West Virginia Divorce When Your Spouse Won't Cooperate (2026)

If your spouse refuses to participate in an irreconcilable differences divorce, you have two primary options: the 1-year separation ground (no-fault, one party files) or a fault-based ground.

Option 1 — 1-Year Separation Ground

If you and your spouse have lived separately, without any cohabitation, for a continuous period of 1 year, you can file for divorce on this ground without your spouse's agreement.

Steps:

1. File a Petition for Divorce at Family Court alleging 1-year separation
2. Serve the Respondent
3. 20-day waiting period begins
4. If the Respondent doesn't contest the ground, proceed to final hearing
5. Present testimony confirming 1 year of continuous separation (no cohabitation)
6. Family Court judge enters Final Order of Divorce

Option 2 — Fault-Based Grounds

If you cannot use the 1-year separation ground, consider a fault ground:

• Adultery
• Cruel or inhuman treatment (physical or mental cruelty)
• Desertion (willful absence for 6 months)
• Conviction of a felony
• Habitual drunkenness or drug addiction (since marriage)
• Permanent and incurable insanity (institutionalized for 3 years)

Fault grounds require evidence and typically involve testimony. Consult a West Virginia attorney.

Service Options

Option 1 — Acceptance/Waiver of Service

Ask your spouse to sign an Acceptance of Service. Even uncooperative spouses sometimes sign to avoid sheriff service.

Option 2 — Sheriff's Service

West Virginia sheriff's office serves the Petition and Summons in the county where the Respondent lives. File the Return of Service.

• Cost: ~$30–$60

Option 3 — Process Server

Private process servers available in West Virginia.

Option 4 — Publication

If the Respondent cannot be located after a diligent search:

1. File Affidavit of Diligent Search with the Family Court
2. Court authorizes service by publication
3. Publish notice in a qualified newspaper for the required period
4. File Affidavit of Publication

After Service — Response Deadline

The Respondent has 20 days (for residents) to respond after personal service. If no response is filed, proceed with a Motion for Default.

Default Process

1. File Motion for Default
2. Default entered
3. 20-day waiting period still applies from filing date
4. Schedule default final hearing
5. Present testimony supporting your ground (1-year separation or fault)
6. Family Court judge enters Final Order of Divorce by default
7. Judge rules on property division and alimony based on your evidence

Temporary Orders

File a Motion for Temporary Relief for:

• Temporary alimony (spousal support pending final order)
• Exclusive use of the marital home
• Temporary child support and custody (if children)
• Restraining order against dissipation of marital assets

Last reviewed: March 2026 | 1-year separation (solo, no agreement needed) | Fault grounds also available | Sheriff service | 20-day response deadline | Default after no answer | Family Court | Temporary relief available | courtswv.gov

Last reviewed: March 2026 · Verify current fees and forms with your local court before filing.