When should you attempt to go through the divorce process without an attorney? Two key questions you have to ask yourself are:
- Are you aware of what the outstanding issues are?
- 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 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.
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.