It’s critical to understand what the basic laws and provisions are regarding divorce in West Virginia before you start the process.
Having a working knowledge of alimony, child support, how assets are divided and other key information is a good start to protect your rights. The more you know, the better chance you’ll have of saving time and money and reducing stress as well.
Here are some of the key things to know about.
Here’s a quick overview of the basic laws regarding divorce in West Virginia.
The state allows both no-fault and fault-based divorces. You can either cite irreconcilable differences or list one of the specific reasons why you want to get divorced. This can include reasons such as adultery, drug and alcohol addiction, permanent and incurable insanity, abandonment, and others.
To file, you or your spouse must meet minimum residency requirements of living in West Virginia for at least one year before submitting initial paperwork.
The types of forms you file will depend on whether or not you have children, either biological or adopted. When you file, you’ll need to pay a fee of about $160 (varies by courthouse) unless you can get a fee waiver approved by the court.
After you serve your spouse with papers, they will have 20 days to respond.
As part of the process, you’ll also need to exchange financial disclosures with each other. This will include, income, assets, expenses, health insurance info, and more. This information will be used to determine alimony, child support and how your assets should be divided.
Unless there are overriding concerns (drug abuse, domestic violence, etc.), courts generally want both parents actively involved in their children’s lives after a divorce. You will need to come up with a parenting plan to address exactly how you and your ex will accomplish this.
West Virginia is an equitable distribution state. This means property is divided fairly, but not always on a 50/50 basis.
There are several factors the courts will consider when making a determination.
First, there must be a clear identification of what is marital property and what is separate property. In broad terms, assets acquired during the marriage are considered marital property, with a few exceptions. Assets you had before marriage or acquired after you separated are considered separate assets.
Factors affecting a division of assets include things such as each spouse’s income, contributions to the marriage (i.e., did one spouse stay home while the other worked), contributions to each spouse’s education if a spouse did something to depreciate the value of the marital property (used in fault-based divorces).
Spouses will be given a chance to work out an equitable settlement, but the court will step in if an agreement can’t be reached.
In West Virginia, pensions and 401k plan funds earned during a marriage are considered marital property and must also be divided fairly. Retirement plan assets accumulated before marriage or after the date of legal separation are considered separate assets and are not subject to division.
Finding correct valuations of various retirement plans can be difficult, and often an expert will need to be consulted to assist in this task. An accountant, pension valuator, actuary, business appraiser, or a certified divorce financial analyst are all possible options to accurately assess values.
Once the value has been determined, and it has been determined how each pension will be split (there is often give and take), an attorney or a firm that specializes in splitting pensions will need to create a qualified domestic relations order, often referred to as a QDRO.
The QDRO details how the account will be split. It must be submitted to the plan administrator and the court for approval.
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Once approved, a spouse becomes an alternate payee, and the account is divided according to the instructions in the QDRO.
Bank account assets that were acquired during the course of the marriage are community property and must also be divided equitably.
If you had a separate bank account before your marriage, and you kept those assets separate, then that account will not be subject to division. Be prepared to prove that is the case if you intend to claim the account as yours only.
Debts in West Virginia are treated much the same way that community property is treated in a divorce. If you incurred a debt together while married, then both parties are responsible for the debt.
If the debt was encumbered separately, then one spouse only may be held accountable for it.
While debts may be divided under equitable division laws, keep in mind that debts in both spouse’s names are treated equally by creditors. Even if you negotiate a settlement where one spouse is responsible for the debt, a creditor may still hold you accountable if your name still appears on the debt.
You are responsible for your debt, despite what your agreement with your spouse says.
In West Virginia, if you receive a separate inheritance or a gift, it is not considered community property, even if it was acquired during the marriage.
This applies only if you keep the inheritance or gift separate. If you add those assets to a joint bank account, it may no longer be considered separate property. You may be forced to list it as a marital asset and it will be divided as part of the settlement agreement.
As part of your settlement agreement, the court may rule that one spouse is entitled to receive alimony. Alimony, also referred to as spousal support, can either be paid in a lump sum or in payments over a specified period of time.
In West Virginia, there are four types of alimony:
Temporary Support (pendente lite) – paid only while the divorce is pending to help one spouse meet financial obligations until a settlement is final
Rehabilitative – The most common type of alimony in West Virginia, payments are made for a limited time to allow a spouse to upgrade education, training or work experience and give them the ability to earn enough income to be self-supporting.
Permanent – Often, this type of alimony is paid in long-term marriages where one spouse stayed at home and handled raising a family and other domestic duties. It is also awarded when one spouse has a disability or is unable to otherwise work.
Spousal Support in Gross. This sets a dollar amount limit on the amount of support to be paid. It can either be paid in a lump sum or in installments for a set period of time.
To determine alimony in West Virginia, by law, courts will evaluate 20 different factors to decide if and how alimony should be awarded. Those factors are:
In a fault-based divorce, a judge may also consider the reason for the divorce when deciding alimony issues.
Also, if there is a substantial change in either spouse’s situation after the divorce, it is possible to seek a modification or termination of support.
Both parents are expected to contribute to the financial well-being of their children in West Virginia.
The amount of support you’ll be required to provide will depend on the combined income of both parents and the number of children you have.
The state uses predefined guidelines to determine a reasonable amount of child support. Parents can pay more and deviate from those guidelines, but a court must approve any reduction.
Factors that may impact the adjustment of child support payments include:
Usually, the parent that the child lives with most of the time will receive payments from the other parent to help support the child’s needs.
Child support also takes into account child care and providing health insurance for children.
The state provides worksheets to help you determine possible support costs:
You can also view West Virginia’s basic child support schedule here.
Most child support payments are made through income withholding, deducted from a parent’s paycheck and sent to the Bureau of Child Support Enforcement.
West Virginia courts strongly prefer that both parents are actively involved with shared parenting time after a divorce.
When minor children are involved, as part of the settlement agreement, the court will need to approve a Parenting Plan that details times, dates, places of exchange, vacations, and so forth. In some cases, mediation may be required to work out details.
The parent who spend the majority of time with the child is known as the primary residential parent. This is still the case when parenting is split 50/50. While one parent often retains this primary physical custody, both parents may also enjoy legal custody rights. Legal custody gives both parents a say in major life decisions such as medical care, schooling, and related issues.
To help establish these guidelines, a judge will look at the relationship of the child with each parent, the current living arrangements for school, activities, friends and other lifestyle factors, and a parent’s willingness to accept all responsibilities for parenting, including maintaining a civil relationship with the other parent.
In some cases, the court will also consider the desires of the child, especially if they are older, in deciding which parent to live with.
After a family court makes a decision about custody and visitation, you do have the right to appeal that decision to a West Virginia circuit court.
Also, if a parent does not follow the approved parenting plan, you can petition the court to force compliance by filing a contempt petition.
If one or both parents have substance abuse issues, it will affect how child custody is determined in West Virginia.
Normally, the courts want both parents actively involved in their children’s lives after a divorce, but the need to protect children from a potentially dangerous situation outweighs this preference.
When substance abuse is indicated and later proven, courts may restrict custody and visitation until the problem is under control. In some cases, courts may order counseling for a parent as a condition of access to a child.
This may be backed up by drug testing before visitation and custody are resumed.
If a parent develops a substance abuse problem after divorce, it’s also possible to seek a modification of the existing orders through the courts.
Domestic violence types of behavior are one of the fault-based reasons you can file for divorce in West Virginia.
If you’re a victim of domestic violence, the first thing you must do is get immediate help and flee to a safe place. After you are safe, you can take longer-term steps to protect yourself such as seeking a restraining order that will be in force while you move forward with your divorce.
The other issue with domestic violence has to do with child visitation and custody. If domestic violence is present, the courts will take this into account, and always err to the side of protecting children.
This may mean restricted visits under supervision, or a complete denial of access to children until it can be proven that a threat no longer exists.
Adultery is one of the grounds that can be used in a fault-based divorce in West Virginia.
To prove adultery has taken place, a petitioner must produce sufficient and relevant evidence to the court, including photos, phone and credit card records, witness testimony, and other similar information.
However, West Virginia prohibits granting a divorce on the basis of adultery if any of the following established as a defense in the case:
A bifurcated divorce means that a divorcing couple will split their case into two separate actions. If a couple can decide on many of the issues related to a divorce, but one or more items is delaying the entire process, a judge may grant a bifurcation.
Judges in West Virginia are reluctant to grant bifurcated divorces and will do so only in very limited instances.
The thinking is that it creates judicial inefficiencies and takes away much of the incentive to complete the divorce in a timely way.
So that an equitable division of property can take place, both spouses are required to disclose all assets, income, liabilities, and debts as part of the divorce. They must file forms with the court after initial paperwork is completed. (This is done to ensure that an equitable distribution of assets takes place.)
In some cases, a spouse may try to hide assets. If they are discovered doing this, there can be severe penalties assessed by the court.
During a divorce, one or both spouses may be required to carry health insurance for their children. Also, if one spouse is the primary wage earner, he or she may also be required not to drop coverage for their spouse while the case is still being decided.
After the divorce, each spouse will be required to find their own healthcare coverage. If a spouse was covered under the other’s work health insurance policy, they will need to make different arrangements since employers will not carry an ex-spouse after the fact.
The ex-spouse who is not covered will need to find insurance through other means, perhaps through COBRA, in the insurance marketplace, or they may even negotiate the payment of coverage as part of their divorce settlement.
Civil courts in West Virginia handle military divorces. Many of the issues are the same regarding no-fault or fault-based criteria. But some things are different.
For example, child custody and visitation issues can be more complicated due to relocation or deployment orders.
A military servicemember can file where they claim their legal residence or in the state where they are stationed. The nonmilitary spouse can also file a divorce in New Mexico if that’s where he or she resides.
For orders dividing retired pay as property, a member and former spouse must have been married to each other for 10 years or more during which the member performed at least 10 years of military service creditable towards retirement eligibility. This is the 10/10 rule.
Under the Service Members’ Civil Relief Act, and the Uniformed Services Former Spouses’ Protection Act (USFSPA) of 1982, active-duty members are afforded certain protections. For example, a military spouse can request a delay in divorce proceedings so that his or her military duties are impacted. A service member can delay a legal action when he or she is on active duty plus 60 days beyond the end of his or her enlistment.
The USFSPA also governs how military pensions are disbursed and whether or not a former military spouse has full medical and commissary privileges. For this to happen, the former spouse must have been married at least 20 years; the military spouse had at least 20 years of creditable service, and those two overlapped by at least 20 years.
Your spouse can’t hold up a divorce by refusing to respond to court actions. When they are non-responsive, the court will still move forward with the divorce and declare a default judgment in your favor. In most cases, you’ll get everything you asked for, and your spouse will be left with a less than desirable outcome.
Looking for more great tips about filing for divorce? Check out a few of our favorite resources:
Jason Crowley is a divorce financial strategist, personal finance expert, and entrepreneur. Jason is the managing partner of Divorce Capital Planning, co-founder of Divorce Mortgage Advisors, and founder of Survive Divorce. A leading authority in divorce finance, Jason has been featured in the Wall Street Journal, Forbes, and other media outlets. He is a Chartered Financial Analyst, Certified Financial Planner practitioner, and Certified Divorce Financial Analyst. You can email him at jason@survivedivorce.com.
