Dissolution of Marriage (Divorce) in Washington State
Ending a Marriage
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 a specific legal defect. The criteria are very strict and annulment is a very rare proceeding.
A separation may be formalized with a court order called a “Decree of Legal Separation.” 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 physical separation before dissolving a marriage; however, once a petition for either Separation or Dissolution of marriage is filed with the court, the parties are deemed to be legally separated and no longer functioning as a community.
Oral or written understandings concerning property disposition, arrangements for children, maintenance, or other agreements made while separated 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 or resentment. However, this also means that the behavior of a spouse is not considered in the division of property, assets and liabilities.
Jurisdiction can be a tricky issue. You need only to reside in Washington on the date that your petition for dissolution of marriage is filed. However, if your spouse does not live in Washington or the two of you did not live in Washington during the marriage, another jurisdiction may be a better choice for dissolving your marriage.
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. Upon filing, depending on the county, the court may, on its own, without request, issue a restraining order.
These documents are 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 who 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. In Whatcom County, the court will automatically issue a mutual restraining order when a Petition for Dissolution or Legal Separation is filed. This restraining order makes both parties liable for their after-incurred debts and prohibits changing any insurance policies. If children are involved, it also restrains moving the children. Whatcom County requires the parties to attend a parenting class in order to enter a final Parenting Plan.
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.
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 orders to clarify daily expectations or preserve 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.
Temporary orders may be requested by either spouse. These proceedings are initiated by filing papers, a Motion, with the Court that requires the other spouse to respond. A hearing will be held in Court and the Court Commissioner or Judge will make a ruling solely on the pleadings. No live testimony is taken during these proceedings.
If a spouse appears to be acting contrary to a temporary or final court order, the opposing party can bring a “Show Cause” action, also called a contempt action. This action requires the offending spouse to appear before the court and defend why the order in question was not violated.
All issues must be settled in order to finish a case. In Whatcom County, if the parties are not able to reach agreement on their own, it is mandatory that they attend mediation and a pre-trial settlement conference prior to trial. If terms cannot be negotiated between spouses – either between themselves or with the assistance of a mediator – a trial will be held to decide any disputes. Likewise, 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. The trial court’s decision must be reduced to the required forms and approved and signed by a judge. In any case, a marriage is not dissolved until the judge signs the Decree.
The waiting period for a dissolution of marriage in Washington state is a minimum of 90 days. This means the Summons and Petition must be both (1) filed with the court and (2) served upon the other spouse at least 90 days before the judge signs the final decree. This is a minimum period and is intended to allow time for breathing room for the parties to settle into a new normal, negotiate, and, in some cases, reconcile. The process can 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 support money, or otherwise control the conduct of the parties. A property settlement may be negotiated during this period or may, in fact, be arranged before filing the petition for dissolution.
Either spouse may request a name change as part of the final divorce decree. Often, a party will request a former or maiden name be restored. The request for name change should be included in the petition or response. Neither party may force the other into a name change.
Washington law requires a parenting plan in any 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; and
- 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 childï¿½s best interests.
(For more information, see the Parenting Act.)
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 parentï¿½s 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 parentï¿½s 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 childï¿½s college or vocational education expenses, or for a handicapped child. Support may be required as long as the child remains dependent.
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, but is based upon a showing of need by the requesting spouse and ability to pay on the payor spouse.
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.
Division of Property
There is no fixed method for determining how property should be divided. In Washington, all assets ï¿½ real and personal, tangible and intangible ï¿½ 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 (property owned prior to marriage, gifts and/or inheritances) 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; and
- 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.
Division of Bills and Debts
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.
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.
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 accountantï¿½s fees incurred for tax planning and advice in connection with a marital proceeding may be partially deductible.
Service of an Attorney
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. You are most likely to need an attorney if you have children and/or real property (real estate).
Among alternatives to having a lawyer represent each spouse are self-help guidebooks and mediation with the help of a trained professional. The costs ï¿½ and consequences ï¿½ 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. However, the Bar Association specifically prohibits a single attorney from representing both spouses in a dissolution proceeding.