If you’re considering a divorce in West Virginia, you need to make sure you understand many of the basic rules, processes, laws, and procedures before you get started.
This will give you the best chance of the most favorable outcome for your case.
Although every West Virginia divorce is unique to a certain degree, many also are bound by the same framework. Understanding that framework is critical.
Here are several things you need to know:
You must be able to prove that you have been a resident for at least one year prior to filing initial paperwork.
If you satisfy that requirement, then West Virginia allows both no-fault and fault-based reasons to file for divorce.
To meet no-fault requirements, spouses must have lived apart for at least one year without interruption. This can either be by mutual agreement or by one party or the other’s desires. When this standard is met, you only need to state that there are irreconcilable differences between you and your spouse for the divorce to move forward.
In a fault-based marriage, the burden of proof is higher and there are specific fault-based criteria you must meet. They include:
Legal separation is an official action that allows many of the issues in a divorce to be decided. The major difference is that the spouses will remain married. If they divorce, later on, the decisions made during the separation will speed the divorce process.
A legal separation will cover things like a division of assets, parenting and visitation issues, spousal support, and other key areas.
Spouses who want to divorce later must stay physically separated for at least a year. If there is a reconciliation, even if it is brief, the one year period starts over again.
The grounds for legal separation are the same as they are for divorce. They can either be fault-based or no-fault.
Couples may choose legal separation for religious reasons because divorce is a conflict with their spiritual beliefs.
Legal separations also let a spouse keep their spouse’s health insurance and can provide tax benefits that only married couples can enjoy.
Immigration status can be affected. If a noncitizen gets a divorce, they may be deported. But with a legal separation, they can stay in the country even if they don’t continue to live with their spouse.
You can end a marriage in West Virginia either by divorce or an annulment.
The difference between the two is that a divorce ends a valid marriage, and an annulment ends a marriage that was never valid from the start.
You have to be able to prove one of several legal grounds has been met in West Virginia to have a marriage annulled. Those grounds include:
To get an annulment, you will need to file a Complaint for Annulment with the court where you or your spouse lives. You will also need to have lived in West Virginia for at least a year and also gotten married in the state.
If you are granted an annulment after a hearing, it means your marriage never legally existed because the marriage was invalid from the beginning.
You have several options for how you can get a divorce in West Virginia.
Each offers advantages and disadvantages that you’ll need to consider before making a final decision.
This is known as an uncontested divorce. If you and your spouse can agree on all the issues in advance, you can file paperwork with the court stating this fact, and you will usually be granted a divorce in a short amount of time, the least amount of emotional stress, and the lowest possible costs. You may be able to go through the entire process without appearing in front of a judge, or appearing only briefly to answer a few questions.
This is similar to a DIY divorce, except that you rely a lot more on pre-printed forms and online services or attorneys to help you complete the required paperwork. The automated approach can save a lot of money, but you need to be careful about making costly mistakes if you go this route.
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You meet with a neutral third party who helps you work through the areas of disagreement you have, such as property division, child custody and visitation, and related issues. When you strike an agreement, you draw up a proposal and submit it to the court for approval. This is a quicker, cheaper, and less contentious route for many couples than going through a full-blown trial.
This is an option for couples who still have a fair amount of cooperation and trust between them. Any disagreements are resolved respectfully and amicably using attorneys who are specially trained in collaborative law. That is less costly than other forms of divorce and leaves decisions with the couple, and not a judge. If collaboration fails, you can move forward with other types of divorce, but you will need to retain a different attorney if you do.
Litigation is a traditional approach to divorce. You and your attorneys engage with your spouse and their attorneys in an attempt to negotiate a settlement before going to trial. About 95% of all litigated divorces end this way. If you can reach an agreement through a negotiated settlement or arbitration instead of a trial, then you can save some time and aggravation.
Similar to mediation, but instead of a third-party mediator, you will work with a third party, often a private judge, who will listen to both sides and then issue a binding ruling. People often choose this when there is a fair amount of conflict, but they don’t want the public exposure, cost, and attention that a full trial brings.
Assuming you meet residency requirements for West Virginia, the first step you’ll need to do is gather your information to be used to fill out your paperwork and make your case for your divorce.
This list can be quite extensive. To help you stay organized, we’ve put that information into The Ultimate Divorce Checklist: The Information You Need to Prepare for Divorce.
Once you’ve gathered your information, you’ll need to fill out your initial set of forms. This will vary depending on the type of divorce you’re seeking, whether or not you have children, and a few other variables.
A complete list of forms has been put into various Divorce Packet Forms by the West Virginia Judiciary to help you get started.
The person who files for divorce is the petitioner, and the other spouse is the defendant.
After you complete the appropriate forms, you need to submit the documents to your Circuit Clerk’s Office in the county where you or your spouse live. Some forms will need to be notarized, so make sure you meet this requirement.
One of these forms will be a financial disclosure that will list all your income, assets, expenses and other relevant financial information that will help to later determine an appropriate division of assets, alimony, and child support.
You will need to pay a filing fee at the time you submit your paperwork. However, you can also request a fee waiver if you are not able to pay the fees. The clerk’s office will supply you with the form you can use to accomplish this request.
After you have filed, you need to legally serve your spouse to make them aware of your intention to divorce them. You can do this through personal service, by using a sheriff’s deputy, through certified mail, service by publication, or your spouse can consent to picking up the paperwork at the clerk’s office.
After the spouse has been legally served, they have 20 days to file a response with the Circuit Court’s Office. That deadline extends to 30 days if service was completed by publication.
If minor children are involved, you and your spouse will need to take a Parenting Education class through specially trained instructors approved by the court.
If you’re a member of the armed services, you may have special protections granted to you under the Servicemembers Civil Relief Act and other federal protections.
After the response has been filed, parties will either enter into mediation, collaborative efforts, or begin preparations for litigation.
If you can work out issues in advance, you can have your attorneys draft a settlement agreement that will be reviewed by the court. If the court approves, a judge will sign a final decree and your divorce will be finalized.
Although it is rare, when two sides can’t agree, a divorce may go to trial. Both sides will present their evidence and information, and a judge will rule on the areas of disagreement.
Yes. There is no legal requirement that you must use an attorney to file for divorce in West Virginia.
Generally, couples go this route when they’re seeking an uncontested divorce, and they are able to work out all of their issues by themselves.
But you need to be cautious. If a disagreement does crop up, don’t hesitate to seek legal advice immediately. You run the risk of costing yourself a lot of aggravation, anxiety, money, and time while winding up with an unfavorable settlement if you’re not careful.
Not completely, although a certain amount of the work can be done online in advance in some situations.
You can work with an online service or trade emails with a private attorney to complete much of the paperwork you’ll need in a divorce. This can save time and money if done properly.
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However, you’ll still need to file paperwork in person at your courthouse to officially start the process.
After you file initial paperwork with the court, you must serve the papers on your spouse. You can do this either by personal service through a sheriff or a personal friend, service by publication, pick-up at the clerk’s office by your spouse, or by certified mail.
You need to make sure you obtain proof of delivery if you use certified mail because you will need to file that proof with the court to show legal service has taken place.
Under the fault-based rules for divorce in West Virginia, you can contest your divorce. When filing a fault-based divorce action, the petitioner must prove the reason for the divorce.
However, you can’t stop a person from divorcing you if that’s what they want to do. If a fault-based reason is not approved by the court, a person can file a no-fault divorce action instead. There is no burden of proof with this option, other than you only agree that a marriage is irretrievably broken.
If you choose an uncontested, no-fault divorce, where you and your spouse agree on all the issues before going to court, then you can be divorced in 30 to 90 days after initial paperwork has been filed with the court.
The exact length will depend on the availability of a judge to sign a final decree, and the caseload backlog of the court.
If you do not agree on all issues, you will need to work those out before your divorce can be finalized. Some methods take less time than others (and cost less money!) such as mediation or a collaborative divorce. You may be able to complete your divorce in as little as 6 months in cases like this, but it could take longer.
With litigation, expect the process to last much longer. A contested divorce can take 1-2 years to work out all the details and finalize a settlement
West Virginia requires that you wait at least 20 days before a divorce can be completed. However, the actual length of time could be much longer, depending on the court’s backlog and availability of judges.
You must also meet the residency requirement of living in West Virginia for one year, prior to filing. For a no-fault ground for divorce, you must also have been separated for at least one year.
You can expedite your divorce in West Virginia if you and your spouse can agree to a no-fault based action. When you’re able to work out issues in advance, you will spend less time and money in court.
If you do have disagreements, you can shorten the process by being highly responsive to requests made by your spouse and making sure you attend all scheduled court dates and hearings. If you don’t, rescheduling could set you back several months.
Filing fees vary slightly from courthouse to courthouse but typically run $155 to $160.
Depending on how your paperwork is served, you may also have to pay a small fee for that service as well.
If you can’t afford the filing fee, it may be possible to ask the court to waive the fees. You’ll do this when you file your initial paperwork with the court.
No. It is possible to go through a divorce in West Virginia without using an attorney. Typically, this makes sense in an uncontested divorce where you are able to amicably resolve all of your issues ahead of time.
However, in cases where you don’t agree or there is a high level of conflict, an attorney may be a critical way to protect your interests. In a contested divorce, a judge will make decisions for you, so having an attorney skillfully represent you is the best way to protect yourself from an unfavorable outcome.
You can cancel a divorce in West Virginia if you are the petitioner.
If you have submitted paperwork and started legal action, then you can file a petition with the court to dismiss the case. If you haven’t filed paperwork yet, then you don’t need to do anything.
Once the judge signs a final decree, you are officially divorced and you cannot cancel the action at that point. If you want to be married to the same person, you will need to go through an actual marriage again to make your union legal.
A contested divorce means you and your spouse do not agree on all the issues related to the dissolution of your marriage.
You will have to find a way to resolve the issues you don’t agree with, either by mediation, collaboration or litigation.
A contested divorce is more expensive, takes longer, and adds a lot of stress to an already stressful situation.
An uncontested divorce means that you and your spouse agree on all the issues related to divorce ahead of time.
You work out issues between you and then present a settlement to the court for approval. You may be required to go through a brief hearing in front of a judge, but overall, this is the easiest and least expensive way to go through a divorce in West Virginia.
A Decree of Divorce is the document the judge signs to finalize your divorce. It is a detailed and legally enforceable document that spells out the exact terms you must follow, including a division of assets, child support and alimony, visitation and parenting orders, and many other elements.
After it has been signed, you are free to marry again, without delay, if you so choose.
Also, if either spouse does not comply with the terms in the decree, legal actions can be initiated to force compliance.
A proof of divorce document only provides minimal details about a divorce, including when and where the divorce took place. A divorce certificate is often required to prove that a person is divorced when they are seeking to be remarried.
Records are maintained by the Vital Registration Office in Charleston. Vital Registration maintains a majority of birth, death, marriage and divorce records for people who were born, died, married or divorced in the state.
To obtain a certified copy of a proof of divorce, you will need to pay a $12 fee.
You can request a copy by mail or in person. Send requests to:
Health Statistics Center
350 Capitol Street, Room 165
Charleston, WV 25301-3701
Phone Number: (304) 558-2931
No. If a person wants to divorce you in West Virginia, you can’t stop them.
If you are the petitioner in a divorce, and you change your mind, you can file for a dismissal, and this will stop the divorce. But as a defendant, you don’t have this right.
You may be able to delay the process by contesting various elements of the divorce. But ultimately, your divorce will be finalized at some point.
A petitioner can stop a divorce while it’s in progress in West Virginia, but once the Decree of Divorce has been signed and finalized, you can’t reverse the process.
If you decide you still want to be married to the same person after the fact, you’ll have to marry that person separately all over again.
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.
The couple may be experiencing extreme disagreements over child custody or a division of assets, for example.
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.
A no-fault divorce is the most common ground for divorce. It means you and your spouse have permanent irreconcilable differences. No further explanation is necessary.
You simply cite this as the reason for getting a divorce and this will simplify the process going forward.
Adultery is one of the fault-based grounds for divorce in West Virginia. If you can prove adultery took place in your marriage, it can have an impact on your settlement agreement.
A judge can take it into account when determining the amount and duration of spousal support. Judges do have a lot of discretion when deciding alimony issues when they think an issue is relevant, such as adultery.
On the flip side, if a person who committed adultery is seeking alimony, a judge may also use this as a reason to deny alimony as well.
As you prepare your divorce forms, you will be able to choose to either restore your former name or request a court order for changing names.
Name changes are granted as part of your divorce. You may either receive a separate court order making your name change official, or have your name change recorded on the final divorce decree. Both of these documents are accepted with all US organizations and agencies as evidence of your name change.
Having a court order does not mean that your name change has taken effect yet. You need to contact all of your organizations to request that your records are updated.
It’s best to begin by updating your name with the Social Security Administration . Once complete, you can go on to change names everywhere else.
It’s time-consuming to contact each company and figure out what to send where, so we recommend using an Easy Name Change kit to cut out the 10+ hours of research and paperwork that follows.
There are a whole lot of divorce resources that make big promises. We’ve tried a bunch of them. Most fall short. A few stand out above the rest.
These are some of the tools and resources that we’re excited to share with you because we know they can help you have a better divorce.
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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.
