Family Law & Divorce FAQ
During my practice, I have been asked countless questions by clients and prospective clients. The purpose of this page is to provide the reader answers to the most commonly asked questions about Washington Family Law and procedure. After reading the many questions and answers below, you might know more about Washington Family Law than most lawyers!
- I am Thinking About Filing for Divorce, What Should I Do?
First, speak with an attorney. The choices you make now may have an impact on your rights, obligations and the likely outcomes for you in the divorce process. We also recommend attempting marital counseling where possible. Even if you marriage is heading towards divorce, having a base level of communication and skills for conflict reduction can help immeasurably during the divorce process.
- What do I Need to Prove to be Divorced?
Washington is a no-fault 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 in order for you to file for a divorce.
- Will an Affair Impact my Divorce?
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 in order to support his mistress, that fact might be taken into account when distributing the property.
Adultery is unlikely to affect a custody determination. If during the affair, the wayward spouse did not expose the children to the other relationship or inappropriate people and situations, it will not be a factor.
- What if I am Splitting From my Partner but we Were Never Legally Married?
Even if the couple is unmarried, if they are in a long term committed relationship without marriage 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 very important to have a residential schedule and child support put in place.
- Is the State of Washington a Community Property State?
Yes. In the United States, 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 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 or community is responsible for providing proof.
- How Long Does It Take to Get a Divorce in Washington State?
A period of 90 days must elapse between the time the divorce petition is filed with the court and served on the other spouse, and the time it can issue a dissolution decree to legally end the marriage. The 90-day clock starts as soon as the petition is served. Keep in mind that the 90-day time frame is the minimum, divorces may take quite a bit longer.
- Can I Request an Annulment Instead of a Divorce?
You may have your marriage declared invalid, but the circumstances in which this may occur are quite narrow. Your marriage may be declared invalid if you were underage, or did not have parental consent; if you are too closely blood related to your spouse, if you or the other party was still married to someone else; if you or the other party lacked the capacity to consent (which occurs if you have a mental incapacity or become incapacitated due to drugs or alcohol); or if you were induced into the marriage by force, duress or fraud.
- Where do I File for Divorce?
You generally file for divorce in the Superior Court in the County in which you reside, or the county in which your Spouse resides. Washington Courts have jurisdiction if; you or your spouse lives 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 the divorce papers.
- What do I File to Initiate Divorce?
Documents filed with the court are referred to as pleadings. Washington has mandatory court formsthat 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 on 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.
- Do I Need to be the One to File?
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.
- Can I File to Legally Separate Instead of Divorce?
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 divorce is very similar. The result is, of course, different: if you legally separate you are still married, meaning you can't re-marry. 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 waiting period of 6 months to convert the separation into a divorce.
- Are Their Benefits to Divorce or Separation?
The choice to separate or divorce is usually a very personal one. Some parties decide that if they are going through the time, process and expense they want to be done; others decide for religious, social or emotional reasons not to divorce. Others seek to maintain social security or health insurance benefits they would otherwise not be entitled to if they were divorced.
- What is Service of Process?
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; but if you cannot afford one you may have a competent adult serve the papers and complete a Proof of Personal Service form. Service is extremely important, because without it your case may be set aside.
- How do I Serve Someone if I do not Know Where They Live?
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.
- Can I Serve Someone if They do not Live in Washington?
Absolutely. You follow the same process as filing within the state; 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 the Declaration for Out of State Service.
- How do I Serve Papers in an On-Going Matter?
Every time you file something 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 that 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.
- How do I Serve Someone in the Military?
Service members receive special protections from suit; they may agree to file for divorce and side step 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 postpose the divorce process for the duration of his or her active duty and for up to 180 days thereafter.
- What do I do if I am Served with Divorce Papers?
The first thing you should do is consult with a family law attorney. Once you receive the petition you have 20 days in which 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.
- What do I do if my Spouse Never Responds?
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.
- How do I Ask the Court for Relief Before the Divorce is Finalized?
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 have a dispute about payment of bills, support, or 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.
- How do I Protect my Marital Assets While the Divorce is Pending?
The best way to protect marital assets while the divorce is pending is through mutual restraints. This may be done as an agreed order, or you may unilaterally request it through a temporary order hearing with the court. The restraint 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.
- What Does the Court do During Divorce?
A divorce should resolve all the personal and property rights between the parties. Some of the many types of relief sought are: 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, also called alimony; lump sum spousal maintenance; payment of debts; 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 education.
- How Does the Court Divide Property During Divorce?
Washington Courts must divide property in a way that is “just and equitable”, without regard to fault in the marriage. It is important to remember that equitable in this situation means fair, rather than 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 his or her separate property, but 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 at the time the division of property is to become effective.
- Will the Court Divide my Property 50/50?
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. In addition, the amount of child support and separate property assets will also be considered.
- How do Courts Determine what is Separate and what is Community?
Courts presume property is community in character 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 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.
- What if I have a Prenuptial Agreement or Community Property Agreement?
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 divorce.
- How does the Court Value Assets?
The value of an asset can be contentious during divorce. Some assets may require professional assessment. If the parties cannot agree on a value even after assessment; both sides will present their evidence as to value of the asset and the court or mediator will help to decide the value. Often parties rely on forums such as Craigslist, eBay, or Kelly Bluebook to gage how much an asset may be worth. Items of sentimental, rather than resale, value can be particularly difficult to address.
- What will Happen to the Family Home?
In reviewing the family home, the first consideration is the extent to which it is community 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 receive an off-set 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 in 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.
- Do we Each Keep our Separate Pensions or Retirement Accounts?
Not necessarily. The funds earned during the marriage, including funds deposited into a retirement account may be 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.
- How does Washington Calculate Spousal Maintenance (Alimony)?
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; include the duration and standard of living during the marriage, the requesting spouse's age, physical and emotional condition, and financial obligations of the parties. 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 only temporary.
- When is Spousal Maintenance More Likely to be Awarded?
Remember, Washington is a no-fault state, so maintenance is never used as a punishment for 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 this spouse's 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.
- How does Tax Play into Spousal Maintenance?
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.
- Is there Anything Different I will Need to do During Divorce if I am a Parent?
Yes. In addition to calculating child support and establishing a parenting plan, you will also need to attend the required Parent Education Course at the court in which you have filed. 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 for your area.
- How will Divorce Impact my Children?
Divorce impacts different children differently. Some of the most common things seen are acting out, withdrawal, depression or taking on the role of the parent. It is critical that you get yourself a counselor familiar with divorce and its impacts on children and get your children a counselor so they can have a neutral professional to speak with about their feelings. Many children are very angry at their parents (or parent) regarding the divorce and it is critical that they have a safe place to voice that anger. It is similarly critical that you, the parent, can open your heart and mind enough to hear their anger. Counseling is key for every person involved in a divorce. For more on children in divorce click here.
- How does the Court Decide Where my Children Should Live?
RCW 26.09.187 details the factors the court is to take into account 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; and
- Each parent's employment schedule, and shall make accommodations consistent with those schedules.
Factor (i) is given the greatest weight. Where no limiting factors are present the court may impose shared custody of the child, or may have one parent denoted as the primary custodial parent, depending upon your circumstances. Each parenting plan is unique, and there are many different configurations possible.
- Will we Have an Every-Other Weekend Schedule?
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 the family. Courts implement a plan based upon the best interest of the children, which often mean mirroring the family structure as closely as possible to minimize upheaval and impact moving forward.
- How can the Court Limit a Parent's Residential Time or Decision Making Ability?
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 limited factors, known as 191 limitations, will need to be included.
- What does the Court Consider when Determining who gets to Make Decisions for the Children?
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 the several factors in granting decision-making authority; 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; and; the parties' geographical proximity to each other.
- How do I Protect my Personal Financial Information from the Public Record?
The court protects your information in several ways; first you file your personal information, such as social security number, on a confidential form which is not made part of the public record. Secondly; 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; the details of your agreement may be contained in this separate document which is then only filed with the court if a disagreement arises.
- Can we Share an Attorney?
The short answer to this question is no – even if you and your spouse have resolved important issues like 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 discover unforeseen disagreements during the divorce process.
- Which Party will be Required to Pay Child Support?
Both parents have a duty of support to their children, and either parent may be ordered to pay child support. Support is not determined by the parent's gender.
- How Much can I Expect to Pay/be Paid in Child Support?
Child support is determined by both parties' monthly net income and expenses, the number and age of 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.
- What Happens if my Spouse is Unemployed or Underemployed?
Washington Courts may impute income for a parent who chooses not to work, or chooses to be under employed. The court will not impute income where the party has good cause not to be employed (such as a medical condition, or 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, minimum wage in the jurisdiction in which you reside or a different estimate.
- How Long does Child Support Last?
Usually child support is paid until the child turns 18; though courts may be able to grant post-secondary support if your child attends school. When paying for post-secondary support there are a variety of considerations to review; such as the length of time you will continue to support the child, and the maximum amount per year you may wish to pay.
- When does the Government get Involved with Child Support?
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. The department also has resources and information sessions for anyone wishing to have more knowledge regarding child support.
- Can I Withhold Visitations Because the Other Parent is Behind on Child Support?
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 it to speak with your attorney.
- What Happens to Child-Related Expenses that Child Support does not Cover?
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 parties percentage of income.
- Could Divorce Put Your Business at Risk?
Yes, it can but there are ways to minimize those risks. Seeking consult with an experienced attorney is critical to businesses, especially those owned jointly by spouses.
- What Age can a Child Choose Which Parent to live with in Washington State?
In Washington, that age is 18. We family lawyers hear comments all the time such as: “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.
- Is Trial Necessary?
No. In fact, most cases settle before going to trial. Before moving to the courtroom, the parties may first attempt to resolve the conflict between themselves, either alone or with the aid of legal counsel. If they are unable to resolve the dispute this way, they often seek additional collaborative support in the form of mediation. Often, the parties attend mediation and are able to resolve the issues. In the event the parties do not reach an agreement, they proceed with trial.
- What is Mediation?
Mediation is a method of alternative dispute resolution, in which the parties engage in a process of voluntary decision making facilitated by an impartial third party who aids in communication and negotiation. Model standards of Conduct for Mediators, 2005. The mediator supports the parties' own decision making process. Mediators assist in this capacity through training in communication; utilizing active listening, reframing, coaching, summarizing and clarifying. The mediator facilitates communication, but has no legal power to compel or enforce a decision.
- Can my Spouse and I Agree?
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. In the alternative, you Spouse may also sign a Joinder to your petition if you agree to all of the terms prior to filing. Even if you agree on all the terms, it is still a good idea to review your documents with an attorney prior to filing.
- What is Collaborative Law?
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 pro's and con's. If the parties are dedicated to resolving their issues, then 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-preforming 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.
- Once a Parenting Plan or Child Support Order is put it Place, can it be Changed?
Yes, if you meet the criteria for modification. Of course, it is best to have a plan in place which can grow with you and your changing family. A good family law attorney can be vital in helping you review situations which may arise in the future. The court does not generally wish to grant modification unless certain conditions arise.
- What if I Reconcile with my Spouse?
If you decide to reconcile with your spouse while the 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 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 no further action is taken the case is dismissed, but 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, then you would file a Motion to Vacate Decree of Legal Separation, and once it is approved it is as though the Separation has not occurred. It is important to file this notice with the court. It can be legally murky where a couple has married, separated, reconciled (without filing) and are now in the process of divorce.
- Can I Appeal my Final Divorce?
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, you 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 origi