Most people have pre-conceived ideas about how a divorce (called “dissolution” in Washington) case will proceed. These ideas may have come from friends or family members, or from movies and television. Most of them are wrong. This article will address some of the most common misconceptions we encounter. Everyone has at least one divorce horror story—even attorneys. There are Murphy’s Law cases in which everything that can go wrong does go wrong, but those cases are rare.
It is important to remember that for the most part, every state has different laws and often different terminology. While there are some “uniform” laws, particularly relating to jurisdiction, there is no predictable uniformity about how cases are resolved. The good news is that in most counties in Washington, alternative dispute resolution such as mediation or arbitration, is required prior to going to trial. There are numerous knowledgeable and well-qualified mediators and arbitrators available, including some low-cost and free mediators. About 95% of family law cases are resolved in alternative dispute resolution.
Washington is a “community property” state. Most states are not, but they may have some equitable equivalent. Even among community property states there are significant differences that make comparisons from Washington to other states unwise. For example, different states may make different assumptions about how spousal maintenance (alimony) is handled. Some states have monetary guidelines based on several factors, including the length of the marriage. Washington does not, although there are child support guidelines. The basic criteria for awarding spousal support are the recipient’s need and the obligor’s ability to pay. Both must be present. In general, in Washington, the courts do not like to award spousal support to someone who is capable of earning a living, although there are other factors taken into consideration.
Child support is based primarily on the incomes of the parties, with each party contributing their proportionate share to such things as child care, summer camp, uninsured medical costs, education and extracurricular expenses, in a fair manner.
One frequently held misconception about parenting plans is that a twelve-year-old (or older) child can choose between parents. That is not the case. While a parenting evaluator may take the wishes of a mature child into consideration (particularly true in Hague Convention cases), the most important factor is the best interests of the child. If the evaluator finds that it is not in the child’s best interest to reside with the parent of his or her choice, then that may not happen. As a practical matter, it is difficult to require an older child (perhaps high school age) to live with a particular parent—and there are situations in which a child may “vote with their feet”. It is also important to note that Washington has eliminated the term “custody” from the statutes, and uses, instead, the term “parenting plan”. There is a place in the parenting plan for the designation of decision-maker on whatever issues the parties care to put there. Normally these issues would include choice of schools and daycare, non-emergency medical decisions, and participating in extra-curricular activities. Some people will add age of marriage, getting a driver’s license, tattoos/piercings/entry into military, and other similar issues over which the parents want control. In some cases involving parents from different countries or with ties to other countries, or in disputatious cases when one party is unlikely to consent, we may add the ability to travel out of the country or the ability to obtain the child’s passport without the other parent’s consent. Courts are extremely reluctant to grant sole decision-making authority to one parent without exceptional circumstances. Once such circumstance is that if there is a finding of domestic abuse in a case, the statute mandates that sole decision-making be awarded to the other party. Other factors may include the parties’ history of joint decision-making, or the distance between the parties.
Many people believe that in a community property state the property is divided 50/50. That is not always the case. In Washington, the goal is to have a “fair and equitable” division of property. That means that one party often receives more property than the other, based on such factors as the length of marriage, the respective earning capacities of the parties, the status quo during the marriage (although, as noted above, Washington does not appear to award a lot of spousal support to a party capable of supporting him- or herself).
Another misconception is that when you get married, everything automatically becomes community property. Unfortunately, this notion is sometimes encouraged by real estate agents or others without a good understanding of how community property works. As a result, people sometimes put their spouse on the title of real property that otherwise would be considered separate property. While the courts sometimes recognize this for what it is, some courts may consider this act to be a gift, and the separate property is converted to community property. The most frequent occurrence is when property is being refinanced, and a mortgage advisor will insist that both parties’ names be on the title (as opposed to on only the mortgage) because they wrongfully believe that that is required if the parties are married. The community or separate character of the property is not defined by the name in which the property is held. One party may purchase a car without putting the other party on the title, but that does not make it their separate property.
While all property is presumed to be community, a party can prove it is separate by establishing that is was a gift or inheritance to that party, that they owned the item before the marriage, or that it was purchased with separate property (such as purchasing an item with inherited funds).
People sometimes have heard that if they move out of the family home, they are “abandoning” it and giving up their rights. This may have been the situation 100 years ago, but it is no longer the law. If you and/or your children are in an unsafe environment, it may be better to leave at least temporarily until that situation can be addressed.
People are frequently scared at the beginning of a dissolution action because the other party may have threatened them with claims that they will “take them for every dime” or get “full custody” (see above about the elimination of this term) of the children, or that nobody will believe them. Think about where this information is originating. None of these things is likely to happen. The court will look at the actual evidence and divide the property fairly, and make a reasonable decision regarding the children.
The bottom line is: do not believe everything people tell you. Do not make assumptions. Make a low-cost consultation appointment with our office or with another attorney and learn about your rights and responsibilities, and what is likely to happen in a dissolution case before taking any action.