Divorce – State FAQ – West Virginia
Residency requirements, venue and procedures
Q: How long must I have lived in West Virginia prior to filing for divorce in an West Virginia court?
A: 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.
Q: What are the terms used to identify the parties in a divorce proceeding?
A: The party filing the action is called the Petitioner, while the other party to the divorce is referred to as the Respondent.
Q: What is “venue,” and what is the proper venue for a divorce case?
A: “Venue” refers to in what locality the case is filed. In West Virginia, proper venue for the divorce action is 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.
Q: What is the title of the document initiating the action for divorce? The order granting the divorce?
A: The title of the document initiating the divorce proceeding is a Petition for Divorce, while the title of the order granting the divorce is referred to as the Decree of Divorce.
Grounds for divorce
Q: What is meant by “grounds for divorce”?
A: A “ground” for divorce is a “reason” for divorce. A set of judicially recognized reasons for divorce exist in West Virginia. You must use one or more of these reasons to justify your divorce.
Q: What are the recognized grounds for divorce in West Virginia?
A: 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 cohabitationand without interruption for 1 year.
There are several other recognized grounds for divorce in West Virginia:
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
Q: On what basis does the court decide how marital property is divided?
A: Virginia is a so-called “equitable distribution” state. This means that the division of property and debts between the divorcing parties should be fair and equitable, but not necessarily equal. The court has wide discretion in equitably distributing property. Factors the court will consider are discussed on the West Virginia Divorce Main Page.
Q: Is the “separate property” of one spouse subject to being divided up?
A: The question here is whether property “belonging to” one of the parties should be included in the marital estate for purposes of an equitable division. Generally, separate property acquired before the marriage or by gift or inheritance during the marriage may be excluded from the marital estate if neither the property nor its income has been used for the common benefit of the parties during their marriage.
Q: What if the parties occasionally use an item of separate property (for example, silver table utensils inherited by the wife) for the benefit of both parties?
A: The property may be subject to division. Where the parties regularly use property acquired by one party before marriage for the common benefit of the parties, it is more likely to be available for consideration in dividing property. The frequency of use may be considered by the court in making the decision.
Q: What does the term “spousal support” (or, “alimony”) mean?
A: “Spousal support” (sometimes called “alimony”) is money paid by one spouse to the other due to the payee spouse’s loss of the benefit of the payor spouse’s income due to the divorce.
Q: Is spousal support available while the divorce is pending in court, or only after the divorce has become final?
A: The court may order that one spouse support the other during the pendancy of the divorce action and/or after the divorce has become final. Support awarded pending the final decree of divorce is not to extend beyond the period of time necessary for the prosecution of the divorce action.
Q: What factors will the court consider when determining how much alimony to award to a party?
A: 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 in determining whether and how much alimony will be paid are discussed in the West Virginia Divorce Information section of the West Virginia Divorce Main Page.
Child custody and visitation
Q: What is child custody and visitation?
A: “Child custody” refers to which parent will have legal custody of the child(ren), i.e. with whom the child(ren) will live. “Visitation” is the topic of the non-custodial parent’s ability to visit/spend time with the child(ren).
Q: If the parents cannot agree on child custody and visitation issues, on what basis will the court decide?
A: 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.
Q: Do grandparents have any visitation rights to their grandchildren in West Virginia?
A: Yes. Grandparents may bring an action for visitation and will receive said visitation as long as it is in the best interest of the child and the parent’s rights are not substantially impaired.
Q: What is “child support”?
A: Child support is money paid by the non-custodial parent to the custodial parent in order to meet the needs of the child(ren).
Q: To what should the parties look for guidance regarding amount of child support to be paid? What standard will the court use if the parties cannot agree?
A: Either parent may be required to provide periodic child support payments, including health insurance coverage. The factors considered by the court in determing the amount of child support are specified by statute and are are discussed in the West Virginia Divorce Information section of the West Virginia Divorce Main Page