View the Divorce Tookit for more information about divorce.
Why do I need a "ground"?
A court may grant a divorce only for specific stated reasons. These are called "grounds." They are listed in the West Virginia statutes. You have to tell the court which reason or "ground" you can prove. You must state your grounds in your divorce petition. You only need to prove one ground to get your divorce. But it may be safer to state more than one ground if more than one exists. This could give you more options.
How do I choose a ground?
This is easy if both you and your husband or wife agree to get divorced. This is the 'no fault' option of stating "Irreconcilable Differences" as the ground for divorce. But both parties must agree on this. If one party does not agree to the Irreconcilable Differences ground, then the divorce cannot be granted on this ground.
There are eight other grounds listed in the law. If you can prove one of those other grounds are true, then you can get a divorce even if your spouse does not agree. But for any of these eight grounds, you have to give more proof than your own statements. For example, you may provide someone else’s testimony that "corroborates" what you are saying.
You only need one ground to get divorced. You should name at least two or three grounds in your petition. This is a back-up. One you have listed might not work in your case.
Why should I first choose the ground of irreconcilable differences?
The reason of “irreconcilable differences” is used most often. If the other side agrees in writing, then you don’t have to prove anything else to get the divorce. You should list this as your first ground. You are telling the judge that you and your spouse don’t get along. You’re not going to ever get along. You both want a divorce. But the other side has to file a written response agreeing that a divorce is what both sides want.
What do I need for Irreconcilable Differences?
There is a catch to using this Irreconcilable Differences ground. You cannot use it if your husband or wife won’t agree to it in writing. Each of you separately must sign a statement saying you have “Irreconcilable Differences.” This happens first in your divorce petition, and then in your spouse's Answer to the divorce petition. You both must state that irreconcilable differences have arisen between you. This means that you agree that neither of you were at fault but both of you want the marriage to end.
What if my husband or wife doesn’t agree to irreconcilable differences?
If that happens, you will have to list and prove another reason. These are the fault-based grounds. The other grounds say what the other person did wrong in the marriage. You have to prove what they did in order for the judge to OK the break-up of the marriage.
The judge might use the reason to decide whether there should be alimony (spousal support). Also, the judge may consider the reason to decide whether one parent should have limits on time with the children. Sometimes, either the husband or wife will be angry at their husband or wife. They will then try to hurt the other spouse’s feelings. They will wrongfully accuse their husband or wife of one of the fault-based grounds. If this is the reason, the Family Court Judge will probably be able to see through it. If the judge is unable to see that one person is making false accusations to hurt the other person, it will not help the divorce process. It can actually hurt everyone involved.
These other grounds require extra proof or testimony of another person. The other person has to be someone besides the husband or wife. That proof or testimony is used to show the judge that those other reasons for the divorce do exist. Then the judge can say yes to your getting a divorce.
What grounds require extra proof?
The following are the grounds that require extra proof:
- one-year separation,
- cruel or inhuman treatment,
- conviction of a felony crime,
- permanent and incurable insanity,
- habitual addition to alcohol or drugs,
- desertion, and
- abuse or neglect of a child of the marriage or of a stepchild.
What are the grounds for divorce, and what do they mean?
(1) Irreconcilable differences. Ask for the divorce on this ground first. Both the husband and wife have to agree that there are irreconcilable differences. Both of you must sign a notarized statement that you have irreconcilable differences. This means you do not get along and you are not going to get along. The person who files for divorce states this in his or her petition. The husband or wife can write this in his or her answer. You should list a second, back-up ground in case this doesn’t work out.
(2) Voluntary, one-year separation. The judge can say yes to the divorce if the husband and wife have lived in separate places. This separation must last for an entire year. This ground won’t work if you have gotten back together at any time during the year. And you must have a witness who can testify to back this up. You are not saying the other person is at fault for the divorce.
(3) Cruel or inhuman treatment. The judge can grant the divorce for this reason if the husband or wife has been cruel. You do not need to prove physical harm for this ground. Cruel or inhuman treatment can include:
- Emotional or mental abuse.
- Physical or sexual abuse.
- Your husband or wife accusing you of adultery when it’s not true.
- Your husband or wife accusing you of being homosexual when it’s not true.
(4) Adultery. Adultery happens when the husband or wife has had sex with someone else. This is before you separated. The person who wants the divorce has to prove the adultery. This proof has to be “clear and convincing evidence.” Then, a judge can grant the divorce on this ground. If the adultery happens after the husband and wife are separated, and before the divorce, it does not count.
(5) Conviction of a felony crime. The crime has to be a felony. A judge can grant the divorce if you or your spouse were sentenced for a crime. The crime can be committed in any state. The conviction has to be final.
(6) Permanent and incurable insanity. You need to prove several things to the judge in order for the judge to grant the divorce using this ground:
- Your spouse is confined to a mental hospital or similar place, and
- Your spouse has been there for at least three years in a row, and
- A medical official testifies that the spouse’s insanity cannot be cured.
(7) Habitual drunkenness or drug addiction. To get the judge to grant the divorce on this ground, you have to prove habitual drunkenness. You could also prove that your husband or wife is addicted to narcotic or dangerous drugs. It had to happen during the marriage.
(8) Desertion. This is another word for abandonment. The desertion has to last for at least six months immediately before filing the divorce. Again, a witness other than the husband or wife needs to testify to back this up.
(9) Abuse or neglect of a child. The family court judge needs “clear and convincing evidence.” Abuse of the child means any physical, mental, or sexual abuse. The child can be the husband and wife’s child. The child could be just the wife’s child, or just the husband’s child. Neglect means that the husband or wife didn’t give the child something he or she needed. This could be some type of care that parents usually give. It could be support, or education, or medical, surgical, or other necessary care. There must be actual evidence of this. Your statement to the judge is almost always not going to be enough.
Does a fault-based ground always work?
There are several possible problems that may cause a fault ground to be unsuccessful.
A fault-based ground will not work if another person, besides the person asking for the divorce, does not testify and support the truth of the claimed ground.
A fault-based ground will not work if you do not have enough evidence or proof to show that your spouse in fact was at fault.
A fault-based ground may not work if you “condoned” what your spouse did wrong after you learned about it. This means you kept living as Husband and Wife even after you found out about your spouse's wrongful act.
An example of this could be that your spouse committed adultery. You found out. But you continued to live together. You continued to have sex with your spouse after you found out. This is when you “condoned” the adultery. In other words, you acted like accepted it for the sake of trying to make the marriage work.
But the "condoning" lasts only as long as your spouse refrains from doing that bad conduct again. Suppose your spouse does the same wrongful thing again, but this time you do NOT continue living together. The previous "condoning" would no longer be a bar to a divorce on that ground.
View the Divorce Tookit for more information about divorce.