West Virginia
Alimony Guide - Spousal Support Laws

West Virginia Alimony Guide :: Table of Contents

What Is Alimony?
Alimony Calculation Law Table
State Alimony Law Summary
Alimony Calculation Considerations
West Virginia Alimony FAQ
Alimony Law Text

What Is Alimony / Spousal Support?

What is Alimony?

Alimony, also known as spousal support, is a court-ordered provision of financial support a spouse for after a divorce. Alimony laws vary considerably from state to state, and courts often have significant flexibility on a case-by-case basis in determing whether to award alimony, how much alimony to award, and how long alimony payments will continue.

West Virginia Alimony Court Considerations Table

Statutory List
Marital Fault Considered
Standard of Living Considered
Custodial Status Considered

West Virginia Alimony Law Summary

In the state of West Virginia, spousal support, otherwise known as alimony, may be declared through a court order, an antenuptial agreement, or a separation agreement. Spousal support may be paid as a lump sum or as periodic installments, as required by the court. The main requirement for spousal support is that the two individuals must be living separately and apart from each other.

The direct fault of either spouse for the dissolution of the marriage will be taken into consideration for spousal support, along with other factors. Other factors to be taken into consideration by the court include, but are not limited to:

The length time the parties were married

The period of time during the marriage when the parties actually lived together

The current income, employment, and other earnings of each party

The earning abilities of each party, including skills, training, experience, and job market

Their educational background and its effect on their earning abilities

Length of absence from the job market of either spouse

The age and physical and mental health of each party

The standard of living established during the marriage

The size of both individual’s estates, including property gained from the distribution of marital property under the agreement of the divorce, will also be taken into consideration of the amount and requirement of spousal support. The financial need of both parties, including financial responsibility for anyone else that each party has, is another consideration. Custody of any children, and any child support required between parties of the divorce, are two other factors in the amount and consideration of alimony. If the spouse with custody of the children is unable to support themselves due to the children being of an age or condition that it hinders the individual’s ability to support the child, such as if they must remain home to care for the child, it would severely influence the case for alimony to be received by the custodian of said child or children.

In the end, if an agreement cannot be made between the two parties, alimony is awarded at the final judgment of the judge and court deciding the case.

Get an estimation on how much alimony you can expect to pay in the United States. Click here to get a high, low, and average estimate on alimony payments!

West Virginia | What Is Considered When Calculating Alimony

In the state of West Virginia, a number of factors are taken into account when calculating the amount and duration of alimony or spousal support payments.

Is there a set list of statutory factors for calculating alimony?

West Virginia has a defined list of factors, described in statutory law, that are legally required to be considered by a judge when determining alimony payments. These factors may be directly connected to the alimony calculation formula.

Is marital fault considered in West Virginia alimony?

West Virginia considers marital fault when determining alimony payments. This means that "at-fault" divorces, which may be caused by infidelity / adultery, abuse, etc, can result in the at-fault party paying more "punitive" alimony.

Is standard of living considered in West Virginia alimony?

Standard of living is considered when calculating alimony payments in the state of West Virginia. This means that a judge will consider the lifestyle enjoyed by the alimony-receiving spouse during the duration of the marriage when determining an appropriate alimony payment amount.

Is custodial status considered when determining alimony in the state of West Virginia?

The judge in the state of West Virginia considers custodial status when determining alimony payments. This means that alimony calculations are affected by whether or not the receiving spouse has custody of the children, and custodial spouses may receive higher alimony payments.

How exactly is alimony calculated in the state of West Virginia?

Calculation of alimony is generally done on a case-by-case basis by the West Virginia family court judge who is responsible for the case. While some states have a fixed alimony calculation formula, in most cases the final amount and duration of alimony awarded (if alimony is awarded) is at the discretion of the judge.

West Virginia Alimony FAQ

How long must alimony be paid?

The duration of payments is determined by a judge in West Virginia family court. Alimony length is usually based on length of marriage - one commonly used standard for alimony duration is that 1 year of alimony is paid every three years of marriage (however, this is not always the case in every state or with every judge). Alimony may also be discontinued upon the remarriage or cohabitation of the receiving spouse. In some cases, judges may even award permanent alimony.

What happens if alimony isn't paid?

If alimony is unpaid, the owed debt is known as alimony arrears. Arrears can be collected via mediation, small claims court, or wage garnishment. Failure to comply with a court-issued spousal support order may also result in a contempt of court charge against the spouse who failed to pay owed alimony.

Can alimony be waived by a prenuptual agreement?

A prenup agreement is a contract between spouses regarding marriage-related financial matters signed prior to marriage. Limitation or waiving rights to alimony is a frequent clause in modern prenuptual agreements, but some states or localities prohibit such alimony waivers.

Can alimony be collected if you're not married?

The legal concept of alimony, otherwise known as spousal support, is dependant upon a legal marriage. However, in some areas - especially those with a concept of common-law marriage - "palimony", or support payments between non-married individuals, has been awarded by courts. However, this generally requires extenuating circumstances.

What is alimony mediation?

When a marriage ends through divorce and alimony is expected to be paid, spouses have the choice to determine an alimony agreement either through litigation (in West Virginia family court) or through mutual agreement. Often, a West Virginia alimony mediator can be brought in to help the ex-spouses come to a mutual agreement regarding alimony and other contested issues such as property division, and thus avoid having to go to court.

How are alimony payments taxed?

On a federal level, all qualifying West Virginia alimony payments are deductible by the payor, and counted as taxable income by the recipient. To qualify as alimony under IRS guidelines, the following must be true:

The payments are in cash
The parties live in seperate households
The payments are strictly for alimony (as opposed to for child support, etc)

Taxation of alimony varies on a state and local level. You can learn more about West Virginia income taxes here .

| State Law Official Text

Section(s):
W.VA. CODE § 48-6-301 W.VA. CODE § 48-8-104

CHAPTER 48. DOMESTIC RELATIONS.

ARTICLE 8. SPOUSAL SUPPORT.

§48-8-101. General provisions regarding spousal support.

(a) An obligation that compels a person to pay spousal support may arise from the terms of a court order, an antenuptial agreement or a separation agreement. In an order or agreement, a provision that has the support of a spouse or former spouse as its sole purpose is to be regarded as an allowance for spousal support whether expressly designated as such or not, unless the provisions of this chapter specifically require the particular type of allowance to be treated as child support or a division of marital property. Spousal support may be paid as a lump sum or as periodic installments without affecting its character as spousal support.

(b) Spousal support is divided into four classes which are:

(1) Permanent spousal support;

(2) temporary spousal support, otherwise known as spousal support pendente lite;

(3) rehabilitative spousal support; and

(4) spousal support in gross.

(c) An award of spousal support cannot be ordered unless the parties are actually living separate and apart from each other.

§48-8-102. Jurisdiction to award spousal support.

The family courts and circuit courts, as provided in this chapter, have jurisdiction to award spousal support. A court may provide for the maintenance of a spouse during the pendency of an appeal to the circuit court or to the supreme court of appeals.

§48-8-103. Payment of spousal support.

(a) Upon ordering a divorce or granting a decree of separate maintenance, the court may require either party to pay spousal support in the form of periodic installments, or a lump sum, or both, for the maintenance of the other party. Payments of spousal support are to be ordinarily made from a party's income, but when the income is not sufficient to adequately provide for those payments, the court may, upon specific findings set forth in the order, order the party required to make those payments to make them from the corpus of his or her separate estate. An award of spousal support shall not be disproportionate to a party's ability to pay as disclosed by the evidence before the court.

(b) At any time after the entry of an order pursuant to the provisions of this article, the court may, upon motion of either party, revise or alter the order concerning the maintenance of the parties, or either of them, and make a new order concerning the same, issuing it forthwith, as the altered circumstances or needs of the parties may render necessary to meet the ends of justice. (c)(1) For the purposes of subsection (b) of this section, "altered circumstances" includes evidence in the form of genetic testing that establishes that a child conceived during the marriage of the parties is not the child of the former husband, or that a child was born to a woman other than the former wife because of the adultery of the former husband.

(2) Prior to admitting evidence of genetic testing, the court shall preliminarily determine whether genetic testing evidence should be admitted for the purpose of disproving or establishing paternity. The facts that may be considered by the court at this hearing include the following:

(A) The length of time that has elapsed since the party was first placed on notice that a child conceived during the marriage of the parties is not the child of the former husband, or that a child was born to a woman other than the former wife because of the adultery of the former husband;

(B) The length of time during which the individual desiring to challenge paternity assumed the role of parent to the child;

(C) The facts surrounding the party's discovery of nonpaternity;

(D) The nature of the parent/child relationship;

(E) The age of the child;

(F) The harm which may result to the child if paternity were successfully disproved;

(G) The extent to which the passage of time reduced the chances of establishing paternity in favor of the child; and

(H) All other factors which may affect the equities involved in the potential disruption of the parent/child relationship or the chances of undeniable harm to the child.

(d) For the purposes of subsection (c), genetic testing must be performed pursuant to the following guidelines:

(1) The tests show that the inherited characteristics including, but not limited to, blood types, have been determined by appropriate testing procedures at a hospital, independent medical institution or independent medical laboratory duly licensed under the laws of this state, or any other state, and an expert qualified as an examiner of genetic markers has analyzed, interpreted and reported on the results; and

(2) The genetic test results exclude the former husband as the father of the child.

§48-8-104. Effect of fault or misconduct on award of spousal support.

In determining whether spousal support is to be awarded, or in determining the amount of spousal support, if any, to be awarded, 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.

§48-8-105. Rehabilitative spousal support.

(a) The court may award rehabilitative spousal support for a limited period of time to allow the recipient spouse, through reasonable efforts, to become gainfully employed. When awarding rehabilitative spousal support, the court shall make specific findings of fact to explain the basis for the award, giving due consideration to the factors set forth in section 8-103 of this article. An award of rehabilitative spousal support is appropriate when the dependent spouse evidences a potential for self-support that could be developed through rehabilitation, training or academic study.

(b) The court may modify an award of rehabilitative spousal support if a substantial change in the circumstances under which rehabilitative spousal support was granted warrants terminating, extending or modifying the award or replacing it with an award of permanent spousal support. In determining whether a substantial change of circumstances exists which would warrant a modification of a rehabilitative spousal support award, the court may consider a reassessment of the dependent spouse's potential work skills and the availability of a relevant job market, the dependent spouse's age, health and skills, the dependent spouse's ability or inability to meet the terms of the rehabilitative plan and other relevant factors as provided for in section 8-103 of this article.

§48-8-106. Payments out of disposable retired or retainer pay.

Whenever the court enters an order requiring the payment of spousal support, if the court anticipates the payment or any portion thereof is to be paid out of "disposable retired or retainer pay" as that term is defined in 10 U.S.C. §1408, relating to members or former members of the uniformed services of the United States, the court shall specifically provide for the payment of an amount, expressed in dollars or as a percentage of disposable retired or retainer pay, from the disposable retired or retainer pay of the payor party to the payee party.

West Virginia Alimony Guide - Spousal Support Laws

West Virginia
Alimony Guide - Spousal Support Laws