FAQs 1 - Divorce - In General
Eleven "Frequently Asked Questions" about getting started with a divorce case in West Virginia. Where and how to file, what forms to use, where to get them, how much they cost, and more.
You can if you meet one of the following rules.
Married here AND one spouse living here. This option has two requirements: (1) You got married in West Virginia, AND (2) At least one of you now lives in West Virginia. If you meet these two requirements, you can file your divorce in West Virginia. It does not matter how long you have lived here. But if you both live outside of West Virginia, you won’t qualify under this rule.
Lived here 12 months. The other option is: (1) You did not get married in West Virginia, BUT (2) You have lived in West Virginia for the last twelve months. Then you can file your divorce in West Virginia.
If you don’t meet one of those two rules, you cannot get divorced in West Virginia.
West Virginia has a family court system. A family court judge will decide your divorce. There are 35 family court judges in West Virginia. There are 26 family court circuits. 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.
There are rules that say what the Family Court Judge can decide. The judge can decide where the children will live. The children must have lived here long enough. In general, the children have to live in West Virginia for the last six months.
The judge can decide how to divide the things you both own. This might be a chair, a car, or a house.
The judge may also be able to decide who will pay for a bill or a loan, if your spouse lives in West Virginia. If your spouse lives in another state, the Family Court Judge might not be able to decide this.
You file for divorce in the circuit clerk’s office. This office is in the county courthouse. There are rules that say which county.
One rule asks: What county did you both live in when you split up? You can file for divorce in that county. OR
Another rule asks: Where does your husband or wife live now? You can file for divorce in the WV county where your husband or wife now lives. OR
Another rule asks: Does your husband or wife live out of state? If so, you can file for divorce in the county where you live.
The person who files for the divorce is the "petitioner." You submitted a divorce petition. If your husband or wife has filed for divorce first, you are the "respondent." You must respond to your husband or wife’s divorce petition. You respond with an "answer."
There are several forms you need to fill out. You can get the forms in any circuit clerk’s office. The circuit clerk office is in the county courthouse. You may have to pay a small fee at the circuit clerk’s office if you pick the papers up there. If you cannot afford the fee, ask to fill out a "financial waiver" form.
You can also print the forms from the Internet, for free, from the web site of the Supreme Court of Appeals of West Virginia Web site. Click here for the Supreme Court web site with family law forms:
[Note: There are other web sites that may offer family law forms. Some of them will charge you money for them. Why not just use the official free forms from the WV Supreme Court?]
When you’re finished, you give the forms to the circuit clerk’s office. Some of the forms must be signed and notarized. The number of forms depends on whether you have children.
Normally, you have to pay a "filing fee" to the circuit clerk to file for divorce.
But the fee can be waived if your income and assets (like money in the bank) is low. If you can’t afford to pay the fee, you can ask for help. Ask to fill out a "fee waiver affidavit." This fee waiver affidavit form is at the clerk’s office, and it is available at the Supreme Court web site of forms.
If the fee waiver affidavit is approved, you will not have to pay the filing fee, or a fee to have the papers served on your spouse, or other court fees. The clerk has to approve the "fee waiver affidavit." You will have to pay these fees if the your income or assets are too high and yo do not qualify for the fee waiver.
Some Family Court Judges want you to use their own forms, instead of the WV Supreme Court web site forms. Even in those counties you can file for divorce with the W.Va. Supreme Court’s forms. But you may not be using your judge’s favorite forms. You may want to ask the clerk's office whether the Family Court Judge in that county uses the Supreme Court forms or something different.
Divorce without children. If you and your husband or wife do not have children you will need to fill out the following forms :
- (1) divorce petition,
- (2) civil case information statement,
- (3) vital statistics form and financial statement.
- (4) You may also file the fee waiver affidavit if your income is too low to pay the divorce filing fee and court costs.
Divorce with Children. You will need to fill out the following forms (1) if you have children (2) with your husband or wife you are divorcing:
- (1) divorce petition,
- (2) civil case information statement,
- (3) vital statistics form,
- (4) financial statement,
- (5) child support income withholding form,
- (6) parent education registration form, and
- (7) proposed parenting plan.
- (8) You also file the fee waiver affidavit if your income is too low to pay the divorce filing fee and court costs.
(1) The divorce petition. The divorce petition is the "master sheet" of the divorce. It gives the family court judge information about your marriage. It tells about your children. It tells exactly what you want from the divorce. It tells why you want the divorce. It tells what day you separated from your husband or wife. You must sign this form in front of a notary public.
(2) Civil case information statement. This form is two pages. It tells the circuit clerk’s office that you are filing for divorce. It tells the clerk whether you have children. It tells how your husband or wife needs to be served with the divorce petition. You need to write down where your husband or wife can be found. You need to write down his or her physical address. If you write down a post office number, that person will have to be served by certified mail.
(3) Vital statistics form. This form is one page and is very short. It is for state records. The clerk’s office will send it to Charleston at the end of your divorce case. It will go to the Office of Vital Statistics. This office also holds all West Virginia birth and death certificates.
(4) Financial statement. This is a long form that describes your income, money, house, debts, and other property. These are things that need to be divided through the divorce. You must sign this form in front of a notary public. You need to list on the financial statement things like:
- Your income.
- Where you work.
- Your furniture.
- Your tools or jewelry.
- Valuable things that you own.
- Your checking accounts.
- Your loans.
- Your bills.
- Your life insurance.
- Your credit card balances.
- Your children.
- Your children’s health insurance.
- Information related to asking for alimony from your husband or wife, if you are asking for alimony.
(5) Fee waiver affidavit. This form is three pages. You have to ask for this form. You only fill out this form if you cannot afford to pay for the divorce fees and court fees. You have to list your income and expenses. You must sign this form in front of a notary public. You turn in this form at the time you file for divorce. If you are eligible and the clerk approves the waiver:
- You won’t have to pay to file for divorce.
- You won’t have to pay to have the sheriff’s office serve your husband or wife with the divorce papers.
- You won’t have to pay to take parent education class.
- You won’t have to pay for court costs.
(6) Child support income withholding form. This form is for the Bureau for Child Support Enforcement. It gives them information about you and your husband or wife and your children. It will be sent to the Bureau for Child Support Enforcement. The Bureau for Child Support Enforcement keeps track of child support owed. They also help collect child support.
(7) Parent education registration form. This is required in the divorce for people who have children. This form is to schedule your class. You have to go to one parent education class. The class is required before your first hearing in the divorce case. The parent education class teaches parents how to best help their children deal with the divorce. It also teaches parents how the divorce can affect the children. A judge might not let you have time with your children if you don’t go to your class. You need to go to it before the first hearing.
(8) Parenting plan. This form details your plan for your children. It says when and where your children will spend their time after the divorce. The parenting plan:
- (1) Explains how your children’s lives will be handled,
- (2) Who will be the children’s primary care giver,
- (3) How you will make decisions about the children’s lives.
You and your husband or wife can actually submit one parenting plan together, if you agree. If you don’t agree, you can each submit one plan. The proposed parenting plan is what you believe is in your children’s best interests.
- Divorce petition: Submit one original petition and one copy, to be served upon your husband or wife.
- Civil Case Information Statement: Submit one original and two copies to submit.
- Vital Statistics Form: Submit one.
- Fee Waiver Affidavit: Submit one.
- Financial Statement: Submit one original, plus one copy, to be served upon your husband or wife.
- Child Support Income Withholding Form: Submit one.
- Parent Education Registration Form: Submit one.
- Proposed parenting plan: Submit one original, plus one copy to be served upon your spouse.
Of course you will need to keep one copy for yourself of everything you file.
Keywords: divorce family court child custody child support