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Divorce: What You Can Ask The Court To Decide

Last Updated On: 4/16/2015 8:03:33 PM

View the Divorce Tookit for more information about divorce.

What will the judge decide in the divorce?

There is a whole list of things a judge can decide in the divorce. First, you ask the judge for what you want. Then, you have one or more hearings. Finally, the judge writes a decision about the things you have asked for. This decision is called an “order.” It’s what the judge orders you or your spouse to do.

In the divorce case, you can ask the judge:

  1. to grant the divorce,
  2. to divide the property you and your spouse own together,
  3. to divide the debts that you and your spouse have. These could be loans, credit cards, and outstanding bills,
  4. to approve your parenting plan (if you have children together),
  5. to change your last name back to your maiden name,
  6. to get alimony (spousal support),
  7. to get a protective order,
  8. to get child support,
  9. to name the parent who will be the “primary care giver” or “primary custodial parent” of your children. Often, the parent who has been the primary care giver before the spouses separated will be the parent who will be spending the most time with the children. Laws require that one parent be named the primary care giver, or primary custodian, for tax purposes. Your child’s school or day care might also want to see who is named the primary custodial parent. Other agencies may also need to see this, depending on their rules.

What will the judge do about child custody?

The court will try to get the parents to agree on a schedule. The court may send you to "mediation" to work out a plan.

"Mediation" means a trained, professional, neutral person, will try to help both spouses come to an agreement. The mediator is not a judge. The mediator is not there to decide who gets how much time. The mediator is simply a person who tries to help both of you work out a parenting agreement that is good for the children and that both of you can accept. If you are not able to reach an agreement with the help of a mediator, then the judge will have to decide what the parenting plan will be.

The court keeps a list of approved family court mediators. The parents share the price for the mediator's time and effort. The price is based on the parents’ income. You and your husband or wife can submit a parenting plan together (called a “joint parenting" plan). [You can get the Parenting Plan form elsewhere on this web site, or on the web site of the WV Supreme Court of Appeals.] The judge will review the agreed plan to assure that it is fair and workable.

The Parenting Plan should explain where the children are going to be at all times. The whole schedule should include holidays, school, and summer vacation. The judge decides if it will be best for your children. The judge will attach your Parenting Plan to the divorce order. The judge can change the Parenting Plan if he or she believes another plan will be better for your children.

If you and your spouse cannot agree on how to share time with the children, the judge has to make a decision. Each parent should submit their own proposed Parenting Plan. The judge might approve one parent’s plan and reject the other parent's plan. One parent may not have submitted a plan. The judge might decide on another plan altogether, different from what either parent submitted.

The judge decides by looking at the history of how you and your spouse have handled childcare responsibilities when you were living together. The judge looks at what the parents are used to doing for the children. This is for the children’s benefit. The judge considers what amounts of time each parent has spent with the children. The judge usually looks at the pattern of parenting in the year or two before the separation. The judge will look at things called “caretaking functions.”

Caretaking functions involve things like baths, meals, homework, babysitting, and shopping. Whoever has been doing those caretaking functions should keep doing them. Say the children’s dad took them to soccer practice before the separation. The judge would probably want to order that the children’s dad keep doing this after the divorce. The courts prefer to cause the least possible disruption in the children’s lives. The least upheaval is thought to be best for the children. The judge also tries to be fair.

Normally, after the divorce, the parents will share the “decision-making responsibility.” This means that major decisions like education, medical care, and religious practice for the children should be shared. Sometimes the parents cannot agree on how to make these decisions together. In that case, the judge will decide which parent makes which types of decisions.

How does the judge decide child support?

The judge almost always calculates child support according to a mathematic formula in the West Virginia laws. For very good reasons proven in court, the judge can use a different figure than the "formula" indicates. This is very unusual. Most of the time the judge uses the "formula" to decide who pays support and how much.

The judge calculates the mother’s and father’s financial information. This includes each parent’s income, child care expenses, medical expenses, and the number of nights a year spent with each parent. Normally, the amount of child support depends on whether the children spend more than 35 percent of the year (127 nights) with one parent. The judge puts all these amounts of money into a formula. Then, going by state law, a number comes up using the formula. That number states how much one parent must pay in child support to the other parent.

Sometimes one parent may be working only part-time, or may not be working at all. The judge is permitted to assume that person is capable of earning at least full-time minimum wage, even if they are not in fact working that much. The judge will put the full-time minimum wage amount into the formula for that parent's income. This is called “attributing” minimum wage. The judge can make an exception to this if the parent is disabled or in school full time.

Once the Child Support amount is calculated, the judge then passes this child support information to the West Virginia Bureau for Child Support Enforcement (BCSE). The Bureau for Child Support Enforcement then takes action to set up accounts with the parents. In some counties, the parents have to take the final divorce orders to the BCSE offices to set up their child support accounts.

What can the family court judge do about a protective order?

There is a separate type of case in West Virginia for "Domestic Violence Protection Orders." The orders of protection in those kinds of cases may be put in place very quickly, to deal with an emergency. Those orders also are limited in time. They usually cannot last longer than six months, but in certain situations they can last for one year, or even for a lifetime. But those are not divorce cases.

In a divorce case the Judge has similar power to issue protective orders or injunctions where there has been abuse or harassment. These orders do not have to be limited in time. They can be permanent. The court can order that your spouse is not allowed to bother you, harass you, or abuse you after the divorce. This happens in cases where there is proof that your spouse has been abusive to you in the past. If there is a protective order issued with the divorce order, law enforcement gets a copy and the other party may not have guns. If there is an injunction, the court orders the other person not to harass you, but law enforcement does not get a copy.

What will the judge do about our property?

Each spouse must fill out a separate financial statement, listing all the property and debts of both spouses. The judge will read the financial statement of each spouse. This is how the judge learns what property you and your spouse have to be divided.

If you and your spouse agree about how to divide your property and debts, the Family Court Judge usually will accept your agreement. If you do not agree, the judge will decide for you.

When you and your spouse have property together, it is called "marital property." Marital property is any item you received during the marriage. Marital property is any amount of money you received during the marriage. Marital property includes money put into your spouse's retirement plan while you were married. Marital property is a house or land that you received during the marriage. It also includes other things that you paid for while you were married. It could be improvements to land or a house. The judge may say that something is not marital property if it was a gift to one particular spouse or if it was inherited by one of the spouses.

The general rule is that marital property should be divided in half between the husband and wife. This rule applies unless there is a good reason that one spouse should have more or less than half. The judge may feel that it is better for one person to have possession of the house. This could be better if that person would be spending more time with the children. If so, the spouse getting the house may have to "buy out" the other spouse's share of the "equity." Equity is the amount of money that the husband and wife have paid so far toward the house (not counting interest on the loan). That amount is usually listed on your monthly mortgage or loan statements. If the parties cannot agree on the value of the house, the judge will order an appraisal.

What will the judge do about our debts?

A debt is money you owe to someone. Debts can be loans. Debts can be credit cards in your name or your husband or wife’s name. Debts can be outstanding bills. Debts will be treated the same way as property division is treated.

Marital debts are debts you created together, for household purposes. Marital debts also include bills for "household purposes" even if only one spouse's name is on the bill. This could be on old electric bill that never got paid. If you paid for the bill after you got separated, you could ask for half the amount from your husband or wife. A student loan is not considered a marital debt, but a portion of a student loan that was only used for household expenses and not for school expenses can be considered marital.

How can I get spousal support (alimony)?

You can ask the family court judge to award temporary or permanent spousal support. Spousal support is also called alimony.

There is no mathematical formula for a judge to calculate alimony. It is impossible to predict what a person could get. The judge considers many different factors. For example, how long you’ve been married. The judge considers whether you’ve spent time at home to take care of the family. The judge considers what your money situation looks like. The judge considers what your spouse’s money situation looks like. The judge considers your ability to support yourself. Your ability to support yourself depends on how far you’ve gone in school. It depends on what skills you have to get a job. It depends on how long you’ve been out of the job market. All of these factors go "into the mix" when the judge decides how much alimony is reasonable.

There are different types of spousal support:

  1. Alimony can be permanent. Permanent alimony can last until either the husband or wife dies, or until the person getting alimony gets married again or starts living with another person in the same household.
  2. Alimony can be for a limited time decided by the parties.
  3. The judge can order the husband or wife to pay "rehabilitative alimony." This would only last for a set period of time. It could last until the spouse can go to school, get job training, or get back on his or her feet.
  4. The judge can order reimbursement alimony (also called contract alimony). This happens so that the husband or wife repays the other person for a certain expense. It would last for just a set time period.

The judge decides all this. Each spouse can ask for what they think is appropriate. The judge will then decide what he or she thinks is "reasonable." Once the spousal support amount is calculated, the judge then passes this support information to the West Virginia Bureau for Child Support Enforcement (BCSE). The Bureau for Child Support Enforcement then takes action to set up accounts with the ex-spouses. In some counties, the ex-spouses have to take the final divorce orders to the BCSE offices to set up their accounts.

How can I get my maiden name back?

If you changed your name when you got married, you can change it back. You can start using your maiden name again after the judge orders it in his or her decision. This is not automatic. You have to ask the judge to do this. It is best and easiest to change your name in the divorce case. You can ask for it in the petition or answer. You can also ask for it at a hearing. You cannot legally start using your maiden name until you receive your final divorce order, signed by the judge. Some judges will give you a separate Name Change order.

View the Divorce Tookit for more information about divorce.

This is general legal information. For guidance about your situation, talk to a lawyer.