West Virginia divorce details
Uncontested VS Contested Divorce in West Virginia
To contest the divorce case or not is the main choice, surely, after an actual decision to divorce. So what are the peculiarities of a contested and uncontested divorce?
A Contested divorce is exactly what the most of us imagine when hearing the word “divorce”. It includes numerous court hearings, attorneys’ court battles, and negative emotions. A Contested divorce is typically expensive and time-consuming process.
In opposite, an Uncontested divorce is both kinder, quicker, and cheaper. It doesn’t assume a competition, the spouses have a common aim to arrange their case like a business deal, with a mutual benefit and for a reasonable price. Surely, an uncontested divorce is not for everyone, because the spouses’ desire to divorce must be mutual and they should be ready to negotiate and cooperate. If you eager to have a smooth relationship with your ex, for example, for the sake of the children, it’s worth to try.
Uncontested Divorce in West Virginia
An Uncontested divorce may be really easier for the couples with short-time marriages, for those who haven’t children or a lot of property to divide. However, if the spouses can settle all these children- and property-related issues in a civilized way, they surely can file for uncontested divorce as well.
An Uncontested divorce in West Virginia is rather quick, inexpensive, and straightforward process. Divorce mediation is ordered by the court in most cases so even if you have some problems with your settlement agreement or allocation of parenting responsibilities the state legislature cares about how you can avoid trial.
Next, we will look at all the stages of WV Uncontested divorce step by step.
Grounds for Divorce in West Virginia
As for grounds for divorce, West Virginia is a mixed state, as it allows to file for divorce both on the fault and no-fault grounds.
There are two no-fault grounds for divorce in WV:
- Living separate and apart for at least a year without cohabitation.
- Irreconcilable differences.
Both these grounds are perfect for an uncontested divorce because they don't assume any blame. Also, you have not to describe some extremely personal details before the court.
The fault grounds refer to a contested divorce. They are:
- Reasonable apprehension of bodily harm.
- False accusation of adultery or homosexuality.
- Conduct 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.
- Felony Conviction.
- Permanent and Incurable Insanity.
- Habitual drunkenness or drug use.
- Willful neglect or abuse of a spouse or child.
West Virginia Residency Requirements to File for Divorce
You can file for divorce under the WV jurisdiction if you or your spouse is the resident of the state for at least 1 year before filing the petition.
But! If the marriage took place in West Virginia this requirement is waived, and you can save a lot of time. This condition makes WV residency requirements to file for divorce be quite flexible and attractive.
How to File for an Uncontested Divorce in West Virginia?
Whatever peculiarities has your divorce case, there are always some compulsory common steps you have to take to get an uncontested divorce in WV:
- File the Petition for Divorce and other documents (they can vary by the county) in the Circuit Court of the correct county. If your spouse lives in WV you should file for divorce in his/her county, or in the area where you both cohabitated. If your spouse isn’t a resident of the state, you can bring the action in your county, or, as well, in the county where you last cohabitated. Pay the filing fee.
- Serve your spouse with the copies of the Petition, the Summons, and other papers you’ve earlier filed with the clerk of the court.
- Your spouse is given 20 days to give a response. This means he/she must sign an Acceptance of Service (form SCA-FC-105) to recognize a divorce case as uncontested and therefore simplified.
- Then, the court considers your papers and appoint a final hearing date. Both spouses must attend the final hearing, but usually it’s a very brief and calm procedure. If the judge approves your settlement agreement the final Findings of Fact and Decree of Divorce is signed.
- After that, the judge signs the Decree of Divorce. Notice that it may occur a bit later than the date of your final hearing. The divorce is finalized.
Do-It-Yourself Divorce in West Virginia
DIY divorce occurs when you decide to represent yourself before the court. In other words, it is a divorce without an attorney. An uncontested divorce is often arranged in a do-it-yourself form because if the case is simple enough and the spouses are ready to negotiate in order to make a settlement agreement, things become much easier.
Nowadays, the West Virginia Legislature website provides a full information about divorce laws, and the court forms are available on the West Virginia Judiciary website. However, you still need to check what the forms are required by your certain court and to fill them out properly.
Don’t ignore the help of online divorce companies and an option of mediation even if it was not ordered by the court. You shouldn’t rush when it’s about your settlement agreement. This document is important and essential and you should do your best to make it acceptable and favorable for both of you.
How Much Does an Uncontested Divorce Cost?
The cost of uncontested divorce in West Virginia starts with a filing fee, which is about $150 in the state. Additional costs may include mediators’ fees (about $250 per hour, the pay is shared between the spouses), service your spouse with divorce forms ($25 for the Sheriff’s service, $45 if by certified mail). Depending on your case there may be some other fees, but generally, an uncontested divorce in West Virginia is quite affordable.
How Long Does It Take to Get Divorced in West Virginia?
In West Virginia, an uncontested divorce is quite short due to the favorable residency requirements (if the marriage took place in the Mountain State) and because of no waiting period. On average, an uncontested divorce takes between 30 and 90 days since the petition was filed with the court, but the minimum term may be shorter.
Papers & Documents You Need to Get a Divorce in West Virginia
Filing for uncontested divorce in West Virginia you should pay attention to the list of main forms that you have to fill out in any case:
- The Petition for Divorce (SCA-FC-101). This form outlines the ground for divorce and the Plaintiff’s (the filing spouse’s) terms of divorce.
- Civil Case Information Statement for Domestic Relations (SCA-FC-103). Contains information about both parties.
- The Vital Statistics Form (SCA-FC-104)
- Financial Statement (SCA-FC-106). This form completed by each spouse lists the marital property and the spouses’ assets.
- Stipulated Agreement. The marital settlement agreement which regulates children-related issues, alimony, and property division in uncontested divorce.
If you have children the following forms are necessary too:
- A Bureau for Child Support Enforcement Application and Income Withholding Form (SCA-FC-113). This form is needed either when the children are involved or if one of the parties asks for alimony.
- A Proposed Parenting Plan. Contains proposed terms of sharing parenting responsibilities.
- A Parent Education Notice. Parents must complete a Parent Education Class.
How to Serve Your Spouse in West Virginia
You should serve your spouse with the copies of divorce forms as soon as you filed the documents in the court. You can’t do it by yourself even if you communicate with your spouse a lot. In West Virginia, there are three main ways how to serve your spouse:
- Your spouse may be personally served by the Sheriff’s Department.
- You may ask any person at the age of 18 and older to hand the paperwork to your spouse. This person must complete an Affidavit of Service to prove the delivery succeed.
- Send the packet of forms by Certified mail (order it in the clerk’s office) with the return receipt.
Online Divorce in West Virginia
Under the West Virginia family laws, the Plaintiff must file the forms with the court, and both spouses must attend the final hearing in the courthouse, so divorce can’t be arranged actually online, from start to final.
However, speaking of uncontested divorce, you still can make the main job online. You may prepare your forms online and to do it quickly and correctly with the help of the online divorce service like ours. Service price is $149, and for this cost, we can prepare your forms within a day. You don’t have to learn the laws and rules of the West Virginia and particular county, in order to select the right forms. Having some brief data about your case we’ll be able to customize the forms according to your situation. West Virginia courts approve our forms, so you don't have to bother and waste your time.
Rules for Child Support and Visitation in West Virginia
As in other states, in West Virginia, the courts use a “best interests of the child” standard when awarding the child support.
In the Mountain State, this means that the joint custody is welcomed, and also, that the parents are expected to create their agreed parenting plan if it’s possible. If the spouses can’t reach an agreement, each of them can present to the court their individual parenting plans, and the court will consider them and approve the one which is most suitable for the child.
In West Virginia, shared parenting, or joint custody, anyway, implies that there is one residential parent, with whom the child lives, and the other parent is nonresidential but still has an essential visitation time with the child. Depending on whether the non-custodial parent spends with the child less or more time (overnight visitation) than 35% of the year there are “Basic shared parenting” and “Extended shared parenting” in WV. In both cases each parent must contribute to the child’s welfare in addition to the appointed child support.
Generally, although the both parents are responsible for supporting their child, usually only the non-custodial parent makes the payment, while the custodial parent is assumed to spend the stated sum of money on everyday care of a child.
Notice! In WV, an amount of a child support doesn’t mean the sum paid by the nonresidential parent. Child support is calculated taking into account both parents’ gross income, number of children, and some other factors. Then, the sum is divided between two parents, and that who has more income is responsible to contribute the higher percentage of a total amount. So, either custodial or non-custodial parent may be that who should spend more.
Rules for Spousal Support in West Virginia
An alimony, or a Spousal Support, is usually awarded on a case-by-case basis, what means that every divorce case unique, and there a lot of factors and nuances that can affect the court’s decision.
Actually, each spouse may ask for a spousal support in a divorce or legal separation, but foremost the court considers the marital fault or spouse’s misconduct. It's ensured that an adulterer, a convicted felon, or deserter doesn't get an alimony under the WV laws. Other factors considered by the courts are income of both spouses, their reasonable needs, the capacity to earn money, etc.
To meet the individual conditions of each couple there are four types of a spousal support in West Virginia:
- Alimony in gross - a one-time individually agreed payment from the one spouse to the other.
- Temporary alimony - payments appointed for a certain term, often for the time of divorce proceeding or for some time after that.
- Rehabilitative alimony - the kind of a temporary support aimed to help the spouse with a low income to find a job and to earn enough money to become self-sufficient. The money may be spent on education, professional skills improvement, etc.
- Permanent alimony - as the title implies, the type of alimony without the end date. It may be paid until the receiving spouse remarries or dies.
Division of Property in West Virginia
As for property division, West Virginia is a state of equitable distribution. All the marital property should be divided in a just way, and it's no matter equally or not.
If the spouses made the settlement agreement the judge may consider it and divide the property under its terms. If there is not a valid agreement, the court must take into account plenty of factors that can show that an unequal division of property is fair.
Among these significant factors are: each spouse’s contribution to acquisition and increasing of in value of their common property, the spouses’ incomes, earning capacity, the value of their separate property, non-monetary contribution to the family welfare such as homemaker and child care services, and a lot of others.
The separate property is not subject to division. All that the spouses had before the marriage, belongs to the initial owners. Personal inheritances or gifts given to one of the spouses are considered to be part of a separate property too.
Division of Debt in West Virginia
The division of debts occurs under the same rules of equitable distribution state.
Foremost the debts must be classified as separate or marital, than it must be considered who caused and accumulated the debts and for what purpose. The marital fault may be taken into account too.
Divorce Mediation in West Virginia
Divorce Mediation is a non-competitive way to work with the controversial issues of a divorce case such as child custody and support, alimony, and division of property.
The couple tries to resolve all the problems out-of-court with an assistance of a qualified and neutral mediator. The mediator doesn’t represent one party’s interests but helps spouses to compromise and to reach an agreement independently (the mediator can’t order anything). Usually, the aim of mediation sessions is to make an acceptable Settlement Agreement and Parenting Agreement.
In West Virginia, if the spouses fail to share their parenting responsibilities by themselves divorce mediation is mandatory for them (unless there were cases of domestic violence or child abuse in the family). If the divorce mediation is appointed, the family court designates a mediator. There is a special list of mediators approved by the Supreme court.
How to Divorce a Missing Spouse in West Virginia
No one can force you to remain married, so even if you can’t locate your spouse to serve him/her with a paperwork you still can get a divorce. This way is called “Divorce by Publication”. There are 4 main steps you should take to divorce the missing spouse:
- Try to locate your spouse in all possible ways. Outline all your attempts with an "Affidavit of Diligent Search" form. Notarize and submit it to the court. The information provided in this document should convince the judge that your spouse is really can’t be found.
- Fill out an “Affidavit of Non-Residency or Unknown Residency” (form SCA-FC-110) and file this document with the Deputy Clerk.
- After that, you’ll be given an Order for Publication, that allows you to notify your spouse about the divorce motion by publication in a local newspaper of your county (where you file for divorce). The notice must be published twice, for two weeks.
- After the last publication, your spouse officially has another 30 days to respond. If he/she keeps silent the divorce is granted by default.
Annulment of the Marriage in West Virginia
In West Virginia, some marriages can end by annulment, not by divorce. An annulment declares the marriage void and invalid from the very beginning because in the eyes of law such a marriage had never existed.
Unlike a divorce, you can’t file for annulment just because you want to. You must meet one of the legal grounds for annulment of the marriage. In West Virginia, these grounds are:
- Underage marriage.
- Incest (second cousins or closer).
- Mental incompetence.
- Fraud (the spouse lied or hid something important).
- Force or coercion (consent to the marriage obtained by threat or duress).
Legal Separation in West Virginia
Legal Separation is called Separate Maintenance in the state of West Virginia. This procedure is very similar to divorce. You should file Complaint for Separate Maintenance, serve your spouse with a paperwork and settle the same issues of your case (child custody and visitation, support, property division). The grounds for separation and divorce are the same too.
The main difference is that after Separation the parties remain married and aren’t allowed to remarry. In West Virginia, the Separate Maintenance has no time limits. Once separated the spouses can remain in this status as long as they want.
Same-Sex Divorce in West Virginia
Same-sex marriage is recognized in West Virginia since 2014, and in 2015 equal rights to marry were given nationwide.
The right to divorce comes along with the right to marry. Nowadays, all the couples regardless of sexual orientation may choose between identical divorce options and have to take the same steps to file for divorce in WV.
Military Divorce in West Virginia
Military divorce rules do not differ a lot nationwide as they are regulated by the federal laws.
Foremost, you meet the residency requirements of the state even if you (or your spouse) don't reside here but stationed as a military.
The second peculiarity, which is dictated by the Soldiers and Sailors Civil Relief Act is that the divorce proceeding may be postponed for the whole period while an active service member is on duty plus 60 days after that. The default divorce doesn’t occur, and the military spouse can’t be divorced without knowing it.
Another feature refers to financial issues. Under the Uniformed Services Former Spouses’ Protection Act the military retirement payments can’t be divided unless the marriage was longer than 10 years while the military spouse has been an active duty military. In addition, child support and alimony cannot be more than 60% of the military spouses' pay.
How to Divorce a Spouse in Jail in West Virginia
Generally, there are no special rules on how to divorce an inmate spouse in West Virginia. You should take the same steps of filing the papers and serving your spouse by the Sheriff’s service. If the case is uncontested you may agree in advance about the default divorce. But if your spouse wants to contest the case take into account that you can’t cope without a lawyer, and the lawyer’s fees in such a case may be higher than average.
West Virginia Divorce Filing Fee
A Divorce Filing Fee is a mandatory payment for the court services. It is charged at the time you file your divorce papers with the County Clerk's Office of the Family Court.
In West Virginia, the divorce filing fee is about $150, but you should check your county court to know the exact cost, as it may vary.
Can a Filing Fee Be Waived?
Yes, a filing fee can be waived but only for indigent petitioner. To waive the fee the petitioner must fill out the special form called the “Financial Affidavit and Application: Eligibility for Waiver of Fees, Costs, or Security in a Civil or Domestic Case”, which is available on the West Virginia Supreme Court’s website. This form outlines the petitioner’s financial condition in order to prove the court that he/she really can’t afford to pay the filing fee.
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