Legal Separation in West Virginia: Separate Maintenance Explained

West Virginia lets married people live apart under a court order without divorcing, but the West Virginia Code calls that action separate maintenance, not legal separation. Under W. Va. Code § 48-4-101, a spouse may bring an action for separate maintenance in family court "whether or not a divorce is prayed for," and § 48-4-103 lets the court order any relief available in a divorce, other than the divorce itself.

Information last verified on 2026-10-10. This article has not been reviewed by a licensed lawyer.

Jurisdiction scope: This article covers separate maintenance under Article 4 of Chapter 48 of the West Virginia Code (§§ 48-4-101 through 48-4-104), with related provisions on property division (§§ 48-7-101, 48-7-102) and divorce (§§ 48-5-105, 48-5-202). It does not cover inheritance or other effects on a spouse's rights at death, remarriage, tax consequences or other states' law. For support amounts, see West Virginia alimony laws.

Does West Virginia have legal separation?

West Virginia's version is separate maintenance. Article 4 of Chapter 48 consists of four sections, §§ 48-4-101 through 48-4-104, and none of them uses the label legal separation. Section 48-4-101 provides:

"An action for separate maintenance may be brought in the family court of any county where an action for divorce between the parties could be brought. An action for separate maintenance may be brought whether or not a divorce is prayed for."

The Code does use the word separation elsewhere. Section 48-7-101, the property-division statute, refers to "every judgment of annulment, divorce or separation." This page focuses on separate maintenance because that is the action Article 4 creates.

Grounds for separate maintenance

Section 48-4-102 gives two routes:

"Separate maintenance may be ordered: (1) If the party seeking separate maintenance has grounds for divorce; or (2) If the party from whom separate maintenance is sought, without good and sufficient cause: (A) Has failed to provide suitable support for the other spouse; or (B) Has abandoned or deserted the other spouse."

The second route does not require grounds for divorce. A spouse who has been left without suitable support, or who has been abandoned or deserted, may seek separate maintenance on that basis alone, unless the other spouse had good and sufficient cause.

For the first route, the spouse needs a divorce ground. West Virginia's divorce grounds include irreconcilable differences (§ 48-5-201), living separate and apart for one year (§ 48-5-202), cruel or inhuman treatment (§ 48-5-203) and adultery (§ 48-5-204). The full list and what each requires are on the West Virginia divorce laws page.

Where to file and residency

Separate maintenance is filed in family court (§ 51-2A-2(a)(1)). If no parenting plan, allocation of responsibility for children or child support is involved and both parties file a signed property settlement agreement when the action is filed, the circuit court also has jurisdiction (§ 51-2A-2(b)). Under § 48-4-101, it may be brought in any county where an action for divorce between the parties could be brought.

Article 4 ties the action to divorce venue rather than stating its own residency rule. For divorce, § 48-5-105 provides that if the marriage was entered into in West Virginia, one party must be a bona fide resident, with no minimum period stated. If the marriage was entered into elsewhere, one party must have been a resident when the cause of action arose or have become one since, and must have lived in the state without interruption for the year before filing. Section 48-5-105(b) sets a separate rule when the divorce ground is adultery: one party must be a bona fide resident when the action is commenced, and if the respondent is a nonresident who cannot be personally served in West Virginia, the petitioner must have been a bona fide resident for at least one year before filing. This page does not cover whether a court applies those divorce residency rules to a separate maintenance action; ask the family court clerk or a West Virginia lawyer.

The West Virginia Judiciary's Family Court Forms page lists divorce forms. This page does not link a dedicated separate maintenance form. Legal Aid of West Virginia, a nonprofit, offers guided self-help forms under a topic that includes separation.

What the court can order

The court's powers mirror a divorce, minus the divorce. Section 48-4-103 provides: "In an action for separate maintenance, the court may order all or any portion of the temporary or final relief that the court may order in an action for divorce, other than a divorce."

The same section gives the court the same temporary-order powers it has in a divorce, and an order stays in effect for the time the court directs, until further order.

Property. Section 48-7-101 provides that, "Except as otherwise provided in this section, upon every judgment of annulment, divorce or separation, the court shall divide the marital property of the parties equally between the parties."

Children. Section 48-4-104 refers to orders on allocation of responsibility for children and child support. See West Virginia child custody laws and West Virginia child support laws.

Changing the order. Under § 48-4-104, either party may petition to revise orders on support and maintenance, property interests, allocation of responsibility for children and child support.

Separation agreements

Spouses can also settle property questions by agreement. Under § 48-7-102, the court divides marital property according to the parties' separation agreement unless the agreement was obtained by fraud, duress or unconscionable conduct, its terms are unenforceable, or it is so inequitable as to defeat the purposes of that section and was inequitable when it was signed.

Are you still married?

Yes, in the sense that separate maintenance is relief "other than a divorce" (§ 48-4-103); a separate maintenance order is not a divorce. Article 4 does not itself spell out the effects on remarriage or inheritance, and this page does not cover them.

Moving from separate maintenance to divorce

Article 4 does not contain a procedure for converting a separate maintenance order into a divorce. A spouse who wants a divorce files for one on a divorce ground.

One ground is built around living apart. Section 48-5-202(a) provides: "A divorce may be ordered when the parties have lived separate and apart in separate places of abode without any cohabitation and without interruption for one year." The separation may result from the voluntary act of one party or from mutual consent. This page does not cover whether time spent under a separate maintenance order counts toward that year.

Disclaimer: This article provides general legal information about separate maintenance under Chapter 48 of the West Virginia Code, verified on 2026-10-10. It is not legal advice. For advice about a specific situation, consult a lawyer licensed in West Virginia or contact the family court clerk in your county.

Related

• Legal separation laws in every state
• West Virginia divorce laws
• West Virginia alimony laws
• West Virginia child custody laws
• West Virginia child support laws

Last updated: 2026-10-10.

Frequently Asked Questions

Can you get a legal separation in West Virginia?

West Virginia's action for this is called separate maintenance. Under § 48-4-101 it is filed in family court in any county where a divorce between the parties could be brought, whether or not a divorce is also requested.

What are the grounds for separate maintenance in West Virginia?

Under § 48-4-102, the spouse asking must have grounds for divorce, or the other spouse, without good and sufficient cause, must have failed to provide suitable support or abandoned or deserted the spouse.

Can a West Virginia court divide property in a separate maintenance case?

Section 48-4-103 lets the court order any relief available in a divorce other than the divorce itself, and § 48-7-101 directs equal division of marital property upon every judgment of annulment, divorce or separation, except as that section otherwise provides.

Does separate maintenance turn into a divorce automatically in West Virginia?

Article 4 sets out no conversion procedure. A spouse who wants a divorce files on a divorce ground, such as living separate and apart without cohabitation and without interruption for one year under § 48-5-202(a).

Can a separate maintenance order be changed later?

Yes. Under § 48-4-104, either party may petition to revise orders on support and maintenance, property interests, allocation of responsibility for children and child support.