April 1, 2012


Deciding to pursue divorce is one of the most difficult and emotional decisions you will ever make, particularly if you have children. Divorce also involves financial matters that must be resolved and legal issues that must be addressed. A family law attorney at The Law Offices of G. Wayne Van Bibber & Associates, PLLC in Charleston and Hurricane, West Virginia, can help you to understand the basic issues involved in divorce and to use a rational approach to the divorce process.

Grounds for Divorce

In West Virginia, there are several available grounds for divorce including: Irreconcilable differences, Voluntary Separation, Cruel or Inhuman Treatment, Habitual Drunkeness or Drug Use and Adultery.

You may allege more than one ground for divorce and often times multiple grounds are alleged in a petition. A divorce may not be granted on the grounds of adultery if the offense occurred more than three years earlier. It is a defense to adultery if the innocent party forgave the offender and resumed cohabitation and sexual relations after full knowledge of the offense, so long as the guilty party does not commit further adulterous acts. It is also a defense if the complaining party has also engaged in adulterous conduct.

In West Virginia the overwhelming majority of divorces are granted on the grounds of irreconcilable differences. This is West Virginia’s version of a no fault divorce. Choosing to proceed on irreconcilable difference does not mean you are agreeing on anything other than the reason for the divorce. The parties are still free to contest all issues and present their evidence.

By agreeing to irreconcilable differences, the parties speed up the process and save time and money. Often times the parties are pressured by the courts to agree to irreconcilable differences. However, you need to remember that the grounds are merely the technical legal authority for the granting of the divorce and this choice does not limit your ability to bring evidence of bad conduct on the part of your spouse. For example, the divorce could be granted on the grounds of irreconcilable differences and the parties could still present evidence of adultery or cruelty to increase or decrease an alimony award or justify an award of attorney fees.

In the end, the choice is yours and no one can force you to proceed under any particular grounds. Often times when people choose to proceed on fault grounds such as adultery, the choice is based on factors outside the case, such as religious beliefs.

Alimony, Spousal Support, and Maintenance

These terms are used interchangeably.  Alimony may be paid as a lump sum, as periodic installments, or both, for the maintenance of the other party. It is important to note that West Virginia has no alimony formula and the duration and amount of an alimony award can vary drastically from county to county and based upon the personal beliefs of a particular judge. This is unfortunate and causes divorces to take longer and cost more because the parties have no real guidance as to a fair and reasonable award. This reduces the likelihood of a settlement on the issue of alimony.

In determining whether spousal support is to be awarded, and if so, the amount, the court shall consider and compare the fault or misconduct of either or both of the parties and the effect of the fault or misconduct as a contributing factor to the deterioration of the marital relationship.

Although the court is required to consider all of the foregoing factors, the author has been told by many judges that after they have determined that alimony should be awarded, the primary focus is on the payor’s ability to pay and the payee’s financial need. In other words, hinting that the financial reality of the parties may overshadow issues such as fault.

Division of Assets and Debts

This process is called equitable distribution. The court first classifies assets as either marital or separate. Marital assets are those assets obtained during the marriage. These include purchases made and income earned during the marriage. Whose name appears on a title is generally irrelevant. Assets owned prior to the marriage or acquired during the marriage by gift or inheritance are considered separate assets.

Once the court has classified the assets and debts, it must distribute them. In the absence of an agreement to the contrary or unusual circumstances, the court will divide the marital assets and debts equally.  Unequal distribution of marital assets is extremely rare but the court may do so after considering several factors.

For more detailed information, please download our free resource, “Pocket Guide to Divorce in West Virginia” by G. Wayne Van Bibber.


Reaching the decision to end a marriage is always difficult. Once you do make the decision, it is in your best interest to approach the divorce process from a rational, business-like perspective, which is extraordinarily difficult given the emotional issues with which you must also cope. Working with a family law attorney at The Law Offices of G. Wayne Van Bibber & Associates, PLLC who is experienced in family law can help you to get through the process with less stress.

We serve clients in Charleston, Huntington, Winfield, Teays Valley, Scott Depot, Hurricane, Nitro and other local areas.

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