Family Law in WV: A Deep Dive
FAMILY LAW IN WEST VIRGINIA: A DEEP DIVE
West Virginia Family Courts share jurisdiction with the Circuit Court in each county. Family Court is the primary trial court in most “family law” matters.
Family courts hear petitions for divorce, petitions for paternity and allocation of parental rights, petitions to modify court orders, petitions of contempt, domestic violence final hearings, and some guardianship matters.
Family courts do not hear adoptions or juvenile delinquency petitions or juvenile abuse and neglect petitions. The Circuit Court has sole jurisdiction over those.
Other than small claims matters in magistrate court, there is no court that hears a larger percentage of self–represented, or “pro se”, cases than does the Family Court.
Representing one’s-self in Family Court is fraught with risk.
“Unbundled Legal Services, Ghostwriting, Full Legal Consultations, and “The Legal Checkup”
The massive problem of self-representation is one of the reasons that I developed a product that I call “a full legal consultation”. Other names are “legal checkup” or “an unbundled legal service”.
Advantages of “Unbundled Services”
Sixteen (16) of my blog articles mention the term “unbundling”. You can access them by going to my blog and searching for “unbundled”. www.hunterlawfirm.net/blog
The unquestioned “Father Of Unbundling Of Legal Services” is an adjunct professor and attorney Forest Mosten: https://law.ucla.edu/faculty/faculty-profiles/forrest-s-mosten
“Unbundling” is relatively new and undeveloped in WV. This lawyer is trying to change that
The “unbundled” consultation has several advantages:
While “unbundled services” is not “full representation”, the client initially assumes no responsibility for a fee greater than the minimum, usually $500. It is definitely a “win-win” product. A related term is “legal coaching”.
For the person who absolutely cannot afford full representation, it gives them access to “ghost-writing” of pleadings, correspondence, and witness statements.
We are also able to provide such clients copies of relevant case law, statutes, Family Court rules, rules of evidence, and specific forms designed to supplement the “standard forms” which are available at the circuit clerk’s office so that the litigant can be properly prepared. Our supplemental forms and instructions are very helpful.
More often than not, such a consultation reveals to the client the complexity and risk of “going it alone”. So we often become the attorney of record. I would NEVER minimalize the importance of “full representation”
Complications of the Pandemic and Opioid/Meth Epidemic
Speaking with an experienced attorney can give a litigant insight into how a particular court has been impacted by the Covid 19 Virus and how best to negotiate “the maze” of family law. Each Judge has her/his method of implementing the WV Supreme Court’s emergency orders, and its own rules.
This article is being written one year into the Covid 19 pandemic. The court system is under great stress. Many attorneys and judges have become infected. All are heavily stressed. The majority of hearings have to be conducted remotely. Trials have been delayed, and some hearings have been scheduled six months in advance.
Here is an article I wrote in Nov. 2020, “Lawyering During a Pandemic..”: Lawyering During a Pandemic, And Finding the right lawyer in 2020-21 – Attorney J. Burton Hunter III : Attorney J. Burton Hunter III (hunterlawfirm.net)
The Range of Divorces (length of the marriage, children, property, and debts)
Divorces can range from:
a. a one-year marriage of a young couple without children and with little property of debts;
b. to a marriage over 10 years with several children, assets, and debt;
c. to a marriage of 30+ years, with no infant children, substantial real estate and personal property, retirement benefits, and debt.
Rarely, usually in a marriage in later years, the parties may need “A Permanent Legal Separation” (“Separation from Bed and Board”), either because of religious views or the need of one of the spouses to remain entitled to the other spouse’s employment benefits such as medical insurance.
Petitions to Modify (child support, custody, or alimony)
Petitions to modify a court order may seek to increase, decrease, or terminate child support, modify the allocation of parental time, transfer primary custody (residential care), or allow one parent to relocate to another state with the parties’ children.
The alleged grounds for modification generally require a substantial change in circumstances, but they can also be based upon a decision of the parents to follow a different parenting plan consistently for over six months. That’s called a “de facto parenting arrangement without a change in circumstances”.
Other grounds for modification of parenting plans are that the plan is “manifestly harmful” to the children, or to make minor changes or adjustments.
Mandated and Discretionary Family Mediation
The courts discourage petitions for minor changes in a parenting plan, especially since the majority of court-ordered and negotiated parenting plans contain a provision for the parties to go to mediation before taking up the time and resources of the court.
In cases involving children, the Family Court may order the parties to mediation with a mediator “in the Court’s mediators’ list ”. Those mediators agree to be bound by the WV Supreme Court of Appeals “sliding scare”. Such mediations may cost as little as $45-$95 per hour.
Most family courts will not order mediation on the property and debt issues, but the parties can agree to mediate any issue. This lawyer has strongly lobbied to expand mediation and simplify the mediation rules. Family Court Mediation Streamlined – Some Ideas – Attorney J. Burton Hunter III: Attorney J. Burton Hunter III (hunterlawfirm.net)
Drugs, Alcohol Dependence, and Abuse
And, of course, West Virginia has that other “epidemic”, the huge rise in addiction to illegal drugs and alcohol. Many children are living in dangerous and abusive situations.
It is not rare to have such cases result in The State’s filing of an “abuse and neglect” juvenile petition, which filing results in immediate loss of jurisdiction by the Family Court and assumption of jurisdiction by the Circuit Court. That is a grim world of multiple hearings, multi-disciplinary teams, over-stretched court-appointed legal counsel, “improvement periods”, and foster parents. That is a world this attorney steers clear of.
Contempt Actions (Petitions for a Rule to Show Cause)
Behavior that will support an action for contempt can be a failure to pay child support, failure to cooperate with court-ordered visitation, refusal to share critical information about the children, or violation of a specific court order such as a requirement for sobriety, drug testing, or conflict counseling.
Respondents facing possible incarceration can get a court-appointed lawyer.
Prenuptial Agreements (Prenups)
I am not a fan of pre-nuptial agreements. They fly in the face of the concept of trust and “true-love”, as the couple must recognize the very real chance the marriage will fail.
The purpose of a prenup is usually to protect the person, more often the husband, who has greater assets and income. From my experience, people who have a prenup were not properly informed or educated about West Virginia’s “equitable distribution” and “alimony” statutes. Knowledge of that law can effectively protect both parties.
Since I know that the disadvantaged party, under current case law, needs to consult a lawyer before signing a prenup and since I know the parties MUST prepare itemized financial disclosures, NO ONE yet has been willing to pay me for the work needed properly to complete a prenup.
Also, most parties, once married, move on with life and pretty much ignore the ramifications of a prenup, which defeats the whole purpose.
My “gut feeling”? If you need a prenup, have you really found the right partner for life? And, if you don’t want one, but your fiancé “insists”, then I ask the same question!
If you decide or agree to have a prenup, I urge the parties to be specific and reasonable in its terms. If a family farm is to stay separate even if a house is built on it, say that. But don’t expect to avoid claims of “co-mingling” if you try to separate a small business from the marital assets and income. And, set a term for the prenup to end, say 10, 15, or 20 years. The same for alimony. How can it be fair that a person who is married for 20 years or more, in their 50’s or 60’s be barred from seeking financial help from someone who is much better off financially, especially if they are free of fault.
And, remember Melania! After the “Access Hollywood Scandal”, she was able to RENEGOTIATE her prenup! “You go girl!”
Gathering Financial Information for a Divorce
The more property, income, and debt there are in a marriage, especially in the longer-term marriages, the greater the challenge is to gather the critical information regarding the balance of debt, the value and itemization of property, and documentation of income in retirement benefits.
I also recently wrote on that subject: Divorce: Gathering the Critical Details of Marital Assets and Debts – Attorney J. Burton Hunter III : Attorney J. Burton Hunter III (hunterlawfirm.net)
Gathering and Organizing Facts in Any Contested Case
A good litigator, whether it is family law, personal injury, or civil litigation, should have a system that helps the client gather and organize the facts in their case. In my practice, I call it, “our digging down system”. Sure enough, I have written on that also: 2018 Revised: Digging Down – On Organizing and Preparing Your Case – Attorney J. Burton Hunter III : Attorney J. Burton Hunter III (hunterlawfirm.net).
The Ethics and Morality of Representing Litigants in Family Court
Lawyers take an oath in order to become members of the Bar and “Officers of the Court”. They are bound by The Lawyers’ Disciplinary Rules. But this lawyer thinks there should be more than that.
This attorney believes that a good family law attorney must have a strong moral and ethical core. I am talking about the lawyer who does good even “when no one is watching”.
Such an attorney will expect you to be honest with her/him so that you and he/she can be honest with the Court and your opponents.
It doesn’t always seem fair when the other side seems to be “getting away with” bad behavior. But if you’re judge knows that your lawyer has been dishonest to the judge in the past, the judge is less likely to believe in you and your case. Candor with the Court is imperative. Lawyers must refrain from filing frivolous pleadings and pandering to his client.
When a lawyer perceives her or his duty is to be to reflect the personality and wishes of his or her client instead of inculcating in the client the need for civility, honesty, decency, and adherence to “The Golden Rule”, that lawyer is doing a grave disservice to the client and the client’s children.
When the client says to the attorney, “Let’s just let the Court decide”, the lawyer must remind the client that “letting the judge decide” means investigating the case, preparing exhibits, interviewing witnesses, calling witnesses to trial, subpoenaing records, filing motions, resisting motions, and even filing an appeal. That spells $$$$$.
Negotiation, Mediation, and Collaboration
A good lawyer must, therefore, be adept at negotiating and preparing for and participating in mediation. At the very least, mediation can take 15-20 issues and reduce them to 2 or 3.
More than 50% of the time, mediation results in a “global settlement”.
Sometimes mediation fails, but a good lawyer will prepare the best parenting plan and divorce settlement agreement that he can based upon everything that happened to date, and those agreements eventually can become the bases for a final agreement.
More on Contempt
A serious contempt case requires the Court to appoint a lawyer for the respondent since they face a possibility of incarceration. A contempt petition is also known as a “Petition for a Rule to Show Cause”. In those cases, the court must review the petition and issue an order called “a rule to show cause” in the event the allegations are sufficient to make a claim of contemptuous behavior.
Motions for Expedited, Emergency, and Ex Parte Relief
In cases of great urgency, the court may consider a petition or motion “For Ex Parte Relief”.
In response to the Ex Parte Motion or Petition, the judge has the option of; a. reviewing the petition and denying it because the allegations are not sufficiently serious or urgent, b. granting the petition and setting it for relief but denying the part of the request for a ruling before the hearing, or, in egregious situations, grant temporary relief such as temporary custody, a restraining order against removing the child from the state, etc.
Domestic Violence Petitions must have allegations that conform to the statute. “DV Petitioner” must be filed in Magistrate, based on verified petitions. Since they are the only product the magistrate can offer, often domestic violence petitions are filed that are questionable at best. I have long advocated for a “domestic squabble” expedited procedure. So far, it doesn’t exist.
From this attorney’s experience, ex parte motions and petitions should be used sparingly so the court are aware that you only file them in emergency situations.
Appeals from Family Court
Appeals of family court decisions are relatively rare for the simple reason that the litigants usually can’t afford them. There must be an error by the Court, either by abusing the Court’s discretion or making a plain or obvious mistake by misapplying the statute or an appellate court ruling.
No Unwanted Contact Orders
Family Courts have broad power to issue “no unwanted contact” restraining orders without a finding of domestic violence. This statute Sec. 51-2A-2a is fairly recent but it is an invaluable option for Family Courts and the Parties. It does not carry the stigma of a domestic violence order. My story, as co-author of this statute, is covered in detail in another blog article: WV Senate Bill 430 – The Law That No One Heard Of – Attorney J. Burton Hunter III : Attorney J. Burton Hunter III (hunterlawfirm.net)
The New Custody Statute
West Virginia has a new custody statute that places much less emphasis on the proportion of parenting and caretaking functions that the parties exercised prior to the separation.
The former statute required, in most instances, that the court try to reconstruct and apportion parenting time as the parties had apportioned caretaking functions for the two years prior to separation. Now the standard is less specific and, from this counsel’s experience, somewhat less predictable.
That standard is “the best interests of the child”. The “best interests standard” has always supposedly been “guiding the trial Court”, but often it is in the “eye of the beholder” and influenced by current cultural norms.
Same-Sex Marriage and Divorce
The Courts quickly adjusted to the reality of same-sex marital unions, and this attorney has seen virtually no rulings by a Family Court judge based on that judge’s personal, religious, or moral views.
In my opinion, experienced family law attorneys and judges have seen enough “foibles of mankind” so as not to be, overly moralistic or dogmatic. More problematical is the fact that family law, being highly stressful, draw lawyers with a competitive and adversarial personality. A good lawyer must work hard not to stay constantly in “fight mode”. It ain’t easy.
IN SUMMARY: Family Court “ain’t for sissies”. The process for self-represented litigants is much different than for represented parties. “Unbundled Services” can help bridge the gap, but nothing beats representation by an experienced lawyer.
This post was written by Burton Hunter