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West Virginia Divorce Laws

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West Virginia Divorce Laws

RESIDENCY REQUIREMENTS:

If the marriage was entered into within this state, an action for divorce is maintainable if one of the parties is a resident of this state at the time of commencement of the action, without regard to the length of time residency has continued; or If the marriage was not entered into within this state, an action for divorce is maintainable if:

  • One of the parties was an actual bona fide resident of this state at the time the cause of action arose, or has become a resident since that time; and
  • The residency has continued uninterrupted through the one-year period immediately preceding the filing of the action.

[Based on West Virginia Code; Section 48-5-105]

LEGAL GROUNDS FOR DIVORCE:

The court may order a divorce based on the following grounds for divorce:

  • Irreconcilable differences exist between the parties.
  • Living separately and apart in separate places of abode without any cohabitation and without interruption for one year.
  • Cruel or inhuman treatment by either party against the other, such as:
    1. Reasonable apprehension of bodily harm.
    2. False accusation of adultery or homosexuality.
    3. Conduct or treatment which destroys or tends to destroy the mental or physical well-being, happiness and welfare of the other and render continued cohabitation unsafe or unendurable;.
  • Adultery, yhe burden is on the party seeking the divorce to prove the alleged adultery by clear and convincing evidence;
  • Conviction of a crime that is a felony.
  • Permanent and incurable insanity (based on medical testimony), if the patient has been confined to a mental institution for no less than three year preceding the divorce petition.
  • Habitual drunkenness or drug addiction.
  • Desertion, if either party willfully abandons or deserts the other for six months.
  • Abuse of neglect of a child (A divorce shall not be granted on this ground except upon clear and convincing evidence).

[Based on West Virginia Code; Section 48-5-201 through 48-5-209]

LEGAL SEPARATION:

"Property settlement or separation agreement" means a written agreement between a husband and wife whereby they agree to live separate and apart from each other. A legal separation agreement may also:

  • Settle the property rights of the parties.
  • Provide for child support
  • Provide for the allocation of custodial responsibility and the determination of decision-making responsibility for the children of the parties.
  • Provide for the payment or waiver of spousal support by either party.
  • Otherwise settle and compromise issues arising from the marital rights and obligations of the parties.

[Based on West Virginia Code; Section 48-6-101]

MEDIATION OR COUNSELING REQUIREMENTS:

The family court shall issue an order requiring parties to an action for divorce involving a minor child or children to attend parent education classes established unless the court determines that attendance is not appropriate or necessary based on the conduct or circumstances of the parties. [Based on West Virginia Code; Section 48-9-104]

PROPERTY DISTRIBUTION:

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, after a consideration of the following:

  • The extent to which each party has contributed to the acquisition, preservation and maintenance, or increase in value of marital property by monetary contributions, including, but not limited to employment income and other earnings and funds which are separate property.
  • The extent to which each party has contributed to the acquisition, preservation and maintenance or increase in value of marital property by non-monetary contributions, including, but not limited to:
    1. Homemaker services;
    2. Child care services;
    3. Labor performed without compensation, or for less than adequate compensation, in a family business or other business entity in which one or both of the parties has an interest;
    4. Labor performed in the actual maintenance or improvement of tangible marital property;
    5. Labor performed in the management or investment of assets which are marital property.
  • 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, including, but not limited to:
    1. Direct or indirect contributions by either party to the education or training of the other party which has increased the income-earning ability of such other party.
    2. Foregoing by either party of employment or other income-earning activity through an understanding of the parties or at the insistence of the other party.
  • 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: Provided, That except for a consideration of the economic consequences of conduct as provided for in this subdivision, fault or marital misconduct shall not be considered by the court in determining the proper distribution of marital property.

[Based on West Virginia Code; Sections 48-5-610 and 48-7-103]

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