What Are My Rights and Obligations If I Divorce in Washington?

Generally, the people who ask me this question are scared.  Their worlds are coming apart at the seams as their spouse departs.  Their children’s futures labor under dark clouds.  Their finances look bleak.  They want someone to protect them from this onslaught.  So, the frightened divorcing partner asks about his or her rights.  When they ask this, they are asking:  What will the courts do for (to) me if a judge decides the issues in dissolving my marriage?  Courts will, when competent, make decisions that are fair enough under the rules prescribed for them by the Washington legislature.  In family law, those rules are numerous, sometimes contradictory, and always involve balancing many facts and concerns.

Before I state what I believe a court might decide about your marital assets and children, I want you to know that you do not have to use the Washington legislature’s rules, at least not most of them, or have a court decide your issues.  You and your spouse can negotiate directly and create solutions that seem fair to you.  You will still be bargaining in the shadow of Washington law, but you can create a new status quo that better protects your children and more fairly allocates your asset and debts than any judge could.  Your alternatives to proceeding by using the court litigation system are:  kitchen table negotiations, facilitative mediation, collaboration, shuttle mediation, and arbitration.  The higher the level of conflict between you and your spouse, the more you need processes more toward the end of that list.  Courts prefer that you use these peace-making approaches.  RCW 26.09.015.  Both King County and Snohomish County require that you at least attempt to mediate your marital disputes, under most circumstances.

Before you dive into fighting about your issues, give genuine consideration to peacemaking alternatives.  Peace better serves you and your children (and your soon-to-be ex-spouse) than fisticuffs.  The real question you need to be asking is not “What are my rights?” but rather “What can I do to make separation work well for me, my kids, and my spouse?”  You should be asking questions about the sort of legacy you are building for yourself and your children down the road.

At Lancaster Law Office, we do not offer litigation services to divorcing families.  I believe that divorce litigation worsens family conflict needlessly, and injures families terribly.  I believe that litigating your divorce will make bitter enemies of you and your spouse, to the life-long detriment of your children.  We help separating partners fashion workable structures to protect both spouses and their children, and to help them cope emotionally with the demands of major life change.

Now, in answer to the inquiry that prompted you to click on this Frequently Asked Question.  Your rights and obligations, under Washington law, when you divorce are:

Divorce.

You have a right to divorce, that is, to dissolve your marriage contract, taking your fair share of assets and liabilities, and sharing time and responsibility for your children with your co-parent.  You do not need your spouse's permission to divorce him or her.  You do not even have to be able to find your spouse to divorce, though there are some extra steps if you cannot.  You will, however, need to agree with your spouse about how to rearrange your finances and children's schedules, or you will need a judge to decide on your behalf.  Most separating partners reach agreement, though they often do so under pressure from their spouse or looming court process.

In November 2012, the legislature and electorate of Washington State voted to authorize same-sex couples to marry.  One presumes that courts will apply the law of divorce as it pertained to hetero-sexual couples to same-sex couples.

Children.

As parents, you and your co-parent have a constitutional liberty interest in parenting your children without state interference, and your children have a reciprocal constitutional liberty interest in being parented by their co-parents.  No one else, including the children’s grandparents or your siblings or your involved neighbor, has interests of constitutional magnitude with respect to your children.  In re Parentage of C.A.M.A., 165 Wn.2d 52, 109 P.3d 405 (2005).  In civil law, relatives who deny a parent access to her child by taking, enticing, or concealing a child can be sued by that parent, and are liable to that parent for damages, including costs of locating the child and prosecuting the action.  RCW 26.09.255  In criminal law, when any person intentionally denies a parent access to their child, that person commits the crime of custodial interference.  RCW 9A.040.060-9A.040.080.

Courts divide up all the time of your minor children between you and your spouse in a manner it deems to be in the children’s “best interest.”  Your judge will attempt to accommodate a healthy relationship between you and your children by disrupting their existing pattern of interaction with you as little as possible, under the circumstances.  RCW 26.09.002.  Residential arrangements for children are aimed to encourage each parent to maintain a loving, stable, and nurturing relationship with the child.  RCW 26.09.187.  Overall, courts view change in children’s lives as detrimental to the children.

The document that makes these time allocations in your children’s lives is called a Parenting Plan.  The object of a parenting plan is to provide for the child’s physical care and emotional stability and changing needs during maturation.  A parenting plan divides authority and responsibility between the parents.  An aim of parenting plans is to reduce child exposure to harmful parental conflict.  The standard in parenting plans is “best interest of the child.”  RCW 26.09.184.  Unless a court were to find you or your co-parent an “unfit parent,” that is, incapable of performing required parenting tasks, then both of you will have significant time with each of your children.

Failure to comply with a parenting plan does not affect obligations under an order of child support.  RCW 26.09.184.

If a parent needs to relocate, generally this requires the parents to rework the parenting plan to provide for continued contact with both parents.  There is a specific statutory process to be used when a parent needs to relocate.  RCW 26.09.430-480.

If a parent causes nonaccidental injury, neglect, death, sexual abuse, or cruelty to their child, the state will intervene through Child Protective Services on an emergency basis.  Noninjurious, reasonable parental discipline is not child abuse.  RCW 26.44.010.  False reporting of child abuse will be noted by Child Protective Services; the false reporter will receive a letter from DSHS.  DSHS will refer a second such false report to a law enforcement agency for investigation.  RCW 26.44.061.

In parenting disputes, courts view involving children in dissolution disputes as child abuse.  Do not confide in your children about your divorce issues or induce them to “take your side.”  Such conversations may be characterized as parental alienation of a child’s affection for the other parent.  Such acts could impair your access to your children, if a judge rules on your activities.

Child Support. 

A child support schedule calculates the presumptive amount of child support owing from both parents per child for children of different ages.  RCW 26.19.  The parties’ incomes are summed and the presumptive amount of child support for children of the family is determined from the child support schedule.  The child support sum is apportioned to the parents based upon the respective share of gross income of each.  Transfers are ordered from one parent to the other for child support purposes based on the parents’ respective child support obligations.  Misconduct of a parent is not a factor in awarding child support.  RCW 26.09.100.  Child support orders may be modified based on economic hardship.  RCW 26.09.100, 26.09.170 (6)(a).  A court may deviate from the presumptive amount of child support if certain (numerous) factors apply.  The most common of these deviation factors is that the children’s residential schedule under the parties’ parenting plan places the children with the parents in a pattern that differs from the presumptions of the child support schedule.  Usually, in this circumstance, the parents are sharing time with the children in approximately equal portions.  RCW 26.19.075.

The duty of child support may extend beyond the minority of a child, because the rationale for child support is dependency of the child, not the minority of the child.  Sagner v. Sagner, 159 Wash App. 741, 247 P.3d 444 (2011).

Step-parents owe a duty of child support to the children of their spouse during the course of their marriage to the children’s parent, until a petition for dissolution or legal separation is filed, upon motion of the step-parent, or until the divorce is granted.  RCW 26.09.205.

Parents cannot agree to waive child support, because such agreements would be against public policy and might endanger the child’s welfare.  In re Marriage of Nelson, 62 Wash. App. 515, 814 P.2d 1208 (1991).

Before a child reaches majority (or later time if the child remains dependent and that later time is specified in the original order of child support), a court may order the parents to provide post-secondary education support payments.  RCW 26.19.090.

Failure to pay child support obligations may be construed as a crime.  RCW 26.20.030, 26.20.035, 26.20.080.  Renewal of driver’s licenses and other professional licenses may be refused for parents who fail to pay child support.  Federal income tax refunds may be intercepted to retire child support obligations.  Courts are most reticent to grant relief from past-due child support obligations, and will do so only upon a showing of severe hardship on the payor.  In re Marriage of Capetillo, 85 Wash. App. 311, 932 P.2d 691 (1997).    Orders of child support will not be modified retroactively.  Failure to comply with an order of child support does not affect obligations under a parenting plan.  RCW 26.09.184.  Unpaid child support obligations become liens against all the property of the obligor when the payment is due.  A child support lien has the priority of a secured creditor (like your mortgage holder), and attaches to all real and personal property of the obligor.  The parent who has not been paid child support may file the lien with the county auditor in a county where the obligor has property.  RCW 26.18.055.

Courts tend to follow the child support order.  If your financial circumstances or the children’s residential time changes, you should promptly modify your order of child support, by agreement if possible.

Spousal Maintenance.

Spousal maintenance is a regular transfer of funds from the income of one spouse to a former spouse.  In deciding whether to order a spousal maintenance transfer, courts consider 1) the financial resources of the parties and the ability of each party to meet his or her needs independently of assistance, 2) the time needed by a disadvantaged spouse to retrain or receive education so that the spouse may become employed appropriately, 3) the standard of living during the marriage, 4) the duration of the marriage, 5) the age, health, emotional condition, of the spouse seeking support, and 6) the ability of the paying spouse to pay without neglect of his or her own needs.  Courts do not consider spousal misconduct in making spousal maintenance awards.  RCW 26.09.090.

A court’s division of the assets and liabilities of the marital partners in divorce may influence its perception of the appropriate amount of spousal maintenance.  In re Marriage of Estes, 84 Wash. App. 586, 929 P.2d 500 (1997).  The primary concern of courts in awarding maintenance is the financial condition of the parties after the decree is entered.  In re Marriage of Terry, 79 Wash. App. 866, 905 P.2d 935 (1995).

In awarding spousal maintenance, courts may use rules of thumb as follows:  in short term marriages (one to three years), the parties should be put in the financial position they had before the marriage commenced, to the extent possible.  In mid-term marriages (three to eighteen years), spousal maintenance should be approximately three to four years.  In long-term marriages (eighteen or more years), spousal maintenance should be four to six years.  These rules of thumb are not codified and vary with the impact of individual facts, from interpreter to interpreter, and from judge to judge.  If a marital partner is permanently disabled with respect to earning capacity, the court may consider permanent spousal maintenance, but such awards are not favored.  Mose v. Mose, 4 Wash. App. 204, 480 P.2d 517 (1971).

The presumption in spousal maintenance questions is that all spouses should work full time.  In re Marriage of Mathews, 70 Wash. App. 1126, 853 P.2d 462 (1993).    All spousal maintenance awards are subject to modification, unless the parties have agreed otherwise.

Spousal maintenance transfers are taxable as income to the receiving spouse and deductible from income for the paying spouse under federal income tax rules.

Assets and Liabilities.

The court will, without consideration of spousal misconduct, make a just and equitable division between the marital partners of all community and separate assets and liabilities.  In making the division, the court will consider the duration of marriage, the financial condition of each party when the divorce is completed, and the nature and extent of the parties’ property and debts.  RCW 26.09.080.

Property of married couples has two characters:  separate and community.  What counts in determining the character of marital assets is source of funds, not in whose name the asset is titled.  Hamlin v. Merlino, 44 Wn.2d 851, 272 P.2d 125 (1954), U. S. v. Moberg, E.D. Wash. 2002, 227 F.Supp.2d 1136.

Separate property is assets (and the increase of those assets by interest, inflation, increase in value, rents, and so forth) acquired before or after marriage, or during the marriage by traceable proceeds of gift, inheritance, or other less frequent sources, such as pain and suffering awards in personal injury cases. RCW 26.16.010, and In re Marriage of Wright, 78 Wash. App. 230, 896 P.2d 735 (1995).  Earnings during permanent separation are also considered separate property.  In re Marriage of Griswold, 112 Wash App. 333, 48 P.3d 1018 (2002).  Separate property of one spouse is not at risk due to the debts of the other spouse.  RCW 26.09.010.  Separate property of one spouse remains separate property unless its character is changed by deed, agreement of the spouses, operation of law, or other direct evidence to the contrary.  In re Marriage of Zier, 136 Wash. App. 40, 147 P.3d 624 (2006).

Community property is assets (and the increase of those assets by interest, inflation, increase in value, rents, and so forth) acquired during marriage as a result of the fruits of the labor of the marital partners.  RCW 26.09.030, and In re Marriage of Hurd, 69 Wash. App 38, 848 P.2d 185 (1993).  Marital partners can change the character of property by agreement.  Commingled funds are presumed to be community funds.  In re Marriage of Skarbek, 200 Wash. App 444, 997 P.2d 447 (2000).

In dissolution financial decisions, courts prefer to award separate property to its owner and to split community property equally among the spouses, unless such a division creates an unworkable post-divorce circumstance for one of the spouses.  Courts presume property is community property unless a party is able to demonstrate that property is separate property.  Chase v. Chase, 74 Wn.2d 253, 444 P.2d 145 (1968).  Separate property becomes community property if it is commingled with community funds in a manner that cannot be traced.   In re Marriage of Pearson-Maines, 70 Wash. App. 860, 855 P.2d 1210 (1993).

Litigation Process.

Jurisdiction.  If a child has lived with a parent in a state of the United States for six months, then the superior court of that location is the proper venue for court decisions regarding the status of that child.  RCW 26.27.021.

Temporary Orders.  After filing and service of your summons and petition for dissolution, you may bring a motion for temporary orders, usually heard fourteen days after filing of the motion.  In that motion, you can ask for the court to order both parties to maintain the financial status quo, to split your children’s time on a temporary basis, to order transfers of funds between spouses, including child support, and other financial matters.  Temporary orders pertain to the time from filing your divorce to the time when your divorce is completed.  RCW 26.09.060.

Mandatory Waiting Period.  Even if you and your spouse have agreed concerning every issue in your divorce and have appropriate pleadings in hand, you cannot finalize your divorce until the ninety-first day after completion of filing and service.  RCW 26.09.030.

Attorney’s Fees.  A court may order either party to pay all or a portion of the reasonable attorney’s fees of the other party, after considering the financial resources of both parties (often summarized as “need and ability to pay.”)  RCW 26.09.140.  The intransigence or frivolous pleading of a party may lead a court to award attorney’s fees and costs to the other party.  Bay v. Jensen, 147 Wash. App. 641, 196 P.2d 753 (2008).

Name Changes.  A court may change the name of any party to a dissolution action, upon the request of the party.  RCW 26.09.150.

Finalizing Divorce.  When you and your spouse have reached agreement, one of you and your attorney will take the appropriate paperwork to court and present some simple testimony before a commissioner, who will grant your divorce, if the paperwork is in order.  If you have not reached agreement, a superior court judge will hear your issues, make decisions, and your attorney will present orders that conform to the judge’s ruling for entry.  All divorce issues are decided by a judge, not by a jury.

Separation Contracts.

 You and your spouse may draft a separation contract, usually with the assistance of counsel, that settles the financial issues in your divorce.  If you move forward with divorce, the court will accept the settlement you have reached, unless the court believes the separation agreement was fundamentally unfair.  RCW 26.09.070.

Legal Separation.

A legal separation decides all the same issues as a dissolution, except that it does not address the question whether the parties’ marriage is irretrievably broken.  Six months after entry of a decree of legal separation, either party may ask the court to convert the decree of legal separation into a decree of dissolution.  RCW 26.09.150.

Domestic Violence.

Domestic violence is physical harm or inflicting fear of harm, sexual assault, or stalking between family or household members or persons who have dated romantically.  RCW 26.50.010.  The court may issue orders for protection (domestic violence) or antiharassment orders (domestic violence) when the court is satisfied such behaviors present an ongoing danger to a person who seeks such an order.  RCW 26.50.020.

Domestic Partnerships.

Washington has created the state registered domestic partnership to address concerns about the legal status of parties who wish to cohabit but decline to marry or are not qualified to marry.  Domestic partners must share a residence, be adults, be unmarried, not be closer in kin relations than second cousins, and either must be of the same sex or, if of opposite sexes, at least one partner must be over sixty-two years of age.  RCW 26.60.030.  One registers a domestic partnership with the Secretary of State.  Generally, state registered domestic partnerships are treated like marriages, for family law and community property purposes.  After Washington's same-sex marriage law, only couples in which one partner is over sixty-two years of age can for a registered domestic partnership.

Persons entering a registered domestic partnership need to be aware that the federal Defense of Marriage Act ("DOMA") held that marriage can only exist between partners of opposite sexes.  DOMA did not recognize homosexual marriage or the status of registered domestic partnerships, like Washington's statute.  In 2013, the United States Supreme Court heard challenges to DOMA, and they found the definition of marriage as existing only between partners of opposite sex unconstitutional [United States v. Windsor, 570 U.S. ____ (2013)].  So, the federal presumption against same-sex marriage has no statutory basis in DOMA any longer.  This area of law is extremely fluid at present, and substantial changes are a certainty.

More than ninety percent of divorcing couples never have a judge make decisions regarding their dissolution; they settle by some means other than judicial trial.  More than sixty percent of divorcing couples go through the dissolution process without assistance of an attorney, usually because the cost of hiring counsel is for them prohibitive.

The Washington Supreme Court, in attempting to address the affordability of access to the court system, has authorized (APR 28) limited license legal technicians ("LLLT") to practice, with appropriate education, licensure, and insurance, in family law matters.  The first class of LLLTs should graduate in spring 2015.   Access to LLLTs should provide some relief to lower-income working families seeking expert family law assistance that is affordable.