How to get divorced in West Virginia

Tags: Online Divorce, West Virginia

Image: Tim Pennington / iStock

By Valerie Keene

Published Jul 29, 2022

Overview

This guide is for people in West Virginia who are thinking about getting divorced or have already started.

We cover everything from the basics – like what the grounds for divorce are in West Virginia – to the complicated, like how child custody works.

If you don’t find the answers you need here, feel free to email us at wv@edivorce.org.

Who is eligible for a divorce in West Virginia?

If you’ve been a West Virginia resident for at least a year, then you can file for divorce in West Virginia (WV §48-5-105).

Couples who got married in West Virginia can get divorced there even if they’ve lived there less than a year.

What are the grounds for divorce in West Virginia?

West Virginia allows no-fault and fault divorces (WV §48-5).

The grounds for a no-fault divorce are “irreconcilable differences” and “voluntary separation”. Despite trying to fix the marriage, you have no choice but to split. Or, you have already been living apart from your spouse for at least a year. You don’t need to provide evidence of irreconcilable differences.

You have grounds for a fault divorce if your spouse:

  • Committed adultery

  • Was convicted of a felony

  • Is incurably insane

  • Suffers from drunkenness or drug addiction

  • Deserted you for at least six months

  • Neglected or abused your children

  • Subjected you to “cruel or inhuman treatment”, which includes verbal or physical abuse

In the case of desertion, you can file for divorce before six months are up if you’re sure your spouse isn’t coming back (WV §48-5-404).

When there’s been child abuse or neglect, there needs to be “clear and convincing evidence sufficient to justify permanently” revoking custody from the other parent (WV §48-5-209).

What is the divorce process in West Virginia?

File papers with the court

First, you file a petition for divorce with the Family Court serving your county and officially notify your spouse by “serving” them. See the map of family courts to find yours.

What forms and documents are required?

You have a few options when it comes to the forms required for a West Virginia divorce. 

If you’ve hired a lawyer, they will guide you through filling out all the forms you need.

Your other option, for when you don’t have a lawyer, is to find all the forms you need on the West Virginia Judiciary’s Divorce Packet Forms page.

Your final option is to use an online form-filling service, such as 3StepDivorce or CompleteCase.com. These will guide you through the process of filling out all the forms so that you save time and don’t make a mistake.

How do I serve my spouse in West Virginia?

The easiest way to serve your spouse is to either pay the sheriff to do it or use certified mail. You could also have some other adult personally serve your spouse.

What if I can’t find my spouse?

If you can’t find your spouse, you need to file an affidavit with the court that you tried to serve them but failed. Then, you can publish notice of the divorce suit in a local newspaper.

It’s a good idea to rely on the sheriff to serve your spouse. If they fail, the judge will have little reason to suspect you’re lying when you say you don’t know where your spouse is.

Negotiate major issues with your spouse

Then, you negotiate the major issues with your spouse and craft a divorce agreement, also known as a marriage settlement agreement (MSA). These include:

  • Marital debts and property

  • Spousal support (aka alimony)

  • Child custody

  • Child support

  • Any other issues that matter to you, such as who gets the family pets

If you can’t come to an agreement on all issues, then you’ll need to decide whether you want to get help with resolving your disagreements, or go to court and litigate the case.

The two most common options for getting help are mediation and collaborative divorce.

Mediation

Mediators are trained in dealing with conflict and communication, and they have years of experience helping other couples work through their divorce. 

A mediator will help you and your spouse have a constructive discussion about the areas you disagree on. Ideally, the mediator helps the two of you reach an agreement on the issues you couldn’t resolve on your own. 

Mediation usually costs less and takes less time than hiring a lawyer. 

Read more about mediation in our posts 10 Reasons to Consider Mediation When Getting Divorced and Creating a Parenting Plan Through Mediation.

Collaborative Divorce

Collaborative divorce is when you and your spouse each hire a lawyer, and the four of you sign a legally-binding contract that governs how you will work out your divorce agreement.

If you and your lawyers aren’t able to hammer out an agreement, then the contract requires the lawyers to resign and prohibits you from hiring them to litigate your case in court.

This may sound odd, and it’s true that collaborative divorce is not for all couples. 

Collaborative divorce is for people who want the peace of mind that comes with having an expert family law attorney advocating for them, but are on good-enough terms with their current spouse that they want to avoid the stress of courtroom arguments before a judge.

The point of the quirky legal contract is to align everyone’s incentives and make an agreement more likely:

  • If you or your spouse can’t come to an agreement, you’ll have to deal with the headache and additional expense of finding a new attorney and starting over at step zero. 

  • If the attorneys can’t make it work, they don’t have the option of keeping you as a paying client and simply charging you for litigating your divorce in court.

Collaborative divorce is often quicker than a drawn-out litigation, so it saves money.

Until 2015 there was only one attorney in West Virginia, Brenda Waugh, who was trained in collaborative divorce. Today, however, more lawyers are getting trained in collaborative divorce. It’s still not common in West Virginia, but if it’s something that interests you, reach out to Brenda Waugh for help finding an attorney who can represent you.

Read more about collaborative divorce in our article What is Collaborative Divorce and Why Should I Use It?

Litigation

If you can’t agree on the major issues with your spouse, then you will have to litigate your divorce.

You can choose to represent yourself in court or you can hire a lawyer. Depending on your financial situation, the court has the option of ordering you to pay for your spouse’s legal fees or vice versa(WV §48-5-611).

If you represent yourself in court, you’ll be what’s called a self-represented litigant (SRL).

Whether you represent yourself or hire a lawyer, you will need to have one or more hearings in court before a judge. If possible, it’s best to agree on as many issues as you can with your spouse and present a partial divorce settlement to them.

In many cases, the judge will require the couple to try mediation if they haven’t already. If you have kids, barring domestic violence or other abuse, the judge will almost certainly require mediation if you can’t agree on a parenting plan.

After the hearings, the judge will issue an order that finalizes your divorce and prescribes the divorce settlement details. It will specify who gets what property, if there’s spousal maintenance, what the child custody plan is, who pays child support and how much, and any other details the judge feels are essential.

Spousal Support

Spousal support is also known by the term spousal maintenance or, more commonly, alimony.

Upon ordering a divorce or granting a decree of separate maintenance, the court may require either party to pay spousal support in the form of periodic installments, or a lump sum, or both, for the maintenance of the other party.” (WV §48-8-103)

The most common question about spousal support is: who pays and how much?

Unfortunately, the answer depends on the specifics of your situation. If you and your spouse can agree on an amount, then that’s the answer. If you can’t agree, then you’ll each make a proposal to the judge and the judge will decide the amount and duration.

Spousal support “shall not be disproportionate” to the payer’s ability to pay (WV §48-8-103(a)).

In West Virginia, marital misconduct may be considered when determining spousal support amounts, including whether one person became a parent thanks to their adultery (WV §48-8-103).

Can spousal support be changed later on?

Yes (WV §48-8-103(b)). Spousal support can be modified if the “circumstances or needs of the parties” change enough that the old level of support doesn’t “meet the ends of justice” anymore.

West Virginia law doesn’t prescribe specific situations in which spousal support should be modified, except for if the person receiving payments gets married or is in a “de facto marriage” (WV §48-5-707).

You can find instructions for how to request a change to spousal support on the West Virginia Judiciary’s Family Court Forms page.

Child Custody

No matter what state you live in, child custody is always a detailed topic. It’s so detailed that we wrote a dedicated guide to West Virginia child custody

Here are a few questions that guide covers in depth:

  • What does custody actually consist of?

  • What goes into a court’s ruling in a child custody case?

  • How do parents create and change parenting plans?

  • What happens if one parent moves?

A few key points to keep in mind are:

  • Custody consists of physical custodial responsibilities (i.e. who is responsible for day-to-day child care) and decision-making responsibilities (i.e. making choices about religion, education, healthcare, etc.)

  • The courts care about the child’s best interest, not about what’s fair to the parents

  • The courts prefer to have parents agree on a parenting plan rather than have judges make decisions

  • Demonstrating a willingness to collaborate with the other parent on a parenting plan will help show the court that you are putting your child’s interests first

Child Support

Child support in West Virginia consists of a “basic child support obligation”, healthcare expenses that aren’t covered by insurance, and childcare costs (WV §48-13-202). 

It can also include other expenses that both parents agree on (e.g. agreeing to split the cost of a certain summer camp the child loves).

West Virginia also requires parents to provide health insurance for their kids, if they can afford it. The court can include that cost in the child support calculation, or it can add on a separate obligation (WV §48-12-102).

Who pays child support and how much do they pay?

Who pays child support depends on (a) how much each parent makes and (b) what the parental responsibilities are.

West Virginia law has guidelines for how much child support is owed in total, and how much each parent should pay. To summarize the calculations:

  • First, add up the monthly income of both parents. Then use the table in WV §48-13-301 to figure out how much total child support is owed. If there are more children, then more support will be owed.

  • Second, use either Worksheet A (Basic Shared Parenting) or Worksheet B (Extended Shared Parenting) to calculate how much each parent owed.

    • o Use Worksheet B if each parent has physical custody for at least 127 days each year (35%)

A simplified explanation of the worksheets is that they take into account the total child support obligation (basic + health + care), how much each parent makes, how much time each parent spends responsible for the children, and any adjustments the parents agree to or the court finds appropriate. With all that information, it calculates how each parent owes. 

One parent will likely end up owing payments that get transferred to the other parent.

The worksheets linked to above are easy to fill in, though you will probably want a calculator.

What happens if one parent loses their job?

If you lose your job, you can file a motion with the court to change the child support order. The court has a form for doing this (see here under “Forms for Modification of Child/Spousal Support/Parenting Plans”). Or you can call your court clerk for more information about which form to use (WV §48-11-105).

Can children receive child support after they turn 18?

In certain circumstances, children are eligible to continue receiving child support payments after they turn 18 (WV §48-11-103):

  • If they are in high school or vocational school, younger than 20, and living with one parent

  • If they are disabled and the court orders child support payments to continue

Can child support be changed?

Yes, if there is a “substantial change in circumstances” for either parent. One indicator of this is if the amount of child support prescribed by the guidelines changes by 15% (WV §48-11-105(b)).

In other words, if you suddenly start making a lot more money or a lot less, your child support obligation may change.

Also, if one parent is called to military service, then they may request an expedited hearing for changing child support if they need to (WV §48-11-108).

What if one parent doesn’t pay?

West Virginia takes non-payment of child support very seriously.

If one parent stops paying child support, the other parent, or the child’s primary caretaker or guardian, or the West Virginia Bureau for Child Support Enforcement can petition the court for help getting the other parent to pay.

Along with your petition, you will need to file an affidavit that the other parent is at least 14 days behind on paying child support (WV §48-14-203).

The court has a couple options to compel the other parent to pay:

  • Order income to be withheld by the employer, thereby taking away the option to not pay

  • Order a lien against personal property (e.g. car) or real estate

    • A lien is a legal claim to some property in order to pay for a debt owed by the person who owns that property. If the debt isn’t paid, the lienholder can sell the property to get paid back.

  • Hold the non-paying parent in contempt of court and even sentence them to jail for up to 6mo if they have “willfully” refused to pay (WV §48-14-502)

  • Suspend the non-paying parent’s professional license, such as a real estate broker’s license, a contractor’s license, a commercial driver’s license, or other such licenses (WV §48-15-201). This will happen only if the other options have failed.

West Virginia charges a hefty 5% interest on late child support payments.

More info about child support is available from the WV Bureau of Child Support Enforcement.

Property Division: who gets what?

If you and your spouse agree on how to divide the property, then the court will approve your plan unless it looks like one person bullied the other into the agreement.

But what if you don’t agree? You’ll need the court to make a ruling on who gets which property. In this situation, the first thing to understand is what property is eligible to be allocated to one spouse or the other.

Marital vs. separate property

Marital property is everything you or your spouse earned, acquired, bought, etc. during the marriage. It includes “All property and earnings acquired by either spouse during a marriage” (WV §48-1-233). 

Marital property also includes any increase in the value of separate property that is due to spending marital property funds or the work by either or both spouses during the marriage. For example, if one spouse owned a beat-up old car before the marriage and then both people worked to restore it during the marriage, the increase in the car’s value would be marital property.

In contrast, separate property is any of the following (WV §48-5-237):

  • Property acquired before a marriage

  • Property acquired in exchange for pre-marriage property

  • Property excluded by agreement from before or during marriage

  • Inheritance

  • The increase in value of separate property not due to marital property funds or labor of either spouse

How does the court divide marital property?

West Virginia law says to divide “marital property…equally between the parties” (WV §48-7-101).

That said, courts are allowed to deviate from this presumption – and they often do – if a different arrangement makes sense in light of the certain mitigating factors. 

In brief, the court can deviate from “equal” if (a) one person contributed in a non-monetary way, such as by being a homemaker, (b) one person’s actions have inhibited the earning potential of the other, (c) one person has actively destroyed or lost marital wealth.

The official law reads:

  • 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 nonmonetary contributions, including, but not limited to:

    • Homemaker services;

    • Child care services;

    • 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;

    • Labor performed in the actual maintenance or improvement of tangible marital property; and

    • 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:

    • 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

    • 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.

Property transfers between spouses during a divorce proceeding are, in general, not taxable (WV §48-7-109).

What is a Qualified Domestic Relations Order (QDRO)?

A Qualified Domestic Relations Order (QDRO) is a legal order that specifies how to divide up a retirement benefits plan. Dividing up retirement benefits is frustrating and challenging because (a) the plans can have complicated rules, and (b) it can be challenging to properly value future retirement benefits.

If you need to divide retirement benefits during divorce, you have a couple options:

  • Call your 401k, pension or other sort of retirement benefits plan provider (e.g. Fidelity) and see if they have an existing process to follow. Some make it easier than others.

  • If you’re in a union, your union might have a process for you to follow.

  • If you work for the government, then your pension plan probably has a form to fill out and a process for you to follow.

For most everyone else, it’s best to get assistance drafting a QDRO. They’re complicated enough that even family law attorneys routinely outsource this part of divorce to specialized firms.

There are online services that will draft a QDRO for you. They usually charge in the range of $200-400 (as of 2022). 

One option with good reviews is QDRO Desk ($299).

What is a Quitclaim Deed?

A quit claim deed is a legal document used to transfer property from one person to another.

If you’re doing a divorce yourself (no lawyer), then if one spouse needs to transfer their interest in real estate to the other, they will each need to sign a quitclaim deed. This often needs to happen in front of a notary.

You can learn more about how to draft a Quitclaim Deed at eForms.com.

What are Temporary Orders?

Temporary Orders are very important. They are court orders, usually issued at the beginning of a divorce proceeding, that govern family matters while the divorce is in progress.

Temporary orders are granted by the court when one person files for divorce and files a motion with the court (i.e. asks the court) to issue an order about one of the following topics (WV §48-5-501 to 509):

  • Spousal support

  • Child custody and child support

  • Attorney’s fees and court costs

  • Health care costs

  • Marital home, including continuing to pay the mortgage and who gets its exclusive use (if that’s desired) 

  • The family car(s), including payments and possible exclusive use

  • Property

    • Not just about leaving it alone, but also about maintaining it (e.g. paying mortgage on jointly owned rental property)

  • Emergency protective orders

If you’re unhappy with temporary orders, you’re out of luck because you can’t appeal them (WV §48-5-514). On the other hand, they last only as long as the divorce proceedings do (WV §48-5-501).

Temporary orders do not affect the final judgement, but how you react to them can indeed influence a judge’s opinion of you.

Can I get my former name back?

Yes. If you ask for it when you file for divorce or during the divorce proceeding, the judge will grant you your former name. 

You don’t need to file a separate form. You will be issued a certificate as evidence of the name change that you can use for any legal requirement, including at the DMV (WV §48-5-613).

Other resources

Divorce can be tricky, so it helps to be aware of all the resources at your disposal. Here are a few that people usually find helpful.

West Virginia Family Law Attorneys

You can search for lawyers on the West Virginia Bar Association’s website.

West Virginia Mediators

You can search for West Virginia mediators through the West Virginia Academy of Mediators & Arbitrators or through the WV Bar Association.

Legal Aid Societies

Legal Aid societies help people who can’t afford lawyers. They also publish useful resources for everybody else. We found these especially useful:

Divorce Books

The best place to search for books is your local library. Libraries often have a book or two about how to get a divorce and you can check them out for free.

If your library doesn’t have anything useful, or if you want to learn more in the privacy of your own home, we recommend these books:

OurFamilyWizard

OurFamilyWizard a simple but capable app that helps divorced parents work together for the good of their kids. It helps with messaging, scheduling, note-taking and record-keeping, expense tracking and more.

If parents do need to return to court, either to modify a child custody order or to resolve a dispute, the data captured in OurFamilyWizard will help resolve disagreements about who said what, who did what, etc.

We tested out OurFamilyWizard and wrote up a review to help you decide if it will be helpful for you.

West Virginia State Statutes

The West Virginia state laws are public and quite readable even for someone with no prior law experience. The part about divorce starts at Chapter 48: Domestic Relations, Article 5. Divorce.

West Virginia Judiciary and Family Court

The West Virginia Judiciary website provides helpful resources to the public, including:

JustAnswer – ask questions to real lawyers online

If you have more questions, consider chatting with a lawyer. JustAnswer is an online service that lets you avoid the expense and hassle of booking time with attorneys.

Instead, you can send lawyers questions and get answers back quickly. It’s low-commitment and you’ll get access to experienced lawyers who know Family Law inside and out.

eDivorce articles

We have other articles we hope you’ll find useful:

West Virginia attorney blogs

West Virginia family law attorney Brenda Waugh has a great blog where she shares her experience with divorce and child custody cases in West Virginia.