Divorcing in West Virginia While Still Living Together

Attorney Answer

Yes — you can file for divorce in West Virginia without moving out. But the no-fault ground only works if your spouse files an answer admitting it, and that is the catch most people are never told.

W. Va. Code § 48-5-201 provides: "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." Nothing in that ground requires you to have separated. But it is a two-part requirement — your complaint alleges irreconcilable differences and your spouse admits it in an answer. If your spouse will not admit it, that ground is not available and you would have to proceed on a fault ground or under W. Va. Code § 48-5-202, the voluntary-separation ground, which does require living separate and apart.

On the children: custody is decided inside the same divorce case, not in a separate one. If you need enforceable structure while you are still under one roof, a parent seeking interim relief files a motion with a proposed temporary parenting plan under W. Va. Code § 48-9-203. At the final hearing the court allocates custodial responsibility through a permanent parenting plan under W. Va. Code § 48-9-205 and W. Va. Code § 48-9-206. Note that the temporary plan is something you ask for by motion — it is not automatically part of the divorce petition.

What you can do

1. Ask your spouse directly whether he or she will file an answer admitting irreconcilable differences. That one answer determines which ground you can use. 2. File the divorce petition in the family court of your county, alleging irreconcilable differences under W. Va. Code § 48-5-201. 3. Write out the permanent parenting plan you want — schedule, holidays, decision-making — for W. Va. Code § 48-9-205 and § 48-9-206. 4. If the household needs rules now, file a motion with a proposed temporary parenting plan under W. Va. Code § 48-9-203. 5. Copy the last twelve months of financial records — pay stubs, account statements, tax returns, debts — before the filing changes the temperature at home. 6. If your spouse will not admit irreconcilable differences, talk to a lawyer about W. Va. Code § 48-5-202 or a fault ground before you file, not after.