Gray Divorce

By Gracie Davis – Deputy Executive Assistant at West Virginia Senior Legal Aid

According to the American Psychological Association, there has been a heartbreaking trend in divorce rates among elderly populations, which the association has aptly named “gray divorce.” If you are a senior West Virginia resident debating or going through a divorce, this article will make this legally and mentally taxing process seem a little less gray for you.

In West Virginia, one can file for divorce with the circuit/family courts no matter where the marriage occurred, where a marital offense occurred, or where the parties live if one is a West Virginia resident at the time of filing. After filing and proper service of process, a judgment order may be entered. W.Va. Code §48-5-103; See Fed. R. Civ. P. 4. One can file in the county where the couple last cohabitated or where the respondent (i.e., the one responding to the petitioner’s petition) resides. W.Va. Code §48-5-106.

To file a divorce petition, there are several steps to follow: (1) write a verified petition; (2) state the grounds for divorce; (3) explain West Virginia residency (if jurisdiction matters to the court); and (4) hearing and evidence.

First, write a verified petition (i.e., sworn statement) titled “In Re the marriage of [your name] and [your spouse’s name]” and identify yourself as the petitioner and your spouse as the respondent in all pleadings. For petition forms, visit circuit court clerk offices or family court offices online or in person. Second, state the grounds for divorce. The grounds do not have to be in extensive detail. If the court needs further information, the court will inquire. Also, the grounds must be sufficient under West Virginia law. Third, explain the West Virginia residency of the partners separately or jointly in the petition if jurisdiction matters to the court. Fourth, there will be a court hearing regardless of the respondent’s answer. Though there will be a court hearing regardless of the respondent’s answer, the court cannot decide based solely on what the petitioner claims unless the ground for divorce is irreconcilable differences. W.Va. Code §48-5-402.

To plead a response to a divorce petition, one must file an “answer” typically within 20 days of receiving notice, following Federal Rules of Civil Procedure Rules 7 and 12. State the reasons for any wrongdoing the petitioner claims the respondent has done in the answer and during evidence presentation, unless the ground for divorce is a 1-year separation. W.Va. Code §48-5-403.

If one of the parties is legally “incompetent,” they need at least one individual to act on their behalf. Otherwise, the court will presume the individual can file/respond to the lawsuit until evidence proves otherwise. The appointment of a Guardian ad Litem is unnecessary unless the judge specifically orders one to be assigned. W.Va. Code §48-5-107.

If a couple has been living separately for a while or a spouse has abandoned the other, temporary relief can be requested during the divorce process. Once the separation/abandonment lasts for the legally required duration (which depends on the grounds for divorce), the case can proceed to a final hearing without needing to file a new petition. The petitioner must provide the respondent with notice 20 days before the final hearing, and under Federal Rules of Civil Procedure Rule 4, no matter if the respondent did not respond to the previous petition. The respondent can waive this notice. W.Va. Code §48-5-404.

Numerous forms of temporary relief may be granted. One may be required to pay the other spouse temporary spousal support until the final divorce settlement. This may be paid in the form of periodic installments, a lump sum, or a combination. W.Va. Code §48-5-502. Also, one may be required to pay the other spouse’s court and legal fees partially or fully (up to the court’s discretion, which may change at any point of the action), especially if the individual is delaying the case with excessive claims/defenses. W.Va. Code §48-5-504; §48-5-611. Additionally, one may be required to maintain existing health insurance or purchase new health insurance for the other spouse if affordable. W.Va. Code §48-5-505; §48-5-606. The court’s decisions on temporary relief cannot be appealed. W.Va. Code §48-5-514.

Furthermore, the final divorce settlement can include permanent spousal support per West Virginia’s spousal support guidelines. W.Va. Code §48-5-602. After the entry of a final divorce order, the court may revise spousal support orders and/or enter a new order as necessary. Spousal support payments can be adjusted at any time. W.Va. Code §48-5-701; §48-8-103.

In determining if temporary relief should be granted, the court will consider each party’s financial needs, income/earning ability, and support obligations. W.Va. Code §48-5-510. The court may require the parties to disclose their financial information before a temporary relief hearing via a standard disclosure form. If one party does not complete the form, the other party’s claims will be accepted as fact. W.Va. Code §48-5-511.

During a divorce case, the court can issue temporary orders regarding homes and vehicles. A spouse can be granted exclusive use of the couple’s home and some household goods during the case. Furthermore, one spouse may be ordered to pay bills (e.g., mortgages, property taxes, utilities). W.Va. Code §48-5-506. Similarly, a spouse can be granted exclusive use of 1+ vehicles during the case. One spouse may also be ordered to pay bills (e.g., car and insurance payments). W.Va. Code §48-5-507. Upon the divorce order, the court can rule on how to divide property owned by either spouse, regardless of who currently has it, meaning it can order one spouse to transfer ownership to the other. W.Va. Code §48-5-609.

West Virginia follows the “equitable distribution” approach to property division during divorces. When a party has a specific request regarding specific property or raises issues regarding the equitable division of marital property, the court will consider each party’s requests and divide the marital property fairly between them. To come to a decision, the court may order financial accounts to perceive each party’s assets and debts. W.Va. Code §48-5-610.

The court has numerous protective measures to prevent property from being hidden or sold: (1) The court can temporarily freeze assets; (2) The court can order a constructive trust, which would perhaps have a third-party act as a caretaker of the property till the divorce is finalized; (3) The court can order maintenance payments for the marital property. W.Va. Code §48-5-508. Additionally, if a spouse already has possession of the other spouse’s separate property they owned before the marriage, the court can order its return. Furthermore, the court can order a spouse to cease interference with the separate property. W.Va. Code §48-5-610.

The court has the discretion to modify the original marital property division under the following conditions: (1) The property remains to be owned by one or both parties; (2) If the court modifies spousal support, it can also modify marital property division to reflect the other modification; (3) If the spousal support modification creates unfairness regarding the original marital property division, then the court can modify the division for equitability between the parties. W.Va. Code §48-5-706.

Remember: Numerous factors contribute to a divorce – it is not your fault. It is also not your end, so think of it as a new chapter of your life – a chapter about self-discovery and self-love! To protect yourself, make sure you understand the laws here in West Virginia. There are unique considerations and nuances for seniors getting a divorce (e.g., Social Security, pensions, retirement accounts, estate planning revisions, healthcare directives, powers of attorney). For further aid, please contact a licensed attorney or a mediator to reach various agreements. West Virginia Senior Legal Aid is dedicated to defending seniors’ rights.