West Virginia Uncontested Divorce
This information is an overview of the uncontested West Virginia divorce filing process and a summary of the divorce papers that are typically filed with the family law or domestic relations clerk. This overview is not intended to be an exact step-by-step guide for those "do it yourself divorce" filers, due to the fact that many cases are unique and the overview presented here is often not the only method of obtaining an uncontested divorce in West Virginia.
To file for a divorce in West Virginia, one of the spouses must have been a resident of the state for at least one year immediately prior to the filing. When the couple were married in West Virginia, there is no time limit to the residency requirement. A divorce is filed in the county 1) where the couple last lived, 2) where the Defendant lives if he or she is a resident; 3) where the Plaintiff lives, if the Defendant is a nonresident.
Grounds for divorce are No-Fault, 1) "[i]rreconcilable differences have arisen between the spouses" or 2) they have lived "separate and apart without cohabitation for a year."
Fault grounds are 1) adultery, 2) abandonment for six months, 3) alcoholism and/or drug addiction, 4) confinement for incurable insanity for three years, 5) physical abuse or reasonable apprehension of physical abuse of a spouse or child, 6) conviction of a felony, 7) cruel and inhuman treatment, including false accusations of adultery or homosexuality, 8) willful neglect of a spouse or child, 9) habitual intemperance.
Actions are filed in the Circuit Court of the county. The spouse filing the action is the Petitioner; the spouse responding is the Respondent.
Legal separations are permitted under the same grounds as divorce when one of the spouse has been a resident of West Virginia for a year prior to the filing.
West Virginia permits a simplified divorce. In this routine, one spouse files a verified complaint on grounds of irreconcilable differences and the other responds with a verified answer admitting the allegation. No witnesses are required or any proof of irreconcilable differences.
All divorce papers are filed with the clerk of the court, who assigns the case a docket number. In all divorce actions, the following forms must be filed with the clerk of the circuit court in all cases:
> The Petition for Divorce (SCA-FC-101), which tells the court the reasons the divorce should be granted and details how the Petitioner wants to handle such matters as spousal support, custody of children and their support and division of property;
> Civil Case Information Statement for Domestic Relations (SCA-FC-103), which gives the court information about parties;
> Financial Statement (SCA-FC-106), which each spouse completes and which profiles the assets and liabilities of each spouse as well as their marital property;
> The Vital Statistics Form (SCA-FC-104), which is used to keep current the state’s records of births, deaths, marriage and divorces.
In divorces involving minor children or spousal support, the Petitioner must also file:
> A Bureau for Child Support Enforcement Application and Income Withholding Form (SCA-FC-113), which is used a) if minor children are involved, or b) if spousal support is requested by either party. The Respondent also files this form with his or her Answer to the Petition.
> A Proposed Parenting Plan, which outlines the proposed terms and conditions of custody and visitation (and is subject to modification during the divorce negotiations);
> A Parent Education Notice, which explains that both parents must complete a Parent Education Class.
After filing in the clerk’s office, the divorce papers must be properly served. The Respondent must be served with a copy of the Petition, the Summons as well as the other forms filed with the court. Here are the ways these papers are served:
> Personal service by the Sheriff’s Department, which gives the Respondent 20 days from the date of service of process to serve the Petitioner with an Answer.
> Personal service by a private process server, which may be done by any person who is 18 years or older other than the Petitioner, and also gives the Respondent 20 days to file an answer. The person who delivers the divorce paper must file an Affidavit of Service, certifying delivery.
> Service by certified mail, which is arranged by the clerk’s office. The divorce papers are mailed to the Respondent certified, restricted delivery, return recipient requested. The signed recipient -- the green card -- becomes part of the record of the case.
> Service by Publication, which can be used only in two situations: a) when the Respondent’s location is unknown and 2) when the Respondent lives out of state and will not accept service by certified mail. The Petitioner must make a diligent search for the missing spouse, and look for him or her in all reasonable locations. To use it, the Petitioner must complete an Affidavit of Nonresidency, file it with the Deputy Clerk, who, in turn, completes an Order for Publication (SCA-FC-111). The Order of Publication permits the Petitioner to publish the notice in a newspaper, once a week for two weeks. After publication, the Petitioner completes an Affidavit of Publication. This certifies that the publication happened. This method gives the Respondent 30 days to file an Answer.
Even if 1) and 2) apply, Service by Publication may not be used when the Petitioner’s sole ground for the divorce is irreconcilable differences.
A Respondent may sign an Acceptance of Service (SCA-FC-105) when he or she voluntarily accepts the divorce papers. This step moves the divorce along a simplified track.
The Respondent may also file a Soldiers’ and Sailors’ Relief Act Waiver if he or she is in the military and agrees to waive the protections from civil litigation given by the Servicemembers Civil Relief Act.
In West Virginia, the Petition for Divorce lists irreconcilable differences as a ground in all actions, and this condition stands unless the Petitioner removes it. The most common grounds for divorces are:
> Irreconcilable differences, in which the Respondent files an Answer admitted irreconcilable differences. In this routine, the Petitioner or the Respondent must attend a final hearing.
> One year separation, which also requires that the Petitioner or the Respondent must attend a final hearing. Going the one-year separation route also requires a witness at the final hearing.
A Respondent may file an Answer (SCA-FC-108) in the event that he or she disputs allegations made in the petition.
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