West Virginia LGBT Divorce

Same-sex couples in West Virginia have enjoyed full marriage equality since October 2014, when the state began recognizing same-sex marriage following federal court rulings. The landmark Supreme Court decision in Obergefell v. Hodges (2015) cemented marriage rights for LGBT couples throughout the United States. With marriage rights come divorce rights, and West Virginia LGBT divorce follows the same legal procedures as opposite-sex divorces while presenting unique challenges that same-sex couples must understand to protect their rights and their families.

West Virginia law treats same-sex couples identically to opposite-sex couples in family law matters. Circuit court and family court judges apply the same standards for property division, spousal support, child custody, and child support regardless of the couple's gender. However, LGBT couples face distinct issues arising from years spent together before marriage became legal, questions about parental rights for non-biological parents, and potential complications in calculating marital property when couples lived as committed partners long before they could legally marry.

When Did Same-Sex Marriage Become Legal in West Virginia?

Same-sex marriage became legal in West Virginia on October 9, 2014. Attorney General Patrick Morrisey announced the state would no longer defend West Virginia's same-sex marriage ban in court, and Governor Earl Ray Tomblin directed all state agencies to comply with federal court rulings declaring the ban unconstitutional. The U.S. District Court for the Southern District of West Virginia officially ruled the state's ban unconstitutional on November 7, 2014.

Before 2014, same-sex couples in West Virginia could not legally marry within the state. Some traveled to other states where same-sex marriage was legal to marry, though West Virginia did not recognize those marriages until October 2014. The 2015 Supreme Court decision in Obergefell v. Hodges guaranteed marriage equality nationwide, ensuring same-sex couples could marry in any state.

Key Marriage Equality Timeline

• October 9, 2014  - West Virginia begins recognizing same-sex marriage
• November 7, 2014  - U.S. District Court officially rules state ban unconstitutional
• June 26, 2015  - Supreme Court guarantees nationwide marriage equality in Obergefell v. Hodges

This relatively recent legalization creates unique challenges in West Virginia LGBT divorce. Many same-sex couples lived together for years or decades before they could legally marry. Courts must determine how to treat those premarital years when dividing property and awarding spousal support.

Are Divorce Procedures Different for LGBT Couples?

West Virginia LGBT divorce follows identical procedures to opposite-sex divorce. Same-sex couples must meet the same residency requirements, file petitions with the circuit court using the same grounds for divorce, and proceed through family law proceedings under the same rules governing all marriages.

West Virginia requires one spouse to have been a state resident for at least one year before filing for divorce (or a shorter period if the marriage occurred in West Virginia or if certain grounds for divorce arose in-state). LGBT couples must satisfy these residency requirements just like any other married couple.

Available Grounds for Divorce

Most LGBT couples file no-fault divorces based on irreconcilable differences (requiring both spouses' written agreement) or voluntary separation for one continuous year. Fault-based grounds apply equally to same-sex marriages.

What About Property Division in LGBT Divorce?

West Virginia follows equitable distribution for dividing marital property in divorce. The court presumes marital property should be divided equally but can adjust distribution based on factors including each spouse's monetary and non-monetary contributions, efforts that limited or increased earning ability, and dissipation of marital assets.

The critical issue for West Virginia LGBT divorce is defining what constitutes marital property. Under West Virginia law, marital property includes all assets and earnings acquired during the marriage. Separate property includes assets owned before marriage, inherited during marriage, or acquired after separation.

Marital Property (Subject to Division)

• Assets and earnings acquired during legal marriage
• Increase in value of separate property due to marital efforts or funds
• Employment income earned during marriage
• Retirement account contributions during marriage
• Real estate purchased during marriage

Separate Property (Not Divided)

• Assets owned before legal marriage began
• Inheritances or gifts received by one spouse
• Property acquired after separation
• Assets acquired before marriage equality (potentially)

For same-sex couples who lived together for many years before marriage became legal in 2014, this creates potential unfairness. If a couple lived together sharing finances for 20 years but only legally married in 2015, West Virginia courts might only consider assets acquired during the legal marriage (starting in 2015) as marital property subject to division.

How Does Spousal Support Work for Same-Sex Couples?

West Virginia courts may award spousal support to either spouse in LGBT divorce based on statutory factors. The court examines the entire financial picture of both spouses to determine whether support is appropriate and in what amount.

Spousal Support Factors

• Length of the legal marriage
• Standard of living established during marriage
• Each spouse's income, assets, and earning capacity
• Age, physical condition, and emotional condition of each spouse
• Educational qualifications and employability
• Whether either spouse sacrificed career opportunities during the marriage
• Contributions to the other spouse's education or career advancement
• The financial needs of each party

The challenge for same-sex couples involves how courts treat years spent together before legal marriage. If you lived with your partner for 15 years before marrying in 2015 and divorcing in 2026, should courts consider an 11-year marriage or a 26-year relationship when determining spousal support?

West Virginia law generally defines marriage length based on the legal marriage period. However, some judges may consider premarital cohabitation when evaluating spousal support factors. Courts have discretion to consider any circumstances relevant to fair spousal support awards, which could include years couples spent in committed relationships before marriage equality.

What Parental Rights Issues Arise in LGBT Divorce?

Child custody and child support present particularly complex issues in West Virginia LGBT divorce. When a child born during a same-sex marriage has one biological parent and one non-biological parent, courts must determine both parents' legal rights.

Establishing Legal Parentage

West Virginia recognizes a rebuttable presumption that married spouses are legal parents of children born or conceived during the marriage. Following the Supreme Court's decision in Pavan v. Smith (2017), this presumption applies to same-sex couples. If a child born during a same-sex marriage through assisted reproduction, both spouses are presumed legal parents regardless of biological connection.

However, the strongest protection for non-biological parents in same-sex relationships is completing a second-parent adoption. This legal process establishes the non-biological parent as a legal parent with full parental rights equal to the biological parent. Without adoption, non-biological parents may face challenges asserting custody or visitation rights if the biological parent contests their parental status.

How Is Child Support Calculated?

West Virginia calculates child support using income shares guidelines based on both parents' combined adjusted gross income and the number of children. Same-sex couples follow the same child support calculation methods as opposite-sex couples.

Child Support Calculation Steps

1. Determine each parent's gross income
2. Calculate the combined adjusted gross income
3. Determine basic child support obligation from state guidelines
4. Add unreimbursed health care expenses exceeding $250 per year per child
5. Add work-related child care costs
6. Apportion the total obligation between parents based on income percentages

For LGBT couples, child support calculations function identically to those for opposite-sex couples. Both legal parents owe child support obligations regardless of biological connection. If both spouses are legal parents (through biological relationship, marital presumption, or adoption), both have child support obligations based on their incomes.

The non-custodial parent typically pays child support to the custodial parent. Courts determine custody arrangements based on the child's best interests, considering factors like each parent's caretaking history, the child's relationship with each parent, and each parent's ability to provide stable care.

What Unique Challenges Do LGBT Couples Face?

Beyond the legal issues common to all divorces, West Virginia LGBT divorce presents unique emotional and practical challenges that require understanding and preparation.

Common LGBT-Specific Divorce Challenges

Legal Challenges

• Premarital asset division uncertainties
• Non-biological parent rights without adoption
• Limited case law specific to same-sex divorce issues
• Varying judicial familiarity with LGBT family law

Social Challenges

• Family rejection or lack of support during divorce
• Limited LGBT divorce support networks
• Potential discrimination in conservative communities
• Privacy concerns about public court proceedings

Practical Challenges

• Finding experienced LGBT-affirming family law attorneys
• Navigating community property accumulated before marriage equality
• Documenting cohabitation and shared finances pre-marriage
• Protecting relationships with children when not the biological parent

The relatively recent nature of marriage equality means many same-sex couples lack examples from parents or older generations who navigated similar divorces. Support networks may be less developed for LGBT individuals going through divorce compared to heterosexual divorcees.

Privacy concerns can be heightened for LGBT couples, particularly in more conservative areas of West Virginia where same-sex relationships still face social stigma. Court proceedings are generally public, potentially exposing personal information about relationships and families.

What Documentation Helps LGBT Divorce Cases?

Because of unique challenges around premarital cohabitation and property accumulation before marriage equality, documentation becomes critical in West Virginia LGBT divorce.

Essential Documentation to Gather

• Joint bank account statements showing shared finances before marriage
• Mortgage or lease agreements showing cohabitation
• Joint tax returns filed before legal marriage (if applicable)
• Evidence of financial interdependence during premarital years
• Communications discussing shared financial goals and assets
• Receipts and records of joint purchases
• Birth certificates and adoption papers for children
• Assisted reproduction agreements or donor contracts
• Evidence of each partner's caretaking role with children

This documentation helps courts understand the full scope of your relationship and partnership, potentially influencing decisions about property division and spousal support even when legal marriage began only in 2014 or later.

How Do West Virginia Courts Determine Child Custody?

West Virginia courts determine child custody based on the child's best interests, applying the same standards to LGBT couples as to opposite-sex couples. The state presumes shared custody with equal parenting time is in children's best interests unless evidence shows otherwise.

Best Interest Factors

• Caretaking functions each parent historically performed
• Each parent's ability to meet the child's physical and emotional needs
• The child's relationship and attachment to each parent
• Each parent's willingness to support the child's relationship with the other parent
• Any history of family violence or abuse
• The child's adjustment to home, school, and community
• Each parent's mental and physical health
• The child's reasonable preference (if age-appropriate)

For LGBT couples, courts cannot discriminate based on sexual orientation or gender identity. A parent's LGBT status is not a negative factor in custody determinations. Courts must focus on parenting ability, caretaking history, and the parent-child relationship.

If you are the non-biological parent, establishing your legal parental status through adoption before divorce becomes crucial. Without legal parent status, you may struggle to obtain custody or even visitation rights.

Moving Forward with West Virginia LGBT Divorce

West Virginia LGBT divorce follows the same legal framework as opposite-sex divorce, with circuit court jurisdiction, equitable distribution of marital property, potential spousal support awards, and child custody determinations based on children's best interests. Same-sex couples have full access to West Virginia's family law system with the same rights as any married couple seeking to end their marriage.

However, the relatively recent recognition of same-sex marriage creates unique challenges requiring careful navigation. From property division questions arising when couples lived together for years before marriage became legal, to parental rights concerns for non-biological parents who haven't completed second-parent adoptions, LGBT couples must address issues that don't typically affect opposite-sex divorces.