State Of West Virginia Divorce Law

Going through a divorce is a life-changing process.

The following summary of West Virginia divorce law is intended to help you understand the basic divorce laws in your state and the divorce process.

It is not intended to be a substitute for the advice of an experienced divorce attorney in your county who can evaluate your specific goals and advise you on the factual and legal issues related specifically to your case.

Residency Requirements

To file for divorce in West Virginia, either you or your spouse must be a resident of West Virginia. If you were married in West Virginia, there is no time limit. Otherwise, one of you must be a resident for at least one year.

Grounds For Divorce

A divorce may be granted based on the following grounds:

• Irreconcilable differences (no-fault)
• Living separately and apart without interruption for one year
• Cruel or inhuman treatment, including domestic violence by either party against the other
• Conviction of a crime that is a felony
• Permanent and incurable insanity 
• Habitual drunkenness or drug addiction
• Desertion for at least six months
• Abuse or neglect of a child

Legal Separation

In West Virginia, legal separation is when a married couple lives apart while remaining legally married. Legal separation does not end the marriage but allows spouses to live separately and resolve issues like custody, support, and property division.

Unlike divorce, legal separation does not require the couple to finalize their marital status. There is no specific legal separation statute in West Virginia, so couples typically file for divorce and request a separation instead.

Property Distribution

On the question of property division of marital property, West Virginia is an equitable distribution state. Without a valid settlement agreement, the court shall presume that all marital property is divided equally between the parties.

The court, however, may alter this distribution after consideration of these and other factors: 

• The extent to which each party has contributed to the acquisition, preservation, and maintenance, or increase in value of marital property by monetary contributions, including, but not limited to employment income and other earnings and funds which are separate property.
• The extent to which each party has contributed to the acquisition, preservation, and maintenance or increase in value of marital property by non-monetary contributions, including, but not limited to: Homemaker services; and Child care services.

The extent to which each party expended efforts during the marriage which limited such party’s income-earning ability or increased the income-earning capacity of the other party, including, but not limited to:

• Direct or indirect contributions by either party to the education or training of the other party which has increased the income-earning ability of such other party
• Foregoing by either party of employment or other income-earning activity through an understanding of the parties or the other party’s insistence

The extent to which each party, during the marriage, may have conducted themself to dissipate or depreciate the value of the marital property of the parties: Provided, That except for a consideration of the economic consequences of conduct as provided for in this subdivision, fault or marital misconduct shall not be considered by the court in determining the proper distribution of marital property.

Spousal Support

Spousal support is divided into the following categories:

• Permanent spousal support
• Temporary spousal support
•  Rehabilitative spousal support
• Spousal support is gross

Divorce Tip

[Legal Tip]Must Actually Be Living Apart: An award of spousal support cannot be ordered unless the parties can prove they are living separately and apart from each other.[/Legal Tip]

The court may require either party to pay spousal support by considering, but not limited to, the following factors:

• The length of the marriage and any periods of separation
• The present employment income and other recurring earnings of each party from any source
• The income-earning abilities of each of the parties
• The distribution of marital property and how it will affect the earnings of the parties and their ability to pay or their need to receive spousal support, child support, or separate maintenance
• The ages and the physical, mental, and emotional condition of each party
• The educational qualifications of each party
• The standard of living established during the marriage
• The likelihood that the party seeking spousal support, child support, or separate maintenance can substantially increase their income-earning abilities within a reasonable time by acquiring additional education or training
• The care associated with a minor or adult child’s physical or mental disabilities
• Any other factors as the court deems necessary
•  Spousal support may be paid as a lump sum or in periodic installments without affecting its character as spousal support. For additional information and resources on spousal support, visit the state’s resource center.

Child Custody

Child Custody shall be determined based on the best interests of the child.

The primary objective is serving the child’s best interests by determining the following: 

Stability of the child

Parental planning and agreement about the child’s custodial arrangements and upbringing

Continuity of existing parent-child attachments

Meaningful contact between a child and each parent

Care-taking relationships by adults 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

To achieve fairness between the parents

Child Support

West Virginia calculates child support orders based on the Income Share Model. A child support order is determined by dividing the total child support obligation between the parents in proportion to their income. Both parents’ adjusted gross income is used to determine the amount of child support.

Deviations from the guidelines above are possible for the following reasons: 

Special needs of the child or support obligor, 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 (i.e., those incurred for private, parochial, or trade schools, other secondary schools, or postsecondary education where there is tuition or costs beyond state and local tax contributions)

Families with more than six children

Long-distance visitation costs

The child resides with a third-party

The needs of another child or children to whom the obligor owes a duty of support

The extent to which the obligor’s income depends on nonrecurring or non-guaranteed income

Note: Whether the total of spousal support, child support, and child care costs subtracted from an obligor’s income reduces that income to less than the federal poverty level and, conversely, whether deviation from child support guidelines would reduce the payment of the child’s household to less than the federal poverty level. The court shall order medical support to be provided for the child or children.

Legal Name Change

During the divorce proceedings, the court will generally address all issues, including should one party request that their former name be legally reinstated. If the court grants your divorce, it will also issue a final decree that includes your requested name change.

In West Virginia, if you do not request a name change during the divorce proceedings, you can still pursue a name change after the divorce is finalized.

West Virginia Family Law Court System

In November 2000, the voters passed a constitutional amendment to allow the Legislature to create separate family courts. There are now 47 family court judges who serve 27 family court circuits.

Family Courts

References and Sources

West Virginia Code

Rules of Family Court

Guided Self-Help Forms

West Virginia Glossary of Legal Terms

Related Articles and Helpful Services