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., anyone wishing to get a divorce must file an application with the court. This divorce petition (application) 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, and conviction of a crime.
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, which court’s usually base 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 will 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 was responsible for the breakdown for the marriage.
In the past, courts in many states used to require 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 must 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.
If one spouse disputes that there are irreconcilable differences between you, you will need to pursue the divorce using a different ground. One additional way to obtain a no-fault divorce is to demonstrate that you and your spouse have lived separate and apart, without interruption, for at least one year. Although this option requires you to show proof 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.
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, but 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 conduct to the court. Finger pointing and placing blame can often create tension during an already emotional legal 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:
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 charge your spouse with 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.
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:
Spouses requesting a divorce based on cruelty do not need to prove acts of physical violence 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 it was impossible for the wife to continue living with someone she feared, so the judge granted her divorce.
Like most states, West Virginia has a residency requirement that you must meet before the court can take your case. At least one spouse must be a resident for at least one year before filing for divorce. 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.