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:


§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.