CHAPTER 48. DOMESTIC RELATIONS.
§48-1-1. Age of consent for
marriage; exception.
§48-1-2. What relatives a man may not marry.
§48-1-3. What relatives a woman may not marry.
§48-1-4. Prohibition against marriage within certain degrees continues
notwithstanding dissolution of marriage creating relationship.
§48-1-5. Necessity of license.
§48-1-6. Waiting period before issuance of marriage license; issuance of
license in case of emergency or extraordinary circumstances.
§48-1-6a. Repealed.
§48-1-6b. Repealed.
§48-1-6c. Repealed.
§48-1-6d. Repealed.
§48-1-9. Form of marriage license.
§48-1-10. Endorsement and return of licenses by persons solemnizing
marriage; duties of clerk pertaining thereto.
§48-1-11. Register of marriages.
§48-1-12. Persons authorized to celebrate marriages.
§48-1-12a. Qualifications of minister, priest or rabbi for celebrating
marriages.
§48-1-12b. Ritual for ceremony of marriage by judges.
§48-1-12c. Ritual for ceremony of marriage by minister, rabbi or priest;
record of marriage.
§48-1-13. Repealed.
§48-1-14. Record of marriage celebrated outside of state.
§48-1-15. Belief of parties in lawful marriage validates certain defects.
§48-1-16. Repealed.
§48-1-17. Marriage out of state to evade law.
§48-1-18. Penalties for consanguineous marriage.
§48-1-18a. Certain acts, records and proceedings not to be given effect in
this state.
§48-1-19. Repealed.
§48-1-20. Repealed.
§48-1-21. Repealed.
§48-1-22. Failure to endorse and return license; penalties.
§48-1-23. Unlawful to solicit celebration of marriage, etc.
§48-1-24. Additional fee to be collected for each marriage license issued.
ARTICLE 2. DIVORCE, ANNULMENT AND
SEPARATE MAINTENANCE.
§48-2-1. Definitions.
§48-2-2. For what and when marriages void; affirmation or annulment of
marriage.
§48-2-3. What persons may not institute annulment action.
§48-2-4. Grounds for divorce.
§48-2-4a. Petition instituting a domestic relations action; answer.
§48-2-6. Right to sue to annul or affirm a marriage.
§48-2-7. Right to sue for divorce.
§48-2-8. Venue of actions for annulment, affirmation or divorce.
§48-2-9. Service of process.
§48-2-10. Procedure; verification of pleadings; necessary proof; costs.
§48-2-10b. Repealed.
§48-2-11. Infant, incompetent
and insane parties.
§48-2-12. Particeps criminis may become a party.
§48-2-13. Temporary relief during pendency of action for divorce, annulment
or separate maintenance
§48-2-14. When a divorce not to
be granted.
§48-2-15. Relief upon ordering divorce or annulment or granting decree of
separate maintenance.
ARTICLE 2A. PREVENTION AND TREATMENT
OF DOMESTIC AND FAMILY VIOLENCE.
§48-2A-1. Findings and purposes.
§48-2A-2. Definitions.
§48-2A-3. Jurisdiction; venue; effect of petitioner's leaving residence;
priority of petitions filed under this article; who may file; full faith and
credit; process.
§48-2A-3a. Divorce actions.
§48-2A-3b. Proceedings in magistrate court when temporary divorce, annulment
or separation order is in effect.
§48-2A-4. Commencement of proceeding; forms; counterclaim; accompanying
persons.
§48-2A-5. Temporary orders of court; hearings; persons present.
§48-2A-6. Protective orders.
§48-2A-7. Conditions of visitation in cases involving domestic or family
violence.
§48-2A-8. Testimony of husband and wife.
§48-2A-9. Law enforcement response to domestic or family violence.
§48-2A-10. Filing of orders with law-enforcement agency.
§48-2A-10a. Civil contempt; violation of protective orders; order to show
cause.
§48-2A-10b. Violations of protective orders; criminal complaints.
48-2A-10c. Arrest for violations of protective orders.
§48-2A-10d. Misdemeanor offenses for violation of protective order, repeat
offenses, penalties.
§48-2A-11. Appeals.
§48-2A-12. Registration of order.
§48-2A-13. Judicial education on family violence.
§48-2A-14. Arrest in domestic violence matters; conditions.
ARTICLE 2B. GRANDPARENT
VISITATION.
§48-2B-1. Legislative findings;
intent.
§48-2B-2. Definitions.
§48-2B-3. Visitation for grandparents.
§48-2B-4. Proceedings for visitation for grandparents.
§48-2B-5. Factors affecting a decision to grant visitation for grandparents.
§48-2B-6. Interview of child by judge.
§48-2B-7. Proof required.
§48-2B-8. Orders.
§48-2B-9. Effect of remarriage or adoption on visitation for grandparents.
§48-2B-10. Modification or termination of grandparent visitation.
§48-2B-11. Attorney's fees; reasonable costs.
§48-2B-12. Penalties for violation of order of visitation.
ARTICLE 2C. DOMESTIC VIOLENCE ACT.
§48-2C-1. Title.
§48-2C-2. Definitions.
§48-2C-3. Family protection services board; members; purposes.
§48-2C-4. Duties of board.
§48-2C-4a. Establishment of local councils authorized.
§48-2C-4b. State public health plan for reducing domestic or family
violence.
§48-2C-4c. Domestic violence legal services fund.
§48-2C-5. Closure of shelters; provisional licensee waivers.
§48-2C-6. Repealed.
§48-2C-7. Funding application
requirements.
§48-2C-8. Award provisions.
§48-2C-9. Annual reports of shelter and programs.
§48-2C-10. Referral to shelters by officers.
§48-2C-10a. Notice of victims' rights, remedies and available services;
required information.
§48-2C-11. Licenses.
§48-2C-12. Waiver.
§48-2C-13. Rules and regulations.
§48-2C-13a. Standards, procedures and curricula.
§48-2C-13b. Regulation of intervention programs for perpetrators; required
provisions; duties of providers.
§48-2C-13c. Licensing providers of intervention programs for perpetrators.
§48-2C-14. Continuation of board.
§48-2C-15. Confidentiality.
§48-2C-16. Continuing education for certain state employees.
§48-2C-17. Continuing education for law-enforcement officers concerning
domestic or family violence.
§48-2C-18. Judicial education on domestic or family violence.
§48-2C-19. Required curricula for public education system.
§48-2C-20. Continuing education for school personnel who are required to
report child abuse and neglect.
ARTICLE 3. PROPERTY, RIGHTS AND LIABILITIES OF MARRIED WOMEN; HUSBAND AND WIFE.
§48-3-1. Married woman may own
property as if single; property not subject to husband's control or debts.
§48-3-2. How married woman may acquire and dispose of property; effect on
husband's dower generally.
§48-3-3. Married woman may convey as if single; effect of conveyance on
husband's dower; binding effect and enforcement of contracts to convey;
liability on covenants.
§48-3-4. Conveyance by husband and wife passes dower and other interests of
both; binding effect of their contract to convey.
§48-3-5. Relinquishment of contingent right of dower by spouse not joining
in conveyance or contract to convey.
§48-3-6. Married woman may execute power of attorney.
§48-3-7. Conveyances between husband and wife.
§48-3-7a. Repealed.
§48-3-8. Contracts of married persons.
§48-3-9. Contracts between husband and wife unenforceable unless in writing
and signed.
§48-3-10. Presumption of gift in certain transactions between husband and
wife.
§48-3-11. Trust for married woman may be extinguished.
§48-3-12. Provisions of law relating to trusts available to married woman.
§48-3-13. Restraints on alienation of married woman's property.
§48-3-14. Husband not liable for wife's antenuptial debts.
§48-3-15. Liability of husband or wife upon conveyance or transfer of
property from one to other.
§48-3-16. Earnings of married woman; property purchased therewith.
§48-3-17. Married woman may engage in business.
§48-3-18. Married woman may be member of partnership.
§48-3-19. Actions by and against married woman; joinder of husband.
§48-3-19a. Married woman may sue for loss of consortium.
§48-3-20. Liability for married woman's torts.
§48-3-21. Lien of judgment against married woman; enforcement of judgment.
§48-3-22. Liability of husband and wife for purchases and services.
§48-3-23. Insurance for benefit of married woman.
§48-3-24. Husband not relieved of liability to support wife; contract to
alter marriage not authorized.
§48-3-25. Disability of minority of veterans and their spouses removed as to
transactions under "Servicemen's Readjustment Act."
§48-4-1. Definitions.
§48-4-2. Who may adopt.
§48-4-3. Persons whose consent or relinquishment is required; exceptions.
§48-4-3a. Timing and execution of consent or relinquishment.
§48-4-3b. Content of consent or relinquishment.
§48-4-3c. Conduct presumptively constituting abandonment.
§48-4-4. Consent or relinquishment by infants.
§48-4-5. Revocation of consent or relinquishment for adoption.
§48-4-6. Delivery of child for adoption; filing of petition.
§48-4-7. Petition and appendix.
§48-4-8. Who shall receive notice.
§48-4-8a. How notice is to be served.
§48-4-8b. Notice to an unknown father.
§48-4-9. Proceedings.
§48-4-10. Recordation of order; fees; disposition of records; names of
adopting parents and persons previously entitled to parental rights not to be
disclosed; disclosure of identifying and nonidentifying information;
certificate for state registrar of vital statistics; birth certificate.
§48-4-11. Effect of order as to relations of parents and child and as to
rights of inheritance; intestacy of adopted child.
§48-4-12. Finality of order; challenges to order of adoption.
§48-4-13. Adoption of adults.
§48-4-14. Jurisdiction of courts.
§48-4-15. Contracts limiting or restraining adoptions.
§48-4-16. Prohibition of purchase or sale of child; penalty; definitions;
exceptions.
ARTICLE 4A. VOLUNTARY ADOPTION
REGISTRY.
§48-4A-1. Policy and purposes.
§48-4A-2. Definitions.
§48-4A-3. Prohibited conduct.
§48-4A-4. Nondisclosure.
§48-4A-5. Rulemaking.
§48-4A-6. The compilation of nonidentifying information on health history
and social and genetic history.
§48-4A-7. Use of the mutual consent voluntary adoption registry.
§48-4A-8. Operation of the mutual consent voluntary adoption registry.
§48-5-1. Petition to circuit
court for change of name; contents thereof; notice of application.
§48-5-2. Objections to change of name.
§48-5-3. When court may order
change of name.
§48-5-4. Recordation of order changing name.
§48-5-5. When new name to be used.
§48-5-6. Unlawful change of name.
§48-5-7. Unlawful change of name by certain felons and registrants.
§48-6-1 to 48-6-3. Repealed.
ARTICLE 7. INTRASTATE SUPPORT ACT.
§48-7-1 to 48-7-5. Repealed.
ARTICLE 8. ENFORCEMENT OF SUPPORT OBLIGATIONS.
§48-8-1 to 48-8-5. Repealed.
ARTICLE
9. REVISED UNIFORM RECIPROCAL ENFORCEMENT OF SUPPORT ACT.
§48-9-1 to 48-9-42. Repealed.
ARTICLE 10. UNIFORM CHILD CUSTODY JURISDICTION ACT.
§48-10-1 to 48-10-26. Repealed.
ARTICLE 11. ALLOCATION OF CUSTODIAL
AND DECISION-MAKING RESPONSIBILITY FOR CHILDREN.
PART I. SCOPE, OBJECTIVES, DEFINITIONS AND PARTIES.
§48-11-101. Scope of article;
legislative findings and declarations.
§48-11-102. Objectives; best interests of the child defined.
§48-11-103. Parties to an action under this article.
§48-11-104. Parent education classes.
§48-11-201. Parenting
agreements.
§48-11-202. Court-ordered services.
§48-11-203. Proposed temporary parenting plan; temporary order; amendment;
vacation of order.
§48-11-204. Criteria for temporary parenting plan.
§48-11-205. Permanent parenting plan.
§48-11-206. Allocation of custodial responsibility.
§48-11-207. Allocation of significant decision-making responsibility.
§48-11-208. Criteria for parenting plan; dispute resolution.
§48-11-209. Parenting plan; limiting factors.
§48-11-301. Court-ordered
investigation.
§48-11-302. Appointment of guardian.
§48-11-303. Interview of the child by the court.
PART IV. MODIFICATION OF PARENTING PLAN.
§48-11-401. Modification upon
showing of changed circumstances or harm.
§48-11-402. Modification without showing of changed circumstances.
§48-11-403. Relocation of a parent.
PART V. ENFORCEMENT OF PARENTING PLANS.
§48-11-501. Enforcement of
parenting plans.
PART VI. MISCELLANEOUS PROVISIONS.
§48-11-601. Access to a child’s
records.
§48-11-602. Designation of custody for the purpose of other state and
federal statutes.
§48-11-603. Effect of enactment; operative dates.
§48-11-604. Effect of enactment; modification of child visitation privileges
in certain cases.
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CHAPTER 48.
DOMESTIC RELATIONS.
ARTICLE 1. MARRIAGE.
§48-1-1. Age of consent for marriage; exception.
The age of consent for marriage for both the
male and the female shall be eighteen years of age. Any person under the age of
eighteen must obtain the consent of the parent or legal guardian in whose
custody that person is at the time of application for a marriage license. That
consent shall be given to the clerk of the county commission by a writing duly
acknowledged before an officer authorized to acknowledge a deed. No person
under the age of sixteen may be issued a license except upon order of the
circuit judge and with the consent of the parent or guardian: Provided,
That a circuit judge of the circuit in which the application for a marriage
license is filed may order the clerk to issue a license to any person under the
age of sixteen if, in his discretion, the issuance of a license is in the best
interest of the applicant and consent of the parent or guardian has been given
in the manner required by this section.
§48-1-2. What relatives a man may not marry.
No man shall marry his mother, grandmother,
sister, daughter, granddaughter, half sister, aunt, brother's daughter,
sister's daughter, first cousin or double cousin: Provided, That for the
purpose of this section cousin or double cousin shall not include persons whose
relationship is created solely by adoption: Provided, however, That if
it be necessary to open and examine the record of any adoption proceeding in
the state to ascertain that a relationship of cousin or double cousin is
created solely by adoption, then an application may be made to the circuit
court wherein such proceeding was had, by the clerk of the county commission
seeking to issue the marriage license, or either party applying for such
license, to open such record and cause examination thereof. Upon such
application, the judge shall examine the record confidentially and report to
the clerk whether the record discloses any consanguinity prohibited by this
section and may grant such other relief prayed for which may be proper under
section four, article four of this chapter.
§48-1-3. What relatives a woman may not marry.
No woman shall marry her father, grandfather,
brother, son, grandson, half brother, uncle, brother's son, sister's son, first
cousin or double cousin: Provided, That for the purpose of this section
cousin or double cousin shall not include persons whose relationship is created
solely by adoption: Provided, however, That if it be necessary to open
and examine the record of any adoption proceeding in the state to ascertain
that a relationship of cousin or double cousin is created solely by adoption,
then an application may be made to the circuit court wherein such proceeding
was had, by the clerk of the county commission seeking to issue the marriage
license, or either party applying for such license, to open such record and
cause examination thereof. Upon such application, the judge shall examine the
record confidentially and report to the clerk whether the record discloses any
consanguinity prohibited by this section and may grant such other relief prayed
for which may be proper under section four, article four of this chapter.
§48-1-4. Prohibition against marriage within certain degrees continues
notwithstanding dissolution of marriage creating relationship.
In the cases mentioned in the two preceding
sections, in which the relationship is founded on a marriage, the prohibition
shall continue in force, notwithstanding the dissolution of such marriage by
death or divorce, unless the divorce be for a cause which made the marriage,
originally, unlawful or void.
§48-1-5. Necessity of license.
Every marriage in this state shall be solemnized
under a license as provided in this article.
§48-1-6. Waiting period before issuance of marriage license; issuance of
license in case of emergency or extraordinary circumstances.
(a) If one or both of the applicants are
residents of this state, they may apply for a marriage license to be issued by
the clerk of the county commission of the county in which a resident applicant
usually resides. If both parties are nonresidents of this state, they may apply
for a license to be issued by the clerk of the county commission in any county
in this state.
(b) Except as otherwise provided in subsection
(c) of this section, if either or both of the applicants for a marriage license
is under eighteen years of age, the clerk of the county commission may not
issue a marriage license until two full days elapse after the day the license
application is filed.
(c) In case of an emergency or extraordinary
circumstances, as shown by affidavit or other proof, a circuit judge of the
county in which an application for a marriage license will be filed may order
the clerk of the county commission to issue a license at any time before the
expiration of the waiting period prescribed in subsection (b) of this section.
The clerk of the county commission shall attach a certified copy of the judge’s
order to the application and issue the marriage license in accordance with the
order. If the judge or judges of the county in which the application will be
filed are absent or incapacitated, the order may be made and directed to the
clerk of the county commission of the county by a circuit judge in any
adjoining judicial circuit, or a special judge appointed by the supreme court
of appeals.
(d) Applications for licenses may be received
and licenses may be issued by the clerk of the county commission at anytime the
office of the clerk is officially open for the conduct of business.
§48-1-6a.
Repealed.
Acts, 1999 Reg. Sess., Ch. 173.
§48-1-6b.
Repealed.
Acts, 1999 Reg. Sess., Ch. 173.
§48-1-6c.
Repealed.
Acts, 1999 Reg. Sess., Ch. 173.
§48-1-6d.
Repealed.
Acts, 1999 Reg. Sess., Ch. 173.
§48-1-7. Contents of application for marriage license; execution of
application; recordation of application.
(a) The application for a marriage license must
contain a statement of the full names of both female and male parties, their
social security account numbers, dates of birth, places of birth and residence
addresses. If either of the parties is a legal alien in the United States of
America and has no social security account number, the tourist or visitor visa
number or number equivalent to a United States social security account number
must be provided.
(b) Every application for a marriage license
must contain the following statement: "Marriage is designed to be a loving
and lifelong union between a woman and a man. The laws of this state affirm
your right to enter into this marriage and to live within the marriage free
from violence and abuse. Neither of you is the property of the other. Physical
abuse, sexual abuse, battery and assault of a spouse or other family member,
and other provisions of the criminal laws of this state are applicable to
spouses and other family members and these violations are punishable by
law."
(c) Both female and male parties to a
contemplated marriage are required to sign the application for a marriage
license, under oath, before the clerk of the county commission or another
person authorized to administer oaths under the laws of this state.
(d) The clerk shall record the application for a
marriage license in the register of marriages provided for in section eleven of
this article. The clerk shall note the date of the filing of the application in
the register. The notation, or a certified copy thereof, is legal evidence of
the facts contained in the license.
§48-1-8. Proof of age.
(a) At the time of the execution of the
application, the clerk or the person administering the oath to the applicants
shall require evidence of the age of each of the applicants. Evidence of age
may be as follows:
(1) A certified copy of a birth certificate or a
duplicate thereof produced by any means that accurately reproduces the
original;
(2) A voter's registration certificate;
(3) An operator's or chauffeur's license;
(4) The affidavit of both parents or the legal
guardian of the applicant; or
(5) Other good and sufficient evidence.
(b) If an affidavit is relied upon as evidence
of the age of an applicant, and if one parent is dead, the affidavit of the
surviving parent or of the guardian of the applicant is sufficient. If both
parents are dead, the affidavit of the guardian of the applicant is sufficient.
If the parents of the applicant live separate and apart, the affidavit of the
parent having legal custody of the applicant is sufficient.
§48-1-8a. Unlawful acts by clerk of the county commission; penalties.
(a) It is unlawful for a clerk of the county
commission to do any of the following acts:
(1) To make a false entry as to the date of
application for a marriage license;
(2) To issue a marriage license prior to the end
of the required three-day period (unless a circuit judge dispenses with this
requirement by order pursuant to subsection (c), section six of this article);
(3) To issue a license on any Sunday or a legal
holiday; or
(4) To receive an application for a marriage
license or issue a marriage license in any place other than the office of the
clerk of the county commission.
(b) A clerk of the county commission who
violates the provisions of subsection (a) of this section is guilty of a
misdemeanor, and, upon conviction thereof, shall be punished by a fine of not
less than two hundred dollars nor more than one thousand dollars, or by
confinement in jail for not less than three months nor more than nine months,
or by both such fine and confinement, in the discretion of the court.
(c) A clerk of the county commission who
otherwise knowingly issues a marriage license contrary to law is guilty of a
misdemeanor and, upon conviction thereof, shall be punished by a fine not
exceeding five hundred dollars, or by confinement in jail for not more than one
year, or by both such fine and confinement, in the discretion of the court.
§48-1-9. Form of marriage license.
The marriage license shall be in form
substantially as follows:
Marriage License.
State of West Virginia, County of
__________________, to wit:
To any person authorized to celebrate marriages:
You are hereby authorized to join together in
matrimony ______________________________ and ______________________________
Given under my hand, as clerk of the county
court of the county of _____________, this _____ day of ______________, 19___.
__________________________
Clerk as
aforesaid.
§48-1-10. Endorsement and return of licenses by persons solemnizing
marriage; duties of clerk pertaining thereto.
Every person solemnizing a marriage shall retain
the license authorizing such marriage, and on or before the fifth day of each
month shall forward to the county clerk issuing such license the original of
all such licenses in his possession, with an endorsement thereon of the fact of
such marriage and the time and place of celebrating the same. In the event that
the marriage authorized by such license is not solemnized within sixty days
from the date of its issuance, then such license shall become null and void.
Should the county clerk not receive the said original within sixty days after
its issuance, he shall by certified mail notify each of the applicants of that
fact.
§48-1-11. Register of marriages.
The county court of each county shall furnish to
the clerk of such county court a suitable book to be used as a register of
marriages, which such clerk shall keep in his office among his records, and in
which he shall promptly enter a complete record of all matters which he is
required by this article to ascertain relative to the right of any person to
obtain a marriage license, of each marriage license issued by him, and of the
minister's, priest's, rabbi's, or judge's endorsement certifying that such
marriage was solemnized. Such register of marriage shall be properly indexed by
the clerk in the names of both parties to the marriage: Provided, however,
That if the license is issued by reason of the female being pregnant, such fact
of pregnancy shall not be noted in the clerk's register of marriages.
§48-1-12. Persons authorized to celebrate marriages.
Any minister, priest or rabbi, over the age of
eighteen years, who has complied with the provisions of section twelve-a of
this article, or a judge of any court of record in this state, is authorized to
celebrate the rites of marriage in all the counties of the state. No person,
other than a minister, priest or rabbi, who has complied with the provisions of
section twelve-a of this article, or a judge of any court of record in this
state, shall hereafter celebrate the rites of marriage in this state, anything
in any act of the Legislature or of any court to the contrary, notwithstanding.
Wherever in this article the terms
"minister,""priest" or "rabbi" shall appear, the
same shall be understood and held in all respects to include, without being
limited to, a leader or representative of a generally recognized spiritual
assembly, church or religious organization which does not formally designate or
recognize persons as ministers, priests or rabbis.
§48-1-12a. Qualifications of minister, priest or rabbi for celebrating
marriages.
When any minister, priest or rabbi shall, before
the county court of any county in this state, or the clerk of any such court in
vacation, produce proof that he is over the age of eighteen, duly licensed by,
and being in regular communion with, the religious society of which he is a
member, and give bond in the penalty of fifteen hundred dollars, with surety
approved by such court or clerk thereof in vacation, such court or clerk may
make an order authorizing him to celebrate the rites of marriage in all the
counties of the state: Provided, That any minister, priest or rabbi who
gives proof before the county court of any county in this state, or the clerk
of any such court in vacation, of his ordination or authorization by his
respective church, denomination, synagogue or religious society, shall be
exempted from the giving of such bond.
§48-1-12b. Ritual for ceremony of marriage by judges.
The ritual for the ceremony of marriages by
judges of courts of record in this state may be as follows: At the time
appointed, the persons to be married, being qualified according to the law of
the state of West Virginia, standing together facing the judge, the man at the
judge's left hand and the woman at the right, the judge shall say:
"We are gathered here, in the presence of
these witnesses, to join together this man and this woman in matrimony. It is
not to be entered into unadvisedly but discreetly, sincerely, and in dedication
of life.
(Then shall the judge say to the man, using his
christian name:)
"N., wilt thou have this woman to be thy
wedded wife, to live together in the bonds of matrimony? Wilt thou love her,
comfort her, honor and keep her in sickness and in health?
(Then the man shall answer:)
"I will.
(Then the judge shall say to the woman, using
her christian name:)
"N., wilt thou have this man to be thy
wedded husband, to live together in the bonds of matrimony? Wilt thou love him,
comfort him, honor and keep him in sickness and health?
(The woman shall answer:)
"I will.
(Then may the judge say:)
"Who giveth this woman to be married to
this man?
(The father of the woman, or whoever giveth her
in marriage, shall answer:)
"I do.
(Then the judge shall ask the man to say after
him:)
"I, N., take thee, N., to be my wedded
wife, to have and to hold, from this day forward, for better, for worse, for
richer, for poorer, in sickness and in health, to love, and to cherish, as long
as life shall last, and thereto I pledge thee my faith.
(Then the judge shall ask the woman to repeat
after him:)
"I, N., take thee, N., to be my wedded
husband, to have and to hold, from this day forward, for better, for worse, for
richer, for poorer, in sickness and in health, to love and to cherish, as long
as life shall last, and thereto I pledge thee my faith.
(Then, if there be a ring, the judge shall say:)
"The wedding ring is an outward and visible
sign--signifying unto all, the uniting of this man and this woman in matrimony.
(The judge then shall deliver the ring to the
man to put on the third finger of the woman's left hand. The man shall say
after the judge:)
"In token and pledge of the vow between us
made, with this ring, I thee wed.
(Then, if there be a second ring, the judge
shall deliver it to the woman to put upon the third finger of the man's left
hand; and the woman shall say after the judge:)
"In token and pledge of the vow between us
made, with this ring, I thee wed.
(Then shall the judge say:)
"Forasmuch as N. and N. have consented
together in wedlock, and have witnessed the same each to the other and before
these witnesses, and thereto have pledged their faith each to the other, and
have declared the same by giving (and receiving) a ring, by virtue of the
authority vested in me as judge of this court, I pronounce that they are
husband and wife together."
§48-1-12c. Ritual for ceremony of marriage by minister, rabbi or priest;
record of marriage.
A minister, priest or rabbi authorized to
celebrate the rites of marriage shall perform the ceremony of marriage
according to the rites and ceremonies of his religious denomination, church,
synagogue or religious society and the laws of the state of West Virginia.
A record of each marriage performed, with the
names of the parties, their respective places of residence prior to marriage,
and the date of marriage, shall be kept by the officiating minister, priest or
rabbi in the permanent record of the church, synagogue or religious society
which he serves.
§48-1-13.
Repealed.
Acts, 1969 Reg. Sess., Ch. 48.
§48-1-14. Record of marriage celebrated outside of state.
If at the time of celebrating any marriage out
of this state, either or both of the parties thereto be a resident or residents
of this state, a certificate or statement thereof, verified by the affidavit of
any person present at such celebration, or a transcript of the marriage record,
certified by the custodian of such records, from the state where the marriage
was celebrated, may be returned to the clerk of the county court of the county
in which the husband resides, if he be such resident, and otherwise of the
county in which the wife resides, and an abstract thereof shall be recorded by
such clerk in the register of marriages and indexed in the name of both
parties.
§48-1-15. Belief of parties in lawful marriage validates certain defects.
No marriage solemnized by any person professing
to be authorized to solemnize the same shall be deemed or adjudged to be void,
nor shall the validity thereof be in any way affected, on account of any want
of authority in such person, if the marriage be in all other respects lawful,
and be consummated with a full belief on the part of the persons so married, or
either of them, that they have been lawfully joined in marriage; nor shall any
marriage celebrated within this state, between the seventeenth day of April,
eighteen hundred and sixty-one, and the first day of January, eighteen hundred
and sixty-six, be void by reason of the same having been so solemnized without
a license.
§48-1-16.
Repealed.
Acts, 1990 Reg. Sess., Ch. 69.
§48-1-17. Marriage out of state to evade law.
If any person resident of this state shall, in
order to evade the law, and with an intention of returning to reside in this
state, go into another state or country, and there intermarry in violation of
section one, article two of this chapter, and shall afterwards return and
reside here, such marriage shall be governed by the same law, in all respects,
as if it had been solemnized in this state.
§48-1-18. Penalties for consanguineous marriage.
If any person marry in violation of the second
or third sections of this article, he shall be guilty of a misdemeanor, and,
upon conviction thereof, shall be fined not exceeding five hundred dollars, or
confined in jail not more than six months, or both, at the discretion of the
court. And if any persons, resident in this state, and within the degrees of
relationship mentioned in said second and third sections, shall go out of this
state for the purpose of being married, with the intention of returning, and be
married out of it, and afterwards return to and reside in it, cohabiting as man
and wife, they shall be as guilty and be punished as if the marriage had been
in this state. The fact of their cohabitation here as man and wife shall be
evidence of their marriage.
§48-1-18a. Certain acts, records and proceedings not to be given effect in this
state.
A public act, record or judicial proceeding of
any other state, territory, possession or tribe respecting a relationship
between persons of the same sex that is treated as a marriage under the laws of
any other state, territory, possession or tribe or a right or claim arising
from the relationship shall not be given effect by this state.
§48-1-19.
Repealed.
Acts, 1969 Reg. Sess., Ch. 48.
§48-1-20.
Repealed.
Acts, 1999 Reg. Sess., Ch. 173.
§48-1-21.
Repealed.
Acts, 1969 Reg. Sess., Ch. 48.
§48-1-22. Failure to endorse and return license; penalties.
If any minister, priest or rabbi who shall have
given bond in order to become authorized to celebrate marriages in this state
shall willfully fail to comply with the provisions of section ten of this
article, the conditions of such bond shall be deemed to be thereby broken and
such bond shall be forfeited as otherwise provided by law, and the license of
any minister, priest or rabbi who shall willfully fail to comply with the
provisions of said section ten, whether he shall have given bond or not, to
celebrate marriages shall be suspended for a period of not less than six months
and not to exceed one year. It shall be the duty of the county clerk to whom
the marriage license should have been returned to notify the prosecuting
attorney of such county of such failure to return such marriage license as
provided in section ten of this article, and, thereupon, it shall be the duty
of such prosecuting attorney to institute proceedings before a judge of the
circuit court of said county to suspend the license of any such minister,
priest or rabbi to celebrate marriages, after reasonable notice of such
proceedings has been given to such minister, priest or rabbi. Said court shall determine
all questions of law and fact.
§48-1-23. Unlawful to solicit celebration of marriage, etc.
It shall be unlawful for any minister, priest or
rabbi to solicit in any manner the celebration of any marriage ceremony and it
shall be unlawful for a minister, priest or rabbi, by giving or making directly
or indirectly, any tip, gift, present, subscription, contribution, loan or
anything of value, to reward any person who may accompany, bring, send or
direct the holders of a marriage license to such minister, priest or rabbi. The
penalty for a violation of the foregoing provisions shall be a revocation of
the license of such minister, priest or rabbi to celebrate marriages and no
such license shall thereafter be issued to him. It shall be the duty of the
prosecuting attorney of the county wherein the violation occurs, to institute
proceedings before the judge of the circuit court of said county to revoke said
license, after reasonable notice thereof has been given to said minister,
priest or rabbi. Said court shall determine all questions of law and fact.
§48-1-24. Additional fee to be collected for each marriage license issued.
In addition to any fee heretofore established
for the issuance of a marriage license, the county clerk shall collect a sum of
fifteen dollars for each marriage license issued which additional sum shall be
paid into a special revenue account of the state treasury to be dispersed to
local family protection shelters as provided in article two-c of this chapter.
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ARTICLE 2. DIVORCE, ANNULMENT AND SEPARATE MAINTENANCE.
§48-2-1. Definitions.
For the purposes of this chapter and chapter
forty-eight-a of this code, the words and phrases defined in the following
subdivisions of this section, and any variation of those words and phrases
required by the context, have the meanings ascribed to them in this section.
These definitions are applicable unless a different meaning clearly appears
from the context.
(1) "Alimony" means the allowance
which a person pays to or in behalf of the support of his or her spouse or
divorced spouse while they are separated or after they are divorced. The
payment of alimony may be required by court order or by the terms of a
separation agreement. Alimony may be paid in a lump sum or paid in installments
as periodic alimony. Alimony includes temporary alimony as that term is used in
section thirteen of this article, as well as alimony as that term is used in
section fifteen of this article and elsewhere throughout this article.
(2) "Alimony in gross" means alimony
payable either in a lump sum, or in periodic payments of a definite amount over
a specific period of time. An alimony award is "alimony in gross"
only if the award grants alimony in such terms that a determination can be made
of the total amount to be paid as well as the time such payments will cease.
(3) "Antenuptial agreement" or
"prenuptial agreement" means an agreement between a man and woman
before marriage, but in contemplation and generally in consideration of
marriage, whereby the property rights and interests of the prospective husband
and wife, or both of them, are determined, or where property is secured to
either or both of them, to their separate estate, or to their children or other
persons. An antenuptial agreement may include provisions which define the
respective property rights of the parties during the marriage, or in the event
of the death of either or both of the parties, and may provide for the
disposition of marital property upon an annulment of the marriage or a divorce
or separation of the parties. A prenuptial agreement is void if at the time it
is made either of the parties is a minor.
(4) "Caretaking functions" means tasks
that involve interaction with the child or care of the child, including the
direction of interaction and care by others. Caretaking functions include the
following:
(A) Feeding, bedtime and wake-up routines, care
of the child when sick or hurt, bathing, grooming, personal hygiene, dressing,
recreation and play, physical safety, transportation and other functions that
meet the daily physical needs of the child;
(B) Direction of the child's various
developmental needs, including the acquisition of motor and language skills,
toilet training, self-confidence and maturation;
(C) Discipline, instruction in manners,
assignment and supervision of chores and other tasks that attend to the child's
needs for behavioral control and self-restraint;
(D) Arrangements for the child's education,
including remedial or special services appropriate to the child's needs and
interests, communication with teachers and counselors and supervision of
homework;
(E) The development and maintenance of
appropriate interpersonal relationships with peers, siblings and adults;
(F) Arrangements for health care, including
making appointments, communication with health care providers, medical
follow-up and home health care;
(G) Moral guidance; and
(H) Arrangement of alternative care by a family
member, baby-sitter or other child care provider or facility, including
investigation of alternatives, communication with providers and supervision.
(5) "Custodial responsibility" refers
to physical custodianship and supervision of a child. It usually includes, but
does not necessarily require, the exercise of residential or overnight
responsibility.
(6) "Decision-making responsibility"
refers to authority for making significant life decisions on behalf of a child,
including, but not limited to, the child's education, spiritual guidance and
health care.
(7) "Earnings" means compensation paid
or payable for personal services, whether denominated as wages, salary,
commission, bonus or otherwise, and includes periodic payments pursuant to a
pension or retirement program. "Disposable earnings" means that part
of the earnings of any individual remaining after the deduction from those
earnings of any amounts required by law to be withheld.
(8) "Family law master" means a
commissioner of the circuit court appointed or elected and authorized to hear
certain domestic relations actions under section ten, article two-a, chapter
fifty-one of this code.
(9) "Income" includes, but is not
limited to, the following:
(A) Commissions, earnings, salaries, wages and
other income due or to be due in the future to an individual from his employer
and successor employers;
(B) Any payment due or to be due in the future
to an individual from a profit-sharing plan, a pension plan, an insurance
contract, an annuity, social security, unemployment compensation, supplemental
employment benefits, workers' compensation benefits, state lottery winnings and
prizes and overtime pay; and
(C) Any amount of money which is owing to an
individual as a debt from an individual, partnership, association, public or
private corporation, the United States or any federal agency, this state or any
political subdivision of this state, any other state or a political subdivision
of another state, or any other legal entity which is indebted to the obligor.
(10) "Legal parent" means an
individual defined as a parent, by law, on the basis of biological
relationship, presumed biological relationship, legal adoption or other
recognized grounds.
(11) "Marital property" means:
(A) All property and earnings acquired by either
spouse during a marriage, including every valuable right and interest,
corporeal or incorporeal, tangible or intangible, real or personal, regardless
of the form of ownership, whether legal or beneficial, whether individually
held, held in trust by a third party, or whether held by the parties to the
marriage in some form of co-ownership such as joint tenancy or tenancy in
common, joint tenancy with the right of survivorship, or any other form of
shared ownership recognized in other jurisdictions without this state, except
that marital property shall not include separate property as defined in
subdivision (19) of this section; and
(B) The amount of any increase in value in the
separate property of either of the parties to a marriage, which increase
results from: (i) An expenditure of funds which are marital property, including
an expenditure of such funds which reduces indebtedness against separate
property, extinguishes liens, or otherwise increases the net value of separate
property; or (ii) work performed by either or both of the parties during the
marriage.
The definitions of "marital property"
and "separate property" contained in this section shall have no
application outside of the provisions of this article, and the common law as to
the ownership of the respective property and earnings of a husband and wife, as
altered by the provisions of article three of this chapter and other provisions
of this code, are not abrogated by implication or otherwise, except as
expressly provided for by the provisions of this article as such provisions are
applied in actions brought under this article or for the enforcement of rights
under this article.
(12) "Mediation" means a method of
alternative dispute resolution in which a neutral third person helps resolve a
dispute. Mediation is an informal, nonadversarial process whereby the neutral
third person, the mediator, assists parties to a dispute to resolve, by
agreement, some or all of the differences between them. The mediator has no
authority to render a judgment on any issue of the dispute.
(13) "Mediator" means a neutral third
person who interposes between two contending parties, with their consent, for
the purpose of assisting them in settling their differences.
(14) "Parent" means a legal parent as
defined in subdivision (10) of this section unless otherwise specified.
(15) "Parenting functions" means tasks
that serve the needs of the child or the child's residential family. Parenting
functions include caretaking functions, as defined in subdivision (4) of this
section. Parenting functions also include functions that are not caretaking
functions, including:
(A) Provision of economic support;
(B) Participation in decisionmaking regarding
the child's welfare;
(C) Maintenance or improvement of the family
residence, home or furniture repair, home-improvement projects, yard work and
house cleaning;
(D) Financial planning and organization, car
repair and maintenance, food and clothing purchasing, cleaning and maintenance
of clothing, and other tasks supporting the consumption and savings needs of
the family; and
(E) Other functions usually performed by a
parent or guardian that are important to the child's welfare and development.
(16) "Parenting plan" means a
temporary parenting plan as defined in subdivision (22) of this section or a
permanent parenting plan as defined in subdivision (17) of this section.
(17) "Permanent parenting plan" means
a plan for parenting a child that is incorporated into a final order or
subsequent modification order in a domestic relations action. The plan
principally establishes, but is not limited to, the allocation of custodial
responsibility and significant decision-making responsibility and provisions
for resolution of subsequent disputes between the parents.
(18) "Rehabilitative alimony" means
alimony payable for a specific and determinable period of time, designed to
cease when the payee is, after the exercise of reasonable efforts, in a
position of self-support.
(19) "Separate property" means:
(A) Property acquired by a person before
marriage; or
(B) Property acquired by a person during
marriage in exchange for separate property which was acquired before the
marriage; or
(C) Property acquired by a person during
marriage, but excluded from treatment as marital property by a valid agreement
of the parties entered into before or during the marriage; or
(D) Property acquired by a party during marriage
by gift, bequest, devise, descent or distribution; or
(E) Property acquired by a party during a
marriage but after the separation of the parties and before the granting of a
divorce, annulment or decree of separate maintenance; or
(F) Any increase in the value of separate
property as defined in paragraph (A), (B), (C), (D) or (E) of this subdivision
which is due to inflation or to a change in market value resulting from
conditions outside the control of the parties.
(20) "Separation" or "separation
of the parties" means the separation of the parties next preceding the filing
of an action under the provisions of this article, which separation continues,
without the parties cohabiting or otherwise living together as husband and
wife, and without interruption.
(21) "Separation agreement" means a
written agreement entered into by a husband and wife whereby they agree to live
separate and apart from each other and, in connection therewith, agree to
settle their property rights; or to provide for the custody and support of
their minor child or children, if any; or to provide for the payment or waiver
of alimony by either party to the other; or to otherwise settle and compromise
issues arising out of their marital rights and obligations. Insofar as an
antenuptial agreement as defined in subdivision (3) of this section affects the
property rights of the parties or the disposition of property upon an annulment
of the marriage, or a divorce or separation of the parties, such antenuptial
agreement shall be regarded as a separation agreement under the provisions of
this article.
(22) "Temporary parenting plan" means
a plan incorporated into a temporary or interlocutory order that provides for
the parenting of a child pending final resolution of a domestic relations
action.
§48-2-2. For what and when marriages void; affirmation or annulment of
marriage.
(a) The following marriages are voidable and
shall be void from the time they are so declared by a judgment order of
nullity:
(1) Marriages which are prohibited by law on
account of either of the parties having a wife or husband of a prior marriage,
when such prior marriage has not been terminated by divorce, annulment or
death;
(2) Marriages which are prohibited by law on
account of consanguinity or affinity between the parties;
(3) Marriages solemnized when either of the
parties:
(A) Was an insane person, idiot or imbecile;
(B) Was afflicted with a venereal disease;
(C) Was incapable, because of natural or
incurable impotency of the body, of entering into the marriage state;
(D) Was under the age of consent; or
(E) Had been, prior to the marriage and without
the knowledge of the other party, convicted of an infamous offense.
(4) Marriages solemnized when, at the time of
the marriage, the wife, without the knowledge of her husband:
(A) Was with child by some person other than the
husband; or
(B) Had been, prior to the marriage, notoriously
a prostitute;
(5) Or, marriages solemnized when, prior to the
marriage, the husband, without the knowledge of the wife, had been notoriously
a licentious person.
(b) When a marriage is supposed to be void, or
voidable, or any doubt exists as to its validity, for any of the causes set
forth in subsection (a) of this section, or for any other cause recognized in law,
either party may, except as provided in the next succeeding section, institute
an action for annulling or affirming the same, and, upon hearing the proofs and
allegations of the parties, the court shall enter a judgment order annulling or
affirming the marriage, according to the right of the case. In every such case,
and in every other case where the validity of a marriage is called into
question, it shall be presumed that the marriage is valid, unless the contrary
be clearly proven, and, if the marriage be adjudged to be valid, it shall be
conclusive upon all persons concerned.
§48-2-3. What persons may not institute annulment action.
An action for annulling a marriage may not be
instituted:
(a) Where the cause is the natural or incurable
impotency of body of either of the parties to enter the marriage state, by the
party who had knowledge of such incapacity at the time of marriage; or
(b) Where the cause is fraud, force or coercion,
by the party who was guilty of such fraud, force or coercion, nor by the
injured party if, after knowledge of the facts, he or she has by acts or
conduct confirmed such marriage; or
(c) Where the cause is affliction with a
venereal disease existing at the time of marriage, by the party who was so afflicted
if such party has subsequent to the marriage become cured of such disease, nor
by the person who was not so afflicted if he or she after the curing of the
afflicted person has by acts or conduct confirmed the marriage; or
(d) Where the cause is the nonage of either of
the parties, by the party who was capable of consenting, nor by the party not
so capable if he or she has by acts or conduct confirmed the marriage after
arriving at the age of consent; or
(e) Where the cause is lack of consent on the
part of either of the parties, by the party consenting or bringing about the
marriage; or
(f) Where the cause is that either of the
parties has been convicted of an infamous offense prior to marriage, by the
other party if, after knowledge of such fact, he or she has cohabited with the
party so convicted; or
(g) Where the cause is that the wife was at the
time of marriage with child by some person other than the husband, or that
prior to the marriage the wife had been notoriously a prostitute, by the
husband, if after knowledge of the fact, he has cohabited with the wife; or
(h) Where the cause is that the husband was
prior to the marriage notoriously a licentious person, by the wife if, after
knowledge of the fact, she has cohabited with the husband.
§48-2-4. Grounds for divorce.
(a) A divorce may be ordered:
(1) For adultery; or
(2) When either of the parties subsequent to the
marriage has, in or out of this state, been convicted for the commission of a
crime which is a felony, and such conviction has been final; or
(3) To the party abandoned, when either party
willfully abandons or deserts the other for six months; or
(4) For cruel or inhuman treatment by either
party against the other, which includes reasonable apprehension of bodily harm,
false accusation of adultery or homosexuality, conduct or treatment which
destroys or tends to destroy the mental or physical well-being, happiness and
welfare of the other and render continued cohabitation unsafe or unendurable:
Provided, That under no circumstances shall it be necessary to allege or prove
acts of physical violence in order to establish cruel and inhuman treatment as
a ground for divorce; or
(5) For habitual drunkenness of either party subsequent
to the marriage; or
(6) For the addiction of either party,
subsequent to the marriage, to the habitual use of any narcotic or dangerous
drug defined in this code; or
(7) Where the parties have lived separate and
apart in separate places of abode without any cohabitation and without
interruption for one year, whether such separation was the voluntary act of one
of the parties or by the mutual consent of the parties: Provided, That a
plea of res judicata or of recrimination with respect to any other provision of
this section shall not be a bar to either party's obtaining a divorce on this
ground: Provided, however, That if alimony is sought under the
provision of section fifteen of this article, the court may inquire into the
question of who is the party at fault and may award alimony according to the
right of the matter: Provided further, That this determination
shall not affect the right of either party to obtain a divorce on this ground;
or
(8) For permanent and incurable insanity, only
if the person is permanently and incurably insane and has been confined in a
mental hospital or other similar institution for a period of not less than
three consecutive years next preceding the filing of the complaint and the
court has heard competent medical testimony that such insanity is permanently
incurable: Provided, That a court granting a divorce on this grounds may
in its discretion order support and maintenance for the permanently incurably
insane party by the other: Provided, however, That in an action for
divorce or annulment, where the plaintiff is permanently incurably insane, the
defendant shall not enter a plea of recrimination based upon the insanity of
the plaintiff; or
(9) For abuse or neglect of a child of the
parties or of one of the parties, "abuse" meaning any physical or
mental injury inflicted on such child including, but not limited to, sexual
molestation; and "neglect" is willful failure to provide, by a party
who has legal responsibility for such child, the necessary support, education
as required by law, or medical, surgical or other care necessary for the
well-being of such child: Provided, That a divorce shall not be granted
on this ground except upon clear and convincing evidence sufficient to justify
permanently depriving the offending party of his parental rights to the custody
and control of the abused or neglected child; or
(10) If one party to a marriage shall file a
verified complaint, for divorce, against the other, alleging that
irreconcilable differences have arisen between the parties, and stating the
names of the dependent children of the parties or of either of them, and if the
other party shall file a verified answer to the complaint and admit or aver
that irreconcilable differences exist between the parties, the court shall
grant a divorce: Provided, That the defendant may file and serve an
answer with or without an attorney, and said verified answer shall be
sufficient if it is of the form as set out in section four-a of this article: Provided,
however, That the circuit clerk of each county shall maintain sufficient
supplies of said form and provide the same to any person at no charge. No
corroboration shall be required of the ground for the divorce or the issues of
jurisdiction or venue or any other proof for a divorce on the ground of
irreconcilable differences of the parties. The court may make orders for or
approve, modify or reject any agreement between the parties pertaining to just
and equitable, (i) alimony, (ii) custody, support or maintenance of children,
or (iii) visitation rights.
(b) It shall not be necessary to allege the
facts constituting the ground or grounds relied upon, and a complaint or
counter complaint shall be sufficient if any one of the grounds is alleged in
the language of such ground as set forth in subsection (a) of this section.
§48-2-4a. Petition instituting a domestic relations action; answer.
(a) A domestic relations action is instituted by
the filing of a verified petition. On and after the first day of October, one
thousand nine hundred ninety-nine, the formal style of a domestic relations
petition and the caption for all subsequent pleadings is as follows:
(1) In an action for divorce, separate
maintenance or annulment, the action may be styled "In Re the marriage of
_____ and _____"; and
(2) In an action to establish a child support
obligation or to allocate custodial responsibility and decision-making
responsibility when the parties are not married, the action may be styled
"In Re the Child(ren) of __________ and ___________".
The parties are identified in all pleadings as
"petitioner" and "respondent".
(b) The responsive pleading to a petition
instituting a domestic relations action is denominated an answer. The form and
requisites for an answer to a petition for divorce or any other responsive
pleading shall be verified in accordance with the provisions of section ten,
article two of this chapter and are governed by the rules of civil procedure.
(c) The provisions of this section will become
effective on the first day of October, one thousand nine hundred ninety-nine.
§48-2-5. Courts having jurisdiction.
The circuit court and courts of record vested
with jurisdiction over domestic relations by act of the Legislature shall have
jurisdiction of actions for annulling or affirming marriages, or for divorces.
§48-2-6. Right to sue to annul or affirm a marriage.
No action to annul or affirm a marriage shall be
maintainable unless at the commencement of the action one of the parties is a
bona fide resident of this state, except that in the case of an action to annul
a marriage that was performed in this state it shall not be necessary, if a
matrimonial domicile has not been established elsewhere, that one of the parties
be such a resident.
§48-2-7. Right to sue for divorce.
No action for divorce shall be maintainable:
(a) If the cause for divorce is adultery,
whether the cause of action arose in or out of this state, unless one of the
parties, at the commencement of the action, is a bona fide resident of this
state. In such case if the defendant is a nonresident of this state and cannot
be personally served with process within this state, such action shall not be
maintainable unless the plaintiff has been an actual bona fide resident of this
state for at least one year next preceding the commencement of the action; or
(b) If the cause for divorce is other than
adultery, unless one of the parties was, at the time the cause of action arose,
or has since that time become, an actual bona fide resident of this state and
has continued so to be for at least one year next preceding the commencement of
the action: Provided, That if the marriage sought to be dissolved was
entered into within this state, the action shall be maintainable if one of the
parties is an actual bona fide resident of this state at the time of
commencement of the action, without regard to the length of time residency has
continued.
§48-2-8. Venue of actions for annulment, affirmation or divorce.
The action for annulling or affirming a
marriage, or for divorce, shall, if the defendant be a resident of this state
be brought in the county in which the parties last cohabited, or, at the option
of the plaintiff, in the county in which the defendant resides; but if the
defendant be not a resident of this state, the action shall be brought either
in the county in which the plaintiff resides, or in the county in which the
parties last cohabited. In the case of an action to annul a marriage performed
in this state, where neither party is a resident of the state, the action shall
be brought in the county where the marriage was performed.
§48-2-9. Service of process.
A judgment order may be entered upon service of
process in the manner specified in the Rules of Civil Procedure for Trial
Courts of Record for the service of process upon individuals.
§48-2-10. Procedure; verification of pleadings; necessary proof; costs.
Such action shall be instituted and conducted as
other actions, except as provided in this article. Process shall not issue
until the complaint shall have been filed, which may be done at any time,
notwithstanding a term of court is not then being held. All pleadings shall be
verified by the party in whose name they are filed; but the complaint shall not
be taken for confessed, and whether the defendant answers or not, the case
shall be tried and heard independently of the admissions of either party in the
pleadings or otherwise; and no judgment order shall be granted on the
uncorroborated testimony of the parties or either of them. Costs may be awarded
to either party as justice requires, and in all cases the court, in its
discretion, may require payment of costs at any time, and may suspend or
withhold any order until the costs are paid.
§48-2-10a. Communications between clergyman and party.
In any action brought pursuant to the provisions
of this article, no priest, minister, rabbi or other clergyman, as defined in
section twelve-a of article one of this chapter, of any religious denomination
or organization who is not a party to said action shall be compelled to testify
regarding any communications or statements made to such clergyman in his
capacity as spiritual counselor or spiritual adviser by a party to said action,
if (a) both the clergyman and the party making such communications or
statements claim that the communications or statements were made to the
clergyman in his capacity as a clergyman and spiritual counselor or spiritual
adviser to such party; and (b) no person, other than the clergyman, such party
and the spouse of such party, was present when such communications or
statements were made; and (c) the party making such communications or
statements does not either consent to their disclosure or otherwise waive the
privilege granted by this section: Provided, That the privilege granted
by this section shall be in addition to and not in derogation of any other
privileges recognized by law.
§48-2-10b.
Repealed.
Acts, 1999 Reg. Sess., Ch. 8.
§48-2-11. Infant, incompetent and insane parties.
(a) In any action for divorce or annulment, an
infant party shall sue, answer and plead by a next friend, and an incompetent
or insane party shall sue, answer and plead by his committee, and no guardian
ad litem shall be required unless specifically ordered by the court or judge
hearing said action.
(b) If, in an action for divorce or annulment,
either party shall allege that a person, other than the husband, is the father
of a child born during the marriage of the parties, the court shall appoint a
competent attorney to act as guardian ad litem on behalf of the child. The
attorney shall be appointed without motion and prior to an entry of any order
requiring blood testing.
§48-2-12. Particeps criminis may become a party.
Anyone charged as a particeps criminis shall be
made a party to a divorce action, upon his or her application to the court,
subject to such terms and conditions as the court may prescribe.
§48-2-13. Temporary relief during pendency of action for divorce, annulment
or separate maintenance.
(a) At the time of the filing of the complaint
or at any time after the commencement of an action for divorce, annulment or
separate maintenance under the provisions of this article and upon motion for
temporary relief, notice of hearing and hearing, the court may order all or any
portion of the following temporary relief, which order shall govern the marital
rights and obligations of the parties during the pendency of the action:
(1) The court may require either party to pay
temporary alimony in the form of periodic installments, or a lump sum, or both,
for the maintenance of the other party.
(2) The court may provide for the custody of
minor children of the parties subject to such rights of visitation, both in and
out of the residence of the custodial parent or other person or persons having
custody, as may be appropriate under the circumstances.
(3) In every action where visitation is awarded,
the court shall specify a schedule for visitation by the noncustodial parent: Provided,
That with respect to any existing order of temporary relief which provides for
visitation but which does not provide a schedule for visitation by the
noncustodial parent, upon motion of any party, notice of hearing and hearing,
the court shall issue an order which provides a specific schedule for
visitation by the noncustodial parent.
(4) When the action involves a minor child or
children, the court shall require either party to pay temporary child support
in the form of periodic installments for the maintenance of the minor children
of the parties in accordance with section eight, article two, chapter
forty-eight-a of this code.
(5) When the action involves a minor child or
children, the court shall provide for medical support for any minor children in
accordance with section fifteen-a of this article.
(6) (A) The court may compel either party to pay
attorney's fees and court costs reasonably necessary to enable the other party
to prosecute or defend the action in the trial court. The question of whether
or not a party is entitled to temporary alimony is not decisive of that party's
right to a reasonable allowance of attorney's fees and court costs. An order
for temporary relief awarding attorney fees and court costs may be modified at
any time during the pendency of the action, as the exigencies of the case or
equity and justice may require, including, but not limited to, a modification
which would require full or partial repayment of fees and costs by a party to
the action to whom or on whose behalf payment of such fees and costs was
previously ordered. If an appeal be taken or an intention to appeal be stated,
the court may further order either party to pay attorney fees and costs on
appeal.
(B) When it appears to the court that a party
has incurred attorney fees and costs unnecessarily because the opposing party
has asserted unfounded claims or defenses for vexatious, wanton or oppressive
purposes, thereby delaying or diverting attention from valid claims or defenses
asserted in good faith, the court may order the offending party, or his or her
attorney, or both, to pay reasonable attorney fees and costs to the other
party.
(7) As an incident to requiring the payment of
temporary alimony, the court may order either party to continue in effect
existing policies of insurance covering the costs of health care and
hospitalization of the other party. If there is no such existing policy or
policies, the court may order that such health care insurance coverage be paid
for by a party if the court determines that such health care coverage is
available to that party at a reasonable cost. Payments made to an insurer
pursuant to this subdivision, either directly or by a deduction from wages, may
be deemed to be temporary alimony.
(8) The court may grant the exclusive use and
occupancy of the marital home to one of the parties during the pendency of the
action, together with all or a portion of the household goods, furniture and furnishings,
reasonably necessary for such use and occupancy. The court may require payments
to third parties in the form of home loan installments, land contract payments,
rent, payments for utility services, property taxes and insurance coverage.
When such third party payments are ordered, the court shall specify whether
such payments or portions of payments are temporary alimony, temporary child
support, a partial distribution of marital property or an allocation of marital
debt: Provided, That if the court does not set forth in the order that a
portion of such payments is to be deemed temporary child support, then all such
payments made pursuant to this subdivision shall be deemed to be temporary
alimony: Provided, however, That the court may order such payments to be
made without denominating them either as temporary alimony or temporary child
support, reserving such decision until such time as the court determines the
interests of the parties in marital property and equitably divides the same: Provided
further, That at the time the court determines the interests of the parties
in marital property and equitably divides the same, the court may consider the
extent to which payments made to third parties under the provisions of this
subdivision have affected the rights of the parties in marital property and may
treat such payments as a partial distribution of marital property
notwithstanding the fact that such payments have been denominated temporary
alimony or temporary child support or not so denominated under the provisions
of this subdivision. If the payments are not designated in an order and the
parties have waived any right to receive alimony, the court may designate the
payments upon motion by any party. Nothing contained in this subdivision shall
abrogate an existing contract between either of the parties and a third party,
or affect the rights and liabilities of either party or a third party under the
terms of such contract.
(9) As an incident to requiring the payments of
temporary alimony, the court may grant the exclusive use and possession of one
or more motor vehicles to either of the parties during the pendency of the
action. The court may require payments to third parties in the form of
automobile loan installments or insurance coverage, and any such payments made
pursuant to this subdivision shall be deemed to be temporary alimony: Provided,
That the court may order such payments to be made without denominating them as
temporary alimony, reserving such decision until such time as the court determines
the interests of the parties in marital property and equitably divides the
same: Provided, however, That at the time the court determines the
interests of the parties in marital property and equitably divides the same,
the court may consider the extent to which payments made to third parties under
the provisions of this subdivision have affected the rights of the parties in
marital property and may treat such payments as a partial distribution of
marital property notwithstanding the fact that such payments have been
denominated temporary alimony or not so denominated under the provisions of
this subdivision. Nothing contained in this subdivision shall abrogate an
existing contract between either of the parties and a third party or affect the
rights and liabilities of either party or a third party under the terms of such
contract.
(10) When the pleadings include a specific
request for specific property or raise issues concerning the equitable division
of marital property, the court may enter such order as is reasonably necessary
to preserve the estate of either or both of the parties, including the
imposition of a constructive trust, so that such property be forthcoming to
meet any order which may be made in the action, and may compel either party to
give security to abide such order, or may require the property in question to
be delivered into the temporary custody of a third party. The court may further
order either or both of the parties to pay the costs and expenses of
maintaining and preserving the property of the parties during the pendency of
the action: Provided, That at the time the court determines the
interests of the parties in marital property and equitably divides the same,
the court may consider the extent to which payments made for the maintenance
and preservation of property under the provisions of this subdivision have
affected the rights of the parties in marital property and may treat such
payments as a partial distribution of marital property. The court may release
all or any part of such protected property for sale and substitute all or a
portion of the proceeds of the sale for such property.
(11) Unless a contrary disposition is ordered
pursuant to other provisions of this section, then upon the motion of a
party, the court may compel a party to deliver to the moving party any of his
or her separate estate which may be in the possession or control of the
respondent party and may make any further order that is necessary to prevent
either party from interfering with the separate estate of the other party.
(12) The court may enjoin the offending party
from molesting or interfering with the other, or otherwise imposing any
restraint on the personal liberty of the other, or interfering with the
custodial or visitation rights of the other. This order may permanently enjoin
the offending party from entering the school, business or place of employment
of the other for the purpose of molesting or harassing the other; or from
contacting the other, in person or by telephone, for the purpose of harassment
or threats; or from harassing or verbally abusing the other in a public place.
Any order entered by the court to protect a party from abuse may grant the
relief provided in article two-a of this chapter.
(b) In ordering temporary relief under the
provisions of this section, the court shall consider the financial needs of the
parties, the present income of each party from any source, their income-earning
abilities and the respective legal obligations of each party to support himself
or herself and to support any other persons. Except in extraordinary cases
supported by specific findings set forth in the order granting relief, payments
of temporary alimony and temporary child support are to be made from a party's
income and not from the corpus of a party's separate estate, and an award of
such relief shall not be disproportionate to a party's ability to pay as
disclosed by the evidence before the court: Provided, That child support
shall be established in accordance with support guidelines promulgated pursuant
to section eight, article two, chapter forty-eight-a of this code.
(c) At any time after a party is abandoned or
deserted or after the parties to a marriage have lived separate and apart in
separate places of abode without any cohabitation, the party abandoned or
either party living separate and apart may apply for relief pursuant to this
section by instituting an action for divorce as provided in section ten of this
article, alleging that the plaintiff reasonably believes that the period of
abandonment or of living separate and apart will continue for the period
prescribed by the applicable provisions of section four of this article. If the
period of abandonment or living separate and apart continues for the period prescribed
by the applicable provisions of section four of this article, the divorce
action may proceed to a hearing as provided in sections twenty-four and
twenty-five of this article without a new complaint being filed: Provided,
That the party desiring to proceed to a hearing shall give the opposing party
at least twenty days' notice of the time, place and purpose of the hearing,
unless the opposing party files a waiver of notice of further proceedings,
signed by the opposing party. If such notice is required to be served, it shall
be served in the same manner as a complaint, regardless of whether the opposing
party has appeared or answered.
(d) To facilitate the resolution of issues
arising at a hearing for temporary relief, the court may, or upon the motion of
either party shall, order the parties to comply with the disclosure
requirements set forth in section thirty-three of this article prior to the
hearing for temporary relief. The form for this disclosure shall substantially
comply with the form promulgated by the supreme court of appeals, pursuant to
said section. If either party fails to timely file a complete disclosure as
required by this section or as ordered by the court, the court may accept the
statement of the other party as accurate.
(e) An ex parte order granting all or part of
the relief provided for in this section may be granted without written or oral
notice to the adverse party if:
(1) It appears from specific facts shown by
affidavit or by the verified complaint that immediate and irreparable injury,
loss or damage will result to the applicant before the adverse party or such
party's attorney can be heard in opposition. The potential injury, loss or
damage may be anticipated when the following conditions exist: Provided,
That the following list of conditions is not exclusive:
(A) There is a real and present threat of
physical injury to the applicant at the hands or direction of the adverse
party;
(B) The adverse party is preparing to quit the
state with a minor child or children of the parties, thus depriving the court
of jurisdiction in the matter of child custody;
(C) The adverse party is preparing to remove
property from the state or is preparing to transfer, convey, alienate, encumber
or otherwise deal with property which could otherwise be subject to the
jurisdiction of the court and subject to judicial order under the provisions of
this section or section fifteen of this article; and
(2) The moving party or his or her attorney
certifies in writing any effort that has been made to give the notice and the
reasons supporting his or her claim that notice should not be required.
(f) Every ex parte order granted without notice
shall be endorsed with the date and hour of issuance; shall be filed forthwith
in the circuit clerk's office and entered of record; and shall set forth the
finding of the court that unless the order is granted without notice there is
probable cause to believe that existing conditions will result in immediate and
irreparable injury, loss or damage to the moving party before the adverse party
or his or her attorney can be heard in opposition. The order granting ex parte
relief shall fix a time for a hearing for temporary relief to be held within a
reasonable time, not to exceed twenty days, unless before the time so fixed for
hearing, such hearing is continued for good cause shown or with the consent of
the party against whom the ex parte order is directed. The reasons for the
continuance shall be entered of record. Within the time limits described
herein, when an ex parte order is made, a motion for temporary relief shall be
set down for hearing at the earliest possible time and shall take precedence of
all matters except older matters of the same character. If the party who obtained
the ex parte order fails to proceed with a motion for temporary relief, the
court shall set aside the ex parte order. At any time after ex parte relief is
granted, and on two days' notice to the party who obtained such relief or on
such shorter notice as the court may direct, the adverse party may appear and
move the court to set aside or modify the ex parte order on the grounds that
the effects of such order are onerous or otherwise improper. In such event, the
court shall proceed to hear and determine such motion as expeditiously as the
ends of justice require.
(g) No order granting temporary relief may be
the subject of an appeal or a petition for review.
(h) (1) Unless the best interests of the child
require otherwise, every temporary order which provides for the custody of a
minor child of the parties shall also provide for the following:
(A) The custodial parent shall be required to
authorize school authorities in the school in which the child is enrolled to
release to the noncustodial parent copies of any and all information concerning
the child which would otherwise be properly released to the custodial parent;
(B) The custodial parent shall be required,
promptly after receipt, to transmit to the noncustodial parent a copy of the
child's grades or report card and copies of any other reports reflecting the
status or progress of the child;
(C) The custodial parent shall be required, when
practicable, to arrange appointments for parent-teacher conferences at a time
when the noncustodial parent can be present;
(D) The custodial parent shall be required to
authorize medical providers to release to the noncustodial parent copies of any
and all information concerning medical care provided to the child which would
otherwise be properly released to the custodial parent;
(E) The custodial parent shall be required to
promptly inform the noncustodial parent of any illness of the child which
requires medical attention; or, if the child is in the actual physical custody of
the noncustodial parent during a period of visitation, the noncustodial parent
shall be required to promptly inform the custodial parent of any illness of the
child which requires medical attention;
(F) The custodial parent shall be required to consult
with the noncustodial parent prior to any elective surgery being performed on
the child; and in the event emergency medical procedures are undertaken for the
child which requires the parental consent of either parent, if time permits,
the other parent shall be consulted, or if time does not permit such
consultation, the other parent shall be promptly informed of such emergency
medical procedures: Provided, That the same duty to inform the custodial
parent applies to the noncustodial parent in the event that the emergency
medical procedures are required while the child is in the physical custody of
the noncustodial parent during a period of visitation: Provided, however,
That nothing contained herein shall be deemed to alter or amend the law of this
state as it otherwise pertains to physicians or health care facilities
obtaining parental consent prior to providing medical care or performing
medical procedures.
(2) In the event a custodial parent shall fail
or refuse to authorize the release of school or medical records as provided for
by subdivision (1) of this subsection, then upon the ex parte application of
the noncustodial parent, the family law master shall prepare an order for entry
by the circuit court which appoints the family law master as a special
commissioner authorized to execute a consent for the release of such records,
and direct it to the appropriate school authorities or medical providers.
§48-2-14. When a divorce not to be granted.
No divorce for adultery shall be granted on the
uncorroborated testimony of a prostitute, or a particeps criminis, or when it
appears that the parties voluntarily cohabited after the knowledge of the
adultery, or that it occurred more than three years before the institution of
the action; nor shall a divorce be granted for any cause when it appears that
the offense charged has been condoned, or was committed by the procurement or
connivance of the plaintiff, or that the plaintiff has, within three years
before the institution of action, been guilty of adultery not condoned, but
such exception shall not be applicable to causes of action brought pursuant to
subdivisions (7) and (10), subsection (a), section four of this article. The
defense of collusion shall not be pleaded as a bar to a divorce.
§48-2-15. Relief upon ordering divorce or annulment or granting decree of
separate maintenance.
(a) Upon ordering a divorce or granting a decree
of separate maintenance, the court may require either party to pay alimony in
the form of periodic installments, or a lump sum, or both, for the maintenance
of the other party. Payments of alimony are to be ordinarily made from a
party's income, but when the income is not sufficient to adequately provide for
those payments, the court may, upon specific findings set forth in the order,
order the party required to make those payments to make them from the corpus of
his or her separate estate. An award of alimony shall not be disproportionate
to a party's ability to pay as disclosed by the evidence before the court.
(b) Upon ordering the annulment of a marriage or
a divorce or granting of decree of separate maintenance, the court may further
order all or any part of the following relief:
(1) The court may provide for the custody of
minor children of the parties, subject to such rights of visitation, both in
and out of the residence of the custodial parent or other person or persons
having custody, as may be appropriate under the circumstances. In every action
where visitation is awarded, the court shall specify a schedule for visitation
by the noncustodial parent: Provided, That with respect to any existing
order which provided for visitation but which does not provide a specific
schedule for visitation by the noncustodial parent, upon motion of any party, notice
of hearing and hearing, the court shall issue an order which provides a
specific schedule of visitation by the noncustodial parent;
(2) When the action involves a minor child or
children, the court shall require either party to pay child support in the form
of periodic installments for the maintenance of the minor children of the
parties in accordance with support guidelines promulgated pursuant to article
one-b, chapter forty-eight-a of this code. Payments of child support are to be
ordinarily made from a party's income, but in cases when the income is not
sufficient to adequately provide for those payments, the court may, upon
specific findings set forth in the order, order the party required to make
those payments to make them from the corpus of his or her separate estate;
(3) When the action involves a minor child or
children, the court shall provide for medical support for any minor children in
accordance with section fifteen-a of this article;
(4) As an incident to requiring the payment of
alimony or child support, the court may order either party to continue in
effect existing policies of insurance covering the costs of health care and
hospitalization of the other party: Provided, That if the other party is
no longer eligible to be covered by such insurance because of the granting of
an annulment or divorce, the court may require a party to substitute such
insurance with a new policy to cover the other party or may consider the
prospective cost of such insurance in awarding alimony to be paid in periodic
installments. Payments made to an insurer pursuant to this subdivision, either
directly or by a deduction from wages, shall be deemed to be alimony or
installment payments for the distribution of marital property, in such proportion
as the court shall direct: Provided, however, That if the court does not
set forth in the order that a portion of such payments is to be deemed
installment payments for the distribution of marital property, then all such
payments made pursuant to this subdivision shall be deemed to be alimony: Provided
further, That the designation of insurance coverage as alimony under the
provisions of this subdivision shall not, in and of itself, give rise to a
subsequent modification of the order to provide for alimony other than
insurance for covering the costs of health care and hospitalization;
(5) The court may grant the exclusive use and
occupancy of the marital home to one of the parties, together with all or a
portion of the household goods, furniture and furnishings reasonably necessary
for such use and occupancy. Such use and occupancy shall be for a definite
period, ending at a specific time set forth in the order, subject to
modification upon the petition of either party. Except in extraordinary cases supported
by specific findings set forth in the order granting relief, a grant of the
exclusive use and occupancy of the marital home shall be limited to those
situations when such use and occupancy is reasonably necessary to accommodate
the rearing of minor children of the parties. The court may require payments to
third parties in the form of home loan installments, land contract payments,
rent, property taxes and insurance coverage if the amount of such coverage is
reduced to a fixed monetary amount set forth in the court's order. When such
third party payments are ordered, the court shall specify whether such payments
or portions of payments are alimony, child support, a partial distribution of
marital property or an allocation of marital debt: Provided, That if the
court does not set forth in the order that a portion of such payments is to be
deemed child support or installment payments for the distribution of marital
property, then all such payments made pursuant to this subdivision shall be
deemed to be alimony. When such third party payments are ordered, the court
shall specify whether such payments or portions of payments are alimony, child
support, a partial distribution of marital property or an allocation of marital
debt. If the payments are not designated in an order and the parties have
waived any right to receive alimony, the court may designate the payments upon
motion by any party. Nothing contained in this subdivision shall abrogate an
existing contract between either of the parties and a third party or affect the
rights and liabilities of either party or a third party under the terms of such
contract;
(6) As an incident to requiring the payment of
alimony, the court may grant the exclusive use and possession of one or more
motor vehicles to either of the parties. The court may require payments to
third parties in the form of automobile loan installments or insurance coverage
if available at reasonable rates, and any such payments made pursuant to this
subdivision for the benefit of the other party shall be deemed to be alimony or
installment payments for the distribution of marital property, as the court may
direct. Nothing contained in this subdivision shall abrogate an existing
contract between either of the parties and a third party or affect the rights
and liabilities of either party or a third party under the terms of such
contract;
(7) When the pleadings include a specific
request for specific property or raise issues concerning the equitable division
of marital property as defined in section one of this article, the court shall
order such relief as may be required to effect a just and equitable
distribution of the property and to protect the equitable interests of the
parties therein;
(8) Unless a contrary disposition is ordered
pursuant to other provisions of this section, then upon the motion of either
party, the court may compel the other party to deliver to the moving party any
of his or her separate estate which may be in the possession or control of the
respondent party and may make such further order as is necessary to prevent
either party from interfering with the separate estate of the other;
(9) When allegations of abuse have been proven,
the court shall enjoin the offending party from molesting or interfering with
the other, or otherwise imposing any restraint on the personal liberty of the
other or interfering with the custodial or visitation rights of the other. Such
order may permanently enjoin the offending party from entering the school,
business or place of employment of the other for the purpose of molesting or
harassing the other; or from contacting the other, in person or by telephone,
for the purpose of harassment or threats; or from harassing or verbally abusing
the other in a public place; and
(10) The court may order either party to take
necessary steps to transfer utility accounts and other accounts for recurring
expenses from the name of one party into the name of the other party or from
the joint names of the parties into the name of one party. Nothing contained in
this subdivision shall affect the liability of the parties for indebtedness on
any such account incurred before the transfer of such account.
(c) When an annulment or divorce is denied, the
court shall retain jurisdiction of the case and may order all or any portion of
the relief provided for in subsections (a) and (b) of this section which has
been demanded or prayed for in the pleadings.
(d) When a divorce or annulment is granted in
this state upon constructive service of process and personal jurisdiction is
thereafter obtained of the defendant in such case, the court may order all or
any portion of the relief provided for in subsections (a) and (b) of this
section which has been demanded or prayed for in the pleadings.
(e) After the entry of an order pursuant to the
provisions of this section, the court may revise the order concerning the
maintenance of the parties and enter a new order concerning the same, as the
circumstances of the parties may require.
The court may also from time to time afterward,
upon motion of either of the parties and upon proper service, revise such order
to grant relief pursuant to subdivision (9), subsection (b) of this section,
and enter a new order concerning the same, as the circumstances of the parties
and the benefit of children may require. The court may also from time to time
afterward, upon the motion of either of the parties or other proper person
having actual or legal custody of the minor child or children of the parties,
revise or alter the order concerning the custody and support of the children,
and make a new order concerning the same, issuing it forthwith, as the
circumstances of the parents or other proper person or persons and the benefit
of the children may require: Provided, That all orders modifying child
support shall be in conformance with the requirements of support guidelines
promulgated pursuant to article one-b, chapter forty-eight-a of this code: Provided,
however, That an order providing for child support payments may be revised
or altered for the reason, inter alia, that the existing order provides for
child support payments in an amount that is less than eighty-five percent or
more than one hundred fifteen percent of the amount that would be required to
be paid under the child support guidelines promulgated pursuant to the
provisions of said section: Provided further, That the child support
enforcement division may review a child support order and, if appropriate, file
a motion with the circuit court for modification of the child support order
pursuant to the provisions of section thirty-five, article two, chapter
forty-eight-a of this code.
In granting relief under this subsection, the
court may, when other means are not conveniently available, alter any prior
order of the court with respect to the distribution of marital property, if
such property is still held by the parties, and if necessary to give effect to
a modification of alimony, child support or child custody or necessary to avoid
an inequitable or unjust result which would be caused by the manner in which
the modification will affect the prior distribution of marital property.
(f)(1) When a separation agreement is the basis
for an award of alimony, the court, in approving the agreement, shall examine
the agreement to ascertain whether it clearly provides for alimony to continue
beyond the death of the payor or the payee or to cease in such event. When
alimony is to be paid pursuant to the terms of a separation agreement which
does not state whether the payment of alimony is to continue beyond the death
of the payor or payee or is to cease, or when the parties have not entered into
a separation agreement and alimony is awarded, the court shall have the
discretion to determine, as a part of its order, whether such payments of
alimony are to be continued beyond the death of the payor or payee or cease. In
the event neither an agreement nor an order makes provision for the death of
the payor or payee, alimony other than rehabilitative alimony or alimony in
gross shall cease on the death of the payor or payee. In the event neither an
agreement nor an order makes provision for the death of the payor,
rehabilitative alimony continues beyond the payor’s death, in the absence of
evidence that the payor’s estate is likely to be insufficient to meet other
obligations or that other matters would make continuation after death
inequitable. Rehabilitative alimony ceases with the payee’s death. In the event
neither an agreement nor an order makes provision for the death of the payor or
payee, alimony in gross continues beyond the payor’s or payee’s death.
(2) When a separation agreement is the basis for
an award of alimony, the court, in approving the agreement, shall examine the
agreement to ascertain whether it clearly provides for alimony to continue
beyond the remarriage of the payee or to cease in such event. When alimony is
to be paid pursuant to the terms of a separation agreement which does not state
whether the payment of alimony is to continue beyond the remarriage of the
payee or is to cease, or when the parties have not entered into a separation
agreement and alimony is awarded, the court shall have the discretion to
determine, as a part of its order, whether such payments of alimony are to be
continued beyond the remarriage of the payee. In the event neither an agreement
nor an order makes provision for the remarriage of the payee, alimony other
than rehabilitative alimony or alimony in gross shall cease on the remarriage
of the payee. Rehabilitative alimony does not cease upon the remarriage of the
payee during the first four years of a rehabilitative period. In the event
neither an agreement nor an order makes provision for the remarriage of the
payee, alimony in gross continues beyond the payee’s remarriage.
(g)(1) In the discretion of the court, an award
of alimony may be reduced or terminated upon specific written findings by the
court that since the granting of a divorce and the award of` alimony a de facto
marriage has existed between the alimony payee and another person.
(2) In determining whether an existing award of
alimony or spousal support should be reduced or terminated because of an
alleged de facto marriage between a payee and another person, the court should
elicit the nature and extent of the relationship in question. The court should
give consideration, without limitation, to circumstances such as the following
in determining the relationship of an ex-spouse to another person:
(A) The extent to which the ex-spouse and the
other person have held themselves out as a married couple by engaging in
conduct such as using the same last name, using a common mailing address,
referring to each other in terms such as "my husband" or "my
wife", or otherwise conducting themselves in a manner that evidences a
stable marriage-like relationship;
(B) The period of time that the ex-spouse has
resided with another person not related by consanguinity or affinity in a
permanent place of abode;
(C) The duration and circumstances under which
the ex-spouse has maintained a continuing conjugal relationship with the other
person;
(D) The extent to which the ex-spouse and the
other person have pooled their assets or income or otherwise exhibited
financial interdependence;
(E) The extent to which the ex-spouse or the
other person has supported the other, in whole or in part;
(F) The extent to which the ex-spouse or the
other person has performed valuable services for the other;
(G) The extent to which the ex-spouse or the
other person has performed valuable services for the other's company or
employer;
(H) Whether the ex-spouse and the other person
have worked together to create or enhance anything of value;
(I) Whether the ex-spouse and the other person
have jointly contributed to the purchase of any real or personal property;
(J) Evidence in support of a claim that the
ex-spouse and the other person have an express agreement regarding property
sharing or support; or
(K) Evidence in support of a claim that the
ex-spouse and the other person have an implied agreement regarding property
sharing or support.
(3) On the issue of whether alimony should be
reduced or terminated under this subsection, the burden is on the payor to prove
by a preponderance of the evidence that a de facto marriage exists. If the
court finds that the payor has failed to meet burden of proof on the issue, the
court may award reasonable attorney’s fees to a payee who prevails in an action
that sought to reduce or terminate alimony on the ground that a de facto
marriage exists.
(4) The court shall order that a reduction or
termination of alimony is retroactive to the date of service of the petition on
the payee, unless the court finds that reimbursement of amounts already paid
would cause an undue hardship on the payee.
(5) An award of rehabilitative alimony shall not
be reduced or terminated because of the existence of a de facto marriage
between the alimony payee and another person.
(6) An award of alimony in gross shall not be
reduced or terminated because of the existence of a de facto marriage between
the alimony payee and another person.
(7) An award of alimony shall not be reduced or
terminated under the provisions of this subsection for conduct by an alimony
payee that occurred before the first day of October, one thousand nine hundred
ninety-nine.
(8) Nothing in this subsection shall be
construed to abrogate the requirement that every marriage in this state be
solemnized under a license or construed to recognize a common law marriage as
valid.
(h) In addition to the disclosure requirements
set forth in section thirty-three of this article, the court may order accounts
to be taken as to all or any part of marital property or the separate estates
of the parties and may direct that the accounts be taken as of the date of the
marriage, the date upon which the parties separated or any other time in
assisting the court in the determination and equitable division of property.
(i) In determining whether alimony is to be
awarded, or in determining the amount of alimony, if any, to be awarded under
the provisions of this section, the court shall consider and compare the fault
or misconduct of either or both of the parties and the effect of such fault or
misconduct as a contributing factor to the deterioration of the marital
relationship. However, alimony shall not be awarded when both parties prove
grounds for divorce and are denied a divorce, nor shall an award of alimony under
the provisions of this section be ordered which directs the payment of alimony
to a party determined to be at fault, when, as a grounds granting the divorce,
such party is determined by the court:
(1) To have committed adultery; or
(2) To have been convicted for the commission of
a crime which is a felony, subsequent to the marriage if such conviction has
become final; or
(3) To have actually abandoned or deserted his
or her spouse for six months.
(j) Whenever under the terms of this section or
section thirteen of this article a court enters an order requiring the payment
of alimony or child support, if the court anticipates the payment of such
alimony or child support or any portion thereof to be paid out of
"disposable retired or retainer pay" as that term is defined in 10
U.S.C. §1408, relating to members or former members of the uniformed services
of the United States, the court shall specifically provide for the payment of
an amount, expressed in dollars or as a percentage of disposable retired or
retainer pay, from the disposable retired or retainer pay of the payor party to
the payee party.
(k) Any order which provi