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West Virginia Marital Settlement (Divorce) Agreement

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West Virginia Marital Settlement (Divorce) Agreement

Updated February 26, 2024

A West Virginia marital settlement agreement is a document used by divorcing spouses to relay to the court that they are in agreement regarding all divorce terms. In West Virginia, the courts will adhere to the settlement agreement’s requests as they apply to the division of assets and debt between parties. Without the presence of such a contract, the court will be forced to distribute marital property as they deem just and fair. A completed marital settlement agreement (or separation agreement) can also include child custody, child support, and alimony.

Table of Contents

Divorce Laws

Statutes – Chapter 48 (Domestic Relations)

Alimony (Ch. 48, Article 8 (Spousal Support)) – In cases where there is no settlement agreement in place, the court may award either party alimony, also known as spousal support, in consideration of the following determining factors as defined in §48-6-301:

  • Length of the marriage;
  • Duration of cohabitation during the marriage;
  • Each party’s income;
  • The income potential of each party;
  • The distribution of marital property;
  • Age and condition of both parties;
  • Educational qualifications;
  • Whether either party has sacrificed income-generating opportunities during the marriage;
  • Standard of living while married;
  • The likelihood that the spouse seeking alimony will increase their income-earning abilities within a reasonable amount of time;
  • The financial support of either party to contribute to the earning capacity of the other;
  • Cost of the education of the receiving spouse;
  • Cost of educating minor children;
  • Cost of health care to receiving spouse and minor children;
  • Tax consequences;
  • The duties of the custodian of minor children affecting their ability to generate income;
  • Each party’s financial needs;
  • The legal responsibilities of each party;
  • The mental or physical disabilities of any minor or adult child; and
  • Any other factor as deemed necessary by the court.

Child Support (Ch.48, Article 11 (Support of Children)) – When calculating the amount of support that either parent must provide their child, the court will look to the West Virginia table of monthly basic child support obligations (§ 48-13-301). They may choose to deviate from the table in consideration of the following possible grounds to disregard the formula:

  • The special needs of a minor or adult child who is physically or mentally disabled;
  • Educational needs of the child;
  • The family has more than six (6) minor children;
  • Visitation costs associated with traveling long distances;
  • A minor child resides with a third (3rd) party;
  • Obliger owes support to another child(ren);
  • The reliability of the obliger’s current income; and
  • If the total of the spousal and child support requirements leave the obliger below the poverty line.

Division of Property (Ch. 48, Article 7 (Equitable Distribution of Property)) – In the absence of a marital settlement agreement, the court will presume that all marital property should be divided equally between the spouses. Because West Virginia is an equitable distribution state and does not adhere to community property law, the court may alter the distribution of marital property in consideration of the following:

  • The degree to which each party has financially contributed to the marital property;
  • The degree to which each party has contributed to the marital property by non-monetary means;
  • The degree to which either party’s efforts in their contribution to the marriage decreased their ability to earn income or increased the ability for the other spouse to earn income; and
  • The degree to which either party depreciated the value of the marital property during the marriage.

Grounds for Divorce (§48-5-201 through §48-5-209) – In West Virginia, a couple can file for divorce on the following grounds:

  • Irreconcilable differences
  • Voluntary separation of at least one (1) year
  • Cruel or inhuman treatment
  • Adultery
  • Conviction of crime
  • Insanity
  • Habitual drunkenness or drug addiction
  • Desertion
  • Child abuse/neglect

Interim Support (§48-5-502) – The court may order either party to pay the other temporary support for the duration of the proceedings either in installments or in a lump sum.

Residency (§48-5-105) – The couple may divorce in West Virginia if they were married in the state and one (1) of the parties is currently a resident. If the couple was married outside the state, one (1) of the parties must have been a resident for at least one (1) year.

Separation (§48-5-202) – Either party may file for divorce on the grounds of separation providing that the couple has lived apart without interruption for a period of one (1) year.  

Divorce Forms

Divorce with No Children:

Divorce With Children:

How to File for Divorce in West Virginia (9 steps)

  1. Complete Divorce Paperwork
  2. File Petition and Other Documents
  3. Serve Respondent
  4. Respondent Answer
  5. Parenting Class and Parenting Plan (if applicable)
  6. Marital Settlement Agreement
  7. Case Management Conference/Hearing
  8. Final Hearing
  9. Name Change

1. Complete Divorce Paperwork

a couple discussing divorce paperworkWest Virginia divorces begin with the completion of the petition and accompanying paperwork. The petitioner, the individual initiating and filing the divorce, will be required to download, copy, and complete the following documents to prepare for filing:

  • Petition for Divorce (SCA-FC-101)
    • This is the document that starts the divorce case. It will contain the grounds for divorce, as well as the petitioner’s requests for child support, custody, property division, and alimony. Three (3) copies should be made.
  • Petitioner’s Civil Case Information Statement (SCA-FC-103) (three copies)
    • Provides vital personal information of both the respondent and the petitioner and lists any minor children involved in the case.
  • Financial Statement (SCA-FC-106)
    • Each spouse will complete their own financial statement. The statement will list their respective assets, liabilities, and income. If the spouses are parents of minor children, they must each provide the following:
      1. Copies of the petitioner’s three (3) most recent pay stubs;
      2. Copies of both spouses’ tax returns from the past two years, copies of Form W-2 for those years, and a Form W-2 for the most recent year when it was available (even if their tax return has yet to be filed);
      3. Copy of current financial statement (if self-employed); and
      4. Invoices and receipts reflecting the costs of child care expenses.
  • Vital Statistics Form (SCA-FC-104)
    • Used to update the Division of Vital Statistics of the petition.
  • BCSE Application and Income Withholding Form (SCA-FC-113) (if applicable)
    • If the couple has minor children together or alimony (spousal support) is being requested, both parties must fill out a copy of this form.

2. File Petition and Other Documents

2 women at the clerk of court reception area filing paperworkWith the forms completed, signed, and notarized, the petitioner can file them with the Circuit Clerk’s Office in the county where the respondent lives, the county the petitioner lives, or the county in which they last lived together (this is dependent on whether the respondent lives in West Virginia or not). The filer must pay the fee for filing the Divorce Petition ($15) and any additional costs requested by the deputy clerk. If the petitioner is a parent, they will also be required to pay the Parent Education Fee. These fees can be waived with an affidavit completed at the clerk’s office.

3. Serve Respondent

The respondent must be served with all forms filed with the clerk’s office as well as a completed summons (provided by deputy clerk). The petitioner will have to arrange for this service themselves, and can choose one of the following options to deliver the papers:

  • Acceptance of Service – The petitioner delivers the papers to the respondent and has them sign an Acceptance of Service (SCA-FC-105) before a notary public. The petitioner will then file the form with the clerk’s office.
  • Personal Service by Sheriff’s Department – Twenty-five dollars ($25) is paid at the clerk’s office and directions to the respondent’s address are provided. The sheriff’s department will then arrange to have the papers served on the respondent.
  • Personal Service by Process Server – A process server eighteen (18) years old or older is hired and delivers the papers to the respondent’s address. Once served, the server completes an affidavit and the affidavit is filed with the court.
  • Service by Certified Mail – A twenty-dollar ($20) fee is paid at the clerk’s office and the deputy clerk will have the papers delivered by certified mail with return receipt requested. The respondent must personally accept and sign the receipt, and the return receipt postcard will be received by the court to be filed.
  • Service by Publication – This is used when the respondent cannot be located or they live out of state and will not return receipt for service. The service by publication makes it difficult for the court to award child support or alimony, and it shouldn’t be used if the only grounds for divorce are irreconcilable differences. In this case, the petitioner will have to complete the Affidavit of Unknown or Out of State Residency (SCA-FC-110) and bring it to the clerk’s office. The deputy clerk will complete an Order of Publication (SCA-FC-111) to be taken to a newspaper in the respondent’s county where a notice will be posted twice. The court must receive an affidavit of publication from the newspaper as proof of service.

4. Respondent Answer

The respondent will have twenty (20) days to file an Answer to Divorce Petition (SCA-FC-108) (thirty if served via publication). Along with the answer, they’ll be required to submit the Respondent’s Civil Case Information Statement (SCA-FC-114), their own Financial Statement (SCA-FC-106) with additional proof of income/assets if minor children are involved, as well as the BCSE Application and Income Withholding Form (SCA-FC-113) (if applicable). Copies must be served on the respondent as well as filed with the clerk’s office.

5. Parenting Class and Parenting Plan (if applicable)

Couples with minor children will be required to complete a Parenting Education Class and obtain a Parenting Class Completion Certificate. They will also be required to file either a joint Family Court Parenting Plan (SCA-FC-121) or individual Parenting Plans if they cannot come to an agreement (can use the Worksheet for Individual Proposed Parenting Plan to help complete individual proposals).

6. Marital Settlement Agreement

Couples may choose to draft a Marital Settlement Agreement, or separation agreement, to show how they’d like to divide assets and responsibilities post-divorce. This document is not required, as much of the information therein will be indicated in the Parenting Plan or the petition; however, it can be useful in clearly demonstrating to the court the parties’ mutual wishes.

7. Case Management Conference/Hearing

If either party requested temporary relief, the first hearing will likely be set to determine temporary relief. Otherwise, the first hearing will be the case management conference before a case coordinator, or a case management hearing before a family court judge. Both parties will receive a Scheduling Order that will notify them of the time, location, and additional forms needed for the hearing/conference. This initial hearing is used to determine what issues of the divorce are disputed, how many hearings will be necessary, and to help establish a parenting plan. If there are no disputes and all forms have been filed, there may be no need for any more hearings and the judge will complete and sign the Final Order to finalize the divorce. Otherwise, the court will schedule as many hearing as is necessary to come to a conclusion on all matters of the divorce.

8. Final Hearing

The final hearing is where the judge will sign the Final Order and settle all matters of divorce. The divorce isn’t considered final until the signature is inscribed. Both parties will receive a copy of the Final Order and will have a window in which to appeal any decisions.

9. Name Change

a name change form featured on an ipad screenIf either party requested to resume their previous name in either the petition or the answer to the petition, the name change will be reflected in a court-issued certificate of divorce. This proof can in turn be used to update personal identification and accounts. More information on the West Virginia name change process can be found here.