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Parenting
What issues are addressed in a Parenting Plan?
The parenting plan is a detailed working document for parents addressing the future needs of their children. The parenting plan contains a residential schedule (where the children will live on each day of the year, including: school days, holidays, vacations, and other special occasions), allocation of decision-making authority (such as education, religion, medical care), a dispute resolution process, designation of a custodian, and any other agreement between the parents or ordered by the court.
How is custody/visitation determined?
Washington no longer uses the phrase custody or visitation; rather they award residential time with the children. Separated parents must agree to a Parenting Plan or have one imposed by the court. The "best interest of the child" is the major test for all parenting determinations between parents.
How does the court determine the final residential schedule?
The "best interest of the child" is the standard the court uses to determine and allocate parental responsibilities. In determining the residential provisions the court must consider several factors, the most important being the strength, nature, and stability of the child's relationship with each parent, including whether a parent has taken a greater responsibility for the child's daily needs.
What are "Parenting Functions"?
"Parenting functions" means functions necessary for the care and growth of the child. Parenting functions are defined by several factors, such as attending to the child's daily needs, including feeding, clothing, physical care and grooming, supervision, health care, day care, and engaging in other activities that are beneficial to the child.
At what age can a child determine where he or she wishes to live?
The wishes of a child may be considered if the court believes the child to be "sufficiently mature to express reasoned and independent preferences as to his or her residential schedule." The court has not set a specific age in which the child is to be considered, "significantly mature." It is important to note that while the child's wishes can be considered their opinion is not controlling if the court feels the child's wishes are not in the their best interest. Usually, the trial court will not permit testimony from a child less than 15 years of age.
How are disputes over the establishment of a parenting plan resolved?
If the parents disagree on the arrangements for the child, the court will often appoint a "guardian ad litem" or other investigator to look after the child's bests interests.
What are the factors to have restrictions placed on my spouse's residential time with our children?
The parent's residential time will be limited if the court finds the parent has engaged in willful abandonment continuing for an extended period of time; has substantially refused to perform parenting functions; has a history of physical, sexual, or a pattern of emotional abuse; has a history of acts of domestic violence, or an assault or sexual assault causing bodily harm or the fear of such harm; or the parent has been convicted of a sex offense.
My spouse and I cannot agree on anything. How are we supposed to make mutual decisions regarding our children?
When decision-making is allocated to the parents jointly, they may be unable to agree on the course of action. If this occurs, the parents are to make use of the dispute resolution process designated in the parenting plan. This may require mediation, arbitration, or court action.
When is a child emancipated for purposes of a parenting plan?
Emancipation releases the child from parental control and the parent from the obligation of child support. Emancipation occurs upon reaching the age of majority (18) or emancipation in fact. An example of factual emancipation is marriage. A minor 16 years of age or older may bring an emancipation action.
Child Support
Who has a duty of support?
Both biological parents have a duty to support their children until the children are of legal age. In some cases even stepparents have a temporary duty to maintain support during the dissolution process.
How is support established?
Child support can be established by the Superior Court or through an administrative process.
How is the support amount determined?
Child support is determined based on the Washington State Child Support Worksheet Schedule. Washington uses a formula to calculate child support based on the number of children, the ages of the children, and the combined monthly net incomes of the parents.
How long must I pay child support?
Generally, child support obligations last until the child turns 18 years of age or graduates from high school, unless agreed upon by both parties that support will continue longer (for example, through post-secondary schooling).
When may an order of child support be modified?
Generally, child support modifications are granted when a substantial change of circumstances is proven. Further, all child support decrees may be adjusted once every 24 months, based upon changes in the income of the parents, without a showing of substantially changed circumstances.
What constitutes a substantial change in circumstances?
A substantial change of circumstances occurs when there is a significant change in health, schooling, finances or other special considerations.
Can an order of child support be modified without a showing of substantial change in circumstances?
Yes. There are several circumstances when an order of child support may be modified without showing a substantial change in circumstances, such as showing that the order works a severe economic hardship on either party or the child. These petitions must take place one year or more after the initial order has been entered. Further, all child support decrees may be adjusted once every 24 months, based upon changes in the income of the parents, or in the economic table, without a showing of substantially changed circumstances.
Unmarried Relations
What is a meretricious relationship?
A meretricious relationship is a stable, marital-like relationship where both parties cohabit with knowledge that a lawful marriage between them does not exist. In Washington, judicial case law has developed certain rights and privileges for unmarried couples that meet certain characteristics.
How do you distinguish between a "roommate" relationship and a "meretricious" relationship?
Unlike a roommate relationship, a meretricious relationship is a "marriage-like" relationship. Courts will generally determine if a relationship is meretricious based on the following non-exclusive list of factors: (a) duration of the relationship; (b) duration of cohabitation; (c) was the relationship a stable and committed one; (d) purpose of the relationship; (e) pooling of resources and services for joint projects (for example, joint bank accounts); (f) continuous relationship; and (g) intent of the parties.
What are some examples of meretricious relationships?
In Warden, the parties lived together for over 10 years and had two children during the relationship. The parties never married, but they held themselves out as a marital family. At the closure of the relationship, the mother sought child support and a declaration of property rights. The Superior Court awarded the mother a one-half interest in their accumulated real property as tenants in common. Warden v. Warden, 36 Wn. App. 693, 676 P.2d 1037 (1984).
In Lindsay, the parties cohabited for less than 2 years prior to marriage. When they subsequently divorced, the court held the increase in value of property acquired during the meretricious portion of their relationship was also subject to an equitable distribution as if the property were community in character. In re Marriage of Lindsay, 101 Wn.2d 299, 678 P.2d 328 (1984).
See also, Connell v. Fransisco, 127 Wn.2d 339, 898 P.2d 831 (1995).
In Lindsay, the parties cohabited for less than 2 years prior to marriage. When they subsequently divorced, the court held the increase in value of property acquired during the meretricious portion of their relationship was also subject to an equitable distribution as if the property were community in character. In re Marriage of Lindsay, 101 Wn.2d 299, 678 P.2d 328 (1984).
See also, Connell v. Fransisco, 127 Wn.2d 339, 898 P.2d 831 (1995).
Once it's been determined there is a meretricious relationship, how does this affect property division?
When determining the nature of property in a meretricious relationship, the critical focus is on property that would have been considered community property had the parties been married. A trial court has wide discretion to make a just and equitable disposition of the property. All property owned by either or both unmarried parties is considered by the court for equitable division of property, including property that would have been characterized as separate had the parties been married.
Spousal Maintenance
Who is entitled to maintenance?
Spousal maintenance may be granted to either the husband or the wife. An award of spousal maintenance must only be fair and equitable. The test is the need of the payee versus the ability of the payer to pay.
What factors do the courts consider when determining maintenance awards?
The court considers several factors when determining spousal maintenance: the time necessary for the spouse seeking maintenance to become employable; the standard of living during the marriage; length of marriage; age, physical and emotional condition of the parties; the ability of the spouse seeking spousal maintenance to meet his/her financial obligations; and the financial resources of the parties.
Can maintenance be modified?
Maintenance can be modified by showing a substantial change in circumstances. A substantial change of circumstances occurs when there is a significant change in facts that were not available to the parties to be relied upon at the time of dissolution.
Can the modification of maintenance be prevented or limited?
An express and written agreement, freely and voluntarily entered into by the parties, may make a spousal agreement or separation contract non-modifiable. This is done by using language ("non-modifiable clause") to expressly preclude or limit the modification of maintenance.
How long do I have to pay maintenance?
There is no set time frame for the length one party might be required to pay spousal maintenance. Generally, courts consider the length of the marriage in determining whether spousal maintenance will be "long term" or "short term." Other factors considered are the standard of living enjoyed during the marriage, the economic condition of both parties at the time of divorce, and the future earning ability of each party.
When does maintenance terminate?
Spousal maintenance terminates either at the end of the parties' agreement, or at the court ordered period of time. Unless the parties agree otherwise, maintenance is terminated upon the death of either party, or the remarriage of the party receiving maintenance.
College Support
What authority allows courts to order the payment of post-secondary educational support?
Under the Dissolution of Marriage Act, Chapter 26.09 RCW, the obligation to pay child support is based on dependency, not minority, and a court may require a parent to support a child beyond the legal age of majority.
What are the standards for payment of post-secondary educational support?
The court determines whether the adult child is dependent on his/her parents and is relying upon the parents for the reasonable necessities of life. The court has wide discretion when determining whether and for how long to award post-secondary educational support, based upon consideration of factors that include, but are not limited to, the child's age, needs, desires, abilities and disabilities, parents' level of education, standard of living, and current and future resources. Also to be considered are the amount and type of support that the child would have been afforded if the parents had stayed together.
If my former husband and I agree to pay post-secondary educational support, what should be included in the agreement?
The agreement should be very clear and include clarification on issues such as: the length of support (four-year period), a certain minimum GPA (for example 2.0), a limit on tuition to a certain amount (tuition equivalent to University of Washington student), how parents will share expenses, and what expenses are to be covered (board and books), etc
Am I still required to pay post-secondary educational support if a trust fund has been established for my child?
A trust fund established by either the parents or a third party (example: grandparents) does not bar the parents' obligation to pay for college expenses if agreed upon or if by court order. However, the existence of the trust fund may reduce the extent of each parent's obligation.
My children are very young. How can post-secondary educational support be determined for them now?
Parties may reserve the issue of post-secondary education for a later determination before the basic child support obligation ends.
Community Property Division
Is Washington a community property state?
Washington is a community property state. Generally, most everything acquired during the marriage is considered community property. Washington courts consider gifts, inheritances, and property acquired prior to the marriage the separate property of that spouse.
Is it important whether I keep my property separate from, not commingled with, our community property?
It is important to keep separate property separate from community property. Once separate property becomes so commingled with community property to where it might be difficult or impossible to characterize, courts will presume it is community property.
Can separate property be converted to community property?
Yes, there are several ways to convert separate property to community property. One of the most common ways is by the commingling of separate property with community property. If the parties are unable to clearly establish which property is community property and which is separate property, all property is presumed to be community property. Another method is for the parties to make an agreement to convert the separate property to community property or vice versa. One way to achieve this is by executing a Community Property Agreement.
What if I cannot recall when I bought an asset?
The person claiming an asset as separate property has the burden of proof. If that person is unable to prove that the item was purchased prior to marriage or with separate funds, then the presumption will be that it is community property.
Can the court award my separate property to my spouse?
Yes, all property is before the court for division. A judge has wide discretion and may make a just and equitable distribution, of both community and separate property, based on all of the circumstances.
What factors are considered by the judge in dividing property?
The court tries to make a fair and equitable division of property. The court will consider factors such the spouses' age, education, duration of marriage, and employability. The ultimate concern is the economic condition of the parties upon dissolution of the marriage.
How does the length of the marriage make a difference?
While the length of the marriage is not a determinative factor, it may direct the judge in the decision on spousal maintenance or property distribution. Generally, in a short-term marriage, the court will not try to equalize the parties' financial positions for more than a temporary amount of time. Or in other words, the court may temporarily assist one party, but will view it acceptable to put the parties in the position they were in prior to marriage. Generally, in a long marriage, the court tries to equalize the parties' financial situations for a longer amount of time.
Can maintenance be used in a property division?
Yes. The court may make a variety of determinations in order to make a fair and just distribution of marital assets. For example, a court may decide to grant a higher amount in maintenance instead of awarding the property divided equally.
My husband/wife was abusive during our marriage and had numerous affairs. How does this affect property division?
Washington is a "no-fault" state. It merely needs to be alleged that the marriage is "irretrievably broken" for a court to grant a dissolution and divide property. Therefore, marital misconduct is not a consideration in the division of property. However, the abusive spouse may be ordered to pay the cost of treatment or counseling.
What are Prenuptial Agreements?
A prenuptial agreement is a contract made prior to marriage, providing for the character of the parties' assets and debts at the end of their marriage.
What are Postnuptial Agreements?
A postnuptial agreement is a contract made after the commencement of marriage, providing for the character of the parties' assets and debts at the end of their marriage.
Why do people enter into prenuptial agreements?
Generally, prenuptial agreements are established when one or both of the parties have property that they wish to keep separate from the marital community.
I thought Washington was a community property state. How can you have separate property when you are married?
Generally, gifts, inheritances, and property acquired prior to the marriage are the separate property of that spouse. Further, one may enter into agreements to change the characterization of community property to separate property, or vice versa.
If separate property stays separate property, why do I need a prenuptial agreement?
Although property may begin as separate property, it may later be characterized as community property. This occurs in situations where separate property becomes commingled with community property and it becomes impossible to determine which items are separate. A prenuptial agreement will clearly set forth those items that will retain their separate character.
What happens if a prenuptial agreement is declared invalid?
The courts have wide discretion to award property in a fair and equitable manner without regard to the parties' wishes.
