Family law has many dimensions and is influenced by legal
as well as social and economic factors. Laws affecting relationships
may change as traditions and attitudes evolve. Because these
laws are complex and subject to change, this pamphlet is only
intended to provide general information; it is not a substitute
for legal advice.
Ending a marriage may be a particularly upsetting event, involving
many uncertainties and emotions. If separation or dissolution is
unavoidable or in your best interest, a lawyer can guide you in protecting
your rights. The pamphlet discusses areas of concern and attempts
to answer frequently asked questions.
How can a marriage be ended?
Various procedures may be used to end a marriage that breaks
down, including annulment, separation and dissolution.
Annulment is a court-ordered dissolution of an invalid marriage.
Technically called a "Decree of Invalidity," it nullifies
a marriage from its inception and is granted in situations where
no valid marriage exists because of some legal defect.
A separation may be formalized with a legal contract, or a "Decree
of Legal Separation," or both. A legal separation may be preferred
to a dissolution for religious, economic or other reasons. A couple
may decide to live apart while attempting to save a faltering relationship,
or the separation may be an interim step toward termination of the
marriage. (There is no legal requirement for actual separation before
dissolving a marriage.)
Oral or written understandings concerning property disposition,
arrangements for children, maintenance or other agreements make while
separates may become part of a dissolution proceeding.
If a marriage falls apart and is considered "irretrievably
broken," one or both partners may seek a dissolution of the
relationship. This court proceeding legally terminates a marriage,
and makes provisions for the parenting of minor children, family
support and division of property and liabilities.
In Washington, a spouse does not have to prove wrongdoing to obtain
a divorce (now legally called a "dissolution of marriage").
This no-fault system is intended to help spouses settle matters without
unnecessary bitterness and resentment.
What are the residency requirements?
You need only to reside in Washington on the date that
your petition for dissolution of marriage is filed.
What are the legal procedures?
Ending a marriage involves many legal considerations. Technically,
an attorney is not required for the process, but a lawyer's skill
and experience can be helpful to a person contemplating separation
or divorce. A lawyer's advice may be especially beneficial in cases
that are contested or that involve children and property settlements.
To start a dissolution proceeding, one spouse (called the "petitioner")
must file with the court a summons and "petition" for dissolution
of marriage.
Once known as the "complaint," this document is then served
on the other spouse (known as the "respondent"), usually
by having copies delivered to him or her. Although there is no major
legal significance as to whether the husband or wife files the petition,
there may be emotional or procedural advantages.
The purpose of the summons is to command the responding spouse to
reply to the petition. Basic facts about the marriage are contained
in the petition, which also specifies what the petitioning spouse
wants in the way of a parenting plan, property division and support.
Once served, and depending on the recipient's location (whether
in-state or elsewhere), the responding spouse has from 20 to 60 days
to reply in writing to the petition. This reply, called a "response," may
include a "counter-petition," and states the respondent's
position on children, property and support.
In many situations, the next step is to arrange temporary orders
to guide the conduct of the parties. Either spouse may obtain temporary
orders. Typically, the requests cover such subjects as residential
arrangements for the children and child support, spousal maintenance,
occupancy of the family home, payment of bills and other concerns
for protecting people or preserving property. If the spouses cannot
agree on the temporary orders, a court hearing with a judge or court
commissioner will be held to establish necessary requirements.
To settle any immediate problems in a dissolution action, a "show
cause proceeding may be requested by either spouse. This proceeding
is initiated by obtaining a court order that requires your spouse
to show cause why you should not be granted the relief you are requesting.
At the same time, the court can also immediately restrain your spouse
from harassing you, entering your home, taking children out of state,
disposing of property, or incurring any unusual debts.
Other restraints may also be imposed in exceptional circumstances.
A hearing is held (usually about two weeks after the show cause order
is issued) to decide most requests. Attendance by spouses is recommended,
but not usually required if both parties are represented by attorneys.
All issues must be settled in order to finish a case. If terms cannot
be negotiated between spouses, a trial will be held to decide any
disputes. If spouses agree on a settlement and no aspect of the dissolution
is contested, the case does not have to go to trial.
The final stage occurs when the court signs a "Decree of Dissolution
of Marriage." Settlements negotiated between spouses are presented
in writing for approval by the court and signature by the judge.
If the case requires a trial, the judge's decision is recorded in
writing and signed by the judge who conducts the trial. A marriage
is not dissolved until the judge signs the decree.
How long does It take?
The waiting period for a dissolution of marriage in Washington
state is three months. This means the summons and petition must
be filed with the court and served upon the other spouse for more
than 90 days before the judge signs the decree. This is a minimum
period and is intended to allow time for a reconciliation between
parties. The process could take much longer if any aspect of a
dissolution is contested and the parties have difficulty reaching
an agreement.
During the waiting period, temporary orders may be issued that provide
a temporary parenting plan for minor children, provide protection
or support money, or otherwise control the conduct of the parties.
Property settlement may be negotiated during this period or may,
in fact, be arranged before filing the petition for dissolution.
Can a wife change her name?
At the wife's request, her maiden name or a former name
can be restored as part of the dissolution decree. The request
should be included in the petition.
What about the children?
Washington law requires a parenting preliminary proceeding
for annulment, legal separation or marital dissolution where minor
children are involved. The terms "child custody" and "visitation" are
no longer used in Washington dissolution law. Instead, the parents
by agreement (or the court in the event of a dispute) must develop
a parenting plan.
The parents may make an agreed parenting plan, or each parent may
propose opposing plans. The court considers the best interests of
the children in determining how to provide for the children. Every
parenting plan must contain at least the following elements:
A schedule for residential care.
Allocation of responsibility for parental decision making.
Provisions for the resolution of future disputes between
the parents with respect to parenting decisions.
The law includes provisions for the protection of children
from parental abuse or neglect, from continued exposure to domestic
violence, from the abusive use of parental conflict, and from other
types of conduct which the court finds to be adverse to the child's
best interests.
(A separate pamphlet on the Parenting Act is available from the
State Bar, see below for ordering information.)
What about child support?
Both parents have a duty to support their children. Child
support is based on the Washington Child Support Schedule which
takes into consideration the total cost of providing a home for
the children and of taking care of them in all ways, and for each
parent's respective share of that cost, in accord with their incomes.
Child support is subject to periodic modification to meet changes
in the needs of the children, as well as changes in each parent's
ability to pay. Child support payments are usually required until
a child is 18 years old, or graduates from high school, whichever
occurs last, although circumstances may affect the duration of the
support obligation. For example, if a child under the age of 18 gets
married or otherwise becomes emancipated or self-supporting, the
court may terminate the parental obligation for the support.
Post-secondary support may also be required for a dependent's child's
college or vocational education expenses, or for a handicapped child.
Support may be required as long as the child remains dependent.
What about spousal support?
Spousal maintenance may be awarded where there is need
on the part of one spouse and ability to pay by the other.
Once called "alimony," spousal support is now referred
to as "maintenance." It will not be awarded or withheld
as punishment for marital misconduct. The duration and amount depend
upon the facts and circumstances of each case.
In determining the need for maintenance, and the appropriate duration
and amount, the court will consider:
- financial resources of each party;
- work experience and earning prospects of each spouse, including
consideration for the time required for one spouse to obtain training
for becoming employed or self-supporting;
- age and physical and emotional conditions of each party;
- the duration of the marriage; the standard of living established
during the marriage.
How Is property divided?
There is no fixed method for determining how property should
be divided. In Washington, all assets-real and personal,
tangible and intangible-are available for distribution.
As a community property
state, Washington laws provide for "just and equitable" division
of property acquired during a marriage; it does not necessarily
require an equal division. Under some circumstances, the
court may also apportion
separate (or individual) property.
If the husband and wife negotiate an agreement, the court will probably
approve it. If no settlement is reached, the court will decide how
to divide the property. Property settlement agreements are binding
and generally cannot be modified.
Property division is generally made without regard to marital misconduct;
instead, a court considers:
- nature and extent of community property;
- nature and extent of separate property;
- how long the parties were married;
- financial position of each party: whether each spouse is
employed and self-supporting; entitlements to social security and
profit-sharing plans;
- who is going to pay the bills;
- special circumstances.
A special provision of Washington law requires the court
to consider whether a parent should be allowed to continue living
in the family home so the children do not have to be moved.
How are bills or debts divided?
All liabilities must also be divided when dissolving a
marriage. Consideration is given to the type of debt and the circumstances
under which it arose. Factors influencing the property division
are also applied when dividing obligations.
Most credit and charge account agreements provide for joint liability
for any charges added to joint accounts. Therefore, creditors should
be instructed (in writing) to remove your name from or, alternatively,
close all joint accounts. If you wish to maintain credit with certain
creditors, separate accounts should be opened.
What if one spouse fails to obey court orders?
Like any judicial order, a judgment for dissolution will
be enforced by the court. Various legal remedies are available.
Persons who willfully refuse to comply with court orders may be
held in contempt and jailed or fined.
Child support orders will be enforced by way of mandatory payroll
deduction. This will be paid to the Washington State Child Support
Registry from the inception of the order, unless the court finds
that there is good cause to believe that the support will be voluntarily
paid directly to the other parent on a timely basis. Mandatory payroll
deduction also is available as a means of collecting support in cases
where the original order did not provide for that method of collection,
if the obligated parent has fallen behind in support payments.
Parents who are not receiving court-ordered support should contact
their local Division of Child Support or a private attorney.
What are the tax consequences of a dissolution?
Property settlements and family support arrangements can
have serious tax consequences to one or both spouses. Tax filing
status will be affected by a decree of dissolution, annulment or
legal separation. Legal or accountant's fees incurred for tax planning
and advice in connection with a marital proceeding may be partially
deductible.
Must I use a lawyer?
Washington law does not require that the services of an
attorney be used in dissolution proceedings. However, ending a
marriage involves serious and complex legal and financial considerations.
Along with serving as your advocate and negotiator, a lawyer knows
the process to follow and which papers to file. Your attorney can
advise you of your legal rights and obligations, can help reach
settlement on disputes, and can represent you in enforcing your
rights.
Among alternatives to having a lawyer represent each spouse are
self-help guidebooks and mediation with the help of a trained professional.
The costs-and consequences of each option can vary significantly,
so spouses should carefully consider the possibilities before proceeding.
Deciding which approach to follow and selecting a lawyer are personal
matters. Each party has the right to use an attorney, so if one person
elects not to, the other still can.
How much does It cost to dissolve my marriage?
Lawyers set their own fees, so costs and payment arrangements
may vary. An important factor in controlling costs is whether or
not the parties agree to settlement. If matters are contested,
the process is likely to be more expensive, since many attorneys
base their fees on an hourly rate. The amount of time a lawyer
must spend on a case will increase with the number of disputed
issues, and with the complexity of the issues.
It is appropriate to discuss fees with a lawyer at the outset of
a case. Your lawyer will be willing to explain the charges involved,
including retainers and hourly rates, court costs and payment or
credit arrangements.
(State Bar pamphlets on 'Lawyers' and 'Legal Fees' have more information
on legal costs and services. Please see below for ordering information).
This pamphlet was prepared as a public service by the Washington
State Bar Association to inform citizens of their legal rights and
obligations. It contains general information and is not intended
to apply to any specific situation. If you need legal advice or have
questions about the application of the law in a particular matter,
you should consult a lawyer.
LAWYER REFERRAL SERVICE
If you need legal assistance and do not know an attorney, call a
Lawyer Referral Service in these areas:
Clark County (360) 695-0599
King County (206) 623-2551
Lewis County (360) 748-0430
Pierce County (206) 383-3432
Snohomish County (206) 339-0100
Spokane County (509) 456-3655
Thurston County (360) 923-4844
Also check the listings under "attorneys" or "legal
services" in the yellow pages of the phone book.
This is one in a series of consumer information pamphlets produced
by the WSBA. Single copies are available free by sending a self-addressed,
stamped envelope for each pamphlet to: Pamphlets, Communications
Dept., Washington State Bar Association at the address below. Please
include one envelope with a first class stamp for each pamphlet ordered.
Copies in quantity and display racks are also available at cost.
For order forms and information call (206) 727-8278.
Speakers Available
Lawyers from the Washington State Bar Association are available
to speak on legal topics at no cost to civic, community and educational
groups. For information, contact the Speakers Bureau coordinator
at (206) 7278213 or write to the WSBA and ask for the brochure on
the Speakers Bureau.
Washington State Bar Association
2001 Sixth Avenue, Ste. 500
Seattle, WA 98121-2599
(206) 727-8200
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