How to File for Divorce In West Virginia

Preparing the Documents

There are 2 sets of forms for filing for divorce in West Virginia, with children and without children (either biological or adopted). If you have adopted your spouse’s child from his/her previous relationship, then the law of the state treats the child as your biological child for the purposes of child custody and support.

The supreme court of West Virginia provides the same domestic relations forms for all the counties in the state. However, some counties have some of their own unique forms and so it is a good idea to find out with the county clerk about the forms needed in your county.

Documents Needed for Filing for Divorce

If you have children with your spouse, then you must complete the following forms:

• Civil Case Information Sheet: Contains all the information about your spouse and you.
• Divorce Petition: This outlines the grounds for the divorce and the terms of the divorce of the plaintiff.
• Financial Statement: This must be filled out by both spouses and lists all the assets of both spouses and the marital assets.
• Vital Statistics Form
• Child Support Enforcement Application & Income Withholding Form: This is needed if you have children or if one of the spouses is seeking alimony.
• Parent Education Registration Form: This is the registration for the parent education class, which both parents must complete.
• Fee Waiver Affidavit
• Stipulated Agreement: MSA (marital settlement agreement) with details of all issues such as property division, issues related to children and alimony.
• Proposed Parenting Plan: Has the terms of the proposed shared parenting responsibilities.

If your spouse and you don’t have children, then the following forms must be submitted:

• Case Information Sheet
• Divorce Petition
• Financial Statement
• Vital Statistics Form
• Fee Waiver Affidavit

Filing Your Forms

Once all the appropriate forms have been filled, then you must file them with the clerk’s office at the county courthouse. Some of the forms require to be notarized i.e. they must be signed by you in front of the notary public under oath. There is a specific number of copies of each form that you must file in order to have your divorce case opened, which is as follows:

• Petition for Divorce (original + 1 copy)
• Case Information Sheet (original + 2 copies)
• Vital Statistics Form (original)
• Fee Waiver Affidavit (original)
• Financial Statement (original + 1 copy)
• Child Support Income Withholding Form (original)
• Parent Education Form (original)
• Proposed Parenting Plan (original)

As per the state’s law, the spouse that is filing for divorce should serve the divorce forms to the other spouse to ensure that the other spouse is notified about the need to respond.

There are various ways in which you can serve your spouse:

• Personal service
• Service via certified mail
• Service via the sheriff’s office
• Picking up the papers at the clerk’s office
• Publication

The preferred method of service is personal service and this is usually by means of hand delivery of the papers. The West Virginia law forbids the spouse from personally serving the other. Instead, you must ask a family member, friend or a process server to deliver the papers.

If your spouse lives within the state, then you can make use of certified mail; however, if this used in case your spouse is a non-resident of Virginia, then the court may not be able to rule on the manner of property division. Your spouse can also pick up the divorce papers from the clerk’s office.

Contested Divorce (High Costs)

If your spouse and you are not able to agree on any of the main issues of your divorce, then your divorce will be contested and to sort out the various issues, your case will go to trial in order to sort out all the terms. The judge will hear your case and make the necessary decisions regarding the various issues.

Contested divorces take a long time and are more expensive, as you will need to hire a divorce attorney to represent and fight your case on your behalf in court.

Uncontested Divorce (Low Costs)

Whether you have children or not, opting for an uncontested divorce is faster and comparatively less expensive. Uncontested divorces in West Virginia are quite simplified if your spouse and you agree on all the main issues of the divorce such as child custody, child support, etc.

Also, a summary divorce or a simplified divorce can save you the stress of your divorce case going to trial. Before filing for an uncontested divorce in West Virginia, the following issues must be resolved:

• Division of property and real estate.
• Division of the assets and debts.
• Child custody and arrangements for visitation in the case of minor children.
• Child support.
• Health and dental insurance.
• Spousal support.
• Other issues.

DIY Divorce

If you decide to represent yourself in court or want to go about the process of getting a divorce without a lawyer, this is known as a DIY divorce. Typically, you can go in for a DIY divorce in the case of an uncontested one because things are much easier if your case is simple and your spouse and you are willing to negotiate and have a settlement agreement.

If you want to go in for a DIY divorce, you can get all the information about the divorce laws and the forms you require for filing on the judiciary website of West Virginia. Nevertheless, you must still check what forms are needed by the court and also fill them out correctly.

Online Divorce Service

If you find it difficult to file the forms on your own, you can opt for the services of an online divorce company. The laws of West Virginia require that the plaintiff should file the divorce documents with the county court and both the spouses need to attend the final hearing that will be held at the courthouse, you cannot complete the entire divorce online.

However, in the case of an uncontested divorce, you can do the main work of preparing your forms online correctly and quickly by using an online divorce service, who will do the job for you at a nominal fee. This essentially means that you do not have to know and understand the rules and laws of the state and the specific county to select and fill the right forms.

All you need to do is provide basic information about your case and the online service will customize your forms as per your situation as per the requirements of the law.

Hire an Attorney

If your divorce is a contested one, where there is no agreement on the key issues between your spouse and you, then your case will be heard by a judge in court, where he/she will resolve the various issues.

In the case of a divorce trial, your spouse and you must employ the services of a divorce lawyer, who will present your case in the court along with witness testimonies, etc. Usually, a divorce trial is very expensive and also takes very long.

Property Division

Being a state of equitable distribution, if there is no valid agreement, the court will divide all marital property equally between the two spouses; however, it can alter the distribution after considering the following factors:

• The level of contribution of each spouse in acquiring, preserving and maintaining or the increase in the marital property value by means of both monetary, as well as, non-monetary contributions.
• Extent of each spouse’s efforts during the marriage which has decreased or limited the spouse’s earning capability or increased the earning capability of the other spouse.
• Extent of each spouse’s conduct during the marriage, which has led to the depreciation or dissipation of the marital property value.

Spousal Support

The court may require that either spouse must pay spousal support and the amount is determined by the following factors:

• Length of the marriage.
• Length of time that both spouses lived together as man and wife.
• Current income from employment and other recurring earnings of either spouse from any source.
• The earning capabilities of either spouse based on employment skills, education, training, work experience, responsibilities for children and duration of time the spouse was absent from the job market.
• Age, mental, physical and emotional condition of each of the spouses.
• Marital property distribution.
• Educational qualifications of each of the spouses.
• If either spouse has postponed or foregone any employment, education or economic opportunities during the marriage.
• Standard of living maintained during the marriage.
• Probability that the spouse seeking support can increase his/her earning capabilities by acquiring additional training or education.
• Any contributions, financial or other, made by either spouse for the educational, vocational, training skills, earning or career capacity of the other spouse.
• Expected expenditure for obtaining training or education mentioned above.
• Cost of the education of minor children.
• Cost of healthcare of each spouse and their minor children.
• Tax liabilities of each spouse.
• Financial need of each spouse.
• How inappropriate it is for each spouse as the custodian of minor children to seek employment.
• Legal responsibilities of each spouse to support herself/himself and any other persons.
• Care and the costs of a minor/adult child’s mental or physical disabilities.
• Any other factors which the court feels are appropriate for grant of spousal support or any other maintenance.

Child Custody and Support

The court takes into account the best interests of the child before deciding on the child’s custody. The best interest of the child will be served by ensuring that the minor child has contact with the parent who acts in the best interest of the child and also by encouraging both parents to share the responsibilities of bringing up of the child after the divorce.

The main goal is the best interests of the child by facilitating:

• The stability of the child.
• Planning and agreement between parents regarding the upbringing and custody of the child.
• Continuation of the current child-parent relations.
• Significant contact between each parent and the child.
• Protection from any emotional or physical harm.
• Quick decision making and avoiding uncertainty in terms of the childcare and control.
• Safeguarding the relationships by adults who are knowledgeable about providing for the child’s requirements and place the child’s needs in high priority.

Child Support

Child support is determined by West Virginia by distributing the child support obligation between the two parents according to their income. The state makes use of the guidelines in order to ensure that there is greater uniformity by the people making the recommendations for child support and also to increase the predictability for the child, parents and other people affected by the orders.

If your spouse and you have minor children, then before a hearing in front of a judge, you must attend a course on parent education. Even if your divorce is an uncontested one, your spouse and you must attend a hearing in front of a judge.

An initial meeting will be held by the Family Law Master 20 days after you have served the Divorce Petition to your spouse or 30 days if the service is by publication. You must explain to the judge, why you want a divorce and also the terms of settlement at the final hearing. In case the judge agrees with the settlement, then you must submit the Divorce Decree along with the Findings of Fact for the signature of the judge.

Your divorce will be final on the date that the Divorce Decree is signed by the judge. You must wait for 20 days before the divorce is completed.

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