Divorce & Family Law Summary
U.S. Divorce Laws are enacted by each state using their respective legislative process. Once legislation is enacted into law, the divorce courts in West Virginia have the authority to manage the divorce proceedings, including spousal support and child support payments, custodial rights of parents, and the division of property.
Since state laws are repealed and amended frequently, it is always advisable to consult with an experienced divorce lawyer before making important decisions about your marriage.
All states allow for “no-fault” divorce. Yet many courts still factor in the respective parties’ past behavior when determining the division of community property, debts, custody, support, and related issues.
Read our expanded article on the divorce process for a deeper and more realistic understanding of the challenges you’re likely to face.
RESIDENCY REQUIREMENTS
To file for divorce, one or both of the spouses must be an actual bona fide resident of West Virginia when the divorce action commences. There is no length of the residency requirement.
If the marriage was not entered into within the state, an action for divorce is maintainable if:
One of the parties was an actual bona fide resident of this state when the cause of action arose or has become a resident since that time. The residency has continued uninterrupted through the one year immediately preceding the filing of the action.
GROUNDS FOR DIVORCE – NO-FAULT OR FAULT
A divorce may be granted based on the following grounds:
- Irreconcilable differences.
- Living separately and apart without interruption for one year.
- Cruel or inhuman treatment by either party against the other.
- Conviction of a crime that is a felony;
- Permanent and incurable insanity (based on medical testimony) if the patient has been confined to a mental institution for no less than three years preceding the divorce petition;
- Habitual drunkenness or drug addiction;
- Desertion for at least six months;
- Abuse or neglect of a child.
LEGAL SEPARATION AND SETTLEMENT AGREEMENT
“Property settlement or separation agreement” means a written agreement between spouses whereby they agree to live separately and apart from each other.
A separation agreement may also:
- Settle the property rights of the parties.
- Provide child support.
- Provide for the allocation of custodial responsibility and the determination of decision-making responsibility for the children of the parties.
- Provide for the payment or waiver of spousal support by either party.
- Otherwise, settle and compromise issues arising from the marital rights and obligations of the parties.
MEDIATION COUNSELING REQUIREMENTS
The family court will issue an order requiring parties to an action for divorce involving a minor child or children to attend parent education classes established unless the court determines that attendance is not appropriate or necessary based on the conduct or circumstances of the parties.
PROPERTY DISTRIBUTION
West Virginia is an equitable distribution state. In the absence of 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.
ALIMONY-SPOUSAL SUPPORT
Spousal support is divided into the following categories:
- Permanent spousal support;
- Temporary spousal support, otherwise known as spousal support pendente lite; (3) rehabilitative spousal support;
- Spousal support is gross.
- Note: An award of spousal support cannot be ordered unless the parties are actually living separately and apart from each other.
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.
- Note: Spousal support may be paid as a lump sum or as periodic installments without affecting its character as spousal support. For additional information and resources on spousal support, visit the state’s resource center.
SPOUSE’S LEGAL NAME
If requested to do so by either party, the court shall allow such party to resume the name used before their first marriage. If asked to do so by either party, the court shall allow such party to resume the name of a former spouse if such party has any living child or children by marriage to such former spouse.
CHILD CUSTODY
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:
(1) Stability of the child;
(2) Parental planning and agreement about the child’s custodial arrangements and upbringing;
(3) Continuity of existing parent-child attachments;
(4) Meaningful contact between a child and each parent;
(5) 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; (6) Security from exposure to physical or emotional harm; and
(6) 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:
(1) 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;
(2) 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);
(3) Families with more than six children;
(4) Long-distance visitation costs;
(5) The child resides with a third party;
(6) The needs of another child or children to whom the obligor owes a duty of support;
(7) The extent to which the obligor’s income depends on nonrecurring or non-guaranteed income; or
(8) 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.
