The Code of West Virginia Regarding the Grounds for Divorce

By Wayne Thomas

West Virginia offers both fault and no-fault grounds for divorce. If the parties agree on the divorce, or one spouse can prove abuse or adultery, the marriage can usually be dissolved without delay. Other grounds, such as separation and desertion, require the parties to complete a waiting period defined by law. Regardless of the grounds for divorce, the existence of marital misconduct may be considered by the court as part of spousal support and custody proceedings in West Virginia.

West Virginia offers both fault and no-fault grounds for divorce. If the parties agree on the divorce, or one spouse can prove abuse or adultery, the marriage can usually be dissolved without delay. Other grounds, such as separation and desertion, require the parties to complete a waiting period defined by law. Regardless of the grounds for divorce, the existence of marital misconduct may be considered by the court as part of spousal support and custody proceedings in West Virginia.

No-Fault Divorce

If you and your spouse agree the marriage is over, you may pursue a divorce based on irreconcilable differences in West Virginia. This is a no-fault action, which requires only that both spouses attest the marriage relationship cannot be salvaged. No corroborating evidence or proof is required and the divorce can proceed immediately. As an alternative, the state offers an additional no-fault ground of voluntary separation if a couple cannot agree. This ground requires a separation period of one year, based on the voluntary act of one spouse to separate for the purpose of obtaining a divorce. By law, the parties must maintain different residences during the separation period.

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Fault Grounds

West Virginia also provides traditional fault grounds for divorce, including adultery, cruelty and desertion. Unlike a no-fault divorce, a period of separation is not required before an injured spouse may file on these grounds. But the ground of desertion requires your spouse to be absent for six months, which operates similar to a waiting period. Also, fault grounds must be proven, which generally requires more than your testimony alone to establish the misconduct. Corroborating evidence might include witness accounts, bank statements showing payments made to support an extramarital affair or a criminal conviction for abuse.

Child Abuse

If your spouse has committed child abuse or neglect, this can be the basis for a divorce in West Virginia. This ground is somewhat unique to the state and requires a showing that either physical or mental harm was inflicted on the child or the parent willfully failed to provide support. Support includes covering basic needs, such as food and shelter, as well as ensuring a child receives sufficient education and medical care. Successfully proving abuse or neglect also prevents your spouse from exercising custody rights after the divorce.

Impact of Marital Fault

In addition to affecting custody, marital misconduct can impact the ability of a spouse to receive spousal support in West Virginia. This is true even if the divorce was filed under one of the no-fault grounds, such as voluntary separation. You may introduce evidence of the misconduct at trial; the court will consider it as one factor weighing against an award of spousal support. If the misconduct is adultery, however, West Virginia is one of the few states that specifically bars a guilty spouse from receiving any spousal support. By contrast, when it comes to dividing marital property, the court will do so equally without regard to fault. This is the case regardless of whether the misconduct was grounds for divorce or established separately at trial.

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Divorce Fault in Maine

References

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The Justification for a Divorce

Every state requires that parties filing for divorce give a legally recognized reason for seeking to end the marriage. These are called grounds, which can be categorized as either fault or no-fault. A few states offer only no-fault grounds, while others recognize both types. Each state has its own set of grounds for divorce, although they are often quite similar. No matter what, grounds for divorce must be proven before the court will grant you and your spouse a final judgment of divorce.

What Does it Mean to File for Irreconcilable Differences in a Divorce?

When filing for divorce, states generally require the divorcing couple name the grounds under which they are bringing their divorce case. Irreconcilable differences is one of those possible grounds. Divorce laws are created on a state-by-state basis, however. Thus, it is not possible to file for divorce on the grounds of irreconcilable differences in every United Sates jurisdiction.

How Long Do You Have to Be Separated to Get a Divorce in Virginia?

If your marriage is no longer working, you have the option of filing for legal separation or divorce. Unfortunately, in Virginia, these options are not described in such a straightforward manner. Instead, legal separation is known as "divorce from bed and board," while an actual divorce is called a "divorce from the bond of matrimony." Considering the similarity in terminology, it's easy to get the two confused. To ensure you meet the requirements for a divorce, particularly the length of separation required, it's important to know and understand the differences between the two.

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