West Virginia Divorce Laws

State laws regulate divorce and the divorce process. State divorce laws determine the grounds for divorce, eligibility for divorce, and child custody rules. Some states have waiting periods and residency requirements. These laws dictate whether you must wait a specific period before filing for divorce. They also dictate where legal separation is necessary before filing for divorce.

Here, we'll discuss West Virginia's divorce laws. We'll also briefly explain the divorce process in West Virginia. If you're considering divorce, you should get to know these laws. It will make navigating your divorce easier, including resolving legal issues with your soon-to-be ex-spouse.

West Virginia Divorce Laws

A divorce case in West Virginia will take place in the family court or circuit court. To help you understand the divorce laws in West Virginia, we offer a summary of legal information in the following table, then a more detailed discussion of the key elements of the divorce process.

Note: State laws are subject to change through new legislation, higher court rulings, ballot initiatives, and other means. While we strive to provide the most current information, consult a West Virginia divorce attorney or conduct your own legal research to verify the status of any state laws you are reviewing.

Legal Requirements for a West Virginia Divorce

Most states have specific requirements you must meet before filing your petition for divorce. West Virginia is no different. You must meet the state's residency rule to file for divorce in West Virginia. The residency requirement in West Virginia may appear more confusing than in other states.

According to West Virginia law, the following residency rules apply when filing for divorce:

• If your marriage took place in West Virginia, either spouse who lives in the state may file for divorce in the state, with no specific length of residency.
• If your marriage took place in another state, you must have been a resident of West Virginia for at least one year before filing for divorce in a West Virginia court.
• If you cite adultery as the grounds for divorce, you must live in-state at the time of filing. If your spouse lives out of state, you must live in-state for one year before filing your divorce papers.

Besides residency requirements, most states also have a mandatory waiting period. This is the time between filing for divorce and the family court issuing your final divorce decree.

Technically, there is no mandatory waiting period for divorce in West Virginia. But there are several rules on separation and residency that you must follow. For example, if you file for a divorce based on voluntary separation, you must show that you and your spouse lived separate and apart for one year without cohabitation. Similarly, the grounds for desertion require you to show that your spouse deserted or abandoned you for at least six months.

It's best to talk to an experienced West Virginia family law attorney to see if you've met the legal requirements.

No-Fault Divorce vs. Fault-Based Divorce in West Virginia

West Virginia offers two types of no-fault divorce actions. Here, you don't have to prove (or allege) that your spouse engaged in marital misconduct to get divorced. You must certify that you and your spouse have irreconcilable differences or show there has been voluntary separation and that you and your spouse have lived separate and apart without cohabitation for one year or more. Both spouses must agree if you pursue a divorce based on irreconcilable differences. In cases of voluntary separation, a spouse can claim these grounds even if the other spouse disagrees or does not appear. But they must present corroborating evidence.

If you file a fault-based divorce, you must cite specific grounds for divorce. The fault-based grounds for divorce (W. Va. Code §§ 48-5-203–48-5-209) recognized by the West Virginia courts include the following:

• Adultery
• Cruel and inhuman treatment
• Child abuse or neglect
• Desertion of at least six months
• Habitual drunkenness or drug addiction
• Conviction of a felony
• Incurable insanity

You must submit proof of such behavior if you cite specific grounds for divorce. It's not enough to allege that your spouse engaged in marital misconduct. As with a voluntary separation case, you need corroborating evidence. This usually comes as testimony from other witnesses and case exhibits.

Uncontested Divorce and Contested Divorce

If you're lucky, you and your spouse will agree that divorce is the best option. You may also agree to the terms of your divorce. If so, you'll file an uncontested divorce. You'll submit a copy of your marital settlement agreement to the judge for approval.

Once the family law judge approves your settlement, they'll issue your final divorce decree and adopt it as a court order. This is the most efficient way to end a marriage.

In all cases (even when parties agree), the petitioner-spouse files the divorce action and must ensure that the respondent gets served. The respondent-spouse can file their response within 20 days. Courts won't likely set a first hearing date until at least 30 days from filing. But if the parties agree on all the issues, that first hearing date could be the final hearing date.

In cases with minor children, both spouses must also complete a parent education class. The course will cover topics like creating a parenting plan, mediation, the negative effects on children from divorce and domestic violence, how parents can lessen these effects, and resources for domestic abuse. This could delay the final hearing date as well.

You'll file a contested divorce if you and your spouse disagree on divorce terms. These cases take longer to resolve — at times months or years. They're also more expensive because you will likely end up in multiple hearings and a final trial, leading to more billable hours for your attorney.

The most contentious legal issues in a contested divorce include:

• Marital property vs. separate property
• Equitable distribution of marital assets and debts, including real property and vehicles
• Alimony/spousal support
• Child custody of minor children
• Child support
• Parenting plan

In an equitable distribution state such as West Virginia, the court will divide the marital assets and debts fairly to the parties under all circumstances. It does not have to be a 50/50 equal split.

In West Virginia and all states, the court will use a best interests standard to resolve children's issues focused on their well-being. But West Virginia lawmakers also adopted a presumption for shared custody and equal parenting time for the parties in 2022. You can change this with evidence that such a division would not be safe for the children (as may be the case when there is a history of domestic abuse) or otherwise not in the children's best interests.

While waiting for your final court hearing, your divorce attorney will try to negotiate a settlement with your spouse's lawyer. If this isn't possible, your case will go to trial. At trial, both sides present evidence and argue their case before the judge. The judge will make final decisions on all contested issues.

West Virginia Divorce: Further Research

• West Virginia Legal Research
• West Virginia Legal Aid
• West Virginia Judiciary: Family Courts
• West Virginia Child Custody Laws
• Child Support in West Virginia
• Annulment vs. Divorce: What's the Difference?

Get Legal Help With Your Divorce Case in West Virginia

A divorce can be emotionally and legally challenging. The good news is that you don't have to go through it alone. If you're considering divorce, contact a skilled West Virginia divorce lawyer. Your attorney will guide you through the divorce process, represent you in court, and handle any negotiations with your spouse.