Legal Separation in WV Explained
Legal separation in West Virginia is a trial reconciliation designed to allow spouses to consider living apart for an extended period of time while making property and financial arrangements and/or determining their own separate living arrangements. Physical separation does not mean that a couple cannot get back together after a period of time but provides the reserved right to end their relationship after a separation period if no reconciliation is possible. A legal separation agreement can provide terms for living apart that will be used as a blueprint to ultimately decide how assets are to be divided and whether support will be paid to one spouse by the other once a divorce is finalized . A divorce is a separation with an added benefit, the dissolution of the marital contract, the restoration of the parties’ last names (for many), freedom to marry again, the ability to take on a new identity free of the other person and a settlement of all outstanding financial, real estate and retirement issues. With a divorce no longer are the parties legally bound to each other, nor are they financially responsible for each other. Legal separation, like a divorce, provides physical and sometimes emotional distance from a spouse which will provide a more peaceful home environment. Unlike a divorce, once a couple has been legally separated they remain legally married and have not dissolved the marriage nor abandoned their legal obligations to one another.
Process and Requirements for Legal Separation
Requirements for Legal Separation in West Virginia
If you believe you may want a legal separation instead of a divorce, you need to know some important details concerning the process. A legal separation involves both spouses entering into a contract stipulating that they will live apart, outlining issues involving children and property, debt division, and spousal support temporarily. When entering into a legal separation, a couple does not necessarily intend to get a divorce.
A trial court must be involved to grant a legal separation. With legal separation, the law considers the couple to be living separate and apart, so the residency requirements that apply to filing for a divorce also apply to filing for legal separation in West Virginia. To be eligible to file for a legal separation in the State of West Virginia, at least one of the spouses must have lived in the state for more than one year, or have had their marriage license issued in the state.
As with a divorce, if a couple has lived in West Virginia for more than six months, primarily related to military service, service in a government job, or other government work, the court may grant a legal separation.
How to File for Legal Separation
Most people file for legal separation through the circuit court. The process begins when one spouse (the "filing party) files a Complaint for Divorce with an attached "Verification". The Verification is an affidavit in which the filing party swears that all of the facts in the Complaint are true.
Along with the Complaint and Verification, the filing party must also file a Motion for Temporary Relief – it can be filed either with the Complaint or afterwards. A Hearing on the Motion for Temporary Relief will be scheduled where both parties will appear. A temporary relief order will then be entered by the Court.
It should be noted that many courts in West Virginia will require a party filing for relief to attend a Family Acceleration Classes prior to the temporary hearing. This Class takes place over several hours and requires both parties to attend to learn about the process of divorce through the West Virginia Court system.
A filing fee and sheriff’s service fee must be paid when the Complaint is filed. Currently in Kanawha County, the total filing fees are $176.50. If children are involved, an additional fee of $4.00 will be charged for each child born to the couple. If you do not have enough money to pay the fees, you may ask the Court for a waiver.
Effects of Legal Separation
Legal separation in West Virginia has legal effects, comparable to those of divorce, on a person’s property, finances, and family configuration. In fact, legal separation has more effect on these things than divorce.
For example, if one spouse works and the other is a stay at home spouse, and they consent, the stay at home spouse could be granted temporary permission to receive alimony while the divorce is pending. Another example, if the couple owns a home and cannot afford to pay the mortgage while the divorce is pending, the court could grant the stay at home spouse the right to live in the home while waiting for the case to be resolved, and would have the mortgage paid out of the couple’s income.
If the stay at home spouse takes a job that pays significantly more money than his or her spouse and contributes a substantial amount of money to the household, the court can grant full or partial credit for that during property division.
When it comes to matters involving children, the rights of each parent to time with, and care for their children can be determined while waiting for the case to be finalized. Decisions involving the need to move out of state with the children or relocate for a new job can also be handled before the conclusion of the divorce. Basically, the court, at the request of either parent, has the ability to make orders to protect the parties and their children until all the facts are known.
Even before a divorce complaint is filed, either party can anticipate the legal separation by asking the court to make temporary orders protecting their interests. No one then has to live together and try to keep up appearances or deal with the embarrassment of telling friends and family that a divorce is proceeding. They can just tell others that they are separated and be able to live separately without explaining what is really going on.
Separation Versus Divorce in West Virginia
In West Virginia, you might choose to live separately from your spouse without getting a divorce. Instead, you could get a legal separation (sometimes called "separation"). However, there are important differences to know about.
Pros
A legal separation is similar to a divorce, except it generally does not affect the marriage itself. You and your spouse are still legally married. Usually, the major difference is whether one party wants to remain married but physically separate from the other. For instance, you might agree to a legal separation if you or your spouse would lose insurance coverage – or a pension – with a divorce.
In other ways, a legal separation is like a divorce. You will have to go through the process of dividing up assets, determining custody, and so on. Like divorce, you can divide marital/income property, separate property, medical decision making, and other items of a divorce.
Cons
It is important to realize that a legal separation does not end a marriage. If you seek to have a legal separation, you will still be married to your spouse . This means that you can still have issues of property division, parenting, and finances hanging over your head.
For example, suppose things do not turn out well. You and your spouse may have separate residences, but you could just as easily decide to reconcile or vice versa. As a result, the questions you worked out in your legal separation papers could still be problematic.
In this way, a legal separation is different from a "no-fault" divorce. With a divorce, you and your spouse may simply decide that you have decided to grow apart. You might think that it doesn’t matter if you keep getting divorced on a no-fault basis or on grounds like treason or felony conviction. However, a legal separation, unlike a no-fault divorce, has the more difficult consequence of keeping you legally married.
Which is Better?
Whether you choose separation or divorce is a personal decision between you, your spouse, and your IVC attorney. The advantages and disadvantages apply to your situation and what is right for you and your future.
Reconciliation as an Alternative to Divorce
It is possible that as a result of the legal separation, the parties may reconcile while they are living apart, either through the actions of themselves or some other third party such as legal or pastoral counseling. Reconciliation can be a common occurrence which brings the family back together. Parties who seek a legal separation in West Virginia do so for many reasons and sometimes those are resolved, at least in their own minds, once they have spent some time apart, perhaps in different environments or away from the marital home.
It is important to remember that a separation by itself and not coupled with divorce does not terminate the marital estate and there are significant asset and liability distribution issues that may arise if the parties use the separation to "cross the line" and begin dating or establishing relationships with new partners.
The economic consequences of the separation also must be considered. For example, if the parties are both co-owners of a family business and both are going to continue to be in the business even with the separation, the economic stability of that business is paramount. Using the separation to dismantle the business could be a big mistake, and so the parties need to consider the implications of the separation on their livelihoods as well as their family structure.
If the parties reconcile, they can do so in an informal manner with no legal paperwork, or they may wish to file a written Revocation of Separation Agreement and/or completely dismiss a pending action for divorce if one existed. With respect to the latter, the action must be dismissed by either party if there is an agreement to reconcile. If there is a pending divorce case, a party may file a motion to be dismissed from the case even if a separation agreement was entered and subsequently revoked. The Court in that case would be evaluating whether or not permitting the Complaint for Divorce to be dismissed by the withdrawing party was in the best interests of the parties, particularly if children are involved.
If the parties do not reconcile after the separation, the parties can transition to a divorce. In order to do so, the parties can enter into a written agreement or simply proceed pursuant to the separation agreement terms if one was executed.
While it is not a requirement of separation, as noted above, the parties can negotiate a written agreement addressing their rights and obligations to each other during the separation period and thereafter, resulting in either a temporary or permanent conclusion depending on what the parties would like the agreement to provide.
If a divorce is subsequently pursued and the parties do not already have a pre-nuptial (ante-nuptial) agreement or post-nuptial agreement, the parties may be able to use the separation agreement or a Revocation of Separation Agreement as a complete agreement of the parties for permanent resolution. If the terms are sufficiently specific, a separation agreement can be used for a complete resolution of all equitably owned property and debts, requiring no further litigation.
Perhaps the best course is to have an attorney draft your written agreement. Otherwise, you will risk having your separation agreement thrown out by a Judge or basically made completely worthless.
Finding Legal Help
Legal Separation Support and Resources in West Virginia
Those considering legal separation in West Virginia are encouraged to seek professional assistance from an experienced family law attorney. Legal issues surrounding legal separation often require careful planning, nuanced understanding and thorough documentation. The time you spend with your attorney prior to formal separation can save you huge headaches down the line. In addition to legal support, there are an array of resources available to help individuals successfully navigate the process of legal separation. There are legal aid services that provide free legal assistance to low-income individuals. Families facing domestic violence may seek support through the West Virginia Coalition Against Domestic Violence. Catholic Community Services of West Virginia provides legal services concerning divorce and separation for low-income individuals and families residing within the state. By consulting the West Virginia directory of family counseling and help for those separating from their spouses , you can find local organizations dedicated to helping you, your spouse and your children cope with the transition. Community resources are also available for those contemplating separation from their spouses in West Virginia. The Separation & Divorce Insiders Club offers an online community dedicated to helping individuals learn more about the separation process and connect with other families who have undergone a similar experience. In addition, the Separation Resource Network provides community resources for those considering separation in West Virginia.