Q & A

Divorce Basics

What is the difference between a Dissolution of Marriage (divorce) and a legal seperation?

In Washington State, there are two ways to end a marital relationship: “Dissolution of Marriage,” which is a divorce, and a process called “Legal Separation,” which is similar to a dissolution, although it does not legally end the marriage.

Dissolution of Marriage.  The main purpose of a marital dissolution is to legally end the marriage.  As part of a marital dissolution, the court may divide property and debts, award maintenance to one spouse (also known as alimony), enter orders restricting one spouse’s contact with the other spouse or the children, change the name(s) of the parties, and, if there are children, enter a parenting plan and order child support for them.

Legal Separation.  Legal separation is similar to a dissolution in that the court may divide property and debts, award maintenance, and enter a parenting plan or order child support.  There are some differences, however.  With a decree of legal separation, the marriage is not dissolved, so neither party can legally remarry unless the decree is first converted to a decree of dissolution.  Also, some federal programs do not recognize a decree of legal separation in calculating benefits.

Most people choose a legal separation as opposed to a dissolution for religious reasons.  If either spouse wants to convert a decree of legal separation to a decree of dissolution, he or she can do so six months or more after the decree of legal separation is signed by the judge.

What am I entitled to in a divorce?

In a divorce all property is divided in a manner that is intended to be fair and equitable. This means that the judge has almost unlimited authority in deciding the proper disposition of assets and liabilities.

Often separate property (such property acquired before or after the marriage, or during the marriage by gift or inheritance to one person) will be awarded to the party that acquired it.  Community property, which is property that was acquired during the marriage that was not gifted to or inherited by one party, is divided. However, in order to achieve an overall evenly distributed result, the court can award one party a larger share of the community property and even the separate property of the other spouse.

What are pre and post nuptial agreements?

A prenuptial (or ‘prenup’) agreement is an agreement made prior to being married, and a post-nuptial agreement is an agreement made after the marriage. The content of a prenuptial agreement can vary widely, but commonly includes provisions for division of property and spousal support in the event of divorce or breakup of marriage.

These kinds of agreements can be disregarded by the courts if it appears they were not made with the full voluntary and informed consent of both parties. For instance, if an agreement was made shortly before a wedding date, or if both sides did not have an attorney involved, the court might assume that one side was pressured into signing the agreement and therefore set it aside.

If you are considering a prenuptial agreement and are close to your wedding date, it can be better to wait until after the wedding and do a post-nuptial agreement instead.

Court Proceedings

Do I need an attorney?

Washington State does not strictly require you to use the services of an attorney in a dissolution case. However, you must use specific forms, and you and your spouse must follow a case schedule that has been issued by the court.

When you choose to hire an attorney, he or she functions as a legal advocate for your interests. An attorney will know your legal rights, know the processes to follow, and know which papers need to be filed.

What if I cannot afford an attorney to represent me?

If you cannot afford to hire an attorney to represent you, you may still be able to afford to have an attorney assist you in representing yourself. You can also hire any attorney to represent you for just a single part of your case, such as to explain your case at one hearing. This is known as a “limited appearance”.

How long does a divorce take?

In the state of Washington, there is a mandatory 90-day waiting period between when the divorce is started and the time when it can be finalized. This is to give both parties a chance to change their minds. A divorce isn’t considered final until the court signs the Decree of Dissolution.

If the parties are able to reach agreement on all issues, the divorce may be finalized soon after the 90 day waiting period, provided the parties are able to present their final orders to the court.  If they are not able to reach agreement within the 90 days, it will have to wait until the parties either come to an agreement or go to trial.

If a trial is necessary, expect generally about a year wait. It primarily depends on the county, but a year can be safely expected.

Custody and Parenting

What is joint custody?

In Washington State, “custody” and “joint custody” aren’t relevant terms. Instead of awarding custody, a court makes parenting plans which define the roles of both parents.

Due to school schedules, typically children will stay at one residence per school week. Weekends, holidays, and the rest are divided appropriately.

Unless there’s a good reason why not, parents will have joint decision making authority on major issues like educational or medical decisions.

What is visitation?

The parent that the children do not reside with the majority of the time is often referred to as having visitation time with the children, even though more correctly that parent simply has a lesser amount of residential time.

Typically this can amount to every other weekend, half of the holidays/school breaks, and several weeks during the summer.

If the parents are living in different parts of the country, visitation time may be limited to school breaks/summer.

This time may be limited, however, if a parent has a history of problems with domestic violence or substance abuse. In the most severe cases, the court may require that the parent’s time with their children be supervised.

What about enforcing a parenting plan?

If a parent violates their parenting plan, they may be held in contempt of the court. This requires obtaining an order to show cause, which then requires the parent to appear in court. This will be to explain why they should not be held in contempt. If the parent is found to be willfully disregarding the plan, the plan may be modified.

If your children are being held by the other party against your plan, you may need a writ from a local court that authorizes police intervention.

Child Support

How does a child support schedule work?

In Washington State the responsibility of supporting the children is apportioned between the parents. Each parent pays their proportional share, based on each parent’s income, of the estimated cost of raising the children. Generally these payments are once per month.

This typically means that the non-primary residential parent will pay their share of the estimated cost of raising the children to the primary residential parent, and the primary residential parent adds some of their own funds to meet the children’s expenses.  The estimated cost of raising the children will be determined using a state developed worksheet.

Extra expenses that are not covered by the basic child support obligation, such as daycare, are divided between the parents according to the same percentages of combined income.

How are child support payments enforced?

Most child support is paid through the Washington State Department of Social and Health Services, Division of Child Support.

By default, child support is generally collected through wage garnishment. If a parent is found to be willfully avoiding paying support, they can even be held in contempt of court and jailed. Thus, if you are having trouble collecting child support, you may wish to contact your local support enforcement office to see what can be done. An attorney may also be able to assist you in resolving the matter privately.