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Is there a waiting period to finalize a divorce in Washington?

Yes. A divorcing couple must wait 90 days from the time the case is filed and served on the other party before entering final orders.

What is the difference between divorce and legal separation?

A legal separation is similar to a divorce, in that the court has authority to enter a parenting plan, divide assets and debts, order child support or spousal support, and award attorney’s fees. However, with legal separation, the marriage is not legally terminated. Therefore, neither party can remarry. Some people choose the option of legal separation so that his or her spouse can remain a dependent for medical insurance purposes.

Is there a waiting period for legal separation?

There is currently no waiting period for legal separation. However, many court commissioners and judges are beginning to question whether a 90 day waiting period should apply.

Can spousal maintenance, or alimony, be changed after the divorce decree is entered?

Yes, unless the decree specifically states that the obligation to pay spousal support, or alimony, is non-modifiable. This obligation will only be changed by the court after entry of the decree in exceptional circumstances. This may include a drastic and unexpected change in income of either party, or that one party failed to disclose assets in the divorce process.

If we divorce, do I get a portion of my spouse’s retirement?

Retirement benefits are similar to any other asset. If the benefit was earned during the marriage, or even a part of it, then that portion is considered community property. The court may divide a spouse’s retirement after taking into consideration all other assets, both community and separate, and making an equitable division.

What is community property?

Community property is generally any asset or debt that was acquired during the marriage. There are certain exceptions, including gifts to one spouse only, or inheritance.

What happens if my spouse won’t agree to sign the final papers for our divorce?

There are three ways a divorce can be finalized: 1) by default; 2) by agreement; or 3) by a judge’s decision made after trial.

A divorce can be finalized by default when the respondent was properly served and he or she fails to respond after the given amount of time. However, there are certain protections that apply to service members or their dependents which prevent a default order from being entered without an attorney being appointed for him or her. If the attorney is appointed and determines the service member or dependent is able to participate in the litigation, then a default may be entered if the service member or dependent still fails to defend the case.

Most often divorces are finalized by agreement. This means the parties have reached an agreement on all issues in the case, which may include a parenting plan, child support, spousal support (often referred to as alimony), division of assets and debts, and payment of attorney’s fees. This final agreement may be reached at any time, from the time the parties first decide to file for divorce all the way up until the time a judge makes a decision after trial.

The final way a divorce can be finalized is after a trial on all issues or any issues which did not previously settle. A trial only takes place if the parties have been unable to reach an agreement. After hearing testimony from the parties and their witnesses and considering the exhibits submitted, the judge will make a decision on all issues remaining in the case.

Neither party can force the other party to reach an agreement and settle the case. Therefore, if your spouse refuses to sign the final papers for your divorce, then it is likely the case will have to proceed to trial for a judge to make a decision. If you believe you and your spouse reached an agreement but now he or she is trying to back out, then it is possible you can force your spouse to follow through with the agreement if it is in writing, signed by the parties, and other conditions are met.

What is a guardian ad litem?

A guardian ad litem, or GAL for short, is an independent, neutral party appointed by the court to look into issues regarding parents or the children. The GAL may investigate issues of drug or alcohol abuse, mental illness, neglect, or simply what type of residential plan is in the best interest of the children. After conducting an investigation, the GAL will make a report to the court recommending a schedule that is in the children’s best interest. The GAL’s recommendation is not binding on the court, but is a factor the court will consider in making a decision.

At what age do children get to choose where they live?

In Washington, children do not get to choose where they live. In general, it is the policy in this State that children should not be put in the position of having to make this decision. This can lead to manipulation of the children by the parents. Further, it is believed that children do not necessarily understand all of the implications of deciding where to live. It is up to the parents to come to an agreement on the residential arrangements of their children, and if they are unable to do so, the court will make a decision for them.

What is a community property agreement?

A community property agreement is a written agreement signed by both spouses with the intention of avoiding probate upon the death of the first spouse, or at least simplifying the probate process.

The one essential element of a community property agreement is that it passes all community property of the married couple to the survivor when the first spouse dies. This applies to all community property owned at the time of the agreement in addition to community property acquired after the agreement is signed. The agreement itself is sufficient to transfer title to real and personal property, and therefore no probate is required with regard to community property. If the deceased spouse had separate property, then probate may be required to transfer those assets.

Although not required, the community property agreement may also contain a provision stating that all property owned by either spouse, including separate property, is immediately converted to community property. This provision also applies to all property owned at the time of the agreement and all property acquired after the agreement is signed. If the community property agreement contains this provision, then all assets of the deceased spouse pass to the survivor and probate should not be necessary.

If you want all community property to pass to your surviving spouse upon your death, and your spouse wants the same, then a community property agreement may be advisable. You should speak to an attorney to determine if a community property agreement is appropriate for your situation.

How often can child support be modified?

Child support can be modified every two years based on a change of the parties’ incomes. Child support can also be modified when a child changes age categories (turns 12 years old), even if the last order was entered less than two years ago. There are other circumstances under which child support can be modified and the timeframe for those modifications varies.

What do I need to do to relocate with my children?

Prior to relocating, the primary residential parent must provide the other parent with notice of the intended move. The other parent can then object to the move. If the other parent fails to object, the move will be allowed. If the other parent does object, then the court will schedule a trial date and ultimately decide on whether the children are allowed to relocate with the primary residential parent. There are many factors the court will consider in deciding whether the relocation will be allowed, including the impact the relocation will have on the existing parenting plan, the logistics of maintaining contact with the non-relocating parent, etc

What is a collaborative divorce?

Collaborative divorce is a way of resolving disputes respectfully and with mutual goals in mind. The parties to a collaborative divorce agree, with each other and with their collaborative attorneys, that they will resolve all matters in their divorce without having contested court hearings. The parties, attorneys, and other collaborative team members (if necessary) will meet to discuss and resolve all matters of the parties’ dissolution of marriage, including parenting issues, child support, asset and debt division, and spousal support, if applicable.

What are the benefits of choosing collaborative divorce?

There are many benefits to a collaborative divorce versus traditional litigation. First, all matters are kept confidential. No declarations are filed with the court (and available to the public) where the parties are slinging mud at the other. Second, the focus on respect and open communications helps the parties maintain an amicable relationship even after the dissolution of their marriage. This is particularly important when the parties will be continuing to co-parent their children. The process also allows the parties and their attorneys to explore creative solutions that the court may not be able to order if the matter was in traditional litigation.

What happens in mediation if we don’t agree?

Mediation is usually a voluntary process, although sometimes the court will order the parties to participate in mediation. During the mediation process, the mediator acts as a neutral to help the parties reach a resolution. The mediator does not have authority to make a decision in the case.

If you are unable to reach an agreement during the mediation process, the parties are free to continue negotiations outside of the mediation process (either through their attorneys or directly with one another). If no agreement can be reached, then the matter would be presented to a judge at trial and the judge would make a decision based on the testimony and evidence presented.

How can a person gain protection against an abusive spouse?

If you are being abused by a spouse, family member, or other member of your household, the first step should be to remove yourself from the environment if you fear for your safety. There are many resources available, including the YWCA and domestic violence victim shelters.

You may also obtain protection through the court by filing a Petition for Domestic Violence Protection Order or by seeking a protection order in a divorce case. If the court finds you are a victim of domestic violence, then the court can enter a wide variety of protections. This can include restraining the individual from having any contact with you, from coming to your home, work, or school, from coming within a certain distance of your home, work or school, and from harassing or stalking you. The court can also order the individual to leave the shared residence.

Emergency orders can be obtained immediately and will remain in place for approximately two weeks. The responding party must be served with the paperwork and have an opportunity to respond at a hearing. The judge or commissioner will then decide whether to issue the protection order on a longer term basis.

I want to move out of state. How will this impact the parenting plan for my children?

This depends on whether you are the primary residential parent under the parenting plan.

Primary Residential Parent
If you are the primary residential parent, Washington law requires you to provide the other parent with notice of the intended move at least 60 days in advance, when possible. In fact, this requirement applies even if you are just moving out of the children’s current school district. If the existing parenting plan will no longer be workable after the move, then you can propose a new parenting plan to take effect after the move.

After receiving notice of the intended move, the non-relocating parent can object to the move or request a new parenting plan based on the proposed new residence of the children. If the non-relocating parent objects to the move, then the court will schedule a trial date and ultimately decide whether the children are allowed to relocate. The law provides a presumption that the primary residential parent will be allowed to relocate. In determining whether the non-relocating parent has overcome that presumption, the court will consider many factors, including the impact the relocation will have on the existing parenting plan, the logistics of maintaining contact with the non-relocating parent, etc.

If the court grants the relocation, then it will decide on a new parenting plan to accommodate the distance between the parents.

If the court denies the relocation, it cannot prevent you from moving. The court can only order that the children are not allowed to move. Although you cannot be asked this during the trial, if the court does not allow the children to relocate, you will then be given the option of relocating without the children or staying with the children.

If the non-relocating parent does not object to the move, the move will be allowed. If that parent did not propose a parenting plan, then the court will enter the parenting plan you proposed when you first gave the notice of relocation. If the non-relocating parent did propose a parenting plan, then the court will hold a trial to determine the new parenting plan, but the issue of relocation will not be disputed.

Non-Primary Residential Parent
If you are not the primary residential parent under the parenting plan, you are free to relocate without filing a notice of intended relocation. However, if the existing parenting plan will no longer be feasible, you will want to consider filing a petition to modify the parenting plan.

I cannot afford my child support payment. What can I do?

You may be able to modify your child support obligation. Child support can be modified for a variety of reasons. First, if the current order of child support was entered more than a year ago, you may be able to get the amount modified if it works a severe economic hardship. Second, you may be able to modify child support if the current order was entered more than two years ago and your income has changed or the other parent’s income has changed. Also, if your expenses for the child have increased, such as the amount you pay for daycare or medical insurance, that may impact the amount of child support you should pay. Child support modifications can often be completed with just one hearing.

What happens if I get behind in my child support payment?

There are several potential ramifications if you get behind in child support. First, the other parent can bring a motion for contempt. If the court finds that you have the ability to pay but have not done so, you may have a judgment entered against you for the past due amount plus the other parent’s attorney’s fees and costs. In egregious cases, the court may even order imprisonment as a sanction. You can also have your driver’s license suspended, have the debt reported to the credit bureaus, have your tax refund intercepted, or have a passport denied. If you are unable to pay the full child support amount, you should contact an attorney to discuss modification of your child support order as soon as possible.

My children moved out of state with my ex-spouse and I want to modify our parenting plan. Where should I file?

If the parenting plan you want to modify was entered in Washington, you can file an action to modify that plan in Washington as long as one parent continues to reside in the state and the children still have some contact with the state. If the children have lived in another state for more than six months, then your ex-spouse could ask the court in that state to exercise jurisdiction and have Washington relinquish. In order to accomplish that, the Washington court and the court from the other state will conduct a joint hearing to determine which state would be the best forum.

My ex-husband is not providing me visits with the children as required by our parenting plan. What can I do?

You can file an action for contempt. In order to establish contempt, you must show that the noncomplying parent had the ability to comply, intentionally failed to comply, and that the noncompliance was in bad faith. If that is established, the court will order makeup time with the children, reimbursement of your costs and reasonable attorney’s fees, a civil penalty of at least $100, and may order imprisonment.

I am in the military and received orders for deployment and I have primary custody of my children. What happens to them while I am gone? Can I lose custody?

The Washington legislature has recently addressed these issues to protect military parents. First, the court does not automatically modify a parenting plan simply because military duty impacts a parent’s time with his or her children. The parent requesting a modification of the parenting plan would still have to show a substantial change in circumstances, and the military duty by itself is not sufficient to do so.

If a parent receives military temporary duty, deployment, activation, or mobilization orders that involve moving a substantial distance away from the military parent’s residence or if it will have a material effect on the military parent’s ability to exercise residential time or visitation rights, the military parent may request that the court delegate his or her residential time or visitation rights to a child’s family member, including a stepparent, or another person with a close and substantial relationship to the child for the duration of the military parent’s absence. The court will do so if delegating residential time or visitation rights is in the child’s best interest.

You may be required to attempt dispute resolution prior to bringing a motion with the court, depending on the terms of your current parenting plan.

My husband and I need to divide retirement accounts in our divorce case. Is there a way to do that without penalty?

Yes, by using a Qualified Domestic Relations Order (QDRO). A QDRO is a court order meeting specific requirements of the IRS. An approved QDRO allows a retirement account to be divided pursuant to a divorce or legal separation without penalties and without either party having to claim the money as income until it is actually withdrawn. If the receiving party decides to cash out his or her portion rather than roll it into a retirement account, such as an IRA, then the receiving party will have to pay income tax and may have to pay a penalty on the withdrawal, unless another exception applies.

My son has been living with me for a year, even though the parenting plan says he is supposed to live with his mother. What should I do?

There are two issues you may need to address. The first is the parenting plan and the second is the order of child support. A court may modify an existing parenting plan if the child has been integrated into your home with the mother’s consent in substantial deviation from the current parenting plan. If your son has been with you for a year, then that is likely sufficient to establish integration into your home in substantial deviation from the parenting plan.

If there is an existing order of child support requiring you to pay support to the child’s mother, that order remains in effect until you get a new one entered. If the Division of Child Support is collecting or enforcing the current child support order, they will continue to do so until told otherwise by a court order. If you request a modification of the parenting plan, you can also request that the court modify child support to reflect the new parenting plan.

What constitutes domestic violence and what can I do about it?

Domestic violence is defined as (a) physical harm, bodily injury, assault, or the infliction of fear of imminent physical harm, bodily injury or assault, between family or household members; (b) sexual assault of one family or household member by another; or (c) stalking as of one family or household member by another family or household member.

Family or household members includes, but is not limited to, spouses, domestic partners, former spouses, former domestic partners, persons who have a child in common, adults related by blood or marriage, adults who are presently residing together or who have resided together in the past, and people who have a biological or legal parent-child relationship, including stepparents and stepchildren and grandparents and grandchildren.

If you are the victim of domestic violence, you can seek a domestic violence protection order. The order may restrain the respondent from having any contact with you, from coming to your home or workplace, from coming within a certain distance of you, your home, or workplace, and/or restrain him or her from harassing, stalking, or keeping you under surveillance. In Pierce County, Washington, you can apply for a protection order in Room 108 of the Pierce County Superior Court, at the Crystal Judson Family Justice Center, or at a domestic violence kiosk. More information can be found here http://www.co.pierce.wa.us/FAQ.aspx?QID=881

What is community property?

In general, anything acquired by either spouse during the marriage is considered community property. Community property is owned by both spouses equally. This includes wages of either spouse earned during the marriage, retirement benefits earned during the marriage, and property purchased during the marriage. One spouse’s wages during the marriage are still considered community property even if the other spouse did not earn any wages during the marriage.

There are some exceptions to the general rule mentioned above. For example, gifts to one spouse alone, even if received during the marriage, is the separate property of the receiving spouse. The same is true of an inheritance received by only one spouse during the marriage.

Although property acquired before marriage is considered separate property, it is possible for the asset/funds to get so commingled with community property that a court cannot distinguish the separate property from community property. If you have separate property going into a marriage, it is best to try to keep the separate property segregated as much as possible. Also, you may want to consider a prenuptial agreement to protect your separate property. The prenuptial agreement may also address the creation of community and separate property during your marriage.

What constitutes a “severe economic hardship” in a child support case?

The term “severe economic hardship” can be relevant in child support cases in a few different circumstances. If a parent or child is experiencing a severe economic hardship, that can be a basis for the court to modify an order of child support. Economic hardship to the parent receiving child support may be a factor in determining how much the other parent is required to pay. Also, economic hardship may be a basis for the court to increase child support in steps, as opposed to all at once.

There is no exact definition of economic hardship. It is a condition that depends on the specific circumstances of each case. However, if an economic hardship is self-created it likely will not be a basis to modify child support or use a graduated increase. Self-created hardships may include voluntarily quitting a job, or reducing work hours to part time. On the other hand, involuntary financial situations such as may be caused by a medical emergency, or layoff, may be a basis for modification of child support.

Are minors required to testify in court?

Any person who is “competent” to testify, whether or not he or she is a minor, can be required to testify in court. Competence generally means that the person understand the difference between truth and falsehood, and understand the duty to tell the truth. Competency also requires that a person have personal knowledge of the topics about which he or she is called to testify.

Even though children may be competent and qualified to testify in court, many courts look unfavorably on children testifying. This is especially true in family law cases. Calling a child to testify in a family law case often involves asking the child to testify against a parent, which is not in the best interest of a child.