Family Law FAQs
At Ardent Legal, PLLC, we love when our clients have questions. If you have never engaged in the legal process before (or even if you have), you are sure to have more than a few. Below, our experienced Morgantown family law attorney, Brianna W. McCardle, answers some family law FAQs.
What types of family law matters do you handle?
We handle divorce, child custody, child support, spousal support, adoption, prenuptial agreements, postnuptial agreements, and family law mediations.
What types of services do you provide in family law cases?
We provide various types of services in family law cases. We provide both traditional representation and limited representation in divorces, relocations, child custody disputes, child custody modifications, child support, child support modifications, prenuptial agreements, and postnuptial agreements. We also offer family law mediation services.
Do you do prenups?
Yes! We love drafting prenuptial agreements (“prenups”). It is a misconception that prenuptial agreements are only for wealthy people or for people who do not trust their soon-to-be spouse. You talk about everything else prior to getting married, so why not have an honest discussion about a prenup? If you are getting married, we highly recommend getting a prenuptial agreement to protect your interests and to simplify the process of a divorce (if one should occur). No one ever anticipates getting a divorce, and hopefully, you never experience one, but if you do, having a prenup in place can protect your interests, simplify things, and prevent a drawn-out divorce.
Do you do postnups?
Again, yes! Although postnuptial agreements are less common than prenuptial agreements, they are still important. Postnuptial agreements (“postnups”) are done after the marriage and outline the ownership of financial assets (and debts) if a divorce occurs. Having a well-drafted postnup in place can protect your interests and to simplify the process of a divorce (if one should occur).
What counties do you serve?
We provide family law representation in Monongalia County, Marion County, Preston County, Taylor County, and Harrison County.
What is traditional representation?
In a traditional representation arrangement, the attorney represents one party to the case and handles all aspects of the case on behalf of the individual from start to finish. The attorney drafts documents that are filed with the Court, appears in Court and represents the interests of the party to the Judge, communicates with the other party (or the other party’s attorney), and participates in settlement conferences and mediations. Brianna W. McCardle is an experienced family law attorney who has represented numerous clients in family law matters from initial consultation to Final Hearing.
What is limited representation?
In a limited representation arrangement, the attorney only assists with specific matters in the case. Generally, the attorney does not appear in Court on behalf of the individual, does not communicate with the other party to the case (or the other party’s attorney), and does not participate in settlement conferences or mediations. The attorney’s role in limited representation is to assist the individual to prepare documents that are filed with the Court and to provide legal advice with regard to their case. This is a great option for individuals who just need some help and guidance in their case, but who want to handle things mostly themselves. Limited representation is also less costly than traditional representation. At Ardent Legal, we offer flat-fee limited representation in family law cases.
What is family law mediation?
In the context of family law (e.g., a divorce, child custody dispute, etc.) mediation is a meeting that happens with both parties present, along with the help of a neutral third person (called a “mediator”), in an attempt to work out an agreement with regard to the future and terms of their specific case. The goal of mediation is to help the parties reach an agreement that both parties are agreeable to. It can help increase communication, decrease costs for both parties during the divorce process, and avoid the uncertainty of having the Court make decisions for you. This is a great option for individuals who wish to discuss options in their case in an effort to reach an agreement, simplify the divorce process, and decrease the costs of litigation.
Can I file for divorce in West Virginia?
In order to file for divorce in West Virginia you must meet one of two criteria: 1) you have lived in West Virginia continuously for the past 12 months (it does not matter where your marriage was celebrated); or 2) you were married in West Virginia and at least one spouse currently lives in West Virginia (it does not matter how long you have lived in West Virginia so long as you were married in West Virginia and at least one of you currently lives in West Virginia). If neither of these apply, then you cannot file for divorce in West Virginia.
Can I file for custody in West Virginia?
Deciding whether you can file for custody in West Virginia is not as straightforward as determining whether or not you can file for divorce in West Virginia. Generally, in order to file for custody in West Virginia, your child must have lived in West Virginia continuously for the past six (6) months. There are exceptions to this, such as if your child is younger than six months of age, the child has been abandoned in the state, or there is an emergency situation and no other state can decide custody.
What are the grounds for divorce in West Virginia?
There are no-fault and fault-based grounds for divorce in West Virginia. Most commonly, the no-fault ground for divorce of “irreconcilable differences” is used. The other grounds for divorce are as follows - one-year separation; cruel and inhumane treatment; adultery; conviction of a felony crime; permanent and incurable insanity; habitual drug or alcohol addiction; desertion; and abuse or neglect of a child. Deciding which ground to allege when filing for divorce can be complicated, and discussion with an experienced family law attorney can help you to decide which is best for your particular case.
How does the Court divide property in a divorce?
Courts in West Virginia divide property based on what is called “equitable distribution”. All marital property (generally, everything that is acquired during the marriage by either spouse, no matter whose name it is held in) and all marital debts (generally, all debts that are incurred during the marriage no matter whose name they are incurred in) are considered by the Court in determining the division of property. The goal of the Court is to make a division that is fair. Determining equitable distribution can be a complicated (and heated) process. Consulting with an experienced family law attorney can help you determine what equitable distribution may look like in your particular case.
How does the Court decide custody?
The main objective of the Court in determining child custody is to make an arrangement that is in the best interests of the child. What is in the best interests of the child is the foundation of every aspect of child custody determinations. Again, all relevant factors are considered in making this determination; however, recent changes to the law have made this determination a bit more complicated. Now, there is a presumption of 50/50 custody being in the best interests of the child; however, this may be countered by providing evidence to the contrary. Again, it is important to consult with an experienced family law attorney to determine how the Court may view your particular case and to help you to assess your options.
How does the Court decide spousal support (alimony)?
Spousal support (also known as alimony) is available to both spouses, if appropriate, based on the Court’s determination. It is a common misconception that spousal support is only available to women. The consideration of spousal support is extremely complex and the Court considers over twenty different factors in making spousal support determinations. The biggest factors are the length of the marriage and one party’s ability to pay and the other party’s need for support. Other factors considered are the parties’ fault in the breakdown of the marriage, the parties’ ages and health, the parties’ education levels and ability to earn income, the dependent spouse’s role as the primary caretaker of children during the marriage, and others. There are also different types of spousal support that may be awarded (permanent spousal support, temporary spousal support, rehabilitative spousal support, and spousal support in gross).
Can I get an annulment?
An annulment is a legal declaration from the Court that your marriage was never legal and never existed. The basis for an annulment is that the marriage you entered into was essentially prohibited by law. Generally, for an annulment to be granted, one party is not aware of the complete facts prior to entering into the marriage. The following grounds for annulment are available in West Virginia: your spouse was married to someone else at the time you were married; you are married to a family member (mother, grandmother, sister, daughter, granddaughter, half-sister, aunt, brother’s daughter, sister’s daughter, first cousin or double cousin); one party has been determined to be mentally incompetent (this does not mean mentally ill or someone with a behavioral condition); your spouse has a sexually transmitted disease that is active and untreated (this has significant exceptions); impotency (this has exceptions as well); under the age of consent; convicted of a felony offense (if unknown by spouse at time of marriage); wife is pregnant by another man (does not apply if husband knew prior to marriage); marriage by lack of consent, fraud, or coercion. The Court can do everything in an annulment that it can do in a divorce, with the exception of spousal support. Spousal support cannot be awarded in an annulment proceeding.
How long do I have to wait before filing for divorce in West Virginia?
There is no separation period required in West Virginia prior to filing for divorce except for divorces based only on the ground of a one-year separation. That being said, West Virginia does not have a waiting period prior to filing for divorce.
How long does a divorce take?
It depends. The time it takes for a divorce to be finalized can be shortened by the parties reaching an agreement or it can be extended if the Court has a significant backlog of cases and/or the parties cannot cooperate. Generally, the more agreeable the parties are, the faster a divorce may be finalized. That being said, the timeframe for a divorce to be finalized can range anywhere between 3-12 months or more.
Why should I hire an attorney?
Divorces and child custody cases can be complicated. An experienced family law attorney can help you navigate the process, communicate with the other party (or the other party’s attorney), and help you to assess your options. They can also help you to keep the focus on your goals.
Like every family, every family law case is different. At Ardent Legal, our experienced family law attorney, Brianna W. McCardle, provides dedicated, passionate, and sincere representation, to individuals in family law matters. Whether you are looking for traditional or limited representation or mediation services, we can help you through the process. Give us a call at (304) 241-1055 or fill out our contact form on the web for a free initial consultation.