West Virginia divorce laws
Child
Support
What child support is all about in
West Virginia, and what it is not. West Virginia divorce laws
dictate
the procedure.
 The
basic child support obligation is determined
by a formula, or table in West Virginia's
divorce laws. 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. No, 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.
A word to the wise: If during the term of
paying and receiving child support circumstances
change where a lesser amount is agreed to
for any length of time, it is strongly advised
that it be done in writing. Allowing a spouse
to pay less for a period of time due to illness
or unemployment doesn't change the original
obligation amount. If it is agreed that a
reduced amount be paid, it should be in writing
if the shortfall is forgiven or must be re-paid
at a later date. West Virginia divorce laws
are specific on this matter.
To access West Virginia's web site devoted to child support and families, click on the link here.
| Divorce Myth: Divorce may cause problems for many of the children who are affected by it, but by and large these problems are not long lasting and the children recover relatively quickly. Reality: Divorce increases the risk of interpersonal problems in children. There is evidence, both from small qualitative studies and from large-scale, long-term empirical studies, that many of these problems are long lasting. In fact, they may even become worse in adulthood. |
Residency 
 If
the marriage
took
place
in this
state,
West
Virginia
divorce
laws
specify
that
a divorce
may be
filed
in this
state
if one of the
parties
is a
resident
at the
time
the action
is begun. If the
marriage
was not
entered
into within
this
state,
one of
the parties
must have been
a legal
resident
of the
state
at the
time
the cause of action arose or became a resident at least one year
prior to the beginning of the process. If adultery is claimed as
a cause,
one of
the parties must meet residency requirements (one year)
before
the action can commence,
regardless
of whether
the adultery occurred in West Virginia
or not.
Child
Custody
The primary objective in West Virginia is to serve the child's best interests. The court will make rulings 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.
A stated secondary objective is to achieve fairness between the parents.
Local courts, guided by West Virginia divorce
statutes, endeavor to allocate the amount
of time a child spends with each parent in
a fashion similar to what existed prior to
the divorce action if that allocation was
in the best interest of the children. This
will include married couples as well as unmarried. The
court will attempt to make an order that
will preserve the relationships with each
parent unless conditions warrant an alteration.
The goals of such orders are:
- To permit the child to have a relationship with each parent who has performed a reasonable share of parenting functions;
- To accommodate the firm and reasonable preferences of a child who is fourteen years of age or older, and with regard to a child under fourteen years of age, but sufficiently matured that he or she can intelligently express a voluntary preference for one parent, to give that preference such weight as circumstances warrant;
- To keep siblings together when the court finds that doing so is necessary to their welfare;
- To protect the child's welfare when, under an otherwise appropriate allocation, the child would be harmed because of a gross disparity in the quality of the emotional attachments between each parent and the child or in each parent's demonstrated ability or availability to meet a child's needs;
| Divorce Myth: Having a child together will help a couple to improve their marital satisfaction and prevent a divorce. Reality: Many studies have shown that the most stressful time in a marriage is after the first child is born. Couples who have a child together have a slightly decreased risk of divorce compared to couples without children, but the decreased risk is far less than it used to be when parents with marital problems were more likely to stay together “for the sake of the children”. |
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;
Mediation
In general terms, courts in West Virginia will issue orders requiring the parents to attend parent education classes 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, embrace them.
Alimony
The hotly contested issue of alimony (or maintenance).
West Virginia divorce statutes permit courts
to examine who contributed what to the
marriage, and will determine if one spouse
needs financial assistance to be able to
move on in life. Spouses that stayed home
to raise children while the other worked
outside the home generally are credited with
an equal contribution to the marriage, home
and assets of the marriage. Support can be
lump sum, temporary, periodic or permanent.
In most cases when the recipient marries
or dies, the alimony terminates.
Waiting
Period
Other than Residency
requirements, there are no waiting periods.
| Divorce Myth: Following divorce, the woman’s standard of living plummets by seventy three percent while that of the man’s improves by forty two percent. Reality: This dramatic inequity, one of the most widely publicized statistics from the social sciences, was later found to be based on a faulty calculation. A reanalysis of the data determined that the woman’s loss was twenty seven percent while the man’s gain was ten percent. Irrespective of the magnitude of the differences, the gender gap is real and seems not to have narrowed much in recent decades. |
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.
Dividing
Assets
 West
Virginia divorce
statutes allow
that this state
is
an equitable distribution
state with respect
to marital property
of marriages.
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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