WEST VIRGINIA DIVORCE LAW

When considering a divorce or separation, one must understand his or her rights and responsibilities. The laws and procedures governing divorce and separation are different depending on the jurisdiction, but the same issues arise during the divorce or separation process no matter where you are in the country. West Virginia is no exception. What does it take legally separate? What are the causes of divorce? How is property divided? These are just some of the questions that arise when considering divorce or separation.

Legal Separation

Courts in West Virginia do not formally recognize the concept of legal separation, but they do recognize "property settlement or separation agreements." These are used as, among other things, a legal agreement between the parties to live separately. Other uses of these agreements include settling issues regarding: a) property rights; b) child support; and c) spousal support. You should consult a West Virginia divorce attorney before entering into a property settlement or separation agreement.

Grounds for Divorce

West Virginia joins the majority of the country by offering fault and no-fault grounds for divorce. No-fault divorce in West Virginia is utilized by citing "irreconcilable differences." No evidence is needed to support these irreconcilable differences. In regard to fault-based divorce, there are eight grounds:

• the parties are voluntarily living separate for at least a year;
• cruel and inhumane treatment;
• consists of, among other things, reasonably believing that one is in danger of harm, being falsely accused of homosexuality or adultery, and more generally anything that could hurt one's physical or mental well-being
• adultery;
• desertion by his or her spouse for at least six months; or
• child abuse or neglect by a spouse

Filing for divorce in West Virginia can be a complicated and emotional process, you should speak with a West Virginia divorce attorney.

Divorce Residency Requirements/ Where to File for Divorce

If the parties to a West Virginia divorce were married outside of West Virginia, then the law requires either of the parties be a resident of the state for at least one year prior to the filing for divorce. Conversely, if the parties were married in West Virginia, then the law only requires that either of the parties be a resident of the state at the time of filing for divorce (regardless of the length of time he or she was a resident). The petition to divorce can be filed in either a circuit court or family court, since both courts have jurisdiction to grant a divorce.

Availability of Simplified or Special Divorce Procedures

There are a couple notable simplified divorce procedures in West Virginia. First, when alleging desertion or abandonment as the basis behind your divorce, courts do not require the parties to prove an offer of reconciliation. In addition, West Virginia courts have the power to allocate the exclusive right to posses and use the marital home and car(s) to a single spouse while the divorce is pending. Any questions or concerns regarding rights and responsibilities while the divorce is pending should be addressed by a New Mexico divorce attorney.

Annulment

An annulment constitutes a court declaration that the marriage was never legally valid. Annulments are less prevalent than divorces and courts require specific reasoning behind the request. There are a number of grounds justifying the granting of an annulment in West Virginia. These grounds include: a) a party is still legally married to another person; b) consanguinity; c) insanity; d) party is under the age of legal consent; e) impotency of the body; and f) possessing a venereal disease. Since a West Virginia annulment is often used as an alternative to divorce, one may want to consult a West Virginia divorce attorney.

Division of Marital Property

West Virginia courts typically divide marital property equally (not necessarily 50-50) unless the parties have a separation agreement indicating otherwise. However, the distribution of property may be altered, even with the absence of a separation agreement, if consideration of the following factors justifies doing so:

• each party's contribution during the marriage to the increase of the value of marital property
• each party's sacrifice during the marriage limiting his or her own income earning potential
• each party's conduct during the marriage leading to a decrease in value of marital property

If the parties have a separation agreement addressing property division, then the court shall divide the party in accordance with agreement unless one of the following is present:

• fraud or duress was used to enter into the agreement
• the terms of the agreement are not expressed in a manner where the agreement would be enforceable in court
• the agreement is too unfair in light of value of the marital property

Links to Divorce Statutes

Find the following sections of the West Virginia Code here.

1) West Virginia Legal Separation

• West Virginia Code, §§ 48-6-101, 102-103

2) West Virginia Causes for Divorce

• West Virginia Code, §§ 48-5-201, 202-209

3) West Virginia Divorce Residency Requirements/Where to File

• West Virginia Code, §§ 48-5-103, 48-5-105

4) West Virginia Simplified or Special Divorce Procedures

• West Virginia Code, §§ 48-5-501, 502-507

5) West Virginia Annulments

• West Virginia Code, § 48-3-103

6) West Virginia Division of Marital Property

• West Virginia Code, §§ 48-7-101, 102