the mortgage payments, and (3) the use of the property as the marital home. Dodd v. Hinton, 173 W.Va. 69, 312 S.E.2d 293 (1984), we noted that at common law, a spouse’s use of separate funds to purchase a marital home, titled jointly created a presumption of the gift of a half interest in the house. Although the presumption of gift no longer applies at the time of divorce (W.Va.Code, 48-3-10 [1984]), a joint purchase agreement, a joint note and a joint mortgage for the marital home can indicate the spouses’ intent to consider the marital home as marital property. See Everly v. Schoemer, 139 W.Va. 392, 80 S.E.2d 334 (1954).
Although the question of changing separate property in marriage must be considered on the individual facts, at least the following criteria should be considered to determine if change has occurred: (1) length of the marriage, (2) use of the property by both parties, especially use as a marital home, (3) title of the property, (4) attempts to keep property separate, (5) records for separate property, (6) use of marital funds to pay debt owed on property, (7) note and debt instrument used to secure debt owed on property (a joint obligation suggesting the property is marital), (8) control exercised over the property, (9) investment in the property of marital effort, control, and time, and (10) a showing of unjust enrichment. No one factor, for example joint title, should be conclusive. See infra section II for a discussion of legal title. In most cases where the marriage lasts many years and the mortgage, a joint obligation, is paid with marital funds, the marital home, even if the down payment was made with separate funds, should be considered divisible marital property.
In the present case, the circuit court was correct in classifying the house as separate property and the majority is wrong in failing (1) to classify it based on how it was acquired, (2) to require the spouse claiming the gift to bear the burden of proving it *484and (3) even under Whiting, to recognize that the marital property presumption was rebutted because Mrs. Koontz appropriated $15,000 in cash of Mr. Koontz’s money and agreed to return the money only in consideration of joint title to the house.5
II
The jointly titled bank account is another example of property incorrectly presumed to be marital property by the majority.6 The money in the account was “acquired ... during the marriage in exchange for separate property ...” (Emphasis added). W.Va. Code, 48-2-l(f)(2) [1986]. The record indicates that Mr. Koontz deposited the money in the joint checking account so Mrs. Koontz could also write checks to pay the two men who worked on the house and for building supplies. Again Mrs. Koontz did not affirmatively prove that the funds in the joint account were meant to be a gift as required by W.Va.Code, 48-3-10 [1984], Furthermore, Mr. Koontz presented sufficient evidence to rebut Whiting’s presumption. See Whiting, Id. (Neely, C.J., dissenting) (noting that many couples jointly title property simply for ease of administration).
Bare legal title should not be determinative of what constitutes marital property. Parties to a marriage do not contemplate divorce throughout the marriage; therefore, in the same spirit that business property is returned to the original owner, absent an agreement to the contrary, when a business partnership terminates, so also separate property, even if jointly titled, remains separate property and should be returned to the original owner in a divorce. In LaRue v. LaRue, 172 W.Va. 158, 304 S.E.2d 312 (1983) (overruled on other grounds, Butcher v. Butcher, 178 W.Va. 33, 357 S.E.2d 226 (1987)), a spouse who made a material economic contribution toward property titled in the name or under the control of the other spouse was allowed to claim an equitable interest in such property under the concept of unjust enrichment. Id. 172 W.Va. at 167, 304 S.E.2d at 320; Patterson, supra (fashioning a constructive trust theory to secure the wife’s interest in property to which she had contributed); McComas v. McComas, 178 W.Va. 133, 358 S.E.2d 217 (1987) (marital funds transferred to a separate account remained marital property.) Cross v. Cross, 178 W.Va. 563, 363 S.E.2d 449 (1987) (pension benefits acquired during a marriage, irrespective of the nominal owner of the right or interest, are marital property). See Marshall v. Marshall, 166 W.Va. 304, 273 S.E.2d 360 (1981) (recognizing a fiduciary relationship between spouses).
Our refusal to consider the title of the property as conclusive proof of the ownership of property is consistent with our holdings in other areas. Dodd v. Hinton, 173 W.Va. 69, 312 S.E.2d 293, 296 (1984) (the presumption of joint ownership of funds in a joint account “may be overcome by competent evidence.”) Keyes v. Keyes, 182 W.Va. 802, 392 S.E.2d 693 (1990) (certificate of title for an automobile is not conclusive proof of ownership); Commercial Credit Corporation v. Citizens National Bank, 148 W.Va. 198, 133 S.E.2d 720 (1963); See generally Note, “Purchase Money Resulting Trust in West Virginia,” 39 W.Va.L.Rev. (W.Va.L.Q.) 58 (1932), and cases cited therein.
Other examples of titling for ease of administration include: Grant v. Grant, 119 Ariz. 470, 581 P.2d 704 (1978) (joint bank accounts may contain separate funds merely for the convenience of the parties); Lofton v. Lofton, 23 Ark.App. 203, 745 5.W.2d 635, 640 (1988) (Corbin, J. concurring) (“Depositing inherited funds in a joint account is typically done as a matter of *485convenience with the only legal consideration being the avoidance of probate”).
Classification of property either as marital or separate must be determined on when and how the property was acquired. W.Va.Code, 48-2-l(e), and (f) [1986]. Some property, especially money, can have a dual classification, part marital and part separate.7 In cases of dual property the statute indicates that the property be classified based on the source of funds used to create the property. See W.Va.Code, 48-2-1(e)(2), (f)(6) [1986]. The source-of-funds rule emphasizes the marital partnership theory, because the marital unit receives the benefit of the spouses’ time, earnings and effort. Dyer v. Tsapis, 162 W.Va. 289, 291-92, 249 S.E.2d 509, 511 (1978) (“The law which once saw marriage as a sacrament now conceptualizes it as roughly analogous to a business partnership.”) Cases in other jurisdictions that have adopted a source-of-funds rule include: Hoffmann v. Hoffmann, 676 S.W.2d 817 (Mo.1984); Harper v. Harper, 294 Md. 54, 448 A.2d 916 (1982); Tibbetts v. Tibbetts, 406 A.2d 70 (Me.1979); In re Marriage of Moore, 28 Cal.3d 366, 168 Cal.Rptr. 662, 618 P.2d 208 (1980); Stahl v. Stahl, 91 Idaho 794, 430 P.2d 685 (1967); McLeod v. McLeod, 74 N.C.App. 144, 327 S.E.2d 910 (1985); Nolan v. Nolan, 107 A.D.2d 190, 486 N.Y.S.2d 415 (1985); Jackson v. Jackson, 298 Ark. 60, 765 S.W.2d 561 (1989); Frank G. W. v. Carol G.W., 457 A.2d 715 (Del.Sup.1983); Nardini v. Nardini, 414 N.W.2d 184 (Minn.1987).
In Spielman v. Spielman, 181 W.Va. 178, 381 S.E.2d 377 (1989), this Court traced a husband’s separate funds, used to pay off a lien on the wife’s trailer, in the net value of the trailer. In Kaminsky v. Kaminsky, 178 W.Va. 786, 364 S.E.2d 799, 803 (1987), Justice Brotherton, writing a unanimous opinion, recognized that tracing in a given case can be especially difficult when the property is subject to a number of transactions, but required the circuit court to use tracing so that “the proceeds from the sale of separate property and all earnings on those proceeds remain the separate property of Mr. Kaminsky.”
The process of tracing separate funds is similar to the process currently followed in determining parties’ contributions to the marital estate from “[f]unds which are separate property.” W.Va. Code, 48-2-32 [1984]. See Caldwell v. Caldwell, 177 W.Va. 61, 350 S.E.2d 688 (1986).
The classification of appreciated property should be based on cause of the appreciation. W. Va. Code, 48-2-l(e)(2), (f)(6) [1986]. See Syllabus Points 1 and 2, Shank v. Shank, 182 W.Va. 271, 387 S.E.2d 325 (1989).
In rejecting the source of funds doctrine, the majority fails to provided the circuit court with any way to examine the jointly titled checking account except to classify it as marital property. In essence, the majority continues the ill-advised and unjustified redistribution of property begun in Whiting. In this case, the majority redistributes Mr. Koontz’s insurance proceeds so that Mrs. Koontz will receive part of both the house and the checking account. The result is that Mr. Koontz is caught because he was “so naive as to have relied on the old law” (Whiting, Id.) (Neely, C.J., dissenting) and allowed his family the use of his separate property.
. W.Va.Code, 48-3-10 [1984], provides in pertinent part that “a gift between the spouses must be affirmatively proved” at the time of a divorce. See Whiting Id. (Neely, C.J., dissenting for a discussion of this code section and our recent cases requiring the spouse claiming the gift to bear the burden of proving that a gift was made).
. Whiting, supra 183 W.Va. at 459, 396 S.E.2d at 421 notes that the presumption can be overcome “by a showing that the transferring spouse did not intend to transfer the property to joint ownership or was induced to do so by fraud, coercion, duress, or deception. (Citations and footnote omitted).” The majority’s failure to recognize that the facts of this case rebut the marital presumption, indicate that Whiting’s presumption is absolute.
.See Whiting, Id. (Neely, C.J., dissenting for a discussion of Roig, supra.)
. Caldwell, supra, has an unusual fact pattern because the parties remarried after a property settlement in the first divorce.
. The record indicates that both Mr. and Mrs. Koontz worked on the house. Any increase in the value of the house because of “work performed by either or both of the parties during the marriage" should be considered marital property under W.Va.Code, 48-2-l(e)(2)(B) [1986]. See Syllabus Point 2, Shank v. Shank, 182 W.Va. 271, 387 S.E.2d 325 (1989).
. The record indicates that the joint account contained at least $40,752.95 in April 1986. Of this amount, the insurance proceeds on Mr. Koontz’s destroyed house accounted for $40,000 and the rest was interest in a certificate of deposit titled in Mr. Koontz’s name only. The money was used primarily to pay construction costs and it was from this account the Mrs. Koontz withdrew the $15,000 to go on vacation.
. In Whiting, supra, the majority recognizes the source of funds doctrine to determine the "marital property component to separate property” (Id. 183 W.Va. at 459, 396 S.E.2d at 421) but refuses to acknowledge that the source of funds doctrine can be applied to property that is composed of separate and marital property.