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Divorce laws are enacted and interpreted by each of the respective states. This means your state and local family law court determines such things as divorce case filing and pleading procedures, spousal and child support payments, custodial rights of parents and the division of community property. Since laws get amended and new ones get made with some frequency, consult with an experienced family lawyer in your county for the most current status of the law. The family lawyer you choose should also be knowledgeable with the local courts and jury sentiment.

RESIDENCY REQUIREMENTS:

To file for a divorce in West Virginia, if the marriage occurred in this state, one of the parties must be a resident of this state, without regard to the length of time residency has continued. If the marriage was not entered into within this state, an action for divorce is maintainable if:

1. One of the parties was an actual bona fide resident of this state at the time the cause of action arose, or has become a resident since that time; and

2. The residency has continued uninterrupted through the one-year period immediately preceding the filing of the action. [Based on West Virginia Code; Section 48-5-105]

GROUNDS FOR DIVORCE: A divorce may be granted based on the following grounds:

* irreconcilable differences.

* living separately and apart without interruption for one year.

* cruel or inhuman treatment by either party against the other, such as (1) Reasonable apprehension of bodily harm; (2) False accusation of adultery or homosexuality; or (3) Conduct or treatment which destroys or tends to destroy the mental or physical well-being, happiness and welfare of the other and render continued cohabitation unsafe or unendurable;

* adultery proven by clear and convincing evidence;

* conviction of a crime that is a felony;

* permanent and incurable insanity (based on medical testimony), if the patient has been confined to a mental institution for no less than three year preceding the divorce petition;

* habitual drunkenness or drug addiction;

* desertion for at least six months;

* abuse of neglect of a child (A divorce shall not be granted on this ground except upon clear and convincing evidence). [Based on West Virginia Code; Section 48-5-201 through 48-5-209] » Return to top

LEGAL SEPARATION: "Property settlement or separation agreement" means a written agreement between a husband and wife whereby they agree to live separate and apart from each other. A separation agreement may also: (1) Settle the property rights of the parties; (2) Provide for child support; (3) Provide for the allocation of custodial responsibility and the determination of decision-making responsibility for the children of the parties; (4) Provide for the payment or waiver of spousal support by either party; or (5) Otherwise settle and compromise issues arising from the marital rights and obligations of the parties. [Based on West Virginia Code; Section 48-6-101] » Return to top

MEDIATION OR COUNSELING REQUIREMENTS: The family court shall issue an order requiring parties to an action for divorce involving a minor child or children to attend parent education classes established unless the court determines that attendance is not appropriate or necessary based on the conduct or circumstances of the parties. [Based on West Virginia Code; Section 48-9-104]

PROPERTY DISTRIBUTION: West Virginia is an equitable distribution state. In the absence of a valid agreement, the court shall presume that all marital property is to be divided equally between the parties, but may alter this distribution, after a consideration of the following:

1. The extent to which each party has contributed to the acquisition, preservation and maintenance, or increase in value of marital property by monetary contributions, including, but not limited to employment income and other earnings and funds which are separate property.

2. The extent to which each party has contributed to the acquisition, preservation and maintenance or increase in value of marital property by non-monetary contributions, including, but not limited to: (A) Homemaker services; (B) Child care services; (C) Labor performed without compensation, or for less than adequate compensation, in a family business or other business entity in which one or both of the parties has an interest; (D) Labor performed in the actual maintenance or improvement of tangible marital property; and (E) Labor performed in the management or investment of assets which are marital property.

3. The extent to which each party expended his or her efforts during the marriage in a manner which limited or decreased such party's income-earning ability or increased the income-earning ability of the other party, including, but not limited to: (A) Direct or indirect contributions by either party to the education or training of the other party which has increased the income-earning ability of such other party; and (B) Foregoing by either party of employment or other income-earning activity through an understanding of the parties or at the insistence of the other party.

4. The extent to which each party, during the marriage, may have conducted himself or herself so as to dissipate or depreciate the value of the marital property of the parties: Provided, That except for a consideration of the economic consequences of conduct as provided for in this subdivision, fault or marital misconduct shall not be considered by the court in determining the proper distribution of marital property. [Based on West Virginia Code; Sections 48-5-610 and 48-7-103]

ALIMONY /SPOUSAL SUPPORT: The court may require either party to pay spousal support, considering the following factors in determining the amount of spousal support: (1) the length of the marriage, and any periods of separation; (2) The present employment income and other recurring earnings of each party from any source; (4) The income-earning abilities of each of the parties; (5) The distribution of marital property and how it will affect the earnings of the parties and their ability to pay or their need to receive spousal support, child support or separate maintenance; (6) The ages and the physical, mental and emotional condition of each party; (7) The educational qualifications of each party; (8) Whether either party has foregone or postponed economic, education or employment opportunities during the course of the marriage; (9) The standard of living established during the marriage; (10) The likelihood that the party seeking spousal support, child support or separate maintenance can substantially increase his or her income-earning abilities within a reasonable time by acquiring additional education or training; (11) Any financial or other contribution made by either party to the education, training, vocational skills, career or earning capacity of the other party; (12) The anticipated expense of obtaining the education and training described in subdivision (10) above; (13) The costs of educating minor children; (14) The costs of providing health care for each of the parties and their minor children; (15) The tax consequences to each party; (16) The extent to which it would be inappropriate for a party, because said party will be the custodian of a minor child or children, to seek employment outside the home; (17) The financial need of each party; (18) The legal obligations of each party to support himself or herself and to support any other person; (19) Costs and care associated with a minor or adult child's physical or mental disabilities; and (20) Any other factors as the court deems necessary.

In determining whether spousal support is to be awarded, or in determining the amount of spousal support, the court shall consider and compare the fault or misconduct of either or both of the parties and the effect of the fault or misconduct as a contributing factor to the deterioration of the marital relationship. [Based on West Virginia Code; Section 48-5-602, 48-6-301, and 48-8-101 through 48-8-104]

SPOUSE'S NAME: The court shall if requested to do so by either party, allow such party to resume the name used prior to his or her first marriage. The court shall, if requested to do so by either party, allow such party to resume the name of a former spouse if such party has any living child or children by marriage to such former spouse. [Based on West Virginia Code; Section 48-5-613]

CHILD CUSTODY: Custody shall be determined by the best interests of the child. The primary objective of this article is to serve the child's best interests, by facilitating: (1) Stability of the child; (2) Parental planning and agreement about the child's custodial arrangements and upbringing; (3) Continuity of existing parent-child attachments; (4) Meaningful contact between a child and each parent; (5) Care-taking relationships by adults who love the child, know how to provide for the child's needs, and who place a high priority on doing so; (6) Security from exposure to physical or emotional harm; and (8) To achieve fairness between the parents

CHILD SUPPORT: West Virginia calculates child support orders based on the Income Share Model. A child support order is determined by dividing the total child support obligation between the parents in proportion to their income. Both parents' adjusted gross income is used to determine the amount of child support.

Deviations from the guidelines are possible for the following reasons: (1) Special needs of the child or support obligor, including, but not limited to, the special needs of a minor or adult child who is physically or mentally disabled; (2) Educational expenses for the child or the parent (i.e. those incurred for private, parochial, or trade schools, other secondary schools, or post-secondary education where there is tuition or costs beyond state and local tax contributions); (3) Families with more than six children; (4) Long distance visitation costs; (5) The child resides with third party; (6) The needs of another child or children to whom the obligor owes a duty of support; (7) The extent to which the obligor's income depends on nonrecurring or non-guaranteed income; or (8) Whether the total of spousal support, child support and child care costs subtracted from an obligor's income reduces that income to less than the federal poverty level and conversely, whether deviation from child support guidelines would reduce the income of the child's household to less than the federal poverty level. The court shall order medical support to be provided for the child or children. [Based on West Virginia Code; Section 48-5-603, 48-13-201, and 48-13-702] » Return to top

PREMARITAL AGREEMENT: An agreement by which the property rights and interests of the prospective husband and wife, or both of them, are determined, or where property is secured to either or both of them, to their separate estate, or to their children or other persons. An antenuptial agreement may include provisions that define the respective property rights of the parties during the marriage, or upon the death of either or both of the parties. The agreement may provide for the disposition of marital property upon an annulment of the marriage or a divorce or separation of the parties. A prenuptial agreement is void if at the time it is made either of the parties is a minor.

HOW TO ENFORCE CHILD SUPPORT IN THE STATE OF WEST VIRGINIA – THE FEDERAL OPTION

Federal Options Enforcement (CSE) Program is a federal/state/local effort to locate parents, their employers, and/or their assets; establish paternity if necessary; and establish and enforce child support orders. The federal role is to provide funding, issue policies, ensure that federal requirements are met, and interact with other federal agencies that help support the CSE program.

How and where do I apply?

In most states, CSE offices are listed under the human services agency in the local government section of the telephone directory. If there is not a separate listing, the human services agency information operator should be able to give you the number. State CSE agencies are listed at the end of this brochure; they also can provide telephone numbers for local offices.

Call your Child Support Enforcement office to learn how to apply for enforcement services and what documents (birth certificates, financial statements, etc.) you should provide.

What are the steps to collecting support?

The first step, if a child was born out of wedlock, is to establish paternity - or make a legal determination of who fathered the child. Many men will voluntarily acknowledge paternity. Either parent can request a blood test in contested paternity cases. Your caseworker will help you to establish paternity for your child.

Establishing the obligation is the next step. The fair amount of child support that the non-custodial parent should pay is determined according to state guidelines. Your CSE office will be able to tell you how support award amounts are set in your state. Your CSE office can also request medical support for your child.

The last step is enforcement of the child support order. The CSE office can help with collecting the money due no matter where the non-custodial parent lives.

At any of these steps, the CSE office may need to know where the non-custodial parent is living or where he/she is working. When a parent has disappeared, it is usually possible for the CSE office to find him/her with the help of state agencies, such as the Department of Motor Vehicles, or the Federal Parent Locator Service. Your caseworker can tell you what information is needed to find an absent parent or his/her employer.

The most successful way to collect child support is by direct withholding from the obligated parent's paycheck. Most child support orders require the employer to withhold the money that is ordered for child support and send it to the CSE office. Your Child Support Enforcement office can tell you about this procedure.

Federal and State Income Tax refunds may be withheld to collect unpaid child support. States also have laws, which allow them to use: liens on real and personal property; orders to withhold and deliver property; or seizure and sale of property with the proceeds applied to the support debt. Many states routinely report child support debts to credit bureaus and smart parents are bringing their payments current so that their credit won't be affected.

For More Information write for the 2008 Handbook on Child Support Enforcement by contacting:

ACF OCSE National Reference Center

370 L'Enfant Promenade, S.W.

4th Floor Washington, DC 20447

(202) 401-9383

IS A LAWYER NECESSARY FOR MY CASE?

If the marriage was less then a year, you have no children, if there is no real estate, and if a marital settlement has been reached, the spouses may and should consider a fast and simplified divorce solution.

No person seeking a divorce is actually required by law to use an attorney. If a person does plan to represent themselves (not recommended) during the proceedings, they should not expect the court clerks, bailiff and/or judge to assist them or provide legal advice in any way. Most spouses do however, at least at some point, consult with an attorney before proceeding with doing the divorce themselves.

Under most circumstances, a lawyer is ethically prohibited from representing both parties in a case. This is called a legal conflict of interest. Lawyers should only represent one party. Notwithstanding, in practice many people choose to have just one lawyer handle most of the paperwork such as the legal documents, including a separation agreement. In this situation, you must keep in mind that the lawyer who drafted the documents should and usually is only be representing one party. In some states, they follow a collaborative divorce process in which the mediator/lawyer works with both parties to achieve one common goal: to reach agreement on settlement of the issues and to have that agreement reduced to a writing and then into a court order.

Most lawyers do not charge a flat fee for a divorce unless the divorce is very simple, and both parties have agreed to the division of property and custodial issues at the outset. Instead, a lawyer will usually request a cash retainer from the client, not unlike a security deposit and charge for the lawyer’s time as the case moves forward. The amount of lawyer fees is one very important factor to consider. However you should also take into account the attorney’s legal experience and the complexity of the case. Lawyers are prohibited from charging a contingent fee for a divorce. Once a fee arrangement has been made, the lawyer is in most cases must prepare a written contract reflecting the agreement if full.

If there is a great disparity of income with regards to payment of the attorney fees, a judge may determine that one person should pay for the other person’s attorney fees. Most often however, a judge determines that each party has the ability and should to pay his or her own fees.

CHOOSING THE RIGHT FAMILY LAWYER

If you have chosen to go with a lawyer you have a very important choice to make.

You could think of the process of choosing a lawyer like any other significant purchase. The same kind of careful consideration you put into a major purchase is not unlike the kinds of considerations you need to make when you are looking for the right divorce and family lawyer.

Before you start, you’ll need to choose what qualities you want in your family lawyer. There are a number of qualities that you should expect your lawyer to have. These basic qualities include:

Good standing with their state bar: In other words, the bar association which licenses the attorneys in your state considers this lawyer is fit to practice law.

No disciplinary sanctions: A disciplinary sanction is an action taken against a lawyer by the state agency that regulates lawyers. If a lawyer has a sanction, be sure to investigate, taking into account the severity of the sanction and how long ago it occurred. A sanction can be a minor reprimand, or it can be a very serious punishment like suspension or disbarment from practicing law.

Experience with cases like yours: Most lawyers concentrate in a few areas of the law such as adoption and mediation. Once you know what these areas are, it’s easier to find lawyers with the experience and skills that are relevant to your situation.

Good communication skills: Regardless of your family law case issues, you want someone who keeps you informed and stays in touch, every step of the way. Legal matters can be confusing and your attorney is your advocate and guide. Don’t settle for anything less.

Once you’ve covered the basics, you may think of other qualities you’d like your lawyer to have. A few questions to consider:

Is this lawyer’s office convenient to your home or office?

How much does the lawyer charge?

GET CURRENT WITH THE 2008 FAMILY LAW CODE OF WEST VIRGINA:

http://www.legis.state.wv.us/WVCODE/Code.cfm