All About Separation In West Virginia
In West Virginia, legal separation is not a altogether distinct from divorce. The couple may agree to "live apart," and remain legally married, or they may simply choose to separate without obtaining legally enforceable rights. Or, the parties may obtain a legal separations through a West Virginia court, which sets forth the parties’ obligations and rights. While some people might refer to living apart from your spouse without cohabiting as separated even if there are no enforceable rights, this article discusses the process of legal separation in West Virginia law, and some potential reasons why individuals might seek a separation rather than a divorce.
"Separation" differs in West Virginia than from most states. This still leads to confusion among many. West Virginia recognizes the concept of "living apart without entering into a legal separation." This is not formalized in writing and provides no rights that have not already existed. In other words, it is merely an agreement between the parties that they will be living apart but will remain married. They may inform the IRS they are "Married Filing Separately," but whether they actually do so or not is irrelevant to the separation itself .
A legal separation in West Virginia does not by itself end your marriage or legally divide property. This is true even in states where legal separation renders the parties’ divorced once they have lived separate and apart for a statutory period of time, which varies from state to state. However, there are distinct legal separations in West Virginia. An individual may petition the circuit court for a separation, and the Separate Maintenance Action which is styled as a divorce action, puts forth the same legal concepts as a divorce, such as equitable distribution of marital property, alimony, custody, visitation, child support, the equitable disposition of marital debt, and other issues that arise in a divorce. That said, the parties may jointly move for a legal separation, which limits the scope of the issue to those issues the parties want to resolve.
Sometimes, a legal separation is highly advantageous to reduce the emotional stress of the parties, smoke out assets and debts of the parties, and as a final resort to encourage one party to withdraw the action before the final decree.
Requirements For Separation
To become legally separated in West Virginia, a couple must meet certain residency and procedural requirements. First, at least one spouse must be a resident of West Virginia for six months prior to filing for separation. If neither spouse is a resident for the required time, the court may have no jurisdiction to hear the case.
The lawsuit for legal separation does not require as much formality as a divorce. In fact, unlike divorce, a legal separation does not require the non-filing spouse even be given notice of the legal action. This difference comes in part from the idea that a legal separation is not meant to divide a couple’s assets, but rather to continue marital assets and debts as they were before separation. For this reason, many couples to seeking to divide their assets avoid legal separation. Instead, they will file fora. divorce and resolve their issues that way.
For couples that do seek legal separation, West Virginia law allows for two main types of separation actions: (1) Incapacity and (2) misconduct (e.g. desertion, note that ‘desertion’ is a technical term specific to family relations law and it means "the unjustified abandonment of one spouse by the other spouse"). Whatever the cause of the separation, the initiating spouse must file a complaint for legal separation with the West Virginia family courts. The complaint must state the grounds for separation and make specific requests regarding support and assets. In turn, the responding spouse may makeup to 60 days to respond to the complaint in writing.
If the couple agrees to the separation, the court will grant the legal separation. If there are disputed issues, the court may set a date for the parties to have a hearing. In most cases, the separation order will include an equitable distribution of assets and liabilities. Compared with divorce proceedings that are final, separation orders are usually not permanent.
Filing for Legal Separation
The first step in the process of filing for legal separation in West Virginia is to understand and familiarize yourself with the legal grounds for separation. There are several grounds that West Virginia provides as legal separation and a couple varieties that result in no fault divorce. The legal grounds for separation are:
• Adultery;
• Abandonment;
• Indignities;
• Expose of mind or body;
• Habitual drunkenness or drug use for 6 months;
• Incompatibility (no fault separation/divorce).
Once you have grounds for separation which are not compatible with reconciliation, you will need to file your petition. This begins by filling out the following forms:
• Parenting Plan (if applicable);
• Domestic Relations Case Information Statement;
• Petition for Divorce;
• Consent Order (only necessary if the other party agrees to the terms of the separation);
• Rule 43 Parenting Coordinator Waiver;
• Non-Adversarial Proceeding Notice (Filing fee is $5.00).
You will also need to pay a filing fee between $135.00 and $185.00, depending on the county and case type. At this point, the court will assign a trial date and begin the discovery process. The husband and wife will need to submit the Rule 43 Parenting Coordinator Waiver, if it is applicable; which will calculate their monthly income. The court will then appoint a parenting coordinator who has full authority over a child custody case.
At this point in the process, the courts may recommend mediation. During mediation, the parties will meet with and highly skilled, neutral third-party mediator. Mediation may help the parties reach an agreement or settlement without needing to proceed to trial. If the parties cannot reach an agreement, the courts will refer them to the domestic relations mediation and evaluation tribunal. After mediation, the courts will schedule a pretrial conference date.
The Consequences of Separation
The date of separation is important in West Virginia because it can mark the division date for marital property and marital debt. The court will divide debt and property to be divided with the date of separation being the dividing line, meaning the date of separation tells the court when property is no longer jointly accumulated by the parties. Asset appreciation and other addition during the marriage may belong to one spouse or the marital estate, meaning it may be subject to distribution during the divorce process. Excluded property, an example being a gift or inheritance, was acquired in the marriage is not considered joint property, even after the date of separation.
During a period of separation, both spouses have a fiduciary duty to avoid intermingling of separate property with marital property. A separate asset should remain separate during the period of separation and not be used as collateral for any type of loans without knowledge and consent of the spouse. If you intend to live separately from your spouse, it is generally preferable to live as if you are divorced regarding your finances. To ensure the safest result, you should consult an experienced family attorney prior to separating from your spouse if you are concerned with how assets or debts will be handled.
Custody and Support Issues in Separation
With most divorces, issues guided by the best interest of the child standard arise. The same standard is applied during the legal separation. For the most part, a judge will almost always defer to what the parties have agreed to, so an agreement can save a lot of time and expense. Whether a judge or the parties address the issues, the focus is on the best interest of the child.
Whether or not the parties agree, a temporary order may be necessary. A temporary order, whether by agreement or after a hearing , is developed based on the individual needs of the family. Temporary custody arrangements are generally made for the duration of the separation and may be revisited once the divorce action is filed. Support payments may also be ordered on a temporary basis.
Since the temporary measures may or may not continue after the divorce is filed, parties often make detailed written agreements for the time period before divorce is filed. These agreements typically address child support, maintaining the martial home and other issues with which the parties have had problems prior to separation. Again, following the better practice, if the parties do agree on the issues, it is better to put them in writing for the time that a divorce action is pending.
Moving Forward: Reuniting or Divorce
However, it is also possible that the couple has reconciled. We can file a motion with the court to remove the legal separation. A "motion" is simply a written request. The motion asks the court to enter an order dismissing the separation action because the parties have reconciled. If there are children and custody matters were ordered in your separation, the motion will also ask for an order of custody that reflects the change. In most cases, the motion will be granted. Occasionally, the court may require the parties to come to the court and state (on the record) that they have reconciled. In these cases, the order of dismissal will indicate that the parties were heard by the court declaring their reconciliation.
Retaining a Family Law Attorney
If you and your spouse are considering legal separation, the arguments need to be convincing enough to move on to the next step – finding a family law attorney to represent you. Family law lawyers represent clients in a variety of family-related legal matters, including legal separation. You want a lawyer who is knowledgeable about family relations, especially your personal situation with your spouse, along with a high level of experience in the field and an ability to be a strong advocate for you.
The first step in hiring a family law attorney is to get recommendations. It’s best to check with your family and friends for someone they know. If you can’t find one that way, there is a professional association that can help. The West Virginia State Bar has a lawyer directory that you can search through online.
Be wise when you meet with your potential candidates. Whether these lawyers have been recommended to you by a friend or a colleague, make sure you meet with them in person before signing anything. Be aware of how the attorney reacts when you’re both talking – do they seem more interested in their talking points or your story? If they seem uninterested or overly aggressive, keep looking. Also, take a look at their office and if they appear to have adequate staffing to take care of your case.
Conclusion: Making the Right Choices
West Virginia’s separation laws are designed to help people understand their alternatives to divorce. Legal separation may not be the appropriate option for every West Virginia couple, but it is essential to understand how the law works in these matters before deciding your own next steps. Even when emotions are highly charged , understanding the law of legal separation in West Virginia is an important first step to making informed decisions about what is best for you in your circumstance. Giving serious thought to alternatives, and learning when and how those alternatives apply, are key to making decisions that will result in long-term resolution to legal or financial problems.