click on the following links for more information on these topics:
- what is a divorce?
- what is a legal separation?
- what is an uncontested divorce?
- what am i entitled to in a divorce?
- what do we do about community property?
- how are property and debts divided?
- will i have to pay spousal support?
- what about restraining orders?
- what about name changes?
- what if domestic violence is involved?
- what about paternity?
- what are pre and post nuptial agreements?
- what are domestic partnership issues?
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divorce is the process of terminating a marriage when people find that they are no longer capable of living together as a couple. this may involve some or all of:
- separating property and debts
- establishing child and spousal support obligations
- making parenting arrangements
- obtaining restraining orders
- changing names
washington is a no fault state, which means no wrongdoing needs to be proved in order to be entitled to a divorce. either person may file a petition for divorce.
if the couple is in agreement about the terms of the divorce, there is still a minimum period of 90 days from the time the case is started before the divorce can be final. if the couple is unable to reach an agreement, a trial may be needed to have a judge determine the terms of the divorce. the time it takes to reach trial varies from county to county, but around a year is fairly typical.
a legal separation is basically the same as a divorce except that when it is over, the couple are still married even though they are no longer a couple.
a legal separation goes through the same process as in a divorce. the same issues are involved as in a divorce: separating property and debts, establishing child and spousal support obligations, making parenting arrangements, and obtaining restraining orders. as in a divorce, a trial may be needed if the parties are unable to agree on the terms of the legal separation.
after a period of six months following the finalization of the legal separation, either party can convert the legal separation to a divorce by making a motion to the court. generally this is a simple step as the division of assets, debts and responsibilities has been worked out already in the legal separation.
what is an uncontested divorce?
an uncontested divorce means that the parties agree on all issues such as division of property and debts, spousal support, child support, and parenting arrangements as applicable. not only does uncontested divorce help each save money on attorneys fees, but it lessens the emotional upheaval as well.
an uncontested divorce may also occur when the responding party, meaning the person who did not start the divorce, fails to file a response to the a petition for dissolution. in that case the person who filed the case will be able to obtain an order of default and complete the divorce without the other party's participation.
once the 90 day waiting period has elapsed, one party or the other must present the final orders to the court for signature in order to complete the divorce.
what am i entitled to in a divorce?
in a divorce all property is to be divided in a manner that is fair and equitable. that means that the judge has almost unlimited authority to decide the proper disposition of assets and liabilities.
often separate property, 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, while community property, property that was acquired during the marriage that was not gifted to or inherited by one party, is divided equally. however, in order to achieve an overall fair result, the court can award one party a larger share of the community property and even the separate property of the other spouse.
the court may also award spousal support, a name change, and continuing restraining orders. if there are minor children, the court will also determine appropriate child support and parenting arrangements.
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what do we do about community property?
washington is a community property state. community property belongs to both parties. community property is property that was acquired during the marriage that was not gifted to or inherited by one party. however, if the couple lived together before the marriage that may also be considered part of the community period.
property that is not community is the separate property of one of the parties. property will generally be presumed to be community if you cannot prove that it is separate. property can also be partly separate and partly community, such as with an ira that was contributed to both before and during the marriage.
community property is generally divided between the parties, although where the court deems it appropriate a larger share may be given to one spouse, particularly where that spouse has a significantly smaller potential income than the other spouse.
how are property and debts divided?
in a divorce all property is to be divided in a manner that is fair and equitable. that means that the judge has wide discretion in deciding the proper disposition of assets and liabilities.
separate property and debts will usually be awarded to the party that acquired them, while community property and debts will normally be divided equally. however, in order to achieve an overall fair result, the court can award one party a larger share of the community property and even the separate property of the other spouse. the relative incomes of the parties may be considered in deciding what is an overall fair result.
generally individual assets and liabilities are not split in two more than is necessary, but rather some are awarded to one party and others to the other party. there is often one asset that is divided between the parties in percentages that balance the overall division.
will i have to pay spousal support?
spousal support, sometimes also called alimony, is a payment one spouse pays to the other spouse for financial support. spousal support is often used to balance, to some degree, the financial positions of the parties after divorce.
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it is normally not permanent, but is ordered for a period of years depending in part on the length of the marriage. the period and amount may also be affected by the division of assets as well as medical conditions which interfere with the receiving spouse's ability to earn income.
as with child support, failure to pay spousal support can result in legal action against the responsible party. in some cases the court may mandate wage garnishment in order to collect payment.
what about restraining orders?
restraining orders are court rulings that prohibit certain actions under penalty of law. these can be orders which require one person to stay away from another person or even avoid contact with the other person.the restrained person can be arrested for violating these orders.
restraining orders can also be used to prevent the parties from getting rid of assets, changing insurance policies, or moving children out of the area while the divorce is pending.
protection orders and anti-harassment orders are forms of restraining orders that can be obtained outside of a divorce proceeding when there has been violence or threats of violence between people. if you have been the victim of domestic violence, contact your local court to find out how to obtain a protective order.
when a relationship ends in divorce a person often wants to reinstate the name he or she, but most commonly she, had prior to the marriage. in most cases a person has simply started using a spouse's name without having their name legally changed, which means that person can simply go back to using their given name when they choose to do so.
at the same time, it may be useful to have a court order showing the pre-marriage name has been reinstated where the married name has been used in land or car title records, social security records, etc. if this is the case the name change should be requested in the petition or response and included in the decree of dissolution.
sometimes children's last names may also be changed
sometimes children's last names may also be changed if the court finds it to be in their best interests.
what if domestic violence is involved?
if domestic violence occurs, call 911 immediately.
restraining orders to keep the other person away from you may be obtained in several different ways. if there is an arrest for domestic violence, the criminal court may require the accused person to stay away from the victim. a victim of domestic violence may also seek a protective order through their local court. finally, as part of a divorce action a person may seek both temporary and continuing restraining orders.
if the restrained person violates the restraining order they may be subject to arrest.
if a restraining order is in place, the protected person cannot waive the restraint without having it dismissed by the court. in other words, if there is a restraining order against you, you may be subject to arrest if you violate the order even if the protected person has invited you to be with them.
if you have a child with someone you are not a married to, then you may need a paternity action to legally establish the identity of the father of the child. you may be able to get help with this process through the county prosecutor's office, or you may file your own action with the court.
a dna test may be required to establish whether the presumed father is the actual father of the child. dna tests do not give absolute answers, but identify the odds of paternity.
if an acknowledgement of paternity has been signed by both parents and filed with the state, then it may not be necessary to establish the father of the child, but a parentage action may still be needed to obtain a parenting plan and order of child support.
what are are pre and post nuptial agreements?
a prenuptial agreement is an agreement made prior to marriage, and a postnuptial agreement is an agreement made after marriage. often couples like to make agreements early in their relationship determining their rights and responsibilities as to property and debts. this can help them make decisions about management of those assets and liabilities during the marriage, as well as make division of the community easier if the relationship does terminate at some point in the future.
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for instance, there may be a need to maintain a business as separate property so that the breakup of the marriage will not adversely impact the continued operation of the business. there might also need to be an agreement that offsets that separate property agreement with some other provision that provides for the other spouse in a different way.
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 may assume that one side was pressured into signing the agreement and therefore set it aside.
if you are considering a prenuptial agreement but are close to your wedding date, it may be better to wait until after the wedding and do a postnuptial agreement instead.
what are domestic partnership issues?
domestic partnership issues are the legal issues concerning couples (“partners”) who are unmarried. these couples may be of the opposite sex, who have simply chosen not to marry, or they may be same-sex couples who may not marry under the current state of the law. seattle divorce services is committed to serving unmarried clients with respect, and we are dedicated to serving members of the glbt community.
the legal issues for unmarried couples may include:
- prenuptial or “living together” agreements to define the rights and responsibilities of each partner regarding property, debt, and other financial issues as the parties choose
- separating property and debts as partners leave the relationship
- dissolving a registered domestic partnership in court
- establishing legal parental relationships with children of the relationship, through second-parent adoption, paternity, de facto parentage, or through establishment of a parenting plan
- establishing child support orders for children of the relationship
- resolving property, debt, and parenting and child support issues either in court or through settlement agreements
- participating in mediation or arbitration to address any of these issues
- obtaining protection or restraining orders for an unmarried partner who has survived domestic violence or is otherwise at risk from the other partner
- advising clients of their rights as the legal landscape regarding domestic partnerships changes in washington state, and across the country
the legal issues for unmarried couples can be even more complex than those of married couples, as the law in this area is changing rapidly. it is possible to address the above issues in court if necessary, or through mediation, arbitration, or more collaborative means, depending on the needs of each client.
unmarried or gay, lesbian, bisexual, or transgendered individuals may have specific concerns or fears about taking their issues to court: will their issues be taken seriously, and will they and their families be treated with respect? with assistance from our family law attorneys, the answer to both questions is “yes.” our attorneys are uniquely qualified to advise clients about the various options, and help unmarried or glbt clients choose the avenue for resolution that is right for them.
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