Should I Agree to Pay Above the Child Support Guidelines?

It’s no secret that children are expensive, and when a West Virginia couple divorces, the higher-earning party often has to chip in more to ensure that their children’s needs are met. But what if the child support guidelines laid out by the state still don’t meet the child’s needs? If you’re considering paying above and beyond the child support guidelines, it’s important to know how it may affect you down the line.

As you figure out a fair and reasonable child support agreement, make sure you have a strong legal team representing you. Call Pence Law Firm at 304-407-7852 to set up a consultation with our team right away.

Child Support Guidelines in West Virginia

West Virginia uses the Income Shares Support Formula, which calculates both parents’ income and assumes that both parties would be contributing to the child’s upbringing were they to stay married. The calculator also accounts for how much time the children spend with each parent, how many children there are, and any unique expenses involved in caring for the children. Even if child custody is split 50/50, it’s likely that a parent who earns significantly more will pay child support to the lower-earning parent.

There are many higher-earning parents who decide to pay more than what the state requires. Learn more about what this means for you.

Factors That May Influence Your Decision

There are a number of factors that may sway your decision. Perhaps you have the financial capacity to pay above the child support guidelines, and you want to ensure that your child has the quality of life you feel they deserve. Your child may also have unusually expensive extracurricular activities, private school tuition, or medical expenses that push you to give more. If you know that the other parent struggles financially, you may want to support them by providing more financially. Some people also use additional child support as leverage; if you want additional time with your children, you may compromise by providing additional support.

The Benefits and Risks of Overpaying

There are several benefits of paying over what the child support calculator states, including:

  • Showing your commitment to your child and their best interests
  • Limiting conflict with your co-parent and providing for your child in a meaningful way
  • Giving yourself some wiggle room—should your financial circumstances change in the future, you may be able to decrease child support but still be within what the law recommends
  • Allowing your child to participate in more activities and enjoy life to the fullest

However, there are potential risks to consider:

  • If your financial circumstances change and your child support is legally ordered, you may have to go through the expense of hiring a lawyer and going to court to get the order changed
  • Resentment may build if you limit your own quality of life in order to provide extra, particularly if your co-parent isn’t appreciative
  • Potential of having your extra child support used to enrich your co-parent’s life rather than your child’s life

Protecting Yourself Legally

Before you agree to anything, it’s important to discuss your options with a Charleston child support lawyer. If your child support order includes extra child support, that is legally binding—you cannot simply decide to stop paying the “extra” because it is above the child support guidelines. At that point, it is part of a court order, and failing to pay could put you in contempt. 

This is something to think about before agreeing to any set number. If you want to pay extra without the risk of a sudden change in financial circumstances, consider having your child support order reflect the state-mandated amount and paying the rest informally. However, you should discuss these and other options with your lawyer to make the best choice for you and your children.

Explore Your Legal Options with Pence Law Firm

Ready to find the best child support solution for your financial needs? The team at Pence Law Firm is here to help you. Our experience in family law gives us the knowledge and skills needed to handle even the most complex child support cases. Get started now by calling us at 304-407-7852 or filling out our online contact form.

Important Things to Know About Modifying a Child Custody Arrangement

The initial custody agreement you and a coparent agree on may not work forever. Life changes, and it’s important that custody arrangements change with it. However, getting a modification in a child custody arrangement can be a challenge. It’s crucial to know what the court will look for, why the court may be willing to grant a modification, and how to approach a conversation on this matter with your coparent.

Looking for help with your custody modification request? It’s time to talk to the team at Pence Law Firm about your options and next steps. Call us at 304-407-7852 to set up a consultation now.

Grounds for Modification in West Virginia

Each state takes a slightly different approach to child custody modifications, so looking into what West Virginia law says can be very helpful. To start, the person who is requesting the custody order must be prepared to show the court that circumstances have changed substantially since the previous custody order was put in place. They must show that the change they are suggesting is in the child’s best interests and will benefit them.

A substantial change in circumstances can look different in every single family. Perhaps coparents had agreed on a traditional schedule where one parent had the child most of the time, with the other parent having every other weekend and some holidays. If the primary caregiver has gone back to work and has a schedule that doesn’t allow them to have the child full-time, they may be interested in moving to a 50-50 schedule. Similarly, if the child initially stayed full-time with the mother due to nursing, the court may grant a change to a shared parenting schedule once the child is slightly more independent.

In the easiest custody modifications, both parents agree on the necessary change and sign off on it. In these circumstances, the parents often just sign off on the necessary paperwork and wait for the court to approve it. Note, though, that the court can deny any arrangement that it deems to be not in the child’s best interests.

There are scenarios in which the court may change custody even if circumstances haven’t materially changed. For example, an older teenager may want to live with one parent primarily, even if their situation hasn’t changed since the last modification. The court may also agree to a change if the parents have been splitting time in a way different than what is in their court order.

How to Request a Modification

The parent interested in changing custody—or both parents, if they are in agreement—can submit a Petition for Modification, which is available along with other family laws forms on the West Virginia Judiciary site. Be prepared to describe what changes you would like to see in the parenting plan, the circumstances warranting a custody change, and other relevant information.

From there, the form will be filed with the circuit court and sent to the other parent. You’ll receive a court date during which you’ll have a chance to make your case. If you and your coparent agree on the necessary changes, the judge may simply sign off on the order and handle your request that way.

What the Court Considers

When making a decision regarding a custody modification, the court looks into a wide range of factors. It’s important to remember that above all, the child’s best interests are the priority. To determine what is in a child’s best interests, the court may consider:

  • The child’s current relationship with both parents
  • How the requested change would affect the child’s relationship with both parents
  • Each parent’s ability to provide a stable and healthy environment for the child
  • The reason for the request
  • The preferences of the child if the child is old enough to voice their opinion

The court also generally prefers coparents to work out an agreement together. By approaching this conversation with a calm demeanor and a willingness to understand your co-parent’s point of view, you may be able to reach an agreement before court.

Facing Family Law Issues? Contact Pence Law Firm Today

If you have family law issues in West Virginia, it’s time to talk to the team at Pence Law Firm. We can help you learn more about your options and develop a plan. Reach out online or call us at 204-407-7852 to set up a consultation.

The Role of Guardian Ad Litem in Divorce and Child Custody Cases

If you have a legal issue involving children, the court may assign a Guardian Ad Litem to your case. When a child’s best interests are involved, it can be difficult for the court to decide what’s best for the child in question. Both parents have their input, but what the child truly needs is an impartial advocate—and that’s the Guardian Ad Litem, or GAL.

Find out what role a GAL may play in your legal issue, and when you’re ready for more personalized guidance with your family law concerns, call Pence Law Firm at 304-407-7852 to set up a consultation.

How the Guardian Ad Litem Helps in Divorce Cases

When a couple with minor children is getting divorced, a GAL may be appointed to protect the children’s best interests. This is especially important when the parents are deeply divided about what is best for the children or when one party appears to be manipulating the situation against the other parent.

The GAL may investigate the children’s living conditions, relationships with both parents and how their needs are met in both households. They may talk to the children, interview parents, and ask questions of other adults in the children’s lives. For example, they may talk to teachers, therapists, and doctors.

One of a Guardian Ad Litem’s most important jobs is assessing each parent’s ability to meet their children’s needs. Their goal is to determine to what extent each parent can meet a child’s physical, emotional, developmental, and educational needs. They get a lot of the information they need during the parent interviews, but they can also learn a lot simply by seeing the parents interact with the children. Relevant factors include any history of domestic violence, each parent’s mental health, the stability of each parent, and each individual’s general parenting skills.

Once the GAL has gotten the information they need, they will make official recommendations to the court. Their goal is to ensure that the children’s needs are met and that they benefit from a safe, nurturing environment.

What the Guardian Ad Litem Does in Child Custody Cases

Child custody issues may arise between never-married parents or divorced parents with an established custody order. In these cases, the GAL does much of the same work they do in a divorce case. They look into the child’s relationship with both parents and each parent’s ability to meet the developmental needs of the child.

If either side brings up allegations of abuse or parental alienation, the GAL’s job is to assess the validity of those claims. This often involves reviewing medical records, talking to other trusted adults in the child’s life, and gathering more information from each parent. For example, they may be able to figure out whether or not parental alienation is occurring based on the language used by the child and if that language appears coached or developmentally appropriate.

By gathering their own information and collaborating with other professionals, the Guardian Ad Litem can make custody recommendations to the court.

Working With the Guardian Ad Litem

It’s important to avoid viewing the Guardian Ad Litem as an enemy or as someone interfering in your relationship with your child. They, like you, just want what is best for your child. Communicate with them openly and honestly, but avoid talking at length about irrelevant topics or delving too deep into your divorce.

Make yourself an active participant in the legal process by cooperating with the GAL, providing the information and documentation they need, and attending all court dates and interviews. When you do communicate with the Guardian Ad Litem, stay respectful and succinct. Don’t initiate confrontations or try to manipulate their view of the situation.

Be ready to provide any documentation the GAL requests. They may want a child’s attendance records, medical records, academic assessments, or therapy notes. They may also want character references who can speak to your ability as a parent.

Explore Your Legal Options with the Help of Pence Law Firm

When you work with the team at Pence Law Firm, you can rest easy knowing that your family law concerns are in good hands. Whether you need help with your divorce or a child custody case, our team of Charleston family law attorneys is here to help. To schedule your free consultation, call us at 304-407-7852 or reach out online.

Establishing Paternity and Its Impact on Child Support and Custody

Questions of paternity can be painful and confusing to navigate. Perhaps you’re in a long-term relationship but not married, and you need to know how to get on the birth certificate as your child’s legal father. Maybe you’re questioning the paternity of a child you’ve raised as your own. You may have just found out about the existence of a child that is very likely yours.

No matter what has led you here, we’re here to help. As you figure out your next steps, turn to the team at Pence Law Firm to advocate for you. Call us at 304-407-7852 to set up a consultation now.

How to Establish Paternity

Paternity does not need to be established in every single case. If a child is conceived or born out of wedlock, during a separation, or during a divorce, you must establish paternity. However, even if you are married and the child was born during your marriage, you can seek to prove paternity.

There are several ways to go about establishing paternity in West Virginia. By following any of these accepted routes, you can be legally named as a child’s father. This enables you to seek parenting time and allows either party to establish child support. You can establish paternity by:

  • You can voluntarily acknowledge that you are a child’s father by signing a Declaration of Paternity Affidavit.
  • Either parent can verify paternity or determine paternity if it is in question by requesting genetic testing. The BCSE—Bureau for Child Support Enforcement—will order the genetic testing and send the results.

If you have been struggling to prove paternity because the other parent is resistant, you may wonder about your options if they refuse to submit to genetic testing or refuse to present the child for genetic testing. Once the BCSE orders genetic testing, it is a binding legal order. Should either party refuse, the BCSE can find them in contempt and go forward from there.

Paternity and Child Support

Once paternity has been established, either via the Declaration of Paternity Affidavit or genetic testing, the BCSE will set up a hearing to determine child support for the child or children in question.

In fact, child support is often the primary reason that a parent seeks to establish paternity. Potential fathers often have a lot of questions when this happens—what if they don’t want to be involved in the child’s life? Can they sign their parental rights away to avoid paying child support? What if the mother hid the child from them?

There are very, very few circumstances under which a legal father can avoid paying child support to provide for his child or children. The court will go to great lengths to ensure that the child receives the financial support they deserve, including seizing tax returns and garnishing wages. It is crucial to speak with a child support attorney if you are concerned about your obligations and your ability to pay.

Parental Rights and Custody

The good news is that establishing paternity does give the legal father substantial rights. Once he has been named as the legal father, he can request access to the child in order to build a relationship with them—barring extreme cases of abuse, substance abuse, or other scenarios that would put the child in danger.

If the child is young, visitation may depend on whether or not the child is breastfed and how long they can be away from their mother. Once they reach an appropriate age, a father can request additional parenting time.

If the child is older and the father has not been involved in their life until now, visitation may start gradually and slowly ramp up. This gives the child time to become comfortable with their father before moving to overnight visitation and even shared custody.

Take the Next Step in Your Family Law Case and Contact Pence Law Firm

No matter what situation you find yourself in, we are here to support you. Set up a time to talk to the family lawyers at Pence Law Firm now to talk about your legal options. Give us a call at 304-407-7852 or send us a message online.

Special Needs Children in Divorce: Legal Considerations and Parental Responsibilities

There is truly no situation in which a divorce is easy. Even when both parties agree on what must be done and how to go about the split, the fallout from a divorce can last years. When there are special needs children involved, it makes an already-painful situation even more challenging. Special needs children have certain legal, developmental, and emotional considerations that must be accounted for in a divorce.

Are you facing divorce and unsure of how to protect yourself? Call Pence Law Firm at 304-407-7852 to set up a consultation now.

Legal Issues

The first struggle you face as you navigate divorce with special needs children is custody and visitation. Ideally, you’ll move to a schedule that is as close as possible to the child’s current struggle. Children with disabilities often struggle with changes in routine, and when you pair that with the loss of their parent’s marriage, the outcome can be devastating. Parents must work together to find a schedule that they can accommodate and stick to faithfully.

In every situation, the child’s best interests are the top priority. This is more complicated with special needs children, as they may have specific care needs that one parent is better equipped to provide. For example, if one parent has given up their career to stay home with the child and ensure that they always have the support they need, a sudden shift to 50/50 custody could be incredibly difficult.

Of course, there are also financial issues to consider. Childrearing is never inexpensive, but special needs children often have significant medical issues, specialized programming needs, and respite care needs that must be budgeted for. These factors cannot be forgotten when it comes time to discuss child support.

One of the biggest issues to discuss is the child’s needs after they reach adulthood. If the child’s disabilities are significant enough that they are unlikely to live on their own at any point, the parents should discuss their plans for their child’s future.

Parenting Strategies

The good news is that a child’s experience in divorce is largely determined by how their parents handle it. While parents should always be ready to work together for their children, it’s even more essential when special needs children are affected. Collaborative and cooperative co-parenting strategies are a crucial component of success, and co-parents will need to communicate clearly and consistently. Continuing to provide as much routine and structure for the child as possible can assist them through this transitory period.

As you may know, open communication and collaboration with an ex-partner can seem impossible when you’re going through the pain of a divorce. In this scenario, you would want to meet with a family counselor with specialized experience in this area to guide you through and help you and your ex-partner learn to co-parent. They may even be able to provide assistance with telling the child and guiding them through the transition.

Helping Special Needs Children Through Divorce

Special needs children will undoubtedly struggle as they work through their parents’ divorce, but try to remember—this is temporary. If your marriage is irrevocably broken, this is a change that must happen. Working with professionals with experience in this area can help you feel more supported as you try to care for your child. You can look for support from a family counselor, a pediatric therapist with experience navigating divorce, and a divorce attorney with a background in helping parents with special needs children.

In general, the earlier you reach out for help, the better. The further you get into the divorce process, the more complex the issues become and the more challenges you face. If you already have a support system in place when you find yourself feeling hopeless, you’ll be able to push through.

Are You Preparing for Divorce? Contact Pence Law Firm Today

If you’re considering divorce as a parent to a special needs child, we understand that you have numerous concerns and questions. That’s why we strive to answer your questions and provide guidance in your free consultation. To find out how we can help you—just call us at 304-407-7852 or fill out our online contact form to connect with a team member.

The Role of Mediation in Divorce and Family Law Cases

When you are going through a divorce or dealing with another family legal matter, litigation is only one of the legal options available to you. Mediation is a credible form of dispute resolution in family law cases in West Virginia.

Mediation is often court-mandated before the formal litigation process can ensue in family law cases involving children. Divorcing couples look at mediation as a viable method that can help them avoid a lengthy litigation process. But going into mediation without an experienced family law attorney by your side can be treacherous, so make sure you have strong legal representation available for the protection of your rights.

Role of a Divorce Mediator in West Virginia Divorce Proceedings

Mediators are trained and neutral third parties that are either hired by the parties or are court appointed. Your mediator will assist both you and your spouse. They will help you arrive at an agreement to avoid litigation on any outstanding issues. This can involve financial issues and co-parenting issues where family law is concerned.

Mediators usually meet with both parties when their respective attorneys are present. There is a great deal of negotiation in front of couples getting a divorce. It can be challenging to separate lives that you and your spouse have made together. Several issues regarding the division of property, finances, child custody, and spousal support can crop up.

These are sensitive touch points that may benefit from the involvement of a mediator. You can keep things civil with your spouse and the meetings productive. Divorce mediation with a licensed divorce mediator can help facilitate communication between you and your spouse so that you both arrive at an agreement that you can live with.

How Does Divorce Mediation Work?

Typically, mediators have a background in psychology, law, or counseling. They detect individual nuances and dynamics in a relationship. They employ effective tools to help couples get around roadblocks for facilitating productive and healthy dialogue. It is important to note that your divorce mediator has no role in making judgments or decisions in a divorce.

It’s your job to get through issues with your spouse. The mediator will simply allow for better and more effective communication by asking key questions and making relevant points or suggestions.

Is Divorce Mediation Right for Me?

Divorce mediation has worked wonders for many couples. But this doesn’t necessarily make it right for all couples. If your marriage involved physical or emotional abuse, you may not be on good terms with your spouse or looking forward to negotiating with them. You may prefer attorneys and the court.

The same holds true for couples that separated on such bad terms that it has become difficult for them to communicate without entering into an argument. Most family court judges refer divorcing couples with kids to a mediator. This is to protect children from unnecessary stress and emotional upset accompanied by time-consuming litigation.

If you are facing a divorce and have children, shared assets, or a home with the other spouse, you may want to speak with an accomplished divorce attorney to learn more about mediation and other available options.

Role of Attorneys in Divorce Mediation

A lawyer can have a substantial impact on the divorce mediation process. Your attorney will be your counsel and review any agreement or document produced by the mediator. They will advise you in-between sessions to ensure the best outcomes. They will also prepare documents and assist you with research. Attorneys also assist clients in presenting the most persuasive and clear version of their needs and concerns.

Family law attorneys with experience in attending mediation sessions will be able to assist you during your sessions. They will remain in a passive role during the mediation though by taking notes. They will also provide you with feedback during negotiation breaks.

In some cases, an attorney may vocally advocate for their client during the mediation session. They may also be involved in dialogue with the opposing party’s attorney.

In high-conflict divorce cases and family law matters, attorney-assisted mediation usually provides good results. You may find an attorney to be a good fit if you are having a difficult time getting heard or are involved in a legally complex matter. The presence of an attorney can change the dynamics and permit the quieter party to have their say during negotiations.

Get a Free Case Evaluation from Our Seasoned Family Law Attorneys

The experienced and dedicated divorce attorneys at Pence Law Firm, PLLC can review the terms of a proposed agreement to ensure your rights remain protected at all times. Our attorneys have the legal knowledge and acumen to handle family legal matters ranging from the most straightforward to highly complex with equal proficiency.

To set up your free, no-obligation consultation, call us at (304) 345-7250 or write to us online.


Can The Things I Purchase for My Child Count Towards My Child Support In West Virginia?

West Virginia child support laws strictly define which expenses can count towards child support. As a non-custodial parent, you might wonder if gifts or expenses for your child can be considered child support. Consulting an experienced WV family law attorney can help clarify your rights.

Purpose of Child Support

Child support aims to cover a child’s basic needs, such as food, housing, clothing, education, and healthcare. In some cases, it may also include additional expenses like daycare, dental work, car and insurance, phone, internet, and extracurricular activities. For example, if your child needs braces, you may be able to include this cost in your child support payments.

Additionally, the purpose of child support is to ensure that the child’s standard of living remains consistent despite the parents’ separation. This means that financial responsibility is shared between both parents to maintain the child’s well-being, even when they are no longer together.

Including Gifts and Loans in Income

Gifts are generally not considered part of the custodial parent’s income unless the non-custodial parent provides them regularly. The court may consider such gifts as income if they were a part of the income during the marriage, generated from a shared investment, or if the giver will continue to provide them. For instance, if you regularly gifted your child a yearly vacation during the marriage, the court may include this expense in the child support calculation.

However, loans provided by the non-custodial parent to the custodial parent might be treated differently. The court may consider these loans as income if they are used for the child’s expenses, such as paying for medical bills or tuition fees. In such cases, the court may take into account these additional financial contributions when determining the child support amount.

Types of Gifts from a Paying Parent

Any payment or item given to the child outside of the child support agreement is usually considered a gift. Examples include toys, electronics, clothes, jewelry, or sports items. If you buy your child a new bicycle, the court typically considers it a gift and not a part of your child support obligation.

It is essential to differentiate between gifts given directly to the child and those given to the custodial parent for the child’s benefit. While the court may not count gifts given directly to the child as child support, providing financial assistance to the custodial parent for the child’s expenses might be considered when calculating the support amount.

Dealing With Payments Made Outside the Custody Order

Payments made outside of the court order are not connected to support payments. If you want to ensure that the gifts you provide count as an alternative form of child support, you can agree with the other parent to include these arrangements through the courts.

In some cases, additional expenses for activities or events may be applied toward traditional child support payments, unless the court does not recognize the arrangement. For example, if you pay for your child’s soccer camp, you may be able to count it towards your child support payment.

Keep in mind that the court will ultimately decide whether to accept these alternative arrangements as part of your child support obligation. Providing clear documentation and proof of the payments made, such as receipts or bank statements, can help support your case when presenting it to the court.

Consult with the Co-parent When You Give Gifts

To avoid misunderstandings, it’s best to coordinate with your ex-spouse when giving gifts or making additional arrangements. Establishing a reasonable budget and discussing acceptable items will ensure both parents are on the same page. For example, agree on a spending limit for holiday gifts to avoid disagreements and maintain a positive co-parenting relationship.

Open communication and collaboration with your ex-spouse can help create a healthy co-parenting environment for your child. By discussing gift-giving and other financial arrangements, you can prevent potential conflicts and ensure your child’s needs are met. Establishing trust and transparency with your co-parent can also foster a sense of stability and security for your child, making them feel loved and supported by both parents.

Contact a Skilled and Compassionate West Virginia Child Custody Attorney Today

To navigate the complexities of child custody, child support, and post-divorce modification orders in West Virginia, consult with the seasoned family law attorneys at Pence Law Firm, PLLC. To schedule a free consultation, call (304) 345-7250 or fill out the online contact form.

Important Things to Know About West Virginia’s 50/50 Custody Law

On June 10th, 2022, the “Best Interests of Child Protection Act of 2022,” also known as the 50/50 custody law went into effect in West Virginia. The law has changed how child custody cases are treated in family courts.

The “best interest of the child” standard has long been in use by WV courts while determining custody. While this hasn’t changed, the new law instructs judges to presume that a 50/50 custody split is in the child’s best interests.

You should speak with a seasoned family law attorney in WV to understand the implications and the potential changes in your legal position and achieve your child custody goals.

Overview of West Virginia’s New 50/50 Custody Law

Under the new standard, the child’s physical custody is automatically shared between the two spouses. Supporters of the law argue that the law intends to allow both parents to have a fair chance at caring for their children following a divorce. It also helps in protecting parents that have been unfairly treated by the family court system.

There have been concerns raised by a few family court judges and opponents about the chilling impact of the new law on victims of domestic abuse, who may feel compelled to stay in the marriage or risk having their children spend 50% of the time with the abusive parent. There are also concerns that a higher earning parent may try and reduce their child support obligations by using the new presumption.

50/50 Custody Split is Not Always Guaranteed

While this new law brings a significant change to the manner in which child custody issues used to be handled, the outcome of a proceeding is not guaranteed. Courts are still tasked with determining the best interests of the child.

The judge is instructed by this law to presume a 50/50 split. However, this presumption can be overcome or rebutted if there is significant evidence pointing in the other direction.

In order to successfully challenge the 50/50 custody standard, one parent needs to prove through a preponderance of the evidence that the other parent should not receive 50% of the share in physical custody. This evidence can come in the form of photographs, witnesses, text messages, and other items and facts that corroborate your argument.

Factors Affecting Child Custody in WV

These are a few factors that may affect the custody determination:

  • Logistical issues: This involves physical distances between the two parent’s homes and the cost of transportation that makes the 50/50 split impractical.
  • Disruption: 50/50 split can be disruptive to the child’s education, medical care, and other interests.
  • Siblings: The split may separate the child from their other siblings, including step and half-siblings.
  • Stability and safety: A parent may have a history of child abuse, domestic violence, substance addiction, or a violent felony rendering them unstable.
  • Preference: If the child is at least 14 years of age and expresses sufficient intelligence and maturity, they may be allowed a say as to which parent they want to live with.

The court may accept a parenting plan even if it does not include a 50/50 split as long as the plan serves the best interests of the child and complies with state law.

Process of Child Custody Determination Under the New 50/50 Custody Law

The court will determine temporary custody for the child at the first hearing. If you and the other parent have already agreed to a parenting plan, the court will likely use the agreement. If you or the other parent disagree with the temporary custody plan, you will need to file an appeal with the Intermediate Court of Appeals. This is a new court that is tasked with reviewing the lower court’s decision.

You should know that just because you appeal, it does not stop the lower court’s decision from being followed. Further, any future hearings in your custody case will not be paused. This is true even if your appeal has not yet been heard by the Intermediate Court. Several factors are determined by the family court when deciding on child custody. You should speak with a qualified divorce attorney to get help with your child custody concerns.

Navigate the Changing Family Court Dynamics with Help from an Experienced Divorce Attorney

The client-focused family law attorneys at the law firm of Pence Law Firm PLLC have extensive experience representing clients with child custody issues in WV. Whether you are looking for a 50/50 split or any other custody arrangement, our attorneys know the intricacies of the legal system and can advocate for you and your child’s best interests at every step.

To schedule your free consultation, call us at (304) 345-7250 or fill out this online contact form.


Divorce And Special Needs Children in West Virginia

Going through a divorce is never easy, but it can be particularly difficult if you have a child with special needs. Having a special needs child can impact every aspect of your divorce – from marital property division to child custody, spousal support, and child support.

If you are the parent of a special needs child who is planning to file for divorce, you need a divorce lawyer who can provide you with the personalized legal representation you need. At Pence Law Firm PLLC, we have handled several divorce cases involving special needs children over the years and have a deep understanding of the issues that are unique to these types of divorces.

Contact us today to discuss your case with one of our experienced West Virginia divorce lawyers.

Divorce and Special Needs Children – Key Issues to be Considered

Child Custody and Visitation

Caring for a child with special needs is completely different from caring for a normal child. Depending on whether your child has a physical, cognitive, behavioral, developmental, or sensory-related impairment, they might have unique needs that other children might not have. This is something you and your spouse need to keep in mind during child custody and visitation negotiations.

Moreover, as your child grows, their needs might change drastically. You – or your spouse – need to decide whether you have the means (financial and otherwise) to care for your child and make sure their needs are met.

It’s crucial to consult with doctors and mental health professionals to get a clear idea of your child’s current and future needs so that you can come up with an effective parenting plan that does not disrupt your child’s life too much.

It should also be noted that as your child grows, you might have to adjust your parenting plan to accommodate their changing needs. If the child custody and visitation order does not give you the leeway to adjust parental duties and visitation schedules, you have to request the court to modify the order.

Spousal Support

Most special needs children require special medical care, mental health care, medications, and supplements. As a result, the custodial parent might have to spend a substantial amount of money (depending on whether these expenses are covered under the child’s health insurance plan) on a monthly basis. The court might take this factor into consideration while ordering spousal support.

Child Support

Child support payments are meant to be paid only until the child in question turns 18. Once the child reaches the age of 18, the payments stop. This is not the case with special needs children. Depending on the severity of your child’s condition, the court might order you to pay child support even after your child turns 18.

Another important issue to be considered is that your child might qualify for public benefits like social security disability insurance and Medicaid. If you pay child support directly to your child, it might be considered an income and your child might lose their benefits as a result.

You need to consult with a skilled West Virginia divorce and special needs lawyer to figure out a way to support your child without affecting their right to receive state and federal benefits.


Depending on the nature and severity of your child’s condition, they might need the support of an adult all through their life. Keeping this in mind, you and your spouse should discuss between yourselves and decide who will become the legal guardian of the child once they turn 18.

If you fail to do so, the court will designate a guardian for your child once they turn 18. It could be someone who might not have been your choice for the role of guardian. It is why naming a guardian for your special needs child is so important.

You should also designate a successor guardian so that if you (or your spouse, depending on who the guardian is) become incapacitated or die, the successor you named can become your child’s guardian without requiring the court’s intervention.

Remember – the legal guardian has the right to make medical and financial decisions on behalf of the child. So, make sure you choose someone you can trust to be your successor guardian.

Special Needs Trust

Setting up a special needs trust is one of the best ways to provide for your child’s needs in the future. A special needs trust is relatively easy to manage and can be a source of reliable long-term income for your child.

Two of the most common types of special needs trust that can be set up for the benefit of special needs children and adults are first-party special needs trust and third-party special needs trust.

As mentioned above, any financial assistance provided directly to your child will be considered an income and affect their eligibility for public benefits. So, you should set up the trust in such a way that the funds in it will not be considered an income while determining your child’s eligibility to receive public benefits.

Importance of a Cordial Relationship between the Parents

Special needs children need parental love. The more involved the parents are in their child’s life, the happier the child will be. It’s why you and your ex-spouse should try to maintain a cordial relationship even after divorce.

You should consult with each other while making important decisions on your child’s behalf and find a way to be actively involved in your child’s life – regardless of the differences and disagreements you might have with each other.

Legal Help is Here from Compassionate West Virginia Family Law Attorneys

At Pence Law Firm PLLC, we know that navigating a divorce when you have a special needs child can be extremely stressful. Our legal team has over 100 years of combined experience in handling divorce, child custody, alimony, child support, and guardianship-related cases.

We can handle your case with compassion and sensitivity, negotiate with your spouse’s attorney on your behalf, and go the extra mile to achieve an outcome that is in keeping with your child’s best interests.

Call us today at 304-345-7250 or use our online contact form to schedule a consultation with a West Virginia family law attorney from our firm.


What Can and Cannot Be Included in A Prenuptial Agreement?

You are not alone if you are thinking of getting a prenuptial agreement or prenup before getting married. According to a report published by the American Academy of Matrimonial Lawyers, there has been a significant rise in prenuptial agreements since 2016.

While divorce is not something one wants to think of when getting married – having a prenuptial agreement is a wise thing to do. Speak with a qualified divorce attorney in West Virginia about protecting your assets, interests, and legal rights if you are considering a prenup or postnup agreement.

Things that Can be Included in West Virginia Prenuptial Agreements

Distribution of Marital Property

West Virginia has its own separate laws governing the distinction between separate and marital property. Marital property or community property is usually distributed equitably. Any property that is acquired or earned during the course of the marriage is considered marital property. You can prevent having the court dictate the terms of distribution of your property by using a prenuptial agreement.

Debts of a Spouse

Creditors may come after the marital property without a prenuptial agreement. This is even when you did not have a say in your spouse taking on the debt. You can limit your debt liability exposure using a prenup.

Providing for Children from a Previous Marriage

You may want to have a prenuptial agreement in place if you have children from a previous relationship. There have been instances where the subsequent spouse has failed in being fair to children from previous relationships. Prenuptial agreements can ensure that your children inherit the property you intended for them to have.

Protecting Family Property

Family businesses, family heirlooms, and future inheritance can be specified in a prenuptial agreement. You can make sure they don’t end up being contested during a divorce. Prenups allow the property to be kept in the birth family if that is your intent.

Estate Plans

Prenuptial agreements play a major role in ensuring that the estate plan you create is fulfilled as you want it to be.

Property Distribution During a Divorce

You can bypass most of West Virginia’s laws regarding the distribution of property during a divorce by agreeing between yourselves about who gets what through a prenuptial agreement. In fact, you can even decide which spouse pays alimony and by how much through a prenup in West Virginia. You should consult with a family law attorney to clarify this issue when creating your prenuptial agreement.

Things that Cannot be Included in Prenuptial Agreements

West Virginia laws restrict the things that cannot be included in a prenuptial agreement. These are a few of them:

Illegal Considerations

West Virginia Law prohibits soon-to-be-married couples from including anything illegal in the provisions of a prenuptial agreement. In fact, you may place the entire prenup document at risk of being set aside if you do this.

Child Custody or Child Support

West Virginia doesn’t allow child custody issues or child support matters to be included in a prenuptial agreement. This is because the court needs to keep the best interests of the child at the forefront when deciding child custody and support matters.

There are several factors that come into play when determining child support. The court will never uphold a provision dealing with child support, child custody, or visitation. In effect, the court retains the power to decide the best interests of the child.

Waiving Off Rights to Alimony

This is one of the most common provisions that get struck down by courts in WV. While you can decide which spouse needs to pay alimony during a divorce, no spouse can entirely give up their alimony rights. You should talk to a golden and committed divorce attorney to understand your legal rights.

Financial Incentives for Divorce

The court will scrutinize your prenuptial agreement looking for anything that offers a financial incentive to divorce your partner. In case any provision is thought to be encouraging divorce, the prenuptial agreement will be set aside by the court.

For instance, any provision detailing the manner in which property is divided can be seen as encouraging divorce. This makes it important to work with an attorney that can word the document in a manner that doesn’t go against the interests of society.

Provisions of a Personal Nature

Unfortunately, prenups cannot be used for including personal preferences. You cannot state who does the chores, names to use for children, where to spend the holidays, or the relationship to maintain with certain relatives. You and your spouse can always draft another document that specifies such things. This way the court will not have the power to intervene.

Legal Help is Here from Highly-Rated Divorce Attorneys in West Virginia

The law office of Pence Law Firm has experienced family law attorneys that can ensure your prenuptial agreements and any other documents are carefully worded and your best interests are fully protected. By hiring us, you get more than a century’s worth of trusted legal advocacy on your side. To schedule your free consultation, call us at (304) 345-7250 or fill out this online contact form.