How Do I File for Divorce in West Virgina

Here are the basic forms you'll need to file and steps you'll need to take to start the divorce process in West Virginia.

The Basics of Filing for Divorce in West Virginia

If you're contemplating filing for divorce in West Virginia, you might want to familiarize yourself with the state's domestic relations laws. This article provides general guidelines regarding the divorce process in West Virginia and outlines everything you need to know to get your case started.

Residency Requirements and Reasons for Divorce

You have two options when filing for divorce in West Virginia: no-fault divorce or a fault-based complaint. No-fault divorce is offered in all 50 states and has become increasingly popular as more couples seek to end their marriages as amicably as possible. In a no-fault divorce, the parties file their petition without alleging any wrongdoing. Instead, they simply state they have irreconcilable differences. To file a no-fault divorce complaint in West Virginia, both spouses must agree to it in writing.

If the parties cannot agree or one spouse declines the no-fault option, the state provides eight fault-based reasons for the divorce. Also known as grounds, these reasons include:

  • living apart for at least one year
  • cruel treatment
  • infidelity
  • one spouse being convicted of a felony
  • permanent and incurable insanity
  • alcohol or drug addiction
  • abandoning the other spouse for at least six months
  • abuse or neglect of the couple's child or a stepchild

Unlike most states, West Virginia has no residency requirement as long as the parties were married in the state and at least one spouse currently resides there. If you were married outside West Virginia, or you or your spouse lives in another state, you must wait at least one year before filing your complaint.

Preparing Your Forms

West Virginia breaks its divorce forms into two categories: with or without children. The forms you file depend on whether you and your significant other have children together, either biological or adopted. If you adopted your spouse's child from a previous relationship, West Virginia law treats that child as if he or she were your biological offspring for custody and support purposes. If you and your spouse have children together, state law requires the following forms:

  • case information sheet
  • petition for divorce
  • vital statistics form
  • financial statement
  • child support income withholding form
  • parent education registration form
  • proposed parenting plan, and
  • fee waiver affidavit (for low-income state residents who qualify).

If the parties have no children together, they must file the following:

  • case information sheet
  • petition for divorce
  • vital statistics form
  • financial statement, and
  • fee waiver affidavit (for low-income state residents who qualify).

The West Virginia Supreme Court has created uniform domestic relations forms for all counties within the state. Although state law requires each county to accept these forms in divorce cases, a handful of counties retain their own unique documents. Before filing your case, it's a good idea to check with the county clerk's office to determine whether your court prefers a certain set of forms.

Filing Your Forms

Once you have the appropriate forms in order, file them in the county clerk's office. Some of the forms must be notarized, which means you sign them under oath in front of a notary public. West Virginia law is very specific about the number of copies you must file when you open your divorce case. State law requires the following:

  • original plus one copy of the petition for divorce
  • original plus two copies of the case information sheet
  • original vital statistics form (no copies)
  • original fee waiver affidavit, if applicable (no copies)
  • original plus one copy of financial statement
  • original child support income withholding form, if applicable (no copies)
  • original parent education registration form, if applicable (no copies), and
  • original plus one copy of proposed parenting plan, if applicable.

Serving Your Forms

Under West Virginia law, the filing spouse must "serve" the divorce documents upon the opposing side. "Service of process" refers to delivering copies of all the legal documents to the non-filing party. This ensures fairness, as the other person is promptly notified of the need to respond. West Virginia offers a wide range of service options, including:

  • personal service
  • certified mail service
  • sheriff's service
  • service by publication, or
  • pick up at the clerk's office.

Personal service is the preferred service method in the state. In West Virginia, personal service is achieved by hand-delivering the divorce papers to the other side. State law prohibits spouses from personally serving each other. Instead, you must either hire a process server or ask a friend or family member to deliver the documents.

Certified mail is another option, however, it works best if the person you're serving lives within the state. If you use certified mail to serve a non-West Virginia resident, the court might not be able to rule on how your property should be divided. You can also arrange to have your spouse pick up the documents at the local clerk's office, however, the other person must consent to pick up service.

Financial Disclosures

Like many other states, West Virginia law requires both sides to exchange all their assets and debts. The financial statement is a comprehensive document that asks each party to list the following:

  • income
  • employment information
  • household goods
  • tools and jewelry
  • valuable items in your possession
  • checking account information
  • loans
  • monthly expenses
  • life insurance
  • credit card information
  • information about minor children
  • health insurance provider for minor children, and
  • information about spousal support.

In many cases, the financial statements help each side identify the most important issues in the case. Trading this information in the early stages of the divorce process can help the parties avoid prolonged conflict and disagreement.

Resources

Legal Aid of West Virginia

West Virginia Judiciary

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