West Virginia Divorce

West Virginia Divorce ~ Controlled Separation

Divorce_Information — Wed, 29 Apr 2009 19:00:02 GMT

Controlled separation is a trendy approach to dealing with divorce in a less confrontational way. It's popularity has skyrocketed in the last few years. In a controlled separation you and your spouse will work with a counselor or mediator to arrange separation agreements and work to see if there is a resolution to your marriage as a final step before divorce proceedings continue.

By having a controlled separation you and your spouse can live separately and make negotiations for a marital solution. This is a very good thing to try. Sometimes a third unbiased party like a mediator or counselor can recognize problematic areas and possibly find a way to save your marriage. If the spouses are separated sometimes problems are easier to identify and possibly rectify.

In a controlled separation there will always be certain guidelines to follow based upon each couple's issues that they have in their marriage. Here are some ideas for planning your controlled separation.

Someone leaves the household. It is key to work on your problems without constantly arguing with your spouse. If one spouse leaves there will be more fresh air between you to make proper decisions.

Separation time limit. It is a good idea to have a goal as to when you will come to a resolution. Setting a timeline may help you work toward your goals in a more organized manner.

No attorney involvement. You and your spouse should agree to not involve an actual divorce until you have given controlled separation a fair shot and are willing to say that you did give this all you could.

Financial Support. You and your spouse should agree what is a fair way to make sure your spouse is okay financially.

Children's Involvement. Your children should not be neglected in any way. Make a visitation plan and possibly a family outing.

Intimate Relations. Determine whether continuing a sexual relationship will be wise for you at this difficult time.

Ending the Controlled Separation. Decide whether one spouse can end the controlled separation or whether both spouses must agree that it should end.

These guidelines will allow you to approach your issues in a positive and respectful manner. Everyone will be more cool calm and collected. Good luck to you !

West Virginia Divorce ~ Serving Divorce Papers

Divorce_Information — Fri, 03 Apr 2009 12:00:00 GMT

When filing a law suit of any kind, including divorce, you must tell the other party they have been sued. The West Virginia court can not take any action until your spouse has been served divorce papers. You will also need proof in court of the delivery of your divorce papers. The legal term for serving divorce papers is “service of process”.

There are many ways to go about serving divorce papers. There are ways to serve your souse divorce papers with and without proof that the divorce papers have been served. It is in your best interest to have proof that your divorce papers have been served when you get to court. The court wants to know that everyone has had the opportunity to come to court and state their case.

You may not serve your spouse your divorce papers. Usually someone other than the spouse that is being served may serve the divorce petition. You can choose from the following methods of service :

~ Personal service

~ Certified mail

~ Service by publication, in a local newspaper for example

~ Service by Secretary of State

~ Waiver of service

Choose the right method of serving your divorce petition that best suits you. Bring your proof of serving your divorce papers to court with you so there are no surprises. Prepare your case in the best way you possibly can to better your divorce case in court.

West Virginia Divorce ~ Uncontested Divorce

Divorce_Information — Wed, 01 Apr 2009 13:00:00 GMT

Normally an uncontested divorce is quicker and cheaper than a contested divorce. The law usually allows both parties to define their own futures when both parties agree to the terms of a divorce. The end result of an uncontested divorce is that the spouses are not forced to live by a decision given to them by a West Virginia Judge.

The uncontested divorce is very beneficial when children are involved in the divorce. After and uncontested divorce, relationships are more civil. As a result, parents are able to raise their children together after the divorce much more peacefully.

There is for more confidentiality in an uncontested divorce. In a contested divorce, both parties must discuss all financial aspects before the divorce court. Many private details about you may be revealed in a contested divorce. In the case of an uncontested divorce, all of your information is private and not aired.

Uncontested divorce are more helpful to spouses who agree to disagree and can be civil to one another. This is usually not a marriage where violence or adultery has occurred.

An uncontested divorce may be the more peaceful route for some couples going through a divorce. Talk to your spouse and see if this will work in your divorce case.

West Virginia Divorce ~ Legal and Financial Aspects of Divorce

Divorce_Information — Thu, 19 Mar 2009 11:15:00 GMT

Often times, legal and financial aspects of divorce make the divorce process seem overwhelming and bothersome. During this fragile time for you proper decision making is key. You will need to be very familiar with specific laws pertaining to divorce in your state. You will need to get organized. You will need plans. Most of all you will need to hold yourself together emotionally.

Gaining knowledge about legal and financial aspects of divorce can lighten your load of stress. Your new found knowledge will also help you in your newly single life.

Financially speaking, the best thing to do when considering divorce is weigh all of your options. You and your spouse can discuss what can be done financially to make sure that both of you will make it fairly. Make a chart or list of all debts and obligations. Everything becomes more clear on paper, rather than simply adding things up in your head. There is no time like now to get organized.

Legally speaking, your knowledge of laws will give you ease in planning for divorce. There are many state specific laws that will either help or hinder your divorce process. Knowledge is key in everything we do, especially a major life changing event such as divorce.

Know your facts. Be prepared.

West Virginia Divorce ~ Patience and Persistence Through Your Divorce

Divorce_Information — Tue, 03 Mar 2009 17:30:26 GMT

Situations concerning divorce are usually filled with high tension and irritability. You just want your divorce finalized. You just want to close a chapter in your life. In order to gain composure through difficult times like this there are two very important weapons in your arsenal for negotiation : Patience and Persistence. Negotiators that come out on top know that by staying cool, calm and collected they will gain an advantage that proves to be very favorable for them.

Negotiation tests both spouses. Agreements are only made when both parties decide the judgement is fair and just. If possible try and make your wishes known to your spouse and in turn ask that their wishes be shared with you so that you know exactly what you are looking forward to. Any negotiations that can be made before court may help ease some tensions. Remember - patience and persistence. Divorce just like other things we handle in everyday life is a troublesome affair.

Make your foundation for negotiations. Be patient and persistent. Be prepared for court by using this checklist.

~ Understand the issues you face

~ Build credibility and trust

~ Understand what it is that your spouse wants and relate that to your own wants and needs

~ Acknowledge and accept what it is that your spouse wants, even if it isn't what you intend

~ Recognize your spouse's weaknesses

West Virginia Divorce ~ Collaborative Divorce

Divorce_Information — Mon, 02 Mar 2009 17:00:41 GMT

Collaborative Law is a big trend lately in divorce. It is a process where both spouses and both attorneys meet together and make negotiations to resolve custody and financial matters. The sole purpose of a collaborative divorce is to remove the nasty details involved in litigation to make everything go more smoothly.

In collaboration your attorney is working at all times to get you the best outcome possible while allowing both parties to reach a resolution and compromise. In meditation, the mediator is a neutral problem solver. Mostly the spouses are not individually represented, nor have final review counsel.

This may be an option for you if you wish to have a divorce be as painless as possible. As always, you should consult your attorney regarding what is your best option.

Source : West Virginia Code

West Virginia Divorce ~ Tax Concerns

Divorce_Information — Sun, 01 Mar 2009 17:00:09 GMT

During a divorce may questions can arise when it comes to things like taxes. Here are some tax facts that may assist you in your divorce proceedings.

In most divorce cases, the spouses agree to choose a spouse that may claim the child or children involved. In most cases parties choose to alternate years of legally claiming the children as dependants. Some disgruntled spouses file their taxes in a hurry and claim the children even if it isn't their year to do so. When the other spouse files and tries to claim the children, the IRS will immediately reject the second return. These things are never overlooked. It is very important to be clear about which spouse will be filing which years and it is best to have this negotiation prepared before your divorce goes to court so that it is legally binding.

Your filing status will determine the tax rate of each spouse. Usually a divorced person would file "Individual". If children are involved, whoever has physical custody of the child for over half of the current year may file "Head of Household". Qualifications for Head of Household include the physical custody of the child for over half of the current year and the filing spouse must have provided more than half of the costs to maintain their residence, must be unmarried, and the residence must be the home of the qualifying child.

In 1997, President Bill Clinton signed the Taxpayer Relief Act of 1997 and it became legally official. This act permits taxpayers to exclude up to $250,000 ($500,000 if filing jointly) of gain realized on the sale or exchange of a principle residence. If you have owned and occupied your residence for at least two of the five years prior to the sale of the residence may take advantage of this exclusion.

Source : West Virginia Code

West Virginia Divorce ~ Definitions of Terms Used in Divorce

Divorce_Information — Sat, 27 Dec 2008 16:46:38 GMT

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

West Virginia Divorce ~ Definitions of Terms Used to Calculate Child Support

Divorce_Information — Fri, 26 Dec 2008 23:35:47 GMT

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.

(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

(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.

West Virginia Divorce ~ The Laws Of Military Divorce

Divorce_Information — Fri, 26 Dec 2008 15:16:53 GMT

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

West Virginia Divorce ~ Grandparents Rights to Visitation

Divorce_Information — Fri, 26 Dec 2008 14:56:10 GMT

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

West Virginia Divorce ~ Child Support Factors

Divorce_Information — Fri, 19 Dec 2008 14:10:24 GMT

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

West Virginia Divorce ~ Child Custody Deciding Factors

Divorce_Information — Fri, 19 Dec 2008 13:25:17 GMT

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

West Virginia Divorce ~ Support and Alimony Information

Divorce_Information — Fri, 19 Dec 2008 13:15:36 GMT

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

West Virginia Divorce ~ Property Division Factors

Divorce_Information — Fri, 12 Dec 2008 15:15:20 GMT

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