Divorce

Grounds are legally acceptable reasons for divorce. In West Virginia, you can get a no-fault divorce or a fault-based divorce.

A no-fault divorce is when you file for divorce without saying that your spouse is responsible for the end of the marriage because:

• you allege that there are irreconcilable differences;¹ or
• you and your spouse have lived separate and apart in different homes without acting as a married couple (cohabitating) for at least one continuous year.²

“Irreconcilable differences” mean that there is no hope that you and your spouse will be able to save the marriage.

A fault-based divorce is when you file for divorce, and you claim that your spouse was responsible for the end of the marriage because s/he:

1. treated you in a cruel or human way. This is when your spouse:
   • puts you in reasonable fear of bodily harm;
   • makes false accusations of adultery or homosexuality against you; or
   • treats you in a way that destroys or tries to destroy your mental and physical well-being, happiness, and welfare, and makes it unsafe for you to keep being married to your spouse. Note: You do not have to prove your spouse has physically abused you to file under this ground;³
2. willingly had sex with another person, and you can prove this with clear and convincing evidence;⁴
3. is convicted of a felony in any state after you are married. The conviction must be final;⁵
4. is permanently and incurably insane and both of the following are true:
   • s/he has been in a mental hospital or other similar institution for at least three consecutive years before you file for divorce; and
   • the judge has heard knowledgeable (competent) testimony from a medical professional stating that the insanity is permanently incurable;⁶
5. is regularly (habitually) under the influence of alcohol or drugs and cannot stop himself/herself from continuing to drink alcohol or do drugs;⁷
6. has left the home for at least six months against your will and both of the following are true:
   • you have made a genuine attempt to ask him or her to return; and
   • s/he has refused that offer;⁸ or
7. has abused or neglected your child physically or mentally, including by sexually abusing the child, or by failing to provide the necessary support, education, medical care, or other care, despite having a legal responsibility to do so. You must be able to prove abuse or neglect by clear and convincing evidence sufficient to justify permanently taking away custody of the abused or neglected child from your spouse.⁹

¹ W. Va. Code § 48–5–201
² W. Va. Code § 48–5–202
³ W. Va. Code § 48–5–203
⁴ W. Va. Code § 48–5–204
⁵ W. Va. Code § 48–5–205
⁶ W. Va. Code § 48–5–206
⁷ W. Va. Code § 48–5–207; Brown v. Brown, 142 W. Va. 695 (1957)
⁸ W. Va. Code § 48–5–208; Gallagher v. Gallagher, 147 W.Va. 463 (1971); Smith v. Smith, 116 W. Va. 271 (1935)
⁹ W. Va. Code § 48–5–209