Divorce and Separation

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.

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.

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.