Divorce is seldom easy on an emotional and practical level, especially if you have children at home. But if you and your spouse can still communicate, negotiate, and agree on the issues related to the legal end of your marriage, you can avoid the time and expense of a divorce trial. This article explains how to get an uncontested divorce in West Virginia.
Unlike some other states, West Virginia doesn't have a special, simplified procedure for uncontested divorce. However, you can still get a fairly quick and inexpensive divorce in the state if you and your spouse have reached a settlement agreement that covers all of the relevant issues, including:
Many couples are able to get an uncontested divorce without hiring lawyers. However, it might be a good idea to have an attorney at least review your settlement agreement to make sure that it covers all the bases and protects your rights. You might also decide you need to have a lawyer help work out the agreement, especially if you have complicated assets to divide (like retirement plans or a family business).
When you aren't able to agree on all of these issues at the beginning of the divorce process, your case will go forward as a contested divorce, which could involve formal discovery (the legal process for getting evidence and information from each other and from experts like custody evaluators) and multiple court hearings. Even if you and your spouse are eventually able to reach a complete settlement agreement before going to trial, all of this will take time and cost money. (Learn more about how contested issues affect the cost of divorce.)
Once you and your spouse have worked out the issues in your divorce—perhaps with the help of mediation—one of you (the "petitioner") will need to fill out the divorce petition and the other required forms. (West Virginia doesn't have a joint petition that both spouses can complete and file together.)
In the petition, you will need to verify that you meet one of West Virginia's residency requirements to file for divorce in the state:
(W. Va. Code § 48-5-105(a) (2021).)
For an uncontested divorce, the petition form includes a statement that you and your spouse have "irreconcilable differences." The grounds (or legal reasons) for divorce in West Virginia include options for both "no-fault" and fault-based grounds (like adultery), but fault-based grounds are not appropriate in uncontested divorces.
The petition also includes a detailed checklist of "relief" you are requesting—meaning what you want the court to include in your final divorce judgment. You should request relief that's in line with your settlement agreement and, if you have children, your joint parenting plan. Along with your settlement agreement, other divorce forms will include financial statements and, if your agreement calls for payment child support or spousal support, an "Application and Income Withholding Form" (for purposes of support enforcement, if it's needed in the future).
You can find the self-help divorce forms (for both the petitioner and respondent) and parenting plan forms, along with instructions, on the West Virginia Judiciary's Family Court Forms page. If you don't have access to a printer, you should be able to get hard copies of the forms from your local courthouse, although you may have to pay for them.
The other option is to use an online divorce service, which will provide you with all of the completed forms for an uncontested divorce in West Virginia after you've answered a series of questions. Some of these services will guarantee that your state will accept the completed forms, so you don't have to worry about making mistakes.
If you are the petitioner, you will then take the completed forms for filing with the Circuit Clerk's office in the proper county:
You will need to pay a fee for filing your divorce paperwork ($135 as of 2021) and, if you have a child, a $25 fee for the parent education class (more on that below). If you can't afford these fees, you may apply for a waiver. Note that some counties might require additional forms, so you should check with your local court clerk's office ahead of time. You can find addresses and phone numbers for courts in all West Virginia counties on this Family Court Circuit map. (W. Va. Code §§ 48-5-106, 59-1-11 (2021).)
You must "serve" your spouse with all of the divorce paperwork that you filed, including the summons that the court will issue when you file the petition. However, you don't have to hire a process server or pay the court to send the papers by certified mail if your spouse signs a notarized "Acceptance of Service" form after receiving a copy of the forms from you (or by picking them up at the clerk's office). You must file this signed form, either with your original packet of forms or soon afterwards. (W. Va. Rules of Prac. & Proc. Fam. Ct., rule 9 (2021).)
Even in an uncontested divorce in West Virginia, the spouse who's the respondent still should complete and file an answer to the divorce petition, along with a financial statement and other required forms. The answer should reflect the provisions in your settlement agreement and in the petition. File the answer in the same court where the petition was filed, and serve the petitioner with the forms.
There's no fee for filing an answer to a divorce petition in West Virginia, but the court may require both spouses to share the filing fee for the petition. The respondent also has to pay a $25 fee for the parent education class if the case involves minor children.
The petitioner could request a default divorce if the respondent doesn't file an answer within 20 days after receiving service of the summons and petition, but you should consider that default divorces have risks for both spouses.
Even in uncontested divorces where the spouses have agreed on child custody and child support, West Virginia requires all divorcing couples with minor children to complete an approved parent education course, unless a judge decides that it's not necessary. You must file a class completion certification in the court clerk's office. (W. Va. Code § 48-9-104 (2021).)
The family court will schedule a hearing in your case at some point after the end of the 20-day period for filing an answer to the petition, and after you've completed the parent education class. The hearing may be by videoconference or telephone.
In uncontested divorces, the first hearing in your case will typically be the only hearing. Generally, both spouses should attend the hearing. The judge will review your paperwork and settlement agreement, with particular focus on your parenting plan. The court will approve your agreement and incorporate it into the final order, unless the judge finds that:
After approving your agreement and other paperwork, the judge will sign your final order of divorce. Once you receive a signed copy of the order, you'll know that your divorce is final. (W. Va. Code §§ 48-7-102, 8-9-201, W. Va. Rules of Prac. & Proc. Fam. Ct., rules 18, 21 (2021).)