West Virginia Divorce Laws
With 6.0 marriages and 2.9 divorces per 1,000 people, West Virginia's marriage and divorce rates in 2021 were average compared to other states’ numbers. In general, the Mountain State’s marriage rates were relatively stable from 2019 to 2021, while its divorce rates steadily decreased.
Despite this improvement in statistics, the reality is that not all married couples in the state live happily ever after. According to the West Virginia Vital Statistics Report published in 2020, a marriage will likely last for seven years before ending in divorce or annulment.
These days, many things influence a couple’s decision to end their marriage legally, and the divorce process can be complicated and tedious. As such, this article aims to help readers navigate the coming proceedings by giving a detailed overview of relevant laws and guidelines.
Divorce vs. Annulment vs. Separate Maintenance in West Virginia
Divorce, annulment, and separation are legal processes with different desired outcomes. Spouses enter into a divorce in order to end their marriage, provided the union is actually legitimate. If they have been living under the same roof despite an invalid marriage, they need to undergo annulment instead of divorce.
Meanwhile, separate maintenance, or the state’s version of legal separation, allows couples to live apart while staying married. It also addresses various issues, such as child custody, spousal support, and asset division. This arrangement can be beneficial to those who want to keep their immigration status, health insurance, and tax benefits.
Separate maintenance also leaves the door open for spouses’ reconciliation, but if they eventually decide to divorce, it may speed up the process since key family issues might have already been resolved.
Is West Virginia a No-Fault State When It Comes to Divorce?
Yes, West Virginia allows the filing of no-fault divorces. Actually, spouses might find it easier to dissolve their marriage this way since they only need to have lived separately for a year to be eligible. No-fault divorce laws also apply to spouses with “irreconcilable differences.” Essentially, no evidence is required to prove these differences; they just have to mutually agree that their marriage can no longer work due to crucial points of disagreement.
On the other hand, spouses can file a fault-based divorce on the following grounds, provided they have sufficient evidence to back up their allegations:
Cruel or inhuman treatment, such as physical violence.
Adultery.
Criminal conviction.
Permanent and incurable insanity.
Habitual drug or alcohol abuse.
Desertion for at least six months.
Child abuse or neglect.
How to File for Divorce in West Virginia
Before diving into the divorce process, the parties involved must ensure they are eligible to do so. The grounds for divorce do not need to have occurred in West Virginia, so couples can also file in a local courthouse even if they were not married in the state.
However, one of the spouses must be a bona fide West Virginia resident for at least one uninterrupted year. Note that this requirement does not apply to those whose marriage was entered in state records; they can file for divorce even if they have only lived in West Virginia for a few months.
The residency requirement gets more specific if a divorce is filed because of adultery. In this case, if the respondent lives outside the state, the petitioner is the one required to hold a one-year residency prior to the filing date.
Once the residency requirements are fulfilled, one may proceed with the following steps:
1. Prepare the Necessary Documents
Divorce petitioners can access the necessary forms on the West Virginia Judiciary website. Here are the essential documents for all types of divorces:
Divorce Petition (SCA-FC-101).
Financial Statement disclosing the spouses’ income sources, properties, debts, insurance policies, and their children’s circumstances and benefits (SCA-FC-106).
Vital Statistics Form (SCA-FC-104).
Petitioner's Civil Case Information Statement (SCA-FC-103).
Other documents may be needed when the divorce involves minor children or one of the parties is requesting support:
Application for Child Support Enforcement and Income Withholding Services (SCA-FC-113), which must be submitted with the divorce petition.
Parent Education Notice, which tells the court that each party has completed a parent education class and paid the $25 parent education fee, as required.
Proposed Parenting Plan, which must be filed prior to the first hearing.
Additional financial documents, as indicated in the divorce packet’s instruction document.
While the forms are usually self-explanatory, some come with a separate set of instructions that must be followed carefully. Thus, it is a good idea to print out several blank forms in case of errors.
2. File the Divorce Papers
Once all the documents are prepared and filled out, it is time to file them with the court clerk in the right county. If the respondent lives within the state, the original divorce papers, plus a minimum of two copies of each document, can be filed in their county of residence. Petitioners can also file in the county where they last lived with their spouses.
If the respondent lives outside the state, the counties where the divorce can be filed are the same ones as above. Note that there is a $135 fee for filing a divorce in West Virginia. Other applicable fees will be discussed in the next sections.
3. Notify the Spouse of the Divorce
The petitioner must notify their spouse of the divorce by serving them with legal papers in a way allowed by the government. The simplest means of serving divorce papers is to have the respondent sign a duly notarized Acceptance of Service form (SCA-FC-105). Otherwise, the petitioner can choose any of the following methods:
Personal service by a sheriff: For a $25 fee, the petitioner can arrange with the court clerk to have a sheriff find the respondent and serve the papers to them. The petitioner must provide clear and exact directions to their spouse’s house or workplace.
Personal service by private process server: The petitioner can pay another person, who is at least 18 years old, $25 to serve the divorce documents. This method will be deemed valid only if the person also fills out and files an affidavit stating when and where they served the papers.
Service by certified mail: The circuit clerk can serve the divorce papers for a $20 fee. The respondent will need to sign a return receipt postcard for the divorce action to progress.
Service by publication: This method can be used if all other attempts to serve the respondent fail, such as if the respondent refuses to sign the receipt for a mailed summons or has an unknown address and cannot be located.
4. File for Temporary Relief, as Needed
While a divorce case is pending, the spouses involved may opt to pursue temporary relief. “Relief” basically means anything a party can ask the court to be part of the divorce decree. Ample space is given for the petitioner to specify relief requests on the petition form. Thus, if one of the parties needs urgent help due to financial struggles, temporary relief can be a solution. This can be especially helpful in contested divorces, which can take a long time to resolve.
In addition to spousal maintenance, parties can request temporary relief for parenting and child support, lawyer and court fees, family car and house expenses, and hospitalization or healthcare costs. A spouse experiencing harassment or abuse may also ask the court to issue an emergency protective order against the other party.
5. Finalize or Contest the Divorce in Court
After receiving the divorce papers, the respondent has 20 days to answer. A longer period of 30 days is given if the method of service is publication.
In no-fault divorces, the respondent must agree that the marriage should end because of irreconcilable differences. They must also complete and submit the necessary forms, whether on their own or with the help of a lawyer.
However, if the respondent disagrees with the terms cited by the petitioner in the divorce complaint, the parties can try to work out their issues through alternative dispute resolution methods, such as collaboration, meditation, or negotiation. If a settlement agreement is not reached after all these efforts, the parties may bring the divorce to court.
In this stage of the divorce process, hearings and conferences may be scheduled by the family court. During the first private hearing, the court will determine if the presented information or settlement agreement is enough to finalize the divorce or if further evidence is needed. Then, the judge will give their verdict. Note that the ruling might not happen on the same day of the trial, and the divorce will not be legally effective until the judge signs a final order.
How Property Is Divided in a West Virginia Divorce
As an equitable distribution state, West Virginia equally divides marital property between divorcing spouses. This is unless an equitable or fair distribution of property is necessary or if there is a separation agreement. Even then, the court will review the agreement and not follow it if the terms are grossly unfair, fraudulent, or obtained by force.
If there is no such agreement, the court will proceed to divide the property equally. However, as mentioned above, it will also take several factors into account to make the distribution as equitable as needed:
Each spouse’s contributions to the marriage: These include monetary contributions, like employment income, as well as non-monetary ones, such as the responsibility of looking after the house, children, or family business.
Each spouse’s impact on the other’s earning potential: For example, if the husband supported his wife in obtaining a master’s degree and she got a higher-paying job afterward, the court may decide to increase the husband’s share of the property.
Each spouse’s actions may have decreased the property’s value: Suppose a spouse gambled away a significant amount of marital assets. In this case, the court may reduce their share of the property.
Note that fault does not play a part here; the court may not rule in favor of one party just because it is the other’s fault the marriage ended. Moreover, the court cannot divide “separate property” or anything the parties acquired before their marriage. Separate property, which may also include gifts during the marriage, will remain in the possession of the recipient spouse.
West Virginia Divorce FAQs
This section may help those considering filing for divorce on their own but still have specific concerns. Know that in cases that are complex or involve unique circumstances, it is better to work with a lawyer.
Legal Resources for Getting a Divorce in West Virginia
Throughout the state, several organizations provide legal assistance and advocacy for people going through a divorce:
Legal Aid of West Virginia
This nonprofit levels the playing field for West Virginia residents by offering legal counsel or representation to those unable to afford it. Legal Aid of WV prefers to take on divorce cases that involve child safety or domestic violence.
Individuals looking for free legal services may apply by calling 866-255-4370, and information about the application process is available on the site. The organization also provides online self-help resources related to divorce.
West Virginia University College of Law - Clinical Law Program
This program at WVU Law caters to disadvantaged individuals and families. Law students assist them under the guidance of faculty members. The law school has nine clinics, including the Child and Family Advocacy Clinic, where students render over 40,000 hours of service every year. Clients with legal problems may also benefit from the clinic’s medical-legal partnership with the WVU Children’s Hospital.
The clinic can be reached at 304-293-7249. Note that the program is inactive during summer breaks and holidays.
West Virginia State Bar
The State Bar provides people in need with three avenues for getting legal help:
West Virginia Free Legal Answers: Through this virtual clinic, people can ask questions about divorce and other civil matters specific to their situation. They will receive an email notification once they get a response from volunteer lawyers. They can also ask follow-up questions.
Tuesday Legal Connect: Every Tuesday, from 6 p.m. to 8 p.m., the WV State Bar opens its lines to citizens seeking general legal advice from volunteer attorneys. Its toll-free hotline is 800-642-3617.
Lawyer Referral Service: This public service connects residents with a local lawyer who charges a $25 initial fee for a 30-minute consultation.
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