West Virginia Validity Of Divorce

It is well established in West Virginia that jurisdiction of its courts to entertain suits for divorce exists merely by virtue of the statute which confers such jurisdiction. State v. Knapp, 105 S.E. 2d 569, 573 (W.Va., 1958); Cobb v. Cobb, 113 S.E. 2d 193, 194 (W.Va., 1960). The residence requirements are mandatory. See White v. White, 146 S.E. 376 (W.Va., 1929); Tate v. Tate, 142 S.E. 2d 751, 754 (W.Va., 1965). (Note, the court defines the word "resident" within divorce statutes as synonymous with domicile.)

The requirements of divorce statutes as to residence are jurisdictional and if it appears that the plaintiff suing for divorce did not satisfy such requirements, the judicial action taken would have no legal effect. See Morgan v. Vest, 24 S.E. 2d 329 W.Va., 1943); Cobb v. Cobb, supra, at 197. In Cobb the court held inter alia that a court's lack of jurisdiction over the subject matter of a suit need not be raised in any particular manner. When the facts disclose that the court lacks subject matter jurisdiction, the case will be dismissed and the prior decree may be set aside as void. Morgan, supra, indicates that a decree rendered by a court lacking subject matter jurisdiction is "void," rather than voidable.

Under West Virginia law, at least one party must be a resident of the State in order for a court to acquire jurisdiction of marital status for the purpose of granting a divorce, and a divorce granted by such a court which lacked jurisdiction is absolutely void. Since neither party met the residence requirement, the State court lacked jurisdiction to grant a valid divorce.

Accordingly, it is held that the decree of divorce granted October 1964 was void for lack of jurisdiction; therefore, W's marriage to the worker continued from its inception, there was no overpayment of benefits, and W is entitled to reinstatement of her wife's insurance benefits effective October 1964.