GROUNDS FOR DIVORCE IN WEST VIRGINIA
The grounds for divorce in West Virginia are set forth in Chapter 48, Article 5 of the West Virginia Code. West Virginia does have a ground for no-fault divorce (irreconcilable differences). However, the court can only grant a divorce on that ground if an answer is filed admitting the allegation. If it is unclear whether the defendant will consent (admit in his/her answer to irreconcilable differences), you may wish to consider including one of the other grounds available under West Virginia law. Your complaint can include more than one ground for divorce. Excerpts from the West Virginia Code, describing each ground for West Virginia divorce, are set forth below:
West Virginia Code, § 48-5-201
The court may order a divorce if the complaint alleges that irreconcilable differences exist between the parties and an answer is filed admitting that allegation. A complaint alleging irreconcilable differences shall set forth the names of any dependent children of either or both of the parties. A divorce on this ground does not require corroboration of the irreconcilable differences or of the issues of jurisdiction or venue. The court may approve, modify or reject any agreement of the parties and make orders concerning spousal support, custodial responsibility, child support, visitation rights or property interests.
West Virginia Code, § 48-5-202
A divorce may be ordered when the parties have lived separate and apart in separate places of abode without any cohabitation and without interruption for one year. The separation may occur as a result of the voluntary act of one of the parties or the mutual consent of both parties.
West Virginia Code, § 48-5-203
A divorce may be ordered for cruel or inhuman treatment by either party against the other. Cruel or inhuman treatment includes, but is not limited to, the following:
Conduct or treatment which destroys or tends to destroy the mental or physical well-being, happiness and welfare of the other and render continued cohabitation unsafe or unendurable.
It is not necessary to allege or prove acts of physical violence in order to establish cruel and inhuman treatment as a ground for divorce
West Virginia Code, § 48-5-204
A divorce may be ordered for adultery. Adultery is the voluntary sexual intercourse of a married man or woman with a person other than the offender’s wife or husband. The burden is on the party seeking the divorce to prove the alleged adultery by clear and convincing evidence.
CONVICTION OF A CRIME
West Virginia Code, § 48-5-205
A divorce may be ordered when either of the parties subsequent to the marriage has, in or out of this state, been convicted for the ommission of a crime that is a felony, and the conviction is final
PERMANENT AND INCURABLE INSANITY
West Virginia Code, § 48-5-206
A divorce may be ordered for permanent and incurable insanity, only if the person is permanently and incurably insane and has been confined in a mental hospital or other similar institution for a period of not less than three consecutive years next preceding the filing of the complaint and the court has heard competent medical testimony that such insanity is permanently incurable.
A court granting a divorce on this ground may in its discretion order support and maintenance for the permanently incurably insane party by the other.
In an action for divorce or annulment, where the petitioner is permanently incurably insane, the respondent shall not enter a plea of recrimination based upon the insanity of the petitioner.
HABITUAL DRUNKENNESS/DRUG ADDICTION
West Virginia Code, § 48-5-207
A divorce may be ordered for habitual drunkenness of either party subsequent to the marriage.
A divorce may be ordered for the addiction of either party, subsequent to the marriage, to the habitual use of any narcotic or dangerous drug defined in this code.
West Virginia Code, § 48-5-208
A divorce may be ordered to the party abandoned, when either party willfully abandons or deserts the other for six months.
ABUSE OR NEGLECT OF A CHILD
West Virginia Code, § 48-5-209
A divorce may be ordered for abuse or neglect of a child of the parties or of one of the parties, “abuse” meaning any physical or mental injury inflicted on such child including, but not limited to, sexual molestation; and “neglect” is willful failure to provide, by a party who has legal responsibility for such child, the necessary support, education as required by law, or medical, surgical or other care necessary for the well-being of such child.
A divorce shall not be granted on this ground except upon clear and convincing evidence sufficient to justify permanently depriving the offending party of any allocation of custodial responsibility for the abused or neglected child.
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