Divorce in West Virginia

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  • Residency Requirements and Grounds for Divorce

  • Dividing the Property

  • Alimony

  • Child Custody and Visitation

  • Child Support

    Residency Requirements and Grounds for Divorce

    Either you or your spouse must be a resident of West Virginia for at least one year prior to filing for a divorce. However, if the marriage was entered into in West Virginia and either you or your spouse is a resident when filing for divorce, there is not a time requirement for residency. The legal process begins when the filing spouse files a complaint for divorce in the circuit court in any of the following:

    • The county in which both of you lived together, if nonfiling spouse is a resident
    • The county where nonfiling spouse lives, if nonfiling spouse is a resident
    • The county where you last lived together or the county where you live, if nonfiling spouse is a not a resident

    The court will grant you a divorce based on any of the following grounds:

    • Irreconcilable differences
    • Living separate and apart without cohabitation and without interruption for one year
    • Cruel or inhuman treatment
    • Adultery
    • Conviction of a felony
    • Permanent and incurable insanity
    • Habitual drunkenness or drug addiction
    • Desertion or abandonment for six months
    • Abuse or neglect of a child

    Dividing the Property

    In West Virginia, assets and debts acquired during your marriage - called "marital property" - will be divided "equitably" when you divorce, without regard to any marital misconduct. The equal division may be altered based on a consideration of the following factors:

    • The extent that each spouse contributed to the acquisition, preservation and maintenance or increase in value of marital property by monetary contributions
    • The extent that each spouse contributed to the acquisition, preservation and maintenance or increase in value of marital property by nonmonetary contributions
    • The extent that each spouse expended efforts that limited or decreased that spouse's income-earning ability or increased the income-earning ability of the other spouse
    • The extent that each spouse, during the marriage, conducted himself or herself so as to dissipate or depreciate the value of the marital property
    • The value of each spouse's separate property
    • The amount and sources of income of the spouses

    Separate property is retained by the owning spouse. Separate property includes the following:

    • Assets you had before you married if you kept that property separated from property acquired during the marriage
    • The income produced by a separate property investment as long as it hasn't been "commingled" - mixed together with marital property
    • Property you inherit from your family during your marriage if it was willed exclusively to you and you did not commingle it with marital property during the marriage

    An order distributing marital property may be modified if:

    • The property is still held by the spouses
    • The alteration of the prior order is necessary to give effect to a modification of spousal support, child support or child custody
    • The alteration of the prior order is necessary to avoid an inequitable or unjust result that would be caused by the manner in which the modification will affect the prior distribution of marital property

    It is important to collect all the information you can about all your property, including when you purchased it, approximately how much it is worth and details such as account numbers, serial numbers and so forth. Collecting this information before you see a West Virginia divorce lawyer can save you a lot of time and money.

    Alimony

    The court can order alimony to either party in West Virginia if the party seeking separate maintenance has grounds for divorce or if the party from whom separate maintenance is sought failed to provide support for the other spouse or abandoned the other spouse. In deciding whether to award alimony and the amount to award, the court will consider the following factors:

    • The length of the marriage
    • The period of time during the marriage that the spouses actually lived together as husband and wife
    • The present employment income and other recurring earnings of each spouse
    • The income-earning abilities of each spouse
    • The distribution of marital property insofar as the distribution affects or will affect the earnings of the spouses and their ability to pay or their need to receive spousal support or separate maintenance
    • The ages and physical, mental and emotional condition of each spouse
    • The educational qualifications of each spouse
    • Whether either spouse has foregone or postponed economic, education or employment opportunities during the course of the marriage
    • The standard of living established during the marriage
    • The likelihood that the party seeking spousal support or separate maintenance can substantially increase his or her income-earning abilities within a reasonable time by acquiring additional education or training
    • Any financial or other contribution made by either spouse to the education, training, vocational skills, career or earning capacity of the other party
    • The anticipated expense of obtaining education and training needed to substantially increase income-earning abilities
    • Costs of educating minor children
    • Costs of providing health care for each of the spouses and their minor children
    • Tax consequences to each spouse
    • Extent to which it would be inappropriate for a party to seek employment outside the home because that spouse will be the custodian of a minor child or children
    • Financial need of each spouse
    • Legal obligations of each spouse to support himself or herself and to support any other person
    • Costs and care associated with a minor or adult dependent's physical or mental disabilities
    • Any other relevant factors

    The court will consider and compare the fault or misconduct of either spouse or both spouses and the effect of the fault or misconduct as a contributing factor to the deterioration of the marital relationship.

    Child Custody and Visitation

    In West Virginia, the court may award child custody and decision-making responsibility to either or both parents. The award is based upon the best interest of the child. There is a preference for frequent and continuing contact with parents who have shown the ability to act in the best interest of their child. Also, there is a presumption in favor of the parent who has been the primary caretaker of the child prior to divorce. A noncustodial parent is usually granted visitation rights.

    Child Support

    In West Virginia, either parent or both parents may be required to provide periodic child support payments, which may include medical support. There are child support guidelines that are presumed to be correct. However, if the court finds that the guidelines are inappropriate in a specific case, the court may either disregard the guidelines or adjust the guidelines-based award to accommodate the needs of the child or the circumstances of the parents. The following factors may be possible reasons for a deviation:

    • Special needs of the child or support obligor, including the special needs of a minor or adult dependent who is physically or mentally disabled
    • Educational expenses for the child or the parent
    • Families with more than six children
    • Long distance visitation costs
    • The child resides with third party
    • The needs of another child or children to whom the obligor owes a duty of support
    • The extent to which the obligor's income depends on nonrecurring or nonguaranteed income
    • 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 and whether deviation from child support guidelines would reduce the income of the child's household to less than the federal poverty level

    The court may award the exclusive use and occupancy of the marital home to a parent. A child support order may be revised if the circumstances of the parents require a modification or if a revision would benefit the child.

    Related Web Links:
    - West Virginia Family Court Forms
    - West Virginia Domestic Relations
    - West Virginia Child Support Guidelines - Not available
    - West Virginia Bureau for Child Support Enforcement
    - West Virginia State Profile
    - Family Law: Selecting a Good Lawyer
    - Divorce - General message board for more help
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