The Process of Divorce
For a relatively brief period in my 30+ year career as an attorney, I agreed to handle a limited number of “family law” cases. I have never exactly understood why we call it “family law,” when in reality what we are talking about is the death of the family, but that is a question for greater minds than mine. Suffice to say that in the few years it took for me to get my fill of family law, I saw and learned enough to know that there are many, many great misconceptions about divorce law and what it entails. Accordingly, I thought it might be a good idea to put together a short list of information and suggestions for those who may become involved in the process of divorce.
It Doesn’t Matter Whose Fault It Is.
Like pretty much every other state, West Virginia is what we call a “no-fault” divorce state. In a nutshell, being a no-fault state means that except in very, very limited circumstances, the Judge will not be concerned over who was at fault in causing the divorce. Our Legislature recognized long ago that if courts had to get involved in hearing testimony and deciding issues of fault in divorce proceedings, we were going to need a lot more judges and a lot more courtrooms. Instead of incurring that expense and dragging out the fight for years, we adopted no-fault provisions which make it a lot easier and a lot faster to get a divorce. If both parties want it to happen, it can happen pretty quickly. I’ve handled cases that were finished in as little as two months. That is certainly the exception, but it can be done if the parties are in agreement. It can be a little tougher if one party doesn’t want the divorce, but even in that case a divorce will be granted if the parties have lived apart from one another (in different residences) for the required period of time.
You Will Need Records. Lots and Lots of Records.
I used to tell clients that they should look at their divorce as a business transaction. There is a company that has certain assets and certain liabilities, and now those things have to be divided. In order to do that, the Judge is going to want to see documents and records. Checking account statements, savings account statements, credit card bills, tax returns, paystubs, pension statements, 401(K) statements, mortgage statements, auto loan statements, etc., etc.. You will save yourself a significant amount of time (and attorney’s fees) if you have all of this information available when you first sit down to meet with your attorney. The less work the lawyer has to do in order to gather the information he/she needs, the less you pay in fees.
In Most Cases, Property Will Be Divided 50/50.
West Virginia recognizes the principle of “equitable distribution.” In general, equitable distribution requires the Judge to first classify property (which includes assets as well as debts) as either “marital” or “separate.” Separate property is allocated to the owner of the property. Marital property is equally divided between the husband and wife. Separate property includes things such as property owned by the party prior to the marriage; property that was inherited; or gifts made to the party. Marital property includes pretty much everything else acquired by the parties during the course of the marriage. So, take for example the case of a man who owned his house prior to marriage. He and the wife live together in the house for 10 years, and now they decide to divorce. If nothing else has happened, the husband will get to keep the house. It is, however, possible for separate property to be transformed, partially or even entirely, into marital property. Let’s say in the case above the husband decided to put his wife’s name on the house after they got married. When they divorce, the law will presume the husband made a gift of 50 percent of the house to the wife when he put her name on the deed, and he will have the burden of convincing the Judge otherwise. Similarly, if there was a mortgage on the house when the couple married and they used marital income to pay it, the wife will get credit for the increased value of the house during the course of the marriage.
Shared Parenting Is the Law, and Child Support is Set According to a Formula
The ugliest fights in divorce cases always surround children. The “wronged” parent frequently decides that the “at fault” parent should have his/her time with the children severely restricted. I always tried to remind my clients that the children really don’t care about who or what caused the marriage to break up. Divorcing parents need to love their children more than they dislike their soon-to-be ex. Putting the children in the middle of a divorce, or using time with the children as a weapon against the other parent, is reprehensible conduct that serves only to leave children with a load of emotional baggage that will haunt them into their adult lives. Parents will first be ordered into mediation to see if they can reach agreement regarding parenting arrangements. If no agreement is reached, the issue goes back to the Court. Judges are generally required to allocate parenting time with the children among the parents so that the time each parent is given corresponds to the amount of time the parent spent performing parenting functions prior to the separation. Once parenting time is set, the Judge will take each party’s income and plug it into the child support formula. The formula also considers the cost of insurance, child care, and other extraordinary expenses attributable to the kids, after which it spits out a number which will be the support obligation. Judges have very little flexibility to deviate from what the formula requires.
You Need a Lawyer. Trust Me On This One.
Lots of folks have asked me if they “really need” a lawyer in order to get a divorce. I always tell them that from a strictly technical standpoint, the answer is no. However, unless you are in a marriage with no children, no assets and no liabilities, you make a huge mistake by trying to do it alone. Divorce law can be complex, and few people are in a rational, reasonable state of mind as they start through the process. I can’t tell you the number of people who came to me, sheepishly hanging their heads, telling me “I tried to do this on my own, but I think I messed up.” There are many very competent divorce lawyers in the Ohio Valley. Often, the best lawyer for you will depend upon the particular circumstances of your case. Don’t just rely on the Yellow Pages or a Google Search; ask around, call for referrals. You will be surprised at what you may learn.
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