Much has been reported in the press about couples staying together because they cannot afford a divorce. Often times, with little or negative equity in the house and mounting debts, the prospect of paying large lawyer’s fees for a divorce is an unacceptable one for unhappy couples who would prefer to separate if they could or who are separated but wish to finalize the divorce. In this article I discuss how a person can work to keep divorce costs down.
The best way to keep the cost of a divorce down is to 1) understand the process and what the issues are, and 2) try to reach an agreement on all the issues that are outstanding. Coming to an agreement about issues with a spouse with whom you are separating is for many people a difficult thing. There are always extreme cases where one spouse will never be reasonable or agree to what is fair. The truth is that for many divorcing couples, no matter how contentious and bitter a separation may be at the beginning there is a middle ground that can be reached through negotiation by both parties. This negotiation may or may not require a lawyer.
Coming to a fair settlement
In complex cases involving property settlements, children, and homes it is advisable for people to find lawyers who are willing to have cases settled fairly, if at all possible. A fair settlement does not mean that you do not advocate for your rights in the process of reaching that settlement. It will involve you or your lawyer protecting your best interests and being prepared to go to court on major issues that cannot be resolved by any other means. The bottom-line, however, is that the more you can avoid contested court hearings–while still preserving your interests and the best interests of your children–the more money will remain for you and your spouse to be divided between you (and for the benefit of any children you might have). If a fair settlement is at all possible, its cost is far less than the cost of a court battle.
A finalized divorce, or Dissolution in the State of Washington, requires a number of different documents to be filed. If the parties reach a settlement, one document that could be filed at the party’s option is called a property settlement agreement or separation contract. This legally binding agreement deals with the property issues between the separating couple such as what happens to the home, cars, cash, and debts. It might also include provisions for spousal maintenance and an acknowledgement of child support and any Parenting Plan that is filed with the court.
The contract can be filed with the final divorce papers subject to court approval. If it is so approved the contract becomes part of the final dissolution decree or judgment and is enforceable by the court if one party were to later breach the contract. A court will generally approve a separation contract if it fulfills three requirements:
- Both parties had full disclosure of all the assets and liabilities that were at stake;
- Each party had the opportunity to consult an independent attorney, and;
- The agreement was entered into in good faith.
Agreements sometimes seem difficult to reach between separating couples. But if both parties can make good faith efforts an agreement is the best way to keep divorce costs down.
Your husband or wife has told you “I want a divorce.” You are now faced with the question, what do you do next? The time during which a couple is faced with the possibility of a divorce is an emotional one: fraught with tension, sadness and often anger. It can be difficult to see the forest for the trees. The reality is that it is critical from the outset that both parties try to get a handle on what the legal process is and how they wish to approach the issues before them. This article addresses some questions confronting a couple who are standing at the threshold of separation and divorce.
Can one spouse legally stop the divorce?
In the movies we hear a fictional husband or wife shout dramatically “I will never let you get a divorce!” The reality in Washington State is somewhat different. One spouse can affirm that the marriage is over by invoking the one legal ground for divorce, that the marriage is “irretrievably broken.” Stating this assertion in the appropriate legal divorce document (the Petition for Dissolution) is all that is necessary—no proof is required. But while a spouse cannot stop the divorce from being initiated, he or she does have a right to dispute issues that arise out of the divorce regarding division of property, placement of children, etc. These disputes can make a divorce a more prolonged process. And while some disputes are a healthy aspect of our justice system, the goal for every divorcing spouse should be to identify those issues that are true points of contention and work to resolve those disputes in a timely manner.
List important legal and other issues
The best way to identify what is at issue between you and your divorcing spouse is to make your own list of important issues. Some of these issues may be extra-legal –they may not require the intervention of the legal system but they may be important to you. Write down those issues that you see arising upon a potential separation – not just issues surrounding division of your home and bank accounts, or where you see the children living, but also other issues; who keeps the dogs or the cats if you have them, who pays for magazine subscriptions, etc. Being concrete will assist you in either coming up with a mutually agreeable plan or knowing where your issues of contention lie.
What if it seems my spouse will never be reasonable?
If your spouse does not seem willing to reach any kind of agreement about any issue then you must be prepared to proceed forward with an attorney on your side. Your attorney will protect your interests fairly and completely just as they would if they were reaching a settlement for you. Divorce, like marriage, is a dynamic process, however, and a seemingly unreasonable spouse can change their positions as the process moves forward. An important goal is for you to maintain a consistent and fair approach, with appropriate guidance that will help your divorce go forward as smoothly as it can.
The biggest issue facing separating couples with children in Washington State is, or at least should be, a determination of what is in the best interests of the children. The document that outlines where and with whom the children live, and what their schedules will be with each parent, is called a Parenting Plan. A parenting plan must be filed with the court in matters where children are involved as part of the divorce process. While in theory a couple can agree as to the terms of a parenting plan, often through negotiation, it is important to remember that a parenting plan must be approved by a court even if both parents agree as to its terms. A parenting plan will be approved if it is appears to the judge that its terms are in the best interests of the children.
Parenting Plan terms
Custody versus Residential Placement
In Washington State the term “residential placement “is used rather than “custody.” Separating couples will ask the court to determine where the child’s primary residence will be and adopt a schedule accordingly. In the case of a 50/50 split of residential placement (called joint custody in other states) courts may approve such arrangements. However, from both a practical and legal standpoint these arrangements are usually conditioned on the parents sharing a history of cooperation and agreement with respect to parenting issues.
Joint decision-making powers
Parenting plans outline the types of decisions parents are faced with; educational, religious, and health care to name a few. In many cases both parents get to participate equally in these major types of decisions. Sometimes, however, there may be reasons why one parent’s decision-making powers may be limited. In cases involving substance abuse or domestic violence, or any type of issue which might impact a person’s ability to make parenting decisions, the courts may grant decision-making power to one parent alone.
While parenting plans have something of a standard format, the truth is that the parenting plan relating to your child should be unique to your situation and your child’s needs. Once a parenting plan is filed and approved it has the status of an order and cannot be changed without going back to court. Make sure that you understand the terms of your parenting plan and what it means for your child.