Divorce Law West Virginia

DIVORCE LAWS OF WEST VIRGINIA

The law relating divorce in the State of West Virginia is enunciated in Chapter 48 of the West Virginia Code.

GROUNDS FOR DIVORCE AND LEGAL SEPARATION

The Code recognizes two categories of legal grounds for divorce and legal separation

A. No-Fault

  1. Irreconcilable differences have arisen between the spouses or
  2. living separate and apart without cohabitation and without interruption for 1 year.

B. General

  1. Adultery;
  2. abandonment for 6 months;
  3. alcoholism and/or drug addiction;
  4. confinement for incurable insanity for 3 years;
  5. physical abuse or reasonable apprehension of physical abuse of a spouse or of a child;
  6. conviction of a felony;
  7. cruel and inhuman treatment, including false accusations of adultery or homosexuality;
  8. willful neglect of a spouse or a child; and
  9. habitual intemperance (drunkenness)

LEGAL SEPARATION

One of the spouses must have been a resident of West Virginia for at least 1 year prior to filing for legal separation.

JURISDICTION

As per the Law of the state the jurisdiction over domestic relations matters is vested on the circuit courts and family courts. The circuit courts and family courts of this state, by act of the Legislature, are vested with concurrent jurisdiction over the subject matter of divorce. Generally, a family court has the right and authority to adjudicate actions for divorce and the power to carry its judgment and order into execution. Circuit courts have limited jurisdiction in divorce actions.

Jurisdiction of the subject matter of divorce embraces the power to determine every issue or controverted question in an action for divorce, according to the court's view of the law and the evidence.

Further in an action for divorce, it is immaterial where the marriage was celebrated, where the parties were domiciled at the time the grounds for divorce arose or where the marital offense was committed.

If one or both of the parties is domiciled in this state at the time the action is commenced, the circuit courts and family courts of this state have jurisdiction to grant a divorce for any grounds fixed by law in this state, without any reference to the law of the place where the marriage occurred or where the marital offense was committed.

A judgment order may be entered upon service of process in the manner specified in the rules of civil procedure for the service of process upon individuals.

RESIDENCY REQUIREMENTS

To file a petition for Divorce one of the spouses must have been a resident of West Virginia for at least 1 year immediately prior to filing. However, if the marriage was performed in West Virginia and 1 spouse is a resident when filing, there is no durational time limit. The divorce should be filed for in the county:

  1. in which the spouses last lived together;
  2. where the defendant lives if a resident; or
  3. where the plaintiff lives, if the defendant is a non-resident.

DIVORCE PROCEDURES

If one of the 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. Circuit clerks are required to have supplies of an official "petition" and an "answer" form on hand, free of charge. No witnesses will be necessary for any proof for a divorce on the grounds of "irreconcilable differences." In other cases, witnesses will be required. The court may approve or reject a marital settlement agreement of the spouses. Standard financial disclosure forms are required to be filed.

PETITION FOR DIVORCE

An action for divorce is instituted by a verified petition and the formal style and the caption for all pleadings is "In Re the marriage of ________ and ________". The parties shall be identified in all pleadings as "petitioner" and "respondent".

The petition must set forth the ground or grounds for divorce. It is not necessary to allege the facts constituting a ground relied on and a petition or counter-petition is sufficient if a ground for divorce is alleged in the language of the statute as set forth in this article. The court has the discretionary authority to grant a motion to require a more definite and certain statement, set forth in ordinary and concise language, alleging facts and not conclusions of law.

If the jurisdiction of the court to grant a divorce depends upon the existence of certain facts, including, but not limited to, facts showing domicile or domicile for a certain length of time, the petition must allege those facts. It is not necessary that allegations showing requisite domicile be in the language of the statute, but they should conform substantially thereto so that everything material to the fact of requisite domicile can be ascertained therefrom.

A petition cannot be taken for confessed and whether the respondent answers or not, the case shall be tried and heard independently of the admissions of either party in the pleadings or otherwise. No judgment order shall be granted on the uncorroborated testimony of the parties or either of them, except for a proceeding in which the grounds for divorce are irreconcilable differences.

MEDIATION OR COUNSELING REQUIREMENTS

If the divorce involves a minor child, the court will order the parents to attend a parent education class to educate parents about the effects of divorce and custody disputes on children and teach parents methods to help children minimize their trauma.

PROPERTY DISTRIBUTION

West Virginia is an "equitable distribution" state. Each spouse may retain his or her separate property:

  1. acquired prior to the marriage;
  2. acquired by gift or inheritance during the marriage;
  3. any increase in value of the separate property; and
  4. any property acquired in exchange for any separate property. Marital property, consisting of all other property acquired during the marriage, is to be divided equally and without regard to any marital misconduct.

However, this equal division may be altered based on consideration of the following factors:

  1. the contribution of each spouse to the acquisition, preservation, maintenance, or increase in value of the marital property, including the contribution of each spouse as homemaker and in childcare;
  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 per-formed in a family business, in the actual maintenance or improvement of tangible or intangible marital property
  6. the contribution of 1 spouse towards the education or training of the other that 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; and
  8. any other factor necessary to do equity and justice between the spouses. The court may, if necessary, award a spouse's separate property to the other spouse.

MAINTENANCE & SPOUSAL SUPPORT

Either spouse may be ordered to provide the other spouse with alimony. Factors to be considered 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. 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. duration of the marriage;
  4. comparative financial resources of the spouses, including their comparative earning abilities in the labor market;
  5. amount of time the spouses actually lived together as wife and husband;
  6. tax consequences to each spouse;
  7. age of the spouses;
  8. physical and emotional conditions of the spouses;
  9. vocational skills and employability of the spouse seeking alimony;
  10. any custodial and child support responsibilities;
  11. educational level of each spouse at the time of marriage and at the time the action for divorce is commenced;
  12. cost of education of minor children and of health care for each spouse and the minor children;
  13. distribution of marital property;
  14. any legal obligations of the spouses to support themselves or others;
  15. present employment or other income of each spouse;
  16. whether either spouse has fore-gone or postponed economic, education, or career opportunities during the marriage;
  17. standard of living during the marriage;
  18. any financial or other contribution from 1 spouse to aid the education, training, vocational skills, career, or earning capacity of the other spouse;
  19. financial needs of each spouse; and
  20. any other factor the court deems just and equitable. Marital misconduct of the spouses will be considered and compared.

Alimony will 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

Either parent may be awarded custody. There is a presumption in favor of the parent who has been the primary caretaker of the child. The factors for consideration are:

  1. the stability of the child;
  2. any parenting plans or other written agreement regarding child custody;
  3. the continuity of existing parent-child relationships;
  4. meaningful contact between the child and both parents;
  5. maintaining care by parents who love the child, know how to provide for the child's needs, and place a high priority on doing so;
  6. security from exposure to physical or emotional harm;
  7. predictable decision-making and avoidance of prolonged uncertainty regarding the child's care and control; and
  8. fairness between the parents [as a secondary factor].

CHILD SUPPORT

Either parent may be required to provide periodic child support payments, including health insurance coverage. These guidelines do not take into account the economic impact of the following factors that may be possible reasons for deviation:

  1. special needs of the child or parent, including but not limited to, the special needs of a minor or adult child who is physically or mentally disabled;
  2. educational expenses for the child or the parent;
  3. families with more than 6 children;
  4. long-distance visitation costs;
  5. if the child resides with another person;
  6. needs of another child or children to whom the parent owes a duty of support;
  7. the extent to which the parent's income depends on nonrecurring or nonguaranteed income; or
  8. whether the total of spousal support, child support, and childcare costs subtracted from a parent's income reduces that income to less than the federal poverty level.

One of the parents may also be granted exclusive use of the family home and all the goods and furniture necessary to help in the rearing of the children. The court may require health and hospitalization insurance coverage as child support. Provisions for income withholding shall be included in every divorce decree to guarantee the support payments.

GRANDPARENT VISITATION

A grandparent of a child residing in this state may, by motion or petition make application to the circuit court of the county in which that child resides for an order granting visitation with his or her grandchild.

In making a determination on a motion or petition the court shall consider the following factors:

  1. The age of the child;
  2. The relationship between the child and the grandparent;
  3. The relationship between each of the child's parents or the person with whom the child is residing and the grandparent;
  4. The time which has elapsed since the child last had contact with the grandparent;
  5. The effect that such visitation will have on the relationship between the child and the child's parents or the person with whom the child is residing;
  6. If the parents are divorendif]>The good faith of the grandparent in filing the motion or petition;
  7. Any history of physical, emotional or sexual abuse or neglect being performed, procured, assisted or condoned by the grandparent;
  8. Whether the child has, in the past, resided with the grandparent for a significant period or periods of time, with or without the child's parent or parents;
  9. Whether the grandparent has, in the past, been a significant caretaker for the child, regardless of whether the child resided inside or outside of the grandparent's residence;
  10. The preference of the parents with regard to the requested visitation; and
  11. Any other factor relevant to the best interests of the child.