West Virginia

Divorce Law Guide

Section(s):
W.VA. CODE § 48-5-103 W.VA. CODE § 48-5-105 W.VA. CODE § 48-5-201 THRU§ 48-5-209 W.VA. CODE § 48-6-201

§48-5-103. Jurisdiction of parties; service of process.

(a) In an action for divorce, it is immaterial where the marriage was celebrated, where the parties were domiciled at the time the grounds for divorce arose or where the marital offense was committed. If one or both of the parties is domiciled in this state at the time the action is commenced, the circuit courts and family courts of this state have jurisdiction to grant a divorce for any grounds fixed by law in this state, without any reference to the law of the place where the marriage occurred or where the marital offense was committed.

(b) A judgment order may be entered upon service of process in the manner specified in the rules of civil procedure for the service of process upon individuals.

§48-5-105. Residency requirements for maintaining an action for divorce.

(a) Except as otherwise provided in subsection (b) of this section:

(1) If the marriage was entered into within this state, an action for divorce is maintainable if one of the parties is an actual bona fide resident of this state at the time of commencement of the action, without regard to the length of time residency has continued; or

(2) If the marriage was not entered into within this state, an action for divorce is maintainable if:

(A) 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

(B) The residency has continued uninterrupted through the one-year period immediately preceding the filing of the action.

(b) An action for divorce cannot be maintained if the cause for divorce is adultery, whether the cause of action arose in or out of this state, unless one of the parties, at the commencement of the action, is a bona fide resident of this state. In such case, if the respondent is a nonresident of this state and cannot be personally served with process within this state, the action is not maintainable unless the petitioner has been an actual bona fide resident of this state for at least one year next preceding the commencement of the action; or

(c) When a divorce is granted in this state upon constructive service of process and personal jurisdiction is thereafter obtained of the respondent in the case, the court may order all or any portion of the relief that has been demanded in the pleadings.

§48-5-201. Grounds for divorce; irreconcilable differences.

The court may order a divorce if the complaint alleges that irreconcilable differences exist between the parties and an answer is filed admitting that allegation. A complaint alleging irreconcilable differences shall set forth the names of any dependent children of either or both of the parties. A divorce on this ground does not require corroboration of the irreconcilable differences or of the issues of jurisdiction or venue. The court may approve, modify or reject any agreement of the parties and make orders concerning spousal support, custodial responsibility, child support, visitation rights or property interests.

§48-5-202. Grounds for divorce; voluntary separation.

(a) A divorce may be ordered when the parties have lived separate and apart in separate places of abode without any cohabitation and without interruption for one year. The separation may occur as a result of the voluntary act of one of the parties or the mutual consent of both parties.

(b) Allegations of res judicata or recrimination with respect to any other alleged grounds for divorce are not a bar to either party obtaining a divorce on the ground of voluntary separation.

(c) When required by the circumstances of a particular case, the court may receive evidence bearing on alleged marital misconduct and may consider issues of fault for the limited purpose of deciding whether spousal support should be awarded. Establishment of fault does not affect the right of either party to obtain a divorce on the ground of voluntary separation.

§48-5-203. Grounds for divorce; cruel or inhuman treatment.

(a) A divorce may be ordered for cruel or inhuman treatment by either party against the other. Cruel or inhuman treatment includes, but is not limited to, the following:

(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.

(b) It is not necessary to allege or prove acts of physical violence in order to establish cruel and inhuman treatment as a ground for divorce.

§48-5-204. Grounds for divorce; adultery.

A divorce may be ordered for adultery. Adultery is the voluntary sexual intercourse of a married man or woman with a person other than the offender's wife or husband. The burden is on the party seeking the divorce to prove the alleged adultery by clear and convincing evidence.

§48-5-205. Grounds for divorce; conviction of crime.

A divorce may be ordered when either of the parties subsequent to the marriage has, in or out of this state, been convicted for the commission of a crime that is a felony, and the conviction is final.

§48-5-206. Grounds for divorce; permanent and incurable insanity.

(a) A divorce may be ordered for permanent and incurable insanity, only if the person is permanently and incurably insane and has been confined in a mental hospital or other similar institution for a period of not less than three consecutive years next preceding the filing of the complaint and the court has heard competent medical testimony that such insanity is permanently incurable.

(b) A court granting a divorce on this grounds may in its discretion order support and maintenance for the permanently incurably insane party by the other.

(c) In an action for divorce or annulment, where the petitioner is permanently incurably insane, the respondent shall not enter a plea of recrimination based upon the insanity of the petitioner.

§48-5-207. Grounds for divorce; habitual drunkenness or drug addiction.

(a) A divorce may be ordered for habitual drunkenness of either party subsequent to the marriage.

(b) A divorce may be ordered for the addiction of either party, subsequent to the marriage, to the habitual use of any narcotic or dangerous drug defined in this code.

§48-5-208. Grounds for divorce; desertion.

A divorce may be ordered to the party abandoned, when either party willfully abandons or deserts the other for six months.

§48-5-209. Grounds for divorce; abuse or neglect of a child.

(a) A divorce may be ordered for abuse or neglect of a child of the parties or of one of the parties, "abuse" meaning any physical or mental injury inflicted on such child including, but not limited to, sexual molestation; and "neglect" is willful failure to provide, by a party who has legal responsibility for such child, the necessary support, education as required by law, or medical, surgical or other care necessary for the well-being of such child.

(b) A divorce shall not be granted on this ground except upon clear and convincing evidence sufficient to justify permanently depriving the offending party of any allocation of custodial responsibility for the abused or neglected child.

§48-6-201. Effect of separation agreement.

(a) In cases where the parties to an action commenced under the provisions of this chapter have executed a separation agreement, if the court finds that the agreement is fair and reasonable, and not obtained by fraud, duress or other unconscionable conduct by one of the parties, and further finds that the parties, through the separation agreement, have expressed themselves in terms which, if incorporated into a judicial order, would be enforceable by a court in future proceedings, then the court shall conform the relief which it is authorized to order under the provisions of parts 5 and 6, article 5 of this chapter to the separation agreement of the parties. The separation agreement may contractually fix the division of property between the parties and may determine whether spousal support shall be awarded, whether an award of spousal support, other than an award of rehabilitative spousal support or spousal support in gross, may be reduced or terminated because a de facto marriage exists between the spousal support payee and another person, whether a court shall have continuing jurisdiction over the amount of a spousal support award so as to increase or decrease the amount of spousal support to be paid, whether spousal support shall be awarded as a lump sum settlement in lieu of periodic payments, whether spousal support shall continue beyond the death of the payor party or the remarriage of the payee party, or whether the spousal support award shall be enforceable by contempt proceedings or other judicial remedies aside from contractual remedies.

(b) Any award of periodic payments of spousal support shall be deemed to be judicially decreed and subject to subsequent modification unless there is some explicit, well expressed, clear, plain and unambiguous provision to the contrary set forth in the court-approved separation agreement or the order granting the divorce. Child support shall, under all circumstances, always be subject to continuing judicial modification.