Divorce: When And Whether You Can File Your Case In West Virginia

Last Updated On: 7/2/2016 1:46:40 PM

View the Divorce Tookit for more information about divorce. 

What court in West Virginia handles divorce cases?

West Virginia has a “family court” system. A Family Court Judge will decide your divorce. Most counties have at least one elected family court judge. Smaller, more rural regions may have one family court judge to cover several small counties. The judge you have depends on where you file for divorce.

You can find out which family court circuit will handle your case at the West Virginia Supreme Court’s Web site. Click here to see the Family Court map.

Do I have to live in West Virginia to file my divorce case in West Virginia?

You can file your divorce case in West Virginia if you meet one of the following rules:

  1. If you have lived in West Virginia for the last 12 months, then you can file your divorce in West Virginia. It doesn’t matter whether the marriage took place in West Virginia, or some other state.
  2. If you were married in West Virginia AND at least one of you now lives in West Virginia, you can file your divorce in West Virginia. It does not matter how long you have lived here, as long as the marriage took place in WV and one spouse now lives in WV. But if you both live outside of West Virginia, you won’t qualify under this rule.

If you don’t meet one of those two rules, you cannot file your divorce case in West Virginia.

Do the children have to live in West Virginia for a West Virginia court to decide child custody?

There are many complicated rules that say when and whether a WV Family Court Judge can decide child custody. In general, though, the children have to live in West Virginia for at least six months before the case is filed for the judge to decide a child custody dispute in the divorce case.

The six-month time period does not apply if:

the child is younger than six months, or
the child has been abandoned in West Virginia, or
there is an emergency situation and there isn’t any other state that could decide custody.

What county can I file my divorce in?

There are rules that say which county.

  1. You can file for divorce in the county where you both lived when you split up, OR
  2. You can file for divorce in the WV county where your husband or wife now lives, OR
  3. If your husband or wife lives out of state, then you can file for divorce in the county where you live.

You file for divorce in the circuit clerk’s office. The Circuit Clerk handles all the paperwork for the Family Court. The Circuit Clerk’s office is in the county courthouse or county judicial center.

Is there a required time of separation before I can file a divorce?

Every divorce petition must give the date the spouses “last lived together.” The “period of separation” can be important in a variety of ways. In some cases it can affect Custody allocation. In some cases it can affect “marital versus separate” property. 

But there is no separation requirement before divorce EXCEPT for divorces on “One Year Separation.”

Can living together right up until filing affect whether I get a divorce?

There can be difficulties if you want a fault-based divorce. (For example, Adultery, Drug Abuse, Cruelty, and so on). 

Fault-based divorce cases. The court may assume that by continuing to live “as husband and wife” (having sexual activity) after the bad conduct was known, the bad conduct was “condoned” (forgiven). If it was condoned in this way it cannot be the basis for a divorce. Although if it is repeated and not condoned again, then it can be the basis for a divorce.]

It is true that two people can live together without “living as husband and wife.” That’s not what most judges will assume. If you did not separate before filing the fault-based divorce, the judge might ask (1) when did the bad conduct take place, and (2) was there any “living as husband and wife” after that bad conduct happened. 

No-fault divorces (“Irreconcilable Differences”). Living together until filing should not cause a difficulty. In a no-fault divorce both parties file papers saying they want the divorce. Once that happens, the court will not ask about when or how long you lived together unless it is important for some other issue in the case.

Can the West Virginia family court judge decide how to divide the things we own?

The judge can decide how to divide the things you both own. This might be a chair, a car, or a house.

If your spouse lives in West Virginia, the judge may also be able to decide who will pay for a bill or a loan. If your spouse lives in another state, the Family Court Judge might not be able to decide this.

Who is the "Petitioner"? Who is the "Respondent"?

The person who files for the divorce is the "petitioner."

If your husband or wife has filed for divorce first, then you are the "respondent."

You must respond to your husband or wife’s divorce petition. You respond with an "answer."

View the Divorce Tookit for more information about divorce. 

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