Attorney William Brendgard Vancouver Washington

MARRIAGE, DISSOLUTION, AND LEGAL SEPARATION

Washington, like most states, has a no-fault divorce system. The petitioner states that the marriage is irretrievably broken and does not need to prove reasons why the marriage is over. The court will dissolve the marriage upon request of one spouse, so the term dissolution is often used instead of "divorce." Declarations of invalidity are used for annulment in rare cases.

A legal separation is similar to a dissolution except that the parties remain married after their property and debts are divided. Six months after a decree of legal separation, the marriage can be dissolved by further court order. The main issues in a divorce are Property, Debts, Parenting Plan, Child Support, Spousal Maintenance, and Restraining Orders.

Property
Washington's community property laws state generally that all assets acquired during the marriage are jointly owned, even if earned or acquired by only one spouse, and even if the asset is held in only one spouse's name. Each spouse is entitled to roughly half of the value of community property. The court is only required to make a "fair and equitable" division of property. This is not always 50-50.

The spouses need to value and divide their personal and household property and vehicles, as well as real estate and financial accounts. Valuation can be obtained through market opinions such as real estate agents, appraisals, and blue book guides. The court will use fair market value instead of replacement cost.

Retirement assets such as pensions, IRAs and 401(k) accounts are also marital property. If the retirement account is liquid, funds can be rolled over into a new plan for the other spouse. A true pension, paying after retirement age, is divided so that the other spouse will receive pension payments only when the working spouse retires. Most plans require a special court order, a Qualified Domestic Relations Order QDRO to divide retirement funds.

Assets owned by one spouse before the marriage, are generally held to be separate property. Sometimes an asset can be a combination of community and separate interests. For example, if the husband owned a home prior to marriage, but he and his wife together spent money and labor remodeling and improving the home, the wife is entitled to half of the value of the improvements made by the married couple.

Debts
The spouses need to divide responsibility for their marital loans, mortgages, and credit cards. Again, the court will make a "fair and equitable" division of debts, which is not necessarily 50-50. Often the courts will require the spouse with a greater income to assume a greater share of the debts.

Please see the parenting plan page of this website to view a sample parenting plan document.

The court requires a parenting plan, which is a document setting out the children's residential schedule throughout the year. The parenting plan states with which parent the children will reside during the week, and on weekends. Other sections cover holidays, birthdays, and school vacations such as spring break and summer. Many courts in Washington start with the presumption that all non-school time will be shared equally between parents, so each parent will have the kids alternating weekends, and half of holidays and school breaks. Schedules for pre-school children are different, tailored to their greater availability, and their need for possibly shorter, or more frequent, visits with the non-residential parent. The parenting plan also contains rules for decision-making such as medical care, rules for resolving disputes between parents, and rules for when a custodial parent wishes to move away with the children.

Child Support
Calculate child support here.

Child support is based on income of the parents. A chart is used to figure the amount per child, using the monthly net (after tax) income of the parents, and the age and number of children. Support payments do not include extra costs such as day care and uninsured medical bills. These are normally shared between parents by proportion of income, for example 60-40. The child support order also states which parent can claim the children in which years as dependents for income tax purposes.

COHABITATION

Washington does not recognize common-law marriages, but does apply certain community property laws to unmarried persons who have lived together in a marriage-like relationship, known as a meretricious relationship. This body of law is fairly new, and is still evolving. There are several factors necessary to establish a meretricious relationship, such as length of time and pooling of assets. If such a relationship is established, the court can order an equitable division of property and debts, similar to that in a dissolution of marriage.

Unmarried persons living together, as well as same-gender couples, can enter into written agreements to define their property rights. These agreements go a long way in preventing disputes over property and debts.

Washington's New Domestic Partnership Law allows persons who have so registered with the State to form certain property relationships, and to obtain many of the social benefits and judicial remedies available to married couples.

PATERNITY

For parents who are not married, the court deals with a parenting plan and child support. If the biological father is not known, or if one parent so requests, the court can order genetic testing, either by blood or DNA. The law states that a child has a right to know who is the natural father.

The Uniform Parentage Act (UPA) is a set of laws adopted consistently by most states. The UPA was recently updated and has made some major changes in the rights and procedures for unmarried parents. The new version of these paternity laws allow parents who have acknowledged paternity in writing to skip over the genetic testing and get right to the parenting plan determination. With a written acknowledgement of paternity, there are time limits beyond which the acknowledgement cannot be challenged or overturned.

NON-PARENT CUSTODY

A grandparent, relative, or any adult, can petition the court for custody of a child who is not their own. The law requires a showing that either the child is already living with the petitioner, or that the parents are not suitable custodians. The petitioner can acquire full custodial rights, and the court can order a parenting plan-style residential schedule and child support order.

Washington no longer has a law allowing merely visitation rights by a non-parent. This law was ruled unconstitutional and despite repeated attempts, our legislature has not replaced it more than five years later. The absence of this law has created some real problems with non-parents who have a parent-like relationship, who have no legally available visitation rights. Case law has attempted to fill in the gap by creating other remedies for persons to continue visitation with a child, but a new statute is very much needed.

PERSONAL PLANNING

PRENUPTIAL AGREEMENTS

A prenuptial agreement (or community property agreement) is a good idea when either of the parties has been married before, or has children from another relationship. These agreements do not indicate a lack of trust between persons about to marry, rather they indicate a sense of reassurance created by planning ahead, and can minimize the disputes in the event of divorce or death.

The agreement can change, override, or merely reinforce, the ordinary community property laws pertaining to what property remains free of the other spouse's claim. Property and debts brought into the marriage are normally separate, and not community.

These agreements are also valuable in clarifying how certain property should be classified for purposes of inheritance. A surviving spouse will normally inherit community property, and the children from a prior relationship will normally inherit separate property. However, the community property agreement can go a long way in avoiding disputes between the surviving children and the surviving spouse who is not their natural parent.

WILLS,TRUSTS, AND PROBATE

Did you know that most adult Americans do not have a Will? Isn't it time to write your Will?

If one dies without a Will (intestate), the decedent's property is normally inherited by a surviving spouse or children. If none, state law has rules about who inherits when there is no spouse or children, such as the decedent's siblings or parents.

A Last Will and Testament is an easy way to make your wishes known, and to create greater certainty than merely relying on the laws of intestate succcession. A Will can also give inheritance to a non-relative, or to a charity. A Will can also contain instructions for final arrangements, designate a guardian for minor children, and name an executor to handle your affairs.

The Will can call for a trust to be established to receive and manage a child's inheritance, or an independent trust can be used for tax planning purposes in large estates.

Probate is the process where the court will carry out the intentions in a Will, or govern the process when there is no Will. In Washington there are three levels of probate procedure. The simplest is merely filing the will with the court and allowing the executor to manage the affairs without intervention by the court. The second and third levels are more complex and may allow or require the judge to approve the executor's actions, or require the judge to make decisions in areas of dispute.

Call or email the office with your questions.

Phone: 360-433-7444

Email: bill [at] brendgard.net

Fax: 360-695-9491

See Profile at Nolo

William Brendgard has been a licensed attorney

in Washington since 1991, and has represented

hundreds of people in a variety of family law matters

including divorce, custody, paternity, and cohabitation.