West Virginia family law cases are emotionally draining and can have long lasting effects on the rest of a person’s life. Issues like divorce, child custody, child support, and father’s rights are just some of the common matters that individuals in West Virginia can be involved with. The first step is to gain an understanding of the law and how it will apply to your personal situation. The next step is determine whether you can do it yourself or not. For those who want the comfort of knowing that a trained expert is on your side, we can connect you – for free – to a West Virginia family law expert that can help.
West Virginia Divorce
West Virginia divorce laws, found at West Virginia Code chapter 48 – Domestic Relations, (read them in depth here) allow for both no-fault and fault divorces. The differences are striking and the vast majority of people in West Virginia file for a no-fault divorce. Under a no-fault divorce, a divorce petition can be filed based on either the fact that the spouses have lived separate and apart and have not cohabitated for at least one year, or on the basis of irreconcilable differences between the spouses. Irreconcilable differences essentially means that the marriage has broken down and it is not able to be repaired. This saves time, money, and heartache because the bad behavior of one spouse does not need be brought into the divorce case.
A fault divorce petition could be approved on the grounds of habitual drunkenness, felony conviction, adultery, incurable and permanent insanity, child abuse or neglect, or spousal desertion of at least six months. All of these grounds require strict proof and evidence which most likely will require testimony in court and in depositions. Fault based divorces oftentimes lead to full-blown trial which can take years and cost a lot of money. This is why people opt for no-fault divorces even when their emotions tell them to go after their spouse for fault grounds. Child custody and child support are issues that need to be tackled as well and emotions can run high. Yet another reason why no-fault divorces can help save time and money and not completely destroy any chance of a workable relationship between the parents for the kids.
Residency Rules
West Virginia has specific residency requirements for parties to file for divorce that are different than most other states in the U.S. West Virginia Code Section 48-5-105 states that at least one of the spouses must be a resident of the state for at least one year prior to filing for the divorce if the marriage took place outside of the State of West Virginia. However, if the marriage took place in West Virginia, there is now residency requirement for filing for divorce.
Property Division
Divorce means that property will need to be divided one the marriage has ended. West Virginia family law statutes, specifically West Virginia Code 48-7-101, dictates that the state follows the rule of an “equitable division of property.” For the most part, the courts apply the rule that marital property should be divided evenly between the parties. However, with the many exceptions to this rule in the statute, this does not mean, in fact, equal. Depending on the facts of each case and under many circumstances, one spouse will be awarded a larger share of the marital property. This can be based on earning capacity between the spouses, disability, educational advancements of one spouse over the other, or a variety of other factors. Generally speaking, property acquired prior to the marriage will remain that person’s sole property with exceptions.
Alimony
Alimony is another issue when it comes to dividing property and money in a West Virginia divorce. West Virginia Statute 48-8-101 dictates whether a spouse will be awarded alimony and if so, how much. Although most cases do not involve alimony (also called spousal support), it can come into play for similar reasons in dividing property: earning capacity of either spouse, educational pursuit, disability of one spouse, or many other reasons. A common way that people handle spousal support in West Virginia is to waive alimony in exchange for a bigger piece of the pie, say, like allowing one spouse to keep the house that is virtually paid off. Either way, alimony can cost tens of thousands of dollars per year, so attempting to figure it out on your own is a dangerous proposition that could cost you dearly.
West Virginia Child Support
Regardless of whether a child’s parents have married, West Virginia child support laws require both parents to take responsibility for the support and care of the child. This means that a child support award will be based on the combined income of the parents, and also on the number of children that will be covered by the support award. These two factors are determined to create a reasonable and fair child support award. The calculation for determining child support is in-depth and requires filling out the child support worksheets here available by the West Virginia Legislature. On top of child support, parents can be forced to pay for childcare, health costs, insurance fees, and payments toward the child’s educational needs.
West Virginia Child Custody
West Virginia Code 48-9-101 is the law that dictates how judges will make West Virginia child custody determinations. West Virginia parents can create their own written parenting agreement that can be submitted to and approved by the court if it is found that the agreement was voluntarily entered into and not harmful to the child. West Virginia courts will use a “best interests of the child” standard for determine a custody award if the parties do not agree on a parenting plan. This means that the court will take into account various factors such as the relationship between the parents and the child, the relationship between the parents, the stability of each parent, the health and physical well-being of both parents, and whether both parents have what appears to be a loving stable environment for the child.
A judge will, after evaluating dozens of factors involved in the case, make a decision on granting joint custody to the parties or sole custody to one party. Either way, one parent will be designated the residential or custodial parent, meaning that the child lives with him or her the majority of the time and the other the nonresidential or noncustodial parent, meaning that parent has visitation time with the child. The drafting of a parenting plan that details visitation, holiday schedules, and sets out time for each parents to take vacation with their child is essential to keeping the best interests of the child in order and also to avoid disagreements between the spouses.
Child custody cases can take place in both divorces and in instances where parties were never married (called paternity cases). Paternity literally means establishing a legal father. When parents are married, the husband is the presumed father, but when parents are unmarried, paternity must first be established before the father can assert any rights as to custody or visitation. Paternity proceedings are governed by West Virginia Code 48-24-101.
West Virginia Father’s Rights
Family law conflicts can quickly spiral out of control when West Virginia father’s rights issues come into play. For decades now, father’s rights lawyers and other men’s rights activists have been fighting to show that men can be just as good of a primary caregiver as a woman. With many families having both parents employed full-time, it is essential that men establish and cement themselves as the person that tucks the kids into bed at night, bathes the children, picks them up at the bus stop and other normal every day essentials for a child. It is also important to avoid the many father’s rights pitfalls that destroy many men’s family law cases.
What Should You Do Now?
Well, you shouldn’t just do nothing. You’ve already come this far to gaining an understanding of the issues that you may be facing or are currently facing. Understanding the laws and how they apply to your situation is an important step but definitely not the only step. Now is probably a good idea to reach out and speak with a professional – and expert – and see what they have to say about your case. We can connect you, at no charge, to a local West Virginia family law expert that can let you know what your rights are and how to fight for them. Don’t sit back and relax just yet, there’s work to do for you and your family – get started now.