Divorce in West Virginia is referred to as Absolute Divorce.
To file for divorce, if the marriage was entered into within West Virginia, one or both parties must be an actual bona fide resident of West Virginia at the time the action is commenced, regardless of the length of residency.
If the couple did not marry in the state, to file for divorce, one of the parties must be a bona fide resident at the time the cause of action arose, or has become one since that time and the residency must have continued uninterrupted through the one-year period immediately preceding the filing of the action.
To file for divorce on the grounds of adultery, one of the parties must be a bona fide resident at the commencement of the action. However, if the Respondent (non-filing party) is a nonresident and cannot be personally served within West Virginia, the Petitioner (filing party) must have been an actual bona fide resident for at least one year immediately preceding the commencement of the action.
The West Virginia circuit courts and family courts have jurisdiction to grant a divorce for any grounds fixed by law in the state, without regard to the law of the place where the marriage occurred or where the marital offense was committed.
Either or both parties to a marriage may initiate an action for divorce.
If the Respondent is a resident of the state, the Petitioner has an option to file a Petition for Divorce in the county where the parties last cohabited or in the county where the Respondent resides. If the Respondent is not a resident, the Petitioner has an option to bring the action in the county in which the parties last cohabited or in the county where the Petitioner resides.
When the court orders a divorce, if requested to do so by either party, it shall allow that party to resume the name used prior to his her first marriage. In the case of where the party has been married before, if requested by either party, the court shall allow that party to resume the name of a former spouse, if that party has any living child(ren) by marriage to the former spouse.
In West Virginia, a divorce may be granted for any of the following grounds.
A divorce may not be granted on the grounds of adultery if based on the uncorroborated testimony of a prostitute, or a known criminal or accomplice, nor when it appears that the parties voluntarily cohabited after the knowledge of the adultery, or that it occurred more than three years before the institution of the action.
No divorce may be granted when the offense charged has been condoned, or was committed by the procurement of connivance of the Plaintiff, or that the Plaintiff has, within three years before the institution of action, been guilty of adultery not condoned.
The age of consent for marriage is 18 years of age. A person under the age of 18 lacks the capacity to contract a marriage, but may do so is he/she is at least 16 years of age and has obtained valid written consent from a parent or guardian.
If a party is under the age of 16, he/she may marry only with valid written consent from a parent or legal guardian and upon order of a circuit judge who has determined it is in the best interest of the minor to marry.
If a party to a marriage is under the age of consent and he/she has not obtained the necessary legal consent from a parent, guardian or court, the marriage is voidable, but it is valid until the marriage is actually annulled. Alternatively, the marriage may be ratified and may become completely valid and binding when the underage party reaches the age of consent. This ratification may include continued cohabitation as husband and wife after the age of consent is attained.
A man is prohibited from marrying his mother, grandmother, sister, daughter, granddaughter, half sister, aunt, brother's daughter, sister's daughter, first cousin or double cousin.
A woman is prohibited from marrying her father, grandfather, brother, son, grandson, half brother, uncle, brother's son, sister's son, first cousin or double cousin.
These prohibitions regarding relationships apply to both blood ties and those established by marriage. The relationship of cousin or double cousin does not apply when the relationship is created solely by adoption.
An action to annul or affirm a marriage may not be brought unless one of the parties is a resident of the state at the time the action is commenced. However, if neither party is a resident of the state, the action to annul may still be brought provided the marriage was performed in West Virginia and the parties have not established a matrimonial domicile elsewhere.
If the Respondent to an action for annulment or affirmation is a resident of the state, the Petitioner may bring the action in either the county where the parties last cohabited or in the county where the Respondent resides.
If the Respondent is not a resident, the Petitioner may bring the action in either the county where the parties last cohabited or in the county where the Petitioner resides.
If neither party is a resident of the state, the action must be brought in the county where the marriage was performed.
The following are voidable marriages and are void from the time they are so declared by a judgment order of nullity:
An action for annulment may not be brought in the following cases:
Generally, upon every judgment of annulment, divorce or separation, the court shall divide the marital property of the parties equally between the parties.
If the parties have a separation agreement, the court will divide the marital property in accordance with this agreement, unless the court finds the following:
If there is agreement, the court presumes that all marital property shall be divided equally between the parties, but may alter this distribution, without regard to attribution of fault to either party, after consideration of the following factors.
After considering these factors, the court shall proceed with the following:
Spousal support may only be ordered when the parties are actually living separate and apart from one another. It may be paid as a lump sum, as periodic installments, or both, for the maintenance of the other party. The family courts and circuit courts have jurisdiction to award this support.
Spousal support is divided into the following four classes:
Rehabilitative spousal support is to be awarded for a limited period of time to allow the recipient spouse to become gainfully employed, when she/he demonstrates the potential for self-support that could be developed through rehabilitation, training or academic study.
In determining whether spousal support is to be awarded, and if so, the amount, the court shall consider and compare the fault or misconduct of either or both of the parties and the effect of the fault or misconduct as a contributing factor to the deterioration of the marital relationship.
The court shall consider the following factors in determining the amount of spousal support, child support or separate maintenance, if any to be ordered, as a supplement to or in place of the separation agreement:
The state legislature finds and declares that it is the public policy of West Virginia to assure that the best interest of children is the court's primary concern in allocating custodial and decision-making responsibilities between parents who do not live together.
It further declares that a child's best interest will be served by assuring that the minor children have frequent and continuing contact with parent who have shown the ability to act in the best interest of their children, to educate parents on their rights and responsibilities and the effect their separation may have on children to encourage mediation of disputes and to encourage parents to share in the rights and responsibilities of rearing their children after the parent have separated or divorced.
The primary objectives for the best interests of the child are served by facilitating the following:
Achieving fairness between the parents is a recognized secondary objective.
Unless otherwise resolved by agreement of the parents, or harmful to the child, the court shall allocate custodial responsibility so that the proportion of custodial time the child spends with each parent approximates the proportion of time each parent spent performing caretaking functions for the child prior to the parents' separation.
Parents seeking an order for custodial responsibility or decision-making responsibility must file a proposed parenting plan with the court. Parents may file a joint plan. The plan should include the following, to the extent known or reasonably able to be determined:
Parent Education Classes
The family court will require parties to an action for divorce involving a minor child to attend parent education classes (established pursuant to the related statutes) unless it determines that attendance is not appropriate or necessary based on the conduct or circumstances of the parties. The court may establish sanctions for failure to attend.
The family court may order that each party pay a fee to attend the classes, not to exceed a certain amount (currently, $25). However if a party is determined to be indigent and unable to pay, the court may waive the payment of the fee.
In every action to establish child support, the court shall ascertain the ability of each parent to provide medical care for the children of the parties. In any order establishing an award of child support, the court shall address the provision of medical support through one or more of the following methods:
If neither parent currently has access to appropriate medical insurance coverage, the court shall take the following actions:
The court shall consider the same factors in determining the amount child support to be ordered, as those considered for awards of spousal support and separate maintenance.
West Virginia uses the Income Shares model to calculate child support obligations. The guidelines are structured so as to provide that after a consideration of respective parental incomes, child support will be related to the standard of living that children would enjoy if they were living in a household with both parents present. The state child support guidelines take into consideration the financial contributions of both parents.
A child support order is determined by dividing the total child support obligation between the parents in proportion to their income. The monthly AGI of both parents is used to determine the amount of child support to be ordered.
When determining the total child support obligation, the court shall add any unreimbursed child health care expenses, work-related child care expenses and other extraordinary expensed agreed to by the parents or ordered by the court to the basic child support obligation, and then subtract any extraordinary credits agreed to by the parents or ordered by the court. The Basic child support obligation table is presented in the West Virginia Code, and uses the parents combined gross monthly income and the number of children for whom child support is being determined.
If combined AGI is below the lowest amount of income on the table (currently $500), the basic child support obligation shall be set at $50 per month or a discretionary amount determined by the court based on the resources and living expenses of the parents and the number f children due support.
If combined AGI is above the highest amount of income on the table (currently $15,000), the basic child support obligation shall not be less than it would be based on a combined AGI of $15,000. The court may also use the following formula in this situation:
(1) One child - $1,338 + 0.088 x combined adjusted gross income above $15,000/month;
(2) Two children - $1,934 + 0.129 x combined adjusted gross income above $15,000/month;
(3) Three children - $2,276 + 0.153 x combined adjusted gross income above $15,000/month month;
(4) Four children - $2,515 + 0.169 x combined adjusted gross income above $15,000/month;
(5) Five children - $2,726 + 0.183 x combined adjusted gross income above $15,000/month; and
(6) Six children - $2,917 + 0.196 x combined adjusted gross income above $15,000/month.
For basic shared parenting cases, the total basic child support obligation is divided between the parents in proportion to their income. From this amount the payor's direct expenditures of any items which were added to the basic child support obligation will be subtracted to arrive at the total child support obligation.
Child support payments may continue past the date the child reaches the age of 18, provided the child is unmarried and residing with a parent, guardian or custodian and is enrolled as a full-time student in a secondary educational or vocational program and making substantial progress towards a diploma, and the child has not reached the age of 20.
Statutory law will not repeal or modify existing case law regarding the eligibility of handicapped or disabled children to receive child support beyond the age of 18.
An action for separate maintenance may be brought in the family court of any county where an action for divorce between the parties could be brought. An action for separate maintenance may be brought whether a divorce is being sought or not.
Separate maintenance may be sought for the following grounds:
In an action for separate maintenance, the court may order all or any portion of the temporary or final relief that the court may order in an action for divorce (except for divorce).
A property settlement or a separation agreement is a written agreement between the parties to a marriage in which they agree to live separate and apart from each other. A separation agreement may also address the following:
In cases where the parties to an action for separation have not executed a separation agreement or the agreement is incomplete, insufficient or not approved by the court, the court shall proceed to resolve the outstanding issues between the parties.
The court shall consider the same factors in determining the amount of separate maintenance, if any, to be ordered, as those considered for awards of spousal support and child support, as a supplement to or in place of a separation agreement.
*I understand that my data will be kept confidential and not offered to any third party.