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So let’s say that you have one person who has been taking money out of a 401k to fund the other person’s education. or let’s say that person paid all the bills while the other person was in school. That would be a factor in court when considering whether alimony should be awarded. That’s a very significant factor. A court is going to weigh that in favor of an award of alimony.

The next factor that a court is when you consider is the expense involved as far as the one person being able to receive further training to become independent and be able to get an award of alimony. So let’s say that the person wants to go back to school and they want to go back and get a degree that is not going to be as lucrative based on the price. Well, the court’s going to consider that. Let’s say the other person might not have the ability to pay for that particular degree. So the court is going to weigh those factors when it comes to whether to award alimony. The court is going to look at the overall cost of the degree that’s going to be involved.

So the court will consider these factors and weigh them with all the other factors. This is one of the important points I want to make here about the alimony factors, whether it’s the first one we talked about some time ago or the last one that we’re going to be talking about in the future. All of these factors are supposed to be weighed. When you go to court, the court has to make a decision given all of the factors. The judge must weigh in every one of these factors and it’s required based on the law that the court looks at every one of the factors when deciding whether to award alimony.

That consists of today’s topic. If you have any questions at all, feel free to give us a call at (304) 720 4412 or email us at chris@prittlaw.com.

Sometimes you might have a situation where people have lived together for five years during their marriage. They might separate, and be apart for 15 years or more, I’ve had cases where people were married over 20 years ago, and they separated shortly thereafter and the point of this is they never cohabitated together. So, the length of time in which people live together as husband and wife, regardless of whether they’re married or not, is a factor. If the amount of time they lived together as husband and wife is longer, then a court is more likely to grant alimony.

 Another factor that the court is going to consider is the present income and earning abilities of the people. Also, any other income they have coming in from other sources. So, let’s say you have, uh one person who’s making $500,000 a year and you have another person who’s making $20,000 a year. On the other hand, maybe one person isn’t making any money at all, they’re just unemployed or they’re a stay-at-home parent. That would be a factor that would lend more towards somebody being awarded alimony in West Virginia. Now the closer you get to the parties having an equal income the less likely it is that there is going to be an award of alimony.

So those are two of the factors that a court is going to consider when it comes to whether to award alimony. That consists of today’s topic. If you have any questions at all, feel free to give us a call at (304) 720 4412 or email us at chris@prittlaw.com.

This is based on factors such as work history, skills, education, and so forth. So, the more likely it is that a person has a greater income-earning ability, regardless of how much they’re making, but their income-earning ability. That’s a factor that the court is going to consider when deciding whether to award alimony. So, let’s say you have somebody who is a stay-at-home parent, but at the same time, they have some type of degree. Let’s say they’re a physician, or they have some other job training or degree that they can use in some capacity. The court may award alimony, but it’s not as likely that they are going to award a larger sum, because that person has the ability in the future to make more money. Likewise, let’s say you have the payer spouse, the payer spouse might be in a situation where they have so much more education and skills than the other person that it might be appropriate for them to be more on the hook for paying a little bit more in alimony. So that is another factor that the court is going to consider.

Another factor that the court is going to consider is the age, mental, and physical health of the parties. So, let’s say that you have people who have been married for a while and one of the people has a physical condition that impedes their ability to go and get back in the workforce. Maybe they can’t go out and get a job because of their mental or physical conditions or their age. That would be a factor that the court would consider in deciding whether to award alimony.

Again, there’s a long list of factors that the court is going to go through to decide whether alimony should be awarded. So, we’re going to continue on tomorrow with more explanations on the alimony factors, but that’s it for today. If you have any questions at all, feel free to give us a call at (304) 720 4412 or email us at chris@prittlaw.com.

Today we’re going to start at the top of the list and then go right through the first alimony factor that’s listed in the code. This is the number of years in which the parties were married. This is one of 20 factors that a court is going to consider when it comes to whether to award alimony. So, for example, let’s say that you have a couple that has been married for 30 years. Well, that’s a pretty long marriage under the alimony factors. That one is going to be a factor that would weigh in favor of the person who is seeking to get some sort of alimony. Now let’s say we have a marriage of shorter duration, maybe it’s only a three or four-year marriage. Well, that is going to weigh against an award of alimony. Often in divorces, they usually end up falling somewhere in between that in terms of how long the people are married. They’re going to weigh that along with the other factors that are found in the West Virginia code. So the court will look at that factor and they will look at the other 20 factors. Then they will conclude whether alimony should be awarded.

Now in West Virginia, notably, we do not have an actual alimony formula. There’s been a lot of talk in recent years about trying to set it up so that there is one, but as we speak today, there is no alimony formula. So what you’re going to have is a court is going to go through every single one of the factors that is found in the West Virginia code. Then the court is going to decide as to how long alimony should be awarded. Different judges rule in different ways when it comes to whether alimony should be awarded and for how much. It depends on the judge that you get. Some judges are very inclined to grant alimony while others are not. So you just have to be thinking about that and trying to assess whether you should come to an agreement or whether you should try to present the case to the judge.

That consists of today’s topic. If you have any questions at all, feel free to give us a call at (304) 720 4412 or email us at chris@prittlaw.com.

So let’s say that two people are going through a divorce and for whatever reason, one of the parents has moved out of the house. Let’s say it was a long time ago or a very significant duration. Sometimes that comes up in cases. It’s not always entirely clear at first why that was the case, but it sometimes becomes an issue as to why there was this delay.  The question I get regarding this is will this delay have some sort of impact on the case? I can tell you that generally, yes. If it has been a significant amount of time, it can have an impact on the kind of parenting time that one of the parents is going to get over the other.

One of the critical factors is going to be what the reason was for the one parent not being able to have contact with the child or children. So for example, let’s say that you have one parent who purposely moved out of state, and let’s say they just completely walked out and they’ve been gone for a significant duration of time, and there’s not really any good reason. That is certainly going to have an impact on the time that particular parent gets. Now, let’s say you have a situation where you have a parent who moves out and the reason for that is that they wanted to cut down on tension. Often that is a huge issue in cases is they don’t want to be arguing around the children. The parties mutually agree that one of them is going to be moving out. So as to cut down on the tension in the household, which can be considered to be in the best interest of the children, one of the parents is purposely keeping the children away from the other parent and not allowing them to have any kind of contact. Then certainly that is going to be a factor that the court is going to look at. That could potentially be used against the parent who is withholding the time away from the other parent.

One thing to remember is that a lot of times these things can be proven through text messages, or sometimes people have made audio recordings that provide a significant context as to whether that is the case. So I guess the point to take from this is whenever you’re looking at one of the parents being out of the home for a significant amount of time,  let’s say six months or sometimes even a little bit more or less than that, then what the reasons were for the time without seeing the children it’s going to have a huge impact. This is something you always need to be thinking about. Certainly, you need to be, if you’re the one moving out of the house. It’s always a good idea to be maintaining contact with the children as much as possible. If the other parent is not allowing you to see the child or children, then again make sure you have documentation on it. Make sure you can get that person to send some texts confirming it or something along those lines where you have actual proof. For example maybe even emails.

That consists of today’s topic. If you have any questions at all, feel free to give us a call at (304) 720 4412 or email us at chris@prittlaw.com.

This is a common question I often get. So, whenever you receive the divorce petition, it’s going to typically be received by either certified mail or in person. you’re going to have something attached to it called the summons. On the summons, it will state specifically on there that you have 20 days from the date of receipt to go and file your answer. There are some caveats to that though that we’re going to talk about here.

One thing that often confuses people is whenever they get the divorce petition and the answer, they look at the date that it was filed. This leaves them sometimes concerned about the timeframe because they’re looking at the date where it was filled in the courthouse and they think, oh no, I have 20 days from that date to file the answer. That’s not true. The way it works is generally you have 20 days from the date that you received it to file your answer. Now, if the 20 days happen to fall on a weekend, then you don’t have to file it on Friday before. For example, let’s say it falls on a weekend and you know Monday is a holiday and it’s due on that date. What happens is you can file on the next business day where the courthouse is open. That’s the way the court system works when it comes to filing answers. So you have 20 days, but if the 20 days is on a weekend or a holiday then it is due on the next business day when the courthouse is going to be open.

There’s something else that you can sometimes do that will put it off for at least another 10 days. This is what we call filing a notice of bonafide defense. It’s usually better to do this if you have an attorney, because it’s a fairly technical thing that you can do. However, that is something you can do to delay it for another 10 days.

So those are some general points to remember when you get the divorce petition. Just whatever you do, don’t think that you necessarily have to file it from 20 days from when the divorce petition was filed, because sometimes it might be  20 days or more until you get the divorce petition. It might be that for whatever reason there was a delay in it going out. I’ve seen it be delayed up to a month or more in terms of you getting served. So just keep that in mind.

That consists of today’s topic. If you have any questions at all, feel free to give us a call at (304) 720 4412 or email us at chris@prittlaw.com.

There are a number of factors that are going to be considered when deciding where the children are going to go. Today I’m specifically going to focus more on the time period between when a divorce has been filled in the magistrate court and when you go to family court. So, it’s really gonna depend on a number of factors. If you are filing a domestic violence petition on behalf of the children, then there’s a very strong likelihood that unless there’s some sort of special circumstance that the children are going to go with you. This is if you were filing on behalf of the children, that means if you were alleging that domestic violence was committed against the children.

When the allegation does not involve domestic violence being committed against the children, then it gets a little bit more complicated. I’ve seen the magistrate courts handle this in different ways. Sometimes what the magistrate court will do is they will award the children, no matter what, to the parent who is filing the domestic violence petition. In other instances, the magistrate courts will actually go and they will just leave the children with the person who has them at the time of the filing of the domestic violence petition. So, it really depends on the situation in that respect.

The other thing that they factor in is whether there is an existing parenting plan. I’ve seen instances in which the people have already gone through a divorce and even though they’ve already gone through the divorce there is a parenting plan in place. In the event that none of the allegations have been made involving the children they’ll just tell the people to go by the current parenting plan. Now, that becomes very complicated in the event that there are scheduled exchanges because between the magistrate court hearing and when you go to court there’s not supposed to be any contact between the two people. So that becomes problematic in some instances. So the point of this is it’s not super clear as to how a court is going to award children for that time period between magistrate court and when you go to family court. This time period should be within 10 days unless the person can’t get served or there’s another special circumstance.

After the domestic violence petition has been awarded the family court is going to have to make some decisions as to whether the parenting plan that was previously entered, if any, should be kept in place. Alternatively, they’ll have to make some decisions on what the parenting plan is going to be going forward in the event that the divorce petition has not yet been filed.

That consists of today’s topic. If you have any questions at all, feel free to give us a call at (304) 720 4412 or email us at chris@prittlaw.com

This is going to vary from county to county from court to court. When it comes to counties in which there is only one family court judge it’s very simple. The family court judge that you’re going to get is the one who has been elected in that County. Without limited exceptions, the circuit court is not going to hear a family court case whatsoever, unless there has been an appeal. So, if you’re filing in family court in the counties where you just have one family court judge, or you have one family court judge that covers several counties, then it’s very certain as to which judge you’re going to get. It’s going to be the only judge that’s there.

You do sometimes have situations where you have more than one family court judge. For example, here in Kanawha County, we have five family court judges. Then again in Raleigh County, there are three. If you go to other counties, they might have two and so on. It just depends. If nothing has ever been filed in the family court for the most part across the board in West Virginia then the judge you’re going to get is going to be randomly selected. Now, if there’s a situation where there’s some sort of conflict of interest or a limited situation where there might be potential bias, which is a high bar to get over, then you might get the other judge. Alternatively, if there’s some sort of conflict of interest, or there’s a reason to disqualify the judge, they might bring in a judge from another County or a judge who is retired. Ordinarily what they would do in situations where there are several judges in one particular County, is it would be randomly assigned.

Another rule that they have in many counties, Kanawha County is one but it might be the rule in several other counties, depending on which one is it, the role oftentimes is that if the judge has handled anything between the two people in the past, even cases that have been dismissed, that judge will continue to handle the case. That’s usually how it works. That’s certainly how it works here in Kanawha County. This is often the case in other counties as well.

So there are some pretty clear-cut rules as to how it’s determined whether a judge is going to be assigned to a case, but it’s going to vary from county to county. That consists of today’s topic. If you have any questions at all, feel free to give us a call at (304) 720 4412 or email us at chris@prittlaw.com.

One issue that comes up from time to time in a West Virginia divorce case is whether a child or children should be homeschooled. It’s become much more prevalent nowadays because of the escalation of COVID. Sometimes you have one parent that wants the child to stay home and be homeschooled. Then, you have the other parent that wants the child to go to a public school or private school. One of the things that you have to look at first is an event that there was a court order in place. The court order should include who has decision-making when it comes to education. Now, typically it is going to be joint decision making, but not always. If it is found to be the decision making on the part of one person or the other, that person is solely going to decide on whether a child is homeschooled.

If you’re just now going through the divorce process or you have joint decision-making, then it becomes a lot more problematic and difficult to deal with. You are going to have arguments on both sides as to whether homeschooling should or should not be found to be appropriate in a given circumstance. Worst case scenario what’s going to happen is if you cannot reach an agreement or resolution on that issue, both sides would get a chance to present to the judge whether they think homeschooling is in the best interest of the child.

Another example is let’s say you cannot reach an agreement and there’s already a parenting plan in place. Somebody would have to file for a modification or the appropriate motion with the court if it’s not resolved. If it’s not resolved through mediation, you would go in front of the judge and then the judge would decide. The same thing applies if you are just now going through a divorce and one parent wants to homeschool and the other parent doesn’t. I can tell you as a general rule of thumb, in my experience, the courts are more inclined, at least the judges I’ve been in front of, to go with an alternative other than homeschool if one of the parents is objecting to it. It’s just how the system is set up. Perhaps the judges look at it from the perspective of, well I feel safer if the child is in a public school or private school setting where they can be monitored. Anyways, that’s just generally what the courts do. Our statutes are set up such that when it comes to issues like that, the judges are usually going to decide when people cannot reach an agreement. There’s no stipulation in the order about who decides.

The big takeaway you need to take from this is that the judges are usually inclined not to allow a child to homeschool. Though it is certainly up to the judge to determine one way or the other whether that is in the best interest of the child. That consists of today’s topic. If you have any questions at all, feel free to give us a call at (304) 720 4412 or email us at chris@prittlaw.com.

This is a question that comes up from time to time. One thing that is always beneficial to do when possible is to try to resolve the case out of court. However, to be able to resolve the case outside of court there has to be a way in which both of the spouses can communicate with each other. One thing you cannot do, whether indirectly or directly whenever a protective order is in place is you’re not allowed to communicate with the other person. Now, one way that you can sometimes get around that is if one or both of you happen to have an attorney. In many divorce cases, people have communications with each other through their attorneys. If both of you have attorneys, the way it works is you are communicating directly with your attorney and your spouse is communicating with their attorney. Then the two attorneys will communicate with each other. Sometimes a lot can be resolved in that sense. It’s a little bit different though whenever somebody has filed a protective order against each other. So for example, if you have filed a protective order against your spouse, then the spouse cannot legally communicate with you because if the spouse has any kind of direct or indirect contact with you, then they are going to be subject to prosecution. It is a misdemeanor in West Virginia to violate a protective order. So it’s a big deal that you cannot communicate with your spouse whenever there is a protective order in place. The only solution that you have is to try to go through an attorney, because if you try to go through a third party that can potentially mean that the protective order is going to be violated.

I’ve had judges find that indirect contact, speaking through an intermediary of some sort, other than an attorney, can sometimes qualify as a violation of the protective order. Now, one thing that you can do though, is you can go to court and present your case. Oftentimes protective orders are filed right at the beginning of the divorce process. We have other videos where we go into detail about what domestic violence protective orders are. So if you want to catch up on that, I covered that in a different video. However, one thing that you can do is you can go to court and the first hearing is going to be the temporary hearing. At the temporary hearing, you can have the judge decide a lot of those issues. It’s not a settlement, meaning it’s not agreeing with the other person. However, at the same time, you can have some input from the judge.

The big thing you need to take from this video is if there’s a protective order in place unless you have an attorney, I do not consider it safe to have any kind of indirect or direct content with your soon to be former spouse. That consists of today’s topic. If you have any questions at all, feel free to give us a call at (304) 720 4412 or email us at chris@prittlaw.com