Alternative Divorce Resolution (ADR)
Child Support and Visitation
Marital Assets and Debts In Divorce
Additional Marital Issues
- ADR Available: Yes
- Fault or No Fault: No Fault
- Parenting Plan Required: Yes
- Property Distribution: Equitable
Grounds For Divorce
Divorce in Washington is called dissolution of marriage. The spouse who is requesting the divorce is called the petitioner and the spouse who responds is called the respondent. When the petitioner files a Petition for Dissolution of Marriage, he or she must declare the grounds or reason for the divorce.
Washington is a “no fault” divorce state which means that the only grounds that must exist are that there was an irretrievable breakdown of the marriage. This simply means that at least one of you, and perhaps both, believes the marriage cannot be saved. The Decree of Dissolution of Marriage is the document that you will receive when the divorce is finalized.
Divorce Waiting Periods
The divorce waiting period in Washington is relatively short, compared to other states. One of the spouses must be a resident of the state or stationed in the state on the day the Petition for Dissolution of Marriage is filed, and a minimum of 90 days must pass after the filing date, before a judge can sign the Decree of Dissolution of Marriage. Theoretically, you could be divorced in 91 days, although as a practical matter it typically takes longer than that.
If a couple is not sure whether divorce is a foregone conclusion, a legal separation may be an option to explore. The document that the court will need to approve is called the Petition for Legal Separation (Marriage). A legally separated couple will need to come to a decision regarding all of the issues that will need to be covered during divorce including:
- Approve the petitioner’s proposed parenting plan for the dependent children
- Approve the separation contract or prenuptial agreement
- Determine support for the dependent children
- Divide the property and liabilities
- In addition, the Legal Separation could include items such as entering a domestic violence protection order, anti-harassment protection order, or a continuing restraining order ordering the payment of day care expenses for the children.
- Providing reasonable maintenance for the petitioner or respondent
One way of ending a marriage without getting a divorce is to have the marriage annulled. An annulment is a way of legally stating that the marriage is not, and never was, valid. The process is called Petition for Declaration Concerning Validity (Marriage). The grounds for annulment in Washington include:
- Consanguinity (blood relation)
- One or both parties lacked the capacity to consent (mental incapacity, intoxication or under the influence of drugs)
- One party married under duress or fraud
- One party was still married or in a registered domestic partnership with someone else
- Underage (one or both parties were not an adult able to consent OR parental or court approval not given to underage parties)
The state of Washington permits more than one type of ADR including divorce coaches, divorce mediators and mandatory settlement conferences for contested divorces. Some of the methods vary per county, so it is a good idea to check with an attorney if you believe one of these ADR methods may be right for you.
- Divorce coach: You hire your own attorney to provide you with legal advice; however, you file the forms yourself and negotiate with your spouse on your own.
- Mediation: A neutral third party, usually an experienced divorce attorney or retired judge, acts as a mediator to help both spouses come to an agreement. The mediator is a communications facilitator. You may or may not have your own attorney in this process.
- Settlement conference: This is a process which gives both sides the opportunity to hear from a neutral third party and learn what a likely trial result would be. It is a way of testing the water and is required in King County and others.
Washington is one of the states in which same-sex marriage is allowed, and so too is same-sex divorce. In nearly all ways, a same-sex divorce is just like a heterosexual divorce. There are a few important differences to consider, however, including:
- Were you in a registered domestic partnership prior to becoming married? The court could use this date as the beginning of the community property, rather than the marriage date.
- Are there children in the marriage? Were they born after the marriage date (both spouses are parents) or prior to the marriage date?
- Were the children adopted by the nonbiological parent, or were the children adopted by both parents jointly? Adopted children are treated the same as biological children.
According to the U.S. Department of the Treasury and the Internal Revenue Service (IRS), as of September 23, 2013, “same-sex couples, legally married in jurisdictions that recognize their marriages, will be treated as married for federal tax purposes. The ruling applies regardless of whether the couple lives in a jurisdiction that recognizes same-sex marriage or a jurisdiction that does not recognize same-sex marriage.”
For spouses who have children, issues related to child custody may be one of the most difficult and emotional issues to solve. How these issues are resolved can have a long-lasting impact on the well-being of your child or children, and on your relationship with them and with your ex-spouse.
Child Custody Determinations
It is typically in the best interest of everyone involved if the parents can come to a child custody determination with which they both can agree. If the parents cannot agree, the court will make a determination using the child’s “best interest” as a guideline. There are two types of child custody, either of which can be sole custody or shared/joint custody and they are:
- Legal custody. This is the ability to make decisions on behalf of the child regarding religious upbringing, education and medical decisions such as whether or not to have surgery or approve a type of medical treatment.
- Physical custody. This is essentially where the child lives and includes any time the child is in your presence and under your protection.
Whether physical custody is shared or joint, the parents are required to develop a parenting plan which outlines how the physical custody will be divided. A common arrangement is that the children spend every other week with each parent while holidays and vacations are alternating. When one parent has sole custody, a parenting plan is required also, and it would outline the visitation time for the noncustodial parent. A common arrangement is overnight visits every other weekend, and alternating holidays and vacations.
Both parents are assumed to be responsible for the support of their children. In Washington, the noncustodial parent may be required to pay child support to the custodial parent. The state has a formula which is based upon three factors:
- The joint net monthly income of the parents
- The number of children from the marriage
- The age of the children from the marriage
The court assumes that the custodial parent is already supporting the child financially, and also assumes that older children are more expensive to care for than younger children.
Child Support Enforcement
Child support payments, once determined, become mandatory. In most instances they are withdrawn automatically from the paying parent’s paycheck as an automatic function, although this is not always the case. It is important to know that child support and visitation are two entirely separate matters. It is not permitted to withhold child support payments for lack of visitation, nor is it permitted to withhold visitation for lack of child support payments.
Paternity in Washington, as in many other states, is assumed to be the husband if the couple is married when the child is born. Paternity for the child of an unmarried couple can be established if the parents sign a “Voluntary Acknowledgment of Paternity.” This can be done at the hospital at the time the child is born, or any time after that.
A paternity determination may be demanded on occasion if the mother, father or court determines there is a need for financial support of the child. This is typically done by DNA testing. The reasons to determine paternity include:
- For the mother to collect child support payments
- For the father to obtain visitation privileges and assume the responsibilities of parenthood
- For the court to enforce child support or if the child is receiving public assistance
In Washington, the assets and debts acquired during a marriage are considered community property, meaning they belong to both parties. In some divorces, the division of property poses a greater area of contention than does child custody. The standard that is applied in Washington is “equitable,” which is not the same as equal.
Division Of Property
The assets and debts in a marriage are divided slightly differently, depending upon the length of the marriage and other circumstances. As with other areas of divorce, if the couple can reach a decision on their own, without the court’s help, that is preferable. If the couple can’t do that, the court will make a decision.
In a short-term marriage, the court will attempt to reset the financial situation to where it was prior to the marriage. In a long-term marriage the court will try to equalize the economics which may necessitate a larger share going to one spouse. If one spouse does not have career skills, for example, that spouse could obtain a larger share of the equity built up during the marriage.
The assets and debts which are divided include:
- All liquid checking, savings and investment accounts
- All motor vehicles and boats
- All real estate property including the family home
- Any collectible items of value
- Credit card debt and any other unsecured debt
- Household furnishings and clothing
- Retirement assets
Depending upon the length of the marriage and other factors, the court may grant alimony, also called spousal support or spousal maintenance. It is preferred that the couple comes to an agreement on alimony; however, if they cannot, the court will make a determination.
There are several types of alimony which may be awarded, depending upon the need and the situation. They are:
- Temporary alimony, awarded during the divorce proceedings
- Short-term alimony, awarded to enable the lesser income-earning spouse the time needed to find a job, train for a career, or in other ways become self-supporting
- Long-term alimony, awarded to a spouse who has made a significant contribution to the income-earning spouse (full-time homemaker and parent, for example) and generally only in long-term marriages
Prenuptial And Postnuptial Agreements
Prenuptial and postnuptial agreements are legal ways of stating how the Decree of Dissolution of Marriage would be structured in the event of a divorce. A prenup typically covers the same issues as a divorce agreement regarding child custody, division of property and alimony.
Prenuptial agreements are typically used when there is a marriage with significant assets involved, such as a family-owned business, or in second marriages where both parties wish to protect their children from another marriage.
Postnuptial or postmarital agreements cover the same topics, and may be used by couples who are experiencing a stress in the marriage such as alcohol addiction. They are also used by recently married couples who simply didn’t get the agreement completed prior to marrying.
A prenuptial and postnuptial agreement is legally valid during divorce proceedings provided:
- It is reasonable and fairly provides for the party who isn’t seeking its enforcement
- There was full financial disclosure at the time it was originally created and signed
- Both parties obtained advice from independent counsel prior to signing
When parents divorce, it can impact more than just the nuclear family. Aunts, uncles and grandparents can also be affected by a decrease in time spent with the divorcing couple’s children. In instances where there was a pre-existing close relationship with the children, and visitation is blocked or prohibited by one or both spouses after the divorce, it is possible to obtain visitation privileges through the court.
As with all child-related matters, the court will look at what is in the best interests of the child.