How Do I File for Divorce in West Virginia?

Every state has its own rules and procedures for filing a divorce. Here's what you need to know to get started with your West Virginia divorce (also called an "absolute divorce").

Residency Requirements for Divorce in West Virginia

Before you start the divorce process, you'll need to be sure you meet one of the following residency requirements in order to get divorced in West Virginia:

• If you were married in West Virginia, either you or your spouse must live in the state when you file the divorce papers.
• If you were married in another state, one of you must have lived continuously in West Virginia for at one year just before the filing date.

The rules are somewhat different when you're seeking a fault divorce based on adultery. In that case, if your spouse doesn't live in West Virginia, you must have lived in the state for at least a year before you file. (W. Va. Code § 48-5-105 (2023).)

Grounds for Divorce in West Virginia

You'll also need to decide on the legal reason (or "ground") for your divorce. West Virginia allows both "no-fault" and "fault-based" divorces.

No-Fault Divorce in West Virginia

No-fault divorces are typically quicker and easier than fault-based divorces, because you don't have to argue about (or prove) who was responsible for the end of your marriage. West Virginia allows you to file for a no-fault divorce based on either of the following grounds:

• you and your spouse have irreconcilable differences, or
• the two of you have been separated for at least one year without interruption or marital relations, and that separation was voluntary for at least one of you.

(W. Va. Code §§ 48-5-201, 48-5-202 (2023).)

In West Virginia, both spouses must agree that they have irreconcilable differences, which basically means they can't get along any more, and there's no reasonable prospect of getting back together. Otherwise, you'll have to choose (and prove) another ground as the basis for the divorce.

If you seek a divorce based on separation, you'll need evidence from a third party—such as the testimony or sworn written statement of a friend—that you've been separated from your spouse for the entire year.

Fault-Based Grounds for Divorce in West Virginia

When you file for a fault-based divorce, you'll have to claim (and eventually prove) that your spouse's behavior (or condition) caused the marriage to fail. West Virginia allows the following fault-based grounds for divorce:

• cruel or inhuman treatment (more on that below)
• adultery
• child abuse or neglect
• desertion for at least six months
• habitual drunkenness or drug addiction
• conviction of a felony, and
• permanent, incurable insanity.

(W. Va. Code §§ 48-5-203–48-5-209 (2023).)

What Is Cruelty or Inhuman Treatment in West Virginia?

Under West Virginia law, you don't have to prove that you were a victim of physical violence in order to file for a fault-based divorce. The law defines cruel or inhuman treatment as including—but not limited to—any of the following:

• behavior that makes the other spouse reasonably afraid of being physically hurt
• any conduct that destroys the other spouse's mental or physical well-being and makes it unsafe or "unendurable" to continue living together, or
• falsely accusing the other spouse of adultery or homosexuality.

(W. Va. Code § 48-5-203 (2023).)

Will Your Divorce Be Uncontested?

Before you start the divorce process, you should know whether you and your spouse will be able to file for an uncontested divorce in West Virginia, meaning that you've already agreed about all the legal issues involved in ending your marriage, including:

• dividing your property and debts
• alimony (spousal support), and
• if you have minor children, child support and custody.

When you start out with a complete marital settlement agreement, your divorce will be quicker and less expensive. You won't have to go through expensive and time-consuming court battles, and you may be able to navigate the legal process without hiring lawyers (more on that below).

If there are any issues you can't agree on by the time you file your divorce papers, your case will at least start out as a contested divorce—even if you ultimately manage to reach a settlement before you have to go to trial to have a judge resolve your disputes.

Filing and Serving Your Divorce Papers in West Virginia

There are three basic steps to file for divorce: completing the proper forms, filing the paperwork with the court clerk, and making sure your spouse has official notice of the divorce and copies of all the documents.

Preparing the West Virginia Divorce Papers

The West Virginia Judiciary provides an online packet of the divorce forms you'll need to file for divorce in the state. The basic forms you'll need include the:

• Petition for Divorce
• Petitioner's Civil Case Information Statement Domestic Relations Cases
• Information Requested by Division of Vital Statistics
• Financial Statement, and
• Bureau for Child Support Enforcement Application and Income Withholding Form (for use in all divorces involving minor children or spousal support).

If you have minor children, you'll have to file additional paperwork relating to parenting classes, child support, and child custody.

You'll want to check with the court clerk in the county where you plan to file (more on that below) to see if they require additional forms.

Where to File Your Divorce Papers

Once you've completed all of the divorce forms, bring the originals and at least two copies to the court clerk in one of the following counties in West Virginia:

• the county where you last lived as a couple
• the county where your spouse currently lives (if in the state), or
• the county where you live, if your spouse lives out of state.

(W. Va. Code § 48-5-106 (2023).)

You can find links for family court information by county on the same West Virginia Judiciary webpage with the divorce forms (discussed above).

Divorce Filing Fees in West Virginia

You'll have to pay the court clerk a fee to file your divorce papers. As of 2023, the filing fee for divorce in West Virginia is $135. (W. Va. Code § 59-1-11 (2023).)

If you can't afford to pay, you can request a fee waiver. If the court grants your application, you won't have to pay the filing fee or other court costs for your divorce.

Serving Your Spouse With the Divorce Papers

After you file the paperwork, you'll need to give your spouse official notice of the divorce and copies of all the documents you filed. But you must use one of the accepted methods of "service" in West Virginia to deliver the divorce papers:

• Acceptance of service. If your spouse agrees to sign an "Acceptance of Service" form, you can simply hand over the divorce papers and then promptly file the signed, notarized acceptance form with the court clerk.
• Personal service with process server. If your spouse won't agree to do that, you may arrange to have another adult hand deliver the divorce papers to your spouse. The easiest way to do this is to ask the clerk to arrange for the sheriff to serve your spouse (for an additional $25). If you have someone else do this, you must make sure that they complete an affidavit swearing they served the papers, and that the affidavit is filed with the court.
• Service by mail. You may also ask the clerk to mail the paperwork by certified mail for an additional fee of $20. (You can't mail the documents yourself.)
• Service by publication. If you don't know where your spouse is, or if your spouse lives out of state and refuses to sign a return receipt for service by mail, you may ask the court for permission to serve your spouse by publication (by putting a notice in a court-approved newspaper or other publication).

Getting Help Filing Your West Virginia Divorce

If you want to file for an uncontested divorce in West Virginia, but you and your spouse are having trouble agreeing about all of the issues, you might consider mediation. Divorce mediation is often much less expensive and less contentious than battling it out in court.

Once you've reached an agreement, either on your own or with a mediator's help, you may be able to get a do-it-yourself divorce, using the forms and instructions provided on the West Virginia Judiciary website (mentioned above). You could also choose to file for divorce online by using a service that will provide the proper forms and fill them out based on your answers to a questionnaire. Some online divorce services will also take care of the actual filing, for an additional fee.

However, if your divorce will be contested or you have complicated finances, you will probably need to speak with a lawyer. (Learn more about when you can handle a divorce on your own or need an attorney.)