Tired of fighting? Most spouses contemplating divorce are, and you are not alone in wanting an easy and painless solution. If you and your spouse can agree to come to terms about your divorce, filing for an uncontested divorce can make the process quick and inexpensive.
This article will explain the nature of an uncontested divorce and West Virginia uncontested divorce law. If you still have any questions after reading this article or would like to file for an uncontested divorce, you should consult with an experienced divorce attorney.
Uncontested Divorce in West Virginia Defined
Uncontested divorce simply means that the spouses do not want to argue about whether the divorce should occur or on what terms the divorce should occur. Unlike many other states, West Virginia does not provide an explicit mechanism for filing an uncontested divorce, but where the spouses agree on the terms of the divorce prior to making a divorce filing, West Virginia courts will use a speedier and more cost-effective resolution process. In West Virginia, uncontested divorce filings are almost always accompanies by a legal separation agreement.
Requirements for Seeking a West Virginia Uncontested Divorce
To file for uncontested divorce in West Virginia, the filing spouses must meet certain requirements. Any questions about these requirements can be answered by an experienced West Virginia divorce attorney or family lawyer.
The first requirement is the West Virginia residency requirement. If the marriage was entered into in the state of West Virginia, fortunately, all that needs to be shown is that at least one the spouses are “domiciled” within the state of West Virginia. Domicile simply means that the spouse maintains his or her permanent residence within the state of West Virginia and has no immediate plans to move away. If the marriage was not entered into in the state of West Virginia, however, at least one of the spouses must have resided within the state of West Virginia for at least one year.
The second requirement that must be met are the grounds for the divorce. West Virginia has eight at-fault grounds for divorce including acts such as adultery, child abuse, and domestic violence; however, most uncontested divorce filings will want to avoid at-fault divorce filings. At-fault grounds must be proved in court with corroborating evidence, and many spouses will not want to admit to being at fault.
Instead, spouses seeking a West Virginia uncontested divorce should file under West Virginia’s no-fault ground for “irreconcilable differences.” Parties filing for divorce under West Virginia’s irreconcilable differences provision simply must admit in court that the marriage is not working.
The third requirement for filing an uncontested divorce proceeding in West Virginia is the signing and execution of a separation agreement prior to commencing divorce proceedings. A separation agreement, or property settlement agreement, is simply an agreement between spouses about the terms of the divorce. If the spouses present a separation agreement or property settlement agreement, all a judge must do is approve its terms. If the spouses do not present an agreement, the judge must examine evidence such as financial records to make rulings on issues like alimony. Coming prepared with a separation agreement simply makes the process run smoothly.
On Spousal Support and Separation Agreements
When spouses sit down to discuss the terms of their divorce, it is often beneficial for the spouses to sign a legal separation agreement. A separation agreement is NOT a formal divorce. A separation agreement is a contract between spouses that lays out their agreement and terms of their separation. A fully completed separation agreement can serve as the basis for an uncontested divorce, and may be helpful in filling out the required divorce paperwork. Prior to signing any separation agreement (or any contract with your spouse), you should have an experienced attorney review the terms of the contract for you.
In West Virginia, a separation agreement can resolve all possible issues relating to a divorce. A complete separation agreement should address all of the following issues:
- Spousal support;
- Division of all property including real estate, personal property, and pets;
- Assignment of any remaining assets and debts incurred by the spouses during the marriage; and
- Child related issues, if they exist (child support payment scheduling, visitation, custody)
More information on separation agreements can be found in Chapter 48, Article 6 of the West Virginia Code.1
The Process for Filing for an Uncontested Divorce in West Virginia
In West Virginia, family courts and county circuit courts have split jurisdiction over divorce matters. For the purposes of an uncontested divorce filing, however, you only need to concern yourself with family court. Each West Virginia county has a family court that hears divorce matters. You should plan to file your divorce paperwork in the family court in the county in which you reside.
Once you have determined which court is the proper court for filing, the general flow of the process is follows:
- This step is optional, but you should begin by consulting a family law attorney who can either answer any questions that you may have, or who can help you file your divorce paperwork properly;
- Consult with your spouse about a separation and property settlement agreement, and agree on the terms of the divorce;
- Fill out the required divorce forms. All of the relevant forms are available on the West Virginia Judiciary’s website, but you should check with your local courthouse to make sure that you filled out all of the required paperwork correctly.2
- File all of the appropriate forms and your separation agreement in the West Virginia family court located in the county in which you reside. Then serve your spouse with divorce papers or hire a professional process server to conduct service for you.
- Within 20 days, the Family Court in which you filed will set a hearing date before a judge. At the hearing, the judge will either approve, modify, or reject your divorce filing and separation agreement.
- At the conclusion of the hearing, the judge will ask the spouses to submit a decree of divorce, which will finalize your divorce after the judge signs it.
Note: This article is not legal advice. Please consult a lawyer for your specific situation.
- W. Va. Code § 48.6.