December 2008 - Posts
This collection of definitions will help you understand some specific terms in the West Virginia Divorce laws, process and paperwork when dealing with divorce.
Filing Party Title:
Petitioner
The spouse who will initiate the divorce by filing the necessary paperwork with the court.
Non-Filing Party Title:
Respondent
The spouse who does not initiate the divorce with the court.
Court Name:
Circuit Court of ___________ County, West Virginia
The name of the court in which a divorce is filed in the state of West Virginia. Each jurisdictional court normally has a domestic relations or a family law section.
Child Support Enforcement Web site:
http://www.wvdhhr.org/bcse
WVBCSE - West Virginia Bureau for Child Support Enforcement official site. The West Virginia office devoted to enforcing existing child support orders and collecting any past due child support.
Document Introduction:
In Re the Marriage of:
The lead-in caption used in the legal header of the documents filed with the court. This introduction typically prefaces both spouse’s names.
Initial Divorce Document:
Petition for Divorce
The title and name of the legal document that will begin the West Virginia Divorce process. The filing spouse is also required to provide the non-filing spouse a copy of this document in all cases.
Final Divorce Document:
Decree of Divorce
The title and name of the legal document that will finalize the West Virginia Divorce process. This document will be signed by the judge or master of the court to declare your marriage officially terminated.
Clerk’s Office Name:
Office of the Clerk of the County Circuit Court
The office of the clerk that will handle the Divorce process. This is the title you would address letters to or ask for when contacting the courthouse.
Legal Separation:
The grounds for legal separation (separate maintenance) are the same as for divorce. One of the spouses must have been a resident of West Virginia for at least 1 year prior to filing for legal separation.
Property Distribution:
Equitable Distribution
The applicable West Virginia law that will dictate how all assets are to be divided upon Divorce.
Source : West Virginia Code; Section 48-5-501
Adjusted gross income.
(a) "Adjusted gross income" means gross income minus the payment of previously ordered child support, spousal support or separate maintenance.
(b) A further deduction from gross income for additional dependents may be allowed by the court or master if the parent has legal dependents other than those for whom support is being determined. An adjustment may be used in the establishment of a child support order or in a review of a
child support order. However, in cases where an agreement is sought, the adjustment should not be used so that it results in a support amount lower than the previously existing order for the children who are the subject of the agreement. The court or master may choose to use the following adjustment because it decides equitable shares of support to all of
the support obligor’s legal dependents. Using the income of the support obligor only, determine the basic child support obligation (from the table of basic child support obligations in section 3, article 1-b of this chapter) for the number of additional legal dependents living with the support
obligor. Multiply this figure by 0.75 and subtract this amount from the support obligor’s gross income.
(c) As used in this section, the term "legal dependents" means:
(1) Minor natural or adopted children who live with the parent
(2) Natural or adopted adult children who are totally incapacitated because of physical or emotional disabilities and for whom the parent owes a duty of support.
Attributed income.
(a) "Attributed income" means income not actually earned by a parent, but which may be attributed to the parent because he or she is unemployed, is not working full time, or is working below full earning capacity, or has non-performing or under-performing assets. Income may be attributed to a parent if the court or master evaluates the parent’s earning capacity in the
local economy (giving consideration to relevant evidence that pertains to the parent’s work history, qualifications, education and physical or mental condition) and determines that the parent is unemployed, is not working full time, or is working below full earning capacity. Income may also be attributed to a parent if the court or master finds that the obligor has non-performing or under performing assets.
(b) If an obligor:
(1) Voluntarily leaves employment or voluntarily changes his or her pattern of employment so as to be unemployed, underemployed or employed below full earning capacity
(2) is able to work and is available for full-time work for which he or she is fitted by prior training or experience
(3) is not seeking employment in the manner that a person in his or her circumstances would do, then an different method for the court or master to determine gross income is to attribute to the person an earning capacity based on his or her previous income. If the obligor’s work history, qualifications, education or physical or mental condition cannot be determined, or if there is an insufficient record of the obligor’s previous income, the court or master may, as a minimum, base attributed income on full-time employment (at 40 hours per week) at the federal minimum wage in effect at the time the support obligation is established.
(c) Income shall not be attributed to an obligor who is unemployed or underemployed or is otherwise working below full earning capacity if any of the following conditions exist:
(1) The parent is providing care required by the children to whom the parties owe a joint legal responsibility for support, and children are of preschool age or are handicapped or otherwise in a situation requiring
extra care by the parent
(2) The parent is coming up with a plan of economic self-improvement which will result, within a reasonable time, in an economic benefit to the children to whom the support obligation is owed, including, but not limited to, self-employment or education: Provided, That if the parent is involved in an educational program, the court or master shall ascertain that the person is making progress toward completion of the program
(3) The parent is, for valid medical reasons, earning an income in an amount less that previously earned
(4) The court or master makes a written finding that other circumstances exist which would make the attribution of income inequitable:
Provided, that in such case, the court or master may decrease the amount of attributed income to an extent required to remove such inequity.
(d) The court or master may attribute income to a parent’s
non-performing or under-performing assets, other than the parent’s primary residence. Assets may be considered to be non-performing or under-performing so that they do not produce income at a rate equal to the current six-month certificate of deposit rate, or such other
rate that the court or master determines is reasonable.
Automatic data processing and retrieval system.
"Automatic data processing and retrieval system" means a computerized data processing system designed to do the following:
(1) To control, account for and monitor all of the factors in the support enforcement collection and paternity determination process, including, but not limited to:
(A) Identifiable correlation factors (such as social security numbers, names, dates of birth, home addresses and mailing addresses of any individual with respect to whom support obligations are sought to be established or enforced and with respect to any person to whom such support obligations are owing) to assure compatibility among the systems of different jurisdictions to permit periodic testing to determine whether such individual is paying or is obligated to pay support in more than one jurisdiction
(B) Checking of records of such individuals periodically with
federal, interstate, intrastate and local agencies
(C) Maintaining the information necessary to meet applicable federal reporting requirements on a timely basis; and
(D) Delinquency and enforcement activities
(2) To control, account for and monitor the collection and distribution of support payments (both interstate and intrastate) the determination, collection and distribution of incentive payments (both interstate and intrastate), and the maintenance of accounts receivable on all amounts owed, collected and distributed;
(3) To control, account for and supervise the costs of all services rendered, either directly or by exchanging information with state agencies responsible for maintaining financial management and expenses information.
(4) To provide access to the records of the department of health and human resources in order to determine if a collection of a support payment causes a change affecting eligibility for or the amount of aid under such program;
(5) To provide for security against unauthorized access to, or use of, the data in such system;
(6) To facilitate the development and improvement of the income withholding and other procedures designed to improve the effectiveness of support enforcement through the monitoring of support payments, the maintenance of accurate records regarding the payment of support and the prompt provision of notice to appropriate officials with respect to any negligence in support payments which may occur
(7) To provide management information on all cases from initial referral or application through collection and enforcement.
Basic child support obligation.
"Basic child support obligation" means the base amount of child support due by both parents as determined by the table of basic child support obligations set forth in section three, article 1-b of this chapter, based upon the combined adjusted gross income of the parents and the number of children to whom support is due.
Chief judge.
"Chief judge" means the circuit judge in a judicial circuit that has only one circuit judge, or the chief judge of the circuit court in a judicial circuit that has two or more circuit judges.
Child support enforcement division.
"Child support enforcement division" means the agency created under the provisions of article two of this chapter, or any public or private entity or agency contracting to provide a service. The "child advocate office" or" child support enforcement division" is that agency intended by the Legislature to be the single and separate organizational unit of state government administering programs of child and spousal support enforcement and meeting the staffing and organizational requirements of the secretary of the federal department of health and human services.
A reference in this chapter and elsewhere in this code to the "child advocate office" shall be interpreted to refer to the child support enforcement division.
Civilian divorce and military divorce have several differences in the state of West Virginia.
There are laws in place that protect active duty members of the service against being held in default from failing to respond to the filing of a divorce. The purpose of these laws is to protect active military from being divorced without knowledge.
Under the Soldiers and Sailors Civil Relief Act, 50 UCS section 521 and in the discretion of the West Virginia court, the divorce proceeding may be held for the time the active service member is on duty and up to sixty days thereafter, which is usually the case if the soldier is serving in a war. This waiting period may be waived if the service member wishes to proceed with the divorce.
The active duty spouse must be personally served a summons and copy of the divorce action in order for the West Virginia court to have jurisdiction in the case. If it is an uncontested case, the active duty spouse may not have to be personally served as long as he or she signs and files a waiver affidavit for the divorce.
Military divorce filing requires that you or your spouse must reside or be stationed in West Virginia.
The federal government has enacted the Uniformed Services Former Spouses' Protection Act (USFSPA) that regulates how military retirement benefits are calculated and divided when a divorce occurs. The USFSPA is the governing body that authorizes a direct payment of a portion of a military retiree's pay to a previous spouse. Federal laws will not divide and or distribute any of the military members retirement to the said spouse unless they have been married for ten years or longer while the service member was in active military duty.
In West Virginia, both child support and alimony may not exceed sixty percent of a military member's salary. The typical West Virginia child support guidelines, worksheets and schedules are used to determine the proper amount of child support necessary.
Source : West Virginia Code
There are set laws that ensure grandparents will be able to see their grandchildren. Grandparents may get visitation the grandparent's child fails to appear and defend the judgement or when the whereabouts of that parent are unknown to those grandparents seeking visitation. After the annulment or divorce has been filed, a grandparent may request visitation when that grandparent's child is the non-custodial parent and that parent has refused, failed or has been unable to have visitation for six months or longer or has been in the Armed Services and stationed more than 100 miles from the state border.
If their child is deceased a grandparent may also petition for visitation. Visitation for grandparents is also allowed when the child has resided with the grandparent without interruption for a period of six months or more within the previous two year period, the child was removed from the home of the grandparent by the parent, and the removing parent has not allowed the grandparent visitation.
In every case, the decision must be in the child's interest.
Source : West Virginia Code - 48 - 2 - 15
Either parent may be required to make child support payments, including health insurance coverage. These guidelines do not take into the account the economic impact of the following factors that may be possible reasons for deviation :
~ Special needs of the child or parent, including but not limited to, the special needs of a minor or adult child who is physically or mentally disabled
~ Educational expenses for the child or the parent
~ Families with six or more children
~ Long distance visitation costs
~ If the child lives with another person
~ Needs of another child or children to whom the parent owes a duty of support
~ The extent to which the parent's income depends on nonrecurring or non-guaranteed income
~ Whether the total of spousal support, child support, and childcare costs subtracted from a parent's income reduces that income to less than the federal poverty level.
One of the parents may also be granted exclusive use of the family home and all the furniture and property necessary to help in the raising of the child. The court may require health and hospitalization insurance coverage as child support. Provisions for withholding income shall be included in every divorce petition to guarantee the support payments. The West Virginia Child Advocate Office and in the statue are the two places you can get specific information on Child Support guidelines. These guidelines are presumed to be correct, unless it is shown that the amount is unjust or inappropriate under each case's circumstances.
Source : West Virginia Code - Sections 48 - 13 - 301, 48 - 13 - 702
In West Virginia, the court will always decide in the child's best interests, by facilitating the following :
~ Stability of the child
~ Parental planning and agreement about the child's custodial arrangements and upbringing
~ Continuity of existing parent-child attachments
~ Meaningful contact between a child and each parent
~ Care taking relationships by adults who love their children, know how to provide for the child's needs, and who place a high priority on doing so
~ Security from exposure to physical or emotional harm
~ Expeditious, predictable decision making and avoidance of prolonged uncertainty respecting arrangements for the child's care and control
Source : West Virginia Code : Sections 48 - 9 -102, 48 - 11 -201
In West Virginia, support payments can be a huge factor in how the marital property distribution is awarded. This will be a major part of the final outcome of the divorce. If you and your spouse are unable to reach an agreement on this issue, the Circuit Court will order support from one spouse to another on a case by case basis.
These factors are considered by the court when awarding spousal support :
~ The duration of the marriage
~ The period of time when the spouses actually cohabited
~ The income of the spouses
~ The income-earning abilities of each of the parties , based upon educational background, employment skills, work experience, length of absence from the job market and custodial responsibilities for the children.
~ The property awarded by either the court or mutual agreement
~ The ages and heath conditions of each party
~ The postponement of education to further the earning capacity of the other
~ The standard living establishment while married
~ The likelihood that the party seeking spousal support, child support or separate maintenance can substantially increase his or her income by additional education or training
~ Financial or other contributions made by either party to the education, training vocational skills, career or earning capacity of the other party
~ The estimated expense of further education and training
~ The educational costs of the children
~ Health care costs for the children
~ Tax expenses to each party
~ The extent to which it would be inappropriate for a party, because the said party will be the custodian of the children, to seek employment outside the home
~ The financial need of each party
~ The legal obligations of each party to support themselves and others if needed
~ Costs and care associated with a minor or adult child's physical or mental disabilities
~ Such other factors as the court deems necessary or appropriate to consider in order to arrive at a fair and equitable grant of spousal support, child support or separate maintenance
Source : West Virginia Code - Sections 48 - 6 - 301, 48 - 8- 104
In West Virginia, the property and debt issues are typically settled between the spouses by by a signed Marital Settlement Agreement or the property award is actually an order and decreed by the Circuit Court within the Decree of Divorce.
West Virginia is also known as an "equitable distribution" state. The Circuit Court will take the following approach to dividing the assets when the spouses are unable to reach a settlement.
First it will identify which property and debt is to be considered marital. Then it will assign a monetary value on the marital property and debt. Lastly it will equally distribute the marital assets between the two parties in an equitable fashion. Equitable does not mean equal, rather what what is deemed by the Circuit Court to be fair.
Marital property of the parties shall be divided equitably between the parties after considering 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.
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.
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 spouse.
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 to the parties.
A monetary award may be ordered of the exclusive use and occupancy of the marital home to a party. An order granting use and occupancy of the marital home will include the use of any household goods, furniture and furnishings. The order will establish a definite period for the use and occupancy, ending at a specific time set forth in the order, subject to modification upon the petition of either party.
Marital misconduct will not be considered by the court in determining the proper distribution of marital property.
Source : West Virginia Code - Sections: 48-5-604, 48-5-612, 48-7-101
If one spouse files a verified complaint for divorce on the grounds of "irreconcilable differences", the other spouse may file a verified "answer" admitting the "irreconcilable differences" and a divorce will be granted. Circuit clerks are required to have forms for an official "petition" and an "answer" on hand, free of charge. There will be no need for witnesses for proof of "irreconcilable differences". The court may approve or reject a marital settlement agreement of the spouses. You will also need to file standard financial disclosure forms.
Source : West Virginia Code: Sections 48-5-402, 48-5-403, 48-6-201, 48-7-201, and 48-7-203 and West Virginia Rules of Civil Procedure; Rule 80
The Petition for Divorce is the original document filed with the West Virginia court. In this document the filing spouse will request the court to terminate the marriage under certain specified grounds.
A Petition for Divorce may be filed under these grounds :
~No-Fault Based Grounds :
1. Residing completely apart without cohabitation for at least one year. The separation may be voluntary by one spouse or a mutual decision.
2. Irreconcilable differences between the two parties.
~Fault Based Grounds :
1. Reasonable proof of bodily harm
2. False accusation of adultery or homosexuality
3. Treatment or conduct that destroys or will destroy the mental or physical well being of the other spouse
4. Adultery
5. Conviction of a Felony
6. Incurable Insanity
7. Habitual Alcohol or Drug use
8. Willful neglect or abuse of souse or child
Source : West Virginia Code - Sections: 48-5-202 and 48-5-209
You must make sure the Circuit Court has jurisdiction over your case before filing a divorce petition in West Virginia. Meeting residency requirements is the most common way spouses are eligible to use a specific court system. Meeting the West Virginia residency requirements is usually only an issue for a spouse who has recently moved or is planning to move in the near future.
The filing requirements are as follows :
One of the spouses must have West Virginia residency for at least one year for a petition of divorce, except if the marriage took place in West Virginia in which the one year residency requirement would be waived.
The divorce will be filed :
1. If the respondent in a petition for divorce is a resident of West Virginia, the petitioner has an option to bring the action in the county where the respondent currently resides.
2. If the respondent in a petition for divorce is not a resident of West Virginia, the petitioner has an option to bring the petition to the county where the parties last cohabited or in the county where the petitioner currently resides.
Source : West Virginia Code - Sections : 48-5-201
Here is a complete list of all West Virginia courthouse locations for your convenience :
Barbour County Courthouse
8 N. Main Street
Philippi, WV 26416
Phone: (304) 457-4234
Fax: Fax 304-457-2790
Berkeley County Courthouse
110 W. King Street
Martinsburg, WV 25401
Phone: (304) 264-1918
Fax: Fax 304-262-3072
Boone County Courthouse
200 State Street
Madison, WV 25130
Phone: (304) 369-7357
Fax: Fax 304-369-7326
Braxton County Courthouse
300 Main Street
Sutton, WV 26601
Phone: (304) 765-2837
Fax: Fax 304-765-2947
Brooke County Courthouse
632 Main Street
Wellsburg, WV 26070
Phone: (304) 737-3662
Fax: Fax 304-737-5123
Cabell County Courthouse
750 Fifth Avenue
Huntington, WV 25701
Phone: (304) 526-8622
Fax: (304) 526-8699
Calhoun County Courthouse
Court & Main Streets
Grantsville, WV 26147
Phone: (304) 354-5690
Fax: Fax 304-354-6910
Clay County Courthouse
210 Main Street
Clay, WV 25043
Phone: Ph. 304-587-4256
Fax: Fax 304-587-4346
Doddridge County Courthouse
118 E. Court Street
West Union, WV 26456
Phone: (304) 873-2331
Fax: (304) 873-2260
Fayette County Courthouse
100 Court Street
Fayetteville, WV 25840
Phone: Ph. 304-574-4249
Fax: Fax 304-574-4314
Gilmer County Courthouse
10 Howard Street
Glenville, WV 26351
Phone: (304) 462-7241
Fax: (304) 462-5134
Grant County Courthouse
5 Highland Avenue
Petersburg, WV 26847
Phone: (304) 257-4545
Fax: (304) 257-2593
Greenbrier County Courthouse
200 N. Court Street
Lewisburg, WV 24901
Phone: Ph. 304-647-6626
Fax: Fax 304-647-6666
Hampshire County Courthouse
E. Main Street
Romney, WV 26757
Phone: (304) 822-5022
Fax: (304) 822-8257
Hancock County Courthouse
102 Court Street
New Cumberland, WV 26047
Phone: (304) 564-3311
Fax: (304) 564-5014
Hardy County Courthouse
204 Washington Street
Moorefield, WV 26836
Phone: Ph. 304-538-7869
Fax: (304) 538-6197
Harrison County Courthouse
301 W. Main Street
Clarksburg, WV 26301-2967
Phone: Ph. 304-624-8640
Fax: Fax 304-624-8710
Jackson County Courthouse
Main Street
Ripley, WV 25271
Phone: (304) 372-2011
Fax: Fax 304-372-6205
Jefferson County Courthouse
George & Washington Streets
Charles Town, WV 25414
Phone: Ph. 304-728-3231
Fax: (304) 728-3398
Kanawha County Courthouse
111 Court Street
PO Box 2351
Charleston, WV 25328
Phone: Ph. 304-357-0440
Fax: Fax 304-357-0473
Lewis County Courthouse
110 Center Avenue
Weston, WV 26452
Phone: (304) 269-8210
Fax: Fax 304-269-8249
Lincoln County Courthouse
8000 Court Avenue
Hamlin, WV 25523
Phone: Ph. 304-824-7887 ext. 236
Fax: (304) 824-7909
Logan County Courthouse
300 Stratton Street
Logan, WV 25601
Phone: (304) 792-8550
Fax: (304) 792-8555
Marion County Courthouse
211 Adams Street
Fairmont, WV 26554
Phone: (304) 367-5340
Fax: Fax 304-367-5374
Marshall County Courthouse
Seventh Street
Moundsville, WV 26041
Phone: Ph. 304-845-2130
Fax: (304) 845-3948
Mason County Courthouse
Sixth & Viand Street
Point Pleasant, WV 25550
Phone: (304) 675-6840
Fax: Fax 304-675-7419
McDowell County Courthouse
Court & Wyoming Streets
Welch, WV 24801
Phone: Ph. 304-436-8535
Fax: (304) 436-6994
Mercer County Courthouse
1501 W. Main Street
Princeton, WV 24740
Phone: (304) 487-8367
Fax: Fax 304-425-8351
Mineral County Courthouse
150 Armstrong Street
Keyser, WV 26726
Phone: (304) 788-1562
Morgan County Courthouse
202 Fairfax Street
Berkeley Springs, WV 25411
Phone: Ph. 304-258-8554
Fax: Fax 304-258-7319
Ohio County Courthouse
City/County Building
1500 Chapline Street
Wheeling, WV 26003
Phone: (304) 234-3611
Pendleton County Courthouse
Main Street
Franklin, WV 26807
Phone: (304) 358-7067
Fax: Fax 304-358-2152
Pleasants County Courthouse
301 Court Lane
St. Marys, WV 26170
Phone: (304) 684-3513
Fax: Fax 304-684-3514
Pocahontas County Courthouse
900 Tenth Avenue
Marlinton, WV 24954
Phone: (304) 799-4604
Ritchie County Courthouse
115 E. Main Street
Harrisville, WV 26362
Phone: Ph. 304-643-2164 ext.229
Fax: Fax 304-643-2534
Roane County Courthouse
200 Main Street
Spencer, WV 25276
Phone: (304) 927-2750
Fax: (304) 927-4165
Taylor County Courthouse
214 W. Main Street
Grafton, WV 26354
Phone: Ph. 304-265-2480
Tucker County Courthouse
1215 First Street
Parsons, WV 26287
Phone: Ph. 304-478-2606 ext. 201
Fax: (304) 478-4464
Tyler County Courthouse
Main Street
Middlebourne, WV 26149
Phone: Ph. 304-758-4811
Fax: (304) 758-4008
Upshur County Courthouse
38 W. Main Street
Buckhannon, WV 26201
Phone: (304) 472-2370
Fax: (304) 472-2168
Webster County Courthouse
2 Court Square
Webster Springs, WV 26288
Phone: Ph. 304-847-2421
Wetzel County Courthouse
Main Street
New Martinsville, WV 26155
Phone: Ph. 304-455-8219
Fax: Fax 304 -455-1069