H. B. 2511
(By Mr. Speaker, Mr. Chambers, and Delegates Leach, Burke
and Hubbard)
[Introduced February 16, 1995; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact section four, article two, chapter
forty-eight of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, relating to abolishing the
requirement that the circuit clerk provide without charge an
answer form in divorce cases.
Be it enacted by the Legislature of West Virginia:
That section four, article two, chapter forty-eight of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted to read as follows:
ARTICLE 2. DIVORCE, ANNULMENT AND SEPARATE MAINTENANCE.
§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.
NOTE: The purpose of this bill is to abolish the
requirement that the circuit clerk provide answer forms at no
cost in divorce cases.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.