West Virginia Divorce Laws
The state of West Virginia has unique divorce laws for people who wish to terminate their marriage.
We are providing this online divorce information to you as an easy divorce reference guide to help you while you are doing your own divorce. This information (and much more) is available inside your personal 3StepDivorce account area in order to help you understand how West Virginia addresses the most important issues in the divorce process and certain elements throughout your divorce forms.
The following overview of West Virginia divorce laws will help you understand the filing procedure and other primary issues concerning your divorce. Please keep in mind that our West Virginia online divorce service and support staff will make the process easy for you from start to finish. We take the difficulty out of doing your own divorce.
Residency Requirements: In order to file for a divorce in West Virginia, you or your spouse must meet the strict residency requirements. These requirements permit the court to have jurisdiction of your case, resulting in allowing you to use their judicial system. These requirements are only a concern for spouses who have recently relocated or plan to relocate in the near future. They are as follows:
In an action for divorce at least one of the spouses must have been a resident of the state for at least 1 year, except if the marriage took place in West Virginia, the 1 year residency requirement is waived.
The divorce shall be filed as follows: (a) If the respondent in an action for divorce is a resident of this state, the petitioner has an option to bring the action in the county in which the parties last cohabited or in the county where the respondent resides. (b) If the respondent in an action for divorce is not a resident of this state, the petitioner has an option to bring the action in the county in which the parties last cohabited or in the county where the petitioner resides. (West Virginia Code - Sections: 48-5-201)
No-Fault Grounds: Most uncontested divorce cases are filed according to a "no-fault" ground. We are using the term "no-fault" in a generic fashion by labeling all grounds that do not actually declare a "fault" as "no-fault". In the state of West Virginia the "no-fault" grounds are as follows:
(1) the parties have lived separate and apart in separate places of abode without any cohabitation and without interruption for one year. The separation may occur as a result of the voluntary act of one of the parties or the mutual consent of both parties. (b) Irreconcilable differences between the two parties. (West Virginia Code - Sections: 48-5-202 and 48-5-209)
Filing Party Name: The Petitioner. This is the spouse who is recognized as the initiator of the divorce and is the one who actually files the Petition for Divorce with the county court.
Non-Filing Party Name: The Respondent. This spouse plays a lesser role in an uncontested divorce versus a contested divorce. He or she will be required to sign and/or respond in a timely fashion to the documents filed by his or her spouse.
Family Law or Domestic Relations Court: Circuit Court of __________ County, West Virginia. All divorce cases in the state of West Virginia are facilitated through this court for that particular county.
Clerk's Name: All correspondence with a West Virginia clerk of the court should formally address him or her as follows: Office of the Clerk of the County Circuit Court.
Property and Debt Division: West Virginia is considered an "equitable distribution" state. If you and your spouse are unable to come to an agreement on how the marital property will be divided, the court shall use a three step process. First, it will determine what property is marital. Second, it will put a value on the marital property. Third, it will divide the marital property in an equitable fashion, which is not necessarily equal, but rather what is considered to be fair.
The court shall divide the marital property of the parties equitably between the parties after a consideration of the following: (A) The extent to which each party has contributed to the acquisition, preservation and maintenance, or increase in value of marital property by monetary contributions; (B) The extent to which each party has contributed to the acquisition, preservation and maintenance or increase in value of marital property by nonmonetary contributions; (C) 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; (D) 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.
The court may award the exclusive use and occupancy of the marital home to a party. An order granting use and occupancy of the marital home shall include the use of any necessary household goods, furniture and furnishings. The order shall establish a definite period for the use and occupancy, ending at a specific time set forth in the order, subject to modification upon the petition of either party.
Fault or marital misconduct shall not be considered by the court in determining the proper distribution of marital property. (West Virginia Code - Sections: 48-5-604, 48-5-612, 48-7-101)
Changing Name: The court, upon ordering a divorce, shall if requested to do so by either party, allow such party to resume the name used prior to his or her first marriage.
The court shall, if requested to do so by either party, allow such party to resume the name of a former spouse if such party has any living child or children by marriage to such former spouse. (West Virginia Code - Sections: 48-5-613)
Spousal Support, Maintenance, or Alimony: Determining the amount of spousal support, if any, is not as objective as determining child support. Spousal support, whether permanent or temporary, is typically decided on a case-by-case basis, because it is very likely that unique circumstances and factors regarding the marriage and the property award will play a significant role in allowing the court to arrive at the appropriate amount.
The court shall consider the following factors in determining the amount of spousal support to ordered in lieu of any signed separation agreement: (A) The length of time the parties were married; (B) The period of time during the marriage when the parties actually lived together as husband and wife; (C) The present employment income and other recurring earnings of each party from any source; (D) The income-earning abilities of each of the parties, based upon such factors as educational background, training, employment skills, work experience, length of absence from the job market and custodial responsibilities for children; (E) The distribution of marital property to be made under the terms of a separation agreement or by the court (F) The ages and the physical, mental and emotional condition of each party; (G) The educational qualifications of each party; (H) Whether either party has foregone or postponed economic, education or employment opportunities during the course of the marriage; (I) The standard of living established during the marriage; (J) The likelihood that the party seeking spousal support, child support or separate maintenance can substantially increase his or her income-earning abilities within a reasonable time by acquiring additional education or training; (K) Any financial or other contribution made by either party to the education, training, vocational skills, career or earning capacity of the other party; (L) The anticipated expense of obtaining the education and training described in subdivision (M) above; (N) The costs of educating minor children; (O) The costs of providing health care for each of the parties and their minor children; (P) The tax consequences to each party; (Q) The extent to which it would be inappropriate for a party, because said party will be the custodian of a minor child or children, to seek employment outside the home; (R) The financial need of each party; (S) The legal obligations of each party to support himself or herself and to support any other person; (T) Costs and care associated with a minor or adult child's physical or mental disabilities; and (U) Such other factors as the court deems necessary or appropriate to consider in order to arrive at a fair and equitable grant of spousal support, child support or separate maintenance. (West Virginia Code - Sections: 48-6-301, 48-8-104)
Custody and Visitation: Shared or joint child custody has become more and more popular with the West Virginia courts. If you and your spouse request to have joint or shared "legal" custody, it will almost always be granted. As for joint or shared "physical" custody, the court will examine this a bit more closely to determine if it is a realistic choice that would result in an arrangement that is best for the children.
The primary objective of the court is to serve the child's best interests, by facilitating: (A) Stability of the child; (B) Parental planning and agreement about the child's custodial arrangements and upbringing; (C) Continuity of existing parent-child attachments; (D) Meaningful contact between a child and each parent; (E) Caretaking relationships by adults who love the child, know how to provide for the child's needs, and who place a high priority on doing so; (F) Security from exposure to physical or emotional harm; and (G) Expeditious, predictable decision-making and avoidance of prolonged uncertainty respecting arrangements for the child's care and control. (West Virginia Code - Sections: 48-9-102, 48-9-201, 48-11-201)
Determining Child Support: The basis for determining a monthly support amount is best achieved by referring to the West Virginia child support worksheet. The worksheet utilizes the child support guidelines that are defined by state law. The court will use this same worksheet as a building block for determining the support obligation, that is if you and your spouse are unable to come to an agreement on this issue.
The court will deviate from these guidelines if appropriate by considering the following factors: (A) Special needs of the child or support obligor, including, but not limited to, the special needs of a minor or adult child who is physically or mentally disabled; (B) Educational expenses for the child or the parent (i.e. those incurred for private, parochial, or trade schools, other secondary schools, or post-secondary education where there is tuition or costs beyond state and local tax contributions); (C) Families with more than six children; (D) Long distance visitation costs; (E) The child resides with third party; (F) The needs of another child or children to whom the obligor owes a duty of support; (G) The extent to which the obligor's income depends on nonrecurring or nonguaranteed income; or (H) Whether the total of spousal support, child support and child care costs subtracted from an obligor's income reduces that income to less than the Federal Poverty Level. (West Virginia Code - Sections: 48-13-301, 48-13-702)
Copyright Notice: These West Virginia divorce laws above are copyrighted by Divorce Source, Inc. This abbreviated and revised version of the state laws has been compiled from applicable state laws and unauthorized reproduction in any fashion is prohibited. Violation of this copyright notice may result in immediate legal action.
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