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West Virginia Legal Separation Agreement

West Virginia has no legal separation status; a separate-maintenance action under W. Va. Code 48-4-101 keeps you married while the court orders support.

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Introduction

West Virginia does not recognize a formal legal separation status, so a couple that wants court orders without ending the marriage uses West Virginia's separate-maintenance action, under W. Va. Code 48-4-101. That statute lets a spouse bring an action for separate maintenance in the family court of any county where a divorce between the parties could be brought, and it may be brought whether or not a divorce is also requested (W. Va. Code 48-4-101). Separate maintenance may be ordered if the party seeking it has grounds for divorce, or if the other spouse, without good and sufficient cause, has failed to provide suitable support or has abandoned or deserted the other spouse (W. Va. Code 48-4-102). What makes the action useful is its reach: in a separate-maintenance action the court may order all or any portion of the temporary or final relief it could order in a divorce, other than the divorce itself (W. Va. Code 48-4-103). A separate-maintenance decree does not dissolve the marriage or change marital status: the spouses stay legally married, neither may remarry, and the marriage ends only through a later divorce. People use it to keep a spouse on health insurance, to reach the ten-year mark for certain military and Social Security spousal benefits, for religious reasons, or as a step short of divorce. Because the lasting division of property and debts is the same document used in a divorce, those terms belong in a West Virginia Marital Settlement Agreement; if you decide to end the marriage instead, the pleading that starts it is a West Virginia Divorce Petition. DocDraft builds your West Virginia separation agreement from your facts, with attorney review available before you sign.

Key Things to Know

  1. 1

    West Virginia has no formal legal separation status. The West Virginia vehicle for staying married while getting court orders is an action for separate maintenance under W. Va. Code 48-4-101, brought in the family court of any county where a divorce could be brought.

  2. 2

    A West Virginia separate-maintenance decree does not dissolve the marriage. The spouses stay legally married, neither may remarry, and the marriage ends only if the couple later obtains a divorce.

  3. 3

    A separate-maintenance action may be brought whether or not a divorce is also requested (W. Va. Code 48-4-101). It is a standalone way to obtain court orders while the couple remains married.

  4. 4

    In a West Virginia separate-maintenance action the court may order all or any portion of the temporary or final relief it could order in a divorce, other than the divorce itself (W. Va. Code 48-4-103). This is the reach that makes the action worthwhile.

  5. 5

    Separate maintenance may be ordered if the party seeking it has grounds for divorce, or if the other spouse, without good and sufficient cause, has failed to provide suitable support or has abandoned or deserted the other spouse (W. Va. Code 48-4-102).

  6. 6

    West Virginia is an equitable-distribution state, so the lasting division of property and debts is the same document used in a divorce. Those terms belong in a West Virginia marital settlement agreement rather than the separate-maintenance decree.

  7. 7

    Couples choose West Virginia separate maintenance over divorce to keep a spouse on health insurance, to reach the ten-year mark for certain military and Social Security benefits, for religious reasons, or as a step short of ending the marriage.

Key decisions before you file

Before you file a Legal Separation Agreement in West Virginia, a few decisions shape the document: which option to choose and what each one means. The Legal Separation Agreement guide walks through them.

Open the Legal Separation Agreement guide

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SEPARATION AGREEMENT (WEST VIRGINIA SEPARATE MAINTENANCE)

In the Family Court of [COUNTY] County, West Virginia In re the Marriage of: [SPOUSE 1 FULL NAME] and [SPOUSE 2 FULL NAME] Case No. [CASE NUMBER]

This Separation Agreement is made between [SPOUSE 1 NAME] and [SPOUSE 2 NAME], who were married on [MARRIAGE DATE] and separated on [DATE OF SEPARATION].

Status and intent. The parties want to live separately while remaining legally married. West Virginia does not provide a formal legal separation status; the parties proceed under West Virginia's separate-maintenance action, W. Va. Code 48-4-101. They intend to stay married, and they understand that neither may remarry unless and until the marriage is later ended by a divorce. The parties enter this agreement freely and voluntarily and have each disclosed their income, assets, and debts.

West Virginia separate maintenance. An action for separate maintenance may be brought in the family court of any county where a divorce between the parties could be brought, and it may be brought whether or not a divorce is also requested (W. Va. Code 48-4-101). Separate maintenance may be ordered if the party seeking it has grounds for divorce, or if the other spouse, without good and sufficient cause, has failed to provide suitable support or has abandoned or deserted the other spouse (W. Va. Code 48-4-102). In such an action the court may order all or any portion of the temporary or final relief it could order in a divorce, other than the divorce itself (W. Va. Code 48-4-103).

Support. The parties agree that [spousal support of $[AMOUNT] per month shall be paid by ___ to ___ beginning [DATE] / neither party shall pay spousal support and each waives support as stated here]. Support ordered in a separate-maintenance action is within the relief the family court may grant under W. Va. Code 48-4-103.

Property and debts. West Virginia divides marital property on an equitable basis in a divorce, and that lasting division is the same document used in a divorce. The parties therefore set out any division of property and debts in a West Virginia marital settlement agreement rather than repeat it here; see West Virginia Marital Settlement Agreement. The parties agree that: [SUMMARIZE OR ATTACH the division of property and debts, or state it is addressed in an attached marital settlement agreement].

Children and parenting. The parties have [NUMBER] minor child(ren): [NAME(S) AND DATE(S) OF BIRTH]. Custody, parenting time, and child support are [DESCRIBED HERE / set out in an attached parenting plan]. Custody and child support remain subject to court approval and modification in the best interests of the children.

Conversion to divorce. A separate-maintenance decree does not end the marriage and does not bar a later divorce. Either party may later file for divorce, a separate action.

Signatures. Each party signs freely.

[SPOUSE 1 SIGNATURE] Date: ______ [SPOUSE 2 SIGNATURE] Date: ______

This West Virginia document follows Chapter 48 of the West Virginia Code. If you decide to end the marriage, see West Virginia Divorce Petition. For the generic template and other states, see the Legal Separation Agreement hub.

West Virginia Requirements for Legal Separation Agreement

No Legal Separation Status

West Virginia does not offer a formal legal separation status. A couple that wants court orders while staying married uses the separate-maintenance action under W. Va. Code 48-4-101, brought in the family court of any county where a divorce could be brought.

Marriage Is Not Dissolved

A West Virginia separate-maintenance decree does not dissolve the marriage or change marital status. The spouses stay legally married and neither may remarry. The marriage ends only through a later divorce.

Brought With or Without a Divorce

An action for separate maintenance may be brought whether or not a divorce is prayed for (W. Va. Code 48-4-101). It is a standalone way to obtain court orders while the couple remains married.

Statutory Grounds for the Action

Separate maintenance may be ordered if the party seeking it has grounds for divorce, or if the other spouse, without good and sufficient cause, has failed to provide suitable support or has abandoned or deserted the other spouse (W. Va. Code 48-4-102).

All Divorce Relief Except the Divorce

In a separate-maintenance action the court may order all or any portion of the temporary or final relief it could order in a divorce, other than the divorce itself (W. Va. Code 48-4-103). This can include support, debt allocation, and parenting orders.

Where the Action Is Brought

A separate-maintenance action is brought in the family court of any county where an action for divorce between the parties could be brought (W. Va. Code 48-4-101). The venue rules track those for a divorce.

Property Belongs in a Settlement Agreement

West Virginia divides marital property equitably in a divorce, and that lasting division is the same document used in a divorce. Set out any division of property and debts in a West Virginia marital settlement agreement rather than in the separate-maintenance decree.

Reasons to Choose Separation Over Divorce

West Virginia separate maintenance keeps the marriage in place, which can preserve a spouse's health insurance, help reach the ten-year mark for certain military and Social Security benefits, or serve religious or trial-step reasons. Confirm insurance effects with the plan, since many treat a separation like a divorce.

Frequently Asked Questions

Under W. Va. Code 48-4-102, separate maintenance may be ordered if the party seeking it has grounds for divorce, or if the party from whom it is sought, without good and sufficient cause, has failed to provide suitable support for the other spouse or has abandoned or deserted the other spouse. Meeting one of these grounds allows the family court to order relief in the separate-maintenance action.

No. A West Virginia separate-maintenance decree does not dissolve the marriage or change marital status. The spouses remain legally married and neither may remarry. The decree addresses support and related matters while the couple lives apart. The marriage ends only if the couple later obtains a divorce. Separate maintenance is an alternative to divorce, not a form of it.

W. Va. Code 48-4-103 allows the court, in an action for separate maintenance, to order all or any portion of the temporary or final relief it could order in an action for divorce, other than the divorce itself. In practice that can include support, allocation of responsibility for debts, and parenting orders. The one thing the court cannot do in this action is dissolve the marriage.

West Virginia is an equitable-distribution state, and the lasting division of marital property and debts is the same document used in a divorce. Because of that overlap, those terms are usually set out in a separate written marital settlement agreement rather than in the separate-maintenance decree itself. The separate-maintenance action centers on support and the relief the court can order short of a divorce.

Yes. A West Virginia separate-maintenance decree does not bar a later divorce. A spouse who decides to end the marriage may file for divorce, which is a separate action. Because W. Va. Code 48-4-101 allows separate maintenance to be brought whether or not a divorce is prayed for, the two are distinct proceedings, and the support and related terms already ordered can inform the later divorce.

People choose West Virginia separate maintenance over divorce for practical or personal reasons. Staying married can keep one spouse on the other's health insurance, though many plans treat a separation like a divorce, so confirm with the insurer. Reaching ten years of marriage can matter for certain military and Social Security spousal benefits. Some couples separate rather than divorce for religious reasons, and others use it as a step short of ending the marriage while keeping the option to reconcile.