Table of Contents

  1. PROCEDURE AND PROCESS (pages 2-11) – Authored by Ashton Bias and Brittany Ranson Stonestreet
  2. PROPERTY DIVISION (pages 12-20) – Authored by Lisa Hawrot and Shari McPhail
  3. ALIMONY (pages 21-26) – Authored by Lyne Ranson
  4. CHILD CUSTODY
    1. ESTABLISHING A PARENTING PLAN and CHILD SUPPORT (pages 27-30) – Authored by Amy Lanham and Delby Pool
    2. RELOCATION (pages 31-35) – Authored by Lorraine Eckard
  5. GUARDIANSHIP (pages 36-41) – Authored by Christine Glover
  6. GRANDPARENT RIGHTS AND VISITATION (pages 42-48) – Authored by Scott Summers

1. PROCEDURE AND PROCESS

Ashton Bias and Brittany Ranson Stonestreet

Forms:

You want to file something in Family Court. Where do you start?

  • All family court forms are made available to you at the Circuit Clerk’s office in your county.
  • Additionally, you can find all Family Court forms at courtswv.gov by simply going to the website and clicking the “Family Courts” tab. Here, you will be able to fill out the forms on your computer and print them, or, you can print the forms and handwrite on them if you choose.
  • You will receive instruction packet that is intended to help you fill out the forms. The instruction packets are thick, but do not be intimidated, these are not forms you are expected to fill out.
  • HERE ARE HELPFUL TIPS FOR YOUR CLIENTS TO KEEP IN MIND:
    • Read the forms and the instructions that come with them very carefully. Fill out as much of the forms as possible. The more the Judge knows about your case, the more likely they can help you.
    • Once forms are filled out, you MUST file all forms with the Circuit Clerk’s office and have them served on the opposing party.
    • Frankly – anything that is “FILED” – MUST go to the Circuit Clerk and the opposing party.
    • Unless you are granted a fee waiver, you WILL have to pay certain fees at the time of filing your petition—we will discuss the cost of those later.
    • What if the forms specifically ask me to attach something like a paystub? Some of the documents you will be filing, like a financial statement, require you to attach certain things, which we will talk about shortly. The form will specifically list what needs attached. You should attach as much as possible. If you cannot obtain something at the time you originally filed, then you should file it later as soon as you obtain it.
  • Where can I find a notary?
    • Circuit Clerk’s office
    • Banks
    • Post offices
    • Library

Focusing on Divorce

  • Initial Documents Filed:
    • Petition for Divorce
      • Document contains questions to make sure you’re filing in the right state and county, and that the Judge has the ability (or “jurisdiction”) to grant you a divorce.
        • Can you get a divorce in WV?
          • You or your spouse lived here for at least 1 year prior to filing OR
          • You now live in WV and you were married in WV.
        • Are you filing in the right county?
          • County where your spouse now resides
          • County where you and the other party last lived together.
          • OR – if spouse is out of state or the address is unknown, you can also file in the county where you currently live.
        • What constitutes Date of Separation?
          • The term “date of separation” refers to the date when you and your spouses decide to end the marriage with no intent to reconcile.
          • This date is often a matter of interpretation.
          • It can be the date of filing the petition.
          • It can be a year prior to filing the petition—depending on the circumstances.
          • You CANNOT still be having sexual relations and be separated; however, you CAN still be living in the same household.
        • Identify your grounds for divorce.
          • Fault vs. no-fault. You will have the opportunity to check these boxes on the form.
        • Tell the Judge what you want (“relief”)
          • what assets you want each party to have
          • what debts you want each party to pay
          • Whether you are requesting support
          • Custody, etc.
  • Answer
    • Once the Petition for Divorce is filed, the other side, also known as the “Respondent,” will usually have 20 days to file an Answer to your Petition from the date he or she is served.
      • Some exceptions – 30 days to Answer such as when serving an out of state party, or where an attorney accepts service for client.
    • “Answer” forms are also available at the Circuit Clerk’s office or on the Supreme Court website.
    • An Answer generally “Admits” or “denies” the allegations in the Petition for Divorce.
  • Financial Statement – In most family court cases, but definitely in all divorce cases, you will need to file a financial statement with your petition. See Rule 9(a) WV R. Prac. and. Proc. for Fam. Ct. (FS required in all 51-2A-2 cases).  This statement discloses your income, your assets and debts and a value for each. It is very important that this statement is accurate and complete.
    • What are things I am required to attach?
      • Three most recent paystubs
      • Last 2 years Tax Returns
      • Self-employed party – a copy of a current financial statement showing gross income, expenses and net income
      • Copies of any invoices or receipts for extraordinary medical expenses for party or a child, expenses for a child’s special needs, and childcare expenses.
    • In divorce – also may want to attach:
      • Statements for accounts or debts as of your date of separation
      • Proof of bills for your Monthly Expenses
  • Civil Case Information Statement – gives the court important information about the case and the parties.
  • Vital Statistics Form – Form to update WV’s vital statistics records on marriages/divorces.
  • If children are involved, you will also have to file the following (available at the Circuit clerk’s office):
    • Parenting Plan – Proposal for how you and the other party will divide time with the children. Important to have DETAILS! Even if getting along now, think you can work it out, the parenting plan is a good “default” schedule if there is disagreement in the future.
    • Parenting Worksheet – Describes the percentage of caretaking and decision making you and the other party have performed over a period of time and other information the court may need to set a parenting schedule.
    • Application for child support and income withholding services from the BCSE (must also fill out if requesting spousal support)
  • Can a client go back to their maiden name?
    • *But they don’t have to.
    • You must request it in the Petition.
    • Call the Judge’s office to ensure you bring all the necessary documentation.
    • MUST BRING: social security card and birth certificate.
  • IF CHILDREN INVOLVED, you must attend a parent education class. The cost is $25.00 unless the fee has been waived. A certificate showing you’ve attended must be in your court file BEFORE your first hearing.  You can call the Circuit Clerk’s Office for dates and times and to register. 
  • Filing Fee Costs (These are subject to change)
    • Divorce $135.00
    • Modification of Family Court Order $85.00
    • Expedited Modification of Child Support $35.00
    • Contempt $0.00
    • All other new family court filings are $200
      • Petition to Establish Custodial Responsibility/Paternity $200.00
      • Guardianship $200.00
      • Grandparent Visitation $200.00
    • What if I cannot afford the filing fee? You might qualify for a Financial Fee Waiver. You can get one of these forms at the Circuit Clerk’s office.
  • Some Counties in WV have transitioned to electronic filing: (Make sure to mention if your surrounding counties are E-filing!)

Berkeley          Marion
Braxton           Mason
Calhoun           McDowell
Clay                 Monroe
Gilmer             Morgan
Hampshire       Pendleton
Hardy              Roane
Jackson            Summers
Jefferson          Wayne
Logan              Webster

  • Assignment of the Judge
    • Once your Petition for Divorce has been filed, your case will be assigned to a Family Court Judge.
    • If you have previous cases involving same parties before a particular family court judge – your case will generally be reassigned to that judge.
    • Example – DVP filed. Divorce previously filed then dismissed.
    • Can I choose my Judge? The answer is no.
    • Which Judge you are assigned to is completely random, unless there is only one Judge in your county, of course.
  • Service on Opposing Party (“Respondent”)
    • Certified Mail – $20 fee
    • Sherriff – $25 fee
    • *Some fees above may be different if e-filing county
    • Personal Service by process server or third party
      • Must be 18 years of age or older and not a party (not you!)
      • Person will then complete and affidavit that will be filed with circuit clerk’s office.
    • Acceptance of service (opposing party can pick up at the Circuit Clerk’s office)
    • What if I don’t know where spouse resides or spouse is out of state and won’t sign return receipt for certified mail?
      • Affidavit of Non-Residency or Unknown Residency
      • NOTE: limits court’s ability to award child support or spousal support. OR limits court’s ability to grant divorce if only ground is irreconcilable differences (must be admitted by both parties).
      • Deputy Clerk will complete an Order of Publication
      • You will then need to publish it in a newspaper for two weeks in a row. If opposing party’s address is unknown, published in local newspaper. If out of state, publish in county with last known address.