Residency Requirements and Grounds for Divorce
Either you or your spouse must be a West Virginia resident for one year before filing for divorce. However, if you were married there, and either your or your spouse are a resident when you file, there's no minimum residency time required. A divorce case begins when you or your 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
Grounds for divorce are:
- Irreconcilable differences
- Living separate and apart without cohabitation and without interruption for one year
- Cruel or inhuman treatment
- 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
Marital property, or the assets and debts acquired during your marriage, is divided "equitably" when you divorce. Marital misconduct isn't a factor. Equitable division doesn't always mean an equal division. Courts look at many factors in deciding property division issues, including:
- Contributions by each spouse to acquiring, maintaining and increasing the value of marital property
- Nonmonetary contributions to marital property
- The extent that each spouse affected the other spouse's income-earning ability
- The actions of each spouse during the marriage resulting in the dissipation or depreciation in value of 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 property you had before marriage, increases in value or income from separate property, and gifts and inheritances.
Be prepared with information on your property, including when you purchased it, an estimate of value, and details such as account numbers, serial numbers and so forth. You'll be ready to meet with a West Virginia divorce lawyer and it can save you a lot of time and money.
The court can order alimony to either spouse, and can consider fault or martial misconduct in making an award. In deciding spousal support issues, courts consider many factors, including:
- Marriage length
- Current employment and income of the spouses
- The income-earning abilities and education of each spouse
- The distribution of marital property as it relates to the need for support
- The ages and physical, mental and emotional condition 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 during the marriage
- Whether added education or training will likely increase the recipient spouse's earning ability within a reasonable time, and costs for the same
- Contributions by one spouse to the other's career and earning capacity
- Costs of educating minor children
- Health care costs for the recipient and the couple's minor children
- Tax consequences to each spouse
- Whether it is inappropriate for the recipient spouse to work outside the home due to custody and care of minor children
- Financial need of each spouse
- Other support obligations of each spouse
- Any other relevant factors
Child Custody and Visitation
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, and for a parenting plan providing frequent and continuing contact with both parents. 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.
If you and your spouse agree on a parenting plan, the court will approve it and order it, unless it's harmful to your child or it wasn't voluntary. The parenting plan details how parents make child-rearing decisions, and how you'll carry out parenting your child on a day-to-day basis. Modifications are based on the child's best interest and a change of circumstances, or showing you've been living with the changes as the status quo for six months or more.
If you've been denied court-ordered access to your child, you can seek help from the court. Relief could include make-up parenting time or even changing your parenting plan terms.
In West Virginia, either parent or both parents may be required to provide child support. The amount is based on state child support guidelines, and that amount is presumed to be correct.
A court can deviate from the guidelines, and must provide reasons for doing so. Factors in ordering child support outside the guidelines include:
- Special needs of the child or the paying parent, such as a child with disabilities
- Educational expenses for the child or the parent
- Families with more than six children
- Long distance visitation costs
- The child resides with third party
- Other support obligations of the paying parent
- The extent to which the obligor's income depends on nonrecurring or nonguaranteed income
- Ability of a parent to provide support, based on federal poverty guidelines
Modifications to a child support order are based on a change in circumstances. Examples include a change in a parent's income, or a change in the guidelines amount by 15 percent or more from the current support amount.
Questions for Your Attorney