Grounds for Divorce in West Virginia

Learn about your options for no-fault and fault divorce in West Virginia.

By , Attorney

Is West Virginia a Fault Divorce State?

West Virginia is a hybrid divorce state—meaning divorcing spouses can use the state's no-fault or the fault-based divorce process. Regardless of the type of divorce you file, if you and your spouse can agree on resolving divorce-related issues, like property division, child support, child custody, and spousal support, you can submit a divorce settlement agreement to the court for the judge to approve.

If you can't find a middle ground with your spouse at the start of your divorce, don't worry. You and your spouse can work together towards an agreement at any point before the judge finalizes your divorce. Of course, if you file a fault-based divorce accusing your spouse of marital misconduct, negotiating with your spouse will probably become an uphill battle. So, be sure to consider how you want the legal process to go before you file your initial paperwork.

The Basics of Divorce

Although no one gets married with the intention of getting a divorce, we know that nearly 50% of legal marriages end with one spouse asking the court to terminate the marriage. Divorce procedures vary by state, but one universal aspect is that throughout the U.S. any spouse who wants a divorce must file a formal application, called "divorce petition or complaint," with the court.

The divorce petition must include the specific reason, or legal grounds, for the request. Some states allow spouses to pursue a fault divorce, which is where you claim that your spouse's marital misconduct is the reason for the breakup. Fault grounds differ from state to state, but the most common include adultery, physical or mental abuse, addiction, and a criminal conviction.

All states allow divorcing spouses to request a no-fault divorce, which means neither spouse is to blame for the divorce. Like fault divorces, no-fault requires the filing spouse to list grounds for divorce.

Although each state's requirements vary, most courts base the no-fault divorce on a couple's separation for a specific amount of time or irreconcilable differences, meaning the couple no longer gets along and there's no chance they'll reconcile. The most beneficial aspect of the no-fault legal process is that the court doesn't require either spouse to point fingers or rehash old marital arguments to prove who's responsible for the divorce.

Irreconcilable Differences, Separation, and No-Fault Divorce

In the past, courts in many states required divorcing spouses to prove exactly why the marriage didn't work, which often meant airing marital dirty laundry in public. It's no surprise that spouses were hesitant to put their private lives on display, so many couples continued living in a terrible marriage merely to avoid the divorce process.

Over the past 50 years, however, all states have embraced the idea of allowing couples to divorce without going into the specific details of why the relationship didn't work.

In West Virginia, couples who wish to apply for a no-fault divorce simply tell the court that irreconcilable differences exist in the marriage, and there is no possibility for reconciliation. If both spouses agree that the relationship is no longer working, the court will grant the request for a divorce. (W.Va. Code § 48-5-201.)

If either spouse disputes that there are irreconcilable differences in the marriage, you will need to pursue the divorce using a different ground.

Divorce based on separation is another alternative to fault divorce. With this type of divorce, you simply demonstrate that you and your spouse have lived separate and apart, without interruption, for at least one year. (W.Va. Code § 48-5-202.) Although this option requires you to show proof of your separation to the judge, it's usually easy to do by providing the court with a copy of a lease agreement, utility bill, or driver's license with the new address.

The Basics of Fault Divorce in West Virginia

If your spouse denies irreconcilable differences and you can't prove that you've lived separately for at least one year, the courts allow spouses to request a fault divorce. Still, it's not always easy or recommended.

A fault divorce is often more complicated than no-fault because it requires the filing spouse to accuse the other spouse of misconduct and then prove the allegations to the judge. Finger-pointing and placing blame can often create tension during an already emotional process, which can cause the couple to experience higher legal fees, more time spent in court, and end with a relationship that's more damaged than before the divorce started.

West Virginia allows couples to request a fault divorce based on any of the following grounds:

  • cruel or inhuman treatment by either party against the other
  • adultery committed by either party
  • conviction of a felony (W.Va. Code § 48-5-205.)
  • the permanent and incurable insanity of one spouse (W.Va. Code § 48-5-206.)
  • habitual drunkenness or drug addiction (W.Va. Code § 48-5-207.)
  • desertion for more than six months (W.Va. Code § 48-5-208.), or
  • abuse or neglect of a child. (W.Va. Code § 48-5-209.)

In addition to accusing your spouse of misconduct, you will also need to meet the court's requirements for the ground you allege. For example, if you accuse your spouse of having an affair, you will need to prove that your spouse had voluntary sexual intercourse with someone outside the marriage. The court will expect you to do so with "clear and convincing evidence," meaning that your evidence shows it's highly probable the claims are true. (W.Va. Code § 48-5-204.)

What Is Cruelty or Inhuman Treatment?

Over the past year, the issue of domestic violence and assault has come to the forefront of conversations on news outlets, social media, and between friends and family members. It's no surprise that some marriages involve one spouse abusing the other, which is unacceptable.

In West Virginia, an abused spouse can petition the court for a fault divorce based on cruel or inhuman behavior caused by the other spouse. Cruel or inhuman behavior includes:

  • reasonable apprehension of bodily harm
  • false accusations of adultery or homosexuality, or
  • any conduct by a spouse that destroys the mental or physical well-being of the other and makes it impossible to live together for safety or other reasons. (W.Va. Code § 48-5-203.)

Spouses requesting a divorce based on cruelty do not need to prove physical violent acts to establish a pattern of cruel treatment. For example, in one West Virginia case, a woman filed for divorce based on her husband's cruelty. She testified that her husband frequently hit her, threatened to harm her, and as a result, she had become too scared to remain in the marital home with her husband.

In addition to telling her story in court, the wife asked neighbors who heard her screams and witnessed the bruising on her body to testify on her behalf. The evidence convinced the court that the wife couldn't continue living with someone she feared, so the judge granted her divorce. (Finnegan v. Finnegan, 58 S.E.2d 594.)

If you are the victim of abuse, and seeking a divorce or plan to leave your spouse be sure to consider the privacy of your computer, smartphone, or tablet when seeking help online or over the phone.

Some victims might use the same device, network, or phone plan as the abuser, allowing the abuser to see the victim's search or call history or otherwise track their activity. Many smart devices contain cameras or GPS tracking that can be used to locate and monitor your whereabouts.

If you're concerned about your privacy or safety, several organizations provide assistance and resources, including [National Domestic Violence Hotline] and [RAINN]. You can also check out our Resources for Victims of Crime.

What Are the Residency Requirements in West Virginia?

Like most states, West Virginia has a residency requirement. At least one spouse must be a resident of the state for at least one year before filing for divorce in West Virginia. The only exception to this rule is if your wedding took place in the state, and in that case, the court waives the residency requirement. (W.Va. Code § 48-5-105.)

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