West Virginia Divorce Information
and FAQ
This section contains guidelines based on selected divorce statutes
from West Virginia. Some may not be relevant to your case but are
presented here as a general overview. The selections set out below are not
intended to be an all-inclusive statement of statutes but rather contains
commentary based on some selected statutes.
Grounds for Divorce Grounds 1. and 2. are "no-fault" grounds.
This means the fault of one party in destroying the marriage is not at
issue.
1. Irreconcilable differences. 2. Spouses have been living separate and
apart without cohabitation and without interruption for 1 year.
There are several other recognized grounds for divorce in West
Virginia:
3. Adultery 4. Abandonment for 6 months 5. Addiction to alcohol and/or
drugs 6. Confinement for incurable insanity for 3 years 7. Physical abuse
or reasonable apprehension of physical abuse of a spouse or of a child 8.
Conviction of a felony 9. Cruel and inhuman treatment 10. Willful neglect
of a spouse or a child 11. Habitual drunkenness
Residency At least one of the spouses must have been a resident of West
Virginia for at least 1 year immediately prior to filing for divorce.
However, if the marriage was performed in West Virginia and one spouse is
a resident when filing there is no durational time limit. The case should
be filed in the county in which the spouses last lived together, or the
county where the defendant currently lives, or the county where the
plaintiff lives if the defendant is a non-resident. 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 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.
Property Division
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. 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.
The court may adjust the division of property based on 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; 8. Any other factor necessary to do equity and justice between the
spouses.
Spousal Support (or "Alimony") 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.
The factors the court will consider 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; 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; 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.
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