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Grounds for Divorce under West Virginia Divorce Laws
West Virginia Divorce Laws provide for numerous grounds for divorce, including two “no-fault” grounds:
- Irreconcilable differences.
- Spouses have been living separate and apart without cohabitation and without interruption for at least one year.
In addition to these, there are several other grounds for divorce in West Virginia. The following are grounds for divorce in which one spouse is at fault:
- Abandonment for 6 months
- Addiction to alcohol and/or drugs
- 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
- Willful neglect of a spouse or a child
- Habitual drunkenness
Residency Requirements/ Where to File
As with every state, under West Virginia divorce laws at least one of you must be a resident of the state in which the divorce is filed. In West Virginia, you must be a resident for at least one year immediately prior to filing for divorce.
However, if the marriage was performed in West Virginia and one spouse is a resident at the time of filing, there is no durational time limit (so if you got married in the State, then moved to another state, and have recently returned, you do not have to wait a year – or any amount of time – before filing for divorce).
When you are ready to file, it is important that you file in the right county. In West Virginia, you must file for divorce in the county where you both lived together, or in the county where the defendant (the person who is being served) lived. If that person no longer resides in West Virginia, then you may file for divorce in the county where you live.
Legal Separation under West Virginia Divorce Laws
The grounds for a legal separation in West Virginia are the same as those for a divorce (as listed above). One spouse must have been a resident of West Virginia for at least a year prior to filing for legal separation.
In the state of West Virginia, the court will set aside any property that was yours before the marriage as long as you have proof that the property is yours and yours alone. Any property that was given to you as a gift by someone besides your spouse, property that was inherited, or anything you owned prior to the marriage will remain yours. Shared property will be divided equally between the two of you by the court if you are unable to come to a mutual agreement.
If you cannot settle with your spouse, under the court will divide the property as equally as possible, giving consideration to the following factors:
- The contribution of each spouse to the acquisition of the marital property, including the contribution of each spouse as homemaker and in childcare;
- The value of each spouse’s separate property;
- The amount and sources of income of the spouses;
- The conduct of the spouses during the marriage only as it relates to the disposition of their property;
- The value of the labor performed in a family business or in the actual maintenance or improvement of tangible marital property;
- The contribution of one spouse toward the education or training of the other, which has increased the income-earning ability of the other spouse;
- 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
- Any other factors necessary to do equity and justice between the spouses.
Alimony in West Virginia
The court may award alimony payments to either spouse based on a number of factors. Alimony payments are usually awarded for a short period of time to allow the receiving spouse time to find work or to complete any necessary education or training in order to establish sufficient income to take care of him/herself.
When determining the amount of alimony to be awarded, the courts will consider the following factors:
- The duration of the marriage;
- The age of the spouse;
- The physical and emotional conditions of the spouses;
- The comparative financial resources of the spouses, including their comparative earning abilities in the labor market;
- The amount of time the spouses actually lived together as husband and wife;
- The tax consequences to each spouse;
- 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;
- 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;
- The vocational skills and employability of the spouse seeking alimony;
- Any custodial and child support responsibilities;
- The educational level of each spouse at the time of the marriage and at the time the action for divorce is commenced;
- The cost of education of minor children and of health care for each spouse and the minor children;
- The distribution of marital property;
- Any legal obligations of the spouses to support themselves or others;
- The present employment or other income of each spouse;
- Any other factor the court deems just and equitable.
The court will consider any marital misconduct of the spouses. Alimony may be reduced or may not be awarded at all in the case of adultery, conviction of a felony during the marriage, or desertion of one spouse for a period of six months. The court may also order one spouse to provide for health and/or hospitalization insurance coverage for then other.
If you are unable to come to an agreement with your spouse, the court will make the decision for you based on what they believe to be the best interest of the child or children under West Virginia divorce laws.
Before making a final decision, the courts may require both parents to attend mediation in order to settle your differences and be able to work together. In addition, you will be required to take a parenting course.
The court may decide to award child support to the custodial parent in order to help provide for the child until he or she reaches the age of majority. A child support order is determined by dividing the total child support obligation between the parents in proportion to their income. Both parents’ adjusted gross income is used to determine the amount of child support.
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 for the child.
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.
West Virginia’s laws 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 the court finds it unconscionable.
The court shall, upon request by either party, restore the party to his or her former name used prior to his or her first marriage. In the case of any living children from a previous marriage, either party may request that their name be changed to the name of the former spouse with which they have children.