Answers to common legal questions in Family Law, Divorce, Estate Planning, Business Incorporation and Business Law and Arbitration in Kitsap County and Washington State.
Divorce and the Law
Do I have some right to the other party’s pension?
It depends. Retirement or pension benefits, including 401(k) plans that are earned during the marriage, are community property in which both spouses in a marriage have a legal interest. If a pension was earned both before and during the marriage, the portion of the pension earned during the marriage (and the increase in value of that portion) is community property. Some disability benefits that substitute for pension benefits may also be community property in which both parties have an interest. If you believe that your spouse has a pension (including a military pension), 401(k), IRA, or other retirement or disability plan, talk with a lawyer about what rights you may have to the pension. You may be able to get an order entered, called a Qualified Domestic Relations Order (QDRO), under which the other party’s pension plan will pay benefits directly to you after the other party retires.
The other party had an affair that caused our dissolution. Since the dissolution is the other party’s fault, should the court give me more of the property?
No. Washington is a “no-fault” divorce state. The court may not consider which party “caused” the dissolution when deciding how to divide the property. However, the court may consider the conduct of the other party if that party wasted assets from the marriage or domestic partnership without the other party’s consent, or if that party tried to hide assets from the court.
I am not working right now. Will the other party have to pay to support me?
Maybe. Spousal Maintenance (formally alimony) is a payment that one party makes to the other to provide financial support. Maintenance is not automatically awarded to either party. The court looks at several factors, including:
• length of the marriage or domestic partnership;
• financial situation of both parties given the division of property and debts,
• The asking party’s need for financial assistance and the other party’s ability to pay maintenance;
• time it will take for the party asking for maintenance to get education or training;
• standard of living during the marriage or domestic partnership; and
• age and health of the party asking for maintenance.
If you have been unemployed for a long time (example: you stayed home to care for the children), the court may be more likely to award you maintenance than if you have been laid off temporarily. On the other hand, even if the party seeking maintenance is capable of working (or is working to support him/herself), the court may still award maintenance to that party if awarding maintenance will help that party enjoy the standard of living that was usual during the marriage. The court uses maintenance “not just as a means of providing bare necessities, but rather a flexible tool by which the parties’ standard of living may be equalized for an appropriate period of time.” You are more likely to be awarded long-term or permanent maintenance after a long marriage and if you are disabled and/or stayed home to care for the children while the other worked and you are therefore less likely to be able to get a well-paying job. Unless the Decree of Dissolution states otherwise, maintenance payments end when the person receiving the payments remarries or dies.
Important Information about Community Debts
You may end up paying a debt even if the other party was ordered to pay it. As part of the final Decree of Dissolution, the court will order one or both parties to pay any debts that the parties owe. This includes your mortgage, any car loans, credit card debts, utility bills, back taxes, etc. Even if the court orders the other party to pay a particular debt, the creditor (person to whom the debt is owed) may still come after you to collect any community debts. You will not be able to stop the creditor from collecting from you by telling that person that the other party is supposed to pay. If the other party fails to pay the debt and you end up paying it, you will need to sue the other party in court to force the other party to pay you back. If you think that this might be a problem, make sure that you include the “hold harmless” provision in the Decree of Dissolution (paragraph 3.6, second box). Then, if you must sue the other party to force him/her to reimburse you for debts you paid, the other party will be required to pay your attorney’s fees and costs as well.
The other party may try to get out of paying community debts by filing for bankruptcy. If the other party files for bankruptcy after your Decree of Dissolution is entered, the bankruptcy court may relieve the other party of paying for those debts. If the other party files for bankruptcy, you should get notice of it. Talk immediately with an attorney who is familiar with bankruptcy law about your rights. You may need to participate in the bankruptcy case in order to protect yourself.
Child Support and Custody Issues
Who needs a Parenting Plan?
If you and the other parent have one or more children together who are less than eighteen years old, you must have a parenting plan. If you were served with a petition and a parenting plan by the other parent and disagree with what the other parent is asking for, you need to file your own parenting plan so the court knows what you want. The court may enter a temporary parenting plan (that will cover the period while the dissolution is pending) and will enter a permanent parenting plan when your dissolution is finished.
Who will get custody of our children?
In Washington, the courts do not use the words custody and visitation when talking about how much time each parent spends with a child, but will talk about the residential schedule and decision-making authority for the children.
As part of your dissolution, you must have a Parenting Plan. The Parenting Plan must include the following:
• which parent the children will live with the majority of the time, or whether they will live with each parent half of the time
• how much time the children will spend with the other parent
• who will make decisions about the children’s schooling, medical care and other issues, and
• how the parents will resolve disagreements about the children in the future.
If the parents cannot come to an agreement for any provision in the Parenting Plan, the court will make the decisions.
How does the parenting plan affect my rights to see my children?
After a judge or court commissioner signs a parenting plan, it is a court order. Both parents are required to follow it. If you do not follow the parenting plan, you could be found in contempt of court or even prosecuted for custodial interference unless you have a good excuse. A good excuse for not following an order would be if following it would cause serious harm to you or the child. Even in that situation, you cannot simply refuse to follow the court order. You must return to court to ask for a change in the order. Therefore, if you do not want to follow part of a parenting plan that has been ordered by the court, you should get the permission of the other parent in writing or contact an attorney. You should file an action to modify the parenting plan as soon as you can so that a new and more appropriate schedule is approved by the court. If you believe your child may be in danger, one option is to contact Child Protective Services, State of Washington Department of Social and Health Services (CPS).
What is child support?
Child Support is money paid by a parent to a party taking care of the children (usually, the other parent) to help support the children. The parent usually must pay child support monthly. The amount is based on the Washington State Support Schedule. It is set by taking into consideration the children’s needs and both parents’ incomes.
A parent has a legal duty to help support his/her children. In most dissolution cases, the non-custodial parent will be required to pay child support to the other parent. Even if the parents each have 50% of the time with the children, one parent may be required to pay support to the other if there is a big difference in the amount of each parent’s income.
A stepparent may also have a legal duty to help support his/her stepchildren until a dissolution from the child’s parent is final or until there is an order relieving the stepparent of this obligation.
How is the child support amount established?
Child support is calculated based upon the income of both parents and the number and ages of the children, using the Washington State Child Support Schedule. You should read through the Schedule to understand all of the factors that the court will take into account when setting support.
The Schedule works somewhat like an income tax table. The court figures out each parent’s income, adds it together, and finds the amount of support on the Schedule that applies to the number and ages of children that you have. Washington started using this schedule to try to ensure that children get enough support to meet their needs, and that parents who make similar amounts of money across the state pay or receive similar amounts of support.
The court’s main concern in setting child support is to make sure that your children have enough money to meet their needs. Support is not only for clothes and food, but to give the children a place to live (rent/mortgage and utilities) and assure they have adequate daycare and medical care. If the parents do not have enough money to meet the children’s needs, the court also takes into account parents’ ability to pay. Both parents may also have to share costs for uninsured health care, day care, school tuition, extracurricular activities, and long distance visitation expenses. How much each parent pays will be determined in proportion to their incomes and by considering the number of children living with them. The court may also award the federal income tax exemptions that each party is entitled to claim
Wills And Estates
Do you need a Last Will and Testament?
The answer is YES, if you want to do any of the following:
- leave your property to specific people or organizations,
- name a personal guardian to care for your minor children,
- name a trusted person to manage property you leave to minor children, and/or
- name a specific person to make sure that the terms of your will are carried out.
What happens if you die without a will?
If you die without a Will in Washington, your property will be distributed according to state “intestacy” laws, which gives your property to your closest relatives, beginning with your spouse and children. If you have neither a spouse nor children, your grandchildren or your parents will get your property. This list continues with increasingly distant relatives, including siblings, grandparents, aunts and uncles, cousins, and your spouse’s relatives. If the court exhausts this list to find that you have no living relatives by blood or marriage, the state will take your property.
Other Frequently Asked Legal Questions
Do you know of a man who is planning to move in with his significant other?
- They’ve talked about where to live.
- They’ve talked about how to divide responsibility for the living expenses.
- They’ve talked about which furniture they will use.
- Now they need to talk about what to do about the furniture and other things they buy while they are living together.
- If they are buying a house, they need to talk about who “owns” the home.
- There are many aspects of living together that create legal obligations between two people, they should know what they are getting into to make educated decisions.
- Please have them call or email me for a legal consultation.
Do you know a couple who is planning a marriage that will result in a blended family?
They’ve talked about where to live and whether to have more children, but they need to talk to an attorney about mixing their assets and ensuring that they understand the ramifications on their separate children.
Please have them call or email me for a legal consultation.
When you find out that your friend or acquaintance has decided to divorce or legally separate:
They’ve tried, they’ve fought, they just can’t live together any more.
They both have rights and responsibilities – they need to know these things to make educated decisions.
Please have them call or email me for a legal consultation.
Is your Parenting Plan outdated?
- Have the children changed schools?
- Are the little kids now teenagers?
- Do the children participate in significantly different activities than they did when the current parenting plan was signed?
- Has either parent moved out of the school district or county?
Do you know of a mom who needs help with Child Support?
It’s amazing how often a parent doesn’t want to pay child support to the other parent of their child. It’s usually not because they don’t love their child, but that they don’t trust the other parent. If you find out that someone needs help with getting child support, please have them call or email me for a legal consultation.