West Virginia Divorce Basics

Get started here to learn about the divorce process in West Virginia.

West Virginia recognizes both fault and no-fault grounds for divorce. The basis for a no-fault divorce is that there are irreconcilable differences between the two spouses, or proof that the spouses have lived separate and apart without cohabitation for at least one year. Fault grounds include cruel or inhuman treatment, adultery, felony conviction, permanent and incurable insanity, habitual drunkenness, desertion of the other spouse for six months, or abuse or neglect of a child.

Grounds for Divorce

West Virginia recognizes both fault and no-fault grounds for divorce. The basis for a no-fault divorce is that there are irreconcilable differences between the two spouses, or proof that the spouses have lived separate and apart without cohabitation for at least one year. Fault grounds include cruel or inhuman treatment, adultery, felony conviction, permanent and incurable insanity, habitual drunkenness, desertion of the other spouse for six months, or abuse or neglect of a child. Each fault ground requires specific proof.

Residency Requirement

The residency requirement for divorce in West Virginia depends on whether the couple was married within the state. If the couple was married in West Virginia, then they may file for divorce there if either spouse is a resident at the time of the filing. However, if the couple did not get married in the state, then one of the spouses must be a resident for at least one year before they can file for divorce.

Property Division

If the spouses are not able to agree on the distribution of property, then the court may step in and divide it equitably. This does not mean that the spouses will get equal shares; this means that the marital property will be divided in a just and equitable way between the two of them. The court may take the following factors into consideration when making this decision: each spouse’s contribution to the acquisition of the marital property, either financially or through nonmonetary contributions; and whether either spouse contributed to the family in ways that allowed the other spouse to increase earning potential.

For example, a homemaker who took care of the house and children so that the other spouse could get an education or other training that would allow that spouse to earn more would receive an equitable award of marital property even if the stay-at-home spouse's financial contributions were significantly less than the earning spouse's contributions.  

(To learn more, see West Virginia: Dividing Property).

Alimony          

Courts don't award alimony, or spousal support, in all cases. A court may determine that an order for support is appropriate based on certain factors: each party’s earning abilities, the standard of living established during the marriage, the marital property distribution, the costs to care for children, and the ability of the party requesting support to obtain further education or training to become self-supporting.

In West Virginia, alimony is divided into four categories: permanent support, temporary support, rehabilitative support, and support in gross. Permanent support is paid over an extended period of time while temporary support may only be awarded during the divorce proceedings. Rehabilitative support would allow the supported spouse to get education or training to become self-sufficient. Support in gross is a one-time lump sum payment of support or even an award of property in lieu of support.

Child Support

To calculate child support, West Virginia provides a basic child support guideline chart. This chart uses the parents’ combined gross monthly income and the number of children to determine the amount of child support. If there are more than six children or if the parents’ combined gross monthly income exceeds $15,000, then there is a special formula to determine the support amount.

Parents may deduct other child support payments, the child’s health care, and work related child care costs from their monthly income before the support calculation is made. The website for the West Virginia Bureau for Child Support Enforcement has other important information on child support, which can be found  here.

Child Custody

When making an order for child custody, the court will use the best interests of the child standard. This means that a judge will help the parents create a parenting plan that allows the child to maintain a relationship with both parents, have a stable environment, and be protected from any harm.

A permanent parenting plan needs to be approved by the court and must include both parents’ work schedules, the division of responsibilities between the parents, and information about what the parents agree and disagree on.  

If there is evidence of domestic violence, abuse or neglect of the child, or even numerous false accusations of child abuse by the other parent, the court may limit a parent’s visitation or custody to make sure that the child is safe. The court can also make orders for supervised visitation or require that the custody exchange take place in a neutral location.

The parents can return to court after the permanent parenting order to ask for a modification in the plan if there is a substantial change in circumstances and the modification is necessary to serve the best interests of the child. However, there are certain situations that do not require a parent to show a substantial change in circumstances to get the child custody order modified. For example, if the custody arrangement has been informally changed from the parenting plan for at least six months before the petition for modification is filed, then the court may allow the modification.

(See Child Custody in West Virginia: The Best Interests of Child for detailed information).

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