Divorce in West Virginia: The Legal Process, Your Rights, and What to Expect

By Lyne Ranson and Brittany Ranson Stonestreet

Providing accurate and objective information to help make the right decisions during a divorce in West Virginia, this guide provides answers to more than 350 queries such as How quickly can one get a divorce? Is it possible to get divorced if one spouse does not want a divorce? What does it mean for West Virginia to be a community property state? Who decides who gets the cars, the pets, and the house? What factors might influence child custody? and How are bills divided and paid during the divorce? Structured in a question-and-answer format, this divorce handbook provides clear and concise responses to help build confidence and give the peace of mind needed to meet the challenges of a divorce proceeding.

• Language: English
• Publisher: Independent Publishers Group
• Release date: Sep 29, 2015
• ISBN: 9781943886081

Book preview

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Introduction

Nearly every day we meet with men and women who are struggling in their everyday lives as they contemplate and move through a divorce. Whether you initiate or respond to a divorce, you are facing changes in every single part of your life. No area remains untouched. Parenting, family relationships, finances, social networks, personal belongings, a residence, job performance—are all ways your personal world is altered when the relationship ends. Our purpose in writing Divorce in West Virginia is to help you navigate through an uncertain journey.

Divorce is hard. We see many courageous clients, like you, making tough decisions every day in the face of their changing worlds. We know from our own experience and in counseling hundreds of clients over the years, that in order to reach a place of growth and healing, it requires a tremendous amount of support throughout the journey. Divorce in West Virginia is written to be a part of helping you move through this time of transition with more clarity and ease. It is not intended to be a substitute for advice from your lawyer given the specific facts of your case. Rather, it is designed to assist you in partnering with your lawyer to reach your goals in the resolution of your divorce.

In writing Divorce in West Virginia, we endeavor to partner with you and explain each step in the hope that it will lead to your empowerment. The more control and transparency you feel over the process, the better you are able to make sound decisions regarding very challenging choices. We hope you will use this book as a guide to ask your lawyer questions, to understand what it is you are unclear about, and to begin seeing the big picture of the journey upon which you are about to embark.

This book will be helpful not only to people going through divorce, but also to the professionals who support you—attorneys, mediators, therapists, clergy, financial advisors, coaches, and others who are called upon to serve and support people who are divorcing.

Footnotes have been provided throughout the book that cite the law, code, or statutory authority for the topic listed. The citations are listed in the reference section in the back of the book and further information on citations may be found online at www.legis.state.wv.us/WVCODE/Code.cfm.

During your divorce, be prepared for hard, grief-filled days and mountains of uncertainty, but you will get through this! We promise you. In the end, you will inevitably find some relief in the letting go of old sadness, glimmers of hope in recreating yourself, and a sure sense of new possibilities for your future. Best wishes on the journey ahead!

Lyne Ranson. Esq.

Brittany Ranson Stonestreet, Esq.

1

Understanding the Divorce Process

At a time when your life can feel like it is in utter chaos, sometimes the smallest bit of predictability can bring a sense of comfort. The outcome of many aspects of your divorce may be unknown, increasing your fear and anxiety. But there is one part of your divorce that does have some measure of predictability, and that is the divorce process itself.

Most divorces proceed in a step-by-step manner. Despite the uniqueness of your circumstances, you can generally count on one phase of your divorce following the next. Sometimes just realizing you are completing stages and moving forward with your divorce can reassure you that it won’t go on forever.

It is helpful to develop a basic understanding of the divorce process. This will lower your anxiety when your attorney starts talking about depositions or going to trial, and you feel your heart start pounding in fear. A thorough grasp of the divorce process can reduce your frustrations about its lengthiness. Knowing why each step is needed will help you prepare for what comes next. Most importantly, understanding the divorce process may make your experience of the entire divorce easier. Who wouldn’t prefer that?

1.1      What steps are involved in the divorce process?

The divorce process in West Virginia typically involves the steps listed on the following page.

Basic Divorce Process

1.2      Must I have an attorney to get a divorce in West Virginia?

You are not required to have an attorney to obtain a divorce in West Virginia. However, if your divorce involves children, a request for spousal support, business, retirement funds, real estate, other significant property or debts, you should be very wary of proceeding on your own.

A person who proceeds in a legal matter without a lawyer is referred to as being pro se (pronounced pro-say), meaning on one’s own. If your divorce does not involve any of the issues above, then you may go to the circuit clerk’s office in your county and pick up documents and instructions that can be helpful in very simple divorce cases. This set of papers is usually referred to as a divorce form packet. The West Virginia Supreme Court of Appeals also maintains these forms on their website (www.courtswv.gov/lower-courts/family-forms/index-family-forms.html), where you can download and print the forms without having to go to the circuit clerk’s office.

If you are considering proceeding without an attorney, at a minimum, have an initial consultation with an attorney to discuss your rights and duties under the law. You may have certain rights or obligations of which you are unaware. Meeting with a lawyer can help you decide whether you should proceed on your own or obtain a lawyer.

1.3      What is my first step in obtaining a lawyer?

Find a law firm that handles divorces as a regular part of its law practice. The best recommendations come from people who have knowledge of a lawyer’s experience and reputation.

Even if you are not ready to take the initial step of filing for divorce, call to schedule an appointment right away to obtain information about protecting yourself, your children and property. Although you might not be planning to file for divorce, your spouse might be. Taking steps to gain information about your rights is a precautionary measure to protect yourself and your loved ones.

Ask the attorney’s office what documents you should take to your initial consultation. Make a list of your questions to take to your first meeting. Start making plans for how you will pay your attorney to begin work on your case. Most attorneys will not be able to give you a definite cost (retainer amount) to undertake work on your case until they meet with you and hear your specific facts and circumstances.

1.4      Is West Virginia a no-fault state or do I need to show that my spouse did something wrong to get a divorce?

West Virginia, like most states, is a no-fault divorce state. This means that neither you, nor your spouse are required to prove that the other is at fault in order to be granted a divorce.

Proving adultery, cruelty, or abandonment is not necessary to receive a divorce in West Virginia. Rather, both parties may agree that they have irreconcilable differences with each other that make the marriage permanently broken.¹ Irreconcilable differences is a no-fault ground for divorce. Generally, one spouse will allege that the differences exist in the initial petition for divorce and the other party will admit it in the response. You and your spouse may also have to appear before the family court judge and testify that irreconcilable differences do exist and they cannot be fixed. It is very unlikely the judge will ask for information regarding the nature of the problems that led to the divorce or question you as to the type of reconciliation efforts made, such as counseling with a therapist or clergy member.

If your spouse will not agree that irreconcilable differences exist, you can be granted a divorce without proving fault once you have been separated from your spouse for one year.

1.5      How will a judge view infidelity or my spouse’s infidelity?

If one party alleges adultery in the divorce petition and wishes to obtain a divorce on the ground of adultery, there must be testimony or evidence introduced at the final hearing about the other spouse’s infidelity. It is not sufficient that one spouse testifies regarding the adultery, even if the cheating spouse admits it. Adultery requires corroboration and must be proven by clear and convincing evidence.² This can include testimony from a third party witness. It is not necessary to have direct evidence (such as an eyewitness) but circumstantial evidence (such as motel receipts and video showing a husband and his girlfriend going in and out of a motel room for substantial periods of time) may be acceptable.

Importantly, adultery is defined as the voluntary sexual intercourse of a married man or woman with a person other than their spouse. Although hurtful and damaging to your relationship, if your spouse has engaged in an emotional affair or has engaged in a physical relationship that has not progressed to intercourse, then you may not be able to obtain a divorce upon the ground of adultery.

1.6      I was not married in West Virginia, can I still get divorced here?

Maybe. It does not matter where the marriage took place, so long as one or both of the parties live in the state at the time of filing the petition for divorce and the residency requirements are met.³ Because your marriage was entered into outside of West Virginia, then either you or your spouse must have resided in West Virginia for at least one year prior to filing for divorce.⁴

1.7      How long must I have lived in West Virginia to get a divorce in the state?

The length of time you are required to reside in the state before obtaining a divorce depends on whether you were married in West Virginia.

If you were married outside the state, then either you or your spouse must have been a resident of West Virginia for at least one year prior to filing for divorce and at the time the divorce action is filed.

If you were married in West Virginia, then you can file for divorce at any time, so long as either you or spouse reside in West Virginia at the time of filing.

1.8      How will the judge determine if my spouse or I am a West Virginia resident?

Domicile or residency is a combination of physical presence within the state and an intention of remaining. If residency is an issue in your case, for instance, if you only recently moved back to West Virginia, then begin gathering evidence to show that you are now domiciled here. Evidence that may help prove residency include, but are not limited to:

having a West Virginia driver’s license

receiving mail in West Virginia

voting in West Virginia

paying taxes or utilities in West Virginia

setting up bank accounts in the state

owning property in West Virginia

cohabiting and working in West Virginia

If residency exists, then temporarily staying away from the state for reasons such as school, a work assignment, military assignment or going on an extended vacation for the winter will not end your residency in West Virginia.

1.9      My spouse has told me she will never give me a divorce. Can I get one in West Virginia anyway?

Yes. West Virginia does not require that your spouse agree to a divorce. If your spouse threatens to not give you a divorce, know that in West Virginia this is likely to be an idle threat without any basis in the law.

Under West Virginia law, the judge can grant you a divorce if you and your spouse remain separated and living apart for at least one year.⁵ This requires the couple to live in separate places for one year and as a result of the voluntary act of one of the parties or mutual consent of both parties. Any periods of reconciliation between the parties will restart the one year period. Notably, you may go ahead and file for divorce prior to being separated for one year, but a divorce may not actually be granted until the one year period has passed.

1.10   If I want to prove my spouse committed a fault ground for divorce, what are my options?

There are several fault grounds to consider, including:

Adultery: Your spouse must have voluntarily had sexual intercourse with a person other than you within three years of filing the divorce action.⁶

Drug or Alcohol Use: Your spouse must be habitually drunk or addicted to the habitual use of any narcotic or dangerous drug. The drunkenness or drug use must have begun after you were married.⁷

Crime: Your spouse must have been convicted of a felony after you were married.⁸

Insanity: Your spouse must be confined in a mental institution of facility for at least three years. Medical testimony must be presented that your spouse is permanently and incurably insane.⁹

Abandonment: Your spouse must have willfully abandoned or deserted you for at least six months. Separation in order to file for divorce does not constitute abandonment.¹⁰

Cruel and Inhuman Treatment: Your spouse may have engaged in one of the following:

placed you in reasonable apprehension of bodily harm

falsely accused you of adultery or homosexuality

engaged in conduct or treatment which destroyed or tended to destroy your mental or physical well-being, happiness and welfare, that made continuing to live together unsafe or unendurable

It is not necessary to allege or prove acts of physical violence in order to establish cruel and inhuman treatment as a ground for divorce.¹¹

Abuse or Neglect of a Child: Your spouse may have inflicted a physical or mental injury upon your child or step-child, including sexual molestation. Your spouse may have willfully failed to provide the necessary support, education required by law, or surgical or other care necessary for the well-being of the child. You must prove this ground by clear and convincing evidence sufficient to deprive your spouse of any parenting time or custody of the abused and neglected child.¹²

1.11    Should I hire a private detective to prove my spouse is having an affair?

It is rare to hire a private detective for this purpose. However, if your spouse is having an affair and you are not yet separated, or if custody is disputed, discuss with your attorney how a private investigator might help you gather evidence to support your case.

Discuss the following considerations with your attorney:

How much will a private investigator cost? What fees are included in the initial cost? Some private investigators charge per mile or for meals.

Will the evidence gathered help my case?

Is the affair affecting the children? Does the person your spouse is with seem to be unfit or a danger to your children?

Your attorney can help you determine whether hiring a private investigator is a good idea in your particular case.

1.12    Will the fact that I had an affair during the marriage impact my case?

Maybe. Your affair may impact various aspects of your case, including, for example:

Custody: An affair will generally not affect your case for custody. However, in some circumstances the court may look at the following:

Whether the children were impacted by the affair (the children were left unattended or exposed to sexual activity)

Whether the paramour poses any dangers to the children (drug or alcohol abuse or history of domestic violence)

Division of property: If you spent marital money on your paramour or in pursuit of the affair (vacations, gifts, or dinner with your paramour), then those funds may be recovered by your spouse.

Ground for divorce: If your spouse can meet the requirements listed in question 1.10, then a divorce may be granted based upon your adultery.

Spousal support: The judge may consider marital misconduct, in addition to other factors, to apply a fault premium to increase the amount or duration of a spousal support award. Seechapter 10 for more information.

Attorney fees: The judge may consider either parties’ marital fault, in addition other factors, in causing the deterioration of the marriage in deciding whether to require one party to pay the other’s attorney fees.

1.13    Can I divorce my spouse in West Virginia if he or she lives in another state?

Yes, assuming you have met the residency requirements for living in West Virginia as mentioned in question 1.8, you can file for divorce in West Virginia even if your spouse lives in another state. You should note that you cannot get a divorce on the ground of adultery against a nonresident spouse unless he or she can be personally served within West Virginia or you have been a state resident for at least one year before filing the petition for divorce.¹³

Discuss with your attorney the various options for serving your out of state spouse with the petition for the divorce. ( See question 1.24.) If your spouse resides outside of West Virginia, special requirements may need to be considered to ensure that your spouse has proper notice and that the court has jurisdiction over your spouse. Where your spouse is served could also affect what the family court is legally able to award you. You best option, if possible, is to serve your spouse within the state of West Virginia.

1.14    Can I get a divorce even when I don’t know where my spouse is currently living?

West Virginia law allows you to proceed with a divorce even if you do not know the current address of your spouse, but it may affect what relief the judge can grant.

You should first take action to attempt to locate your spouse. Contact family members, friends, former coworkers, or anyone else who might know your spouse’s whereabouts. Utilize resources on the Internet that are designed to help locate people. You may want to consider Facebook, Twitter, Google, White Pages and other social media websites that can be helpful when trying to discover your spouse’s location. If the action has been filed, your attorney may be able to issue a subpoena to your spouse’s employer or other person to obtain your spouse’s address. The post office also has procedures to obtain the address of individuals involved in litigation. If you can locate your spouse, then you should arrange for appropriate service of the petition for divorce. See question 1.24.

Let your attorney know of the efforts you have made to attempt to find your spouse. Inform your lawyer of your spouse’s last known address, as well as any work address or other address where he/she may be found. If you cannot locate your spouse or if your spouse lives outside the state of West Virginia but refuses to sign the return receipt for certified mail, discuss serving your spouse by notice of publication in a newspaper.

If you have no choice but to serve your spouse by publication, you will need to complete an affidavit of non-residency or unknown residency in the office of the circuit clerk. The deputy clerk will fill out an order of publication. You should immediately take the order of publication to a newspaper of general circulation in the county where you filed the divorce or if your spouse lives out of state, to the county of your spouse’s last known address. The notice will be published once a week for two weeks in a row.

Talk to your attorney about your options and rights if you must serve your spouse by publication, as it could limit the court’s ability to award spousal support, child support and to permanently divide property.

1.15    My spouse and I now live in different counties. Where will I file for divorce?

Regardless of where your spouse resides, you can always file in the county where you and your spouse last lived together as husband and wife. However, if your spouse resides in West Virginia, then you also have the option of filing your divorce petition in the county where your spouse resides. If your spouse is not a resident of West Virginia then you have the option of filing your divorce petition in the county where you reside.¹⁴

If you have the option to file in more than one county, then talk to your attorney about which venue will be most advantageous for your case.

1.16    I immigrated to West Virginia. Will my immigration status stop me from getting a divorce?

If you meet the residency requirements for divorce in West Virginia, you can get a divorce here notwithstanding your immigration status. Talk to your immigration lawyer about the likelihood of a divorce leading to immigration challenges.

If you are a victim of domestic violence, tell your lawyer. You may be eligible for a change in your immigration status under the federal Violence Against Women Act. This act was passed by Congress in 1994 and created a special route for immigration status for battered U.S. citizens. If you are a battered noncitizen and are the spouse of an abusive U.S. citizen or permanent resident, you may apply for immigration status through a self-petitioning process.

1.17    Where do I file for divorce?

You file for divorce in the circuit clerk’s office. This office is typically located in the county courthouse. The circuit clerk is an elected position in each county and serves a term of six years. This office is where all official court papers are filed and kept.

1.18    What is the shortest period of time I can get a final divorce in West Virginia?

If you and your spouse have reached an agreement to settle all matters in controversy, then a divorce could be granted very quickly depending on the judge’s calendar and ability to schedule a hearing. Additionally, if you reach a final agreement prior to a temporary hearing, then that hearing can converted into a final hearing if both parties are present and agree.¹⁵

Be sure to discuss with your attorney all items that need to be completed before a judge will grant an uncontested divorce, such as completion of a parent education class and the filing of an answer and financial statements.

1.19     What is a petition for divorce?

A petition for divorce is a document completed and signed by the person initiating the divorce. It is filed with the circuit clerk to begin the divorce process. The petition will present in very general terms what the petitioner (person filing for divorce) is asking the family court to order, why there is jurisdiction and venue in this court and upon what grounds the divorce is being requested.

1.20    My spouse said she filed for divorce last week, but my lawyer says there’s nothing on file at the courthouse. What does it mean to file for divorce?

Filing for divorce means that the petition for divorce has been stamped and filed in circuit clerk’s office and that the filing fee has been paid (except in cases where a waiver is granted due to indigency or very low income).

Sometimes a person who has hired a lawyer to begin a divorce action uses the phrase I’ve filed for divorce, although no papers have been taken to the courthouse to start the legal process. The process does not begin until the papers are received and stamped by the circuit clerk and a civil action number is given to the case.

The civil action number stamped on the divorce petition is the number that will always be associated with your case, even if there are later modifications or actions for contempt after a divorce has been granted. Civil actions numbers contain three parts. The first part of the civil action number is the last two numbers of the year the original action was filed, the second part is D which stands for domestic, and the third part is the order in which your domestic case was filed. Therefore, if your civil action number is 15-D-1, then your domestic case was the first one filed in your county in 2015. If you need to get any document pertaining to your case, you must use this civil action number when asking for it from the circuit clerk’s office.

1.21    If we both want a divorce, does it matter who files?

No. In the eyes of the court, the petitioner (the party who files the petition initiating the divorce process) and the respondent (the other spouse) are not seen differently by virtue of which party filed. The court, as a neutral decision maker, will not give preference to either party. Both parties will be given appropriate notice and each will have a chance to be heard and present argument.

1.22    Are there advantages to filing first?

Maybe. Discuss with your attorney whether there are any advantages to you filing first. Your attorney may advise you to file first or to wait until your spouse files, depending upon the overall strategy for your case and your circumstances. For example, if your spouse begins hiding or selling marital assets upon learning about your plans for divorce, it may be necessary to file immediately in order to request emergency relief from the judge. To the contrary, if you are separated from your spouse but have a beneficial temporary arrangement, your attorney may counsel you to wait for your spouse to file.

Allow your attorney to support you in making the decision about whether and when to initiate the legal process by filing a petition for divorce.

1.23    Can I stop the newspaper from publishing notice of the filing or granting of my divorce? Will anyone have access to the documents filed in my case?

No, the filing and granting of a divorce is matter of public record. Newspapers have a right to access this information, and many newspapers publish this information as a matter of routine. There is no set schedule to determine when this information will be published. The filing of a petition for separate maintenance generally is not published in a newspaper. Contact your local newspaper to learn more about their specific practices.

Any pleadings (such as petitions, answers, notices, or motions), recordings, exhibits, transcripts, or other documents, except orders, are confidential and are not available to the public unless a court order is entered permitting access to a person who is not a party to the action. Otherwise, only the parties, their attorneys, and court/clerk personnel will have access to the file.

However, all orders of the court are public records. In certain cases where confidential information has been disclosed, the court may order the information to be kept private, referred to as being sealed or under seal. See Rule 6 of the Rules of Practice and Procedure for family court.

1.24    Is there a way to avoid embarrassing my spouse and not have the sheriff serve him with the divorce papers at his workplace?

Talk to your lawyer about the options for serving your petition for divorce. Service of process is the method to formally deliver court papers to your spouse.