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Divorce Law
§48-5-201. Grounds for divorce; irreconcilable differences.
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. A complaint alleging irreconcilable differences shall set forth
the names of any dependent children of either or both of the parties. A
divorce on this ground does not require corroboration of the irreconcilable
differences or of the issues of jurisdiction or venue. The court may
approve, modify or reject any agreement of the parties and make orders
concerning spousal support, custodial responsibility, child support,
visitation rights or property interests.
§48-5-202. Grounds for divorce;
voluntary separation.
(a) A divorce may be ordered when the parties have lived separate and apart
in separate places of abode without any cohabitation and without
interruption for one year. The separation may occur as a result of the
voluntary act of one of the parties or the mutual consent of both parties.
(b) Allegations of res judicata or recrimination with respect to any other
alleged grounds for divorce are not a bar to either party obtaining a
divorce on the ground of voluntary separation.
(c) When required by the circumstances of a particular case, the court may
receive evidence bearing on alleged marital misconduct and may consider
issues of fault for the limited purpose of deciding whether spousal support
should be awarded. Establishment of fault does not affect the right of
either party to obtain a divorce on the ground of voluntary separation.
§48-5-203. Grounds for divorce; cruel or inhuman treatment.
(a) A divorce may be ordered for cruel or inhuman treatment by either party
against the other. Cruel or inhuman treatment includes, but is not limited
to, the following:
(1) Reasonable apprehension of bodily harm;
(2) False accusation of adultery or homosexuality; or
(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.
(b) 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.
§48-5-204. Grounds for divorce; adultery.
A divorce may be ordered for adultery. Adultery is the voluntary sexual
intercourse of a married man or woman with a person other than the
offender's wife or husband. The burden is on the party seeking the divorce
to prove the alleged adultery by clear and convincing evidence.
§48-5-205. Grounds for divorce; conviction of crime.
A divorce may be ordered when either of the parties subsequent to the
marriage has, in or out of this state, been convicted for the commission of
a crime that is a felony, and the conviction is final.
§48-5-206. Grounds for divorce; permanent and incurable insanity.
(a) A divorce may be ordered for permanent and incurable insanity, only if
the person is permanently and incurably insane and has been confined in a
mental hospital or other similar institution for a period of not less than
three consecutive years next preceding the filing of the complaint and the
court has heard competent medical testimony that such insanity is
permanently incurable.
(b) A court granting a divorce on this grounds may in its discretion order
support and maintenance for the permanently incurably insane party by the
other.
(c) In an action for divorce or annulment, where the petitioner is
permanently incurably insane, the respondent shall not enter a plea of
recrimination based upon the insanity of the petitioner.
§48-5-207. Grounds for divorce; habitual drunkenness or drug
addiction.
(a) A divorce may be ordered for habitual drunkenness of either party
subsequent to the marriage.
(b) A divorce may be ordered for the addiction of either party, subsequent
to the marriage, to the habitual use of any narcotic or dangerous drug
defined in this code.
§48-5-208. Grounds for divorce; desertion.
A divorce may be ordered to the party abandoned, when either party
willfully abandons or deserts the other for six months.
§48-5-209. Grounds for divorce; abuse or neglect of a child.
(a) A divorce may be ordered for abuse or neglect of a child of the parties
or of one of the parties, "abuse" meaning any physical or mental injury
inflicted on such child including, but not limited to, sexual molestation;
and "neglect" is willful failure to provide, by a party who has legal
responsibility for such child, the necessary support, education as required
by law, or medical, surgical or other care necessary for the well-being of
such child.
(b) A divorce shall not be granted on this ground except upon clear and
convincing evidence sufficient to justify permanently depriving the
offending party of any allocation of custodial responsibility for the abused
or neglected child.
§48-5-102. Subject matter jurisdiction.
(a) The Legislature hereby finds and declares that it has the authority to
establish, by general law, the jurisdiction of circuit courts and family
courts over domestic relations matters.
(b) The circuit courts and family courts of this state, by act of the
Legislature, are vested with concurrent jurisdiction over the subject matter
of divorce. Generally, a family court has the right and authority to
adjudicate actions for divorce and the power to carry its judgment and order
into execution. Circuit courts have limited jurisdiction in divorce actions,
as provided in section two, article two-a, chapter fifty-one of this code
and as otherwise specifically provided in this chapter. Jurisdiction of the
subject matter of divorce embraces the power to determine every issue or
controverted question in an action for divorce, according to the court's
view of the law and the evidence.
§48-5-103. Jurisdiction of parties; service of process.
(a) In an action for divorce, it is immaterial where the marriage was
celebrated, where the parties were domiciled at the time the grounds for
divorce arose or where the marital offense was committed. If one or both of
the parties is domiciled in this state at the time the action is commenced,
the circuit courts and family courts of this state have jurisdiction to
grant a divorce for any grounds fixed by law in this state, without any
reference to the law of the place where the marriage occurred or where the
marital offense was committed.
(b) A judgment order may be entered upon service of process in the manner
specified in the rules of civil procedure for the service of process upon
individuals.
§48-5-105. Residency requirements
for maintaining an action for divorce.
(a) Except as otherwise provided in
subsection (b) of this section:
(1) If the marriage was entered into within this state, an action for
divorce is maintainable if one of the parties is an actual bona fide
resident of this state at the time of commencement of the action, without
regard to the length of time residency has continued; or
(2) If the marriage was not entered into within this state, an action for
divorce is maintainable if:
(A) 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
(B) The residency has continued uninterrupted through the one-year period
immediately preceding the filing of the action.
(b) An action for divorce cannot be maintained if the cause for divorce is
adultery, whether the cause of action arose in or out of this state, unless
one of the parties, at the commencement of the action, is a bona fide
resident of this state. In such case, if the respondent is a nonresident of
this state and cannot be personally served with process within this state,
the action is not maintainable unless the petitioner has been an actual bona
fide resident of this state for at least one year next preceding the
commencement of the action; or
(c) When a divorce is granted in this state upon constructive service of
process and personal jurisdiction is thereafter obtained of the respondent
in the case, the court may order all or any portion of the relief that has
been demanded in the pleadings.
§48-5-106. Venue of actions for divorce.
(a) If the respondent in an action for divorce is a resident of this state,
the petitioner has an option to bring the action in the county in which the
parties last cohabited or in the county where the respondent resides.
(b) If the respondent in an action for divorce is not a resident of this
state, the petitioner has an option to bring the action in the county in
which the parties last cohabited or in the county where the petitioner
resides.
...For
further information, please refer to the West Virginia Code - Chapter 48
Marriage and
Living Together Law
West Virginia Marriage
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Child Support
§48-13-101. Guidelines to ensure uniformity and increase predictability;
presumption of correctness.
This article establishes 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. There is a rebuttable presumption, in any
proceeding before a court for the award of child support, that the amount of
the award which would result from the application of these guidelines is the
correct amount of child support to be awarded.
§48-13-102. Right of children to share in parents' level of living.
The Legislature recognizes that children have a right to share in their
natural parents' level of living. Expenditures in families are not made in
accordance with subsistence level standards, but are made in proportion to
household income, and as parental incomes increase or decrease, the actual
dollar expenditures for children also increase or decrease correspondingly.
In order to ensure that children properly share in their parents' resources,
regardless of family structure, these guidelines are structured so as to
provide that after a consideration of respective parental incomes, child
support will be related, to the extent practicable, to the standard of
living that children would enjoy if they were living in a household with
both parents present.
§48-13-103. Financial contributions of both parents to be considered.
The guidelines promulgated under the provisions of this article take into
consideration the financial contributions of both parents. The Legislature
recognizes that expenditures in households are made in aggregate form and
that total family income is pooled to determine the level at which the
family can live. These guidelines consider the financial contributions of
both parents in relationship to total income, so as to establish and
equitably apportion the child support obligation.
§48-13-201. Use of both parents' income in determining child support.
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.
§48-13-202. Application of expenses and credits in determining child
support.
In determining the total child support obligation, the court shall:
(1) Add to the basic child support obligation any unreimbursed child health
care expenses, work-related child care expenses and any other extraordinary
expenses agreed to by the parents or ordered by the court; and
(2) Subtract any extraordinary credits agreed to by the parents or ordered
by the court.
§48-13-204. Use of worksheets.
The calculation of the amount awarded by the support order requires the use
of one of two worksheets which must be completed for each case. Worksheet A
is used for a basic shared parenting arrangement. Worksheet B is used for an
extended shared parenting arrangement.
§48-13-301. Determining the basic child support obligation.
(abbreviated)
The basic child support obligation is determined from the following table of
monthly basic child support obligations:
...For
further information, please refer to the West Virginia Code - Chapter 48
West
Virginia Child Support Calculator - by AllLaw.com
West Virginia Child
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Child
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Child Custody
and Visitation Law
§48-9-102. Objectives; best
interests of the child.
(a) The primary objective of this article is to serve the child's best
interests, by facilitating:
(1) Stability of the child;
(2) Parental planning and agreement about the child's custodial arrangements
and upbringing;
(3) Continuity of existing parent-child attachments;
(4) Meaningful contact between a child and each parent;
(5) 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;
(6) Security from exposure to physical or emotional harm; and
(7) Expeditious, predictable decision-making and avoidance of prolonged
uncertainty respecting arrangements for the child's care and control.
(b) A secondary objective of article is to achieve fairness between the
parents.
§48-9-104. Parent education
classes.
(a) The family court shall, by order, and with the approval of the supreme
court of appeals, designate an organization or agency to establish and
operate education programs designed for parents who have filed an action for
divorce, paternity, support, separate maintenance or other custody
proceeding and who have minor children. The education programs shall be
designed to instruct and educate parents about the effects of divorce and
custody disputes on their children and to teach parents ways to help their
children and minimize their trauma.
(b) 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 pursuant to subsection (a) of this section unless the
court determines that attendance is not appropriate or necessary based on
the conduct or circumstances of the parties. The court may, by order,
establish sanctions for failure to attend. The court may also order parties
to an action involving paternity, separate maintenance or modification of a
divorce decree to attend such classes.
(c) The family court may require that each person attending a parent
education class pay a fee, not to exceed twenty-five dollars, to the clerk
of the circuit court to defray the cost of materials and of hiring teachers:
Provided, That where it is determined that a party is indigent and
unable to pay for such classes, the court shall waive the payment of the fee
for such party. The clerk of the circuit court shall, on or before the tenth
day of each month, transmit all fees collected under this subsection to the
state treasurer for deposit in the state treasury to the credit of special
revenue fund to be known as the "parent education fund" which is hereby
created. All moneys collected and received under this subsection and paid
into the state treasury and credited to the parent education fund shall be
used by the administrative office of the supreme court of appeals solely for
reimbursing the provider of parent education classes for the costs of
materials and of providing such classes. Such moneys shall not be treated by
the auditor and treasurer as part of the general revenue of the state.
(d) The administrative office of the supreme court of appeals shall submit a
report to the joint committee on government and finance summarizing the
effectiveness of any program of parent education no later than two years
from the initiation of the program.
§48-9-201. Parenting agreements.
(a) If the parents agree to one or more provisions of a parenting plan, the
court shall so order, unless it makes specific findings that:
(1) The agreement is not knowing or voluntary; or
(2) The plan would be harmful to the child.
(b) The court, at its discretion and on any basis it deems sufficient, may
conduct an evidentiary hearing to determine whether there is a factual basis
for a finding under subdivision (1) or (2), subsection (a) of this section.
When there is credible information that child abuse as defined by section
49-1-3 of this code or domestic violence as defined by section 27-202 of
this code has occurred, a hearing is mandatory and if the court determines
that abuse has occurred, appropriate protective measures shall be ordered.
(c) If an agreement, in whole or in part, is not accepted by the court under
the standards set forth in subsection (a) of this section, the court shall
allow the parents the opportunity to negotiate another agreement.
§48-9-206. Allocation of custodial responsibility.
(a) Unless otherwise resolved by agreement of the parents under section
9-201 or unless manifestly harmful to the child, the court shall allocate
custodial responsibility so that the proportion of custodial time the child
spends with each parent approximates the proportion of time each parent
spent performing caretaking functions for the child prior to the parents'
separation or, if the parents never lived together, before the filing of the
action, except to the extent required under section 9-209 or necessary to
achieve any of the following objectives:
(1) To permit the child to have a relationship with each parent who has
performed a reasonable share of parenting functions;
(2) To accommodate the firm and reasonable preferences of a child who is
fourteen years of age or older, and with regard to a child under fourteen
years of age, but sufficiently matured that he or she can intelligently
express a voluntary preference for one parent, to give that preference such
weight as circumstances warrant;
(3) To keep siblings together when the court finds that doing so is
necessary to their welfare;
(4) To protect the child's welfare when, under an otherwise appropriate
allocation, the child would be harmed because of a gross disparity in the
quality of the emotional attachments between each parent and the child or in
each parent's demonstrated ability or availability to meet a child's needs;
(5) To take into account any prior agreement of the parents that, under the
circumstances as a whole including the reasonable expectations of the
parents in the interest of the child, would be appropriate to consider;
(6) To avoid an allocation of custodial responsibility that would be
extremely impractical or that would interfere substantially with the child's
need for stability in light of economic, physical or other circumstances,
including the distance between the parents' residences, the cost and
difficulty of transporting the child, the parents' and child's daily
schedules, and the ability of the parents to cooperate in the arrangement;
(7) To apply the principles set forth in 9-403(d) of this article if one
parent relocates or proposes to relocate at a distance that will impair the
ability of a parent to exercise the amount of custodial responsibility that
would otherwise be ordered under this section; and
(8) To consider the stage of a child's development.
(b) In determining the proportion of caretaking functions each parent
previously performed for the child under subsection (a) of this section, the
court shall not consider the divisions of functions arising from temporary
arrangements after separation, whether those arrangements are consensual or
by court order. The court may take into account information relating to the
temporary arrangements in determining other issues under this section.
(c) If the court is unable to allocate custodial responsibility under
subsection (a) of this section because the allocation under that subsection
would be manifestly harmful to the child, or because there is no history of
past performance of caretaking functions, as in the case of a newborn, or
because the history does not establish a pattern of caretaking sufficiently
dispositive of the issues of the case, the court shall allocate custodial
responsibility based on the child's best interest, taking into account the
factors in considerations that are set forth in this section and in section
two hundred nine and 9-403(d) of this article and preserving to the extent
possible this section's priority on the share of past caretaking functions
each parent performed.
(d) In determining how to schedule the custodial time allocated to each
parent, the court shall take account of the economic, physical and other
practical circumstances such as those listed in subdivision (6), subsection
(a) of this section.
...For
further information, please refer to the West Virginia Code - Chapter 48
FAQ on Child
Custody and Visitation
Child Custody
Resources
Property
Division
§48-5-604. Use and occupancy of
marital home.
(a) The court may award the exclusive use and occupancy of the marital home
to a party. An order granting use and occupancy of the marital home shall
include the use of any necessary household goods, furniture and furnishings.
The order shall establish a definite period for the use and occupancy,
ending at a specific time set forth in the order, subject to modification
upon the petition of either party.
(b) Generally, an award of the exclusive use and occupancy of the marital
home is appropriate when necessary to accommodate rearing minor children of
the parties. Otherwise, the court may award exclusive use and occupancy only
in extraordinary cases supported by specific findings set forth in the order
that grants relief.
(c) An order awarding the exclusive use and occupancy of the marital home
may also require payments to third parties for home loan installments, land
contract payments, rent, property taxes and insurance coverage. When
requiring third-party payments, the court shall reduce them to a fixed
monetary amount set forth in the order. The court shall specify whether
third-party payments or portions of payments are spousal support, child
support, a partial distribution of marital property or an allocation of
marital debt. Unless the court identifies third-party payments as child
support payments or as installment payments for the distribution of marital
property, then such payments are spousal support. If the court does not
identify the payments and the parties have waived any right to receive
spousal support, the court may identify the payments upon motion by any
party.
(d) This section is not intended to abrogate a contract between either party
and a third party or affect the rights and liabilities of either party or a
third party under the terms of a contract.
§48-5-605. Use and
possession of motor vehicles.
(a) The court may award the exclusive use and possession of a motor vehicle
or vehicles to either of the parties.
(b) The court may require payments to third parties in the form of
automobile loan installments or insurance coverage, if coverage is available
at reasonable rates. When requiring third-party payments, the court shall
reduce them to a fixed monetary amount set forth in the order. The court
shall specify whether third-party payments or portions of payments are
spousal support or installment payments for the distribution of marital
property.
(c) This section is not intended to abrogate a contract between either party
and a third party or affect the rights and liabilities of either party or a
third party under the terms of a contract.
§48-5-609. Court may restore to either
party his or her property.
Upon ordering a divorce, the court has the power to award to either of the
parties whatever of his or her property, real or personal, may be in the
possession, or under the control, or in the name, of the other, and to
compel a transfer or conveyance.
§48-5-610. Court may order just and equitable distribution of
property.
(a) When the pleadings include a specific request for specific property or
raise issues concerning the equitable division of marital property, the
court shall order such relief as may be required to effect a just and
equitable distribution of the property and to protect the equitable
interests of the parties therein.
(b) In addition to the disclosure requirements set forth in part 7-201, et
seq., of this chapter, the court may order accounts to be taken as to all or
any part of marital property or the separate estates of the parties and may
direct that the accounts be taken as of the date of the marriage, the date
upon which the parties separated or any other time in assisting the court in
the determination and equitable division of property.
§48-7-101. Equal division of marital property.
Except as otherwise provided in this section, upon every judgment of
annulment, divorce or separation, the court shall divide the marital
property of the parties equally between the parties.
§48-7-102. Division of marital property in accordance with a
separation agreement.
In cases where the parties to an action commenced under the provisions of
this chapter have executed a separation agreement, then the court shall
divide the marital property in accordance with the terms of the agreement,
unless the court finds:
(1) That the agreement was obtained by fraud, duress or other unconscionable
conduct by one of the parties; or
(2) That the parties, in the separation agreement, have not expressed
themselves in terms which, if incorporated into a judicial order, would be
enforceable by a court in future proceedings; or
(3) That the agreement, viewed in the context of the actual contributions of
the respective parties to the net value of the marital property of the
parties, is so inequitable as to defeat the purposes of this section, and
such agreement was inequitable at the time the same was executed.
§48-7-103. Division of marital
property without a valid agreement.
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 any attribution of fault to either
party which may be alleged or proved in the course of the action, after a
consideration of the following:
(1) 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:
(A) Employment income and other earnings; and
(B) Funds which are separate property.
(2) The extent to which each party has contributed to the acquisition,
preservation and maintenance or increase in value of marital property by
nonmonetary contributions, including, but not limited to:
(A) Homemaker services;
(B) Child care services;
(C) 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;
(D) Labor performed in the actual maintenance or improvement of tangible
marital property; and
(E) Labor performed in the management or investment of assets which are
marital property.
(3) 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:
(A) 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; and
(B) 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.
(4) 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.
...For
further information, please refer to the West Virginia Code - Chapter 48
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