Understanding the Divorce Process

At a time when your life can feel like it is in utter chaos, sometimes the smallest bit of predictability can bring a sense of comfort. The outcome of many aspects of your divorce may be unknown, increasing your fear and anxiety. But there is one part of your divorce that does have some measure of predictability, and that is the divorce process itself.

Most divorces proceed in a step-by-step manner. Despite the uniqueness of your circumstances, you can generally count on one phase of your divorce following the next. Sometimes just realizing you are completing stages and moving forward with your divorce can reassure you that it won't go on forever.

It is helpful to develop a basic understanding of the divorce process. This will lower your anxiety when your attorney starts talking about "depositions" or "going to trial," and you feel your heart start pounding in fear. A thorough grasp of the divorce process can reduce your frustrations about its lengthiness. Knowing why each step is needed will help you prepare for what comes next. Most importantly, understanding the divorce process may make your experience of the entire divorce easier. Who wouldn't prefer that?

1.1 What steps are involved in the divorce process?

The divorce process in West Virginia typically involves the steps listed on the following page.

1.2 Must I have an attorney to get a divorce in West Virginia?

You are not required to have an attorney to obtain a divorce in West Virginia. However, if your divorce involves children, a request for spousal support, business, retirement funds, real estate, other significant property or debts, you should be very wary of proceeding on your own.

A person who proceeds in a legal matter without a lawyer is referred to as being pro se (pronounced "pro-say"), meaning "on one's own." If your divorce does not involve any of the issues above, then you may go to the circuit clerk's office in your county and pick up documents and instructions that can be helpful in very simple divorce cases. This set of papers is usually referred to as a "divorce form packet." The West Virginia Supreme Court of Appeals also maintains these forms on their website (www.courtswv.gov/lower-courts/family-forms/index-family-forms.html), where you can download and print the forms without having to go to the circuit clerk's office.

If you are considering proceeding without an attorney, at a minimum, have an initial consultation with an attorney to discuss your rights and duties under the law. You may have certain rights or obligations of which you are unaware. Meeting with a lawyer can help you decide whether you should proceed on your own or obtain a lawyer.

1.3 What is my first step in obtaining a lawyer?

Find a law firm that handles divorces as a regular part of its law practice. The best recommendations come from people who have knowledge of a lawyer's experience and reputation.

Even if you are not ready to take the initial step of filing for divorce, call to schedule an appointment right away to obtain information about protecting yourself, your children and property. Although you might not be planning to file for divorce, your spouse might be. Taking steps to gain information about your rights is a precautionary measure to protect yourself and your loved ones.

Ask the attorney's office what documents you should take to your initial consultation. Make a list of your questions to take to your first meeting. Start making plans for how you will pay your attorney to begin work on your case. Most attorneys will not be able to give you a definite cost (retainer amount) to undertake work on your case until they meet with you and hear your specific facts and circumstances.

1.4 Is West Virginia a "no-fault" state or do I need to show that my spouse did something wrong to get a divorce?

West Virginia, like most states, is a "no-fault" divorce state. This means that neither you, nor your spouse are required to prove that the other is "at fault" in order to be granted a divorce.

Proving adultery, cruelty, or abandonment is not necessary to receive a divorce in West Virginia. Rather, both parties may agree that they have "irreconcilable differences" with each other that make the marriage permanently broken. Irreconcilable differences is a "no-fault" ground for divorce. Generally, one spouse will allege that the differences exist in the initial petition for divorce and the other party will admit it in the response. You and your spouse may also have to appear before the family court judge and testify that irreconcilable differences do exist and they cannot be fixed. It is very unlikely the judge will ask for information regarding the nature of the problems that led to the divorce or question you as to the type of reconciliation efforts made, such as counseling with a therapist or clergy member.

If your spouse will not agree that irreconcilable differences exist, you can be granted a divorce without proving fault once you have been separated from your spouse for one year.

1.5 How will a judge view infidelity or my spouse's infidelity?

If one party alleges adultery in the divorce petition and wishes to obtain a divorce on the ground of adultery, there must be testimony or evidence introduced at the final hearing about the other spouse's infidelity. It is not sufficient that one spouse testifies regarding the adultery, even if the cheating spouse admits it. Adultery requires corroboration and must be proven by clear and convincing evidence. This can include testimony from a third party witness. It is not necessary to have direct evidence (such as an eyewitness) but circumstantial evidence (such as motel receipts and video showing a husband and his girlfriend going in and out of a motel room for substantial periods of time) may be acceptable.

Importantly, adultery is defined as the voluntary sexual intercourse of a married man or woman with a person other than their spouse. Although hurtful and damaging to your relationship, if your spouse has engaged in an emotional affair or has engaged in a physical relationship that has not progressed to intercourse, then you may not be able to obtain a divorce upon the ground of adultery.

1.6 I was not married in West Virginia, can I still get divorced here?

Maybe. It does not matter where the marriage took place, so long as one or both of the parties live in the state at the time of filing the petition...