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West Virginia Articles
West Virginia Divorce Laws
Residency and Filing Requirements:In order to file for a divorce in West Virginia, residency requirements must be met for the court to accept the case. If the court discovers it does not have jurisdictional rights to hear the case it will not be accepted or it will eventually be dismissed. The requirements are as follows:
In an action for divorce at least one of the spouses must have been a resident of the state for at least 1 year, except if the marriage took place in West Virginia, the 1 year residency requirement is waived.
The divorce shall be filed as follows: (a) If the respondent in an action for divorce is a resident of this state, the petitioner has an option to bring the action in the county in which the parties last cohabited or in the county where the respondent resides. (b) If the respondent in an action for divorce is not a resident of this state, 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. (West Virginia Code - Sections: 48-5-201)
Grounds for Filing:The Petition for Divorce must declare the appropriate West Virginia grounds upon which the divorce is being sought. The appropriate lawful ground will be that which the parties agree upon and can substantiate, or that which the filing spouse desires to prove to the court. The divorce grounds are as follows:
A divorce may be ordered:
(a) The parties have lived separate and apart in separate places of abode without any cohabitation and without interruption for one year. The separation may occur as a result of the voluntary act of one of the parties or the mutual consent of both parties. (b) Irreconcilable differences between the two parties.
(1) Reasonable apprehension of bodily harm; (2) False accusation of adultery or homosexuality; or (3) Conduct or treatment which destroys or tends to destroy the mental or physical well-being, happiness and welfare of the other and render continued cohabitation unsafe or unendurable. (4) Adultery. (5) Felony Conviction. (6) Permanent and Incurable Insanity. (7) Habitual drunkenness or drug use. (8) Willful neglect or abuse of spouse or child. (West Virginia Code - Sections: 48-5-202 and 48-5-209)
Filing Spouse Title:Petitioner. The Petitioner is the spouse who initiates the filing procedure with the family law or domestic relations court.
Non-Filing Spouse Title:Respondent. The Respondent is the spouse who does not file the initial divorce papers, but rather receives them by service.
Court Name:Circuit Court of __________ County, West Virginia. This is the West Virginia court where the divorce will be filed. The court will assign a case number and have jurisdictional rights to facilitate and grant the orders concerning, but not limited to: property and debt division, support, custody, and visitation. The name of the court is clearly represented at the top of all documents that are filed.
Primary Documents:Petition for Divorce and Decree of Divorce. These are the essential documents needed to start and finalize a divorce according to West Virginia law. There are anywhere from ten to twenty other documents that may be required throughout the filing process. A few other documents that are typically filed during the process are: Civil Case Information Statement, Summons, Verification, Marital Settlement Agreement, Financial Statement, Answer, and Information Requested by Vital Statistics Form.
Court Clerk's Title:Office of the Clerk of the County Circuit Court. The clerk or the clerk's assistants will be the people managing your paperwork with the court. The clerk's office will keep the parties and the lawyers informed throughout the process in regards to additional paperwork that is needed, further requirements, and hearing dates and times.
Property Distribution:Since West Virginia is an "equitable distribution" state, the marital property shall be divided in an equitable fashion. Equitable does not mean equal, but rather what is fair. The court will encourage the parties to reach a settlement on property and debt issues otherwise the court will declare the property award.
The court may award the exclusive use and occupancy of the marital home to a party. An order granting use and occupancy of the marital home shall include the use of any necessary household goods, furniture and furnishings. The order shall establish a definite period for the use and occupancy, ending at a specific time set forth in the order, subject to modification upon the petition of either party.
Upon every judgment of annulment, divorce or separation, the court shall divide the marital property of the parties equitably between the parties.
In the absence of a valid agreement, the court shall presume that all marital property is to be divided equally between the parties, but may alter this distribution, without regard to any attribution of fault to either party which may be alleged or proved in the course of the action, after a consideration of the following: (1) The extent to which each party has contributed to the acquisition, preservation and maintenance, or increase in value of marital property by monetary contributions; (2) The extent to which each party has contributed to the acquisition, preservation and maintenance or increase in value of marital property by nonmonetary contributions; (3) The extent to which each party expended his or her efforts during the marriage in a manner which limited or decreased such party's income-earning ability or increased the income-earning ability of the other party; (4) The extent to which each party, during the marriage, may have conducted himself or herself so as to dissipate or depreciate the value of the marital property of the parties.
Fault or marital misconduct shall not be considered by the court in determining the proper distribution of marital property. (West Virginia Code - Sections: 48-5-604, 48-5-612, 48-7-101)
Restoration or Name Change:The court, upon ordering a divorce, shall if requested to do so by either party, allow such party to resume the name used prior to his or her first marriage.
The court shall, if requested to do so by either party, allow such party to resume the name of a former spouse if such party has any living child or children by marriage to such former spouse. (West Virginia Code - Sections: 48-5-613)
Spousal Support:Not all cases involve support from one spouse to the other. The obligation of one spouse to support the other financially for a temporary or permanent basis is decided on a case-by-case basis as agreed to by the parties or at the court's discretion.
The court shall consider the following factors in determining the amount of spousal support to ordered in lieu of any signed separation agreement: (1) The length of time the parties were married; (2) The period of time during the marriage when the parties actually lived together as husband and wife; (3) The present employment income and other recurring earnings of each party from any source; (4) 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; (5) The distribution of marital property to be made under the terms of a separation agreement or by the court (6) The ages and the physical, mental and emotional condition of each party; (7) The educational qualifications of each party; (8) Whether either party has foregone or postponed economic, education or employment opportunities during the course of the marriage; (9) The standard of living established during the marriage; (10) 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; (11) Any financial or other contribution made by either party to the education, training, vocational skills, career or earning capacity of the other party; (12) The anticipated expense of obtaining the education and training described in subdivision above; (13) The costs of educating minor children; (14) The costs of providing health care for each of the parties and their minor children; (15) The tax consequences to each party; (16) 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; (17) The financial need of each party; (18) The legal obligations of each party to support himself or herself and to support any other person; (19) Costs and care associated with a minor or adult child's physical or mental disabilities; and (20) 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. (West Virginia Code - Sections: 48-6-301, 48-8-104)
Counseling or Mediation Requirements:The family court shall issue an order requiring parties to an action for divorce involving a minor child or children to attend parent education classes established unless the court determines that attendance is not appropriate or necessary based on the conduct or circumstances of the parties. The court may, by order, establish sanctions for failure to attend. The court may also order parties to an action involving paternity, separate maintenance or modification of a divorce decree to attend such classes. (West Virginia Code - Sections: 48-9-104)
Child Custody:When minor children are involved in a divorce, the West Virginia courts will do everything possible to help lessen the emotional trauma the children may be experiencing. If the parents cannot come to an agreement regarding the issues involving the children, the court will establish the custody order at its discretion.
If the parents agree to one or more provisions of a parenting plan, the court shall so order, unless it makes specific findings that: (1) The agreement is not knowing or voluntary; or (2) The plan would be harmful to the child.
The primary objective of the court is to serve the child's best interests, by facilitating: (1) Stability of the child; (2) Parental planning and agreement about the child's custodial arrangements and upbringing; (3) Continuity of existing parent-child attachments; (4) Meaningful contact between a child and each parent; (5) Caretaking relationships by adults who love the child, know how to provide for the child's needs, and who place a high priority on doing so; (6) Security from exposure to physical or emotional harm; and (7) Expeditious, predictable decision-making and avoidance of prolonged uncertainty respecting arrangements for the child's care and control. (West Virginia Code - Sections: 48-9-102, 48-9-201, 48-11-201)
Child Support:West Virginia child support guidelines are based on the Income Shares Model for calculating child support. The monthly support amount determined by applying the guidelines is divided proportionally according to each parent's income. These two support amounts are then offset to establish which parent will pay the other parent for support of the child. All income is typically verified by examining past W-2's and child support worksheets are available at the courthouse.
If the parents do not agree on a reasonable support amount, the basic child support obligation is determined by state child support guidelines and worksheets. The court will deviate from these guidelines if appropriate by considering the following factors: (1) Special needs of the child or support obligor, 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 (i.e. those incurred for private, parochial, or trade schools, other secondary schools, or post-secondary education where there is tuition or costs beyond state and local tax contributions); (3) Families with more than six children; (4) Long distance visitation costs; (5) The child resides with third party; (6) The needs of another child or children to whom the obligor owes a duty of support; (7) The extent to which the obligor's income depends on nonrecurring or nonguaranteed income; or (8) Whether the total of spousal support, child support and child care costs subtracted from an obligor's income reduces that income to less than the Federal Poverty Level and conversely, whether deviation from child support guidelines would reduce the income of the child's household to less than the Federal Poverty Level. (West Virginia Code - Sections: 48-13-301, 48-13-702)
Copyright Notice: The above synopsis of West Virginia divorce laws is original material which is owned and copyrighted by Divorce Source, Inc. This material has been adapted from applicable state laws and unauthorized reproduction is prohibited. Violation of this notice will result in immediate legal action.
The primary consideration in child custody is the best interests of the child, according to the West Virginia Code. The judge in a custody case looks at several factors including who historically served as the primary caretaker of the child, the physical and mental health of the parents and the child, age of the child, and the type of residences maintained by each parent.
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