West Virginia law gives you two ways to file for divorce without blaming your spouse for anything. These are called no-fault grounds.
Irreconcilable differences means you and your spouse don't get along anymore and can't fix the problems. There's no hope for saving the marriage. The catch? Both of you must agree in writing that irreconcilable differences exist. You state this in your petition for divorce, and your spouse must admit it in their written answer. If your spouse won't agree, you can't use this ground.
Voluntary separation requires living separate and apart for one continuous year without any cohabitation. This means living in different homes and not acting like a married couple for the entire year. Even if you got back together for a short time, that breaks the separation and you have to start the year over. Unlike irreconcilable differences, you can use separation as grounds even if your spouse disagrees, but you need a witness besides yourself to prove the separation happened.
Fault-Based Grounds for Divorce
Sometimes you want the divorce based on what your spouse did wrong. West Virginia code recognizes several fault-based grounds.
- Cruel or inhuman treatment covers a lot of ground. You don't need to prove physical abuse. This ground includes behavior making you reasonably afraid of getting hurt, conduct destroying your mental or physical well-being and making marriage unsafe or unbearable, and false accusations of adultery or homosexuality against you. The court looks at whether continuing the marriage would be unsafe for you.
- Adultery means your spouse voluntarily had sex with someone else during the marriage. You need "clear and convincing evidence", which is a high standard requiring strong proof, not just your word. You also need corroboration, meaning evidence from someone other than yourself.
- Conviction of a felony works as grounds when your spouse was convicted of any felony in any state after you married, and that conviction is final. The crime and conviction must happen during the marriage.
- Permanent and incurable insanity requires proving your spouse has been confined to a mental hospital or similar institution for at least three consecutive years before filing, and a medical professional must testify that the insanity is permanently incurable.
- Habitual drunkenness or drug addiction means your spouse regularly drinks alcohol or uses drugs and can't stop. This has to happen during the marriage, and you need to show it's a habit, not occasional use.
- Desertion means your spouse left home for at least six months against your will, you genuinely tried to get them to return, and they refused. This is sometimes called abandonment. You need a witness besides yourself to prove the desertion.
- Abuse or neglect of a child covers physical, mental, or sexual abuse of your child, stepchild, or any child in your household. Neglect means failing to provide necessary support, education, medical care, or other care despite having legal responsibility. You need "clear and convincing evidence," and your word alone rarely suffices.
What Are West Virginia's Residency Requirements?
Before you can file for divorce in West Virginia, someone needs to meet residency requirements. The rules depend on where you got married.
- If you were married in West Virginia , either spouse who lives in the state can file for divorce with no minimum time requirement. Just living in West Virginia when you file works.
- If you were married in another state , you or your spouse must have been a West Virginia resident for at least one year before filing the divorce petition.
- Special rule for adultery divorces : If you're filing based on adultery and your spouse lives out of state, you must have lived in West Virginia for at least one year before filing.
Where to File Your Divorce Papers
Once you meet residency requirements, you file in a specific county's circuit court. West Virginia law gives you choices.
- If your spouse lives in West Virginia , file in the county where you last lived together as husband and wife, or the county where your spouse currently lives.
- If your spouse doesn't live in West Virginia , file in the county where you last lived together as husband and wife, or the county where you currently live.
How Does the Divorce Process Work?
The divorce process starts when you file a petition for divorce with the circuit court clerk. This document explains why the court should grant your divorce and covers issues like property division, spousal support, and if you have kids, custody and child support.
You need several document,s including the divorce petition, petitioner's civil case information statement (three copies), financial statement showing assets, debts, and income, and a vital statistics form reporting births, deaths, marriages, and divorces related to your case. If you have children, you also need a child support application, a proposed parenting plan, and a parent education notice.
The West Virginia Judiciary website provides all these divorce forms for free download. Fill them out completely and accurately. Bring the originals and at least two copies to the circuit court clerk's office.
Filing Fees
You pay $135 to file divorce papers in West Virginia as of 2023. If you can't afford this fee, you can request a fee waiver by completing additional paperwork showing your financial situation. If approved, you won't pay filing fees or other court costs.
Serving Your Spouse with Divorce Papers
After filing, your spouse must receive official notice and copies of all your divorce papers. You can't just hand them the papers yourself. West Virginia law requires specific service methods.
- Acceptance of service works if your spouse agrees to sign a notarized acceptance form. You give them the papers, they sign the form, and you file it with the court.
- Personal service means having another adult hand-deliver the papers. The easiest way is to ask the clerk to arrange a sheriff service for an additional $25. If someone else does it, they must complete an affidavit swearing they served the papers.
- Service by mail lets you ask the clerk to mail the paperwork by certified mail for $20 extra. You can't mail documents yourself.
- Service by publication applies when you don't know where your spouse is, or if your spouse lives out of state and refuses certified mail. You need court permission to publish a notice in an approved newspaper.
What's the Difference Between Contested and Uncontested Divorce?
An uncontested divorce means you and your spouse agree on everything, property division, spousal support (if any), and if you have kids, custody and child support. You submit your complete marital settlement agreement to the judge for approval.
Uncontested divorces move faster and cost less. If the judge approves your agreement, they issue the final divorce decree adopting it as a court order. Often, your first hearing can be your final hearing when everything's agreed.
Even in uncontested cases, both spouses with minor children must complete a parent education class covering topics like creating parenting plans, mediation, divorce effects on children, domestic violence impacts, and available resources. This might delay your final hearing slightly.
Contested Divorce
A contested divorce means you disagree about at least one issue. These cases take much longer, sometimes months or years, and cost more because they involve multiple hearings and possibly a trial.
Common disputed issues include marital property versus separate property, equitable distribution of assets and debts, spousal support amounts and duration, child custody arrangements, child support calculations, and parenting plan details.
Your lawyer will try negotiating a settlement with your spouse's attorney while the case proceeds. If settlement isn't possible, you go to trial. Both sides present evidence and arguments to the judge, who makes final decisions on all contested issues.
How Does West Virginia Divide Property?
West Virginia courts must first classify all property as either marital or separate before dividing anything.
- Marital property includes assets either spouse acquired during the marriage. This covers the house, cars, bank accounts, retirement accounts, businesses, and other property obtained from the wedding day until separation, regardless of whose name is on the title.
- Separate property means assets you owned before marriage, property you received as a gift or inheritance specifically to you during marriage, and property you bought during marriage in exchange for separate property. Separate property stays with whoever owns it and doesn't get divided.
Equitable Distribution
West Virginia is an equitable distribution state. This means the court divides marital property fairly based on the circumstances, not automatically 50/50. The division must be fair to both people considering all the facts, but it doesn't have to be equal.
The court considers how long you were married, each person's contribution to acquiring property (both financial contributions and nonfinancial contributions like homemaking), each person's income and earning ability, the value of separate property each person keeps, and any other factors the court finds relevant for a fair division.
Can You Get Spousal Support?
Spousal support (also called alimony) is financial support one spouse pays the other. In West Virginia, you can only receive spousal support if you and your spouse don't live together.
Support might come from a prenuptial agreement you signed before marriage, terms of a separation agreement you negotiated, or a court order the judge issues during divorce proceedings.
How Judges Decide Spousal Support
Unlike many states, West Virginia doesn't have a set formula for calculating spousal support. The amount and duration are mostly up to the judge's discretion. The only factor judges must consider by law is fault or misconduct, whether either spouse did anything contributing to the marriage ending.
Common factors judges consider include marriage length (longer marriages make support more likely), income difference between spouses (bigger gaps make support more likely), and each person's age, education, and future earning ability.
How Does Child Custody Work?
West Virginia courts decide child custody based on what's best for the children. The law doesn't presume children are better off with mom or dad, each parent starts onan equal footing.
Since 2022, West Virginia law presumes shared custody and equal parenting time works best unless evidence shows otherwise. You can overcome this presumption by proving that equal time wouldn't be safe (like in domestic violence situations) or wouldn't serve the children's best interests for other reasons.
Parenting Plans Required
Parents with minor children must submit a parenting plan. This document spells out custody arrangements, visitation schedules, how you'll make decisions about the children, how you'll handle holidays and vacations, and other important parenting issues.
Courts prefer when parents create their own parenting plans through agreement. If you can't agree, the judge will impose a parenting plan after hearing evidence about what serves the children's best interests.
How Does Child Support Work?
West Virginia uses guidelines to calculate child support based on both parents' incomes and the number of children. The state follows an income shares model, recognizingthat children should receive the same proportion of parental income they would have gotten if the family stayed together.
Both parents' gross incomes are combined, and child support is calculated based on this total and how many children you have. Each parent's share then gets determined by their percentage of the combined income. The parent with less custody time typically pays their share to the other parent.
Forms and Applications
All divorces involving minor children or spousal support require filing a Bureau for Child Support Enforcement Application and Income Withholding Form. This sets up income withholding so child support comes directly from paychecks when appropriate.
What Are Common Divorce Myths?
Some angry spouses wrongfully accuse the other of fault-based grounds to hurt their feelings or gain an advantage. This happens most with accusations of adultery, abuse, or other serious grounds.
Family court judges usually see through false accusations. But if the judge can't tell that accusations are false, it won't help the divorce process, it actually hurts everyone involved, especially children. Making false accusations can damage your credibility with the court.
The One-Year Myth
People sometimes think you must be separated for a year before filing for divorce. That's not quite right. You can file for divorce in West Virginia based on several grounds immediately, like adultery, cruelty, or desertion.
The one-year separation requirement only applies if you're using voluntary separation as your grounds for divorce. You must complete the year of separation before the court will grant the divorce on that ground, but other grounds allow you to file right away.
What Temporary Orders Can You Get?
Divorce takes time. You might need court orders addressing immediate issues while waiting for the final decree. You can file a motion for temporary relief anytime after filing the divorce petition.
The judge holds a hearing with both parties present and can order temporary spousal support as periodic payments, lump sum, or both; temporary parenting arrangements including a temporary parenting plan; temporary child support and medical support; attorney fees and court costs reasonably necessary for either party; orders continuing existing health insurance or paying for new coverage; exclusive use of the marital home and household goods; exclusive use of vehicles; payments to third parties for mortgages, rent, utilities, taxes, insurance, and car payments; protections for the estate of either party; and emergency protective orders for domestic abuse situations.
These temporary orders stay in effect until the judge issues the final divorce decree with permanent orders.
How Long Does a West Virginia Divorce Take?
How long your divorce takes depends mainly on whether it's contested or uncontested.
- Uncontested divorces where you agree on everything can be finalized in as little as one to three months after meeting any required separation period and completing parent education classes if you have kids.
- Contested divorces take much longer, typically 12 to 24 months, sometimes more. The timeline depends on court schedules, how many issues you're fighting about, whether you need discovery and depositions, and if anyone appeals the final decision.
- Fault-based divorces often take longer than no-fault divorces because you must prove fault through evidence and testimony. But they let you file immediately without waiting for a separation period.
Court Scheduling
West Virginia courts won't usually set a first hearing until at least 30 days after filing. If you have minor children, both parents must complete the required parent education class before the final hearing, which can add time.
The more you and your spouse can agree on, the faster your divorce proceeds. Every contested issue adds time and expense.
Can You Change Divorce Orders Later?
Once your divorce is final, you can still modify certain parts if circumstances change significantly. You need to file a motion to modify with valid reasons explaining why changes are necessary.
Child custody and child support orders can be modified when there's a substantial change in circumstances affecting the children's best interests or either parent's financial situation.
Spousal support might be modifiable depending on how the original order was written. Some spousal support orders specifically state they can or can't be modified.
Property division typically can't be changed after the divorce is final. Once the court divides assets and debts, that's permanent except in very limited circumstances like fraud.
Should You Try Divorce Mediation?
Mediation lets you and your spouse work out divorce terms with a neutral mediator's help instead of fighting in court. Many West Virginia couples find mediation works well.
Advantages include lower cost than litigation, faster resolution than court battles, more privacy than public court proceedings, more control over outcomes since you decide instead of a judge, reduced conflict benefiting everyone especially children, and better future cooperation since you learned to work together.
Mediation works best when both spouses genuinely want to reach agreement and you can communicate without fear or intimidation. It doesn't work well in domestic violence situations or when one spouse hides assets or won't negotiate honestly.