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West Virginia Divorce Laws Continued

W. Virginia Divorce Laws

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ALIMONY/MAINTENANCE/SPOUSAL SUPPORT:

The court may require either party to pay spousal support, considering the following factors in determining the amount of spousal support:

  • The length of the marriage, and any periods of separation.
  • The present employment income and other recurring earnings of each party from any source.
  • The income-earning abilities of each of the parties.
  • The distribution of marital property and how it will affect the earnings of the parties and their ability to pay or their need to receive spousal support, child support or separate maintenance
  • The ages and the physical, mental and emotional condition of each party.
  • The educational qualifications of each party.
  • Whether either party has foregone or postponed economic, education or employment opportunities during the course of the marriage.
  • The standard of living established during the marriage.
  • 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.
  • Any financial or other contribution made by either party to the education, training, vocational skills, career or earning capacity of the other party.
  • The anticipated expense of obtaining the education and training described above.
  • The costs of educating minor children.
  • The costs of providing health care for each of the parties and their minor children.
  • The tax consequences to each party.
  • 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.
  • The financial need of each party.
  • The legal obligations of each party to support himself or herself and to support any other person.
  • Costs and care associated with a minor or adult child's physical or mental disabilities.
  • Any other factors as the court deems necessary.

In determining whether spousal support is to be awarded, or in determining the amount of spousal support, if any, to be awarded, the court shall consider and compare the fault or misconduct of either or both of the parties and the effect of the fault or misconduct as a contributing factor to the deterioration of the marital relationship. [Based on West Virginia Code; Section 48-5-602, 48-6-301, and 48-8-101 through 48-8-104]

SPOUSE'S NAME:

The court, upon ordering a divorce, shall if requested to do so by either party, allow such party to resume the name used prior to his or her first marriage. The court shall, if requested to do so by either party, allow such party to resume the name of a former spouse if such party has any living child or children by marriage to such former spouse. [Based on West Virginia Code; Section 48-5-613]

CHILD CUSTODY:

The Legislature finds and declares that it is the public policy of this state to assure that the best interest of children is the court's primary concern in allocating child custody and decision-making responsibilities between parents who do not live together. The primary objective of this article is to serve the child's best interests, by facilitating:

  • Stability of the child
  • Parental planning and agreement about the child's custodial arrangements and upbringing.
  • Continuity of existing parent-child attachments.
  • Meaningful contact between a child and each parent.
  • Care-taking 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.
  • Security from exposure to physical or emotional harm.
  • To achieve fairness between the parents (this is a secondary objective).

[Based on West Virginia Code; Section 48-9-101 and 48-9-102]

CHILD SUPPORT:

If the action involves a minor child or children, the court shall order either or both parties to pay child support in accordance with the provisions of articles 11-101, et seq., and 13-101. The court shall order medical support to be provided for the child or children in accordance with the provisions of article 12-101. 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.

Deviations from the guidelines are possible for the following reasons:

  • 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.
  • 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).
  • Families with more than six children.
  • Long distance visitation costs.
  • The child resides with third party.
  • The needs of another child or children to whom the obligor owes a duty of support.
  • The extent to which the obligor's income depends on nonrecurring or non-guaranteed income.
  • 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.

[Based on West Virginia Code; Section 48-5-603, 48-13-201, and 48-13-702]

PREMARITAL AGREEMENT:

An premarital agreement by which the property rights and interests of the prospective husband and wife, or both of them, are determined, or where property is secured to either or both of them, to their separate estate, or to their children or other persons. An ante-nuptial agreement may include provisions that define the respective property rights of the parties during the marriage, or upon the death of either or both of the parties. The agreement may provide for the disposition of marital property upon an annulment of the marriage or a divorce or separation of the parties. A prenuptial agreement is void if at the time it is made either of the parties is a minor. [Based on West Virginia Code; Section 48-1-203]

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