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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Maintenance. What is it and who gets it?

What is spousal maintenance? The newer, hipper name for alimony. The court recognizes that when you’re married, finances are often one big joint affair, and then when you’re separated, one person may lose all access to that joint account. The point of spousal maintenance is to put one spouse in the same position he/she was in before the dissolution began. If one spouse makes significantly more money than the other, then the lesser-earning spouse is likely a candidate for maintenance.

The standard for receiving maintenance is squishy. Does one party demonstrate a need and does the other party have an ability to pay? If the answers are resounding yesses, then you move on to the bulleted list found in RCW 26.09.090 which sets forth a number of factors to consider when deciding on maintenance:

     (a) The financial resources of the party seeking maintenance, including separate or community property apportioned to him or her, and his or her ability to meet his or her needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party;

(b) The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find employment appropriate to his or her skill, interests, style of life, and other attendant circumstances;

(c) The standard of living established during the marriage or domestic partnership;

(d) The duration of the marriage or domestic partnership;

(e) The age, physical and emotional condition, and financial obligations of the spouse or domestic partner seeking maintenance; and

(f) The ability of the spouse or domestic partner from whom maintenance is sought to meet his or her needs and financial obligations while meeting those of the spouse or domestic partner seeking maintenance.

The next two big questions to ask once you determine that are, in fact, eligible for maintenance are: how much and for how long?

How much? There are no good answers to this and it really depends on the circumstances of your case. If you stayed at home with the kids while your spouse made the money, was there a certain amount you spent each month on food? Daycare? Clothing? Add it all up and that may be the amount you ask for. If you both worked, but lived a life that was heavily dependent on the income of the spouse who made much more, you may be entitled to some maintenance to help boost you up to that same economic level.

How long? Well… that depends, too. How long were you married for? Have you been living at a specific economic level for a dozen years? Or was it a short-lived marriage and you’ve really only been privy to the other party’s earning income for a short amount of time? Generally, the longer you’ve been married, the longer your spousal support will last. If you’ve been married for two years, there’s probably not a lot of spousal maintenance to look forward to, unless you can demonstrate that you have completely sacrificed your earning potential for the other spouse who told you to rely on his/her income.

There is also compensatory maintenance, which is if one spouse has supported the other while he/she is going through school, with the expectation that future earnings will benefit the community, but the marriage ends before those future earnings come along. In that case, a spouse may receive more in the assets division to compensate for the inability to receive these future earnings.

Like most things in family law, maintenance awards are heavily driven by the individual circumstances of the case. Speak to your family law attorney to see how maintenance may apply to you.

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A Parenting Plan… For My Dog?

We know that when a court is deciding what would be the best residential schedule for your kids, it is going to ask: what is in the best interests of the child? One would assume, this would be the standard a court might look at when a divorcing couple has a pet.

Unfortunately, it’s not. In the State of Washington, pets are considered property and the same analysis that goes into dividing up a couple’s assets/debts is used when deciding who’s gonna get Whiskers.

If Whiskers was a cute little kitten you adopted way back when you were just a single gal living on Capitol Hill, then Whiskers remains your separate property. If you and your spouse drove all the way up to Mount Vernon to get that purebred Golden Retriever you both love, it’s community property and where Bandit is going to reside becomes a bit more complicated.

Pet custody is fairly new territory for the courts, and not all judges/commissioners may understand your deep attachment to your pet. However, often a court will look to see who has been taking care of the pet or perhaps who is closer to the pet.

Shared custody schedules are a possibility, however, if you and your spouse can agree. You can work together or with your attorneys to come up with a residential schedule for your pet that makes everyone happy and receiving those slobbery kisses you can’t live without.

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