The Divorce Process: An Overview

The Timeline  

Both Divorce and Legal Separation require 91 days before final papers can be entered.  This is considered to be a reflection or cooling off period so rash decisions are not made.  In King County, the date of trial is generally set at one year from the date of filing.

Discovery is the process of securing information from other parties and witnesses.  It can be written (Interrogatories or Requests for Admission) or oral (Depositions) or include examination by doctors or other professionals.  Discovery can begin 30 days after filing and it ends 30 days before trial.  When trial is set the Court provides a detailed case schedule of events prior to trial.  For example parties must complete a settlement conference on all issues at least 28 days before trial.

The Petition

Divorce or Separation require filing a Petition and proof that the Petition was received by the other party.  Petitions are found in the Resource section of this website.  Divorce requires a Petition for Dissolution and a Legal separation require a Petition for Separation.  The end result of both is to divide all property and debt and resolve support and parenting.  A Decree of Separation does not end the marriage.  A Decree of Dissolution does.  Thus parties to a legal separation cannot remarry.  There are reasons for not seeking a full divorce.  A Petition for legal separation can be converted to a Petition for Dissolution but this restarts the 90 day minimum time period.

Areas covered

Both Divorce and Separation address valuation and division of property and debt,  spousal maintenance,  child support,  parenting,  and attorneys fees and costs.  Washington is a community property state so all things earned or created by effort and all debts incurred are considered to be community property and will be divided equitably. Equitable does not mean equal.  It means fairly in light of the parties circumstances.   Since the result is based on individual parties circumstances, the outcome depends on those circumstances.  Thus, there are no simple formulas to predict the outcome.

Filing Material In Court

Materials filed in Court are public record which means that any member of the public can review them.  Courts do allow some materials to be filed “under Seal” which means it will not be available to the public.  Court orders and most pleadings cannot be sealed but personal financial information, personal healthcare information and information regarding the children can be sealed for the protection of the parties and their children.

The Temporary Hearing Process

Courts are available to settle temporary matters such as who remains in the home, temporary child support,  use of vehicles and property,  maintenance, attorneys fees, and parenting.  Per King County Local Rule, hearings occur 14 days after filing the motion.  The other side must provide their response by noon four days before the motion and you must provide your reply by noon two days before the motion.   Commissioners often have two or three feet of pleadings to read before each day of hearings.  Thus,  timely and concise pleadings are important because pleadings that are late (or beyond the page limit) will not be read.

If you seek any form of financial relief ( e.g., child support, maintenance, marital debt payment,   or attorneys fees)  a detailed Financial Declaration must be filed with extensive backup documents required by King County Local Family Law Rule 10  (LFLR 10).  The Financial Declaration is the backbone of your financial credibility to the Court so it should be done carefully and truthfully.  When submitting tax returns, bank statement and other information  with personal financial information care should be taken to redact account numbers, social security numbers and related information.  As a general rule personal financial records should be filed under seal.  If you are submitting financial records to rebut the other side take care to remove all but the last four digits of account and social security numbers.

Washington abolished the concept of legal “custody” in 1987 in favor of “residential time” for each “parent”.  To determine who does what regarding the children a Temporary Parenting plan  must be either be agreed to by the parties (if they are mediating or collaborating) or submitted to the Court along with a Declaration in Support of the Parenting plan and other information and decided by a Commissioner or Judge.    The Declaration in Support of Parenting Plan seeks a detailed history of each parents performance of parenting activities during the prior six months and other information.

Temporary orders are not final orders.  Normally they remain in effect until trial.  However, if there is a change of circumstances or new information then new temporary orders can be sought.  At trial, the Court is not bound by temporary orders but most Courts pay close attention to prior court orders and do not change them unless there is significant reason to do so.

Domestic Violence

Domestic violence is a serious problem which courts have taken serious steps to prevent.  Any spouse or domestic partner can seek a protection order.  The process is independent of, and may not lead to a divorce.  Hearings are held on a separate calendar and rules of evidence are relaxed so the Court can secure as much reliable information as possible before deciding what to do.  If there are domestic violence issues in a divorce the Court will often consolidate the actions so one judge hears both issues.

Domestic violence does not require physical violence.  It can occur where there is a pattern of intimidation,  verbal abuse or other inappropriate uses of power.

Domestic violence comes in many forms and some are more serious than others.  At the least serious end is separation-related violence which is commonly understood as a one time event that most likely occurs at the point of announcing the bad news.  It is unlikely to recur and so it is not likely to be a future concern.  At the other end of the seriousness spectrum is chronic domestic violence involving multiple events over multiple years.  This is far more likely to recur and thus is a great concern to the court and is a basis for restricting access to children.

Mediation should not be used where there Domestic violence has been or will be a threat.  If you are afraid of retaliation by your partner then mediation is not advisable unless special arrangements are made.

Where there is a prior pattern of threats and intimidation careful safety planning measures should be put into place before any legal action is taken.  Court personnel or private evaporators  can be asked to do a domestic violence assessment and treatment programs can be considered.  King County has many skilled treatment providers for those with anger management issues.

The Discovery Process  

Discovery is the process by which information is sought from the other party.  It can be sought by written questions (Interrogatories),  written request for documents (Requests for Production), written requests to affirm or deny specific facts (Requests For Admission), oral questions and answers in front of a Court Reporter  (Deposition) or examination by an expert.

In mediated or collaborative cases the discovery is secured by agreement.  Quite frequently there are questions that neither party has the expertise to answer (such as residential time for the children or the value of a business) where experts are hired to make a report.  Parenting evaluators are usually highly skilled clinicians who have been specifically trained to do this work.  the will give each party a battery of basic psychological tests, meet with you, your spouse and the children and confer with a limited number of your references.  The result is generally a report that surprises both parties on some issues and confirms concerns on others.  Courts tend to give great weight to a parenting evaluation that is well done.  CPA’s and financial planners are important for valuing businesses and determining the future financial needs of parties.  They can be very helpful in resolving a case.  In mediation and collaboration, experts are used informally to assist the parties to better understand parenting and financial issues.

Property and Debt

Generally speaking Property is what you own or have rights to use. The term “real property”  concerns land and structures thereon and the term “personal property” concerns all the rest.  Both parties have a duty to bring all  “real” and “personal” property before the Court for division and any property that is hidden can be awarded mostly to the other side depending on the circumstances.  It is important to carefully inventory all items of significant value. A fair division of property requires a full disclosure of property and full disclosure includes the value of the property.  Property acquired by gift or inheritance may qualify as “separate property’.  Separate property usually (but not always) is awarded to owner.

Retirement assets can often have community and separate components so care must be taken to value them properly.  If you have been married for more than ten years you may qualify for Social Security benefits in the future based upon your spouse’s average earnings or yours.  

Like property,  debts are either “community” or “separate”   must also be fully disclosed. The term “community debt” refers to debts on community assets or where both parties are liable.  “Separate debt” usually attaches to separate property where only the spouse with the separate property is liable.

Child Support and Post Majority Support

Child support is the Court’s best estimate about how expenses for the children should be shared.  Determining basic support begins with determining the incomes of both parties and then using a table (the Support Schedule and Support Worksheets)  of the needs of average children at that income level and family size.  Links to the Support Worksheets can be found the Resource section of the website.

The income ratios of the parties determine the amount each should contribute towards the children’s needs.  It also usually determines how the parents will divide support related expenses such as extracurricular activities important to the children.   The expense of maintaining two households can reduce parents’ capacity to maintain the  extracurricular activities they funded while together.  Choices must be made to determine what activities can be funded in the future.

Post secondary support is for children who remain dependent after high school and for those who attend technical schools and college.   Children who lack the capacity to provide for themselves are entitled to some continuing parental support.

Parents with college bound children may consider making monthly payments into a 529 or Guaranteed Educational Tuition (GET) plans www.get.wa.gov  every month so that significant funds are set aside by the time the children reach college age.  GET is a State based program.  Every year they publish planning charts for long term contributions. http://www.get.wa.gov/documents/benecustom.pdf.   These units can be transferred and used by other children or revert to the parent when the children have graduated.   While the law allows parents to defer making college contributions until late in high school, failing to put money aside can leave you without the funds your children need for applications and other expenses.   Planning now preserves opportunity in the future.

If there are disputes over college contributions then be sure to seek college support before the child graduates.

Maintenance

Maintenance is support for the spouse who lacks the present capacity to provide for him or herself.  Where one party is the primary home maker they often often sacrifice their earning capacity to provide for the children.  Maintenance is intended to return the spouse to economic self sufficiency.  Long term maintenance is more likely in long term marriages or when a parent’s earning capacity is impaired.

Parenting Plan Creation   

In 1987 our Legislature passed a major reform of family law.  The concept of one parent having custody and the other having visitation was ended in favor or each parent having residential time.  Instead of having a brief order noting custody and visitation the Legislature found that families should, for the children’s sake, make care plans for how to care for the children.  By spelling out the details,  they hoped that families would need fewer trips to court.  If you have children you must have a Parenting Plan.  A temporary plan is needed early in the process and a final Plan is adopted in the end.  The plans detail the division of residential time,  holidays, special occasions and vacations and then address parental duties, transportation, dispute resolution.

Parents need not follow this plan terms.  They can agree to other methods but if a problem develops then the written terms should be followed.  If parents wish to change a term it must be done in writing with the same formality by which a parenting plan is made.   parenting plans also focus on a number of behaviors  (domestic violence, addiction, abusive use of conflict,  etc) that limit the capacity to parent.  If such grounds are found then parenting can be restricted.  Some parents see this as a challenge to change troublesome behaviors and they succeed in removing the limits.  Instead of declaring the parent “unfit” the law focuses upon the behaviors that make the parent unfit and thus gives the parent a strong incentive to reform themselves.

Final Papers and Finishing the Process

A divorce, legal separation or parentage action all require entry of two documents if there are no children.  These are the Decree of Dissolution  and the Findings of Fact and Conclusions of Law.   If there are children the three more documents are required:  A Final Parenting Plan,  a Support Order with Worksheets and (in King County) a Certificate of Completion of the Parenting Seminar.

Post Divorce Issues

If the divorce concerns only property then  there are few issues other than addressing the property and debt division.   If assets are discovered later that were hidden then the Court will divide them and often in a fashion that makes the non-disclosing party pay for the costs of ending the non-disclosure.  Otherwise property awards are rarely modified.

Child support, parenting and maintenance are subject to modification because needs and ability to pay change.  Children develop and new expenses must be faced.  Parents face relocation to keep their jobs.  Parents remarry other parents and new dynamics emerge that may require mediation, collaboration or the assistance of the court.  these issues are discussed in more detail below.

Support Adjustment and Modification

As children grow their costs change.  The high daycare costs of early years may yield to costs of lessons, sports and other extra-curricular activities.  Parental capacity to pay changes  especially if parents remarry into another family with children.  Every twenty four months support can be adjusted without showing of the need for a modification.  If there is a significant change in needs of the children or capacity to pay then support might be subject to modification but this requires an initial hearing to determine if a modification is warranted.

The  central problem is the cost of determining what amount of support is fair. For many decades the amount was difficult to predict because there were no clear standards and support was set after a full court hearing.  Every judge ruled their own way.  Over time it became clear that the cost of such hearings drained thousands of dollars away from parents that could have otherwise been spent on the children.   Thus our Courts began to adopt guidelines for paying support such that the amount of support, in normal cases, could be predicted so the cost of full hearings could be avoided.  In King County the Prosecuting Attorney routinely assists a parent to adjust support at no cost to the parent.  This is done on a special calendar usually requiring only one hearing.  It is a wonderful service for parents.

The law regarding Support Modification and Adjustment is RCW 26.09.170 and can be found at  http://apps.leg.wa.gov/rcw/default.aspx?cite=26.09.170.

The need for support  is based upon a federal determination of cost of living by region and then adjusted by the number and age of children and a host of other factors. This amount is then divided between the parents according to their capacity to pay.  To arrive at the presumed level of support  our law provides a detailed formula and worksheets.  Income is carefully defined (or imputed) and specific deductions from income are  defined.

Our child support calculator can be found at https://fortress.wa.gov/dshs/csips/ssgen/.  The worksheets and economic table for determining child support can be found at  http://www.dshs.wa.gov/pdf/esa/dcs/wscss_pamphlet.pdf.   A more reader friendly explanation can be found from a summary by the Northwest Justice Project at http://www.washingtonlawhelp.org/files/C9D2EA3F-0350-D9AF-ACAE-BF37E9BC9FFA/attachments/392E3CD0-E24B-4AAF-235C-3DE96A11FE23/3816en.pdf.

Relocation

We are a transient society.  Jobs are no longer permanent and careers often require us to move to new locations.  This can create significant chaos for children who will rarely be able to see the parent who used to live near by.

Generally speaking relocation within the school district is not a problem.  Moving further requires consideration of eleven statutory factors and providing the non-relocating parent clear notice and opportunity to respond.

A good overview of the law can be found at  http://www.washingtonlawhelp.org/issues/family-law/relocation.  The statutory forms can be found at  http://www.courts.wa.gov/forms/?fa=forms.contribute&formID=6.

Modification of Maintenance

Washington law allows modification in limited circumstances where there has been a significant change of circumstance.  The statute addressing this is RCW 26.09.170:
http://apps.leg.wa.gov/rcw/default.aspx?cite=26.09.170.   Modification for  the payor of maintenance is more likely where earning capacity is substantially reduced due circumstances beyond the payor’s control.   Modification of maintenance for the payee often relies upon finding an unanticipated change in circumstance for the payee that significantly limits their prior capacity to provide for  themselves.

Maintenance can only be modified during the term of payment.  If a disaster occurs after maintenance payments have stopped then the court does not have jurisdiction to be involved.  Maintenance ends upon the death of the payor or the remarriage of the payee. The only way to stop this is to clearly agree in writing in the final papers that this will not be the case.

Modification of Parenting  

No one can predict the future needs of a family.  The needs of  the children will change as will the capacity of the parents to parent.

There is no option to adjust the terms of a parenting plan every 24 months like there is for child support but there is an option to do an “adjustment” of parenting where the change in overnights is 25 days or less and the primary parent is not changed.  There are dozens of reasons to modify parenting plans from changing needs of children, to military deployment to failure to exercise residential time.  Our law is child-centric.  It presumes that parents should stay the course unless the change would truly benefit the child and the circumstances of the child and non modifying parent have significantly changed.

The statute addressing parenting plan modification is RCW 26.09.260 and can be found at http://apps.leg.wa.gov/rcw/default.aspx?cite=26.09.260.

The mandatory forms can be found at  http://www.courts.wa.gov/forms/?fa=forms.contribute&formID=32.

An overview of the law can be found at  http://www.washingtonlawhelp.org/issues/family-law/parenting-plans-residential-time?channel=legal-information&category=parenting-plan-modifications.

Appeal of Trial  

An agreed divorce or separation is not subject to appeal except for very unusual grounds such as fraud or other material misrepresentation.   Final Court decisions are subject to appeal as a matter of right.  Temporary court decisions are subject to appeal upon the discretion of the Appellate Court.  Appeal is proper to consider in exceptional circumstances.   Prior to appeal you should consider seeking reconsideration of the ruling by the Court pursuant to Civil Rule 60 or 59.  This may help you better understand the Courts reasoning if it does not agree and thus clarify what it is that you are appealing.

Where this process will lead is often dependent upon how things go, the way in which the spouses treat each other, and how that interaction is perceived.

The first responsibilities in a separation should be to the children in the family. Even though the separation is primarily about the spouses, their issues should be subordinate to that of the kids.

Secondary considerations include a host of responsibilities, many of which are financial. Mortgages, insurances, loans, taxes, income flow, investments, business ownership and operation. All of these facts of daily life take on new twists when the couple agrees to separate.


“Mr. Kydd is exceptionally well-qualified in the family law area, being a lawyer, a social worker, and a child advocate. He believes in mediation and self-determination in resolving matters—which is far superior to having a stranger (judge) decide your matter. He is kind sensitive and thoughtful.”


— Divorce case client