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The Divorce Process in West Virginia
Divorce involves a specific legal process with its own terminology and stages. Here is a general, plain-language explanation of how that process tends to work under West Virginia law.
Grounds for Divorce
To grant a divorce, a West Virginia court needs a recognized legal ground for it. The most commonly used ground is irreconcilable differences, a no-fault option meaning that the marriage has broken down and cannot be repaired, without either spouse having to prove the other did something wrong. Voluntary separation is also recognized as a no-fault basis.
West Virginia still recognizes a number of fault-based grounds as well, including adultery, cruel or inhuman treatment, habitual drunkenness or drug addiction, desertion, conviction of certain crimes, abuse or neglect of a child, and permanent and incurable insanity. A fault ground can occasionally matter to particular issues in a case, but many divorces proceed on a no-fault ground alone.
Key Terms
- Irreconcilable Differences
- The no-fault ground for divorce in West Virginia, which does not require proof that either spouse was at fault.
- Fault-Based Divorce
- A divorce granted because one spouse proves the other engaged in specific misconduct recognized by law, such as adultery or desertion.
Who Can File in West Virginia
West Virginia has residency rules that determine whether its courts have authority to decide a divorce. Generally speaking, if the couple was married in West Virginia, either spouse can file as long as one of them is a bona fide resident of the state at the time the case is filed, with no minimum length of residency required.
If the couple was married outside West Virginia, the residency requirement is longer: one spouse generally needs to have lived in the state continuously for about the year before filing. These rules exist so that a West Virginia court has a genuine connection to the marriage before it decides the case.
The General Stages of a Divorce Case
A divorce case typically begins when one spouse files a petition, along with financial disclosures and, if the couple has children together, a proposed parenting plan and child support paperwork. The other spouse is served with the petition and has an opportunity to file a response if they disagree with anything in it. Family court handles the case from there.
While the case is pending, either spouse can ask for temporary relief, meaning short-term orders addressing questions like who stays in the home, temporary spousal or child support, and a temporary parenting schedule, so that both people and any children have some stability while the case moves forward. Cases involving children generally also require both parents to complete a parent education class before the first hearing.
The parties then exchange information relevant to the case and often attempt to resolve outstanding issues through negotiation or mediation. If they reach agreement on everything, the court can approve that agreement as part of a final order. If they cannot agree, the case proceeds to a final hearing, where a judge decides the remaining issues and enters a final divorce order.
Key Terms
- Temporary Relief
- Short-term court orders that apply while a divorce case is pending, covering issues such as support, use of the home, or a temporary parenting schedule.
- Discovery
- The process by which both spouses exchange financial and other information relevant to the case.
Dividing Property: Marital and Separate Property
West Virginia law distinguishes between marital property, generally property either spouse acquired during the marriage, and separate property, generally property owned before the marriage or received individually by gift or inheritance. As a rule, only marital property is divided as part of the divorce.
For marital property, West Virginia's default starting point is that it is divided equally between the spouses. A court can move away from an equal split based on specific factors: each spouse's monetary contributions to acquiring or maintaining marital property, non-monetary contributions such as homemaking, child care, or work in a family business, whether one spouse gave up career or educational opportunities during the marriage, and whether either spouse wasted or reduced the value of marital assets.
Marital misconduct on its own generally is not a factor in how property is divided. Conduct enters the analysis only when it had an economic effect, for example, when one spouse spent down or damaged marital assets. This is what people usually mean when they describe property division as equitable: the goal is a division that is fair in light of what each spouse contributed, which in West Virginia begins from an equal split and is adjusted only where the evidence supports it.
Key Terms
- Marital Property
- Property generally acquired by either spouse during the marriage, which is subject to division in a divorce.
- Separate Property
- Property generally owned before the marriage, or received individually by gift or inheritance, which is generally not divided in a divorce.
- Equitable Distribution
- The framework West Virginia uses to divide marital property fairly, starting from an equal division and adjusting it based on defined factors.
Divorce Cases Involving Children
When a couple has minor children together, the divorce case also has to resolve parenting time, decision-making responsibility, and child support. West Virginia requires a parenting plan in these cases, and, as with property, the parents can submit a joint plan they agree on, or competing proposals for the court to decide between.
Contested and Uncontested Cases
A divorce is often described as "uncontested" when the spouses agree on all the major issues, property, support, and any parenting arrangements, ahead of time. An uncontested case generally moves through the court process more efficiently, because there is little left for a judge to resolve. A "contested" divorce, where the spouses disagree on one or more significant issues, generally takes longer and may require a hearing at which a judge decides the disputed points.
Common Questions
Do I have to prove my spouse did something wrong to get divorced in West Virginia?
No. West Virginia allows a no-fault divorce based on irreconcilable differences, which does not require proving that either spouse was at fault. Fault-based grounds still exist and are occasionally used, but they are not required.
What does irreconcilable differences actually mean?
It generally means the marriage has broken down to the point that it cannot reasonably be repaired. It is a legal conclusion rather than a description of a specific event, and it does not require either spouse to explain in detail what went wrong.
How is property divided if my spouse and I cannot agree?
If the spouses cannot agree, a judge decides. Division of marital property in West Virginia starts from an equal split, and a judge can adjust that division based on factors such as each spouse's financial and non-financial contributions to the marriage, career sacrifices, and whether either spouse reduced the value of marital assets.
Does it matter who was at fault when property is divided?
Generally not. West Virginia law directs courts to leave marital misconduct out of the property division analysis, except where a spouse's conduct actually reduced the value of marital property.
How long does a divorce generally take?
It depends largely on whether the spouses agree on the major issues. An uncontested case, where the spouses have already agreed on property, support, and any parenting arrangements, generally moves through the process more quickly than a contested case that requires hearings and the exchange of information.
This article is provided for general informational purposes and does not constitute legal advice. Laws change, and individual circumstances vary. If you have questions about how West Virginia law applies to your situation, consult a licensed attorney.