West Virginia Divorce Basics
Divorce in West Virginia is referred to as Absolute Divorce.
Residency Requirement:
To file for divorce, if the marriage was entered into within West Virginia, one or both parties must be an actual bona fide resident of West Virginia at the time the action is commenced, regardless of the length of residency.
If the couple did not marry in the state, to file for divorce, one of the parties must be a bona fide resident at the time the cause of action arose, or has become one since that time and the residency must have continued uninterrupted through the one-year period immediately preceding the filing of the action.
To file for divorce on the grounds of adultery, one of the parties must be a bona fide resident at the commencement of the action. However, if the Respondent (non-filing party) is a nonresident and cannot be personally served within West Virginia, the Petitioner (filing party) must have been an actual bona fide resident for at least one year immediately preceding the commencement of the action.
Filing:
The West Virginia circuit courts and family courts have jurisdiction to grant a divorce for any grounds fixed by law in the state, without regard to the law of the place where the marriage occurred or where the marital offense was committed.
Either or both parties to a marriage may initiate an action for divorce.
If the Respondent is a resident of the state, the Petitioner has an option to file a Petition for Divorce in the county where the parties last cohabited or in the county where the Respondent resides. If the Respondent is not a resident, 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.
Spouse’s Name:
When the court orders a divorce, if requested to do so by either party, it shall allow that party to resume the name used prior to his her first marriage. In the case of where the party has been married before, if requested by either party, the court shall allow that party to resume the name of a former spouse, if that party has any living child(ren) by marriage to the former spouse.
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Legal Grounds for Divorce
In West Virginia, a divorce may be granted for any of the following grounds.
1. Irreconcilable differences;
2. Voluntary separation, where the parties have lived separate and apart in separate places of abode without any cohabitation and without interruption for one year;
3. Cruel or inhuman treatment by either party against the other, including reasonable apprehension of bodily harm, false accusation of adultery or homosexuality, or 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. Either of the parties subsequent to the marriage, has been convicted of a felony and the conviction is final;
6. Permanent and incurable insanity, if the party has been confined in a mental hospital or other similar institution for a period of not less than three consecutive years immediately preceding the filing of the complaint and the court has heard competent medical testimony that the insanity is permanently incurable;
7. Habitual drunkenness of either party subsequent to the marriage;
8. The addiction of either party, subsequent to the marriage, to the habitual use of any narcotic or dangerous drug;
9. Willful abandonment or desertion for sis months; or
10. Abuse or neglect of a child of the parties or one of the parties, meaning any physical or mental injury inflicted on the child and/or willful failure to provide, by party who has legal responsibility for the child, the necessary support, education as required by law, or medical, surgical or other care necessary for the well-being of the child.
A divorce may not be granted on the grounds of adultery if based on the uncorroborated testimony of a prostitute, or a known criminal or accomplice, nor when it appears that the parties voluntarily cohabited after the knowledge of the adultery, or that it occurred more than three years before the institution of the action.
No divorce may be granted when the offense charged has been condoned, or was committed by the procurement of connivance of the Plaintiff, or that the Plaintiff has, within three years before the institution of action, been guilty of adultery not condoned.
Annulment
The age of consent for marriage is 18 years of age. A person under the age of 18 lacks the capacity to contract a marriage, but may do so is he/she is at least 16 years of age and has obtained valid written consent from a parent or guardian.
If a party is under the age of 16, he/she may marry only with valid written consent from a parent or legal guardian and upon order of a circuit judge who has determined it is in the best interest of the minor to marry.
If a party to a marriage is under the age of consent and he/she has not obtained the necessary legal consent from a parent, guardian or court, the marriage is voidable, but it is valid until the marriage is actually annulled. Alternatively, the marriage may be ratified and may become completely valid and binding when the underage party reaches the age of consent. This ratification may include continued cohabitation as husband and wife after the age of consent is attained.
A man is prohibited from marrying his mother, grandmother, sister, daughter, granddaughter, half sister, aunt, brother’s daughter, sister’s daughter, first cousin or double cousin.
A woman is prohibited from marrying her father, grandfather, brother, son, grandson, half brother, uncle, brother’s son, sister’s son, first cousin or double cousin.
These prohibitions regarding relationships apply to both blood ties and those established by marriage. The relationship of cousin or double cousin does not apply when the relationship is created solely by adoption.
An action to annul or affirm a marriage may not be brought unless one of the parties is a resident of the state at the time the action is commenced. However, if neither party is a resident of the state, the action to annul may still be brought provided the marriage was performed in West Virginia and the parties have not established a matrimonial domicile elsewhere.
If the Respondent to an action for annulment or affirmation is a resident of the state, the Petitioner may bring the action in either the county where the parties last cohabited or in the county where the Respondent resides.
If the Respondent is not a resident, the Petitioner may bring the action in either the county where the parties last cohabited or in the county where the Petitioner resides.
If neither party is a resident of the state, the action must be brought in the county where the marriage was performed.
The following are voidable marriages and are void from the time they are so declared by a judgment order of nullity:
Bigamy;
Marriages prohibited by law due to blood relation or affinity between the parties;
Either party to the marriage was an insane person, idiot or imbecile;
Either party to the marriage was afflicted with a venereal disease;
Either party was incapable, because of natural or incurable impotency of the body, of entering into the marriage state;
Either party was under the age of consent, and had not obtained the necessary consent;
Either party had been, prior to the marriage and without the knowledge of the other party, convicted of an infamous offense;
A marriage solemnized when, at the time of the marriage, the wife, without the knowledge of the husband was with child by some person other than the husband;
The wife had been, prior to the marriage, notoriously a prostitute and the husband was not aware of this; or
A marriage solemnized when, prior to the marriage, the husband, without the knowledge of the wife, had been notoriously a licentious person.
An action for annulment may not be brought in the following cases:
Either party was naturally or incurably impotent of the body, but the other party had knowledge of the incapacity at the time of the marriage;
If the cause is fraud, force or coercion, but the injured party, after knowledge of the facts has by acts or conduct confirmed the marriage;
If the cause is affliction with a venereal disease existing at the time of marriage, the person may not bring the action if he/she has since been cured, and the non-afflicted person may not bring the action if after his/her spouse was cured, he/she has by acts or conduct confirmed the marriage;
If the cause is the nonage of either party, the underage party may not bring the action if he/she has by acts or conduct, confirmed the marriage after attaining the age of consent;
If the cause is the lack of consent by either party, the party who did consent or bring about the marriage may not bring the action;
If the cause is that either party has been convicted of an infamous offense prior to the marriage, if the injured party cohabited with the spouse after learning of the offence, he/she may not bring the action;
If the cause is that the wife was pregnant by someone other than the husband, or had been a prostitute, if the husband has cohabited with the wife after learning of the fact, he may not bring the action; or
If the cause is that the husband was notoriously a licentious person prior to the marriage, if the wife has cohabited with the husband after learning of the fact, she may not bring the action.
Property Division
Generally, upon every judgment of annulment, divorce or separation, the court shall divide the marital property of the parties equally between the parties.
If the parties have a separation agreement, the court will divide the marital property in accordance with this agreement, unless the court finds the following:
The agreement was obtained by fraud, duress or other unconscionable conduct by one of the parties;
That the parties, in the separation agreement, have not expressed themselves in terms which, if incorporated into a judicial order, would be enforceable by a court in future proceedings; or
That the agreement is so inequitable as to defeat the purpose of equitable and fair property distribution, and this agreement was inequitable at the time it was executed.
If there is agreement, the court presumes that all marital property shall be divided equally between the parties, but may alter this distribution, without regard to attribution of fault to either party, after consideration of the following factors.
The extent to which each party has contributed to the acquisition, preservation and maintenance, or increase in value of marital property by monetary contributions, including employment income and other earnings and funds which are separate property;
The extent to which each party has contributed to the acquisition, preservation and maintenance or increase in value of marital property by nonmonetary contributions, including homemaker services, child care services, labor performed without compensation or inadequate compensation in a family business or other business entity where the parties have an interest, labor performed in the actual maintenance or improvement of tangible marital property, labor performed in the management or investment of assets which are marital property;
The extent to which each party expended his/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, including direct or indirect contributions to the education or training of one party which has increased the income-earning ability of the party and whether either party has foregone employment or other income-earning activity through an understanding of the parties or the insistence of the other party; and
The extent to which each party, during the marriage, may have conducted himself/herself so as to dissipate or depreciate the value of the marital property of the parties.
After considering these factors, the court shall proceed with the following:
Determine the net value of all marital property of the parties;
Designate the property which constitutes marital property, and define the interest in this property to which each party is entitled, as well as the value of their respective interest in said property;
Designate the property which constitutes separate property of the respective parties or the separate property of their children;
Determine the extent to which marital property is susceptible to division in accordance with the findings of the court as to the respective interests of the parties;
In the case of any property which is not susceptible to division, ascertain the projected results of a sale of such property;
Ascertain the projected effect of a division or transfer of ownership of income-producing property, in terms of the possible pecuniary loss to the parties or other persons which may result from an impairment of the property’s capacity to generate earnings; and
Transfer title to the component parts of the marital property that may be necessary to achieve an equitable distribution of the marital property.
Spousal Support
Spousal support may only be ordered when the parties are actually living separate and apart from one another. It may be paid as a lump sum, as periodic installments, or both, for the maintenance of the other party. The family courts and circuit courts have jurisdiction to award this support.
Spousal support is divided into the following four classes:
1. Permanent spousal support;
2. Temporary spousal support, otherwise known as spousal support pendent lite;
3. Rehabilitative spousal support; and
4. Spousal support in gross.
Rehabilitative spousal support is to be awarded for a limited period of time to allow the recipient spouse to become gainfully employed, when she/he demonstrates the potential for self-support that could be developed through rehabilitation, training or academic study.
In determining whether spousal support is to be awarded, and if so, the amount, the court shall consider and compare the fault or misconduct of either or both of the parties and the effect of the fault or misconduct as a contributing factor to the deterioration of the marital relationship.
The court shall consider the following factors in determining the amount of spousal support, child support or separate maintenance, if any to be ordered, as a supplement to or in place of the separation agreement:
The length of the marriage;
The period of time during the marriage when the parties actually lived together as husband and wife;
The present employment income and other recurring earnings of each party from any source;
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 distribution of marital property to be made under the terms of the separation agreement or by the court, with regards to how the distribution affects or will affect the earnings of the parties and their ability to pay or their need to receive spousal support, child support or separate maintenance;
The ages and the physical, mental and emotional condition of each party;
The educational qualifications of each party;
Whether either party has foregone or postponed economic, education or employment opportunities during the course of the marriage;
The standard of living established during the marriage;
The likelihood that the party seeking spousal support, child support or separate maintenance can substantially increase his/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 described above to increase the spouse’s income-earning abilities;
The costs of educating minor children;
The costs of providing health care for each of the parties and their minor children;
The tax consequences to each party;
The extent to which it would be inappropriate for a party, because that 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/herself and to support any other person;
Costs and care associated with a minor or adult child’s physical or mental disabilities; and
Any other factors that 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.
