West Virginia Code Chapter 48, Article 5 - Divorce

West Virginia allows no-fault divorce based on irreconcilable differences. If one spouse files alleging irreconcilable differences and the other spouse admits the allegation in their answer, the court may grant the divorce without proving any fault.

Effective: 2024

A divorce may be granted when the spouses have lived separate and apart in separate residences without cohabitation and without interruption for one year. Either spouse can obtain a divorce on this ground regardless of fault. The court may still consider marital misconduct for the limited purpose of deciding spousal support.

Effective: 2024

A divorce may be granted when one spouse subjects the other to cruel or inhuman treatment that destroys or tends to destroy the mental or physical well-being of the other spouse. Physical violence is not required — conduct that renders continued cohabitation unsafe or unendurable is sufficient.

Effective: 2024

A divorce may be granted to either spouse when the other has committed adultery. This is a fault-based ground that may also be relevant to spousal support determinations.

Effective: 2024

A divorce may be granted to the abandoned spouse when the other spouse willfully abandons or deserts them for six months. This is a fault-based ground requiring proof that the departure was voluntary and without justification.

Effective: 2024

If the marriage took place in West Virginia, either spouse may file for divorce as long as they are a bona fide resident at the time of filing — no minimum residency duration is required. If the marriage took place outside West Virginia, the filing spouse must have been a continuous bona fide resident for at least one year immediately before filing.

Effective: 2024

West Virginia follows equitable distribution with a presumption of equal (50/50) division. Upon every judgment of divorce, annulment, or separation, the court shall divide marital property equally between the parties unless specific factors justify an unequal split.

Effective: 2024

When no valid separation agreement exists, the court presumes equal division but may alter the split based on four factors: each spouse's monetary contributions, nonmonetary contributions (homemaking, supporting the other's career), efforts that limited one spouse's earning ability, and whether either spouse dissipated or wasted marital assets. Fault is only considered for its economic impact.

Effective: 2024

If the spouses have a separation agreement, the court divides property according to its terms unless the agreement was obtained through fraud, duress, or unconscionable conduct, or the terms are so inequitable that they defeat the purposes of the statute.

Effective: 2024

The court may order transfers of property title to achieve fair distribution, with preference for periodic or lump-sum payments. For business interests, the court gives preference to the spouse with closer involvement, larger ownership stake, or greater dependency on the business. Property received by gift or inheritance is also given preference for retention by the original recipient.

Effective: 2024

When the divorce pleadings specifically request property or raise issues about equitable division, the court shall order relief to effect a just distribution and protect each party's equitable interests. The court may order accounts taken as of the marriage date, separation date, or any other relevant date to assist in determining the division.

Effective: 2024

Both spouses must provide full financial disclosure of all assets, including real property, personal property, retirement accounts, business interests, and debts. This mandatory disclosure requirement ensures the court has complete information for making property division decisions.

Effective: 2024

West Virginia law creates a rebuttable presumption that equal (50-50) custody is in the child's best interest. If a court departs from the 50-50 presumption, it must issue specific written findings of fact explaining why, based on the factors in §48-9-209. If rebutted, the court must still maximize each parent's time consistent with the child's welfare. Enacted by the Best Interests of Child Protection Act of 2022.

Effective: 2024

The court must determine whether a parent has abused or neglected a child, committed sexual abuse, committed domestic violence, persistently interfered with the other parent's access, or repeatedly made fraudulent abuse reports. If a limiting factor is found, the court must impose protections and that parent bears the burden of proving the child can be adequately protected. Practical factors like distance between homes, transportation costs, daily schedules, and the firm preference of a child age 14 or older can also rebut the 50-50 presumption.

Effective: 2024

Parents who cannot agree on a parenting plan must attend mandatory mediation, unless pre-mediation screening reveals domestic violence, child abuse, substance abuse, mental illness, or a significant power imbalance that would make mediation inappropriate. Parents are also required to attend parent education classes. Mediator communications are confidential and the mediator cannot make recommendations to the court.

Effective: 2024

Either parent may file a proposed temporary parenting plan by motion while the divorce is pending. The 50-50 presumption applies to temporary orders as well. If the court orders unequal temporary custody, it must provide specific written findings of fact and legal conclusions explaining the departure from equal allocation.

Effective: 2024

A court may modify a parenting plan based on a substantial change in circumstances that was not known or anticipated when the original order was entered, and only if modification serves the child's best interests. In exceptional circumstances, modification is allowed if the plan is manifestly harmful to the child even without a change in circumstances. The occurrence or worsening of a limiting factor under §48-9-209 automatically constitutes a substantial change.

Effective: 2024

If both parents have been exercising a reasonable share of parenting functions, there is a rebuttable presumption that joint decision-making responsibility is in the child's best interest. Each parent has sole authority over day-to-day decisions while the child is in their care. The court's determination must be in writing with specific findings if joint allocation is denied.

Effective: 2024

West Virginia uses the income shares model for child support. Both parents' adjusted gross incomes are combined, then the total support obligation is divided in proportion to each parent's share of the combined income. All income figures must be presented as monthly amounts. If a parent is voluntarily unemployed or underemployed, the court may impute income based on work history, education, job skills, health, and local job market conditions.

Effective: 2024

The basic child support obligation is determined from a statutory table based on both parents' combined adjusted gross income and the number of children. If combined income is below $550 per month, the minimum obligation is $50 per month. If combined income exceeds $35,000 per month, the obligation is calculated at least on a $35,000 base. Two worksheets exist: Worksheet A for basic shared parenting and Worksheet B for extended shared parenting.

Effective: 2024

The court may deviate from the guidelines if they are inappropriate for a specific case. Reasons for deviation include a child's special needs, private school or post-secondary education expenses, support obligations for other children, and whether the calculated amount would reduce either parent's household income below the federal poverty level. The court must state the reason for deviation and the calculated guidelines amount on the record.

Effective: 2024

West Virginia recognizes four types of spousal support: permanent, temporary (pendente lite), rehabilitative, and spousal support in gross (lump sum). Spousal support cannot be ordered unless the parties are actually living separate and apart. Support may be paid as periodic installments, a lump sum, or both.

Effective: 2024

The court considers multiple factors including: the distribution of marital property and its effect on each party's earnings, each party's age and physical/mental condition, the likelihood the requesting spouse can increase income through education or training, contributions to the other spouse's education or career, whether a parent should remain home with children, each party's legal obligations, and any other factors necessary for a fair result.

Effective: 2024

Spousal support must not be disproportionate to the paying spouse's ability to pay. The court may modify any spousal support order when altered circumstances require it. Fault and marital misconduct are considered in both the decision to award support and the amount. 'Altered circumstances' includes evidence that a child conceived during the marriage is not the husband's biological child.

Effective: 2024

The court may reduce or terminate spousal support if the recipient is in a de facto marriage (cohabiting relationship resembling marriage). The payor has the burden of proof. However, rehabilitative support and support in gross cannot be reduced or terminated on this basis. If termination is ordered, it is retroactive to the date of petition service unless that would cause undue hardship to the recipient.

Effective: 2024

At the time of filing or any time during the divorce, either party may request temporary relief by motion. After notice and hearing, the court may order temporary spousal support, temporary custody arrangements, exclusive use of the marital home, and other measures to govern the parties' rights and obligations while the divorce is pending.

Effective: 2024

In cases based on voluntary separation or abandonment, the divorce petition may be filed in advance — before the required separation or abandonment period has fully elapsed — so that the waiting period can run while the case proceeds through the court system.

Effective: 2024

The court may compel either party to pay the other's attorney's fees and court costs reasonably necessary to prosecute or defend the divorce action. Costs may be awarded to either party as justice requires. The court may also modify fee orders during the case and award appellate fees if an appeal is taken.

Effective: 2024

A divorce action may be brought in the county where either spouse resides. If neither spouse resides in West Virginia, the action may be brought in any county. Proper venue ensures the case is filed in a convenient and appropriate location for the parties.

Effective: 2024

During the divorce proceedings, the court may award one spouse exclusive possession of the marital home as part of temporary relief. This is especially relevant in cases involving domestic violence or when continued cohabitation would be harmful to the parties or children.

Effective: 2024

A magistrate court may issue an emergency protective order ex parte (without the abuser present) upon clear and convincing evidence of immediate and present danger of abuse. The order must prohibit the respondent from possessing firearms. The respondent is then served with the order and notice of a final hearing before the family court.

Effective: 2024

At a final hearing, the family court enters a protective order if the petitioner proves domestic violence by a preponderance of the evidence. Protective orders may include no-contact provisions, exclusive possession of the home, temporary custody, and other safeguards. The court may modify the terms at any time upon a subsequent petition by either party.

Effective: 2024

A prenuptial agreement is unenforceable if the challenging spouse proves it was not signed voluntarily, either party was under 18 at marriage, or the agreement was unconscionable at signing and the challenging spouse was not given adequate financial disclosure. Even an otherwise valid agreement cannot eliminate spousal support if doing so would make one spouse eligible for public assistance. The court may also refuse to enforce a term that would cause substantial hardship due to a material change in circumstances after signing.

Effective: 2024

A court may not enter a final order permanently modifying a parenting plan until 90 days after a military parent returns from service. A parent's military absence alone cannot be the sole basis for a permanent custody change. The existing parenting plan may only be temporarily modified during deployment, and the nonmilitary parent must make the child reasonably available during the military parent's leave.

Effective: 2024

Either parent may request expedited modification of child support when a military parent is called to active service. The court shall temporarily modify support based on the change in the military parent's income during service. Upon return, the pre-service support obligation is automatically reinstated, and either parent has 90 days to request a new modification based on post-service income.

Effective: 2024

Upon ordering a divorce, the court shall allow either party to resume the name used before the marriage if requested, without requiring a separate name-change petition. The court issues a one-page certificate of divorce reflecting the name change, which includes the party's birth certificate name, date of birth, Social Security number, and new name. A party may also resume a former spouse's surname if they have living children from that marriage.

Effective: 2024

The court may order that a portion of a spouse's military or government retirement pay be paid directly to the other spouse as part of property division. This provision enables the court to divide retirement benefits through a qualified domestic relations order (QDRO) or similar mechanism, ensuring the non-employee spouse receives their equitable share of retirement assets accumulated during the marriage.

Effective: 2024