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Laws & Courts:
West Virginia Law - state statutes, See Chapter 48, 48A, 48B and 48C for Domestic Relations and Child Support statutes WV Supreme Court - site includes opinions, calendar and docket information, court information and history, staff directory and law library.
Legal Divorce Information for Men in West Virginia Child Support
Child Support Profile - profile the state's child support laws. Easy to use table layout includes information on UIFSA, reciprocity, age of majority (emancipation), statute of limitations, income withholding,
paternity, support order establishment, support enforcement, modification and review/adjustment. From the the Federal Office of Child Support Enforcement's "Interstate Roster and Referral Guide." Bureau for Child Support Enforcement - site includes details on collection services child support news, collecting from parents in other states, and more. Critique of the West Virginia CS System - from
Roger F. Gay, James R. Johnston, and Hans R. Dutt, Project for the Improvement of Child Support Litigation Technology.
Additional Resources:
The State Bar - includes family court forms, court news and information, and legal research links, from the West Virginia State Bar. Children's Rights Council - national nonprofit organization based in Washington, DC that works to assure children meaningful and continuing contact with both their parents and extended family regardless of the parents' marital status.
Legal overview Divorce in West Virginia requires that you have been resident for at least 180 days. There are many "grounds" that are available to obtain a divorce in West Virginia, primarily is a "no-fault" divorce. Read our detailed legal summary of West Virginia including grounds, residency, child custody, child support, alimony, premarital agreements, property, and legal separation.
Residency
In order to file for divorce in West Virginia, it is important to note the residency requirements and be sure that you qualify to file for divorce. To petition the courts to grant a divorce at least 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 one spouse is a resident when filing, there is no durational time limit. Any motion for divorce should be filed in one of three places, either the county in which the spouses last lived together; or the county where the defendant currently lives so long as he or she is a resident of that county; or the county where the plaintiff lives, if the defendant is a non-resident.
Grounds
When seeking a divorce it is important to determine what ground or grounds provide the basis for you divorce. In West Virginia there are a number of distinct grounds. The easiest ground to meet is the no-fault ground which provides that the two spouses have irreconcilable differences. This can mean a multitude of things, but ultimately it means that there is no reasonable hope that the marriage can continue. Another common method to achieve a divorce is if the spouses have been living separate and apart without cohabitation and without interruption for 1 year.
In addition, there are several other methods of achieving the grounds for a divorce as required by West Virginia statutory law: adultery; abandonment for 6 months; alcoholism and/or drug addiction; confinement for incurable insanity for 3 years; physical abuse or reasonable apprehension of physical abuse of a spouse or of a child; conviction of a felony; cruel and inhuman treatment, including false accusations of adultery or homosexuality; willful neglect of a spouse or a child; and habitual intemperance (drunkenness). Depending on what ground of divorce you seek, your lawyer will need to choose separate courses of action. Therefore, it is important to have an idea on what grounds you will seek your divorce.
If one 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 "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 may be required to be filed.
Legal Separation
An option for parties who do not desire a final divorce is to obtain a legal separation as recognized by West Virginia law. The grounds for legal separation (separate maintenance) are the same as for divorce. One of the spouses must have been a resident of West Virginia for at least 1 year prior to filing for legal separation.
Counseling
In West Virginia there are no statutory provisions for divorce mediation or counseling, however, if a judge feels that mediation may help solve issues like property division, child custody, or even save the marriage, the judge has the authority to order the parties to seek counseling.
Property
West Virginia is an "equitable distribution" state, generally meaning that all marital property acquired during the marriage is subject to division. Property brought into the marriage or property that a person had before the marriage is not subject to division in a divorce. To prove that you had property that should be considered non-marital property you need to show that you either owned it before marriage, it was a gift to you from someone besides your spouse and was only meant for you, and that you inherited it. Some examples of non-marital property might include cars, boats, cabins, and farms. The court will determine what is non-marital property before proceeding with the case.
Marital property, on the other hand, will be divided in just proportions, most likely equally. Even if one spouse stayed home and cared for the house and the children, most courts will consider that an equal contribution to the relationship and thus that spouse will be awarded an equal share of the property. It is best for you and your spouse to agree on which spouse takes what piece of property, it simplifies the entire process. If settlement is unlikely, you will need to determine the value of each and every piece of property that you own. If you do not agree with your spouse on the values a court appointed appraiser will have to value the goods, and it is likely that they will appraise it at an amount lower than you would like. All debts acquired during marriage will be considered marital property and should be distributed likewise.
Even though West Virginia is an "equitable distribution" state and marital property is to be divided equally and without regard to any marital misconduct the equal division may be altered based on a consideration of the following factors: (1) the contribution of each spouse to the acquisition of the marital property, including the contribution of each spouse as homemaker and in child-care; (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 performed in a family business or in the actual maintenance or improvement of tangible marital property; (6) the contribution of one spouse toward the education or training of the other which 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. Expect your lawyer to discuss you specific situation with you and to determine what effect these factors may have on the division of the property.
Alimony
Alimony or spousal support may be awarded to either spouse for their support after the divorce. Alimony payments are designed to help with financial obligations of the receiving spouse and to maintain a similar lifestyle to that enjoyed during the marriage. The lifestyle can not remain exactly the same due to the paying spouse typically having to maintain two households for a period of time. Since a majority of spouses both work rewarding alimony is not extremely common although it does exist. Most of the time alimony is rewarded for a short period of time just to help the receiving spouse get on his or her feet again. This is known as rehabilitative alimony and can be used to finish a degree or get enough training so sufficient income can be earned on one's own accord.
There is no formula for the distribution of alimony, and it can go from husband to wife, as well as from wife to husband. The 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) the 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) the duration of the marriage; (4) the comparative financial resources of the spouses, including their comparative earning abilities in the labor market; (5) the amount of time the spouses actually lived together as wife and husband; (6) the tax consequences to each spouse; (7) the age of the spouses; (8) the physical and emotional conditions of the spouses; (9) the vocational skills and employability of the spouse seeking alimony; (10) any custodial and child support responsibilities; (11) the educational level of each spouse at the time of the marriage and at the time the action for divorce is commenced; (12) the cost of education of minor children and of health care for each spouse and the minor children; (13) the distribution of marital property; (14) any legal obligations of the spouses to support themselves or others; (15) the present employment or other income of each spouse; and (16) any other factor the court deems just and equitable.
The marital misconduct of the spouses will be considered and compared. Alimony may be reduced or may 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
Most parents agree about the custody, child support, and visitation issues relating to their children. Joint custody arrangements have become common place and in some states the "norm" in determining the care, custody and support of children. If the parents are unable to 'work it out', a judge will ultimately decide these issues for the parents. However, before a judge makes any final decision the parents will likely be sent to mandatory mediation to attempt to work out child custody and visitation between the two of them.
If a judge is forced to make custody decisions he or she will been to base the decision on genuine evidence, like medical opinions. The judge will also take into account history of child abuse and drug and alcohol addictions. Furthermore, the judge will consider and protective orders that have been issued to help determine what is in the best interest of the child. This is the ultimate factor that the court uses to determine the award of 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. There are no other factors for consideration specified in the statute. Furthermore, there is no specific statutory provision in West Virginia for joint custody.
Child Support
Child support is the amount that the court determines should be paid from the non-custodial parent to the custodial parent to help maintain the children until they reach age 18. Child support determinations can only be altered if there has been a substantial and significant change in the circumstances relating to the children.
Either parent may be required to provide periodic child support payments, including health insurance coverage. The following factors are specified in the statute are: (1) whether the spouse seeking support is the custodian of a child whose condition or circumstances make it appropriate for that spouse not to seek outside employment; (2) the 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) the duration of the marriage and the actual period of cohabitation as husband and wife; (4) the comparative financial resources of the spouses, including their comparative earning abilities in the labor market; (5) the needs and obligations of each spouse; (6) the tax consequences to each spouse; (7) the age of the spouses; (8) the physical and emotional conditions of the spouses; (9) the vocational skills and employability of the spouse seeking support and maintenance; (10) any custodial responsibilities; (11) the educational level of each spouse at the time of the marriage and at the time the action for divorce is commenced; (12) the cost of education of minor children and of health care for each spouse and the minor children; (13) the distribution of marital property; (14) any legal obligations of the spouses to support themselves or others; and (15) any other factor the court deems just and equitable.
In West Virginia one of the parents may also be granted exclusive use of the family home, and all of the goods and furniture necessary to help in the rearing of the children. The court may require many things including health and hospitalization insurance coverage as child support. Provisions for wage garnishment shall be included in every divorce decree to guarantee the support payments. Child support guidelines are available from the West Virginia Child Advocate Office. These guidelines are presumed to be correct, unless it is shown that the amount is unjust or inappropriate under the particular circumstances of a case.
Premarital Agreement
West Virginia's laws specifically allow the husband and wife to make contracts with each other and to be held liable for these contracts. The contract must be in writing and signed by the parties to be enforceable. The terms of the agreement are binding on the court unless if finds it unconscionable.
