How Do I File for Divorce in West Virginia?

Learn about the forms and procedures required to file 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 laws. This article provides general guidelines regarding the divorce process in West Virginia and outlines everything you need to know to begin.

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 spouses file their petition without alleging any wrongdoing. Instead, they state they have irreconcilable differences. To file a no-fault divorce complaint in West Virginia, both spouses must agree to it in writing. (W.Va. Code § 48-5-201 (2018).)

If the parties cannot agree or one spouse declines the no-fault option, the state provides eight fault-based reasons for the divorce. (W.Va. Code §§ 48-5-202-209 (2018).) Also known as grounds, these reasons include:

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

Unlike most states, West Virginia has no residency requirement for divorce as long as the spouses were married in the state, and at least one spouse currently resides there.

If you were married outside of West Virginia, or you or your spouse lives in another state, you must wait at least one year before filing your complaint. (W.Va. Code § 48-5-105 (2018).)

Preparing Your Forms

West Virginia breaks its divorce forms into two categories: with or without children. The forms you file will 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 the child 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
  • a proposed parenting plan, and
  • fee waiver affidavit (for low-income state residents who qualify).

If the couple has 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 particular set of forms.

Filing Your Forms

Once you have the appropriate forms in order, submit them to 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 is particular 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 the 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 the 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. Proper service ensures fairness, as it promptly notifies the other person 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, you can achieve personal service 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 property division. 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 the 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

The West Virginia Judiciary provides divorce packet forms on the state website. You can find instructions and appropriate forms for all types of divorce.

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