Just when you thought you had seen it all, a divorce gets thrown your way, and it's looking ugly. If it's your first time down this road, it'll suck to be you. Don't despair though. We promise that it gets better. Really. Take a deep breath. If nothing else, we'll give you some answers and ease your anxiety. If you're having a tough time coping, perhaps you should view this page first.

Child Support

What child support is all about in West Virginia, and what it is not. West Virginia divorce laws dictate the procedures and processes.

The basic child support obligation is determined by a formula, or table. It is based on the "Income Shares Model", which means it is calculated by estimating how much financial support would have been available had the parents not divorced. That estimated amount is divided (or apportioned) to each parent as a percentage of each parent's income. Simply stated, the parent with the higher income will be required to contribute a higher dollar amount per month.

The courts have the latitude to make rulings outside the guidelines if they see fit, and will provide a written explanation if it rules in such a manner.

Common misperceptions:

If there are multiple children being supported and one child emancipates, the amount of child support due gets reduced proportionally. Actually, the amount due remains the same until the youngest reaches majority or emancipation unless the decree specifically states an amount "per child" or for "each child", OR a request for modification is entered.

The payer of child support gets relieved of the obligation if he or she is incarcerated (jailed). No way, Jose, the obligation continues to be due regardless of one's location. It will have to be made up and paid.

Parental Rights get terminated so therefore financial child support obligations get terminated too. Financial child support obligations continue to be required unless a court orders that financial "responsibilities" are also terminated.

When your child reaches 18 years of age, child support is no longer required. This would be true only if the decree specifically states that. Most court orders instruct that child support be maintained until the child reaches 18 years old or graduates from High School (or vocational school), whichever is later.

A child support order states that income withholding cannot be done so there is no remedy to collect if the support is not volunteered. West Virginia has a number of options to induce the obligor to pay, which include contempt, liens, writs, suggestions, license suspension, tax offset, criminal non-support, credit bureau reporting, etc.

The child has moved in with the spouse that was paying the child support so therefore the money is no longer owed. Not true. The obligation is still due the original custodial parent until the court changes the decree, and a change to the decree requires a formal request to that court.

If changes to the support order need to be made, but there is no rush because things can be done retroactively. Not true. There is a limit on how far back a court can go in making an adjustment or rulings. It's best to make any changes as soon as possible.

The custodial parent doesn't allow the non-custodial parent the parenting time decreed in the original order, so therefore less or no money needs to be paid to the custodial parent. No, support is still owed regardless of how much time the non-custodial parent gets with the children. It unfairly forces the non-custodial parent to bring a court action against the ex.

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Child Custody

The primary objective in West Virginia is to serve the child's best interests. The issue of child custody is no exception. You and your spouse do have the choice to develop a parenting plan that includes custody, visitation and support. Should you be unsuccessful in putting together a separation agreement, the court will make rulings for child custody based on its findings around:

•Stability of the child;
•Parental planning and agreement about the child's custodial arrangements and  upbringing;
•Continuity of existing parent-child attachments;
•Meaningful contact between a child and each parent;
•Care taking relationships by adults who love the child, know how to provide for  the child's needs, and who place a high priority on doing so;
•Security from exposure to physical or emotional harm; and
•Expeditious, predictable decision-making and avoidance of prolonged uncertainty  respecting arrangements for the child's care and control.

West Virginia's secondary objective is to achieve fairness between the parents.

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Visitation/Co-Parenting

The parties to a dissolution (divorce) or separation have the opportunity to agree to a visitation schedule which includes the details of the non-custodial parent's time with the children. If the parties cannot agree, the court will impose a visitation schedule that will likely include: alternate weekend visitation (3-day weekends included), mid-week visitation, sharing of the children during periods of school recess -winter, spring and summer, New Year's Eve, Easter, Rosh Hashanah and Yom Kippur, Thanksgiving, and Christmas with one parent or the other in alternate years, Father's Day with Father, Mother's Day with Mother, alternate years on the children's birthdays, and open communication by phone and computer.

You may wish to get very detailed in the visitation schedule about what is acceptable and what is not. Consider the following: How is the decreed custody defined? What are the rights and responsibilities? Who has legal custody? Which holiday does the child spend with you? What time and where may the other parent pick the child up? What time should the child be returned home? What is the procedure to follow if either of you are running late and won't be there on time? How much notice should you be given if they are planning a vacation? How far away may the other spouse move? What about future partners? Should those partners stay overnight in front of the children?

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Alimony/ Maintenance/ Spousal Support

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Grounds For Divorce

The simplest way out of a marriage in West Virginia is by one party alleging that irreconcilable differences exist between the parties and an answer is filed admitting that allegation. Other grounds, which must be documented and proven, include:

•A divorce may be ordered when the parties have lived separate and apart in  separate places of abode without any cohabitation and without interruption for  one year.
•A divorce may be ordered for cruel or inhuman treatment by either party against  the other.
•Adultery. A divorce may be ordered for adultery. Adultery is the voluntary  sexual intercourse of a married man or woman with a person other than the  offender's wife or husband.
•Conviction of crime.
•Permanent and incurable insanity.
•Habitual drunkenness or drug addiction.
•A divorce may be ordered for abuse or neglect of a child of the parties or of one  of the parties, "abuse" meaning any physical or mental injury inflicted on such  child including, but not limited to, sexual molestation.

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Marriage Annulment
Marital Annulment

A West Virginia marriage annulment is a decree declaring an already null marriage void. After you file a petition in the court, the marriage annulment (sometimes called a marital annulment) in West Virginia takes about 60 days or more to process. One must file a petition in court, requesting an annulment, and be prepared to prove at least one ground for annulment. West Virginia grounds for annulment include: Fraud- When a person has misrepresented him or herself or gained your consent for marriage by fraud, you can get your marriage annulled under West Virginia annulment laws, Incest- marrying someone too closely related is a grounds for annulment, Mental Illness- if your spouse is mentally ill and the illness is incurable, the court may grant a West Virginia annulment, and Bigamy- Having more than one spouse.

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Marriage Counseling/
Mediation

In general terms, courts in West Virginia will issue orders requiring the parents to attend parent education classes (counseling) unless the court determines that attendance is not appropriate or necessary based on the conduct or circumstances of the parties. In the end, parenting classes are helpful. You will learn how divorce affects children and what behaviors positively or negatively impact your child. Unless you have a degree in child psychology, attend with an open mind. You'll learn new things. Mediation can be ordered if the court believes it can be productive.

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Legal Separation/ Marital Separation

A Property settlement or Separation Agreement means a written agreement between a husband and wife whereby they agree to live separate and apart from each other. The Legal Separation process is the same for strong>separation as it is for divorce. Issues that are likely resolved in a separation agreement include: 1. Settle the property rights of the parties. 2. Provide for child support 3. Provide for the allocation of custodial responsibility and the determination of decision-making responsibility for the children of the parties. 4. Provide for the payment or waiver of spousal support by either party. 5. Otherwise settle and compromise issues arising from the marital rights and obligations of the parties.

Legal separation (also called a marital separation) is sometimes pursued when one of the parties wants to stay married for religious reasons, wants the advantage of deductibility of spousal support payments for income tax reasons, wants to maintain various insurance coverage's, or do not want to wait the state statutory waiting period for termination of marital status.

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Waiting Period

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Grandparents Rights

Federal law allows grandparents the right to the application, petition or motion for visitation of grandchildren. It is advisable to have this request become a part of the divorce decree as it may well reduce or eliminate some or all expense if otherwise applied for after the divorce becomes final. Have your son or daughter discuss with their attorney how this might be incorporated into the decree.

State Fact Sheets for Grandparents and Other Relatives Raising Children

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Divorce Settlement

West Virginia divorce statutes allow that this state is an equitable distribution state with respect to marital property of marriages. You will be afforded the opportunity, with your spouse, to put together a divorce settlement of assets and liabilities. Should you be unable to fashion a divorce settlement, the court will impose its own settlement.

Pleadings from either side can result in specific assets being awarded to a particular spouse. The court will determine which assets were a result of the marriage and which assets belong solely to one spouse, and will attempt to allocate the marital assets in a manner consistent with an equitable division, although equitable won't necessarily mean equal.

The court has some latitude when determining what date they will assign for purposes of valuation and distribution. It may become important for you and your attorney to argue for one date versus another with respect to values.

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Residency Requirements

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