Introduction to Divorce in West Virginia
Divorce can be a complex and emotionally challenging process. Understanding the laws and procedures specific to West Virginia can help ease the stress and ensure you are well-prepared. This guide provides a comprehensive overview of the key aspects of divorce in West Virginia.
Understanding Divorce in West Virginia
Divorce, legally known as the dissolution of marriage, terminates a marital union and resolves issues such as property division, child custody, and support. West Virginia law outlines specific requirements and procedures for obtaining a divorce.
Grounds for Divorce
West Virginia recognizes both no-fault and fault-based grounds for divorce.
No-Fault Grounds
Irreconcilable Differences: The most common no-fault ground where both parties agree that their differences are so significant that they cannot be resolved.
Living Separate and Apart: Couples who have lived separate and apart without cohabitation for at least one year can file for divorce on these grounds.
Fault-Based Grounds
Adultery
Cruel or Inhuman Treatment
Abandonment
Habitual Drunkenness or Drug Addiction
Conviction of a Felony
When one party wishes to file for divorce, and the other does not agree that irreconcilable differences are present, the party must either establish "fault-based" grounds with evidence or must be able to prove that the parties have lived separately for more than one year.
Residency Requirements
To file for divorce in West Virginia, at least one spouse must be a state resident for at least one year prior to filing. This ensures that West Virginia courts have jurisdiction over the divorce proceedings.
Filing for Divorce
We recommend that parties work out an agreement before filing for divorce. This ensures they have the time to create an acceptable agreement in a suitable environment. Once the agreement is reached, or when an agreement can't be reached, a party may file for divorce. In West Virginia the paperwork to file for divorce is available for no charge on the West Virginia Supreme Court's website.
Petition for Divorce: The court process begins with one spouse filing a Petition for Divorce in the circuit court of the county where either spouse resides.
Service of Process: The non-filing spouse must be formally notified of the divorce proceedings. They can receive notice by certified mail or service of the petition by a process server.
Response: The non-filing spouse has a limited time to respond to the petition once it is served.
Divorce Process
Temporary Orders
When the parties are unable to reach a permanent or temporary agreement, they may ask the court to intervene. The court may issue temporary orders for spousal support, child custody, and use of marital property during the divorce process.
Discovery
Both parties exchange information and documents relevant to the case. In West Virginia, all parties must file a full financial disclosure when they file their divorce pleadings or paperwork.
Mediation
Many parties voluntarily participate in mediation before or after filing for divorce. However, the law in West Virginia requires that the matter be referred to mediation in contested custody cases.
Trial
When the parties cannot reach an agreement, eventually, the case will proceed to trial. Both sides offer evidence at that time, and the judge will make the final, decision.
Division of Property
West Virginia follows equitable distribution principles. Marital property is divided fairly but not necessarily equally, considering factors such as the length of the marriage, contributions of each spouse, and future financial needs. In West Virginia, the court must find that the division of property, even when the parties agree, is fair and equitable, and if not, that the parties knowingly waive their right to equitable distribution. This typically requires that a value be established for all valuable property.
Child Custody and Support
Custody
The best interests of the child guide custody decisions. In West Virginia, the court presumes that shared decision-making and equal allocation of custodial time are in the best interests of the child. In unusual circumstances, sole caretaking responsibility will be ordered.
Support
Child support is calculated based on the income shares model, considering both parents' incomes and the needs of the child. The amount paid for daycare and the amount for the child's medical insurance are included in the guidelines.
Spousal Support
Spousal support, or alimony, may be awarded based on factors such as the length of the marriage, the standard of living during the marriage, and the financial circumstances of both parties. Types of spousal support include temporary, rehabilitative, and permanent. There is no formula or guideline for temporary or permanent spousal support in West Virginia.
Mediation and Collaborative Divorce
In addition to litigation, mediation, and collaborative divorce are effective alternatives for resolving divorce disputes.
Mediation
Mediation involves a neutral third party who helps both spouses negotiate and reach a mutually acceptable agreement. It is typically less adversarial and more cost-effective than going to trial. Mediation focuses on open communication and cooperation, which can be beneficial for maintaining a positive relationship post-divorce, especially when children are involved.
Collaborative Divorce
Collaborative divorce is a process where both spouses and their attorneys commit to resolving disputes without going to court. This approach encourages cooperation and problem-solving, allowing couples to collaborate to create a fair and customized settlement. It often involves other professionals, such as financial advisors and child specialists, to address specific issues comprehensively.
Benefits of Mediation and Collaborative Divorce
Cost-Effective: Generally, these methods are less expensive than litigation.
Time-Saving: Resolutions are typically reached faster than through court proceedings.
Privacy: These processes are private and confidential, unlike public court trials.
Control: Couples have more control over the outcome rather than leaving decisions up to a judge.
Legal Assistance
Divorce can be legally and emotionally complex. Working with a lawyer or an effective mediator can help create an agreement that will be effective for your family and will be acceptable by the court. Legal information is available on the West Virginia Supreme Court's and Legal Aid's websites. We discourage parties from using other websites since the courts have been known to reject agreements that do not conform with the requirements of West Virginia Law.
Frequently Asked Questions
How long does it take to get a divorce in West Virginia?
The time frame varies depending on the complexity of the case and whether it is contested or uncontested. An uncontested divorce may take a few months, while a contested divorce can take years. When an agreement is filed with the petition, most clients report that their final hearing takes about two months.
Can we use the same attorney?
No, it is unethical for one attorney to represent both parties in a divorce due to potential conflicts of interest. You may use a mediator who is an attorney. The mediator will be able to assist you in reaching an agreement and drafting a property settlement agreement, separation agreement, and parenting plan. The mediator can give you legal information. However, a mediator cannot provide you with legal advice.
What if my spouse doesn't respond to the divorce papers?
If you do not have an agreement and you file for divorce, if the spouse does not respond within the specified time frame, the court may grant a default judgment and proceed with the divorce.