Filing for Divorce in West Virginia

• You and your spouse have irreconcilable differences.
• You and your spouse have lived apart for at least one year.
• Cruel and inhuman treatment, which West Virginia defines as fear of physical harm; a false accusation of adultery or homosexuality; or any other behavior that destroys your mental or physical well-being and makes continuing to live together unsafe or intolerable.
• Adultery, meaning your spouse had an affair. You must provide clear evidence to back up your claim if you file on this ground. The court will not grant a divorce for adultery if you knew about it but resumed your marital relationship, or it happened more than three years before you filed.
• Your spouse has been convicted of a felony your spouse is permanently and incurably insane. To file on this ground, your spouse must have been in a mental institution for at least three years and a professional must testify that his or her insanity is incurable. You may be required to support your spouse.
• Your spouse is habitually drunk or addicted to drugs.
• Desertion, if your spouse has been gone for at least six months.
• Abuse or neglect of a child, including physical, mental or sexual abuse or failure to provide the care necessary for a child’s well-being. There must be enough evidence to justify denying your spouse custody of the abused or neglected child.  

• All property and earnings you or your spouse acquired while you were married.
• Any increase in value of you or your spouse’s separate property, if that increase resulted from spending marital funds or from efforts by you or your spouse.  

Your separate property remains your own. This includes:

• Property that you acquired before you were married
• Property that you received in exchange for your separate property.
• Property that you acquired during your marriage but excluded from marital property by an agreement with your spouse.
• Property that you acquired via gift or inheritance.
• Property that you acquired after you and your spouse separated.
• Any increase in value of your separate property that was a result of some situation out of your control, such as a change in the market.    

The court will consider these factors in dividing your property:

• The extent to which each of you contributed to the upkeep or increase in value of marital property through your incomes or funds that are your separate property.
• The extent to which each of you contributed to the upkeep or increase in value of marital property through your role as a homemaker, through caring for your children, or by providing services for little or no pay (such as keeping books for a family business or doing maintenance on a property).
• The extent to which you and your spouse’s roles during your marriage limited or decreased your own earning ability or increased the earning ability of the other.
• The extent to which you or your spouse wasted your marital property or caused it to depreciate.  

5. Does West Virginia require mediation before a divorce is granted?  
Mediation is not a requirement in all divorces, thought the court may order it in your case if you and your spouse disagree over child custody and visitation.