Grounds for divorce
General divorce procedure
Mediation or counseling
Rights to Maiden Name / Name Change
A divorce from the bond of matrimony in the state of West Virginia may be granted on the following grounds:
The court may order a divorce if the complaint alleges that irreconcilable differences exist between the parties. (West Virginia Code - Sections 48-5-201)
- Voluntary separation. On the application of either party if and when the husband and wife have lived separate and apart without any cohabitation and without interruption for one year.
- Acts of cruelty that endanger one of the spouses or children; False accusation of adultery or homosexuality; conduct that destroys or tends to destroy the mental of physical well-being, happiness and welfare of the other and renders cohabitation unsafe. Please note that it is not necessary to allege of prove acts of physical violence in order to establish cruel and inhumane treatment.
- Permanent and incurable insanity. A divorce may be ordered for permanent and incurable insanity, only if the person is permanently and incurably insane and has been confined in a mental hospital or other similar institution for a period of not less than three consecutive years next preceding the filing of the complaint and the court has heard competent medical testimony that such insanity is permanently incurable.
- Where either of the parties subsequent to the marriage has been convicted of a crime and sentenced to confinement for more than one year and confined for such felony subsequent to such conviction, and cohabitation has not been resumed after knowledge of such confinement (in which case no pardon granted to the party so sentenced shall restore such party to his or her conjugal rights;
- Habitual drunkenness or drug addiction;
- Abuse or neglect of a child ("abuse" meaning any physical or mental injury inflicted on such child including, but not limited to, sexual molestation; and "neglect" is willful failure to provide, by a party who has legal responsibility for such child, the necessary support, education as required by law, or medical, surgical or other care necessary for the well-being of such child.)
(West Virginia Code - Sections 48-5-202 through 48-5-209)
What is the difference between fault divorce and no-fault divorce?
You may file for divorce in West Virginia if either spouse have lived in West Virginia for at least one year before the divorce is filed; OR, you now live in WV and you and your spouse were married in West Virginia.
The parties to a divorce proceeding are Petitioner and Respondent. If the respondent in an action for divorce is a resident of the State of WV, the petitioner has an option to bring the action in the county in which the parties last cohabited or in the county where the respondent resides.
If the respondent in an action for divorce is not a resident of this state, the petitioner has an option to bring the action in the county in which the parties last cohabited or in the county where the petitioner resides. (West Virginia Code - Sections: 48-5-106)
West Virginia is an Equitable Distribution state, meaning that if parties cannot agree on property distribution a judge will divide marital property as he/she sees just.
Among the factors taken into consideration by the judge determining division of property are:
- The age and health of each spouse.
- The length of the marriage.
- The income and assets of each spouse at the time of the marriage and at the time of the separation or divorce; the contributions of each party to the well-being of the family.
- The tax consequences to each party.
- If there are children, whether the custodial parent needs the family home and its furnishings after the divorce.
- The likely financial outlook for each spouse after the divorce.
Marital property is all property titled in the names of both parties, whether as joint tenants, tenants by the entirety or otherwise, except as provided by subdivision A 3,
(ii) that part of any property classified as marital pursuant to subdivision A 3, or
(iii) all other property acquired by each party during the marriage which is not separate property as defined above. All property including that portion of pensions, profit-sharing or
deferred compensation or retirement plans of whatever nature, acquired by either spouse during the marriage, and before the last separation of the parties, if at such time or thereafter at
least one of the parties intends that the separation be permanent, is presumed to be marital property in the absence of satisfactory evidence that it is separate property. For purposes of this
section marital property is presumed to be jointly owned unless there is a deed, title or other clear indicia that it is not jointly owned. (West Virginia Code - Sections: 48-5-609)
Court may restore to either party his or her property.
Upon ordering a divorce, the court has the power to award to either of the parties whatever of his or her property, real or personal, may be in the possession, or under the control,
or in the name, of the other, and to compel a transfer or conveyance.
In determining custody, the court shall give primary consideration to the best interests of the child. Therefore, child custody will be granted to a parent (or parents in joint custody) that can provide the best care for the children under given circumstances.
“Custodial parent" or "custodial parent of a child" means a parent who has been granted custody of a child by a court of competent jurisdiction. "Noncustodial parent" means a parent of a child with respect to whom custody has been adjudicated with the result that such parent has not been granted custody of the child. (West Virginia Code - Sections 48-1-218)
"Joint custody" means joint legal custody where both parents retain joint responsibility for the care and control of the child and joint authority to make decisions concerning the child even though the child's primary residence may be with only one parent, OR, b) joint physical custody where both parents share physical and custodial care of the child, or c) any combination of joint legal and joint physical custody which the court deems to be in the best interest of the child.
"Sole custody" means that one person retains responsibility for the care and control of a child and has primary authority to make decisions concerning the child.
Determining child custody issue courts will consider a combination of factors, such as age of parents, children’s wishes, health of parents, financial stability and earning capacity of each parent, etc.
Spousal support is divided into four classes which are:
- Permanent spousal support;
- temporary spousal support, otherwise known as spousal support pendente lite;
- rehabilitative spousal support; and
- spousal support in gross.
An award of spousal support cannot be ordered unless the parties are actually living separate and apart from each other. (West Virginia Code - Sections 48-8-101)
In determining the nature, amount and duration of an award the court shall consider the following:
- The obligations, needs and financial resources of the parties, including but not limited to income from all pension, profit sharing or retirement plans, of whatever nature;
- The standard of living established during the marriage;
- The duration of the marriage;
- The age and physical and mental condition of the parties and any special circumstances of the family;
- The extent to which the age, physical or mental condition or special circumstances of any child of the parties would make it appropriate that a party not seek employment outside of the home;
- The contributions, monetary and nonmonetary, of each party to the well-being of the family; 7. The property interests of the parties, both real and personal, tangible and intangible;
- The earning capacity, including the skills, education and training of the parties and the present employment opportunities for persons possessing such earning capacity;
- The opportunity for, ability of, and the time and costs involved for a party to acquire the appropriate education, training and employment to obtain the skills needed to enhance his or her earning ability;
- The decisions regarding employment, career, economics, education and parenting arrangements made by the parties during the marriage and their effect on present and future earning potential, including the length of time one or both of the parties have been absent from the job market;
- The extent to which either party has contributed to the attainment of education, training, career position or profession of the other party; and
- Such other factors, including the tax consequences to each party, as are necessary to consider the equities between the parties.
Mediation is vigorously encouraged by West Virginia courts because mediation calls to help spouses to reach an agreement on child custody and parenting arrangements, marital property distribution, pension division and maintenance.
The wife’s maiden name may be restored by court upon request. Upon request a former name of either spouse may be restored. (West Virginia Code - Sections 48-5-613)