The Washington Divorce Process

            I am providing you below with answers to frequently asked questions about dissolution of marriage cases in the State of Washington.  I hope this provides you with assistance with your Washington divorce.

What is dissolution of marriage?  A dissolution of marriage is a divorce and legally ends the marriage.  In Washington, one or both spouses can file for dissolution if a marriage falls apart.  The law uses the term “irretrievably broken” to describe this situation. A marriage is “irretrievably broken” if one of the spouses says it is.  The other spouse does not have to agree that the marriage is irretrievably broken in order for one spouse to file for a divorce.  In Washington, a spouse does not have to prove wrongdoing (such as cruelty or adultery) to get a divorce.  This no-fault system is intended to help spouses settle matters without unnecessary bitterness or resentment.  The court will enter orders for parenting arrangements, how children will be supported, dividing the couple’s property and debts, and possibly for spousal support (alimony).

Are there residency requirements for filing a divorce in Washington?  You need only to reside in Washington on the date that your petition for dissolution of marriage is filed.  There is no requirement that you reside in Washington for any specific amount of time.

How does a spouse file for divorce?  To start a divorce, one spouse (called the “petitioner”) must file with the court a summons and petition for dissolution of marriage. Sometimes additional documents, such as a proposed parenting plan, or proposed child support worksheets may also be filed.  These documents are filed in the County Clerk’s office.  Information about filing fees and other filing requirements is available at the Clerk’s office.  The Filing fee for a Petition for Dissolution of Marriage in Clark County is approximately $250. 

These documents must be served on the other spouse (known as the “respondent”), usually by having copies delivered to him or her.  The legal term for delivery of legal documents is called “service of process.”

The purpose of the summons is to command the responding spouse to reply to the petition.  The petition sets out basic facts about the marriage, such as ages of children, date of the marriage, and date of separation.  It also explains what the petitioning spouse wants in the way of a parenting plan, property division, and support. Once served, and depending on the recipient’s location (whether in Washington or elsewhere), the responding spouse has from 20 to 60 days to reply in writing to the petition.  This reply, called a “response,” may include a “counter-petition,” and states the respondent’s position on children, property, and support.

 What happens after the divorce is filed?  In many situations, the next step is to arrange temporary court orders to guide the conduct of the parties.  Either spouse may obtain temporary orders.  Typically, temporary orders cover such subjects as residential arrangements for the children and child support, spousal maintenance (commonly known as alimony), occupancy of the family home, payment of bills, and other concerns for protecting people or preserving property. If the spouses cannot agree, a judge or court commissioner will decide temporary orders at a hearing.

 When does a divorce case end?  All of the issues, such as property division and arrangements for children, must be settled in order to finish a case.  If spouses cannot agree to everything, a trial will be held to settle any disputes. If spouses agree on everything in a settlement, there is no need for a trial.

 The final stage occurs when the court signs a “Decree of Dissolution of Marriage.”  This happens after the spouses agree to everything, after a trial, or after the waiting period has passed and there has been no response from the other spouse. If there are children of the marriage, a final parenting plan and final order of child support must also be signed by the judge. A marriage is not ended until a judge signs the final orders.

 Is there a waiting period before a divorce can be final?  The waiting period to finalize a divorce in Washington is 90 days. This means the summons and petition must be filed with the court and served upon the other spouse for more than 90 days before the judge signs the decree. This is a minimum period and is intended to allow time for reconciliation between parties, or for the parties to “cool down,” because often emotions are highest at the beginning of a dissolution action.

 Generally the process takes much longer if the parties have difficulty reaching an agreement.  Sometimes a spouse will not respond at all to a petition after it is served.  In that case, the decree of dissolution can be entered after the waiting period.

 Can spouses legally change their names during a divorce?  Yes, if either party requests a name change.  This most commonly occurs when the wife requests to change her name back to her former or maiden name.  At the court’s discretion, the court may order a change to another name for either party.

 Are there special court forms to use in a divorce?  Yes. You must use the proper forms in legal separation cases, annulments, and dissolutions.  Realistically the help of an attorney is essential.  Not knowing the right procedures, which paperwork to file, how to present evidence, or what is best in your situation can have serious and sometimes lasting consequences.

 Property Rights — Dividing Assets and Debts in the State of Washington

 How does a separating couple divide property and debt?  When a married couple divorces, legally separates, or their marriage is declared invalid (commonly known as an annulment), legal responsibility for property and debts must be divided.  Property means more than land – it can also mean possessions, bank accounts, retirement funds, and business and contract rights.  The couple can agree on the division, or if they cannot agree, the court must divide the respective rights spouses have in their property and their debts.

 What is “community property”?  Washington is a “community property” state. Generally all property acquired during marriage is presumed to be community property belonging to both spouses.  Community property laws can be complicated.  It is essential for couples who have been married a long time, who have significant property, or who own a business to have competent legal advice.

 What is “separate property”?  Sometimes one or both spouses may have separate property.  “Separate property” means possessions or real estate that was owned before the marriage, or that was received during the marriage as a gift or as an inheritance, or that was bought with separate property.

 How does a court divide property and debts?  In Washington, a court is required to determine what is separate property, what is community property, and then divide the property and debts between the spouses justly and equitably.  To do this, the court uses a series of factors under Washington law, such as how long the couple was married, employment history, how much property the couple has, and other factors.  The court must also consider whether a parent should be allowed to continue living in the family home so the children do not have to be moved.

 Does the court divide property and debts 50/50?  When a court divides property and debts fairly and equitably, this does not necessarily mean that the property will be divided 50/50.  This is because an “equitable” division is not always an “equal” division.  The court may divide property and debts unequally for a number of reasons.  For example, the court might give one spouse less than 50 percent of the assets if that spouse can recover from the economic setback of the divorce faster than the other. 

 What if a spouse has misbehaved during the marriage?  Bad behavior does not usually affect how property and debts are divided. This means that the court will not award one spouse more of the property just because the other spouse misbehaved or was at fault.  An exception to this general rule is when the misbehavior was intended to and resulted in the destruction of property.  A court may give one spouse more property when the other spouse did something to waste or destroy their community property.

 What about taxes?  Property division, property settlements, and family support arrangements can have serious tax consequences to one or both spouses.  Tax-filing status will be affected by a decree of dissolution, annulment, or legal separation.

 Spousal Maintenance (Alimony)

 What is spousal maintenance?  Spousal maintenance (commonly known as alimony) is financial support provided by one spouse to the other during or after a divorce, separation, or invalidity proceeding.

 How does the court decide about alimony?  If you file for divorce, legal separation, or request that your marriage be declared invalid, you have a right to ask for alimony. Alimony is generally based on financial and economic factors, not whether one of the spouses is at fault.

Instead, if there is a big economic difference between the spouses, alimony may be ordered to help achieve financial independence.

 The court has a great deal of discretion to decide how much and for how long alimony will be paid.  The court considers many factors (such as the length of the marriage, health and ages of the spouses, and employment history), but there is not a formula like there is for child support.  If alimony has been ordered, a spouse can later ask that the order be changed under certain situations.  Alimony can greatly affect your tax situation.  Getting advice from a tax attorney or qualified financial planner is important.

 Effects of Divorce on Children

 How does divorce affect children?  How divorce affects children is a complicated issue.  Divorce puts adults and children under a great deal of stress.  Some experts believe because of the stress and changes that come with divorce, parenting skills can decline.  Some studies report children of divorce may be more likely to have poorer physical health, perform poorly in school, and abuse alcohol and drugs.  Not all children suffer such adverse affects, and about 75 percent of children of divorce are reasonably well adjusted after an initial period of discomfort.

 Two books which reach some differing conclusions about the effects of divorce on children are “The Unexpected Legacy of Divorce,” by Judith Wallerstein and “For Better or Worse,” by Mavis Hetherington.  The authors of these books are psychologists who have conducted 25-year studies of children whose parents divorce.  These and many other books on marriage, divorce, and parenting are available at the public library.

 What can parents do about the effects of divorce and conflict on children?  If you divorce or separate, make sure you have a support system and encourage your spouse to have one, too.  You and your spouse should not use your children as a source of support.  Remember your children’s well-being is tied to the well-being of both of their parents.  Anything you do that harms the other parent also harms your children.

 Decide how you and your spouse will communicate and resolve conflicts regarding the children after the divorce or separation.  Do not use the children as go-betweens or messengers or involve them in adult conflicts about parenting, child support, or other issues related to your divorce.  If you separate or divorce, make sure there is an adequate child support order in place so the children have adequate support in the home(s) where they are residing.  And, if you are the parent paying child support, make sure you pay your child support regularly and on time.

 Shared Parenting for Divorcing Parents —Parenting Plans

 What is a parenting plan?  A parenting plan is a legal document that explains the basic arrangements for caring for children, including where the children will live, who will make decisions for the children, and how disputes about the parenting arrangements will be resolved.  The term “custody” is not used in Washington State. Instead, both parents usually share responsibility for their children.

 Typically, the children will live with one parent for the majority of time.  Sometimes the children will live with each parent for equal amounts of time.  The parenting arrangements depend upon what is best for the children.  In Washington, the law requires that parenting arrangements encourage each parent to maintain a loving, stable, and nurturing relationship with the children, taking into account each child’s developmental level and the family’s social and economic circumstances.  There is no one parenting plan that is best for all children.

 When do parents need a parenting plan?  If a married couple has children together and then separates, a court orders a parenting plan as part of their divorce, legal separation, or parenting plan modification.

 How does a court decide where the children will live?  Most separating parents agree on parenting arrangements for their children.  If separating parents voluntarily agree on arrangements, the court will usually approve their agreement. Agreed parenting arrangements still have to be in the children’s best interests.  When separating parents cannot agree, a court will make the decision.  The general standard the court uses to make that decision isb “the best interests of the children.”

 Other factors include the relationship of the children to each parent, the emotional and developmental needs of the children, the past performance of parenting functions by each parent, the potential for each parent to perform parenting functions in the future, and whether there have been any serious parenting problems. If there are no serious problems, the factor that is given the greatest weight by the court is the relative strength, nature, and stability of the child’s relationship with each parent.

 What if there have been serious parenting problems?  If one or both parents have serious problems that affect their ability to parent, the court must consider these problems when making parenting arrangements for the children. These problems include child abuse or neglect, domestic violence, substance abuse, impairments that interfere with a parent’s ability to care for a child, withholding the child from the other parent without good cause, or abandonment of the children. Sometimes, the court has to restrict a parent’s time with the children. These restrictions can include limiting the time a parent can spend with a child, and often include requiring a treatment or educational program to help the parent with the problem. If a parent is a convicted sex offender, the court almost always has to prohibit that parent from having time with the children.

 Can children decide where they want to live?  In Washington, adults decide where children will live.  A court may consider a child’s wishes only if the child is old enough and mature enough.  There is no magic age for a child to be mature enough to state his or her choice. Generally, courts do not want children to be involved in making these decisions.

 What does a guardian ad litem do in a divorce?  A court may appoint a qualified person to represent the children’s best interests in a divorce or legal separation.  That person, called a guardian ad litem, investigates the situation and makes a recommendation to the court about what would be best for the children.  Each court keeps a registry of individuals who are qualified to serve as guardians ad litem in that county.  A court order spells out the duties, responsibilities, and fee arrangements for a guardian ad litem.  In most divorces, a guardian ad litem is not needed.  It is a very useful tool in very contentious dissolution actions, or where one party is trying to keep the children from seeing the other parent without good cause.

 What if there is disagreement about how to follow a parenting plan?  Once the court signs a parenting plan, both parents are required to follow it.  For example, a parent may not refuse to allow the other parent to see the children just because that parent has not paid child support.  A parenting plan usually includes the method parents are to use to resolve disputes about parenting issues.  That method may be arbitration, mediation, counseling, or court action.  It is often best, and sometimes required, to use the specified dispute resolution method before going to court.

 Mediation to resolve parenting plan issues is usually not appropriate if there has been a history of domestic violence.  Mediation may be ordered as the dispute resolution method but only if the victim requests it and the court finds it is appropriate under the circumstances.  That parent is permitted to have a supporting person present during the mediation session.

 What about contempt of court?  If a parent interferes with the other parent’s rights to see the children, the parent may be found in contempt of court.  If a parent is found in contempt, the court could order jail time, fines, or some other type of punishment.  It is important to know that if a parent is found in contempt more than once in a three-year period, the court can use that as grounds to change the parenting arrangements, including which parent the child lives with.

 How do parents change a parenting plan?  Sometimes one or both of the parents want to modify (change) the final parenting plan.  It is often not easy to make a major change to a parenting plan, especially if both parents do not agree.  An example of a major modification is changing where the children live the majority of the time (changing from the father’s home to the mother’s home, or from the mother’s home to the father’s home).  If both parents agree to the major modification and the court finds that the modification is in the best interest of the children, the court will grant the request.  Without such an agreement, the court will allow a major modification only in limited instances.

 It is not enough that the parent wanting the change thinks that his or her life has improved so much that the children should now live with him or her.  Because major modifications of parenting plans are complicated and difficult, advice from an attorney can be helpful and is often needed.

 Minor changes can be made more easily, but only if the court finds it to be in the children’s best interests.  Parents often agree on minor changes, such as the length of vacations or when the children’s time with the other parent will start or end.

 Relocation of Children

 What is the Relocation Act?  A parent with whom the children live most of the time must follow laws, called the Relocation Act, when the parent wants to relocate children to a different residence (changing where children live).  Adults have a constitutional right to move their place of residence.  Courts can, however, order adults not to move their minor children.

 This law only applies to parents who are no longer together and have a court ordered parenting plan.  The Relocation Act has many requirements and is complicated.  It is important to understand your rights and responsibilities under the Relocation Act.  It is a good idea to get legal advice from an attorney before a parent moves with the children.

 How can a parent move with children?  If a parent wants to move with the children, that parent must notify the other parent.  How and when notice of the move is given depends on many things, including when the move will take place, how long the parent has known about the move, whether domestic violence or other dangerous situations exist, and many other factors.  If the move is outside of the children’s current school district, the other parent can object to the move.  There is a presumption that the move will be allowed, but the decision is made by the court based on many factors.  The court will also decide what changes are needed to the parenting plan if the move is allowed.

 How does the other parent object to the move?  If the other parent objects to a move, that parent must file an objection within 30 days of the date the notice is received. That objection is a request for a parenting plan modification. Then the court will decide whether the move will be allowed.  The objecting parent can’t simply ask that the move not be allowed.  A relocation case is usually also a parenting plan modification if the move is to a different school district.

 What if the other parent does not object to the move?  If the other parent does not object to the relocation, and both parents agree on a new schedule for visitation, then the issue is resolved and the moving parent can relocate with the children.  If the other parent does not object to the move, but the parents disagree on a new visitation schedule, the custodial parent can move with the children and either parent may file a court action to change the parenting plan at any time.

 What if the move is due to violence or threat of violence?  The Relocation Act has different requirements for notice if violence or the threat of violence is the reason for the move.  The safety of the children is the main concern in these situations, but if the other parent objects, the court will decide if the move will be allowed or if it will be permanent if the move has already taken place.

 What if a parent doesn’t follow the Relocation Law?  Failure to give proper notice or failure to properly object will usually have very serious consequences. The court may order the return of the children.  The other parent can lose the right to object if that parent misses the deadline for objecting.  It is very important to get legal advice about relocation or objecting to relocation as soon as you learn about the situation.

 Child Support

 When will a court order a parent to pay child support?  Both parents have legal duties under Washington law to financially support their children.  In a divorce or legal separation, a court must order one or both parents to pay support for their children. Sometimes parents were not married to each other when the children were born. They may have signed a paternity affidavit naming the father. If not, paternity can be established in court. In these circumstances, the court may order that one or both parents pay child support just as if they had been married.

 What does a child support order do?  Payment of child support and other expenses for children is a required part of a divorce, legal separation, or paternity action.  A child support order includes which parent will pay support, who will pay other expenses such as day care and transportation, who will provide health insurance for the children, how long child support will be paid, and even arrangements for college expenses, and of course, how much will be paid.

 Can separating parents agree not to pay child support?  If parents are involved in a legal action such as divorce, legal separation, or a paternity action, the court is required to set a child support amount. Child support is meant to provide for the needs of children, so parents are not allowed to opt out of paying child support, even if they both agree.

 How does a court determine the child support amount?  In Washington, courts use the Washington State Child Support Schedule.  The Schedule takes into account each parent’s income, the age of the children, and other expenses such as medical insurance and childcare expenses.  The Schedule must be used in every county, in both judicial and administrative proceedings and in all kinds of proceedings where child support is determined, adjusted, or modified.

 The basic child support obligation is based on the combined family income after taxes, ages of the children, and the number of children in the family.  The actual amount of support required is also based on the special circumstances of each family. In limited situations (such as low income), the amount of child support can be different from the Child Support Schedule, but only with court approval.

 Can child support amounts be changed later?  Washington law allows child support amounts to be changed after a set period of time in many situations, including change in a child’s age, changes in income, and changes in the needs of the children.

 When does child support end?  Child support usually ends when a child turns 18 or graduates from high school, whichever happens later. Sometimes support can be ordered past that time if the child has disabilities. Support for college or vocational education expenses can be ordered.

 How does a parent enforce a child support order?  There are different ways to enforce a child support order.  A parent who is not receiving court-ordered child support can file a contempt motion in court.  The Washington State Division of Child Support can help a parent with child support enforcement, including wage assignment (garnishment) and revoking driver’s and other licenses.

 What is a property settlement agreement or a separation contract?  A property settlement agreement is a written contract between the parties listing and dividing the marital property and financial obligations.  It may also be used in settling custody, child support and alimony in accordance with the free wishes of the parties.  It is now common for the parties’ to memorialize their settlement by way of property settlement agreement which is then incorporated into the final decree of dissolution.

 Who can my attorney represent?  I can only represent you and it is neither ethical nor practical for me to represent both you and your spouse.

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About pfs2law

LAW OFFICES OF PAUL F. SHERMAN
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