How to File for Divorce in West Virginia

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 What Is The Difference Between Divorce And Separation In West Virginia?

Divorce is a permanent court procedure that dissolves the marriage between two people. When a divorce is finalized, each person is then free to remarry if they choose to do so. All states require the filing spouse to be a resident of that state; although the time requirements for establishing residency vary from state to state, they generally range from 6 months to a year.

Each state has their own divorce procedures. While the majority of states adopt the “no fault” approach to divorce, some retain a “fault” divorce system:

  • “No Fault” Divorces: The defining characteristic of a No Fault Divorce is that the spouse filing for divorce does not need to prove any wrongdoing or “fault” on behalf of either party in order to get a divorce. Some states require the couple to declare that they no longer can get along, or to cite irreconcilable differences. Other states dictate that the couple is required to live apart for a specified period of time before they can file for a “No Fault” Divorce.
  • “Fault” Divorces: The spouse filing for a divorce must cite a reason as to why the divorce should be granted. Although the “fault” rules or justifications vary from state to state, commonly cited reasons include:
    • Cruelty, such as the infliction of unnecessary or emotional pain;
    • Adultery;
    • Desertion for a specific length of time;
    • Confinement in prison for a set number of years; and
    • Physical inability to consummate the marriage.

Generally speaking, separation is one of the first steps that a married couple takes when they are contemplating getting a divorce. Separation acts as a temporary holding period in which the couple decides whether they can and should save their marriage. At this stage, the couple is not considered to be legally separated until an agreement is formed, and a court issues an order stating as much.

The term legal separation is also known as marital separation, and specifically refers to the binding agreement that a separated couple enters into. This agreement details the particular agreed-upon guidelines that the couple must adhere to while living apart. This includes items such as how they will manage their affairs and assets. Although this agreement certifies the separation and gives it a legal status, it is not yet considered to be a formal divorce.

Legal separation does not necessarily mean that the couple must live in a different dwelling than their spouse. It is entirely possible to live under the same roof and still be deemed legally separated. The defining feature of legal separation depends on whether a binding agreement was formed. If one of the parties violates the agreement, a family court may be able to enforce it.

Although West Virginia does make a legal distinction between separation and divorce, there is little difference between the two in terms of filings and required paperwork. To reiterate, a legal separation is not an end to a marriage, while a legal divorce is the end of a marriage.

What Paperwork Do I Need To File For Divorce In West Virginia?

In order to file for divorce in West Virginia, you will need to complete the divorce packet found on the West Virginia Judiciary website. This packet contains a different set of paperwork depending on whether you are the party filing for divorce, or the party responding to the petition for divorce. Additionally, there are forms associated with forming a parenting plan if there are shared children involved.

There is no separation requirement before filing for divorce in West Virginia. The exception to this would be for divorces on one year separation. However, every divorce petition must provide the date that the spouses last lived together.

In terms of which county to file in, you can file in the county in which you both lived at the time of splitting up. Alternatively, you may file in the county in which one of the spouses now lives; or, if one spouse lives out of state, then the petitioning party may file in the West Virginia county that they live in. Filing for divorce takes place at the circuit clerk’s office, which is located in either the county courthouse or the county judicial center.

How Is Property Divided In West Virginia?

During the divorce process, property is divided according to individual state laws. Some states are community property states, while others are equitable division states.

Community property generally refers to any property or assets that a couple acquires during their marriage, and owns together. If the state is a community property state, then the couple’s property generally be split evenly between the parties. Any property that belonged to one spouse prior to the marriage, or was obtained after a divorce or separation, is considered to be separate property. The same applies to property that was given to them as a gift from a third party during the marriage.

Equitable distribution requires the court to assess a number of factors and variables when determining which party should get what item of property. It is important to note that equitable distribution does not mean to divide equally; rather, equitable distribution refers to the division of property that achieves both a fair and comprehensive result for the parties involved.

Although varying by state, equitable distribution is the preferred method over the community property standard because of the variety of factors involved in making a decision. Those results are generally viewed as a more natural and fair way to divide property. However, equitable distribution often involves a deeper analysis, which means that the proceedings for a case may take longer and in turn present greater challenges.

Community property rulings are more rigid and sometimes require the court to use set formulas when dividing property. While this may produce “unfair” results, the proceedings are less complicated and more straight-forward, so that the parties can predict the outcome beforehand.

West Virginia is considered to be an equitable distribution state, meaning that a court will make an effort to determine what is fair when dividing marital assets. The family court may consider the following factors when making an equitable distribution calculation:

  • All assets held by each of the spouses prior to their marriage;
  • Any contributions made by each spouse during their marriage;
  • The likelihood of future income from shared investments, such as real estate; and
  • The financial needs of each spouse.

How Is Child Custody Determined In West Virginia? What About Alimony?

West Virginia courts make custody decisions based on what is in the “best interest” of the child. When doing so, a West Virginia family court will consider the following factors:

  • The location of the child’s friends and extended family;
  • The location of the child’s school in relation to each parent’s home;
  • Where the child’s siblings live, as courts generally hold that it is in the child’s best interests to remain with their siblings; and
  • The child’s own reasonable preferences, when the child is mature enough to make such choices.

Child support is generally required of the parent that does not receive primary custody. However, the amount and duration of child support is decided by the court. It is important to note that child support is different from alimony, and some people are required to pay for both. West Virginia alimony is discussed further below.

In West Virginia, parents must submit a parenting plan to the court before their divorce is approved and finalized. If the parents cannot agree on a plan, mediation will be ordered; and, if mediation is unsuccessful, they must submit separate proposed parenting plans. Generally speaking, parents must also attend a parent education course before their divorce is approved. A considerably modest fee is charged for parent education, unless the parents can show financial need to have the fee waived.

Alimony payments may be required in order to help a former spouse transition out of the marriage, and they may only last for a certain amount of time. An example of this would be how a marriage lasting only six months would not generally require alimony payments for the same amount of time as a marriage that lasted twenty years. In West Virginia specifically, a commonly used standard is that one year of alimony is paid for every three years of marriage.

Do I Need An Attorney To File For Divorce In West Virginia?

If you or your spouse live in West Virginia and are considering filing for divorce, you should consult with a West Virginia divorce lawyer. An attorney will be best suited to helping you understand your state’s laws governing divorce, child custody, child support, and alimony.

Finally, a divorce attorney will also be able to represent you in court, as needed, while guiding you through the process of obtaining a divorce.

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