A dissolution is initiated by filing a Petition in the Superior Court and serving a copy on one’s spouse. The issues (e.g., division of assets and liabilities, parenting plan, child support, etc.) do not have to be resolved before the Petition is filed, in fact they usually are not resolved at that point. A divorce cannot be finalized until 90 days after the Petition is served. Nothing automatically happens on the ninetieth day. If the parties are unable to reach agreement, either party may ask that a trial be scheduled – the trial may not take place for several months.
A divorce trial is in front of a judge; a jury trial is not allowed. Each side may call witnesses and present evidence. The judge then makes a decision on all issues upon which the parties have not reached agreement.
During the pendency of the case, either party may ask the court for temporary assistance – a temporary order for child support, possession of property, etc. These matters are heard on short notice – about five business days – and without the benefit of live testimony, rather the judge considers affidavits filed by the respective parties.
During the initial 90 days, and thereafter for that matter, the parties seek to reach an agreement on all the issues involved – property division, arrangements for the children, child support, debt payment, etc. If agreement is reached, final documents including a Decree of Dissolution, Findings of Fact and Conclusions of Law, Parenting Plan, and Order of Child Support, are prepared, signed and filed with the court. If these things are accomplished, then the dissolution can be finalized.
All property owned by the parties is subject to division by the Court. The court is required to dispose of not only the community property (property acquired during the course of the marriage through the labor of either spouse), but also the separate property (property owned by either party before marriage or acquired during marriage by gift or inheritance). In practice, Courts tend to award each party his or her own separate property, and divide the community property, but that certainly is not a requirement, nor a given in every case.
The law does not call for an equal division, but rather, a “fair and equitable division”. What is fair and equitable is controlled primarily by the length of the marriage and the economic circumstances of each party at the time of the dissolution. The longer the marriage the more likely the court will attempt a resolution that leaves the parties in a fairly equal position.
Of course, some assets cannot be physically divided, for example, a house or a vehicle. In these situations the court may award the asset to one party and require that party to pay the other a sum of money to equalize the distribution.
Retirement accounts can be divided even though they were earned entirely by the labor of one spouse. Division of employer-sponsored retirement plans occurs through a Qualified Domestic Relations Order, which allows the division of the retirement plan to be accomplished without a tax penalty.
In our experience it is very difficult to predict the outcome of a divorce trial. Different judges will view the same situation in a different manner. It seems the most unpredictable results occur in divorce cases. This unpredictability, coupled with the emotional and financial cost of litigation, should serve to prompt the parties to reach a settlement. A spirit of compromise is called for.
Maintenance (formerly termed alimony) may be available as a matter of discretion – not as a matter of right. It is usually considered of a temporary nature and is primarily dependent upon the need of one spouse, and the ability of the other spouse to pay. The factors to be considered by the Court in making a decision to award maintenance are set forth in RCW 26.09.090.
Likewise, the court has discretion to award attorney fees. One party could end up paying his or her own lawyer and something toward the attorney fees of the other party. The factors the court considers in awarding attorney fees are the economic circumstances of each spouse and whether either spouse is making the litigation more difficult and more expensive than it should be.
The law no longer uses the words custody and visitation. Instead, the parties seek to reach an agreement, and if they can’t reach an agreement, the court will order a parenting plan after trial, determining where the children will live and when. The children normally reside primarily with one parent, although 50/50 parenting plans are not uncommon. The time spent with the non-primary parent is not at the whim of the primary residential parent. The non-primary residential parent has an absolute right to have residential time with the children as set forth in the parties’ parenting plan.
There are many nuances to drafting a parenting plan that help to eliminate conflict down the road. A good parenting plan should specifically state when the children are to be exchanged. For example, a plan that says the children are to be exchanged on “Friday at 5 p.m.” is better than a plan that says the children are to be exchanged “Friday evening”. Parents should remember, they can always later agree contrary to what the parenting plan says, but the parenting plan is what they will have to fall back on if they can’t agree, so it helps if the plan is unambiguous.
When the children are with non-primary residential parent, that parent has full control over the day-to-day activities and decision making for the children absent any court order limiting his or her decision-making authority.
Both parents have complete access to healthcare information and school records. Both parents are free to travel with the children as they wish, absent any limitation ordered by the court because of some serious concern.
In determining where the children should primarily reside, the factor the courts give most attention to is the pre-separation history. Was one parent more responsible for the day-to-day care of the children?
The wishes of the children are also considered – particularly the older the children are. However, there is no particular age at which children have a right to choose where they will live.
The law disfavors the separation of children from their siblings. Normally, the family home is awarded to the person who will be the primary residential parent, unless the parents agree otherwise.