FAQ

Answering some common questions

Legal matters are complicated, we are at the ready to help you. Here are some commonly asked questions we have answered with general information not intended to replace legal advice. For advice tailored to your specific needs, please contact us for a consultation.

Topics

  • Divorce & Separation
  • Spousal Maintenance
  • Asset Division
  • Child Support, Parenting Plans, and Residential Schedules

Divorce & Separation

No. Washington in a no-fault divorce state. A couple’s property will be divided equitably without regard to infidelity.

In certain limited circumstances, you may appeal the court’s decision as follows:


Post-divorce life changes: The areas of a divorce settlement that are altered most frequently are those involving child support, parenting, and spousal support. These orders can be altered in the event of certain life changes. For instance, if you are ordered to pay child support and lose your high-paying job or have more children with your new partner, you can file a motion to modify the child support order.


Parenting plans can be modified for several reasons. The most common is if one parent wishes to relocate to another area. Also, if one parent becomes unfit to be responsible for children, due to arrest, mental health, addiction, or another reason, modifications to the parenting plan are warranted.


You can also ask the court to make a change in the amount of spousal support you receive from your ex if he or she starts earning a higher level of income. When you file your motion, you will also need to provide documentation to back up your request. Please note that Washington law requires financial change to be significant in order to qualify for a modification of spousal maintenance.


Court/Legal Errors: Courts make mistakes, which can lead to an unfair judgment. In these circumstances, you may file an appeal. When you appeal a divorce decree, you ask a higher court to review your original case to decide if mistakes were made in the original proceeding.

If you decide to reconcile with your spouse while your petition is pending, you may do so in two ways. You may dismiss the case if the other party agrees or if the other party has not appeared in the matter. Dismissing the case cancels the legal action and the legal effect is to put you back into the position you were in before you filed. You may also file a Notice of Reconciliation. This pauses the case for several months. If you take no further action, the case is dismissed. However, if you decide to continue with the divorce, you file an amended petition to continue it.


If your legal separation has already been filed, but you are reconciling with your spouse, you should file a Motion to Vacate Decree of Legal Separation. Once the court approves it, effectively, the separation has not occurred. It is important to file this notice with the court. It can become legally murky where a couple has married, separated, reconciled (without filing), and then restarts the divorce process.

In collaborative law, both parties sign an agreement to resolve the matter together. Each spouse hires an attorney trained in this process, and as part of the agreement, the parties affirm their mutual resolution not to use the court or threaten court action. If either party violates the terms of the agreement, then both attorneys must withdraw. This system also has pros and cons. If the parties are dedicated to resolving their issues, this method may be very effective as it takes the court process entirely off the table. Attorneys are free to aid in coming up with solutions, rather than out-performing or out-strategizing the opponent. On the other hand, should a party withdraw, the cost can be high to secure new counsel and get them up to speed on the case.

Yes. You may file agreed final documents once the 90-day window has passed. If you both agree to asset and debt division and all issues relating to any children, you will complete the final documents and both sign them. Alternatively, your spouse may also sign a joinder to your petition if you agree to all of the terms before filing. Even if you agree to all the terms, it is still a good idea to review your documents with an attorney before you file.

Mediation is a method of alternative dispute resolution in which the parties engage in voluntary decision-making facilitated by an impartial third party, which aids in communication and negotiation. The mediator supports the parties’ own decision-making process. Mediators assist in this capacity through communication training, utilizing active listening, reframing, coaching, summarizing, and clarifying. The mediator facilitates communication but has no legal power to compel or enforce a decision.

No. In fact, most cases settle before going to trial. Before moving to the courtroom, the parties may first attempt to resolve the conflict themselves, either alone or with the aid of legal counsel. If they are unable to resolve the dispute, they often seek additional support from a mediator. Very often, after the parties attend mediation, the parties are able to resolve their issues. In the event the parties do not reach an agreement, they proceed to trial.

In Washington State, that age is 18. We hear comments about this issue all the time. For example, “When my daughter is 14 (or 12 or 16), she will decide where she will live.” Washington State does not give minors such decision-making power.

The short answer to this question is no, despite whether you and your spouse have resolved important issues such as asset division and child custody before finalizing the divorce. Even if your divorce is uncontested, you and your spouse are legally considered opposing parties. Sharing legal representation is impossible because it creates a conflict of interest for the attorney. This conflict of interest would not only pose an ethical dilemma but could lead to serious complications if you and your spouse have unforeseen disagreements during the divorce process.

The court protects your information in several ways. First, you file your personal information, for example, your social security number, on a confidential form that is not made part of the public record. Second, financial documents such as bank statements and taxes may be filed under seal, which keeps them out of the public record. Third, you may wish to enter into a separation contract or property settlement agreement. Your agreement’s details may be contained in this separate document, which is then only filed with the court if a disagreement arises.

A divorce should resolve all the personal and property rights between the parties. Some of the many types of relief sought are as follows:

• Custody of children
• Visitation with the children if the other party is to have custody
• Use of the house and maintenance of insurance and repairs
• Use of a car and maintenance of insurance and repairs
• Monthly spousal maintenance (alimony)
• Lump-sum spousal maintenance
• Payment of debts
• A portion of pension funds, stock, or savings plans
• All or part of savings, checking, and credit union accounts
• All or part of stocks, bonds, etc.
• All or part of income tax refunds
• Life insurance policies
• Division of personal property
• Payment of health insurance or medical bills
• Payment for college

You may be able to file for default. The court will grant the requests you made in the petition so long as they are lawful and service was properly made.

The first thing you should do is consult with a family law attorney. Once you receive the petition, you have 20 days to file your response with the court. If you fail to file your response, the other party may be able to have the divorce granted by default.

Service members receive special protections from suit. They may agree to file for divorce and sidestep these protections by filing a waiver of rights. If they do not agree to do so, it is best to consult with an attorney. The military spouse may also be able to postpone the divorce process for the duration of his or her active duty, up to 180 days thereafter.

Every time you file documents with the court, you need to serve a copy of that filing (known as a pleading) with the other party. While this is less formal than serving the initial documents, it is important to keep track of how and when the delivery was made in case you need to prove service in court.

Absolutely. You would follow the same process as filing within the state of Washington and may wish to hire a process server in the area in which the other party lives if they have not agreed to accept service. In addition to the other forms, the server would also need to provide a Declaration Regarding Personal Service Outside the State of Washington.

If you cannot find the other spouse to have them personally served, you may be able to ask the court for special permission via a court motion to serve your spouse through alternate means, such as publication or mailing.

After you file your initial documents, you will need to serve the other spouse. Service does not occur automatically; you have to have the court papers delivered to your spouse. You should never serve the papers yourself. You must provide all of the papers you filed with the court, except for the Confidential Information Sheet. The other party can agree to service by filing a Service Accepted form, but if they do not accept service, you will have to have someone over the age of 18 serve the papers for you. Generally, it is best to hire a process server. If you cannot afford one, you may have a competent adult serve the papers and complete a Proof of Personal Service form. Service is critical because, without it, your case may be set aside.

The choice to separate or divorce is a personal one. Some parties decide that if they are going through the time, process, and expense, they want to be officially divorced. Other parties decide for religious, social, or emotional reasons not to divorce and to remain separated. Still others decide to separate to maintain social security or health insurance benefits they would otherwise not be entitled to if they officially divorced.

Yes. You do not need to file anything with the court to separate informally. However, to formally or legally separate from your spouse, you must file for legal separation. The legal process to separate or to divorce is very similar. The result is, of course, different. If you choose to legally separate, you are still married, meaning you can’t remarry. Once you are legally separated, either party may convert the separation into a decree of dissolution of marriage (divorce). While there is no waiting period to have the separation granted, there is a six-month waiting period to convert a separation into a divorce.

Not necessarily. There is not an enormous advantage to being the party filing for divorce, meaning filing as the petitioner rather than the respondent. The petitioner does choose the court in which the action is brought and sets the timeline for the action by taking the first step.

Documents filed with the court are referred to as pleadings. Washington has mandatory court forms that must be used as pleadings in dissolution proceedings. The dissolution process begins by filing a summons, Petition for Dissolution of Marriage, and accompanying documents. Once the petition is filed, the court will issue a case number. This number should be included in all future pleadings. In some counties, the court will also issue a case schedule. This schedule contains all of the court deadlines associated with your dissolution. Some counties also issue automatic restraining orders upon filing.

You generally file for divorce in the superior court in the county where you reside or the county in which your spouse resides. Washington courts have jurisdiction if you or your spouse live in Washington, you are a member of the armed forces stationed in Washington, or your spouse is a member of the armed forces stationed in Washington and will continue to be so for at least 90 days following the date that you file and serve divorce papers.

You may have your marriage declared invalid, but the circumstances that determine whether this may occur are quite narrow. Your marriage may be declared invalid if:

• You were underage or did not have parental consent
• You are too closely related by blood to your spouse
• You or the other party was still married to someone else
• You or the other party lacked the capacity to consent (which occurs if you or your spouse have a mental incapacity or were incapacitated due to drugs or alcohol)
• You were coaxed into the marriage while under duress or as the result of fraud

A period of 90 days must elapse between when the divorce petition is filed with the court and served on the other spouse and the time the court can issue a dissolution decree to end the marriage legally. The 90-day clock starts as soon as the petition is served. Keep in mind that the 90-day timeframe is the minimum. Divorces may take quite a bit longer to conclude.

Even if a couple is in a long-term, committed relationship without being married, they still may have legal rights and duties that arise from the relationship. This is particularly true where children are involved. If you have children and are not married to the other parent, it is critical to devise a residential schedule and negotiate child support.

These days, adultery rarely has much of an impact on the distribution of assets — except in cases where one spouse has used marital assets to support the extra-marital relationship. For example, if a husband borrows against a marital asset to support his mistress, that fact might be taken into account when distributing the property.

Adultery is unlikely to affect a custody determination. If the unfaithful spouse did not expose the children to the other relationship or inappropriate people and situations during the affair, it would likely not be a factor.

Washington is a no-fault divorce state, meaning that a spouse does not have to prove wrongdoing to obtain a divorce. The general rule is that a spouse can obtain a divorce if the marriage is ”irretrievably broken.” The other spouse does not have to agree for you to file for a divorce.

First, speak with an attorney. The choices you make now may impact your rights, obligations, and the likely outcomes for you during the divorce process. We also recommend attempting marriage counseling if possible. Even if your marriage is heading toward divorce, having a base level of communication skills and knowledge about how you can reduce conflict with your spouse whenever possible can help you immeasurably during your divorce.

Spousal Maintenance

Washington courts may impute income to a parent who chooses not to work, or chooses to be underemployed. The court will not impute income where the party has good cause not to be employed such as a medical condition or where there is a shortage of jobs in the parent’s field of work. The rate of pay to be imputed depends upon the circumstances; it may be the full-time earnings at a historic rate, the minimum wage in the jurisdiction in which the parent resides, or based on a different calculation entirely.

Washington follows the IRS structure for taxing maintenance payments. If you are paying spousal maintenance, your payments are tax-deductible. If you are receiving spousal maintenance, the IRS taxes what you receive as income. The payments may also be changed based upon a substantial change in circumstance. Maintenance payments terminate if either spouse dies or if the spouse receiving maintenance remarries or files for a new domestic partnership.

Remember, Washington is a no-fault state, so maintenance is never used to punish a spouse who has “done wrong” in the marriage. Particularly in long marriages, a dependent spouse may need additional education or training to achieve financial independence. Where this is the case, a court also considers, among other factors, the time necessary for the requesting spouse to complete training and find employment that is appropriate to their skills and interests. On the other hand, if a spouse is unable to work due to age or health, the court may award benefits on a more permanent basis.

Washington does not have a set formula or schedule for maintenance payments. Instead, the court awards maintenance based upon a spouse’s need and the other spouse’s ability to pay. The court will look at various factors to make this assessment. These factors include the duration and standard of living during the marriage, the requesting spouse’s age, physical and emotional condition, and the parties’ financial obligations. Courts have wide discretion in awarding maintenance; for example, they may award funds in a lump sum, in monthly payments (periodic), make maintenance permanent, or make maintenance temporary.

After a case is filed, and before it is resolved, sometimes it is necessary to ask the court for an award of temporary relief. This usually happens when the parties dispute the payment of bills or support or have issues involving children. The court has the power to make a temporary award of custody, parenting time, child support, and spousal support, which will remain in place until further order of the court or the case is resolved.

No. Alimony or spousal maintenance can only be awarded if there is a marriage.

Asset Division

Yes, it can, but there are ways to minimize those risks. Seeking advice from an experienced attorney can be critical to preserving your business, especially if you own it jointly with your spouse.

Not necessarily. Compensation, including funds deposited into a retirement account, might be considered community property if they were earned during the marriage. If you are entitled to a portion of your spouse’s retirement benefits, you may have a Qualified Domestic Relations Order (QDRO) entered, which directs the plan to pay those funds to someone other than your spouse.

In reviewing the family home, the first consideration is the extent to which it is community property or separate property, or a combination of both. Some parties sell the home and divide the assets (less sale costs and any remaining mortgage). Others have one party receive the home, and the other receives an offset for their community property share, or conversely, the party receiving the home may also receive a large portion of the debt. If a mortgage is in place on the home, it will often need to be transferred to one of the party’s names alone. If you wish to remain living in the family home, it is always best to speak with an attorney before you separate or move out, as the court may lean towards affirming the status quo.

The value of an asset can be contentious during a divorce. Some assets may require a professional assessment. If the parties cannot agree on a value even after assessment, both sides will present their evidence of the asset’s value, and the court or mediator will help decide the value. Often parties rely on Craigslist, eBay, or Kelly Bluebook to gauge how much an asset may be worth. Items of sentimental value can be challenging to price.

The court will follow the agreement so long as it is deemed to be enforceable. These types of agreements may be entered into prior to marriage, or after the marriage has occurred. In either case, they are a wonderful way to reduce expense and litigation during a divorce.

Courts presume property is community property unless proven otherwise. All property acquired before marriage and after separation is presumed individual property, with a few exceptions. The party claiming that an item of property is separate or community is responsible for providing proof. To prove that an asset is separate, it must be able to be traced. When tracing assets, the naming of the asset, for example, the party on the car’s title, or the party on the deed to the home, may not be the determining factor for characterization. If assets have been mixed to the extent that tracing is impossible, they are said to be co-mingled and are viewed as community property.

Not necessarily. The court is not required to make a 50-50 division, and a 50-50 split is often not the court’s aim. For example, in short-term marriages, the court seeks to divide the parties’ property in a way that best aims to recreate where they would be if the marriage had not taken place. In long-term marriages, the court seeks to set the parties at 50-50 at retirement age, which could mean a very different split when the assets are actually being divided. The amount of child support and separate property assets will also be considered.

Washington courts must divide property in a “just and equitable” way without regard to fault in the marriage. It is important to remember that equitable in this situation means fair rather than an equal division. In determining what is fair and equitable, courts may look to both separate and community property. However, courts lean toward awarding each spouse all their separate property and dividing community property. When deciding how to create a just and equitable division, the court may also consider the duration of the marriage and the economic circumstances of each spouse when the division of property is to become effective.

The best way to protect marital assets while your divorce is pending is through mutual restraints. This may be done as an agreed order, or you may unilaterally request them through a temporary order hearing with the court. The restraints may prevent either spouse from disposing of property, modifying policies, or failing to pay obligations. Bear in mind that when restraints of this nature are imposed, they are almost always mutual.

Yes. In the U.S., there are nine community property states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. In community property states, all property acquired during the marriage is presumed community property. All property acquired before marriage and after separation is presumed individual property, with a few exceptions. The party claiming that an item of property is separate property or community property is responsible for providing proof.

A properly executed cohabitation agreement should control how your assets are divided. If you don’t have a written agreement, you should try to come to an agreement amicably. We have mediators who can help you do this. If you have to go to court, the court will divide assets and liabilities equitably under the circumstances of your relationship.

Child Support, Parenting Plans, and Residential Schedules

Yes, if you meet the criteria for modification. Of course, it is best to have a plan that can grow with you and your changing family. A good family law attorney can be vital in helping you review situations that may arise in the future. The court does not generally wish to grant modification unless certain conditions arise.

The court may order division of child-related expenses, for example, portions of medical expenses not covered by insurance, child care, or long-distance travel. Most often, these costs are split proportionally based upon each party’s percentage of income.

No. Many parties believe that support and residential time are connected, but the court views them very separately. Similarly, you cannot withhold support to a parent who is denying you residential time. The best way to address non-payment is to speak with your attorney.

If either party receives state benefits, the state may also be involved in the collection, enforcement, and distribution of child support. The Division of Child Support, through the Department of Social and Health Services, manages these claims. This department also has resources and information sessions for anyone wishing to have more knowledge regarding child support.

Usually, a parent pays child support up until the child turns 18, though courts may grant post-secondary support if a child continues to attend school after that. When negotiating post-secondary support, there are a variety of factors for you to consider, such as the length of time you will continue to support your child and the maximum amount per year you wish to pay. Your attorney can help you make these decisions.

Child support is determined by both parties’ monthly net income and expenses, the number of and age of their children, additional assets, and other various considerations. While there is no typical child support amount in Washington, due to these considerations, the Washington legislature has created a child support economic table to help determine, as a ballpark figure, how much monthly child support obligation might be. To find your estimated amount, you will use your combined net income and number and age of children. The economic table is available in RCW 26.19.020.

Both parents have a duty of support to their children, and either parent may be ordered to pay child support. The parent’s gender does not determine support.

Generally, both parties may make day-to-day decisions during their residential time. For larger decisions, such as non-emergency medical care, allowing the child to get a tattoo, or what school or extracurricular activities they shall attend, the court may split decision-making authority or allow one party sole ability to make decisions in a particular area. The family law court considers several factors in granting decision-making authority. They are:

• Whether both parents agree to mutual decision-making
• Whether there is a history of physical or sexual child or spousal abuse, neglect, or abandonment
• Whether both parents have demonstrated a desire and an ability to cooperate in the decision-making process
• The history of participation of each parent in the decision-making process
• The parties’ geographical proximity to each other

The court may limit or restrict residential time or decision-making ability based upon certain limiting factors; such as lack of emotional ties, abuse, neglect, substance abuse, domestic violence, or abandonment. The court may limit residential time, require that it take place at a set location, or impose limits upon the parents, such as no drinking during residential time, or requiring counseling for a parent struggling with mental illness. When filing the petition these limiting factors, known as 191 limitations, will need to be included.

Not necessarily. When parties think of a residential schedule, they most often imagine an every other weekend and Wednesday night schedule with one primary custodial parent and one non-primary custodial parent. While this schedule is still used, courts often implement 50-50 schedules or more creative timing such as 5-5-2-2 or every other week. Every residential schedule is unique, and it is important to find the one that works best for the developmental stage of your child(ren) and the structure of your family. Courts implement a plan based upon the best interest of the children, which often means mirroring the family structure as closely as possible to minimize upheaval and impact moving forward.

RCW 26.09.187 details factors the court considers when evaluating and establishing a parenting plan between the parties. The government requires that the court “make residential provisions for each child which encourage each parent to maintain a loving, stable, and nurturing relationship with the child, consistent with the child’s developmental level and the family’s social and economic circumstances.” There are limiting factors, such as abuse, abandonment, or lack of emotional ties, but without these limiting factors, the court looks at:

• The relative strength, nature, and stability of the child’s relationship with each parent
• The agreements of the parties provided they were entered into knowingly and voluntarily
• Each parent’s past and potential for future performance of parenting functions as defined in RCW09.004(3), including whether a parent has taken greater responsibility for performing parenting functions relating to the daily needs of the child
• The emotional needs and developmental level of the child
• The child’s relationship with siblings and with other significant adults, as well as the child’s involvement with his or her physical surroundings, school, or other significant activities
• The wishes of the parents and the wishes of a child who is sufficiently mature to express reasoned and independent preferences as to his or her residential schedule
• Each parent’s employment schedule

 

The consideration with the greatest weight is the child’s relationship with each parent. Where no limiting factors are present, the court may impose shared custody of the child or, depending on the circumstances, may have one parent denoted as the primary custodial parent. Each parenting plan is unique, and there are many different configurations possible.

Divorce impacts children differently. Some of the more common behaviors exhibited by children during their parents’ divorce include acting out, withdrawal, depression, or assuming a parental role. Many children are furious at their parents (or one of their parents) about the divorce and could benefit from a safe place to voice that anger.

We often advise that parents and their children each regularly speak with a mental health professional who has experience with divorce and its impact on children. Doing so will enable you to understand how best to communicate with your children during this difficult transition. At the same time, your children will have a neutral professional to speak with about their feelings.

Though it may be tough, your mind and heart must be open to listening to your children’s voice about your divorce. A mental health professional can make these conversations easier.

Yes. In addition to calculating child support and establishing a parenting plan, you will also need to attend the required Parent Education and Family Stabilization Course at the court where you have filed for divorce. You do not have to attend the same class your spouse does, and your children should not be present. To sign up for the class, you may find information on the court’s website in your area.