How Does Adultery Affect Divorce In West Virginia as Ground

How does adultery affect divorce in West Virginia? In West Virginia, as in many other states, adultery can significantly impact the process and outcomes of divorce. However, the way it does so might not be as straightforward as one may think.

This article explores the legal intricacies of how adultery affects divorce proceedings in West Virginia, shedding light on its influence on alimony, child custody, property division, and more. Whether you’re going through a divorce yourself or simply interested in understanding the legal landscape, this post aims to offer a clear, informative perspective.

How Does Adultery Affect Divorce In West Virginia

How Does Adultery Affect Divorce In West Virginia: Is Adultery a Ground For Divorce?

Yes, adultery affects the divorce in West Virginia. According to WV divorce laws, adultery can significantly impact divorce proceedings in West Virginia, as it is considered a legal ground for divorce in the state. If one spouse can prove that the other spouse committed adultery (like moving on with a new partner before the divorce is finalized), it can affect the distribution of property, alimony payments, and child custody arrangements.

In West Virginia, adultery is defined as voluntary sexual intercourse between a married person and someone who is not their spouse. If a spouse can prove that their partner committed adultery, they can use this as a fault-based ground for divorce. This means that they can file for a contested divorce and may be able to receive more favorable treatment in the divorce settlement process.

According to the West Virginia Code, adultery can also impact property division in a divorce. In West Virginia, the property is divided equitably, meaning that each spouse is entitled to a fair and reasonable share of the marital property even if it is in one name.

However, if one spouse committed adultery, the court may consider this when determining how to divide the property. They may award a larger share of the property to the innocent spouse, as they may have suffered emotional pain and financial losses due to the adultery.

Alimony payments can also be affected by adultery in West Virginia. Courts may consider adultery when determining the amount and duration of alimony payments. If the adulterous spouse is found to have caused financial harm to the innocent spouse, they may be required to pay a higher amount of alimony or for a longer period. However, remarrying after the divorce doesn’t help to get an increased amount of alimony.

Finally, adultery can impact child custody arrangements in West Virginia. If a spouse can prove that the other spouse committed adultery, this may affect their ability to make decisions regarding the children. The court may consider the effects of the adultery on the children and may award custody to the innocent spouse based on what is in the children’s best interests.

As for child custody, West Virginia courts prioritize the child’s best interest (W.Va. Code § 48-9-102 (2021).) Although adultery can influence the court’s view of a parent’s morals, it does not typically influence custody decisions unless the behavior of the adulterous spouse directly harms the child or interferes with the parent’s ability to care for the child effectively.

Which Evidence Is Needed To Prove Adultery In West Virginia?

Courts are bound to take into account the adultery issue in divorce cases of WV. However, it is not so straightforward for the courts to grant a divorce on the claim of adultery. Specific evidence must be presented and proven to prove adultery in a divorce case. The following are some of the pieces of evidence that can be used to prove adultery in divorce cases in West Virginia:

#1. Testimony of witnesses: 

Witnesses who can attest to the adulterous behavior of a spouse can be used as evidence in a divorce case. Witnesses can be anyone who has seen or knows of a spouse’s infidelity. However, the witness’s testimony must be credible and should be presented under oath. Don’t try to arrange false witnesses to testify for you. It will backfire you ultimately.

Do you need witnesses to testify for you in a divorce trial? Check out the discussion of Amber James on this point from the below video:

#2. Photographs, videos, and other physical evidence: 

Photographs, videos, hotel receipts, and other physical evidence can also be used as evidence of adultery in a divorce case. These types of evidence can help provide credible proof that a spouse is cheating, especially when combined with other evidence. Proper evidence will help you to avoid the nasty divorce deposition questions.

#3. Phone and text Records: 

Phone and text records can be used to prove adultery if they demonstrate that a spouse is in contact with the other person frequently. The phone and text records must show a behavior pattern supporting the claim of adultery.

#4. Social media and email records: 

Social media and email records can be used as evidence of adultery if they show a behavior pattern supporting the claim of adultery. For example, if a spouse is found to be communicating with another person romantically on social media or email, it can be used as evidence in court.

#5. Private investigator reports:

Hiring a private investigator to gather evidence of adultery can also be used in a divorce case. However, the private investigator’s report must be reliable and must follow the law when gathering evidence. The defendant can take the following defenses:

  • The two spouses voluntarily lived together after knowing about the adultery;
  • Evidence of the adultery is based solely upon the uncorroborated testimony of a participant in the affair;
  • The last adulterous act occurred three years before the divorce was filed;
  • The spouse claiming adultery as a grounds for divorce also committed adultery within three years before filing the complaint;
  • The act of adultery was committed due to the party filing the divorce’s connivance or,
  • The charging party accepted the adultery.

FAQs on How Does Adultery Affect Divorce In West Virginia

Can you date while separated in West Virginia?

Yes, you can date. Dating during separation in West Virginia is possible but can create complications. While dating someone new may temporarily distract you from the emotional distress of your separation, it can also potentially complicate and delay the divorce proceedings.

As long as there isn’t any sexual contact or cohabitation with a third party, however, it’s unlikely to affect child custody and other issues related to your divorce. That said, dating while separated may still impact the outcome of property division if you and your soon-to-be-former spouse dispute the value of any previous gifts or purchases made by either party.

Furthermore, multiple courts across West Virginia have ruled that spending marital money on gifts or trips for a third party could be considered a waste of marital assets, so keep that in mind before making any major financial decisions as part of a separation. Therefore, although dating during separation in West Virginia is permissible, caution should be exercised when taking such an action.

How long after divorce can you remarry in Virginia?

Virginia has no required waiting period before remarrying after a divorce. However, your divorce must be considered final in the eyes of the court before you can remarry. This means that all legal requirements have been met and any appeals resolved.

The process for obtaining a final decree may vary depending on the length of your marriage and other factors (like the presence of children). It is essential to be aware of any additional steps that may need to be taken before remarrying like notarising all divorce papers.

You should also remember that you must obtain a certified copy of your divorce decree from the circuit court where it was granted before applying for a marriage license. This document proves that all legal requirements have been met and that you can legally remarry. 

How to file for divorce in WV?

Filing for divorce in West Virginia involves several steps. Here’s a general outline of the process:

  • Meet residency requirements: Either you or your spouse must have been a resident of West Virginia for at least one year before you can file for divorce in the state.
  • Choose grounds for divorce: In West Virginia, you can file for divorce on either fault-based or no-fault grounds. The most common no-fault grounds are “irreconcilable differences” or living separate and apart without cohabitation for one year.
  • Obtain and complete forms: Obtain the necessary divorce forms from the circuit court in the county where you or your spouse reside. The primary form to complete is the “Complaint for Divorce.”
  • Provide required information: Complete the forms by providing accurate information about you, your spouse, your marriage, children (if applicable), assets, and liabilities.
  • File the forms: File the completed forms with the circuit court clerk’s office in the county where you or your spouse resides. You will need to pay a filing fee at this time. You should be aware of the disadvantages of filing for divorce first.
  • Serve divorce papers: Once you have filed the forms, you need to serve the divorce papers on your spouse. You can use a process server, sheriff, or someone else authorized to serve legal documents. If your spouse agrees, they can sign a Waiver of Service.
  • File proof of service: File proof of service with the court to confirm that your spouse has been properly served with the divorce papers.
  • Respondent’s response: After being served, your spouse has 20 days to respond by filing an Answer to the Complaint or a Counterclaim if they wish to raise their own issues.
  • Financial disclosures: Both parties must provide complete and accurate financial disclosures, including income, assets, debts, and expenses. This is usually done using a Financial Statement or similar document.
  • Negotiate and settle: If you and your spouse can agree on the terms of the divorce, you can draft a settlement agreement that covers property division, child custody, support, and other relevant matters.
  • Finalize the divorce: If you and your spouse reach an agreement, or if the divorce is uncontested, you can present your settlement agreement to the court for approval. Once approved, the court will issue a Final Decree of Divorce.
  • Wait for the decree: After filing all necessary documents and waiting for the appropriate waiting period (usually about 20 days), the court will issue the Final Decree of Divorce, officially ending your marriage.

Is West Virginia a no-fault state for divorce?

Yes, West Virginia is a “no-fault” state regarding divorce. This means that couples do not need to assign blame to the court to grant them a divorce. In other words, one spouse does not need to prove fault, such as adultery or cruel treatment, for the court to grant the couple’s request for a separation. 

In West Virginia specifically, both no-fault and fault-based divorces are allowed but certain factors can impact which type of divorce you may be granted. Fault-based divorces require one party to prove they have been wronged by their partner in some way – usually through an “offense” like adultery or cruelty. In contrast, no-fault divorces don’t require any proof as long as both parties agree with the decision and all legal requirements are met under the state’s laws. 

Does cheating affect divorce in WV?

Cheating is not a factor that WV considers when deciding on the validity of a divorce. According to §48-5-204 of the West Virginia Code, adultery is not considered an issue when making decisions in court concerning divorce. This means that although cheating while married is highly immoral and unethical, it does not automatically render a petitioner’s request for a divorce invalid, nor will it impact any other court rulings during the trial process.

That being said, adultery can still be considered in cases where monetary compensation or alimony payments are involved. Even though cheating does not affect the legality of the divorce proceedings in WV, judges may look unfavorably upon financially supporting someone unfaithful and award or deny spousal support accordingly.

Ultimately, cheating can have severe consequences for marriages beyond legal ramifications within West Virginia courts. In contrast, cheating may not necessarily mean automatic dismissal of a divorce case by default. It would be best to avoid such behavior to spare painful evocations of what could’ve been had things remained faithful and honest between the two partners.

How long does it take to get a divorce in West Virginia?

Getting a divorce in West Virginia can take anywhere from 6 weeks to over a year depending on the complexity of the case. If no activities are done from both sides after filing for divorce, a divorce case may stay open for up to 5 years. So you should finish all the work as early as possible to start a new journey.

The entire process is governed by Chapter 48, Divorce and Annulment, of the West Virginia Code. The first step is filing for divorce which requires one spouse (the plaintiff) to fill out court forms and submit them to their county circuit court clerk along with applicable fees. Once these documents have been filed, they must be served upon the other spouse (the defendant). After they have received the service of process, they will then have 20 days to respond if they are contesting any points or issues within said divorce petition. 

If there are children involved, both parents must complete mandatory parenting classes before their divorce can be finalized; this adds an additional length of time into proceedings as well. In West Virginia, couples who have minor children must wait at least 60 days after the petition has been filed before being granted a final decree of dissolution or division of property settlement agreement—not including mandatory delays due to holidays or special circumstances such as military duty, etc (West Virginia Law §48-2-15(d)). 

Final Thinking:

In West Virginia, adultery can undeniably affect the divorce process. Suppose evidence of infidelity is presented in court. In that case, it may be used as proof to demonstrate that one partner is at fault – this could potentially lead to a skewed decision from the judge when allocating property and funds, awarding alimony payments, or deciding on custody arrangements for any children involved.

About Shakir Ahmed

Head of the editorial team. I hold a Bachelor of Laws (LL.B) from UoL. Written hundreds of articles on divorce, child custody, employment and other human rights law topics for blogs and websites worldwide. Worked 6 years as a relationship development trainer. For any communication regarding any legal matter, please feel free to email me at

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