Please
pardon our dust; we are under construction.
FREQUENTLY ASKED QUESTIONS
A divorce action may be initiated by both the husband and wife together or by only one spouse. In neither case is it necessary for the cause of the divorce to be established. Under present law, all the Court needs to know is that the marriage is "irretrievably broken." This means that the marriage cannot be salvaged. It is not necessary or even encouraged that you explain to the Court why your marriage is breaking up unless this information will be helpful when determining parental access to the children or to obtain protective orders from the court.
Self-help divorce can be performed even if your spouse will not cooperate. The spouse initiating the divorce will merely have to submit more forms to the court. This is true even if your spouse has left the state or his/her whereabouts are unknown.
2. What are the Residency Requirements?
Washington law states that any person who is a resident of the state of Washington or any member of the armed forces who is stationed in Washington may petition the state for a decree of dissolution of his/her marriage. Washington law does not require that you live in the state for a specific length of time before you file the petition. It just requires you to be living in the state on the date that your divorce petition is filed.
3. What are the Grounds for Divorce?
The basis for a divorce in Washington State is that "the marriage is irretrievably broken". This means that there are differences between you and your spouse that cannot be resolved. Even if your spouse does not agree that the marriage has broken down, the court must still find that the marriage is irretrievably broken and enter a decree of dissolution anyhow. We are a "no fault" state which means no one needs to take the blame for the marriage ending, it has just ended. This no-fault system is intended to reduce animosity and bitterness during the divorcing process.
4. How Long Will it Take to get a Divorce?
It takes at least 90 days, from the time the summons and petition are filed with the court and served upon your spouse, until you are able to obtain a decree dissolving your marriage. Sometimes spouses cannot be located, making personal service ofthe summons and petition impossible. In those instances you must wait at least six weeks after the summons is first published in a newspaper. The purpose of having minimum periods is to allow opportunity for possible reconciliation between you and your spouse.
If you and you spouse cannot resolve the issues which are relevant to your divorce action, then the divorcing process will probably take longer than 90 days. You and your spouse will have until the final hearing date to arrive at a settlement, and if you have not been able to work out a settlement by that date, then a judge will make the decisions for you.
5. Can a Wife Change her Name?
At the request of the wife the court will order a former name (usually her maiden name) restored. The wife may also choose a different name. The wife must put the request in her petition for dissolution or in her response to her husband's petition.
6. Divorce versus Legal Separation.
Legal separation is sometimes chosen in place of divorce or as a prelude to divorce. Some people choose legal separation because their religion looks disapprovingly on divorce; others choose legal separation because of tax or social reasons. Couples sometimes choose a legal separation because they wish to live separately for a time but do not want a divorce.
The procedure for a legal separation is the same as that for a divorce. Therefore a legal separation can be just as time consuming and cost as much as a divorce. The same papers are drawn up, except the petition is called a Petition for Legal Separation and the decree is a Decree of Legal Separation. In your Petition instead of the assertion that the marriage is "irretrievably broken", you state that there is a need for a legal separation of the parties.
If you request a legal separation, the court will enter the decree in that form unless your spouse objects and petitions for a dissolution decree. If either you or your spouse request the court to change your Separation Decree to a Decree of Dissolution, the court must do so, provided six months have passed since the separation decree was signed.
An annulment is a declaration that a marriage never truly existed. There are two types of annulments: religious or legal. The type granted by a religious organization is not the same as those granted by a court. If you want to know more about a religious annulment you should consult your church group.
A court annulment is called a Decree of Invalidity and is granted in situations where no valid marriage existed because of a legal defect. For example, a marriage may be considered null because one of the parties was married when the second marriage took place. If you think the facts of your situation might constitute grounds for annulment you should consult with an attorney.
8. How do I handle my own divorce?
Your divorce can probably be completed without hiring an attorney if you and your spouse agree to the divorce, there are no minor children involved, and there is little or no property to be divided. Otherwise, you should at least seek limited counsel for questions regarding maintenance(alimony), parenting arrangements (formerly custody and visitation), child support, life insurance, children's and spouse's medical insurance, children's education, debts, social security benefits, taxes, pensions, wills, etc.
Even when the settlement involves answering such questions, a willingness to learn and persevere on your part will greatly reduce reliance on a lawyer. Unraveling the mysteries of law and negotiating a fair and equitable settlement with your spouse by yourself can not only save you money but can also be an extremely satisfying experience. It is a chance to take personal control of your destiny.
9. What forms do I need to do my own divorce?
Beginning in 1992, the legislature required that all dissolution forms be standardized to make the proceedings more uniform and efficient. This was an excellent idea. Judges can read the paperwork more quickly to ensure accuracy. The forms also serve as checklists in case you might have forgotten something. They are the same no matter in which county you file.
Use of the forms is mandatory. Some county clerks will refuse to accept any papers you file except those mandated by the legislature and approved by the Administrator for the Courts.
For a nominal amount you can obtain a set of the forms by contacting the clerk of your county court; or by contacting the Office of the Administrator of the Courts at:
Mailing address:
Office of the Administrator of the Courts, Temple of Justice, AV-01, Olympia, WA 98504
Phone: (206) 753-3365
Through the Administrator for the Courts you may download a compressed file of all domestic relations forms, or forms in Word for Windows, or in WordPerfect 5.0 for DOS.
Or, you can purchase the forms from your local County Clerk's Office.
Or, get all the necessary Washington Domestic Forms directly from the Office of the Administrator (OAC) for the Courts with instructions for filling them out. You can order the forms by calling the OAC Forms Line at (360) 705-5328, and leaving your name and address. They will send you an order blank. The forms cost $35 for a paper copy, or $20 on computer diskette. Child support worksheets are free, and Child Support Modification Forms (included in the larger set) are available for $7. (Prices current as of April 1997.)
11. What do I do after I decide I want to get a Divorce?
You will begin the divorce proceedings by signing a Petition for Dissolution. The Petition defines the issues to be resolved during the divorce such as child support, property, debts, etc. The petition is accompanied by a summons, which tells your spouse that he or she must respond within 20 days. Both the summons and petition are filed with your County Clerk. Filing usually involves the clerk stamping "Original Received" on the document at the clerk's office and dropping it in the filing box labeled domestic and/or civil. You must make a photocopy of both the summons and petition which you can give to your spouse. If your spouse is not joining you in filing the divorce you must arrange to have the spouse served with the papers. You should also be sure to keep a copy for your own reference. After filing the Petition, there is a mandatory 90-day waiting period before the judge will sign the Decree. The waiting period is a mandatory court requirement intended to give the parties involved a chance to reconsider the divorce.
12. What is the 90-Day Waiting Period.
Before the 90-day waiting period is complete, your spouse may give you what is called a "Response." The Response could deny that the marriage is irretrievably broken, or claim there is a dispute over one of the issues you listed in the Petition, such as child support. At this point it will probably be wise for you to seek the aid of a lawyer. The lawyer might help you negotiate an agreement with your spouse or will need to represent you in court if no agreement is reached. You may be able to convince your spouse to agree to what is in the Petition or to a variation of that, but you should be cautious that you don't endanger your own welfare.
Often, the 90-day waiting period is very tense for the divorcing parties, their children and relatives. For this reason, restraining orders are granted by the courts. These orders forbid either spouse from performing certain acts such as entering the premises of the other spouse without permission. A person who violates such an order is considered to be in contempt of court. Punishment may take the form of a short stay in jail or a monetary fine, an ward of attorney fees, or even all three. If you believe either you or your children need protection from verbal or physical harassment, you should seek the assistance of a lawyer or one of the resources listed in Chapter 2 to help you draft a restraining order. These are quite complicated documents and, while a sample is provided with this book, you should be certain of the legal consequences of obtaining a restraining order before you undertake the task yourself.
One or both of the parties must go to the courthouse to finalize the divorce at the end of the 90-day waiting period, if the divorce is not contested. A Decree of Dissolution must be presented to the judge for the judge's signature. The Decree provides for parenting arrangements (formerly "custody" and "visitation"), division of property, and child support. The person(s) presenting the decree may also be asked to give brief testimony regarding these issues.
In larger counties, the court hears uncontested divorce cases every day. In smaller counties the court designates particular days to hear non-contested or default divorces. The proceedings may seem quite impersonal to the parties involved. Perhaps it is the volume of cases which makes the court appear insensitive. Regardless of the reason, it is worth being aware that the final court appearance may be anticlimactic emotionally.
14. Answering the Tough Questions.
There are a number of questions that arise as one household is divided in two. The court is concerned with whether you and your spouse have considered what is in the best interest of your minor children (under age 18) and whether your property and liabilities are being fairly and equitably divided so that each spouse is in a relatively equal position after the divorce.
The series of steps upon which you are about to embark are the tools for answering these questions. Much of the frustration in reaction to court requirements results because the court forces divorcing persons to answer questions they might otherwise ignore. It is important you begin thinking of possible solutions to these questions early in the process. The chapter entitled "Worksheets", provides a list of questions that you need to address as you proceed through your divorce.
15. What do I do about my future parenting concerns?
Until recently, parents getting a divorce thought in terms of "custody" and "visitation." The Parenting Act eliminated those traditional notions, replacing them with less confrontive, more dynamic ways of looking at post-divorce relationships between parents and their children. The focus, henceforward, will be on both parents:
(1)maintaining a loving, stable, consistent and nurturing relationship with the children;
(2)attending to the daily needs of the children and engaging in activities with the children;
(3)seeing that the children have an adequate education;
(4)assisting the children in developing and maintaining appropriate interpersonal relationships;
(5)exercising appropriate judgment for the children's best welfare; and
(6)providing financial support for the children.
The Act goes on to state that the relationship between the children and each parent should be fostered unless it would be inconsistent with the childrens' best interest. Therefore the court has the discretion of not allowing or limiting the involvement of a parent who may have a negative effect on the child.
Any of the following would be considered inappropriate conduct or personal impairments which could limit your involvement with your child:
(1)nonperformance of parenting functions;
(2)long-term emotional or physical; impairments that would interfere with your ability to perform parenting functions;
(3)substance abuse (such as drugs, alcohol);
(4)lack of emotional ties between you and your child;
(5)abusive use of conflict; or
(6)if you have not allowed your spouse access to the children for a long period of time without good cause.
With these considerations in mind, the court requires divorcing parents to develop a parenting plan which includes:
(1)a method to resolve future disputes concerning the children;
(2)specifying who will make certain decisions for the children;
(3)stating very specifically where the children will live for an entire year; and
(4)providing financial support for the children.
Parenting plans can range from situations where one parent exercises virtual control over all issues involving the children (formerly called "sole custody") to situations where the parents are still serving as co-parents despite the divorce. The particular parenting arrangements which work best for you, your spouse and your children must be carefully worked out. No two plans are going to be the same. Under one plan, only one parent has final authority over the children. The other parent can advise, but has no legal right to make decisions regarding the children's upbringing. That Parenting Plan would give broad control of the children's lives to only one parent. Examples of areas where that parent's decision-making authority might be exercised are health care, education, and religion. By contrast, the other parent's authority is limited to other areas specified in the decree.
Recently more people are turning to joint or shared parenting as a substitute for the old notions of "sole custody." Shared parenting means that both parents have legal responsibility for raising the children and making decisions regarding upbringing. Joint parenting requires that the parents continue to have frequent contact with each other to facilitate decision-making. Therefore, shared parenting will only be a success if the parents can communicate and cooperate.
The most common form of shared parenting is one by which the children reside primarily with one parent while the other parent retains liberal access rights and legal authority to share joint responsibility for all major decisions of upbringing.
Shared parenting plans can be written in such a manner that the parents share time spent with the children equally. For example, the children may spend 4 days with one parent, then 4 days with the other on an alternating basis. Or the periods might be much longer such as one month at a time. There are in fact, innumerable possible scenarios by which parents can arrange to spend equal time with their children. In some instances, parents have established a home for the children where the parents live on an alternate basis of 2 or 3 weeks at a time. In this way, it is hoped the children can establish more continuity in their lives. The courts do not particularly encourage these forms of co-parenting unless there is a clear history of cooperation and both parents freely agree to this arrangement.
Whatever the parenting arrangement, you can be sure that its success depends on the attitudes of the parents involved. The following are some characteristics which you should consider when drafting a parenting plan which involves significant co-parenting features:
(1)Both parents must be willing to put their children's interests first.
(2)Both parents must accept frequent contact with one another, especially in the early stages. Shared parenting involves communication. It requires real effort, cooperation, and frequent readjustment while working out unforeseen problems.
(3)Shared parenting assumes that parents have resolved the conflict between themselves or at least have been able to put it aside in common concern for their children.
(4)Parents with shared parenting plans must sincerely want active involvement in their children's lives.
(5)The parents should live near to each other. Most parents who seek shared parenting want shared physical access to the children. They must live near enough tomake the residence changes practical. Nearness extends to other considerations:
(a)The age of the children: The younger the age, the less desirable it is to move the children back and forth.
(b)School arrangements: Both parents should live close to the schools.
(c)Friendships: Do other family members and close friends live nearby?
(d)Financial Resources: Shifting between residences that are far apart will be difficult if family finances are insufficient.
(6)Older children generally favor a shared parenting arrangement or at least do not oppose it.
(7)Flexibility in the parents' jobs reduces conflicts. They need time off for the children's medical appointments and parent-teacher conferences. Parents without this flexibility can still make a shared parenting arrangement work, but it will be difficult.
(8)Were the parents both actively involved in caring for the children during the marriage? This is not an absolute prerequisite, but it clearly makes the transition easier for all concerned.
(9)Common goals for the children and similar attitudes toward child-rearing are crucial. This is really a matter of shared values.
(10)Finally, do you possess adequate financial resources? Providing space for children in two homes is more expensive than in only one home. However, children do not need separate rooms to feel wanted and loved, which are major goals of shared parenting.
16. What should I know about child support?
Both parents have a duty to support their children. Child support amounts will vary depending upon each spouse's income and ability to pay, as well as the needs of the children. Support payments are usually made until a child graduates from high school or reaches age 18 whichever is later. Certain circumstances may require extending support beyond age 18 or highschool graduation. For example, a child with special needs which prevent him from supporting himself after graduation or a child who is obviously bound for college will need a different kind of support order in the final decree.
In recent years parental responsibilities regarding child support have also changed dramatically. Now, child support is determined according to the Washington State Support Schedule. Only in rare instances will the court deviate from the Schedule. The Washington State Support Registry has been established as a collecting agency for child support. All child support payments can now be paid through this registry or directly to the person entitled to receive the payments (usually the parent with whom the children reside most of the time). Persons receiving Public Assistance are required to use the Support Registry.
If a parent misses a support payment that is payable through the Registry, the State will know and will automatically take collection action against the obligated parent's employer. This provision does not apply to child support orders entered before January 1, 1988. However, the law provides for enforcement of those older decrees by similar means, following notice to a delinquent parent.
The services of the Office of Support Enforcement, a division of the Washington State Department of Social and Health Services, are available to any parent receiving child support, regardless of income. These services are free and can be very effective in collecting support arrearages.
Washington law does not permit one parent to prevent the other parent from having access to the children because child support has not been paid. Nor can a parent stop paying child support because he or she has been prevented from seeing the children.
Any child support conflicts which arise after the divorce decree are to be handled by the Court. Mediation and arbitration are not acceptable methods for resolving problems relating to child support.
The legislature has adopted specific guidelines for post-highschool education support.
17. What should I know about spousal maintenance?
Spousal maintenance, formerly called alimony, may be granted to either spouse. Maintenance may be awarded for purposes of helping the homemaker spouse obtain vocational training, or as compensation to a spouse who has helped the other party obtain his or her education or other attainments.
You and your spouse should try to determine what spousal maintenance needs, if any, exist. These are the factors the Court commonly considers regarding maintenance:
(1)financial resources of both parties;
(2)need and ability to pay;
(3)duration of marriage;
(4)work experience;
(5)educational level and need for retraining;
(6)age;
(7)standard of living during the marriage;
(8)health (both physical and emotional); and
(9)nature and extent of property, both community and separate.
In particular, the court will look at the background of the person seeking maintenance to determine what other financial resources are available and how much time will be needed to acquire sufficient education or training for that person to find employment appropriate to his/her skills, interest and style of life. Also important to the court is the ability of the spouse from whom maintenance is requested to meet his/her own needs and financial obligation while providing spousal maintenance.
In marriages of short duration spousal maintenance will usually not be granted. In marriages of long duration, the court will usually award maintenance or it will be allowed for only a short time if one spouse needs it and the other spouse can afford it. In some rare cases, maintenance has been awarded for the lifetime of the recipient spouse.
If it appears one spouse has grounds for requesting spousal maintenance, it is a good idea to confer with an attorney to help ensure a fair settlement and for advice as to the tax consequences of maintenance awards. Maintenance payments are taxable to the recipient and deductible to the payor.
You should be aware that the Court may provide for temporary maintenance before the divorce is final.
Many self-helpers fail to seek temporary maintenance because the process is so complicated. If you need temporary maintenance, you should serioously consider employing an attorney for this part of the process.
18. How do we divide the property?
Property is classified as either "real" or "personal." Real property is land and the buildings that sit on the land. Your house is real property. Personal property is everything else. Examples of personal property are your car, furniture, savings bonds or life insurance policies.
Property is further classified as either "community" or "separate." Separate property is the property you owned before you were married, you inherited or that was given solely to you during your marriage. Community property is all the property you and your spouse purchased jointly from your earnings or were given jointly during the marriage. If, for example, during your marriage you and your spouse purchased a car with money that you inherited (separate property) and with money saved from wages earned while you were married (community property) you have "commingled" the property. If you put in 25% of the funds to buythe car, then 25% of the car would be considered your separate property. The other 75% is community property in which you have a one-half interest. However, you must be able to clearly trace your contribution. In many cases, the commingled separate property will be presumed to have become a "gift" to the community. The community property rules are complicated and you should consult an attorney if you believe the character of your property is an issue.
In a divorce proceeding, property has to be labelled as either separate or community. Both separate and community property are considered by the court when making an appropriate "equitable" division of the property between you. Separate property can be awarded to either of you. If you are unable to determine whether property is community or separate, you should talk to an attorney.
If you and your spouse signed a community property agreement during the marriage, all property that is owned by each of you is now probably community property. For example, that would include a valuable oil painting you just inherited. Locate your community property agreement and read its provisions carefully to determine what provisions it makes as to your separate property. Again, consult an attorney if you believe this will be an issue in your divorce.
The law requires the court to divide the property and any liabilities associated with the property in an "equitable" manner. That does not necessarily mean in an equal manner. In reaching its decision the court will be guided by the following factors, among others:
(1) the type and amount of community property;
(2) the type and amount of separate property;
(3) the length of the marriage; and
(4)the economic circumstances of each spouse at the time the property is to be divided including the desirability of awarding the family home to the spouse having primary residential care of the children so that the children might live there for a reasonable time.
Property to be valued and distributed between you and your spouse includes not only the family home, furnishings, bank accounts and car but also pension and retirement benefits, life insurance policies, club memberships, airline mileage awards, season football tickets and even the family dishes. Our courts have also recognized the contribution of persons who have assisted their spouses in obtaining professional degrees and the "goodwill" of a business in making an equitable distribution of property. The rationale behind this is that a professional degree, license or goodwill confers a greater earning potentialfor which compensation should be granted to the other spouse.
Where there are very few assets to be divided, divorcing spouses have worked out a variety of ways to compensate the spouse who is losing control or possession of the asset. One spouse might agree to exchange his/her interest in the home for other property such as a car, furniture, pension benefits or any other items with trade value.
Or, one party may exchange his/her portion of the home to the other spouse in exchange for a promissory note secured by a Deed of Trust representing a reasonable percentage of the equity of the home. This note can be made payable immediately upon sale of the home or upon some other significant event such as its conversion into a rental property, when a child attains high school age, etc. The note should be secured by a deed of trust to provide greater security. You should consult an attorney if this issue arises in your divorce.
A third method for dividing the home is to sell it and split the proceeds. The Decree of Dissolution will specify how the home or other real estate is to be divided. The Decree might in itself be sufficient for transfer of the property. However, it is a good idea to get a deed that specifies the transfer. The deed should not be signed until the Court says the divorce is final; otherwise, complications may arise regarding whether the deed is in fact legitimate. You should consult an attorney if this issue arises in your divorce.
One of the most common deeds for transferring property is the Quit Claim Deed. Quit Claim Deeds are easy to obtain and simple to complete.
A Separation Contract is another document that is useful when large items, such as homes, are involved in the settlement. The Separation Contract is an agreement between both spouses reflecting their agreement concerning the division of property, the payment of bills, parenting plans, spousal maintenance and child support. It is completed before the divorce is finalized by the court and it is to be used by the court as a guide to the wishes of the husband and wife.
Because of the space limitations of this book and because most cases which lend themselves to the self-help approach do not require the use of Separation Contracts, no Separation Contract is included in the forms section. However, a model Separation Contract is available in the book "Divorce In Washington, A Humane Approach", which you can find in your local library or most bookstores. Forms can also be found in the Washington Lawyer Practice Manual, a publication of the King County Bar Association's Young Lawyers Section and in the Family Law Deskbook, published by the Washington State Bar Association. These two books can be found in most county law libraries throughout the state and contains other useful forms as well asdetailed explanations of divorce law.
19. How do we divide the bills?
It is also important to specify who will take responsibility for which bills. To make this task easier, you should immediately contact your creditors when the decision to divorce is made and close all joint accounts between you and your spouse. Or get the creditor to acknowledge that one of you will henceforward be responsible for the bill. In this way, it will be clear who is responsible for which debts.
If you are going to perform a self-help divorce, it is important that you and your spouse agree upon an equitable division of the debts. However, such an agreement, even when confirmed by the court, will not be binding on creditors who are trying to collect for a jointly incurred debt. For example, if your spouse agreed to pay the VISA bill which was in both your names and to which you had both contributed, you could expect the creditors to solicit payment from you if your spouse did not keep his or her word. You should also be mindful of the tax consequences of your divorce, particularly if there is a transfer of property which will be sold later. You should contact your tax advisor before finalizing your divorce.
Please
pardon our dust; we are under construction.