West Virginia Divorce Law

Divorce and Legal Separation in West Virginia




Divorce and Legal Separation in West Virginia

West Virginia Divorce Basics

Divorce in West Virginia is referred to as Absolute Divorce.

Residency Requirement:

To file for divorce, if the marriage was entered into within West Virginia, one or both parties must be an actual bona fide resident of West Virginia at the time the action is commenced, regardless of the length of residency.

If the couple did not marry in the state, to file for divorce, one of the parties must be a bona fide resident at the time the cause of action arose, or has become one since that time and the residency must have continued uninterrupted through the one-year period immediately preceding the filing of the action.

To file for divorce on the grounds of adultery, one of the parties must be a bona fide resident at the commencement of the action. However, if the Respondent (non-filing party) is a nonresident and cannot be personally served within West Virginia, the Petitioner (filing party) must have been an actual bona fide resident for at least one year immediately preceding the commencement of the action.

Filing:

The West Virginia circuit courts and family courts have jurisdiction to grant a divorce for any grounds fixed by law in the state, without regard to the law of the place where the marriage occurred or where the marital offense was committed.

Either or both parties to a marriage may initiate an action for divorce.

If the Respondent is a resident of the state, the Petitioner has an option to file a Petition for Divorce in the county where the parties last cohabited or in the county where the Respondent resides. If the Respondent is not a resident, 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.

Spouse’s Name:

When the court orders a divorce, if requested to do so by either party, it shall allow that party to resume the name used prior to his her first marriage. In the case of where the party has been married before, if requested by either party, the court shall allow that party to resume the name of a former spouse, if that party has any living child(ren) by marriage to the former spouse.

Legal Grounds for Divorce

In West Virginia, a divorce may be granted for any of the following grounds.
      1. Irreconcilable differences;

      2. Voluntary separation, where the parties have lived separate and apart in separate places of abode without any cohabitation and without interruption for one year;

      3. Cruel or inhuman treatment by either party against the other, including reasonable apprehension of bodily harm, false accusation of adultery or homosexuality, or conduct or treatment which destroys or tends to destroy the mental or physical well-being, happiness and welfare of the other and render continued cohabitation unsafe or unendurable;

      4. Adultery;

      5. Either of the parties subsequent to the marriage, has been convicted of a felony and the conviction is final;

      6. Permanent and incurable insanity, if the party has been confined in a mental hospital or other similar institution for a period of not less than three consecutive years immediately preceding the filing of the complaint and the court has heard competent medical testimony that the insanity is permanently incurable;

      7. Habitual drunkenness of either party subsequent to the marriage;

      8. The addiction of either party, subsequent to the marriage, to the habitual use of any narcotic or dangerous drug;

      9. Willful abandonment or desertion for sis months; or

      10. Abuse or neglect of a child of the parties or one of the parties, meaning any physical or mental injury inflicted on the child and/or willful failure to provide, by party who has legal responsibility for the child, the necessary support, education as required by law, or medical, surgical or other care necessary for the well-being of the child.

A divorce may not be granted on the grounds of adultery if based on the uncorroborated testimony of a prostitute, or a known criminal or accomplice, nor when it appears that the parties voluntarily cohabited after the knowledge of the adultery, or that it occurred more than three years before the institution of the action.

No divorce may be granted when the offense charged has been condoned, or was committed by the procurement of connivance of the Plaintiff, or that the Plaintiff has, within three years before the institution of action, been guilty of adultery not condoned.

Annulment

The age of consent for marriage is 18 years of age. A person under the age of 18 lacks the capacity to contract a marriage, but may do so is he/she is at least 16 years of age and has obtained valid written consent from a parent or guardian.

If a party is under the age of 16, he/she may marry only with valid written consent from a parent or legal guardian and upon order of a circuit judge who has determined it is in the best interest of the minor to marry.

If a party to a marriage is under the age of consent and he/she has not obtained the necessary legal consent from a parent, guardian or court, the marriage is voidable, but it is valid until the marriage is actually annulled. Alternatively, the marriage may be ratified and may become completely valid and binding when the underage party reaches the age of consent. This ratification may include continued cohabitation as husband and wife after the age of consent is attained.

A man is prohibited from marrying his mother, grandmother, sister, daughter, granddaughter, half sister, aunt, brother’s daughter, sister’s daughter, first cousin or double cousin.

A woman is prohibited from marrying her father, grandfather, brother, son, grandson, half brother, uncle, brother’s son, sister’s son, first cousin or double cousin.

These prohibitions regarding relationships apply to both blood ties and those established by marriage. The relationship of cousin or double cousin does not apply when the relationship is created solely by adoption.

An action to annul or affirm a marriage may not be brought unless one of the parties is a resident of the state at the time the action is commenced. However, if neither party is a resident of the state, the action to annul may still be brought provided the marriage was performed in West Virginia and the parties have not established a matrimonial domicile elsewhere.

If the Respondent to an action for annulment or affirmation is a resident of the state, the Petitioner may bring the action in either the county where the parties last cohabited or in the county where the Respondent resides.

If the Respondent is not a resident, the Petitioner may bring the action in either the county where the parties last cohabited or in the county where the Petitioner resides.

If neither party is a resident of the state, the action must be brought in the county where the marriage was performed.

The following are voidable marriages and are void from the time they are so declared by a judgment order of nullity:
  • Bigamy;
  • Marriages prohibited by law due to blood relation or affinity between the parties;
  • Either party to the marriage was an insane person, idiot or imbecile;
  • Either party to the marriage was afflicted with a venereal disease;
  • Either party was incapable, because of natural or incurable impotency of the body, of entering into the marriage state;
  • Either party was under the age of consent, and had not obtained the necessary consent;
  • Either party had been, prior to the marriage and without the knowledge of the other party, convicted of an infamous offense;
  • A marriage solemnized when, at the time of the marriage, the wife, without the knowledge of the husband was with child by some person other than the husband;
  • The wife had been, prior to the marriage, notoriously a prostitute and the husband was not aware of this; or
  • A marriage solemnized when, prior to the marriage, the husband, without the knowledge of the wife, had been notoriously a licentious person.
An action for annulment may not be brought in the following cases:
  • Either party was naturally or incurably impotent of the body, but the other party had knowledge of the incapacity at the time of the marriage;
  • If the cause is fraud, force or coercion, but the injured party, after knowledge of the facts has by acts or conduct confirmed the marriage;
  • If the cause is affliction with a venereal disease existing at the time of marriage, the person may not bring the action if he/she has since been cured, and the non-afflicted person may not bring the action if after his/her spouse was cured, he/she has by acts or conduct confirmed the marriage;
  • If the cause is the nonage of either party, the underage party may not bring the action if he/she has by acts or conduct, confirmed the marriage after attaining the age of consent;
  • If the cause is the lack of consent by either party, the party who did consent or bring about the marriage may not bring the action;
  • If the cause is that either party has been convicted of an infamous offense prior to the marriage, if the injured party cohabited with the spouse after learning of the offence, he/she may not bring the action;
  • If the cause is that the wife was pregnant by someone other than the husband, or had been a prostitute, if the husband has cohabited with the wife after learning of the fact, he may not bring the action; or
  • If the cause is that the husband was notoriously a licentious person prior to the marriage, if the wife has cohabited with the husband after learning of the fact, she may not bring the action.

Property Division

Generally, upon every judgment of annulment, divorce or separation, the court shall divide the marital property of the parties equally between the parties.

If the parties have a separation agreement, the court will divide the marital property in accordance with this agreement, unless the court finds the following:
  • The agreement was obtained by fraud, duress or other unconscionable conduct by one of the parties;
  • That the parties, in the separation agreement, have not expressed themselves in terms which, if incorporated into a judicial order, would be enforceable by a court in future proceedings; or
  • That the agreement is so inequitable as to defeat the purpose of equitable and fair property distribution, and this agreement was inequitable at the time it was executed.
If there is agreement, the court presumes that all marital property shall be divided equally between the parties, but may alter this distribution, without regard to attribution of fault to either party, after consideration of the following factors.
  • The extent to which each party has contributed to the acquisition, preservation and maintenance, or increase in value of marital property by monetary contributions, including employment income and other earnings and funds which are separate property;
  • The extent to which each party has contributed to the acquisition, preservation and maintenance or increase in value of marital property by nonmonetary contributions, including homemaker services, child care services, labor performed without compensation or inadequate compensation in a family business or other business entity where the parties have an interest, labor performed in the actual maintenance or improvement of tangible marital property, labor performed in the management or investment of assets which are marital property;
  • The extent to which each party expended his/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, including direct or indirect contributions to the education or training of one party which has increased the income-earning ability of the party and whether either party has foregone employment or other income-earning activity through an understanding of the parties or the insistence of the other party; and
  • The extent to which each party, during the marriage, may have conducted himself/herself so as to dissipate or depreciate the value of the marital property of the parties.
After considering these factors, the court shall proceed with the following:
  • Determine the net value of all marital property of the parties;
  • Designate the property which constitutes marital property, and define the interest in this property to which each party is entitled, as well as the value of their respective interest in said property;
  • Designate the property which constitutes separate property of the respective parties or the separate property of their children;
  • Determine the extent to which marital property is susceptible to division in accordance with the findings of the court as to the respective interests of the parties;
  • In the case of any property which is not susceptible to division, ascertain the projected results of a sale of such property;
  • Ascertain the projected effect of a division or transfer of ownership of income-producing property, in terms of the possible pecuniary loss to the parties or other persons which may result from an impairment of the property’s capacity to generate earnings; and
  • Transfer title to the component parts of the marital property that may be necessary to achieve an equitable distribution of the marital property.

Spousal Support

Spousal support may only be ordered when the parties are actually living separate and apart from one another. It may be paid as a lump sum, as periodic installments, or both, for the maintenance of the other party. The family courts and circuit courts have jurisdiction to award this support.

Spousal support is divided into the following four classes:
      1. Permanent spousal support;

      2. Temporary spousal support, otherwise known as spousal support pendent lite;

      3. Rehabilitative spousal support; and

      4. Spousal support in gross.

Rehabilitative spousal support is to be awarded for a limited period of time to allow the recipient spouse to become gainfully employed, when she/he demonstrates the potential for self-support that could be developed through rehabilitation, training or academic study.

In determining whether spousal support is to be awarded, and if so, the amount, the court shall consider and compare the fault or misconduct of either or both of the parties and the effect of the fault or misconduct as a contributing factor to the deterioration of the marital relationship.

The court shall consider the following factors in determining the amount of spousal support, child support or separate maintenance, if any to be ordered, as a supplement to or in place of the separation agreement:
  • The length of the marriage;
  • The period of time during the marriage when the parties actually lived together as husband and wife;
  • The present employment income and other recurring earnings of each party from any source;
  • 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;
  • The distribution of marital property to be made under the terms of the separation agreement or by the court, with regards to how the distribution affects or will affect the earnings of the parties and their ability to pay or their need to receive spousal support, child support or separate maintenance;
  • The ages and the physical, mental and emotional condition of each party;
  • The educational qualifications of each party;
  • Whether either party 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, child support or separate maintenance can substantially increase his/her income-earning abilities within a reasonable time by acquiring additional education or training;
  • Any financial or other contribution made by either party to the education, training, vocational skills, career or earning capacity of the other party;
  • The anticipated expense of obtaining the education and training described above to increase the spouse’s income-earning abilities;
  • The costs of educating minor children;
  • The costs of providing health care for each of the parties and their minor children;
  • The tax consequences to each party;
  • The extent to which it would be inappropriate for a party, because that party will be the custodian of a minor child or children, to seek employment outside the home;
  • The financial need of each party;
  • The legal obligations of each party to support himself/herself and to support any other person;
  • Costs and care associated with a minor or adult child’s physical or mental disabilities; and
  • Any other factors that 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.

Child Custody and Support

Custody:

The state legislature finds and declares that it is the public policy of West Virginia to assure that the best interest of children is the court’s primary concern in allocating custodial and decision-making responsibilities between parents who do not live together.

It further declares that a child’s best interest will be served by assuring that the minor children have frequent and continuing contact with parent who have shown the ability to act in the best interest of their children, to educate parents on their rights and responsibilities and the effect their separation may have on children to encourage mediation of disputes and to encourage parents to share in the rights and responsibilities of rearing their children after the parent have separated or divorced.

The primary objectives for the best interests of the child are served by facilitating the following:
  • Stability of the child;
  • Parental planning and agreement about the child’s custodial arrangements and upbringing;
  • Continuity of existing parent-child attachments;
  • Meaningful contact between a child and each parent;
  • 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;
  • Security from exposure to physical or emotional harm; and
  • Expeditious, predictable decision-making and avoidance of prolonged uncertainty respecting arrangements for the child’s care and control.
Achieving fairness between the parents is a recognized secondary objective.

Unless otherwise resolved by agreement of the parents, or harmful to the child, the court shall allocate custodial responsibility so that the proportion of custodial time the child spends with each parent approximates the proportion of time each parent spent performing caretaking functions for the child prior to the parents’ separation.

Parenting Plans

Parents seeking an order for custodial responsibility or decision-making responsibility must file a proposed parenting plan with the court. Parents may file a joint plan. The plan should include the following, to the extent known or reasonably able to be determined:
  • Name, address and length of residence of any adults with whom the child has lived for one year or more, or for an infant under one year, any adults with whom the baby has lived since the baby’s birth;
  • Name and address of each of the child’s parents and any other individuals with standing to participate in the action;
  • A description of the allocation of care taking and other parenting responsibilities performed by each person named above during the 24 months preceding the filing of a divorce action;
  • A description of the work and child-care schedules of any persons seeking an allocation of custodial responsibility, and any expected changes to these schedules in the near future;
  • A description of the child’s school and extracurricular activities;
  • A description of any exiting limiting factors, including any restraining orders against either parent to prevent domestic or family violence, by case number and jurisdiction;
  • Required financial information; and
  • A description of the known areas of agreement and disagreement with any other parenting plan submitted in the case.
Parent Education Classes

The family court will require parties to an action for divorce involving a minor child to attend parent education classes (established pursuant to the related statutes) unless it determines that attendance is not appropriate or necessary based on the conduct or circumstances of the parties. The court may establish sanctions for failure to attend.

The family court may order that each party pay a fee to attend the classes, not to exceed a certain amount (currently, $25). However if a party is determined to be indigent and unable to pay, the court may waive the payment of the fee.

Support:

In every action to establish child support, the court shall ascertain the ability of each parent to provide medical care for the children of the parties. In any order establishing an award of child support, the court shall address the provision of medical support through one or more of the following methods:
  • Determine whether appropriate medical insurance coverage is available to either parent, and if so, shall order the applicable parent to enroll the child in that coverage;
  • If the court does not include the cost of the medical insurance in the child support calculation, it may order the other parent to contribute to the cost of the premium through an award of medical support.
If neither parent currently has access to appropriate medical insurance coverage, the court shall take the following actions:
  • Order the parties to provide appropriate medical insurance coverage if it becomes available in the future;
  • Order the payment of cash medical support by either or both parties, not to exceed 5% of the payor’s gross income;
  • It may consider the costs of uncovered medical expenses for the child, the relative percentages of the parties’ incomes or the cost to the government to provide medical coverage for the child; or
  • Set the cash medical support amount at zero if the support obligor’s Adjusted Gross Income (AGI) is less than 200% of the federal poverty level.
The court shall consider the same factors in determining the amount child support to be ordered, as those considered for awards of spousal support and separate maintenance.

West Virginia uses the Income Shares model to calculate child support obligations. The guidelines are structured so as to provide that after a consideration of respective parental incomes, child support will be related to the standard of living that children would enjoy if they were living in a household with both parents present. The state child support guidelines take into consideration the financial contributions of both parents.

A child support order is determined by dividing the total child support obligation between the parents in proportion to their income. The monthly AGI of both parents is used to determine the amount of child support to be ordered.

When determining the total child support obligation, the court shall add any unreimbursed child health care expenses, work-related child care expenses and other extraordinary expensed agreed to by the parents or ordered by the court to the basic child support obligation, and then subtract any extraordinary credits agreed to by the parents or ordered by the court. The Basic child support obligation table is presented in the West Virginia Code, and uses the parents combined gross monthly income and the number of children for whom child support is being determined.

If combined AGI is below the lowest amount of income on the table (currently $500), the basic child support obligation shall be set at $50 per month or a discretionary amount determined by the court based on the resources and living expenses of the parents and the number f children due support.

If combined AGI is above the highest amount of income on the table (currently $15,000), the basic child support obligation shall not be less than it would be based on a combined AGI of $15,000. The court may also use the following formula in this situation:

(1) One child - $1,338 + 0.088 x combined adjusted gross income above $15,000/month;
(2) Two children - $1,934 + 0.129 x combined adjusted gross income above $15,000/month;
(3) Three children - $2,276 + 0.153 x combined adjusted gross income above $15,000/month month;
(4) Four children - $2,515 + 0.169 x combined adjusted gross income above $15,000/month;
(5) Five children - $2,726 + 0.183 x combined adjusted gross income above $15,000/month; and
(6) Six children - $2,917 + 0.196 x combined adjusted gross income above $15,000/month.

For basic shared parenting cases, the total basic child support obligation is divided between the parents in proportion to their income. From this amount the payor’s direct expenditures of any items which were added to the basic child support obligation will be subtracted to arrive at the total child support obligation.

Child support payments may continue past the date the child reaches the age of 18, provided the child is unmarried and residing with a parent, guardian or custodian and is enrolled as a full-time student in a secondary educational or vocational program and making substantial progress towards a diploma, and the child has not reached the age of 20.

Statutory law will not repeal or modify existing case law regarding the eligibility of handicapped or disabled children to receive child support beyond the age of 18.

Legal Separation and Separate Maintenance

An action for separate maintenance may be brought in the family court of any county where an action for divorce between the parties could be brought. An action for separate maintenance may be brought whether a divorce is being sought or not.

Separate maintenance may be sought for the following grounds:
  • If the party seeking separate maintenance has grounds for divorce;
  • If the Respondent has failed to provide suitable support for the other spouse, or has abandoned or deserted the Petitioner.
In an action for separate maintenance, the court may order all or any portion of the temporary or final relief that the court may order in an action for divorce (except for divorce).

A property settlement or a separation agreement is a written agreement between the parties to a marriage in which they agree to live separate and apart from each other. A separation agreement may also address the following:
  • Property rights of the parties;
  • Child support;
  • Allocation of custodial responsibility and the determination of decision-making responsibility for the children of the parties;
  • Spousal support; and
  • Issues arising from the marital rights and obligations of the parties.
In cases where the parties to an action for separation have not executed a separation agreement or the agreement is incomplete, insufficient or not approved by the court, the court shall proceed to resolve the outstanding issues between the parties.

The court shall consider the same factors in determining the amount of separate maintenance, if any, to be ordered, as those considered for awards of spousal support and child support, as a supplement to or in place of a separation agreement.

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