West Virginia Divorce Law
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Divorce Residency Essentials to Get Divorce in West Virginia
One of the spouses must have been a resident of West Virginia for at least one year immediately prior to filing. However, if the marriage was performed in West Virginia and one spouse is a resident when filing, there is no durational time limit. The divorce should be filed for in the county:
- In which the spouses last lived together;
- Where the defendant lives if a resident; or
- Where the plaintiff lives, if the defendant is a non-resident. [West Virginia Code; Sections 48-5-103, 48-5-105, and 48-5-106].
Reasons for Divorce in West Virginia
There are mainly two reasons of divorce in West Virginia those are fault and general. In order to file for divorce in West Virginia, the proper grounds must be established. Both spouses are involved in establishing these grounds, and both must substantiate and agree upon these, unless the divorcing spouse is trying to prove otherwise to the court.
No-fault reasons fordivorce in West Virginiainclude:
- Irreconcilable differences have arisen between the spouses or
- Living separate and apart without cohabitation and without interruption for one year. [West Virginia Code; Section 48-5-201 and 48-5-202].
General reasons fordivorce in West Virginiainclude:
- Abandonment for six months;
- Alcoholism and/or drug addiction;
- Confinement for incurable insanity for three years;
- Physical abuse or reasonable apprehension of physical abuse of a spouse or of a child;
- Conviction of a felony;
- Cruel and inhuman treatment, including false accusations of adultery or homosexuality;
- Willful neglect of a spouse or a child; and
- Habitual intemperance (drunkenness). [West Virginia Code; Sections 48-5-203 to 48-5-209].
Custody of the Children in West Virginia
Either parent may be awarded custody and all considerations are to be in the best interest of the child. There is a presumption in favor of the parent who has been the primary caretaker of the child. The factors for consideration are:
- The stability of the child;
- Any parenting plans or other written agreement regarding child custody;
- The continuity of existing parent-child relationships;
- Meaningful contact between the child and both parents;
- Maintaining care by parents who love the child, know how to provide for the child’s needs, and place a high priority on doing so;
- Security from exposure to physical or emotional harm;
- Predictable decision-making and avoidance of prolonged uncertainty regarding the child’s care and control; and
- Fairness between the parents [as a secondary factor]; and
- Any domestic violence.
In addition, West Virginia provides specific guidelines for preparing Parenting Plans in the statute. [West Virginia Code; Sections 48-9-102, 48-9-201, and 48-11-201].
Property Distribution in West Virginia
West Virginia is an “equitable distribution” state. Each spouse may retain his or her separate property:
- Acquired prior to the marriage;
- Acquired by gift or inheritance during the marriage;
- Any increase in value of the separate property; and
- Any property acquired in exchange for any separate property.
Marital property, consisting of all other property acquired during the marriage, is to be divided equally and without regard to any marital misconduct. However, this equal division may be altered based on consideration of the following factors:
- The contribution of each spouse to the acquisition, preservation, maintenance, or increase in value of the marital property, including the contribution of each spouse as homemaker and in childcare;
- The value of each spouse’s separate property;
- 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, in the actual maintenance or improvement of tangible or intangible marital property;
- The contribution of one spouse towards the education or training of the other that 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 factor necessary to do equity and justice between the spouses.
The court may, if necessary, award a spouse’s separate property to the other spouse. [West Virginia Code; Sections 48-5-604 to 48-5-612 and 48-7-101 to 48-7-112].
West Virginia Spousal Support Guidelines
Either spouse may be ordered to provide the other spouse with alimony. Factors to be considered are:
- 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;
- 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;
- Duration of the marriage;
- Comparative financial resources of the spouses, including their comparative earning abilities in the labor market;
- Amount of time the spouses actually lived together as wife and husband;
- Tax consequences to each spouse;
- Age of the spouses;
- Physical and emotional conditions of the spouses;
- Vocational skills and employability of the spouse seeking alimony;
- Any custodial and child support responsibilities;
- Educational level of each spouse at the time of marriage and at the time the action for divorce is commenced;
- Cost of education of minor children and of health care for each spouse and the minor children;
- Distribution of marital property;
- Any legal obligations of the spouses to support themselves or others;
- Present employment or other income of each spouse;
- Whether either spouse has fore-gone or postponed economic, education, or career opportunities during the marriage;
- Standard of living during the marriage;
- Any financial or other contribution from one spouse to aid the education, training, vocational skills, career, or earning capacity of the other spouse;
- Financial needs of each spouse; and
- Any other factor the court deems just and equitable.
Marital misconduct of the spouses will be considered and compared. The court may require health and/or hospitalization insurance coverage as alimony. [West Virginia Code; Sections 48-6-301 and 48-8-104 and West Virginia Case Law].
West Virginia Child Support Guidelines
Either parent may be required to provide periodic child support payments, including health insurance coverage. Child support guidelines are available from the West Virginia Child Advocate Office and are in the statute. The following factors that may be possible reasons for deviation from the official child support guidelines:
- Special needs of the child or parent, including but not limited to, the special needs of a minor or adult child who is physically or mentally disabled;
- Educational expenses for the child or the parent;
- Families with more than six children;
- Long-distance visitation costs;
- If the child resides with another person;
- Needs of another child or children to whom the parent owes a duty of support;
- The extent to which the parent’s income depends on nonrecurring or nonguaranteed income; or
- Whether the total of spousal support, child support, and childcare costs subtracted from a parent’s income reduces that income to less than the federal poverty level.
One of the parents may also be granted exclusive use of the family home and all the goods and furniture necessary to help in the rearing of the children. The court may require health and hospitalization insurance coverage as child support. Provisions for income withholding shall be included in every divorce decree to guarantee the support payments. [West Virginia Code; Sections 48-13-301 and 48-13-702].
If the divorce involves a minor child, the court will order the parents to attend a parent education class to educate parents about the effects of divorce and custody disputes on children and teach parents methods to help children minimize their trauma. [West Virginia Code; Section 48-9-104].