West Virginia Divorce
- Residency Requirements
- Grounds for Divorce
- Division of Property
- Spousal Support
- Child Custody
- Child Support
If the marriage was entered into within West Virginia, an action for divorce is maintainable if one of the parties is a resident of this state at the time of filing for divorce, without regard to how long the party has lived in the state.
If the marriage was not entered into within this state, an action for divorce is maintainable if:
a) One of the parties was a resident of this state at the time the cause of action arose, or has become a resident since that time; and
b) The residency has continued uninterrupted through the one-year period immediately preceding the filing of the action.
Grounds for Divorce
The court may order a divorce if the complaint alleges that irreconcilable differences exist between the parties and an answer is filed admitting that allegation. Other causes for divorce in West Virginia:
a) When the parties have lived separate and apart without any cohabitation and without interruption for one year.
b) Cruel or inhuman treatment by either party against the other.
d) Conviction of a felony.
e) Permanent and incurable insanity.
f) Habitual drunkenness or drug addiction.
g) When either party willfully abandons or deserts the other for six months.
h) Abuse or neglect of a child.
Division of Property
West Virginia is an equitable distribution state. In the absence of a valid agreement, the court shall presume that all marital property is to be divided equally between the parties, but may alter this distribution, without regard to fault to either party, after a consideration of the following:
a) The extent to which each party has contributed to the acquisition, preservation and maintenance, or increase in value of marital property by monetary and non-monetary contributions;
b) The extent to which each party expended his or her efforts during the marriage in a manner which limited or decreased such party’s income-earning ability or increased the income-earning ability of the other party;
c) The extent to which each party, during the marriage, may have conducted himself or herself so as to dissipate or depreciate the value of the marital property of the parties.
The court in ordering a divorce may require either party to pay spousal support. The court shall consider the following factors in determining the amount of spousal support, if any, to be ordered:
a) The length of time the parties were married;
b) The period of time during the marriage when the parties actually lived together as husband and wife;
c) The present employment income and other recurring earnings of each party from any source;
d) The income-earning abilities of each of the parties, based upon such factors as educational background, training, employment skills, work experience, length of absence from the job market and custodial responsibilities for children;
e) The distribution of marital property;
f) The ages and the physical, mental and emotional condition of each party;
g) The educational qualifications of each party;
h) Whether either party has foregone or postponed economic, education or employment opportunities during the course of the marriage;
i) The standard of living established during the marriage;
j) The likelihood that the party seeking spousal support, child support or separate maintenance can substantially increase his or her income-earning abilities within a reasonable time by acquiring additional education or training;
k) Any financial or other contribution made by either party to the education, training, vocational skills, career or earning capacity of the other party;
l) The anticipated expense of obtaining the education and training described above;
m) The costs of educating minor children;
n) The costs of providing health care for each of the parties and their minor children;
o) The tax consequences to each party;
p) The extent to which it would be inappropriate for a party, because said party will be the custodian of a minor child or children, to seek employment outside the home;
q) The financial need of each party;
r) The legal obligations of each party to support himself or herself and to support any other person;
s) Costs and care associated with a minor or adult child’s physical or mental disabilities; and
t) Such other factors as the court deems necessary or appropriate to consider in order to arrive at a fair and equitable grant of spousal support, child support or separate maintenance.
The best interest of children is the court’s primary concern in deciding child custody. A child’s best interest will be served by assuring that minor children have frequent and continuing contact with parents who have shown the ability to act in the best interest of their children and by encouraging parents to share in the rights and responsibilities of rearing their children after the parents have divorced. The primary objective is to serve the child’s best interests, by facilitating:
a) Stability of the child;
b) Parental planning and agreement about the child’s custodial arrangements and upbringing;
c) Continuity of existing parent-child attachments;
d) Meaningful contact between a child and each parent;
e) Caretaking relationships by adults who love the child, know how to provide for the child’s needs, and who place a high priority on doing so;
f) Security from exposure to physical or emotional harm; and
g) Expeditious, predictable decision-making and avoidance of prolonged uncertainty respecting arrangements for the child’s care and control.
A child support order is determined by dividing the total child support obligation between the parents in proportion to their income. Both parents’ adjusted gross income is used to determine the amount of child support.
West Virginia uses guidelines for child support award amounts so as to ensure greater uniformity by those persons who make child support recommendations and enter child support orders and to increase predictability for parents, children and other persons who are directly affected by child support orders.
If the court finds that the guidelines are inappropriate in a specific case, the court may either disregard the guidelines or adjust the guidelines-based award to accommodate the needs of the child or children or the circumstances of the parent or parents. The following factors may be possible reasons for deviation:
a) Special needs of the child or support obligor, including, but not limited to, the special needs of a minor or adult child who is physically or mentally disabled;
b) Educational expenses for the child or the parent (i.e. those incurred for private, parochial, or trade schools, other secondary schools, or post-secondary education where there is tuition or costs beyond state and local tax contributions);
c) Families with more than six children;
d) Long distance visitation costs;
e) The child resides with third party;
f) The needs of another child or children to whom the obligor owes a duty of support;
g) The extent to which the obligor’s income depends on nonrecurring or nonguaranteed income; or
h) Whether the total of spousal support, child support and child care costs subtracted from an obligor’s income reduces that income to less than the federal poverty level and conversely, whether deviation from child support guidelines would reduce the income of the child’s household to less than the federal poverty level.
http://www.legis.state.wv.us/WVCODE/Code.cfm?chap=48&art=1 (West Virginia divorce laws)