West Virginia Divorce
Information and FAQ
This section contains guidelines based on selected divorce
statutes from West Virginia. Some may not be relevant to your case
but are presented here as a general overview. The selections set out
below are not intended to be an all-inclusive statement of statutes
but rather contains commentary based on some selected statutes.
Grounds for Divorce Grounds 1. and 2. are "no-fault"
grounds. This means the fault of one party in destroying the
marriage is not at issue.
1. Irreconcilable differences. 2. Spouses have been living
separate and apart without cohabitation and without interruption for
1 year.
There are several other recognized grounds for divorce in West
Virginia:
3. Adultery 4. Abandonment for 6 months 5. Addiction to alcohol
and/or drugs 6. Confinement for incurable insanity for 3 years 7.
Physical abuse or reasonable apprehension of physical abuse of a
spouse or of a child 8. Conviction of a felony 9. Cruel and inhuman
treatment 10. Willful neglect of a spouse or a child 11. Habitual
drunkenness
Residency At least one of the spouses must have been a resident
of West Virginia for at least 1 year immediately prior to filing for
divorce. However, if the marriage was performed in West Virginia and
one spouse is a resident when filing there is no durational time
limit. The case should be filed in the county in which the spouses
last lived together, or the county where the defendant currently
lives, or the county where the plaintiff lives if the defendant is a
non-resident. Legal Separation An option for parties who do not
desire a final divorce is to obtain a legal separation as recognized
by West Virginia law. The grounds for legal separation are the same
as for divorce. One of the spouses must have been a resident of West
Virginia for at least 1 year prior to filing for legal separation.
Property Division
West Virginia is an "equitable distribution" state,
generally meaning that all marital property acquired during the
marriage is subject to division. Property brought into the marriage
or property that a person had before the marriage is not subject to
division in a divorce. To prove that you had property that should be
considered non-marital property you need to show that you either
owned it before marriage, it was a gift to you from someone besides
your spouse and was only meant for you, and that you inherited it.
The court will determine what is non-marital property before
proceeding with the case.
Marital property, on the other hand, will be divided in just
proportions, most likely equally. Even if one spouse stayed home and
cared for the house and the children, most courts will consider that
an equal contribution to the relationship and thus that spouse will
be awarded an equal share of the property. It is best for you and
your spouse to agree on which spouse takes what piece of property,
it simplifies the entire process. If settlement is unlikely, you
will need to determine the value of each and every piece of property
that you own. If you do not agree with your spouse on the values a
court appointed appraiser will have to value the goods, and it is
likely that they will appraise it at an amount lower than you would
like. All debts acquired during marriage will be considered marital
property and should be distributed likewise.
The court may adjust the division of property based on the
following factors:
1. The contribution of each spouse to the acquisition of the
marital property, including the contribution of each spouse as
homemaker and in child-care; 2. The value of each spouse's separate
property; 3. The amount and sources of income of the spouses; 4. The
conduct of the spouses during the marriage only as it relates to the
disposition of their property; 5. The value of the labor performed
in a family business or in the actual maintenance or improvement of
tangible marital property; 6. The contribution of one spouse toward
the education or training of the other which has increased the
income-earning ability of the other spouse; 7. The foregoing by
either spouse of employment or other income- earning activity
through an understanding of the spouses or at the insistence of the
other spouse; 8. Any other factor necessary to do equity and justice
between the spouses.
Spousal Support (or "Alimony") Alimony payments are
designed to help with financial obligations of the receiving spouse
and to maintain a similar lifestyle to that enjoyed during the
marriage. The lifestyle can not remain exactly the same due to the
paying spouse typically having to maintain two households for a
period of time. Since a majority of spouses both work rewarding
alimony is not extremely common although it does exist. Most of the
time alimony is rewarded for a short period of time just to help the
receiving spouse get on his or her feet again. This is known as
rehabilitative alimony and can be used to finish a degree or get
enough training so sufficient income can be earned on one's own
accord. The factors the court will consider are:
1. Whether the spouse seeking alimony is the custodian of a child
whose condition or circumstances make it appropriate for that spouse
not to seek outside employment; 2. The time and expense necessary to
acquire sufficient education and training to enable the spouse to
find appropriate employment, and that spouse's future earning
capacity; 3. The duration of the marriage; 4. The comparative
financial resources of the spouses, including their comparative
earning abilities in the labor market; 5. The amount of time the
spouses actually lived together as wife and husband; 6. The tax
consequences to each spouse; 7. The age of the spouses; 8. The
physical and emotional conditions of the spouses; 9. The vocational
skills and employability of the spouse seeking alimony; 10. Any
custodial and child support responsibilities; 11. The educational
level of each spouse at the time of the marriage and at the time the
action for divorce is commenced; 12. The cost of education of minor
children and of health care for each spouse and the minor children;
13. The distribution of marital property; 14. Any legal obligations
of the spouses to support themselves or others; 15. The present
employment or other income of each spouse; 16. Any other factor the
court deems just and equitable.
The marital misconduct of the spouses will be considered and
compared. Alimony may be reduced or may not be awarded to any spouse
who: (1) was adulterous; (2) has been convicted of a felony during
the marriage; or (3) deserted or abandoned his or her spouse for 6
months. The court may require health and/or hospitalization
insurance coverage as alimony.
Child Custody Most parents agree about the custody, child
support, and visitation issues relating to their children. Joint
custody arrangements have become common place and in some states the
"norm" in determining the care, custody and support of
children. If the parents are unable to 'work it out', a judge will
ultimately decide these issues for the parents. However, before a
judge makes any final decision the parents will likely be sent to
mandatory mediation to attempt to work out child custody and
visitation between the two of them. If a judge is forced to make
custody decisions he or she will been to base the decision on
genuine evidence, like medical opinions. The judge will also take
into account history of child abuse and drug and alcohol addictions.
Furthermore, the judge will consider and protective orders that have
been issued to help determine what is in the best interest of the
child. This is the ultimate factor that the court uses to determine
the award of custody.
Either parent may be awarded custody. There is a presumption in
favor of the parent who has been the primary caretaker of the child.
There are no other factors for consideration specified in the
statute. Furthermore, there is no specific statutory provision in
West Virginia for joint custody.
Child Support Child support is the amount that the court
determines should be paid from the non-custodial parent to the
custodial parent to help maintain the children until they reach age
18. Child support determinations can only be altered if there has
been a substantial and significant change in the circumstances
relating to the children. Either parent may be required to provide
periodic child support payments, including health insurance
coverage. The following factors are specified in the statute are: 1.
Whether the spouse seeking support is the custodian of a child whose
condition or circumstances make it appropriate for that spouse not
to seek outside employment; 2. The time and expense necessary to
acquire sufficient education and training to enable the spouse to
find appropriate employment, and that spouse's future earning
capacity; 3. The duration of the marriage and the actual period of
cohabitation as husband and wife; 4. The comparative financial
resources of the spouses, including their comparative earning
abilities in the labor market; 5. The needs and obligations of each
spouse; 6. The tax consequences to each spouse; 7. The age of the
spouses; 8. The physical and emotional conditions of the spouses; 9.
The vocational skills and employability of the spouse seeking
support and maintenance; 10. Any custodial responsibilities; 11. The
educational level of each spouse at the time of the marriage and at
the time the action for divorce is commenced; 12. The cost of
education of minor children and of health care for each spouse and
the minor children; 13. The distribution of marital property; 14.
Any legal obligations of the spouses to support themselves or
others; 15. Any other factor the court deems just and equitable.
In West Virginia one of the parents may also be granted exclusive
use of the family home, and all of the goods and furniture necessary
to help in the rearing of the children. The court may require many
things including health and hospitalization insurance coverage as
child support. Provisions for wage garnishment shall be included in
every divorce decree to guarantee the support payments. Child
support guidelines are available from the West Virginia Child
Advocate Office. These guidelines are presumed to be correct, unless
it is shown that the amount is unjust or inappropriate under the
particular circumstances of a case.
Premarital Agreement West Virginia's laws specifically allow the
husband and wife to make contracts with each other and to be held
liable for these contracts. The contract must be in writing and
signed by the parties to be enforceable. The terms of the agreement
are binding on the court unless if finds it unconscionable.
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