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West Virginia Alimony
Alimony

West Virginia law allows courts to award alimony, which is called spousal support. Either spouse can be ordered to pay.

West Virginia alimony laws are often difficult to apply.

Married couples in West Virginia can ask the court to award alimony in any divorce or legal separation, according to West Virginia Code section 48-8-101. The court may require either party to pay spousal support. The court considers all relevant information including marital fault in determining the amount and duration of alimony. This means the needs, abilities, incomes and other factors.

In order for spousal support to be awarded, the partners must be living apart, according to West Virginia Code section 48-8-101(c).

Further, a court can also award spousal support if the couple entered into a prenuptial agreement.

While the court considers a variety of factors in deciding spousal support, it may consider other factors necessary to arrive at a fair decision.

The court can modify an order of rehabilitative spousal support if either spouse experiences a substantial change that affects the factors upon which the court based its original decision, according to the West Virginia Code section 48-8-105(b). A substantial change, for example, would be a job loss or major medical problem. The West Virginia courts DO consider the marital misconduct of spouses in awarding alimony. Alimony is not awarded to any spouse who is adulterous, convicted of a felony during the marriage, or deserts or abandons his or her spouse for 6 months. There must be a change of circumstances in order for a West Virginia court to modify or terminate an existing support award.

The paying party may deduct support payments from federal taxes. The recipient must then claim such payments as income.

Types of Alimony

The court orders four kinds of support: permanent, temporary, rehabilitative or gross, according to West Virginia Code section 48-8-101(b). Rehabilitative support is made for a limited time and designed to get the recipient where he or she can be reasonably self-supporting. Permanent support lasts for as long as the recipient is alive and does not remarry, Temporary support only lasts a limited time. Gross support is a lump sum payment that the paying spouse only makes once or over a series of payments.

Factors Considered by the Court

The West Virginia court enjoys wide discretion in deciding what constitutes a substantial change in circumstances and how such a change affects the spousal support. Support is decided on a case-by-case basis. Sometimes support lasts for several years or it can also be for a shorter time or in a lump sum. The court considers the needs of the parties in deciding the duration of support.

According to the West Virginia Code - Sections: 48-6-301, 48-8-104, the court considers:

  • the duration of the marriage;
  • the period of time during which the spouses actually cohabitated;
  • the income of the spouses;
  • the income-earning abilities of each of the parties, based upon such factors as educational background, training, employment skills, work experience, length of absence from the job market and custodial responsibilities for children;
  • the property awarded by agreement or by the court;
  • the ages and the health condition of each party;
  • the educational qualifications of each party;
  • the postponement of education by one spouse to further the earning capacity of the other;
  • the standard of living established while married;
  • the likelihood that the party seeking spousal support, child support or separate maintenance can substantially increase his or her income-earning abilities within a reasonable time by acquiring additional education or training;
  • any financial or other contribution made by either party to the education, training, vocational skills, career or earning capacity of the other party;
  • the anticipated expense of obtaining the education and training;
  • the educational costs of any children;
  • health care cost for the children;
  • the tax ramifications to each party;
  • the extent to which it would be inappropriate for a party, because said party will be the custodian of a minor child or children, to seek employment outside the home;
  • the financial need of each party;
  • the legal obligations of each party to support himself or herself and to support any other person;
  • costs and care associated with a minor or adult child’s physical or mental disabilities; and
  • such other factors as the court deems necessary or appropriate to consider in order to arrive at a fair and equitable grant of spousal support, child support or separate maintenance.

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