When a Strongly Worded Letter Just Isn’t Enough…

Got an ex who always shows up late for pick ups/drop offs? Or one who is months behind in child support? You’ve sent them emails, texts, strongly worded letters… and nothing seems to work. So what do you do when one party continually violates a court order? If it’s a parenting plan, a child support order, a maintenance order, a restraining order, or any of the aforementioned as temporary orders, then a contempt hearing might just be in order. Contempt is defined by RCW 7.21.030(b) as the intentional disobedience of a court order.

What constitutes contempt?

In order for the court to hold someone in contempt, there must be:

1. a lawful court order which the other party is aware of;
2. a violation of the plain language of that order; and
3. bad faith or intentional misconduct on behalf of the violator

Thus, sometimes one parent has violated a court order (ie: showed up late to an exchange), but there is no bad faith (ie: late parent was late because there was a backup on I-5 and he couldn’t make it on time). In this case, although the parent has violated the order, no contempt would be found.

However, in the case where one parent is late to every single exchange, the other parent continually points out to the parent that he/she is late (in writing is always best), and the late parent never rectifies his/her ways nor ever has a valid excuse, then that parent may very well be found to be in contempt.

Contempt actions can be used regarding parenting plan provisions – however know the dispute resolution section of your parenting plan and make sure that if it’s an actual dispute about the clarity of the parenting plan then you are must follow the ADR requirements before running to contempt. Contempt may also be used when another parent is not paying child support or an ex-spouse is not paying maintenance. However, contempt is not available if you are seeking to enforce monetary provisions of a property settlement.

Do know that contempt is a severe remedy that is not to be taken lightly. Ensure that all three elements are met before pursuing a contempt charge and consider whether other avenues may be better. For example, if you say your ex-spouse is violating provision 3 of the parenting plan, but your ex-spouse says she reads the language differently, a motion for clarification of the plan may be the better route to go. That said, if the facts are clear, the plain language of the document cannot be read a different way, and the ex-spouse continues to act non-compliantly, then contempt very well may be the way to go.

How do I start a contempt action?

Contempt requires a Motion for an Order to Show Cause re: Contempt and a declaration to go along with it. The first step is to file this motion and declaration with the court via ex parte, requesting the court to grant an Order To Show Cause. Once you have this order, then you need to personally serve the other party all of the documents, including your signed Show Cause Order. A hearing can be set for 14 days after the date when the other party is served. Best practice, to ensure you have enough time between seeking the ex parte Show Cause Order and the hearing is to set the hearing for a few days more than 14, to make sure you have the opportunity to get all the documents personally served.

Once served, the hearing is like any other on the family law motions calendar. The other party will have the opportunity to respond, explain his/her side of the story, and that is due to you and the court by noon four court days before the hearing. You then have the opportunity to put in a reply, due to the other party and the court by noon two court days before the hearing.

What Can Happen at Court?

If the court finds that the other party has in fact violated a lawful court order and done it intentionally and/or in bad faith, there are a number of remedies that can occur, depending on the circumstances. In the case of financial issues, such as back child support or maintenance, the court can order the delinquent party to pay up, and pay an interest on the back amount at 1% per month, 12% per annum. In the case of a parenting plan violation, the other party may be ordered to give make up time in the case of missed residential time or order other provisions as necessary to ensure that the violation does not happen again. The court can also award attorney’s fees to the prevailing party and a court fee. In the case of a parenting plan, if one parent is found in contempt two or more times in a three-year period, this grants the non-violating parent the opportunity to file for modification of the parenting plan.

A contempt order will have specific conditions in it, called “purge conditions,” which are requirements that must be satisfied by the violating parent in order to remove the contempt charge. For example, in the case where the court orders make-up time, the violating parent will be in contempt until that make-up time occurs. The court may also require the parties to come back for a review hearing, specifically to determine whether the contempt has been successfully purged or not.

In extreme cases, the court may order imprisonment for contempt. This is generally a last resort and the court does not like to do this. The court has made it clear that imprisonment in the case of civil contempt is for the purposes of requiring a party to obey a court order; it is not intended to be punitive.

Overall, contempt can be a very effective remedy for a party who is acting in bad faith and continually violating an order. However, contempt is also expensive, causes further conflict, and can be difficult to prove. And if you find yourself contemplating filing for contempt, make sure you take a long, hard look at yourself and see if you are following the orders yourself. The court is reluctant to find contempt on one parent when the other one is coming to the court with “unclean hands.” *

 

 

*Though do know that one party’s violation of an order does not give the other party a free ticket to violate themselves. Nothing excuses a bad faith violation of a lawful court order – certainly not an-eye-for-an-eye mentality.
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Child Support Myths Busted

The biggest myth that seems to be propagated about child support is that he who has the children more receives more child support.  If I get the kids 50 percent of the time, then I won’t have to pay child support!

Unfortunately, that’s just not true.

Child support is set by a formula that has been developed by state economists and that formula processes two parents’ incomes and spits out an amount set for the kids. This is based on an economic table that looks at what age the kids are, how many kids there are, and how expensive those kids are likely to be, on average, at any given age. The higher your income, the higher the overall support amount for the kids, and then the party who is obligated to pay (obligor), will pay based on what their share of the income is.

On top of what’s called the transfer payment (that’s the general amount the obligor pays each month, meant to cover basic necessities like food, shelter, clothes, etc), each parent is on the hook for a certain percentage of other child expenses that aren’t included in the transfer payment. Those extra payments could be things like summer camps, tutoring, tuition costs, etc. A court will allow for the payment of these extra curriculars as they relate to education, daycare, or transportation. If you know that your kids are going to be involved in other activities, though, you can ensure that your child support covers these, too. Dance classes? Soccer registration fees? Agree to include those and then you and the other parent will be responsible for a percentage of the total cost, based on what percentage the worksheets say you should cover.

For example, if you and the other parent make roughly the same amount of money, and share the kids 60-40, then the parent with less time (40%) will likely be the obligor for child support. The transfer payment will be based on both of your incomes, and if you have about the same overall income per month, then the percentage you pay for other activities would probably be around 50% for each of you. To the contrary, if you make three times as much as the other parent, then your percentage would be much higher.

You can get credits for any expenses you are already paying. If you pay the children’s daycare costs, you’ll want to include those on your worksheets and make sure you get credit for them. Similarly, don’t forget to include medical insurance costs for your kids.

There are instances when a deviation from the transfer amount is appropriate. One circumstance that comes up frequently relates to the amount of time each parent has with the child/ren. If you have a fairly equal parenting schedule, you may be entitled to a deviation to your transfer payment amount. A downward deviation looks to how many overnights a parent has with his/her kid. If you have at least about 91 overnights a year or more, then you may have solid grounds to ask for a deviation. You will not be granted a deviation, however, if your paying less child support will result in the other parent’s home not having enough resources to live and support the children.

In order to collect child support, there are a few options. If you want to pay the other parent directly, you can do so. You can also send your child support checks through the Division of Child Support (DCS), and they can get your checks to the obligee (the parent who receives support). Alternatively, an obligor’s wages can be garnished from his/her paycheck directly, so that support is assuredly always on time each month.

Child support can be a complicated part of getting a divorce or establishing a parenting plan. Talk with an attorney to be sure that you know how to input the numbers, establish the appropriate credits, and get a child support order that works for you.

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Legal Separation vs. Divorce

Legal separation is largely the same thing as divorce. When you legally separate the court will divide your assets and your liabilities, can grant child support and spousal maintenance, and can enter a parenting plan. The only catch is that at the end of it all you’re still technically married. That means neither of you can remarry.

Why would you want to do this?

There could be a number of reasons that legal separation is the right option for you. Maybe you and your spouse have hit a rough patch, want to legally separate yourselves and your possessions, but want to hold out in case reconciliation is a possibility.  Maybe there’s a religious reason behind it all.

The process to begin a legal separation is the same as a divorce. First, you need a petition. If your spouse is in agreement, you can sign a joinder. If they are not, you’ll need a summons and personal service. If you serve them, your spouse will then have the opportunity to respond within 20 days (60 days if they are out of state).

Then you wait. You must wait at least 90 days before you can finalize the legal separation. If things are a bit more complicated, you may end up going to trial (11 months from filing), or mediation. Once you’ve hit an agreement on all things, you’ll have a Decree of Legal Separation. This decree can be converted into a divorce decree six months later.

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Help! My Ex-Spouse Wants to Move to Texas!

Relocation is one of the hardest issues to resolve. Relocation cases are more likely to go to trial than other types of family law issues because it’s very difficult to find common ground when there are hundreds – if not thousands – of miles in between two parents.

So what do you do if your ex-spouse tells you she wants to move to Texas with the kids?

First, if you are the parent who wants to relocate, make sure you file a notice of relocation. The outline for this is found in that mandatory section of your parenting plan – paragraph 3.14, which cites RCW 26.09.430 through 26.09.480. If you are the non-relocating parent, make sure you file an objection to the relocation, and get ready for a modification, because you’re going to need a new parenting plan.

There is a presumption in favor of the parent who has primary residential custody of the child(ren). This is based on the idea that continuity for the child is often best, meaning the child should stay with the parent they have primarily been living with but for other circumstances.

When the notice first comes through, if you are the non-relocating parent, it’s wise to file for Temporary Orders, and a Temporary Order Restraining the move. The burden is on you, as the relocating parent, to file a motion for this restraint. The relocation act states that if the non-relocating parent does not seek a restraining order within 15 days, the automatic restraint on relocation expires.

At the temporary hearing as well as ultimately at trial, the court is required to consider all 11 factors found in RCW 26.09.520. Here’s the list:

  (1) The relative strength, nature, quality, extent of involvement, and stability of the child’s relationship with each parent, siblings, and other significant persons in the child’s life;

(2) Prior agreements of the parties;

(3) Whether disrupting the contact between the child and the person with whom the child resides a majority of the time would be more detrimental to the child than disrupting contact between the child and the person objecting to the relocation;

(4) Whether either parent or a person entitled to residential time with the child is subject to limitations under RCW 26.09.191;

(5) The reasons of each person for seeking or opposing the relocation and the good faith of each of the parties in requesting or opposing the relocation;

(6) The age, developmental stage, and needs of the child, and the likely impact the relocation or its prevention will have on the child’s physical, educational, and emotional development, taking into consideration any special needs of the child;

(7) The quality of life, resources, and opportunities available to the child and to the relocating party in the current and proposed geographic locations;

(8) The availability of alternative arrangements to foster and continue the child’s relationship with and access to the other parent;

(9) The alternatives to relocation and whether it is feasible and desirable for the other party to relocate also;

(10) The financial impact and logistics of the relocation or its prevention; and

(11) For a temporary order, the amount of time before a final decision can be made at trial.

Overall, the court is looking for a breakdown of who has done what for the kids, and where the kids will have the most continuity in their lives. Make sure you are explaining the history of your parenting plan, what the current schedule is, and what the new schedule would be if there is a relocation. Explain if the current parenting plan is being followed, and which parent has been more involved with the children’s lives. If you have a 50-50 parenting plan, there’s going to be a tough road ahead with a tough decision. According to legislative history, the Relocation Act does apply to 50-50 plans, but then there is no presumption.

Facing a relocation issue can be emotional, stressful, and particularly nuanced. I would definitely recommend at least visiting an attorney to understand all the ins and outs of the relocation laws, and be prepared for a tough battle ahead.

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Your Day in Court: What to Expect

Going to court can be extremely stressful. What heightens that stress is not even knowing what to expect. Thus, here’s a quick run-down of how to prepare for your day in court, and some general rules to keep in mind when you’re there.

Prior to the hearing:

Let’s start with the basics. In King County, there are two courthouses: Seattle and Kent. First things first, 2-3 days before your hearing, make sure you confirm it. If you set a hearing for a Friday, then by Tuesday at noon you need to confirm your hearing either online , or if you’d prefer to call or go in person, then you can do it anytime after 2 p.m. on Tuesday up until noon on Wednesday. If you don’t confirm your hearing, it will be stricken.

The day of the hearing:

The first thing you’ll have to do when you enter the courthouse is go through security. You never know how long this line is going to be, so make sure you always give yourself an extra 15-20 minutes to make sure you make it through.

If you have a hearing on the Family Law Motions Calendar, this means you will be in front of a commissioner. Commissioners are well-reputed family law lawyers who have been asked to sit on the bench before the family law motions calendar. They are different than a judge because judges have been elected, whereas commissioners are appointed. Basically, a commissioner is somewhere above a lawyer, but below a judge. Since they are not full judges, a commissioner’s ruling can always be revised up to a judge if there has been a clear error of law or if the commissioner failed to consider relevant evidence when making his/her decision.

In Kent, the family law courtrooms are right on the first floor of the Maleng Justice Center, and to your left after going through security. In Seattle, the family law courtrooms are on the second floor, west side (W-291). When you get to the courthouse, make it through security, then you (or you and your attorney) will go and check-in. Opposite the check-in window there will be a list of all the hearings set for that day. Find your name and there will be a number associated with it. Tell the coordinator at the check-in desk who you are, and what number hearing is yours. Then…. you wait.

Court begins at 9 a.m., and the clerk in the courtroom will call out each matter one at a time. Wait until your name is called, and then stand up at the podiums in front of the commissioner. Introduce yourself, and the other party will introduce him/herself. If you have an attorney, let your attorney do the talking – that’s why you’ve hired them!

Each side has five minutes to talk. If you are the moving party (the one who requested the hearing) you will go first, and you can reserve a portion of your five minutes for rebuttal. After you speak, then the other side will speak for five minutes. After they are done, that’s when you briefly have a chance to respond to everything they’ve said.

The commissioner may ask questions during the arguments, or may wait until the end (or may do both). Again, if you have an attorney, let the attorney answer the commissioner’s questions unless the commissioner speaks directly to you. Once the commissioner has asked all he/she wants to, then there will be a ruling.

General courtroom rules:

  • Turn off your cell phone
  • Always address the judge or commissioner as “Your Honor” or “Commissioner _______”
  • Dress for court. You always want to put your best foot forward. It’s hard for a commissioner to take you seriously if you’re wearing your very best Hawaiian shirt
  • Stand when the commissioner enters the room until he/she gives you permission to be seated again
  • In Seattle, there is specific seating marked “petitioner” and “respondent.” If this is full, it is okay to sit in another area, but just be mindful not to engage your opponent in the courtroom
  • Never interrupt the commissioner. If you need to clarify something, wait until he/she has finished and then politely correct the statement
  • Get to know the court clerk. If you have questions, the clerks can usually help you with the answers
  • Be polite – to everyone. It can be a very stressful time, and the ruling may not always go as you wish it would. But just listen calmly, clarify anything if necessary, and thank the commissioner for his/her time. If it didn’t go your way, speak to your attorney about next steps
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