IF WE HAVE BEEN LIVING SEPARATELY, ARE WE LEGALLY SEPARATED?
No. You are “de facto” separated if you have been living separate and apart with no intent to resume the marital relationship. You are not legally separated until and unless there is a case filed resulting in a Decree of Legal Separation being entered by the court. If the spouses disagree about whether they intended to resume the marital relationship, the court will decide the date of separation. When the parties are de facto separated, they are no longer a community. Property acquired by each would be separate property (including income) and debts incurred by each would be separate debts. The character of property and debts (separate or community) needs to be agreed upon or determined by the court, based on the evidence presented by each spouse about whether they intended to resume the marriage when they separated.
WHAT IS THE DIFFERENCE BETWEEN A LEGAL SEPARATION & A DISSOLUTION OF MARRIAGE (DIVORCE)?
Nothing other than the mandatory, minimum 90 day waiting period to enter final orders may not be applied to the legal separation—and the parties remain married after the Decree of Legal Separation is entered. Otherwise, all of the same final orders must be entered, including a Decree permanently dividing the parties’ debts and assets and, if there are children, a Parenting Plan and an Order of Child Support. Either party may file and serve a simple Motion to convert the Legal Separation to a Dissolution six months after the Decree of Legal Separation is entered by the Court. All of the final orders remain the same, but the parties are then divorced.
WHY WOULD ANYONE FILE FOR A LEGAL SEPARATION?
Some reasons for filing for separation vs. dissolution include: religious beliefs, to divide finances and consider the relationship anew, or to maintain benefits as the other spouse’s dependent. For example, some (but not all) health insurance policies may continue to cover the spouse as a “dependent” after a Decree of Legal Separation has been entered but would no longer apply once a Decree of Dissolution is entered. In that instance, the parties may start with a Legal Separation and convert it to a Dissolution after the six-month period allowed by law, or longer if they agree. If one person wants a dissolution and the other wants a legal separation, the parties are not required to get a legal separation first.
WHO CAN FILE A PETITION FOR DISSOLUTION OF MARRIAGE?
Either spouse can file. It does not matter who is the Petitioner and who is the Respondent; neither designation affects how the case operates. If the parties agree, they may both sign the Petition by including a “Joinder” in the Petition (included in the court’s mandatory form), but this isn’t necessary. If only one person wants the divorce, they can file without the other one agreeing but, in that instance, there are requirements about personally serving the Petition on the other spouse. Law enforcement does not need to personally serve the papers. The other person may also sign an Acceptance of Service. Or, if several attempts at service have failed, the court may allow service by other means such as publication.
Washington is a no-fault state. The Petition simply says that the marriage is “irretrievably broken.” No other details are needed, and the laws to divide property and debts are without regard to fault. There are very limited exceptions to this regarding wasting of assets (for example, intentionally failing to pay taxes during marriage or wasting funds on a drug addiction).
IF WERE NEVER MARRIED BUT LIVED TOGETHER, CAN THE COURT DIVIDE OUR PROPERTY AND DEBTS?
Yes. Washington State does not have a ‘common law’ marriage law; however, if the parties agree (or court finds) that they have lived together essentially like a married couple, the court applies the same principles used to divide property and debts in dissolution cases. This relationship may be called a Committed Intimate Relationship (CIR) or “an equity relationship.” It was previously known as a meretricious relationship. Not all of the same rights exist in a CIR as in a marriage; spousal maintenance and attorney’s fees contributions are not applied in CIRs. If the parties are unable to agree, one of them may file a Complaint for the Division of Property and Debts. There is no mandatory form available for this document currently.
The first question would be whether the parties were in a CIR. The basic questions for this decision are whether they have continuously cohabitated, how long they have been together, the purpose of their relationship, whether they pooled resources and services, and the parties’ intent.
The period of time in which the parties lived together in a CIR before marriage may also be tagged onto the number of years of the relationship, to be considered in the dissolution of marriage (or legal separation). The court may also consider community labor of money that increased the value of separate property owned by one of the partners.
IF WE ARE SAME SEX PARTNERS, CAN THE COURT DIVIDE OUR PROPERTY AND DEBTS?
Yes. Same sex partners may have a CIR, discussed above. Registered domestic partners may also dissolve their partnership. In 2008, the law used to divide property and debts was changed to also include domestic partners. In 2012, partners in a state registered domestic partnership were able to marry. Additionally, state-registered domestic partnerships in which neither person was 62 years or older, were automatically deemed a marriage as of June 30, 2014.(RCW 26.60.100.) The partnership is dissolved the same way a marriage is dissolved.
Domestic partners may also have a common law “equity relationship” that may be tagged onto the years of marriage, and the court may equitably distribute community property they acquired during that time.
WHAT IF WE HAVE A CHILD TOGETHER, BUT WE ARE NOT MARRIED?
You may file a Petition for Establishment of Parentage and, within that case, enter a Parenting Plan (or a simpler, Order Re Residential Schedule) and an Order of Child Support. If both parents have agreed that they are the parents, parentage is admitted. If both parents do not agree, one or the other may ask that court to order DNA testing. Upon a finding of parentage, orders may be entered, by agreement or after a court hearing, regarding the child’s residence and child support.
WHAT HAPPENS IF I GET STATE AID FOR MYSELF AND MY CHILD?
The State will take action to collect child support from the other parent. In effect, the State wants to be reimbursed for any aid they have paid. Both parents are financially responsible for their child.
IF I HAVE AN ORDER OF CHILD SUPPORT FROM YEARS BACK, HOW CAN I UPDATE IT?
Most Orders of Child Support include an adjustment paragraph. Even if that paragraph simply says, “per statute,” the law allows for child support to be adjusted every two years by filing a Motion to Adjust Child Support in Family Court. The parents’ incomes and the child(ren)’s age(s) are updated to create new worksheets.
IF I HAVE LOST MY JOB, MY EX-SPOUSE HAS REMARRIED OR SOMETHING ELSE HAS CHANGED, WHAT CAN I DO?
You can file a Petition to Modify Child Support if there has been a significant change of circumstances, even if the Order was adjusted within the last two years. This process is a bit more complex and longer than the Motion to Adjust, but it is available to address things beyond a typical increase in the parents’ income.
Note: The remarriage of a parent does not automatically affect child support; the new spouse does not have an obligation to support the child. The income of a new spouse/partner or other adults in the household may be a basis for a deviation from the usual calculation of child support; however, that income by itself is not a sufficient reason for a deviation. (There are several “deviation standards” that the court may consider in setting support at an amount other than the standard calculation.)
WHAT HAPPENS IF MY EX-SPOUSE WANTS TO MOVE OUR CHILD(REN)?
Parenting Plans entered after June 8, 2000 include a summary of the laws regarding relocation. The primary residential parent is presumed to be able to move the child(ren) out of the school district (which may mean a move across town or across the country). The primary parent is required to give written notice to the other parent and if the other parent objects, the objecting parent must timely file an Objection and begin a process in which the court will hear from both parents and decide whether the objecting parent has rebutted the presumption that allows the move.
If the parents have equal residential time, there is no rebuttable presumption, but the objecting parent would still need to file an Objection to stop the proposed move.
WHAT IF THE PARENTING PLAN ENTERED DURING THE DIVORCE BECOMES UNWORKABLE?
The basic presumption is that the court shall not modify a Final Parenting Plan – which is why you want to make certain you are satisfied with the written terms in a Final Parenting Plan. There are, however, a few exceptions. A Petition to Modify a Parenting Plan may be filed if there is a significant change or circumstances that create a situation that is detrimental to the child(ren). There are also limited instances in which a Petition for a Minor Modification may be filed, such as increasing the non-primary parent’s residential time by adding up to another 24 days or less per year, or to change the schedule due to a change in work schedules. If the parents agree, a modification of the Plan may be entered by agreement.
WHAT IF I AM A GRANDPARENT OR OTHER FAMILY MEMBER WANTING TO SEE A CHILD AND THE PARENTS WILL NOT LET ME?
RCW 26.11 allows for a relative with a substantial, ongoing relationship (two years or half of the child’s life if younger than age 2) to petition for visitation. It must be shown that the child has a substantial risk of suffering harm if the visitation is not allowed. The law presumes that a fit parent’s decision is in the child’s best interests. Mandatory forms are available for this type of case, as they are for other family law matters.