West Virginia State Divorce Law

A residency requirement of 1 year is mandated for those filing a Petition for Divorce in a West Virginia Circuit Court. However, that requirement is waived if the marriage took place in the state.

West Virginia Grounds for Divorce

Petitions for divorce in West Virginia may be filed on either no-fault or fault-based grounds.

Uncontested Divorce in West Virginia

West Virginia makes the process for an uncontested divorce much smoother than that of a divorce where elements are under dispute. In addition, there is a provision for a simplified divorce in which the petitioner files a complaint on grounds of irreconcilable differences. The respondent replies by admitting the charge. In this process, no witnesses are required or any proof of the stated grounds.

Contested Divorce in West Virginia

On the other hand, a contested divorce takes much longer, as the parties and their divorce attorneys must continue to provide evidence for their case so that the divorce can either be finally agreed upon by the parties themselves, or they will be able to present their case in court.

Annulment in West Virginia

A marriage is already void if it is found to have been entered into illegally by one or both parties. If a party desires to have the marriage legally declared null and void, they must obtain an annulment. That takes about 60 days in West Virginia, though it is a rare action because of the difficulty of proving the grounds for an annulment:

• Incest
• Mental illness that is incurable
• Bigamy
• Fraud

No Fault Divorce in West Virginia

A no-Fault Divorce in West Virginia can be filed on the following two grounds:

1. Irreconcilable differences
2. Living separate and apart for 1 year without cohabitation

West Virginia Fault Divorce

Parties seeking a fault-based divorce must be able to prove the grounds for such an action, which include:

• Adultery
• Abandonment for 6 months or more
• Drug addiction and/or alcoholism
• Institutionalization for incurable insanity for a period of 3 years or more
• Physical abuse or the reasonable apprehension of such abuse on a spouse or child
• Felony conviction
• Cruelty and inhuman treatment, especially when false accusations of homosexuality or adultery have been made
• Wilful neglect of a child or spouse
• Habitual intemperance

West Virginia Divorce and Child Custody

Child Custody Laws

If the court is required to issue child custody orders, they are first based on the best interests of the child. In addition, the court considers other factors:

• The child’s stability
• Any parental plans or agreements
• Preserving the continuity of current parent-child relationships
• The child’s relationship with other caretakers who have a positive relationship and influence
• Protecting the child from exposure to emotional or physical harm
• Expeditious decisions concerning arrangements for the care of the child

Child Alimony

The courts may be required to hand down orders for child support when the parents cannot agree on a permanent plan. Those orders will not be based on the gender of the parent, however, they will be based on standard child support guidelines, with consideration of the following factors:

• The special needs of the child or parents, including those with disabilities
• The educational expenses of the parents or child
• Families with more than 6 children
• The costs of long-distance visitation
• Any child residence outside the nuclear family
• The needs of other children whom the parents support
• The parents’ income if it depends on nonrecurring or nonguaranteed payments
• Whether the supporting parent’s income falls below the poverty level when it includes spousal support, child support, and childcare costs

Parents in West Virginia use the Income Share Model in combination with standard Child Support Worksheets to calculate support estimates.

West Virginia Divorce Spousal Support

If a court in West Virginia is required to hand down spousal support orders, those orders will be based on the following factors:

• The length of the marriage or the time when the parties co-habited
• The parents’ income and earning capacity
• Property awards from the divorce
• The parties’ age and health
• The parties’ education
• The parties’ postponement of education or training to help equip the other for their career
• The marital standard of living
• The possibility that the dependent party can increase their job skills and/or earning power with an investment of time and money
• The child’s educational costs
• The child’s health care expenses
• The tax implications
• The appropriateness of a Custodial Parent working outside the home
• The parents’ financial needs and obligations
• The needs of a disabled child

Lump Sum Alimony

Determined at the discretion of the court.

Permanent Alimony

Determined at the discretion of the court.

Temporary Spousal Support

Determined at the discretion of the court.

Rehabilitative Alimony

Determined at the discretion of the court

Military Divorce in West Virginia

Spouses in the military are protected by West Virginia law in several ways:

• Divorce papers must be service to the recipient personally
• If those papers cannot be served personally, the serviceperson cannot be charged with default for failing to respond to a divorce action
• Proceedings may be postponed throughout the party’s service and up to 60 days after
• Direct payment of retirement pay is provided to spouses married 10 years or longer
• Child support is not to exceed 60% of serviceperson’s pay and allowances

Help From a West Virginia Divorce Lawyer

With all of these various and complex issues, it can be difficult for a party to navigate the process without the assistance of a divorce lawyer who has helped others to arrive at a successful resolution and settlement.

Thinking About Divorce?

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Nolo's Essential Guide to Divorce

Divorce Without Court

Retirement Accounts in Divorce

Divorce & Money

A Judge's Guide To Divorce

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