Family Law FAQ

Divorce, Annulment, and Separation can be a complex process. Below are some of the most commonly asked questions about the process and their basic answers. We offer a free consultation and information packet, so feel free to contact us to make an appointment.
Annulment     Separation     Divorce     Property     Debts     Children     Modifications     Support  

Annulment

What are the benefits of annulment?

An annulment is faster than a divorce because the waiting period is only 20 days, and even that waiting period can be waived if your spouse is cooperating. Some people also like the legal fiction that an annulment means that the marriage never existed because it was invalid from the beginning.

What are the drawbacks of an annulment?

The annulment court documents have to state something very negative about one or the other of you. For example, that you committed fraud on your spouse or you did not have the mental capacity to enter into a marriage. This can create ugly disputes. In addition, the judge may not agree that you have established grounds for an annulment and you will have to bear the expense of starting over again.

Is there a waiting period for an annulment?

No. If you and your spouse sign the annulment papers, the annulment can be granted as soon as the court file is opened.

Can I get an annulment because I have only been married for a week?

Not if you were married in Washington. The brevity of the marriage is not one of the grounds for annulment of a marriage in this state unless you were married in another state which allows annulments based upon the brevity of the marriage. Your marriage can only be “annulled” if there was something defective (invalid) about the marriage at the time you entered into it. You cannot get an annulment because you change your mind about your marriage within a certain amount of time. You can use this as grounds for a divorce.

What are the grounds for annulment in Washington?

If either of you was already married at the time of your marriage, your marriage is invalid. There are also many other grounds for annulment, but it is impossible to explain all the grounds for annulment completely here. Generally, however, you can get an annulment if one of you was under age; the marriage was entered into because of force, duress, or fraud; or one of you was mentally incompetent or under the influence of alcohol or other incapacitating drugs at the time of the marriage. Even if you may fit one of these criteria on face, you should consult with an attorney to confirm your marriage qualifies for annulment. For example, if you get married while you are drunk out of your mind, but you continue to live with your spouse after you sober up you will waive your right to get an annulment.


 

Legal Separation

In a divorce, the judge dissolves your marriage, makes a final division of your property and debts, approves a parenting plan, provides for child support, and rules on other matter such as alimony and restraining orders. In a legal separation, the judge does all the same things except that the marriage is not dissolved. You are still married, but you finances are completely separated and one of you has to pay support for any dependent children of the marriage. A legal separation will protect your property from most of the debts your spouse incurs after the separation without forcing you to get a divorce, which may be against your religion. At your free initial consultation with the attorney, you will be advised whether or not a legal separation is right for you.
A legal separation is of indefinite duration. It lasts until you convert it to a divorce, you dismiss it, or one of you dies.
There is no waiting period for a legal separation. As soon as your papers are filed with the court, the decree of legal separation can be signed by the judge.
No. The property division is final when the judge signs the paper even though you are still married. If your case is later converted to a divorce, your property is not divided up again.
You cannot convert your legal separation into a divorce until six months have passed after the decree of legal separation was signed. After that, either of you can file a motion to have the legal separation converted into a divorce.
Not before the legal separation is granted. After you get your legal separation, however, there is an even longer waiting period of six months before you can convert the legal separation to a divorce.


 

Divorce

In a divorce, the judge dissolves your marriage, makes a final division of your property and debts, approves a parenting plan, provides for child support, and rules on other matter such as alimony and restraining orders. In a legal separation, the judge does all the same things except that the marriage is not dissolved. You are still married, but you finances are completely separated and one of you has to pay support for any dependent children of the marriage. A legal separation will protect your property from most of the debts your spouse incurs after the separation without forcing you to get a divorce, which may be against your religion. At your free initial consultation with the attorney, you will be advised whether or not a legal separation is right for you.

Who can file for a divorce in Washington?

If either you or your spouse resides in Washington, you can file here.

How long do I have to reside here before filing?

There is no minimum time you must reside in Washington before you can file here. The 90-day waiting period comes after the papers are filed.

Can military personnel file in Washington State?

Persons on active duty in the military can file in Washington if:
  1. your spouse is a resident of Washington; or
  2. Washington is your home state of record; or
  3. if you are stationed here and will remain stationed in Washington throughout the 90 day waiting period.
You are considered stationed in Washington even if you are out of the state on temporary assignment elsewhere. Since the attorneys will appear in court for you, it does not matter if you are temporarily on duty outside the state or overseas.

What is the waiting period for divorce?

The legislature in the State of Washington decided that couples who have filed for a divorce should have a cooling-off period before the divorce becomes final, so a law was passed which provides that you cannot get a divorce until at least 90 days have passed after the case was filed.

Is there any way around the waiting period?

No. It is mandatory in every divorce.


 

Property & Assets in Divorce

What property has to be listed in the divorce?

All property belonging to either of you MUST be listed in your divorce papers. If you do not list it in the divorce papers, the judge cannot award it to you. Community property which is not listed in the divorce belongs equally to you and your ex-spouse after the divorce. If you do not list all your property, you may get a big surprise when you try to sell it later on!

How do I know I have included all the property?

The free information packet/questionnaire includes a section devoted to helping you list all your property. It includes obvious property, such as bank accounts and real estate, as well as things you might not think of such as money owed to you because of loans or personal injury claims you may have.

Do I have to list my separate property?

Yes. Even your separate property may have acquired a community lien against it. If you list your separate property in the divorce papers, that community lien will be eliminated.

What retirement benefits am I entitled to?

Each of you is entitled to half of the retirement benefits which either of you acquired through employment during your marriage. This includes contributions to accounts like IRAs and 401(k)s as well as the right to receive a certain monthly benefit upon retirement in the future. If your spouse has an IRA, 401(k), or other account, your share can be separated out into an account in your own name. If your spouse will be entitled to receive a monthly payment upon retirement, a portion of that monthly payment can be separated out and sent directly to you.

What if we are not receiving any retirement payments yet?

The right to begin receiving payments in the future is actually property which you own now and which must be divided up in your divorce. You can find out what your retirement benefits are worth by contacting the retirement plan administrator and requesting a statement of the value of the participant’s interest in the plan. Future retirement benefits can be extremely valuable, and you should investigate what they are worth before dividing them up in your divorce papers.

How do we divide up our retirement benefits?

If you and your spouse have agreed that each of you will keep his or her retirement benefits, your divorce papers can simply list the name of the plan under the property to be awarded to each of you. If either of you is to receive any portion of the other’s retirement benefits, however, your lawyer will need to draft a special order dividing up the retirement benefits. This order is called a “domestic relations order” or a “qualified domestic relations order” or a “QDRO”.

What is a QDRO (pronounced “quadro”)?

This is a special type of order which can be a single paragraph or five pages long, depending upon the retirement plan being divided. An attorney will prepare your QDRO for you. The information necessary for a QDRO is covered in the free information packet/questionnaire.

Are military retirement benefits included in the divorce?

Military retirement benefits are divisible, but the military will not make payments directly to a former spouse unless the parties were married at least 10 years during the active duty of the spouse in the military. In addition, the military will not pay a former spouse more than 50% of the military retirement pay.

Are disability benefits included in the divorce?

Disability benefits are not generally divisible in a divorce. This can create problems if your spouse is receiving disability benefits as opposed the retirement benefits. If this is the case, you may want to consider putting alimony in the divorce papers to make sure that you receive enough income. The information necessary for an award of alimony is also covered in the free information packet/questionnaire.

Family Law FAQ

How do we divide up our real estate? When the judge signs the final divorce decree, the real estate which is awarded to you becomes yours free of any interest of your spouse. This is fine if you are each taking your separate real estate and going your separate ways. If the real estate needs to be sold in the future or one of you is supposed to buy the other one out, however, the situation becomes a great deal more complicated.

What if we do not want to sell the real estate?

One of you can buy the other out. This can be accomplished in several different ways, which are somewhat complicated. Our attorneys can help you with these documents, include helping you draft buy out provisions which protect both of you. Once you have filled out the information packet/questionnaire, the attorney will answer your questions about dividing up your real estate and prepare your divorce papers to do what you want.

Should I just deed the property over to my spouse?

You should sign a deed releasing your interest in the real estate only if you have already received ALL the money or property due you for your interest in the real estate. Once you have deeded the property over, your spouse can sell it without your knowledge and spend the proceeds however they wish, and you will no longer have rights to collect anything from the real estate.

What if I don’t want anything unless my spouse sells the real estate?

You still must have some kind of lien on the real estate or your spouse can sell it without your knowledge and give you nothing.


 

Debts in Divorce

Am I still liable for debts my spouse is supposed to pay?

There is no way to force a creditor to release you from liability on a community debt. Even though your spouse is ordered to pay the debt in the divorce papers, you still remain liable if your spouse does not pay it. If the creditor forces you to pay the debt, you can use the divorce papers to collect from your former spouse. You will not be able to collect anything from your former spouse, however, unless your divorce papers specify what debts you want him or her ordered to pay. The free information packet/questionnaire provides a place to list the creditors you want your spouse ordered to pay.

Is there any way to get my name off the charge accounts?

Yes, but only if the creditor agrees to take your name off the account. You should call the creditor and request that your name be taken off the account or that a separate account be set up in your name only. If possible, get something from the creditor indicating that you have been released from liability on your spouse’s account.

Will I be liable for charges or cash advances after we separate?

If the creditor will not agree to release you from liability on the account, you should ask for the name and address of the credit manager. You should then immediately send that person a letter informing the company that you and your spouse have separated and that you will no longer be liable for any future charges made on the account. You should keep a copy of the letter for your records. You may also want to send the letter by certified mail, return receipt requested.

Will I be liable for loans?

If you both promised to repay a loan, there is no way to get your name off the loan unless the creditor agrees to release you. The creditor is not a party to the divorce and is, therefore, not bound by the divorce papers. Your spouse can be ordered to pay the loan, but you are still liable to the creditor if it does not get paid. On the other hand, some creditors will agree to release you from liability for a nominal sum so it does not hurt to call and ask about a release.

What if I want a shared car turned over to me if my ex-spouse doesn’t pay the loan?

This type of provision can be put in your papers, but it is hard to enforce. If your former spouse cannot make the car payments, he or she is not likely to deliver the vehicle to you and sign the title over. You might be better off to sell the vehicle to pay off the loan or to take the vehicle and make the payments yourself.

What if my former spouse files bankruptcy?

You will still be liable for any joint debts your former spouse was ordered to pay, but you may have the right to collect from your former spouse even after the bankruptcy depending on how your divorce papers are drafted. Unfortunately, you may be forced to file bankruptcy also because you cannot pay all the debts.

Is there anything else I can do to protect myself?

In some cases, it is best to pay the debt yourself and have your spouse ordered to reimburse you in the form of alimony. Alimony cannot be eliminated in bankruptcy, but it is taxable income to the person receiving it and it is subject to modification in the future. There are also some other strategies which may be used to protect you. After you have provided the information about your case, we’llll confer with you about other strategies which may work in your case.


 

Children & Parenting in Divorce

What goes into a parenting plan?

The parenting plan must be prepared on the mandatory form. The most important parts of the parenting plan state where the child will reside at different times during the year. A majority residential parent is designated for preschool, school year, winter vacation, spring vacation, and summer. It does not have to be the same parent for all parts of the year. Then times to be spent with the other parent during each time of the year are designated, and the holidays and other special days are divided up. Other sections of the parenting plan allow you to designate joint or separate decision making and a method of dispute resolution. he parenting plan can also restrict one parent’s contact with the child.

What if we don’t need a parenting plan?

You and your separated spouse may be doing just fine at raising your dependent child without a parenting plan, but you will not get your divorce without one. It is simply one of the mandatory forms which must be filed in order for the judge to sign your final papers. Nothing requires that you and your former spouse follow the parenting plan to the letter, but you need to understand that the parenting plan will control in case of a disagreement between you in the future. Consequently, it is important to properly prepare your parenting plan based upon what rights you will want in case of a dispute in the future.

What if we agreed I should get full custody of the child?

You still have to have a parenting plan. You can put in the parenting plan that the children reside with you as much of the time as you want, but you cannot simply write in the words “full custody.” The parent with whom the child resides the majority of the time will be considered to have custody and will receive child support.

Can we have joint custody?

What used to be called joint custody in this state consisted of making joint decisions regarding the child and having the child reside approximately half the time with each parent. Although you cannot simply use the words “joint custody,” you can accomplish the same thing by indicating joint decision making in your parenting plan and filling out the residential provisions so that the child resides approximately half the time with each parent.

What if I need to move with the child?

After the parenting plan is in effect, the parent with whom the child resides the majority of the time cannot move the residence of the child without first obtaining a modification of the parenting plan or giving the required notice of relocation. This is discussed in more detail in the section dealing with modifying the parent plan.

Can’t I just move with the child if the other parent won’t cooperate?

Absolutely not! The State of Washington passed a “relocation” law which became effective in June of 2000. This new law requires that a parent moving with the child give certain notices to the other parent before the move and provides for sanctions (penalties), including contempt, for failure to give the notices. The relocation statute requires that the following summary of the relocation statute be included in every parenting plan which becomes effective after June 2000:

This is a summary only. For the full text, please see Ch. 21 Laws 2000.

If the person with whom the child resides a majority of the time plans to move, that person shall give notice to every person entitled to court ordered time with the child.

If the move is outside the child’s school district, the relocating person must give notice by personal service or by mail requiring a return receipt. This notice must be at least 60 days before the intended move. If the relocating person could not have known about the move in time to give 60 days notice, that person must give notice within 5 days after learning of the move. The notice must contain the information required in Ch. 21 Laws 2000 § 6. See also DR 07.0500 (Notice of Intended Relocation of A Child.).

If the move is within the same school district, the relocating person must provide actual notice by any reasonable means. A person entitled to time with the child may not object to the move but may ask for modification under RCW 26.09.260.

Notice may be delayed for 21 days if the relocating person is entering a domestic violence shelter or is moving to avoid a clear, immediate and unreasonable risk to health and safety.
If information is protected under a court order or the address confidentiality program, it may be withheld from the notice.

A relocating person may ask the court to waive any notice requirements that may put the health and safety of a person or a child at risk.

Failure to give the required notice may be grounds for sanctions, including contempt.

If no objection is filed within 30 days after service of the notice of intended relocation, the relocation will be permitted and the proposed revised residential schedule may by confirmed.

A person entitled to time with a child under a court order can file an objection to the child’s relocation whether or not he or she received proper notice.

An objection may be filed by using the mandatory pattern form WPF DR 07.0700, (Objection to Relocation/Motion for Modification of Custody Decree/Parenting Plan/Residential Schedule (Relocation)). The objection must be served on all persons entitled to time with the child.

The relocating person shall not move the child during the time for objection unless: (a) the delayed notice provisions apply; or (b) a court order allows the move.

If the objecting person schedules a hearing for a date within 15 days of timely service of the objection, the relocating person shall not move the child before the hearing unless there is a clear, immediate and unreasonable risk to the health or safety of a person or a child.

Obviously, the best way to accomplish a relocation is to work out a new parenting plan which both parents will sign. This is an agreed modification, and the change can be effected without delay. If you are not able to agree on a modification the steps outlined in the above summary of the law must be followed, and you must give the required notice on the mandatory forms.

Must there be child support in every case involving a dependent child?

No. There are some unusual cases in which you do not have to provide for child support. For example, there may be no support if the parent has simply disappeared and you have to publish the summons. In most cases, however, you will have to provide for some child support.

How much support should be paid?

The amount of support is not absolute. The first step in deciding support is to fill out the mandatory child support worksheets. These worksheets contain calculations based upon a combination of both of your incomes and deductions. After you have filled out the worksheets and done the calculations, you have the standard amount of child support. This is the amount of support which the State of Washington requires you to use unless you have a reason for “deviating” from the standard calculation.

What if I do not know what my spouse’s income is?

If your spouse will not provide you with income information, the State of Washington simply imputes a certain amount of income to your spouse based upon what other people of the same age are making. Your spouse’s income will also be imputed if he or she refuses to work in order to avoid paying child support.

What are these deviations from the standard amount of child support?

There are too many reasons for deviating to list them all here. Some examples include:
  • payments being made to support children of another relationship
  • income of the child;
  • special medical needs of the children;
  • significant residential time spent with the parent paying the support.
  • You cannot deviate from the standard support amount just because you and your spouse agree to it – you have to have a good reason. If you feel you are entitled to a deviation in your child support, an attorney will confer with you regarding that after you have provided the income and other information requested in their information packet/questionnaire.

What is the minimum amount of child support?

There is a presumptive minimum of $25 per month, but that amount can be eliminated under certain unusual circumstances.

Why is the child support order form so complicated?

The mandatory form for child support is 11 pages long and is the most complicated of the mandatory forms to fill out. The form is so complicated because it is designed to make sure that you comply with the many laws which have been passed regarding child support. Again, an attorney will consult with you and fill this form out for you based upon the information you provide in the questionnaire.

What is the difference between child support and alimony?

Child support is money paid for the support and benefit of the children of the marriage, and alimony is money paid for the support and benefit of a former spouse. The formal term for alimony is “spousal maintenance.”

Can I pay alimony instead of child support in order to get the tax deduction?

Yes, if you and your spouse have agreed on that. Tax planning is one of the allowable reasons for deviation as long as the same amount of money is available for the support of the child.


 

Modifications To Child Support & Parenting Plans

What is a modification?

A modification is a change in the child support order or parenting plan after the divorce is final. If the income of either party changes substantially or the child goes to live with the other parent, the support papers need to be modified to reflect the change.

Can’t we just agree between ourselves to raise or lower the support?

No. If you are paying support and you agree between yourselves that you should pay less, the unpaid portion of the support will continue to accrue and your ex-spouse may go back later and get a judgment for the back support.

What if I can’t afford a modification?

You will probably wind up paying a lot more in back child support than you would for the modification. There are a lot of parents who currently owe $10,000-$35,000 in past due support because they did not get a modification when they were entitled to it. Child support collection laws are becoming more severe every year, and child support obligations cannot be wiped out in a bankruptcy.

How long does a modification take?

There is no waiting period for a modification. The papers can be presented to the judge as soon as both of you sign them. Of course, a contested modification will take a lot longer.

How do I know if a modification will lower my support?

An attorney will advise you about modifying your support and parenting plan based upon the information you provide by filling out the free information packet/questionnaire.

What if I just want to modify my parenting plan?

You can modify the parenting plan without modifying the support. You can also modify the support without modifying the parenting plan.


 

Alimony & Support in Divorce

What is the difference between child support and alimony?

Child support is money paid for the support and benefit of the children of the marriage, and alimony is money paid for the support and benefit of a former spouse. The formal term for alimony is “spousal maintenance.”

Does the State of Washington allow alimony?

Yes

How much alimony can I get?

If you and your spouse have agreed on an amount of alimony, the court will usually go along with that amount. If you have not reached an agreement, the judge will determine the amount, if any. There is no schedule for determining the amount of alimony. It is based upon many factors such as the length of the marriage, the relative incomes of the parties, and the needs of the party receiving the alimony. An attorney will confer with you about the appropriate amount of alimony based upon the information you provide by filling out her free information packet/questionnaire.

Am I sure to get the full amount in the papers?

Not necessarily. Alimony usually terminates upon remarriage of the recipient, and the paying party can ask that the amount be modified based upon changes in the financial situations of the parties.

What are the tax effects?

Usually, alimony is included in the taxable income of the recipient and is an income tax deduction to the paying party. If your decree is not drafted in accordance with the Internal Revenue Code, however, you may not get to deduct the alimony.