Divorce: Court Hearings And Court Procedure

Last Updated On: 4/16/2015 8:04:14 PM

View the Divorce Tookit for more information about divorce.

How do I know when my first hearing will be?

The first step is filing your divorce in the circuit clerk’s office. After that, the Family Court Judge’s office will handle your case. You can call the Family Court Judge’s office to check on the status of your case.

Who do I call with questions about my hearings?

Usually, the Family Court Judge’s office will schedule hearings and send you notices of hearings. You can call the Family Court Judge’s office for your county to find out about the hearing schedule. The family court judge may have more than one county that he or she serves.

You can find out which family court office to call by checking the West Virginia Supreme Court’s Web site. Click here for a map on the Supreme Court's web site, where you can find the Family Court for your county.

What happens at my first hearing?

At your first hearing, the judge can find out what you and your spouse can agree upon. The judge will also find out what you and your spouse can’t agree upon. Then the judge will sort out what further steps and hearings are needed.

If you and your spouse agree about everything, then some judges may approve the divorce at the first hearing. You could have a settlement agreement already planned or written. If that happens, the first hearing could be your only hearing in the divorce.

If there are subjects of disagreement, then you will need to have at least one more hearing. The judge will determine what the areas of disagreement are; what other information you or your spouse need to submit; and how much time to schedule for further hearings.

While we're waiting for the Final Hearing, what do we do about issues like child custody, child support, or who lives in the house?

At the first hearing, the judge may issue a "temporary order." A Temporary Order tells you what to do "for the time being." The Temporary Order is NOT the final word of the court on the disputes you may have. Instead, Temporary Orders simply tell you what's going to happen BEFORE the judge decides the final outcome.

Temporary Orders cover things that you and your husband and wife will have to do during the time while you wait for the final divorce hearing. You cannot appeal the decisions the judge makes in the temporary order. These things will be reviewed at the next family court hearing.

Usually the judge will put whatever you and your spouse can agree upon as part of the Temporary Order. If there are things you and your spouse cannot agree upon, the judge will have to decide what he or she thinks is best. You need to be prepared to tell the judge at the first hearing why the things that you want as temporary arrangements are "best" for your children, or for the two of you.

In Temporary Orders the judge can order:

  1. temporary child support,
  2. a temporary parenting plan,
  3. whether the husband or wife can live in the marital home temporarily,
  4. temporary spousal support,
  5. attorney’s fees and other court costs,
  6. costs of health care and hospitalization,
  7. use of the husband and wife’s vehicles,
  8. a protective order, and
  9. disclosure of assets.

Can the divorce be over after only one hearing?

It's possible. But that happens only when two things are true:

  1. You and your spouse have already agreed about everything; AND
  2. The judge believes that the agreement is "fair and reasonable" for both of you.

The divorce won’t be finished at the first hearing if there is anything you cannot agree upon. If you and your spouse disagree about any aspect of the divorce, the court will schedule another hearing.

What happens at the second hearing?

At all hearings after the first one, the judge can take testimony and evidence about the disputed issues. You may be able to present witnesses and other evidence at these hearings; usually this will just be at your final hearing. It may take only one additional hearing for the judge to decide everything. It may take multiple additional hearings.

If circumstances change between you and your spouse before the divorce is completed, you may need to have additional hearings. If one side or the other violates the provisions of the Temporary Order, you may need to have more hearings.

The time between hearings can take months. A case can go on for years if there are a lot of issues you can’t agree on. Sometimes people are willing to compromise and reach an agreement in order to complete the process quickly. Sometimes people are willing to fight every little issue no matter how long it takes.

What is mediation?

The court may refer you and your spouse to "mediation" to help the two of you reach an agreement. This is particularly true if you have children and cannot agree on a parenting schedule.

A mediator is a trained, certified, neutral professional who assists the two of you. The Mediator's job is to help both parties discuss their disagreements in a polite and productive way, and to help them reach an agreement.

The mediator is not "for" one side or the other. The mediator will not make decisions about what should happen. The mediator will not make recommendations to the judge about what should happen. Instead, the mediator is simply trying to help the two sides arrive at a solution that is acceptable to both of them.

If you can reach an agreement with the mediator's help, then the rest of the case will go more quickly. If you cannot reach an agreement, even with the help of the mediator, then the judge will have to decide the dispute.

When there are disagreements concerning children, the court is likely to send you to a mediator. The mediator will try to help both parents work on a parenting plan. Mediation is a meeting where a mediator meets with the mother and father and tries to work out an agreement about the children. This agreement can become a parenting schedule.

The court has a list of approved family mediators. The husband and wife split the cost of the mediator, based on their incomes and ability to pay. After mediation, there will be another court hearing. The judge will want to know whether you reached an agreement.

How do I know when I am finally divorced?

You are not divorced until the family court judge actually signs a written final divorce order. The judge may tell you at the end of a hearing that the divorce "is granted" or "will be granted." But it isn't legally completed until the written final order is signed.

The judge gives his written final order to the circuit clerk’s office. Sometimes that happens right away, even the same day. Sometimes it can take weeks for the judge to send the final order to the clerk's office. Then, the circuit clerk’s office mails you an official certified copy of the order. You have to wait for it in the mail.

If you do not get your final order within a couple of weeks you should call the clerk's office first. Ask them if the judge has issued the final order. If not, then you should call the judge's office. Ask whether there has been some difficulty, or whether another hearing is needed.

Be sure to keep your official certified copy of your divorce order in a safe place. You might need your divorce order as a way to prove something the judge decided. You might need your final divorce order as proof of a name change. You might need the order to give it to your children’s schools to show your legal right to make decisions concerning your child.

Do not give your certified copy of the divorce order to anyone else. Give them an ordinary photocopy of your order. Keep your original certified copy in a safe place, for your own use. If anything happens to your certified copy, you should go to the clerk's office and get another one.

Can I appeal the judge’s decision?

Yes. After you get the final divorce order, you can appeal it. The order will tell you about your right to appeal to the Circuit Court. In special circumstances you could appeal directly to the West Virginia Supreme Court of Appeals.

You can appeal the order if you disagree with anything the court decided in your case. If you do appeal, you will not be able to give new evidence or testimony to the appeal court. Instead, the appeal court will only review the evidence that was given to the Family Court. You would need to prove that the family court judge made a mistake of law or that the family court judge abused his or her discretion. You may need to consult with an attorney to decide if you have a case for proving that there has been a mistake of law or abuse of discretion. The appeal court will decide whether the Family Court's decision applied the proper rules of law, and whether the Family Court's decision was based on adequate evidence.

Remember that you cannot appeal a temporary order. The judge’s temporary decision will have the name, “temporary order” at the top of it.

View the Divorce Tookit for more information about divorce.

This is general legal information. For guidance about your situation, talk to a lawyer.