Saturday, August 8, 2009

West Virginia Divorce Laws

Residency Requirements for Divorce in West Virginia
One of the spouses must have been a resident of West Virginia for at least 1 year immediately prior to filing. However, if the marriage was performed in West Virginia and 1 spouse is a resident when filing, there is no durational time limit. The divorce should be filed for in the county:
  1. in which the spouses last lived together
  2. where the defendant lives if a resident; or
  3. where the plaintiff lives, if the defendant is a non-resident

Legal Grounds for Divorce in West Virginia
  1. No Fault Divorce:
    1. Irreconcilable differences have arisen between the spouses or
    2. living separate and apart without cohabitation and without interruption for 1 year
  2. General Divorce:
    1. Adultery
    2. abandonment for 6 months
    3. alcoholism or drug addiction
    4. confinement for incurable insanity for 3 years
    5. physical abuse or reasonable apprehension of physical abuse of a spouse or of a child
    6. conviction of a felony
    7. cruel and inhuman treatment, including false accusations of adultery or homosexuality
    8. willful neglect of a spouse or a child
    9. habitual intemperance (drunkenness)

Legal Separation in West Virginia
The grounds for legal separation (separate maintenance) are the same as for divorce. One of the spouses must have been a resident of West Virginia for at least 1 year prior to filing for legal separation.

Simplified/Special Divorce Procedures in West Virginia
If 1 spouse files a verified complaint for divorce on the grounds of "irreconcilable differences," the other spouse may file a verified "answer" admitting the "irreconcilable differences" and a divorce will be granted. Circuit clerks are required to have supplies of an official "petition" and an "answer" form on hand, free of charge. No witnesses will be necessary for any proof for a divorce on the grounds of "irreconcilable differences." In other cases, witnesses will be required. The court may approve or reject a marital settlement agreement of the spouses. Standard financial disclosure forms are required to be filed.

Divorce Mediation in West Virginia
If the divorce involves a minor child, the court will order the parents to attend a parent education class to educate parents about the effects of divorce and custody disputes on children and teach parents methods to help children minimize their trauma.

Divorce Property Distribution
West Virginia is an "equitable distribution" state. Each spouse may retain his or her separate property:

  1. acquired prior to the marriage
  2. acquired by gift or inheritance during the marriage
  3. any increase in value of the separate property
  4. any property acquired in exchange for any separate property
Marital property, consisting of all other property acquired during the marriage, is to be divided equally and without regard to any marital misconduct. However, this equal division may be altered based on consideration of the following factors:
  1. the contribution of each spouse to the acquisition, preservation, maintenance, or increase in value of the marital property, including the contribution of each spouse as homemaker and in childcare
  2. the value of each spouse's separate property
  3. the amount and sources of income of the spouses
  4. the conduct of the spouses during the marriage only as it relates to the disposition of their property
  5. the value of the labor per-formed in a family business, in the actual maintenance or improvement of tangible or intangible marital pro-perty
  6. the contribution of 1 spouse towards the education or training of the other that has increased the income-earning ability of the other spouse
  7. the foregoing by either spouse of employment or other income-earning activity through an understanding of the spouses or at the insistence of the other spouse
  8. any other factor necessary to do equity and justice between the spouses
The court may, if necessary, award a spouse's separate property to the other spouse.

Alimony and Spousal Support
Either spouse may be ordered to provide the other spouse with alimony. Factors to be considered are:

  1. whether the spouse seeking alimony is the custodian of a child whose condition or circumstances make it appropriate for that spouse not to seek outside employment
  2. time and ex-pense necessary to acquire sufficient education and training to enable the spouse to find appropriate employment and that spouse's future earning capacity
  3. duration of the marriage
  4. comparative financial resources of the spouses, including their comparative earning abilities in the labor market
  5. amount of time the spouses actually lived together as wife and husband
  6. tax consequences to each spouse
  7. age of the spouses
  8. physical and emotional conditions of the spouses
  9. vocational skills and employability of the spouse seeking alimony
  10. any custodial and child support responsibilities
  11. educational level of each spouse at the time of marriage and at the time the action for divorce is commenced
  12. cost of education of minor children and of health care for each spouse and the minor children
  13. distribution of marital property
  14. any legal obligations of the spouses to support themselves or others
  15. present employment or other income of each spouse
  16. whether either spouse has fore-gone or postponed economic, education, or career opportunities during the marriage
  17. standard of living during the marriage
  18. any financial or other contribution from 1 spouse to aid the education, training, vocational skills, career, or earning capacity of the other spouse
  19. financial needs of each spouse
  20. any other factor the court deems just and equitable
Marital misconduct of the spouses will be considered and compared. Alimony will not be awarded to any spouse who:
  1. was adulterous
  2. has been convicted of a felony during the marriage; or
  3. deserted or abandoned his or her spouse for 6 months
The court may require health and/or hospitalization insurance coverage as alimony.

Spouse's Name After Divorce
Upon request, either spouse may resume the use of his or her former name.

Child Custody After Divorce
Either parent may be awarded custody. There is a presumption in favor of the parent who has been the primary caretaker of the child.The factors for consideration are:

  1. the stability of the child
  2. any parenting plans or other written agreement regarding child custody
  3. the continuity of existing parent-child relationships
  4. meaningful contact between the child and both parents
  5. maintaining care by parents 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
  7. predictable decision-making and avoidance of prolonged uncertainty regarding the child's care and control
  8. fairness between the parents [as a secondary factor]
In addition, West Virginia provides specific guidelines for preparing Parenting Plans in the statute.

Child Support After Divorce
Either parent may be required to provide periodic child support payments, including health insurance coverage. These guidelines do not take into account the economic impact of the following factors that may be possible reasons for deviation:

  1. special needs of the child or parent, 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
  3. families with more than 6 children
  4. long-distance visitation costs
  5. if the child resides with another person
  6. needs of another child or children to whom the parent owes a duty of support
  7. the extent to which the parent's income depends on nonrecurring or nonguaranteed income
  8. whether the total of spousal support, child support, and childcare costs subtracted from a parent's income reduces that income to less than the federal poverty level
One of the parents may also be granted exclusive use of the family home and all the goods and furniture necessary to help in the rearing of the children. The court may require health and hospitalization insurance coverage as child support. Provisions for income withholding shall be included in every divorce decree to guarantee the support payments. Child support guidelines are available from the West Virginia Child Advocate Office and are in the statute. These guidelines are presumed to be correct, unless it is shown that the amount is unjust or inappropriate under the particular circumstances of a case.

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