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West Virginia Legal Separation
Legal Separation in West Virginia

In West Virginia, filing for a legal separation - called separate maintenance - is not much different from filing for divorce. The major distinction is that in a separation the spouses remain married; in a divorce, they become single. A separation order spells out the terms and condition of the separation. If they divorce later, the separation expedites the action. Unless the parties divorce later, the separate order remains effective indefinitely.

Couples who mutually wish to separate can negotiate separation agreements. A separation agreement is an enforceable contract between spouses that covers the terms and conditions of the separation including the division of assets and liabilities, spousal and child support, and visitation. In the event of a divorce, a West Virginia judge incorporates the terms of the agreement into a divorce decree, provided that it is fair and reasonable to both spouses.

Couples who wish to divorce at a later date (but are not in a hurry) can simply separate for a year. If they have a separation agreement in place, it controls the terms of the breakup. For this to work as a preliminary to divorce, however, the spouses must physically separate; a reconciliation, however brief, starts the clock over again. The couple cannot divorce until a year has passed from the beginning of a new separation after the attempted reconciliation.

When the spouses have already separated, one partner can file a petition for separate maintenance when the other refuses to pay support. This is essentially a court-ordered separation. The court addresses support, custody and property division, and it can make orders governing these items.

A spouse can file for separate maintenance even if he or she does not want to divorce.

Separation Agreement

A separation agreement is a legal binding contract signed by spouses, which is intended to resolve property, debt and child related issues. This can be a very complex and detailed document depending upon the unique situation of the marriage. Many spouses consult an attorney to provide this or they decide to prepare their own.

Complaint

A complaint for separate maintenance calls for the same information as the divorce complaint. It includes the identification of the parties, their children; the date of marriage; the grounds, and any issues that remain unresolved such as alimony, child support, custody and visitation terms, and the use of certain marital property, like the family home.

The complaint for separate maintenance must be filed in the West Virginia county where the respondent lives or in the county where the spouses last lived together. The action is filed the family division of the circuit court.

Grounds

The grounds for a legal separation, which is called separate maintenance, are the same as divorce. Like divorce, a complaint for separate maintenance in West Virginia requires grounds. West Virginia permits no-fault, which means irreconcilable differences, or living apart and without cohabitation for one year, along with other fault grounds. A couple who have been living a part for a year can file for legal separation.

Residency

One of the spouses must live in West Virginia for a least one year before filing for a separation.

Initial Procedure

The respondent is served with a copy of the complaint. The easiest way to do this is to have the county sheriff deliver it. In a no-fault filing, the respondent must agree in writing that the marriage has suffered irreconcilable differences and cannot be saved and must have the statement notarized. The petitioner then files it with the court.

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