Filing for Divorce in West Virginia

Filing for Divorce in West Virginia

Getting a Divorce in West Virginia? Divorce Law Cheat Sheet for the State of West Virginia

1. What are the residency requirements for filing for divorce in West Virginia?

You or your spouse must be living in the state at the time that you file for divorce in West Virginia. You have to file in the county in which you or your spouse lives or in the county in which you last lived together.

2. Does West Virginia have a waiting period?

No, there is no waiting period beyond the time requirements specified in the grounds below.

3. Does the state have grounds for divorce?

Yes. You or your spouse may file for divorce based on these grounds:

  • You and your spouse have irreconcilable differences.
  • You and your spouse have lived apart for at least one year.
  • Cruel and inhuman treatment, which West Virginia defines as fear of physical harm; a false accusation of adultery or homosexuality; or any other behavior that destroys your mental or physical well-being and makes continuing to live together unsafe or intolerable.
  • Adultery, meaning your spouse had an affair. You must provide clear evidence to back up your claim if you file on this ground. The court will not grant a divorce for adultery if you knew about it but resumed your marital relationship, or it happened more than three years before you filed.
  • Your spouse has been convicted of a felony your spouse is permanently and incurably insane. To file on this ground, your spouse must have been in a mental institution for at least three years and a professional must testify that his or her insanity is incurable. You may be required to support your spouse.
  • Your spouse is habitually drunk or addicted to drugs.
  • Desertion, if your spouse has been gone for at least six months.
  • Abuse or neglect of a child, including physical, mental or sexual abuse or failure to provide the care necessary for a child’s well-being. There must be enough evidence to justify denying your spouse custody of the abused or neglected child.

4. How does West Virginia determine the division of property?

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You and your spouse are encouraged to come up with a settlement on your own and present it to the court. If you can’t agree, the court will divide your property for you. The court will assess your marital property and divvy it in whatever way seems equitable, or fair. In West Virginia, marital property means:

  • All property and earnings you or your spouse acquired while you were married.
  • Any increase in value of you or your spouse’s separate property, if that increase resulted from spending marital funds or from efforts by you or your spouse.

Your separate property remains your own. This includes:

  • Property that you acquired before you were married
  • Property that you received in exchange for your separate property.
  • Property that you acquired during your marriage but excluded from marital property by an agreement with your spouse.
  • Property that you acquired via gift or inheritance.
  • Property that you acquired after you and your spouse separated.
  • Any increase in value of your separate property that was a result of some situation out of your control, such as a change in the market.

The court will consider these factors in dividing your property:

  • The extent to which each of you contributed to the upkeep or increase in value of marital property through your incomes or funds that are your separate property.
  • The extent to which each of you contributed to the upkeep or increase in value of marital property through your role as a homemaker, through caring for your children, or by providing services for little or no pay (such as keeping books for a family business or doing maintenance on a property).
  • The extent to which you and your spouse’s roles during your marriage limited or decreased your own earning ability or increased the earning ability of the other.
  • The extent to which you or your spouse wasted your marital property or caused it to depreciate.

5. Does West Virginia require mediation before a divorce is granted?

Mediation is not a requirement in all divorces, thought the court may order it in your case if you and your spouse disagree over child custody and visitation.

6. How does West Virginia determine child custody?

Legal custody and physical custody are two different things. Legal custody outlines how involved each parent is in the major decisions of a child’s life —” where a child goes to school, what faith he or she is raised in, and other biggies.

Physical custody addresses where a child will live and with whom. Visitation is then negotiated based your physical custody arrangement.

The state seeks, above all else, an arrangement in your child’s best interest, which it says is generally served by frequent and continuing contact between your child and each of you, as long as you and your spouse can demonstrate that you’re acting in your child’s best interest. You and your spouse will be required to take a parent education course, unless the court finds that it would be inappropriate or unnecessary.

You and your spouse may submit a parenting plan to the court for its consideration. It has to address these issues:

  • Your child’s living arrangements, including a schedule that designates in which parent’s home your child will live on given days of the year or a method for determining such a schedule.
  • How decision-making responsibility will be allocated.
  • A provision for resolving disputes between you and your spouse.

If your agreement, in whole or in part, is not accepted by the court, you’ll be allowed to negotiate another agreement. If it’s up to the court to create a plan for physical custody of your child, the court will attempt to achieve these goals:

  • To give your child time with each of you in roughly the same proportions as he or she spent with each of you before you separated (as long as you each are able to meet your child’s needs).
  • To allow your child to have a relationship with each of you if you each have been involved in parenting duties.
  • To accommodate your child’s reasonable preferences, particularly if he or she is 14 or older.
  • To keep siblings together when the court finds that doing so is necessary.
  • To take into account any agreement between you and your spouse.
  • To avoid an arrangement that would be impractical or would interfere with your child’s need for stability (considering the distance between you and your spouse’s homes, everyone’s daily schedules and you and your spouse’s ability to cooperate).
  • To account for the possibility of parental relocation.
  • To account for your child’s development.

In determining a plan for decision-making responsibilities for your child, the court will consider the following:

  • You and your spouse’s participation in past decision-making on behalf of your child.
  • You and your spouse’s wishes.
  • You and your spouse’s ability to cooperate in making decisions for your child.
  • Any agreement between you and your spouse.

The court also may award visitation rights to your child’s grandparents, if it would be in the best interest of your child. To decide this, the court will take into consideration:

  • Your child’s age.
  • Your child’s relationship with his or her grandparents.
  • The relationship between the grandparents and you and your spouse.
  • How long it’s been since your child had contact with his or her grandparents.
  • What effect visitation would have on your child’s relationship with you and your spouse.
  • The custody and visitation arrangement you and your spouse will have.
  • What kind of time is available for visitation, considering you and your spouse’s work schedules, your child’s schedule of activities, and your schedule for holidays and vacations.
  • The grandparents’ intentions in filing for visitation.
  • Any history of physical, emotional or sexual abuse or neglect by your child’s grandparents.
  • Whether your child has lived with his or her grandparents for a significant period of time.
  • Whether the grandparents have been significant caregivers for your child.
  • You and your spouse’s wishes.
  • Any other factor the court considers relevant.

7. How does the state calculate child support?

West Virginia calculates child support using a set of state guidelines based on you and your spouse’s adjusted gross incomes. The goal in applying these guidelines is to offer your child approximately the same standard of living he or she enjoyed before your divorce.

Your basic support amount is determined by combining you and your spouse’s adjusted gross incomes. The cost of health insurance, any unreimbursed health-care expenses for your child, work-related child care expenses (adjusted for the tax credit) and other extraordinary expenses (including recurring medical expenses greater than $250) are added on to the basic amount.

Extraordinary credits (such as whether you or your spouse is responsible for supporting other children) are subtracted. That sum then is split between you and your spouse in the same proportion as your incomes. Child support will differ depending on what type of visitation you have:

  • Basic shared parenting, which means one parent keeps your child or children overnight for less than 35 percent of the year and both of you contribute to your child’s expenses in addition to child support.
  • Extended shared parenting, which means each parent keeps your child or children overnight for more than 35 percent of the year and both of you contribute to your child’s expenses in addition to child support.
  • Split physical custody, which means that you and your spouse have more than one child, and at least one of your children is living primarily with each of you.

The court presumes that the child support amount resulting from the guidelines is appropriate. But it may take into consideration:

  • Any special needs for you or your child, including physical or mental disabilities.
  • Educational expenses for you or your child (such as tuition for private, parochial, or trade schools or college).
  • Families with more than six children.
  • Long-distance visitation costs.
  • Whether your child lives with someone besides you or your spouse.
  • The needs of any other children that you or your spouse is responsible for supporting.
  • Whether some of the income earned by the parent paying support is not consistent.
  • Whether paying child support and spousal support (alimony) would leave that parent below the federal poverty level.

The court may order child support beyond your child’s 18th birthday if he or she is living at home and is a full-time student. He or she has to be making progress toward a diploma, and support will end regardless when your child turns 20.

8. How does West Virginia determine and calculate alimony?

Alimony, also known as spousal support or maintenance, is not a standard part of a divorce case, but you or your spouse may request it. In West Virginia, the court may order alimony as a lump payment, periodic payments or both. It may award rehabilitative spousal support, which is granted for a limited time to allow a spouse to seek training or find a job. It may order payment of alimony from a spouse’s separate property if he or she doesn’t have adequate income to pay.

If you decide to seek support, the court will consider these factors in determining whether to award alimony and, if so, how much:

  • Who was at fault in your marriage or whether you or your spouse’s behavior led to the end of your marriage.
  • How long you were married.
  • The period of time that you and your spouse actually lived together as husband and wife.
  • You and your spouse’s incomes and other earnings.
  • You and your spouse’s earning abilities, based on education, skills, work experience and what responsibilities you have for raising your children.
  • Your division of property and how it will affect you and your spouse’s earnings.
  • You and your spouse’s physical, mental and emotional conditions.
  • Whether you or your spouse left the workforce or postponed or gave up economic, education or employment opportunities while you were married.
  • The standard of living you and your spouse established during your marriage.
  • Whether you can increase your earning abilities within a reasonable time and how much it would cost.
  • Any contributions you or your spouse made to the education, career or earning ability of the other.
  • The costs of your child’s education.
  • The cost of health insurance for you, your spouse and your child.
  • The tax situation you each would face if alimony were awarded.
  • Whether it would be inappropriate to expect you to work because you are the custodian for a young child.
  • You and your spouse’s financial needs.
  • Whether you or your spouse is responsible for supporting someone else.
  • Any costs for care of a child with physical or mental disabilities.
  • Any other factors the court considers relevant.

9. Is there a waiting period before remarriage in West Virginia?

No, you are free to remarry after the court delivers the final judgment ending your marriage.

FOR MORE INFORMATION:

West Virginia’s state statutes can be found online here.

The West Virginia Bureau for Child Support Enforcement maintains a website here.

Please note: Local and state laws change constantly, therefore this information is for educational purposes only. We do our best to keep state-specific information up-to-date, but please contact us to discuss your unique situation.

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