Dissolution FAQ's (13)

What is spousal maintenance?

Spousal maintenance is financial support provided by one spouse to the other during or after a divorce, separation, or invalidity proceeding. The court must determine a number of factors, including the need of one party and the ability of the other party to pay, the length of the marriage.

What if a spouse has misbehaved during the marriage, by gambling excessively, using drugs illegally, having an affair, or similar behaviors?

Bad behavior does not usually affect how property and debts are divided.  An exception to this general rule is when the misbehavior was intended to and resulted in the destruction of property or waste of community assets, by wasting money gambling excessively without the permission of the other spouse, for example, or lavishing gifts upon an extramarital lover without the spouse’s permission.  Behaviors such as domestic violence, intoxication, emotional abuse can seriously affect a parenting plan, however.

What does a court need to do in a divorce?

The court needs to determine the following:

  1. Should the parties be divorced? Washington is a “no fault” state and the court must determine that a marriage is irretrievably broken, and that more than 90 days have passed since the later of the filing of the Summons and Petition and the service on the opposing party.
  2. Characterize and divide the assets and debts of the parties. The court must first determine what is separate and what is community, then make an equitable division of the assets and debts of the parties.
  3. Parenting Plan. If there are minor children the court must establish a Parenting Plan which allocates when the children will be with each parent, makes decisions for the children and rules how minor disputes about the Plan are to be resolved.
  4. Child Support. The court must establish support for the children pursuant to the child support guidelines.
  5. Spousal Maintenance. The court must consider whether a party requires spousal maintenance.
  6. Name Change. The court should consider whether either or both parties should be granted a name change.

Is there a waiting period before a divorce can be final?

The waiting period to finalize a divorce in Washington is 90 days after the Summons and Petition are filed and served on the other party. This is a minimum period and is intended to allow time for reconciliation between the parties.  The process could take much longer if the parties have difficulty reaching an agreement.

Can there be a legal name change in the process?

Yes. Typically, if either party requests a name change, the request should be included in the petition.

What is a “separate property”?

Separate property means possessions or real estate that was owned before the marriage, or that was received during the marriage as a gift or inheritance, or that was purchased with separate property, and not commingled with community property

What is a “community property”?

Community property is all assets and debts, including wages and retirement that are acquired from the date of the marriage through the date of legal separation.

How does a court divide property and debts?

In Washington, in a divorce action the court has authority over both separate and community property. The court is required to determine what is separate property, what is community property, and then divide the property and debts justly and equitably. The division is not necessarily an equal division. The court uses a series of factors under Washington law, such as how long the couple were married, the nature and extent of community and separate property. If there are minor children, the economic circumstances of each party at the time the division is made, and other factors.

What happens if my spouse does not respond to the petition for dissolution?

This is called a default. If the other spouse never answers the Petition for Dissolution by filing response papers, default allows you to finish your case.

How is a parenting plan determined?

In general, all child custody decisions are to be based on “the best interests of the children.” The court looks at a number of factors including: limitations of a parent due to prior conduct or an impairment; agreements of the parties; the relative strength, nature and stability of child and relationship with each child; each parents past and future performance of parenting functions; the needs and developmental level of the children; and relationship with siblings and other folks.

How is child support determined?

Washington has adopted child support guidelines that must be applied in divorce and custody cases in which minor children are involved. Every child has the right to the support of both parents. Washington has adopted a schedule that takes into account the income of each parent from all sources including overtime pay and determines what support each parent is responsible for based on a table.

What role does domestic violence play in divorce?

As with so many issues involved in divorce cases, domestic violence may or may not play a significant role in the legal process depending upon the exact circumstances. This is especially true in cases involving child custody and visitation determinations.

What is collaborative law?

Collaborative law is an alternative dispute resolution process. In the collaborative law process parties to a divorce, and their attorneys, commit to an honest, open, cooperative resolution of all issues without going to court. In fact, the defining feature of collaborative law is that both parties and both attorneys agree in writing that they will not go to court except to enter the final decree of dissolution. Instead, they will provide open, informal, expedited discovery of all relevant facts and documents; they will participate in meetings and commit to bona fide negotiations. If either party or their attorney decides that the case should go to court, the attorneys are both required to withdraw from the case and any disclosures to that point cannot be used in the court case without permission from both parties. Collaborative law works best when both parties are on a relatively equal footing.

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Probate FAQ's (8)

What is probate?

Washington’s probate system is among the simplest and least expensive in the nation. Probate is the legal procedure for settling the affairs of an individual who has died and for transferring the decedent’s property to the rightful beneficiaries. The procedure validates the will and appoints a Personal Representative to administer the estate.

What is a will contest?

A will contest is a legal action that challenges the validity of a will and/or the terms of the will. A will may be invalid if it was the result of forgery, undue influence, inadequate execution, or other issues.

What type of assets are typically non-probate assets?

Non-probate assets can be transferred without oversight by the probate court. Some examples of non-probate assets are proceeds from life insurance policies, an IRA account, a 401(k) account or any other taxed deferred retirement plan account with a named beneficiary.

What role does the executor play in the probate process?

The executor, also known as the Personal Representative, is responsible for initiating the probate proceeding, collecting and inventorying assets, paying debts owed by the estate, filing and paying taxes, distributing assets to the beneficiaries, and closing the estate. Because of the numerous details and technical requirements that must be satisfied, attorneys experienced in probate and estate administration are often employed to guide the executor through the probate process. The executor is entitled to compensation for time and expenses spent during the process.

Are there ways to avoid the probate process?

Washington is a community property state. If you and your spouse have signed a Community Property Agreement, all assets will pass to the surviving spouse without the probate process. There are several methods to use to avoid the probate process. These methods include creating a joint ownership with right to survival in property such as real estate, automobiles and other titled property; making beneficiary designations on accounts such as payable-on-death (POD) bank accounts and transfer-on-death (TOD) securities; and placing property in a revocable living trust. Your attorney can help you manage your property to avoid probate and to transfer property smoothly to your beneficiaries after your death.

What are the advantages of avoiding a probate proceeding?

The Washington probate process requires at least four months to complete, However, the probate process can be slow and can tie up property any where from several months to several years. In addition, it can be costly since attorney fees, executor fees and court fees are paid out of the estate.

What happens to my property if I don’t have a will?

In the absence of a will, property will be distributed through a process known as intestacy. If someone dies intestate, the community property passes to the spouse or state registered domestic partner.  If there are surviving children, the surviving spouse will also receive one half of the decedent’s separate property. If there are no surviving children, but one or more of the decedent’s parents survive, the surviving spouse receives three quarters of the net separate property in addition to the community property.  There are additional levels of distribution if there are also no surviving parents, the probate attorney can explain this if necessary. 

What is a revocable living trust?

A revocable living trust is a type of trust that takes effect during the testator’s life and can be changed or terminated at any time with the property returning to the testator. The testator also can retain control over the property in the trust by naming themselves as the trustee and naming a successor trustee to take over trust administration at the testator’s death. These trusts are often used as a means to avoid probate because the title of property is transferred to the trust and is not considered property of the testator at his or her death, thus making the property unavailable for probate. 

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