The Laws on Divorces That Are Filed in West Virginia

by Heather Frances J.D. Google
Filing for divorce is easier if you and your spouse agree on the terms.

Filing for divorce is easier if you and your spouse agree on the terms.

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Though the divorce process is similar in each state, every state has its own specific procedures that apply to divorces filed there. If you are planning to divorce in West Virginia, you must meet certain residency requirements and file on appropriate grounds. Then, if you and your spouse cannot reach agreement, the court will decide the terms of your divorce by following West Virginia’s laws on property division, custody, child support and alimony.

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Residency

If you were married in West Virginia, you can file for divorce there as long as you or your spouse is a resident, and it doesn’t matter how long either one of you has been a resident. If you were not married in West Virginia, however, you or your spouse must be a resident of West Virginia for at least one year prior to filing for divorce. Certain exceptions to this rule exist, and apply in situations such as living in West Virginia at the time the reason for your divorce arose.

Grounds

West Virginia courts must have a reason, or grounds, upon which to base your divorce. West Virginia offers the no-fault grounds of “irreconcilable differences” as well as fault-based grounds including desertion and extreme cruelty. If you allege any of the fault-based grounds, you must be able to prove the grounds exist. While adultery is one of the fault-based grounds in West Virginia, it has special proof requirements and cannot be granted if you and your spouse lived together after you found out about the adultery or if the adultery occurred more than three years ago.

Equitable Distribution

If you and your spouse can agree on how to divide your property, you can create a written settlement agreement for inclusion in your divorce decree. West Virginia is an equitable distribution state, which means West Virginia courts divide marital property between spouses in a fair and equitable manner, though not necessarily equally. The courts begin with a presumption that your property should be divided equally, but they consider many factors to determine if an equal distribution is appropriate. These factors include, for example, each spouse’s contributions during the marriage and whether one spouse contributed to the increased earning capacity of the other spouse.

Child Custody

As with property division, you and your spouse can agree about how to share custody of your children, and if you agree, the court can include that agreement in your divorce decree. If you don’t agree, the court will determine a custody arrangement it feels is in the best interests of your children. To determine a child’s best interests, the court considers many factors including the child’s stability, continuity of the parent-child relationship, and security from exposure to physical or emotional harm.

Child Support

West Virginia uses the income shares model to calculate child support. This model is based on the idea that a child should receive the same level of financial support that he received when his parents were married. As a result, the child support guidelines consider both parents’ incomes. The court will order the noncustodial parent to pay support based on his share of the couple’s combined income.

Alimony

Like other terms of a divorce, West Virginia courts use a list of factors when determining how much alimony, or spousal support, to award, if any. These factors include the length of the marriage, your income and that of your spouse, and the standard of living established during your marriage. If you and your spouse can reach agreement about alimony that is fair and reasonable, the court will adopt that agreement instead of substituting its own judgment.