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- What are the residency requirements to file for divorce in West Virginia?
- In which county should I file the divorce petition?
- What are the grounds for divorce in West Virginia?
- Can I get alimony?
- What kinds of alimony are there in West Virginia?
- What temporary orders can I get while the divorce is ongoing?
- What are the basic steps for filing for divorce?
- Where can I find additional information about divorce?
What are the residency requirements to file for divorce in West Virginia?
If you were married in West Virginia, a West Virginia court can hear your divorce case if you or your spouse is currently a resident of West Virginia.
If you were married outside of West Virginia, a West Virginia court can hear your divorce case if you or your spouse has been a resident of the state for at least one year before the start of the case.1
1 W. Va. Code § 48-5-105
In which county should I file the divorce petition?
If your spouse is a resident of West Virginia, you can file the divorce in:
- the county in which you last lived together as husband and wife (“cohabitated”); or
- the county where your spouse currently lives.1
If your spouse is not a resident of West Virginia, you can file the divorce in:
- the county in which you last lived together as husband and wife (“cohabitated”); or
- the county where you currently live.2
1 W. Va. Code § 48-5-106(a)
2 W. Va. Code § 48-5-106(b)
What are the grounds for divorce in West Virginia?
Grounds are legally acceptable reasons for divorce. In West Virginia, you can get a no-fault divorce or a fault-based divorce.
A no-fault divorce is when you file for divorce without saying that your spouse is responsible for the end of the marriage because:
- you allege that there are irreconcilable differences;1 or
- you and your spouse have lived separate and apart in different homes without acting as a married couple (cohabitating) for at least one continuous year.2
“Irreconcilable differences” mean that there is no hope that you and your spouse will be able to save the marriage.
A fault-based divorce is when you file for divorce, and you claim that your spouse was responsible for the end of the marriage because s/he:
- treated you in a cruel or human way. This is when your spouse:
- puts you in reasonable fear of bodily harm;
- makes false accusations of adultery or homosexuality against you; or
- treats you in a way that destroys or tries to destroy your mental and physical well-being, happiness, and welfare, and makes it unsafe for you to keep being married to your spouse. Note: You do not have to prove your spouse has physically abused you to file under this ground;3
- willingly had sex with another person, and you can prove this with clear and convincing evidence;4
- is convicted of a felony in any state after you are married. The conviction must be final;5
- is permanently and incurably insane and both of the following are true:
- s/he has been in a mental hospital or other similar institution for at least three consecutive years before you file for divorce; and
- the judge has heard knowledgeable (competent) testimony from a medical professional stating that the insanity is permanently incurable;6
- is regularly (habitually) under the influence of alcohol or drugs and cannot stop himself/herself from continuing to drink alcohol or do drugs;7
- has left the home for at least six months against your will and both of the following are true:
- you have made a genuine attempt to ask him or her to return; and
- s/he has refused that offer;8 or
- has abused or neglected your child physically or mentally, including by sexually abusing the child, or by failing to provide the necessary support, education, medical care, or other care, despite having a legal responsibility to do so. You must be able to prove abuse or neglect by clear and convincing evidence sufficient to justify permanently taking away custody of the abused or neglected child from your spouse.9
1 W. Va. Code § 48–5–201
2 W. Va. Code § 48–5–202
3 W. Va. Code § 48–5–203
4 W. Va. Code § 48–5–204
5 W. Va. Code § 48–5–205
6 W. Va. Code § 48–5–206
7 W. Va. Code § 48–5–207; Brown v. Brown, 142 W. Va. 695 (1957)
8 W. Va. Code § 48–5–208; Gallagher v. Gallagher, 147 W.Va. 463 (1971); Smith v. Smith, 116 W. Va. 271 (1935)
9 W. Va. Code § 48–5–209
Can I get alimony?
Alimony, called spousal support in West Virginia, is financial support paid by, or to, your spouse. A requirement for your spouse to pay spousal support can come from:
- an agreement that you and your spouse made in a pre-marriage (prenuptial or antenuptial) agreement;
- the terms of a separation agreement; or
- a court order issued by the judge during the divorce.1
Note: You can only receive spousal support in West Virginia if you and your spouse do not live together.1
Judges may consider many different factors when determining whether to order spousal support and how much spousal support to order. The amount of spousal support is generally up to the judge, and, unlike many other states, the judge does not rely on a set formula or list of factors.2 The only factor a judge must consider by law is fault or misconduct, which is whether you or your spouse did anything to contribute to the end of the marriage. The most common other factors a judge may choose to consider are:
- how long your marriage lasted—the longer your marriage, the more likely it may be that you get spousal support;3
- how much money you and your spouse make—the bigger the difference in your incomes, the more likely it may be that you get spousal support;4 and
- your and your spouse’s ages, education, and future ability to earn money.5
1 W. Va. Code § 48-8-101
2Rose v. Rose, 176 W.Va. 18 (1985)
3Banker v. Banker, 196 W.Va. 535 (1996); “Spousal Support: Frequently Asked Questions,” Legal Aid of West Virginia
4Driver v. Driver, 208 W.Va. 686 (2000); “Spousal Support: Frequently Asked Questions,” Legal Aid of West Virginia
5Porter v. Porter, 212 W.Va. 682 (2002); “Spousal Support: Frequently Asked Questions,” Legal Aid of West Virginia
What kinds of alimony are there in West Virginia?
There are four kinds of alimony, known as spousal support in West Virginia:
- Permanent spousal support can last until either you or your spouse dies.
- Temporary spousal support (known as “pendente lite”) is for a limited time and ends under specific circumstances. For instance, a judge can order temporary spousal support until you get remarried, your children are no longer minors, or for other reasons a judge finds appropriate.
- Rehabilitative spousal support is for the purpose of helping you to reach financial stability. This kind of support can be ordered to help you go to school or get job training or until you find your own income. Rehabilitative spousal support is usually for a limited time.
- Spousal support in gross is when the judge orders one specific payment or amount to be paid. This kind of support can be ordered in two ways:
- a judge may order a one-time payment from your spouse; or
- a judge may order a specific amount your spouse must pay, but allow the payment to made in installments over a certain period of time.1
1 W. Va. Code § 48-8-101; “Spousal Support: Frequently Asked Questions,” Legal Aid of West Virginia
What temporary orders can I get while the divorce is ongoing?
At the time you file the divorce complaint or any time afterwards, you can file motion for temporary relief. The judge would hold a hearing with both parties present to decide what specific temporary relief to order, which can include one of more of the following:1
- temporary spousal support in the form of periodic installments, a lump sum, or both;2
- a temporary parenting order, including a temporary parenting plan;
- temporary child support and medical support in the form of periodic installments;3
- attorney’s fees and court costs that are reasonably necessary to allow either party to continue the divorce or defend against the divorce;4
- an order to continue an existing insurance policy that covers the costs of health care and hospitalization of the other party or to pay a “reasonable cost” for this type of insurance policy if none currently are in effect;5
- exclusive use and occupancy of the marital home to either party, together with some or all of the household goods and furniture that are reasonably necessary to live in the home;
- exclusive use and possession of one or more motor vehicles to either party;
- payments to third parties in the form of home loan installments, land contract payments, rent, payments for utility services, property taxes, insurance coverage, and automobile loan installments;6
- terms that are reasonably necessary to protect the estate of either or both parties, including creating a constructive trust or requiring a third party to hold onto the property temporarily;7 and
- an emergency protective order to stop domestic abuse or to prevent the other party from interfering with the custody or visitation rights of the other parent.8
1 W. Va. Code § 48-5-501
2 W. Va. Code § 48-5-502
3 W. Va. Code § 48-5-503
4 W. Va. Code § 48-5-504(a)
5 W. Va. Code § 48-5-505
6 W. Va. Code §§ 48-5-506(a), (b); 48-5-507(a), (b)
7 W. Va. Code § 48-5-508
8 W. Va. Code § 48-5-509(a)
What are the basic steps for filing for divorce?
While divorce laws vary by state, here are the basic steps:
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First, you must meet the residency requirements of the state in which you wish to file.
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Second, you must have “grounds” (a legally acceptable reason) to end your marriage.
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Third, you must file divorce papers and have copies sent to your spouse. (To learn more about filing a summons, preparing a petition, and service of process, go to the Starting the Court Case page in our Preparing for Court - By Yourself section.)
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Fourth, if your spouse disagrees with anything in the divorce papers, he will then have the opportunity to file papers telling his side. This is called “contesting the divorce.” In this case, you will have to attend a series of court appearances to sort the issues out. If your spouse does not disagree with anything, he should sign the papers and send them back to you and/or the court. This is called an “uncontested divorce.” If a certain period of time passes and your spouse does not sign the papers or file any papers of his/her own, you may be able to proceed with the divorce as an uncontested divorce anyway. You should speak to a lawyer in your state about how long you have to wait to see if your spouse answers the divorce papers before you can continue with the divorce.
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Fifth, if there is property that you need divided, or if you need financial support from your spouse, you will have to work that out in an out-of-court settlement, or in a series of court hearings. Custody may also be decided as part of your divorce.
You can find more information about service of process in our Preparing for Court – By Yourself section, in the question called What is service of process and how do I accomplish it?
Where can I find additional information about divorce?
We hope the following links to outside sources may provide helpful information.
Legal Aid of West Virginia provides a number of divorce resources, including:
- information on how to file for divorce;
- an explanation of the grounds for divorce in West Virginia; and
- answers to frequently asked questions, including questions about spousal support (alimony).
The West Virginia Judiciary has court forms that you may need if you wish to file a divorce.
WomensLaw.org is unrelated to the above organizations and cannot vouch for the accuracy of their sites. We provide these links for your information only.
You will find more information about divorce, including the risks of taking your children out of state while a divorce is pending, on our general Divorce page. To watch brief videos about divorce in Spanish with English sub-titles, go to our Videos page. Lastly, learn more about the court process on our Preparing for Court – By Yourself page.
