Family Law

Law in the Time of COVID-19

Sunitha Anjilvel

Published in the March, 2021 Washington State Bar News

How I ditched my office but maintained my solo practice

For the majority of my 30-year career as a lawyer, licensed in three jurisdictions, I have been a proud solo practitioner. As a solo, I have enjoyed the freedom to adapt my practice to my life, as well as to the volatile nature of the world at large. When I relocated to Washington from California in 2008, it was in the wake of the real estate market crash, and the entire legal industry was suffering. I built my family law practice using my website as the foundational conceptual brick; the other key bricks consisted of my home office technology and my willingness to meet clients in coffee shops. Read more

COVID-19 (Coronavirus) information related to family law in King County

Sunitha Anjilvel

During the COVID-19 (Coronavirus) outbreak our law office will remain open virtually and we are available by telephone, email or videoconference to all existing and new clients. We will be as immediately responsive as possible.

The last few months have been stressful and difficult for all of us as the reality of the pandemic continues to relentlessly confront us. As parents we should stay calm, be informed, and maintain as much consistency for our children as we can under these new, albeit temporary, circumstances. We are all members of a broader community of Washingtonians. Let’s keep that in mind, and let’s work together to respect and protect each other during this health crisis.

What is Stay Home, Stay Healthy ?

On February 29, 2020, Governor Jay Inslee issued a proclamation entitled “Stay Home, Stay Healthy.” The intent of the proclamation (which is currently in effect until May 4 and may be extended further) is to prevent the spread of the COVID-19 virus by limiting personal physical contact, restricting gatherings of people, and limiting businesses to “essential “ functions. Every person in Washington State should follow the Governor’s recommendations to the extent that they can. We encourage everyone to review the proclamation as well as all updated guidance from the Governor’s office. https://www.governor.wa.gov/sites/default/files/Guidance%20Bulletin%20-%20Proclamation%2020-25%2C%2003.31.2020.pdf?utm_medium=email&utm_source=govdelivery

What does this proclamation mean, practically?

  • Limit exposure to other people as much as you can
  • Travel and transportation should be restricted to essential functions such as grocery shopping, medical appointments, and trips to pharmacies
  • If your work is deemed essential, stay informed as to what precautions you should take from a health standpoint
  • In addition to compliance with the proclamation, we encourage everyone who exhibits symptoms of COVID-19 to consult their healthcare provider by phone

How does this affect my parenting plan?

Parenting plans continue to be legally binding orders. If you have concerns about your current parenting plan posing a risk to your child, yourself and/or your family in the face of this pandemic, please seek legal advice. If both parents have concerns about the spread of the virus they both can agree to changes in the plan temporarily in consultation with an attorney. Now more than ever is a time when you as parents should, if at all possible, come to agreements with a view to the safety and health of all.

Are the courts operating at this time ?

The courts in Washington State are working diligently to continue functioning through the coronavirus pandemic in a safe and efficient manner, with a view to respecting the Governor’s proclamations. The Washington State Supreme Court has issued orders outlining guidelines for county courts, and different counties have different guidelines and rules as to how they will operate at this time. King County Superior Court, the court in which King County family law matters are heard, has issued the following directives related to family law matters:

Dated 27 March 2020

FAMILY LAW DURING THE COVID-19 CRISIS WE ARE ONLY HEARING EMERGENCY MATTERS DEFINED AS FOLLOWS:

  • Domestic Violence Protection Order hearings
  • Motions for temporary restraining orders where personal safety is at risk
  • Motions for temporary orders or adequate cause where child safety is at risk or there is a risk of child abduction
  • Motions for temporary orders, child support adjustment, or child support trials by affidavit where a person’s basic financial survival is at issue (i.e., ability to maintain housing, basic necessities, and critical health care) or post-secondary (college) support is at issue and there are deadlines that cannot be moved
  • Return on Warrant hearings
  • Writs of Habeas Corpus and returns where there is a risk of abduction or an imminent risk of harm to the child
  • Weapons Surrender Compliance Calendar
  • Emergency motions on parenting issues where the health or safety of a child or adult is at risk due to COVID-19 All hearings are being conducted telephonically. Please see family law web pages for additional information: https://www.kingcounty.gov/courts/superior-court/family.aspx.

The Local Family Law Rules continue to apply regarding how and where to set hearings. AGREED ORDERS Agreed orders may be submitted to the Ex Parte Department through Ex Parte Via the Clerk (EPVC), as otherwise permitted by Ex Parte Department policies, or as directed by your assigned judge. AGREED DIVORCE FINALIZATION Contact the Family Law Facilitator’s office for instructions and documentation needed to have your divorce finalized.

  • For Kent Cases call: 206-477-2781
  • For Seattle cases call: 206-477-2553

ASSISTANCE FOR SELF-REPRESENTED PARTIES AND FAMILY LAW SERVICES Many services for self-represented parties, including mediation, parenting evaluations, assistance from the Family Law Facilitators, are being conducted by telephone and e-mail. See Family Law web pages for more information.https://www.kingcounty.gov/courts/superior-court/family.aspx. WE ARE NOT HEARING ANY NON-EMERGENCY MATTERS. Specifically, the following are not being heard:

  • Trials unless the trial court finds that an exception should be made based on the emergency criteria
  • Status/Non-Compliance hearings (These are being conducted by paper review)
  • Pretrial Conferences
  • Discovery motions
  • Default motion
  • Any other non-emergency motions, whether they are set in family law motions or set before the assigned judge, including non-emergency motions for revision These procedures are in effect until April 24, 2020, but may be extended.

I have an ongoing case, does it have to come to a standstill?

Not necessarily. If there’s a conflict in your family law case which does not fall under the court’s definition of “Mission Critical” matters, the King County Superior Court will still allow the entry of agreed orders remotely. If you and the opposing party in your case are able to reach an agreement outside of court, a family law attorney can enter Temporary and/or Final Orders through the court’s new guidelines. For information on this process for self-represented clients, read more here: https://www.kingcounty.gov/courts/superior-court/family/facilitator.aspx

A qualified family law attorney can help you pursue a settlement while restrictions remain in place, either through the exchange of settlement offers or the scheduling of mediation with a third party. Many dispute resolution mediators are opening up opportunities for remote mediation, allowing parties to work through conflicts without exposing themselves or their families to the risk of infection.

If you have any questions about how the above King County Superior Court directive applies to your case, and you don’t already have an attorney representing you, please contact us.

Lives depend on social distancing! Please take this health crisis seriously. Be smart, safe and healthy!

Sunitha Anjilvel

This article provided by the Anjilvel Law Group is not a substitute for legal advice and provides information specific to King County, Washington.

 

What is Spousal Maintenance?

Sunitha Anjilvel

Often known in some states as “spousal support” or “alimony”, spousal maintenance is money paid by one spouse to another upon separation or divorce. Spousal maintenance is not the same as child support; it is meant to support the spouse. However, a court could look at existing child support obligations as a factor in determining a fair award of spousal maintenance.

Spousal maintenance is not mandatory in Washington State

Spousal maintenance, unlike child support, is not mandatory in the State of Washington; a court may order it if it determines that it is “just and equitable.” There are no hard and fast rules as to what is just and equitable, however the court may consider among other things such factors as:

  • the needs of the spouse seeking support
  • the ability of the other spouse to pay
  • the length of the marriage
  • the standard of living maintained during the marriage
  • the existence of any child support obligations

Spousal maintenance may be short- or long-term

While the courts have fair discretion in determining whether spousal maintenance is granted, in short-term marriages maintenance awards tend to also be short term. Similarly in long-term marriages where one spouse might have not worked or pursued a career, a court might grant a long term award. Courts might also grant “rehabilitative maintenance,” an award of spousal support that allows one spouse time to become economically self-sufficient.

Awards for spousal maintenance do not follow a formula

The law surrounding awards of spousal maintenance are, like many other types of family law, not completely set in stone. While the courts may follow general principles outlined above, the law is constantly evolving and expanding. Unlike child support, which is governed according to a specific State Schedule, spousal maintenance has no formula relating to income that guides its application.

When to represent yourself in a divorce or other legal action

Whether you are a spouse who is leaving a marriage and want to know whether you can seek spousal maintenance from your spouse—or whether you might be obligated to provide spousal maintenance—it is a good idea to consult a family law attorney so that you know your potential rights and obligations.

Divorce in plain English

Sunitha Anjilvel

The legal system can seem confusing to non-lawyers. Laws and legal documents based on those laws are drafted using legal terms and language that is known mostly only to lawyers or legal professionals. In this article I explain in plain English some legal terms relating to divorce.

Divorce = Dissolution

In the State of Washington a divorce is called a “Dissolution.” One of the final legal documents that you will obtain from the court is called a Decree of Dissolution. When this document is finalized, your marriage is officially ended.

“No Fault”

Washington is a “no fault state”, which means simply that to get a divorce or separation you don’t need to prove that either spouse did something wrong. In fact contrary to what many believe, wrong-doing by either spouse is never relevant as grounds for a divorce in Washington. A spouse’s actions or wrong-doing can be relevant in deciding issues relating to custody, visitation, and even division of property in certain circumstances, but in terms of the dissolution of the marriage itself fault is never an issue.

Grounds for divorce

There is only one ground for dissolution in Washington and it is that the marriage is “irretrievably broken.” What does that mean? It basically means that one of you is claiming that the marriage cannot work anymore. In your Dissolution papers you need do nothing other than make the statement that the marriage is irretrievably broken. No proof or details about the reason are necessary.

What is a “community property” state?

Washington is what is called a “community property” state. What this means is that when dividing property of spouses upon dissolution there is a presumption that all property acquired during the marriage is jointly owned 50/50. Property includes earnings of each spouse, real estate, and personal property. This rule is not absolute. Certain property is presumed to be “separate”, and includes anything acquired before marriage as well as gifts or inheritances that are made explicitly to one spouse alone. While the rules relating to what is community property and what is separate property are guided by these principles, the overriding principle regarding division of property upon dissolution in the State of Washington is that it be “just and equitable.” In a word, fair.

Custody of children

In Washington, the custody of children of the marriage is referred to as “residential placement” and the document governing where the children are to reside is called a Parenting Plan. This must be filed in all Dissolutions involving children. A Parenting Plan will, among other things, spell out where the children will reside, whether one or both parents get to make decisions about the children, and provides a schedule of how parental time with children is specifically allocated. The Primary Residential Parent is the parent with whom the children spend more than 50% of their time.

Determining Child Support

Child Support in Washington is determined legally by the Washington State Support Schedule. The Schedule provides formulas using combined incomes from both parties to determine how much child support will be paid by one parent to the other. For combined incomes below $5000 the court has a presumptive amount that it may set. For incomes above $5000 the court has an advisory amount that it may set. The court may deviate upward or downward from presumptive or advisory amounts according to the circumstances of the case if it deems it to be fair.

Spousal Maintenance (Alimony)

What is commonly referred to as alimony is called “spousal maintenance” in the State of Washington. Spousal maintenance is not a given: If it is not agreed to and it is asked for, it will be determined on a case-by-case basis with the court balancing one party’s need with the other party’s ability to pay. The court will look at, among other things, the length of the marriage and the economic circumstances of each party. Read more about spousal maintenance in Washington State.

Issues facing separating couples: When to represent yourself

Sunitha Anjilvel

When should you attempt to go through the divorce process without an attorney? Two key questions you have to ask yourself are:

  1. Are you aware of what the outstanding issues are?
  2. Are you and your spouse in agreement about all these issues?

If the answer to both questions is yes, you may be in a position to go through the divorce process by yourself. If you are dealing with complex issues, you still might want to contact an attorney during the process of your separation in order to be sure that you have not missed anything. In this article I will discuss some of the major issues facing a separating couple.

What happens to the children?

In Washington State, issues relating to children are outlined in a legal document called a Parenting Plan. For all matters relating to married or unmarried couples with children a Parenting Plan must be entered with the court. This document deals with where the children live and what the children’s schedules are in terms of weekends, holidays etc.

In Washington the courts talk about “placement” rather than custody when it comes to children. The decision as to who gets primary residential placement is determined by the amount of time the child or children spend with one spouse. Usually if the children reside more than 50% of the time with one parent, that parent will have the designation of primary residential placement. Although one parent may have more residential time than another this does not mean that parents cannot share joint decision-making powers about things such as medical care, schooling etc. A Parenting Plan will define how these powers are allocated. The guiding principle in all matters relating to child custody and visitation is “the best interests of the children”.

Child Support

Child Support in Washington is based on a set of presumptive guidelines according to the Washington State Support Schedule. The Schedule provides formulas using combined incomes from both parties to determine how much support will either be set on a presumptive or an advisory basis. For combined incomes below $5000 the court has a presumptive amount that it may set. For incomes above $5000 the court has an advisory amount that it may set. The court may deviate upward or downward from presumptive or advisory amounts according to the circumstances of the case if it deems it to be fair and in the best interests of the children.

Spousal Support

What is commonly referred to as alimony is called spousal maintenance in the State of Washington. Spousal maintenance is not a given: If it is not agreed to and it is asked for , it will be determined on a case by case basis with the court balancing one party’s need with the other party’s ability to pay. The court will look at, among other things, the length of the marriage and the economic circumstances of each party.

What happens to the house?

If you and your spouse own a home outright or on which you are paying a mortgage, on separation a decision must be made as to what to do with the house. If the down payment and subsequent payments on the home were made through the earnings of either spouse while living together, then the house might be considered “community property” which means that each spouse has a presumptive 50/50 interest. The house could be sold, with the proceeds going to pay off the mortgage first, then a split would be made to divide what is left over equally between the spouses.

If one spouse wanted to stay in the house, an equal division could involve the spouse who keeps the house paying off the other spouse for whatever portion of equity remains in exchange for signing a quit-claim on the house. A quit-claim is a legal document that gives up a person’s interest in a piece of property.

These are just a few options regarding division of a home. Parties are free to agree to any division as long as it is “just and equitable.”

How are other assets and liabilities divided?

As a “community property” state, in Washington there is a certain set of presumptions about the division of property acquired before and after marriage. Presumptively, property acquired before marriage and gifts and inheritances to one spouse alone would remain the separate property of that spouse upon separation. Property acquired after marriage, including earnings from employment, are presumptively community property and subject to a 50/50 split. This presumption, however, can be overcome if it can be established that it is just and equitable to do so.

The allocation of debt is also subject to community property presumptions based on whether the debt was incurred during the life of the marriage and before separation. Again, courts will also consider whether the allocation is just and equitable.

Affordable divorce in Washington: Unbundled Legal Services

Sunitha Anjilvel

For many separating couples, the emotional trauma of actual separation is further complicated by the potentially devastating economic consequences of splitting one house into two. Add large legal bills to this situation and you have one reason why many couples are actually choosing to stay together purely for economic reasons. How is it practically feasible to get a divorce without spending thousands of dollars while still making sure that your divorce papers are in order?

A different model of legal service

Think of it as separating out or “unbundling” the various legal tasks involved in the divorce process to get the most cost effective services from an attorney. If you learn that starting the divorce process involves filing, say, five documents you might go to an attorney for advice and assistance in preparing those documents to be filed with the court. The attorney might not actually go to court with you, however he or she will ensure that all documents are appropriately ready to be presented to the court. You could continue to pay that attorney for their time to assist you in further filings and preparations of documents. While you would be representing yourself on the record, you would under the guidance of an attorney, be doing so in an informed way and be saving yourself many billable hours of legal fees.

Another type of unbundled legal service might be a matter where an attorney provides a “limited scope of representation” in a particular issue. The attorney might step in to negotiate one aspect of your case even if the other side were represented by an attorney perhaps to reach a settlement.

Are unbundled legal services always appropriate?

Unbundled legal services are not always the best option in every case. These services might not be appropriate in a situation where the other side has an attorney who is representing them and the issues are highly complicated and contested. It requires you as a client to be an extremely active participant in your case and to be prepared to do some footwork in terms of court filings if you were to represent yourself. It is an option that works best where the issues involved can be agreed upon.

Keeping divorce costs down: Agree to agree (if you can)

Sunitha Anjilvel

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.

Divorce documents

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:

  1. Both parties had full disclosure of all the assets and liabilities that were at stake;
  2. Each party had the opportunity to consult an independent attorney, and;
  3. 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.

What to do if your spouse asks for a divorce

Sunitha Anjilvel

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.

Parental rights in Washington: Parenting Plans defined

Sunitha Anjilvel

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.