Legal Separation in West Virginia FAQs

Divorce isn't a new concept, but it's not always the preferred method for ending a relationship. For some couples, particularly those who still believe reconciliation is possible, legal separation may be a better choice.

By , Attorney · Cooley Law School
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Does Legal Separation Differ From Divorce?

Yes. Most couples are familiar with divorce, the legal process to terminate a marriage. If you want to divorce your spouse, you'll need to file a motion (request) with the court asking the judge to divide your property, determine custody and child support arrangements, and decide whether one spouse should receive alimony.

Typically, spouses can negotiate the terms of the divorce before the court needs to step in, but if there are unresolved issues, the judge will decide for you. At the end of the process, the court returns each spouse to their single status, and both are free to remarry.

Legal separation, though less frequent, is like divorce in that the court (or the couple) will resolve the same legal issues, but in the end, the couple is still legally married.

What Are the Benefits to Legal Separation?

Although legal separation isn't as well-known or as popular as divorce, many states offer the process as a divorce alternative. Divorce is permanent, and if a couple isn't confident that reconciliation is out of reach, legal separation might be an appropriate step to take. For couples who don't plan on remarrying in the future, a legal separation can preserve valuable tax, federal, or military benefits that would terminate with a divorce.

Some couples utilize legal separation as a method to:

  • avoid the disruption of stability for minor children that typically comes with a divorce
  • establish court orders for custody, visitation, and support while evaluating the future of the relationship
  • avoid violating religious, social, or moral beliefs, or
  • to continue employer-sponsored health coverage for a spouse (as long as a separation is not considered a terminating event).

Can We Separate Temporarily?

Yes, but it's not monitored by the court. Couples can participate in a trial separation, which is where you live separate from your spouse for a specific period, and you use the trial to reassess your marriage and determine the next steps for your relationship.

Most couples verbally agree to the terms of the separation, including how to handle custody and visitation, use of the marital home, and financial support. At the end of the trial, the couple will either reconcile, file for divorce, or begin the process for a legal separation (if available.)

Does West Virginia Offer Legal Separation?

West Virginia doesn't offer legal separation. Instead, you can file for separate maintenance, which is similar to a legal separation and allows the court to determine the same issues as though it was a divorce—but in the end, you're still legally married to your spouse. (W. Va. Code, §48-4-103.) Although you don't need to file for divorce first, you will need to meet the state's divorce requirements before the court will grant your request for separate maintenance. (W. Va. Code, §48-4-101.)

You must meet the residency requirement.

Spouses hoping to divorce or separate must be residents before proceeding with a case, and you can do so in any of the following situations:

  • your marriage took place West Virginia, and at least one party is currently a resident, or
  • if your wedding took place in another state, at least one spouse must be a resident for a minimum of one year before filing, and the residency must continue throughout the legal process. (W. Va. Code, §48-5-105.)

Grounds for divorce are not optional in separate maintenance cases.

Like a divorce, couples must provide the court with a legal reason—or grounds—for the breakup before the judge can grant your request for separate maintenance. (W. Va. Code §48-5-402.) West Virginia is a mixed-divorce state, meaning couples can assert no-fault or fault-based grounds in their application for separate maintenance.

Unlike most states, which generally only offer one option for no-fault divorce, West Virginia allows couples to allege either (1) irreconcilable differences, or (2) that you and your spouse have lived separate and apart, continuously, without cohabitation, for one year or more. (W. Va. Code §§48-5-201, 48-5-202.) Typically, using irreconcilable differences as your grounds for separate maintenance (or divorce) is a less expensive and time-consuming process than pointing fingers at your spouse.

The filing spouse may also request a separate maintenance action if the other spouse has failed to provide support or abandoned the other spouse. (W. Va. Code §48-4-102.)

Although fault-based cases are more complicated than no-fault, you may assert any of the state's fault grounds in your separation case. (W. Va. Code §48-5-203-209.)

Negotiate the terms or ask the judge to decide for you.

The court encourages couples to work together to reach an agreement on the terms of the separation. You and your spouse will need to allocate custodial responsibilities and decision-making authority for the children, determine how you will divide marital property and debt, and agree to child support and spousal support terms. As with divorce, a judge will decide any unresolved issues.

Why Is It Important to Follow the Rules About Separation?

West Virginia allows couples to pursue divorce or separation based on living separate and apart, without cohabitation, for at least one year. It's important to understand that if you and your spouse reconcile, however brief, the clock starts over. For example, if you and your spouse moved into separate homes on January 1, 2017, but briefly reconciled in May 2017, you can't file for separate maintenance using this ground until May 2018.

What Is a Separation Agreement?

It's no surprise that any legal case, especially one like separate maintenance, can be complicated and detailed. The court requires a legally-binding contract in every divorce or separate maintenance case, to prevent miscommunication and identify each spouse's responsibilities in the future. The document should contain the specific terms for the separation, including child custody, child support, property division, health insurance, and spousal support. Additionally, the contract should include a statement of whether the separation is to be permanent or expire on a specific date. The judge will incorporate the document into the final agreement, and the couple can only modify the terms later by following a formal legal process. (W. Va. Code §48-4-104.)

If you're not sure how to proceed with your separate maintenance case, contact an experienced family law attorney in your area.

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