How Do I File for Divorce in West Virginia?

The easiest way to divorce in West Virginia is by agreeing to divorce due to "irreconcilable differences."

By , Attorney

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

You must meet a state's residency requirements before you can file for divorce in its courts.

  • If you were married in West Virginia, you can get a divorce as long as one of you lives in West Virginia at the time the divorce is filed. It doesn't matter how long either spouse has lived in the state.
  • If you weren't married in West Virginia, you can get a divorce if one spouse is a resident of West Virginia at the time of filing and has lived there continuously for at least one year before filing.
  • If you're getting divorced on adultery grounds, one of the spouses must be a resident of West Virginia. If the respondent (the non-filing spouse) isn't in West Virginia and can't be personally served within the state, the divorce can't happen unless the petitioner (the filing spouse) has been living in West Virginia for at least one year before filing.

(W. Va. Code § 48-5-105 (2022).)

Where to File Your Divorce Case

It's important to file your divorce in the correct court—filing in the incorrect court could cause delays or dismissal of your divorce. West Virginia has specially designated family courts that decide divorces. You'll file your divorce with the clerk of the court. (Depending on the structure of the court, you might file your paperwork with the clerk of the circuit court, even though it will be the family court that decides your divorce.)

If the respondent lives in West Virginia, the petitioner can file in the county where the spouses last lived together or in the county where the respondent lives.

If the respondent lives outside West Virginia, the petitioner can file in the county where the spouses last lived together or in the county where the petitioner lives.

(W. Va. Code § 48-5-106 (2022).)

The Grounds for Divorce in West Virginia

West Virginia allows both "no-fault" and "fault-based" divorces. A no-fault divorce is one in which the court doesn't require either spouse to prove that the other's bad acts were the cause of the divorce. In a fault-based divorce, one or both of the spouses must show that the other's actions caused (were "grounds for") the failure of the marriage.

No-Fault Grounds for Divorce in West Virginia

No-fault divorces in West Virginia reach resolution faster than fault-based divorces because the spouses don't have to argue about or prove who was responsible for the divorce. There are two no-fault grounds for divorce in West Virginia:

  • irreconcilable differences and
  • continuous separation for a year or more without cohabitation (at least one of the spouses must have voluntarily separated from the other).

(W. Va. Code §§ 48-5-201 and 48-5-202 (2022).)

"Irreconcilable differences" generally means that the spouses can no longer get along—to the point that the marriage is broken, and there's no hope that the spouses can reconcile. In West Virginia, both spouses must agree that they have irreconcilable differences. If both spouses don't agree on this ground, you will have to choose (and prove) another ground as the basis for the divorce.

If you choose to divorce on the grounds of separation, you will have to produce evidence from a third party—such as the testimony or sworn written statement of a friend—that you have been separated from your spouse for the required period of time.

Fault-Based Grounds for Divorce in West Virginia

In a fault-based divorce, one or both spouses will have to present evidence to the judge that proves that the other spouse's behavior caused the marriage to fail. West Virginia has the following fault-based grounds for divorce:

  • cruel or inhuman treatment (W. Va. Code § 48-5-203 (2022))
  • adultery (W. Va. Code § 48-5-204 (2022))
  • conviction of a felony (W. Va. Code § 48-5-206 (2022))
  • permanent and incurable insanity (W. Va. Code § 48-5-206 (2022))
  • habitual drunkenness or drug addiction (W. Va. Code § 48-5-207 (2022))
  • desertion of at least six months (W. Va. Code § 48-5-208 (2022), and
  • abuse or neglect of a child (W. Va. Code § 48-5-209 (2022)).

Because filing a fault-based divorce takes longer and is usually more contentious, most divorcing couples prefer to file no-fault divorces.

How to File for Divorce in West Virginia

Generally, there are two types of divorce—uncontested and contested. An uncontested divorce is one where the spouses agree on all divorce-related matters, such as division of property, child custody, and alimony (spousal support). A contested divorce, on the other hand, is one where the spouses disagree on at least one topic and must ask a court to decide the issues in their divorce.

Uncontested divorces usually reach resolution faster and are less expensive than contested divorces because there's no fighting in court. Instead, the judge needs only to review and approve the spouses' marital settlement agreement and issue a divorce decree.

How to File an Uncontested Divorce in West Virginia

West Virginia's supreme court has created forms that you can use for your divorce. However, you'll want to check with the clerk of the court where you plan to file to see if there are different or additional forms required by the court. The basic forms you'll need to begin your West Virginia uncontested divorce include the:

If you have minor children, you'll have to file additional paperwork relating to parenting classes, child support, and child custody. Most of these forms are available online or from the court clerk.

Once you've filled out the forms, make at least two copies of each document and bring the original and the copies to the court clerk for filing. (The clerk might require you to file the original plus one or two copies. Make sure you keep a copy for yourself of all documents you file.)

Divorce Filing Fees in West Virginia

Along with filing the right paperwork, you'll have to pay court filing fees. Divorce filing fees in West Virginia are set by statute. As of 2022, the filing fee for divorce is $135. (W. Va. Code § 59-1-11 (2022).)

If you can't afford the filing fees, you can request a waiver by filing a Financial Affidavit and Application: Eligibility for Waiver of Fees, Costs, or Security in a Civil or Domestic Case. If the court grants your application, you won't have to pay any court fees or costs.

Serving Your Spouse in West Virginia

After you file the paperwork, you'll need to provide notice to your spouse of the divorce by "serving" (delivering) copies of what was filed with the court. You can't serve your spouse yourself; you must have someone who's at least 18 years of age and not a party to the case do it.

You can serve your spouse personally by hiring a sheriff or professional process server to deliver the papers. The easiest way to do this is to ask the clerk when you file your divorce to arrange for the sheriff to serve your spouse for an additional $25. A friend or acquaintance can also serve your spouse. Whoever serves your spouse will need to complete an affidavit swearing that they have served your spouse, and this affidavit must be filed with the court.

You can also ask the clerk to mail the paperwork via certified mail for an additional fee of $20. 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, you can 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'd like to DIY your divorce, the state has a very helpful divorce packet that contains detailed instructions. Many forms are available online, and your court clerk might provide additional forms in person or on the court's website.

If you're working with an attorney, your attorney will assess your situation and fill out, file, and serve all the necessary forms. Many divorcing couples can't afford to hire an attorney to handle their entire case, but would like some assistance with completing and filing their forms. If this describes your situation, consider using an online divorce service or finding an attorney who will consult with you on an as-needed basis. Low-income individuals might qualify for reduced-fee or free legal aid.

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