Family Law

     

Pre-separation issues:

  • Property - In Washington, which is a Community Property State, both spouses have equal management rights with regard to personal property such as joint bank accounts or joint credit cards.  This means that without a restraining order, either spouse may withdraw money out of a joint account or run up credit cards for which the other spouse may be responsible.  The best protection against this is a preemptive withdrawal of a fair share of the accounts, closing joint credit cards and/or obtaining a restraining order.

  • Children -  If custody of your children is to be an issue in your family law case, you should know that judges tend to preserve the status quo.  If the children have been living with you and you have been taking care of the children when you go to court, you are much more likely to end up with custody.  Those who want custody should usually not to move out of the family home and leave the children behind.  Judges often take a dim view of those who unilaterally uproot their children, taking them to a new location.  There may be times when such a move is unavoidable, but it is usually best to have the court establish a parenting plan first.

  • Restraining Orders -  If there has been domestic violence in your home, which includes threats of physical harm, or if there have been threats to take the children out of state, or take money out of an account, the court may be able to issue immediate restraining orders.  Restraining orders can order that one spouse vacate the family home.  

    

Dividing Property and Debts --

  • Equitable, not Equal -  The legal standard for the division of community property in Washington is that the result be fair and equitable.  This does not necessarily mean equal.  Often where one spouse has a much higher earning capacity or may have substantial separate property, the court will award a disproportionate amount of the community property to the other spouse in an attempt to bring them into financial parity.  While the courts have the power to award one spouses separate property to the other spouse this is highly unusual.  In Washington the property you have before marriage or acquire during the marriage by gift or inheritance is your separate property.

  • Pensions and Retirement Accounts -  In either a Dissolution of Marriage or a Decree of Legal Separation the court will divide retirement accounts.  For funds such as a 401k the account can be divided into two separate 401k accounts.  For a defined benefit pension the court can enter an Qualified Domestic Relations Order which identifies a certain portion of the pension as belonging to the non-employee spouse so that when the pension begins, the plan administrator will automatically pay that portion to the non-employee spouse.  

  • Debts - The court will allocate existing debts between the parties.  It is important to note however that a Decree of Dissolution does not bind the creditors.  If the court orders one spouse to pay a debt and they do not, the creditor may sue both spouses.  If the spouse who was not ordered to pay the debt in the dissolution is forced to pay the debt to the creditor, that spouse's remedy is to sue the former spouse who was ordered by the Family Court to pay the debt for reimbursement.  This is not always an effective remedy.

    

Parenting Plans -

  • Temporary Plans - Rather than simply awarding custody of children to one parent, the courts enter a parenting plan which provides a residential schedule for the children.  The plan will set forth the days and times the children live with each parent.  The plan will also allocate decision making authority between parents.  If there are concerns about the unfitness of either parent, the plan may impose limitations that parent.  The most important factor in awarding a Temporary Parenting Plan is which parent has provided the majority of the parenting functions during the last twelve months.

  • Permanent Plans - The most important factor in awarding the Permanent Parenting Plan is the quality of the relationship between the parent and the children.  The courts want to know to which parent the children are more closely "bonded".  "Joint Custody" or "Split Custody", where the children live half the time with one parent and half the time with another, will usually not be ordered unless there has been a pattern of joint custody in the past that has been effective or the parents agree.

  • Planning for Parenting Plan Litigation - I advise any parent who plans to engage in litigation over a parenting plan to keep an ongoing journal.  Write down your interactions with the child, problems you have with the other parent and concerns you have about fitness, substance abuse or other issues.  You should also contact friends, family and others who know you and your children and find out if they are willing to testify in person or in writing on your behalf.

    

Child Support - 

  • Child Support Schedules -  There is no "basic" child support amount.  There is a complicated child support schedule that has been adopted by the state legislature.  In order to determine child support it is necessary to plug the net incomes of both parents into the formula along with other information such as health insurance premiums and day care expenses.  Once this is done the schedule yields the "standard calculation" that will be used by the court absent some limited reasons to "deviate" from that amount.

  • Modification of Support - Once support is established it may be modified at least every two years.  It may be modified before two years, but only upon a showing of a substantial change in circumstances or other similar equitable basis.  If you ask the same court that granted the original support order to modify it, you may be able to have that done with a simple motion hearing.

    
              

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