West Virginia is fairly accommodating if you're looking for a legal way to separate from your spouse. The state's legislature provides three means of doing so. The option you choose may depend on how amicable your separation is and whether you eventually intend to divorce.
If you've already separated and your spouse is refusing to help support you or your children, you can file a petition for separate maintenance with a West Virginia court. This option is essentially a court-ordered separation. The process proceeds much like a divorce, with one exception: you can't remarry after the court issues a decree for separate maintenance, because the decree does not actually terminate your marriage. The court can address issues such as support, custody and property division, and it can make orders governing these things during your separation. You can file a petition for separate maintenance even if you have no intention of later divorcing.
Read More: Legal Separation Agreement Vs. Decree of Separate Maintenance
If you and your spouse still get along well enough to negotiate and your desire to separate is mutual, West Virginia recognizes separation agreements. A separation agreement is an enforceable contract between you and your spouse. Ideally, it should cover all bases, including how you're dividing up property and debts, who will have custody of your children, when the non-custodial parent will have time with the children, who's going to pay child support and how much it will be. It should also include any provisions you want to make for spousal support. If you eventually decide to divorce, a West Virginia judge can incorporate the terms of your agreement into a divorce decree, assuming it covers all the bases and isn't grossly unfair to either you or your spouse. Otherwise, you'll have to go back to the bargaining table or have a judge decide outstanding issues at trial if you eventually want a divorce.
Grounds for Divorce
If you intend to eventually divorce but you're in no hurry, you and your spouse can simply live separate and apart for a year. This is "voluntary separation" and it establishes grounds for divorce in West Virginia. If you already have a separation agreement in place, it can control issues during this time. You and your spouse must reside in two separate households. If you have second thoughts and move back in together, even for a brief period, your separation must start all over again. You would not be eligible for divorce until a year has passed from the time you separated again, after the attempted reconciliation.
You and your spouse do not have to separate first in order to divorce in West Virginia. If you're both sure that your marriage is over, you can simply file for divorce on grounds of irreconcilable differences. No separation period is required, but this option requires that you're both in agreement that your marriage is over, and you must state this in writing. You can accomplish this by citing irreconcilable differences as your grounds in a divorce petition, and your spouse can confirm that you have irreconcilable differences in his answer to your petition. If you eventually file for divorce on grounds of voluntary separation instead, the process becomes a bit more complicated. A judge can't grant your divorce unless a third party appears at your hearing to confirm that you've indeed lived apart for a year.
Beverly Bird is a practicing paralegal who has been writing professionally on legal subjects for over 30 years. She specializes in family law and estate law and has mediated family custody issues.