West Virginia Judiciary

Rules of Practice and Procedure for Family Court

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Table of Contents Full Table of Contents
  1. Commencement of actions
  2. Pleadings
  3. Signing of pleadings, motions and other papers; representations to court; sanctions
  4. Discovery
  5. Financial disclosure

Commencement of actions
  1. Commencement of actions. — All actions for divorce, annulment and separate maintenance shall be filed as family court cases except at the discretion of the circuit court or the petitioner, any action for divorce, annulment or separate maintenance filed pursuant to W. Va. Code § 51-2A-2(b) shall be filed as a circuit court case and shall be assigned to a circuit court judge. A proceeding filed pursuant to W.Va. Code § 51-2A-2 shall be commenced by filing a verified petition with the circuit clerk. The petition shall be accompanied by three copies of a completed case information statement and a financial statement completed on the form approved by the supreme court of appeals. In cases which may involve spousal support, child support, allocation of custodial responsibility, visitation, or paternity, the petition shall also be accompanied by a completed application for child support enforcement services pursuant to the Social Security Act, Title Chapter 42, 7, Subchapter IV, Part D of the United States Code, hereafter referred to as a Bureau for Child Support Enforcement Application Income Withholding Form. Within five days of the filing of a petition the circuit clerk shall send the family court a copy of the case information statement.
  2. Service on respondent. — The circuit clerk shall forthwith issue a summons to be served  within 20 days of filing of the petition. The petitioner shall choose a method of service in accordance with the Rules of Civil Procedure. In addition to the summons the respondent shall be served a copy of the petitioner's petition and financial statement. If the respondent is the parent of minor children subject to the action, a parent education notice shall be served with the summons.
  3. Respondent's answer. — The respondent shall file the answer with the circuit clerk and serve a copy upon the petitioner  within the time required by Rule 12 of the Rules of Civil Procedure. In addition to the answer, the respondent shall file the following: three copies of a completed case information statement and a financial statement completed on the form approved by the supreme court of appeals. The respondent shall also serve the petitioner a copy of all of the foregoing at the same time of filing his or her answer. In cases which may involve spousal support, child support, allocation of custodial responsibility, visitation, or paternity, the answer shall also be accompanied by a completed Bureau for Child Support Enforcement Application Income Withholding Form.  Within five days of the filing of the answer the circuit clerk shall send the family court a copy of the case information statement. 
  4. Payment of parent education fees. — Parents with minor children subject to the action shall pay the required parent education fee to the circuit clerk, except for those parents who file financial affidavits with the circuit clerk and receive  fee waivers.
  5. Requirements relating to Bureau for Child Support Enforcement Application Income Withholding Form for child support enforcement services. — Within five days of the filing the circuit clerk shall send a copy of the Bureau for Child Support Enforcement Application Income Withholding Form and the filing party's case information statement to the local child support enforcement office.

[Amended by order adopted November 27, 2001, effective January 1, 2002; and by order entered and effective December 1, 2005; and by order adopted May 22, 2007, effective July 1, 2007.]


Pleadings
  1. All pleadings filed in office of the circuit clerk. — All pleadings shall be filed in the office of the circuit clerk. The filing of pleadings prepared without the assistance of counsel, including legible handwritten pleadings, shall be permitted.
  2. Identifying information required; circumstances in which identifying information may be withheld. — All pleadings, forms, and document filings shall include the name, address, telephone number and state bar identification number of counsel; or if the party is self- represented, the party's contact information such as name, address, and a telephone number at which the party can be reached during normal business hours. Upon the filing of an affidavit asserting that the health, safety, or liberty of a party or child would be put at risk by the disclosure of identifying information, or upon a finding by the court, which may be made ex parte, that such a risk may exist, such information shall be withheld from all persons except court personnel.
  3. Service when a party's identifying information has been sealed in the file. — When a party's identifying information has been sealed in the case file, and the opposing party needs to make service on the party whose identifying information has been sealed in the case file, the party seeking to serve a pleading shall direct the circuit clerk to make service. Service shall be made by the circuit clerk upon a party whose identifying information has been sealed in the case file.
  4. Proposed parenting plans. — Parenting plans proposed by the parties are pleadings.
  5. Effect of service on child support enforcement agency. — Service on the child support enforcement agency shall not constitute service on or notice to any other party.
  6. Filing and service by facsimile transmission. — Pleadings and other documents may be filed and served by facsimile transmission pursuant to Trial Court Rule 12.02(b)-(f), 12.03 (a)-(p), and 12.04.

[Amended by order adopted November 27, 2001, effective January 1, 2002; and by order entered and effective December 1, 2005.]


Signing of pleadings, motions and other papers; representations to court; sanctions
  1. Signature. — Every pleading, motion and other paper shall be signed by at least one attorney of record in the attorney's individual name, or if the party is not represented by an attorney shall be signed by the party. Each paper shall state the signer's address and phone number, if any, and The West Virginia State Bar identification number, if any. Except when otherwise specifically provided by rule or statute, pleadings need not be verified or accompanied by affidavit. An unsigned paper shall be stricken unless omission of the signature is corrected promptly after being called to the attention of the attorney or party.
  2. Representations to court. — By presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person's knowledge, information, and belief formed after an inquiry reasonable under the circumstances,
    1. it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;
    2. the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;
    3. the allegations and other factual contentions have evidentiary support or, of specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and
    4. the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.
  3. Sanctions. — If, after notice and a reasonable opportunity to respond, the court determines that subdivision (b) has been violated, the court may, subject to the conditions stated below, impose an appropriate sanction upon the attorneys, law firms, or parties that have violated subdivision (b) or are responsible for the violation.
    1. How initiated.
      1. By motion. – A motion for sanctions under this rule shall be made separately from other motions or requests and shall describe the specific conduct alleged to violate subdivision (b). It shall be served as provided in Rule 5, Rules of Civil Procedure, but shall not be filed with or presented to the court unless, within 21 days after service of the motion (or such other period as the court may prescribe), the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected. If warranted, the court may award to the party prevailing on the motion the reasonable expenses and attorney's fees incurred in presenting or opposing the motion. Absent exceptional circumstances, a law firm shall be held jointly responsible for violations committed by its partners, associates, and employees.
      2. On court's initiative. – On its own initiative, the court may enter an order describing the specific conduct that appears to violate subdivision (b) and directing an attorney, law firm, or party to show cause why it has not violated subdivision (b) with respect thereto.
    2. Nature of sanction; limitations. – A sanction imposed for violation of this rule shall be limited to what is sufficient to deter repetition of such conduct or comparable conduct by others similarly situated. Subject to the limitations in subparagraphs (A) and (B), the sanction may consist of, or include, directives of a nonmonetary nature, and order to pay a penalty into court, or, if imposed on motion and warranted for effective deterrence, and order directing payment to the movant of some or all of the reasonable attorney's fees and other expenses incurred as a direct result of the violation.
      1. Monetary sanctions may not be awarded against a represented party for a violation of subdivision (b)(2).
      2. Monetary sanctions may not be awarded on the court's initiative unless the court issues its order to show cause before a voluntary dismissal or settlement of the claims made by or against the party which is, or who's attorneys are, to be sanctioned.
    3. Order. When imposing sanction, the court shall describe the conduct determined to constitute a violation of this rule and explain the basis for the sanction imposed.
  4. In applicability to discovery. — Subdivisions (a) through (c) of this rule do not apply to discovery requests, discovery responses, discovery objections, and discovery motions.

[Amended by order adopted November 27, 2001, effective January 1, 2002; and by order entered and effective December 1, 2005.]


Discovery

As the interest of justice requires, discovery pursuant to Rules 26 through 37 of the Rules of Civil Procedure may be ordered by the court at any time, or may be allowed by the court upon motion demonstrating a particular need.

[Amended by order adopted November 27, 2001, effective January 1, 2002; and by order entered and effective December 1, 2005.]


Financial disclosure
  1. Required financial information on motions for relief. — The petitioner and respondent shall file completed financial statements with the circuit clerk as provided in Rule 9 herein. Any updates or amendments to financial statements shall be filed with the circuit clerk and served on all parties pursuant to the date specified by the scheduling order of the Court or no later than five days prior to any hearing, whichever first occurs, that deals with the establishment or modification of support.  In cases which may involve spousal support, child support, allocation of custodial responsibility, visitation, or paternity, the petitioner and respondent shall file the following  documentation in support of the required financial statement pursuant to the date specified by the scheduling order of the Court or no later than five days prior to any scheduled hearing, whichever first occurs:
    1. A copy of the party's three (3) most recent wage or salary stub showing gross pay, deductions for taxes and other items, and net pay for a normal pay period, and for the year-to-date;
    2. Copies of the party's complete income tax returns for the two years immediately preceding the date the petition was filed, together with copies of the federal Form W-2 for those years; and a copy of the Form W-2 for the most recent year for which that form is available, even if a tax return has not yet been filed for that year;
    3. For a self-employed party, a copy of a current financial statement showing gross income, expenses, and net income;
    4. Copies of any invoices or receipts showing the cost of any extraordinary medical expenses for the party or the children, of any child care expenses, and of any expenses necessitated by the special needs of the children.
  2. Failure to file required financial information and supporting documentation; sanctions. — The failure to file or untimely filing of any required financial information shall not be grounds for a continuance. If a party fails to file or untimely files any required financial information, the court may refuse to grant requested relief to that party, and/or may accept the financial information of the other party as accurate.

[Amended by order adopted November 27, 2001, effective January 1, 2002; and by order entered and effective December 1, 2005; and by order adopted May 22, 2007, effective July 1, 2007.]