West Virginia Divorce Law

Residency Requirement:

To get divorced in West Virginia, one of the spouses must have been a resident of the state for at least 1 year immediately before filing the case. However, if the marriage was performed in West Virginia there is no Residency Requirement.

Place of Divorce (Venue)

The case may be filed in:

• County in which the spouses last lived together.
• County where the defendant lives if a resident.
• County where the plaintiff lives if the defendant is a non-resident.

Simplified or Special Divorce Procedures:

If one spouse files a verified complaint for divorce on the grounds of “irreconcilable differences,” the other spouse may file a verified “answer” admitting the “irreconcilable differences” and a divorce will be granted. No witnesses will be necessary for any proof for a divorce on the grounds of “irreconcilable differences.” In other cases, witnesses will be required. Standard financial disclosure forms are required to be filed.

Grounds for Divorce

Non-Fault Based Divorce:

• Irreconcilable differences have arisen between the spouses.
• Living separate and apart without cohabitation and without interruption for 1 year.

Fault Based Divorce:

• Adultery
• Abandonment for 6 months.
• Alcoholism and/or drug addiction.
• Confinement for incurable insanity for 3 years.
• Physical abuse or reasonable apprehension of physical abuse of a spouse or of a child.
• Conviction of a felony.
• Cruel and inhuman treatment, including false accusations of adultery or homosexuality.
• Willful neglect of a spouse or a child.
• Habitual intemperance.

Filing for Divorce in West Virginia:

There are only three basic procedural steps to a divorce:

• File West Virginia Divorce Papers (West Virginia Divorce Forms)
• Notify Spouse of your filing for divorce in West Virginia
• Attend your West Virginia divorce hearing

Legal Separation in West Virginia:

There are no state provisions for legal separation in the state of West Virginia

Spousal Support in West Virginia:

An obligation that compels a person to pay spousal support may arise from the terms of a court order, an antenuptial agreement or a separation agreement. Spousal support is divided into four classes which are:

• Permanent spousal support.
• Temporary spousal support, otherwise known as spousal support pendente lite.
• Rehabilitative spousal support.
• Spousal support in gross.

Rehabilitative Spousal Support:

(a) The court may award rehabilitative spousal support for a limited period of time to allow the recipient spouse, through reasonable efforts, to become gainfully employed. When awarding rehabilitative spousal support, the court shall make specific findings of fact to explain the basis for the award, giving due consideration to the factors set forth in section 8-103 of this article. An award of rehabilitative spousal support is appropriate when the dependent spouse evidences a potential for self-support that could be developed through rehabilitation, training or academic study.

(b) The court may modify an award of rehabilitative spousal support if a substantial change in the circumstances under which rehabilitative spousal support was granted warrants terminating, extending or modifying the award or replacing it with an award of permanent spousal support. In determining whether a substantial change of circumstances exists which would warrant a modification of a rehabilitative spousal support award, the court may consider a reassessment of the dependent spouse’s potential work skills and the availability of a relevant job market, the dependent spouse’s age, health and skills, the dependent spouse’s ability or inability to meet the terms of the rehabilitative plan and other relevant factors as provided for in section 8-103 of this article.

Child Custody in West Virginia:

West Virginia Child Custody is a shared arrangement, in one form or another, is the preferred method of our West Virginia divorce.

Unless otherwise resolved by agreement of the parents under section two hundred one of this article or unless manifestly harmful to the child, the court shall allocate custodial responsibility so that the proportion of custodial time the child spends with each parent approximates the proportion of time each parent spent performing caretaking functions for the child prior to the parents’ separation or, if the parents never lived together, before the filing of the action, except to the extent required under section two hundred nine of this article or necessary to achieve any of the following objectives:

• To permit the child to have a relationship with each parent who has performed a reasonable share of parenting functions.
• To accommodate the firm and reasonable preferences of a child who is fourteen years of age or older, and with regard to a child under fourteen years of age, but sufficiently matured that he or she can intelligently express a voluntary preference for one parent, to give that preference such weight as circumstances warrant.
• To keep siblings together when the court finds that doing so is necessary to their welfare.
• To protect the child’s welfare when, under an otherwise appropriate allocation, the child would be harmed because of a gross disparity in the quality of the emotional attachments between each parent and the child or in each parent’s demonstrated ability or availability to meet a child’s needs.
• To take into account any prior agreement of the parents that, under the circumstances as a whole including the reasonable expectations of the parents in the interest of the child, would be appropriate to consider.
• To avoid an allocation of custodial responsibility that would be extremely impractical or that would interfere substantially with the child’s need for stability in light of economic, physical or other circumstances, including the distance between the parents’ residences, the cost and difficulty of transporting the child, the parents’ and child’s daily schedules, and the ability of the parents to cooperate in the arrangement.
• If one parent relocates or proposes to relocate at a distance that will impair the ability of a parent to exercise the amount of custodial responsibility that would otherwise be ordered under this section.
  
• To consider the stage of a child’s development.

 

Child Support in West Virginia:

If the parents are unable to agree to an amount of child support, there are guidelines that determine the amount of support based on the West Virginia Child Support Guidelines. The guideline amount is presumed to arrive at an amount of support that is in the child’s best interest. But, most divorcing spouses agree to a figure on their own, that will work just fine. Also, in most situations, no Child Support is OK if both spouses are working and can manage.

A West Virginia court will consider the following factors when ordering child support:

• Custodial arrangements (If parents are sharing custody, it will affect the child support obligation.)
• Whether the child receives Supplemental Security Income (SSI)
• Whether a portion of the parent’s social security benefits is sent directly to the child

A West Virginia court will consider the following factors to deviate from the normal child support formula:

• Special needs of the child or the parent obligated to pay child support
• Long distance visitation costs
• Needs of additional children for whom support is owed
• Educational expenses for the child or the child’s parent
• Whether the child resides with a third party
• Whether there are more than six children in a family
• Whether the total amount of child support, spousal support, and child care expenses reduces a parent’s income to below the poverty line standard or whether deviating from the child support guidelines will reduce a child’s household income to below poverty level

Property Distribution in West Virginia:

In an Uncontested “Agreed Divorce” or “Default Divorce” the property is divided so that both parties agree to the division. The main concern here is to agree to the property division so that it doesn’t create a fight that one party will want to go to a West Virginia divorce attorney to make the case into a Contested Divorce. Then you will have to incur the fees of a lawyer too.

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:

• 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 employment income and other earnings and funds which are separate property.
• 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 homemaker services and child care services.
• 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;
• Labor performed in the actual maintenance or improvement of tangible marital property; and
• Labor performed in the management or investment of assets which are marital property.
• 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:
• 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
• 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.
• 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.

 Disclaimer: The divorce law information provided is for informational purposes only not for legal advice purposes. This information is general in nature. Each jurisdiction has specific code and court procedures. A local divorce attorney is your best source for how divorce is treated in your jurisdiction. Before making any legal decisions we encourage you to consult with a local attorney…do not make decisions based on general state divorce law.