On what grounds can I be granted a divorce in West Virginia?

The grounds for divorce in West Virginia are contained in W. Va. Code 48-5-201-209.

“No-Fault” Divorce Grounds:

If one party to a marriage files a petition for divorce against the other, alleging that irreconcilable differences have arisen between the parties, and if the other party files an Answer to the petition and admits that irreconcilable differences exist, then the court will grant a divorce. There is no corroboration required. However, the family court may always make orders for, approve, modify, or reject any agreement between the parties pertaining to just and equitable spousal support, custody, support or maintenance of the children, or visitation rights.

However, the family court may give consideration to fault or inequitable conduct as one of many factors to be considered in determining what is “just and equitable” with respect to spousal support (alimnony). [Haynes v. Haynes, 164 W. Va. 426 (1980)]

Usually, if the other spouse has not responded to the divorce petition, or if they refuse to admit irreconcilable differences, then it may be necessary to prove a fault-based ground for divorce.

Fault Grounds:

Adultery: Adultery usually must be proven by circumstantial evidence that shows both opportunity and inclination. Adultery is considered misconduct that may cause the forfeiture of a party’s claim for spousal support. Note that in West Virginia there is no inference raised. There must be corroboration.

Desertion: A divorce may be ordered for the party abandoned when either party willfully abandons or deserts the other for six months. Desertion for divorce purposes consists of the voluntary separation without justification of one spouse from the other with the intent to terminate the marriage relation. [Perine v. Perine, 92 W. Va. 430 (1922)]. Desertion may exist even if both parties remain in the same house so long as there has been a willfull, total, and unjustifiable suspension of all marital duty and relationship. [Perine v. Perine]. Note that if the desertion is justified, then it is not “desertion” for fault-based divorce grounds (i.e., a battered spouse).

Extreme Cruelty: A divorce may be ordered for cruel or inhuman treatment by either party against the other, which includes reasonable apprehension of bodily harm; false accusation of adultery or homosexuality, and conduct or treatment that tends to destroy the mental or physical well-being, happiness, and welfare of the other and which renders continued cohabitation unsafe or unendurable. It is not necessary to allege or prove acts of physical violence. Usually, if there is a single isolated incident, it may be enough if it was serious. Also, if there has been overt hostility, i.e., constant humiliation, ridicule in front of third persons, or coldness. Most times however, it must be continuing conduct. The test is whether the petitioner can, with safety to person and health, continue to live with the respondent. [Christopher v. Christopher, 144 W. Va. 663 (1959)]. Provocation by the complaining spouse is material and will prevent that spouse from obtaining relief. [Lieberman v. Lieberman, 142 W. VA. 716 (1957)]. Note that denial of sexual intercourse is not cruel and inhuman treatment, nor does it constitute cause for willful desertion and abandonment. [Reynolds v. Reynolds, 68 W. Va. 15 (1910)].

Insanity: A divorce may be granted for 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 at least three consecutive years, and the family 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.

Other Grounds for Divorce:

Conviction of a Crime: A divorce may be ordered when either of the parties, subsequent to the marriage, has been convicted of a felony and the conviction is final.

Separation: A divorce may be ordered where the parties have lived separate and apart in separate places of abode without cohabitation and without interruption for one year. It is irrelevant whether the separation was the voluntary act of one of the parties or by the mutual consent of both parties. Note that when spousal support (alimony) is sought under a divorce action based on separation, the family court may consider substantial inequitable conduct on the part of the party seeking spousal support as one factor in its decision. [Whitmire v. Whitmire, 175 W. Va. 461 (1985)].

Abuse and Neglect of Child: A divorce may be ordered for abuse or neglect of a child of the parties. “Abuse” means physical or mental injury inflicted on such child including, but not limited to, sexual molestation. “Neglect” is willful failure to provide, by a party who has a legal responsibility for the child, the support, education, medical care necessary for the well-being of the child. Note that a divorce will not be granted on this ground except upon clear and convincing evidence sufficient to justify permanently depriving the offending party of his parental rights to the custody and control of the abused or neglected child.