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Ending Your Marriage or Domestic Partnership in Washington with Children: The Basics

Authored By: Northwest Justice Project LSC Funded
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If you have children and are considering getting a divorce, you should read this first. #3240EN

Contents
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Section 1: Ending the relationship
Section 2: Where to file
Section 3: How long will it take?
Section 4: I want child support or a parenting schedule now. What do I do?
Section 5: Dividing Property & Debts
Section 6: Custody and visitation
Section 7: Child support
Section 8: Our Do-it-Yourself Family Law Packets

 

Section 1: Ending the relationship

 

Do I need a reason to get a divorce?

No. Washington is a “no-fault” divorce state. You do not need to prove a spouse was “at fault.” You must only prove irreconcilable differences: you no longer get along.

What does a divorce do?

It legally ends your marriage. The court can also divide your property and debts, award one of you maintenance (alimony), limit one spouse’s contact with the children or other spouse, change a spouse’s name, and, if you have children, enter a parenting plan and order child support.

What is a legal separation?

The court may give you everything a divorce does, but does not end the marriage. You are still married. Legal Separation has more info.

Can I get an annulment instead?

No. There is no legal “annulment” action in Washington. Legal Separation has more info.

I am in a domestic partnership. Do I file for divorce?

You file for divorce only if you are married. If you are in a registered domestic partnership, you file to end your partnership. Our Filing to End Your Domestic Partnership packet has forms and instructions.

Section 2: Where to file

Can I file for divorce in Washington?

Yes, IF one of these is true:

  • You live in Washington.

  • Your spouse lives in Washington.

  • You are in the military and stationed in Washington.

  • Your military spouse will be stationed in Washington for at least 90 days after you file and serve the divorce.

What if my spouse has never lived in Washington?

Washington must have personal jurisdiction over your spouse to be able to make certain types of orders. Washington generally will have personal jurisdiction over your spouse if one of these is true:

  • Your spouse lives in Washington.

  • Your spouse lived in Washington at some point during your marriage.

  • One of your children was conceived in Washington.

  • You still live, or are stationed in the armed forces, in Washington.

What if I cannot find my spouse?

You may still be able to file for divorce and serve your spouse by publication. You can still ask the court to end your marriage, divide any property and debts located in Washington, and (if Washington has jurisdiction over your children) enter a parenting plan. Service by Certified Mail or Publication has more info.

What if my spouse is Native American and lives on a reservation?

You may have to file your divorce in tribal court.  Talk to a lawyer with expertise in Indian law.

What if the children have not always lived in Washington?

Before filing for divorce here, make sure Washington has jurisdiction over your children. If not, you cannot ask for a parenting plan or custody order here.  You may need to file in another state.

Jurisdiction is complicated. If you have questions about whether Washington has jurisdiction over your children, talk with a lawyer as soon as possible. If you are low-income and live outside King County, call CLEAR at 1-888-201-1014.

Section 3: How long will it take?

You must wait at least 90 days after filing and serving the petition before entering final orders. If you and your spouse have an agreement, you can enter final orders right after the 90-day period.  Divorces can take longer than 90 days if the spouses cannot agree. If this happens, your case will go to trial.

*In most counties, you ask for a trial date after your spouse has filed a response.

How long it takes to finalize your divorce also depends on your county and how complicated your case is. If you have children, and there are claims of domestic violence, child abuse, alcoholism, drug addiction, or other things that could be dangerous to the children, or you have complicated property issues, your case could take much longer.

It is best to try to come to an agreement if possible. Trials can be complicated. You may need a lawyer.

Section 4: I want child support or a parenting schedule now. What do I do?

You may want Temporary Family Law Orders. The court enters these quickly. They can last until trial or the end of your case.

Example 1:  You want a parenting plan before trial saying who has custody and how much visitation the other parent will have.

Example 2:  You want an order keeping your spouse from cleaning out the bank accounts or selling things before trial.

Do I need temporary family law orders?

It depends:

  • Are you happy with how things are right now without them? 

  • Do you need an order making your spouse do (or stop doing) something?

Temporary orders can include:

  • A parenting plan saying whom the children will live with until the divorce is final. Until you have an order, each parent has an equal right to custody. If your spouse will not let you see the children, a parenting plan can give you visitation.  

  • Restraining orders to keep one spouse from harassing or coming near the other.

  • Restraining orders keeping a spouse from taking the children out of state.

  • Restraining orders keeping a spouse from getting rid of property, taking out loans in both your names, or taking your name off insurance policies.

  • Orders for temporary child support, maintenance (alimony), attorney’s fees, or use of your house or car.

  • Order that one spouse can live in the house and the other cannot.

  • Appointment of a guardian ad litem (GAL) or parenting evaluator. Guardian ad Litems in Family Law Cases has more info.

Do I need Immediate Restraining Orders?

If there is an emergency, you may need an Immediate Restraining Order right away. The judge often enters this without giving the other spouse any notice. (The other spouse later can have a hearing. The judge decides there if the order will continue.)

You may need this order if you cannot wait one to three weeks for a hearing to get help from the court. Examples:  Your spouse

  • Is harassing/harming you.

  • Has harmed the children OR poses a danger to them.

  • Has threatened to take the children.

  • Is taking a lot out of your accounts or selling/hiding property.

If you file for Immediate Restraining Orders, you do not need to file for Temporary Orders.

Can I change my temporary family law order?

Yes, any time before your divorce is final.  To ask the court to change a temporary order, you file another Motion for Temporary Family Law Orders.   

What if my spouse has hurt the children or me?

If you are afraid that your spouse may hurt/threaten you or the children, the court can issue special orders to help protect you. If you have been a domestic violence victim, or your spouse has threatened you, you can ask for a Domestic Violence Protection Order anytime. You can also ask for a permanent protection order as part of the final divorce orders.

A Domestic Violence Protection Order can:

  • Give you custody.

  • Set up visitation for your spouse, OR stop your spouse from seeing the children.

  • Keep your spouse out of the family home and away from your home, work, or school.

  • Order your spouse not to threaten, assault, harass, or stalk you.

  • Order your spouse to get domestic violence and/or alcohol/drug treatment.

  • Order your spouse to turn their gun in to law enforcement.

For more about Protection Orders, contact your court’s protection order advocates or local domestic violence program, or call the National Domestic Violence Hotline 1.800.799.7233.

Section 5: Dividing Property & Debts

What is community property?

You must tell the court about all your property and debts. Washington is a community property state. Generally, all property (house, other real estate, car) either spouse gets during the marriage is community property. It belongs to both spouses, even if only one is on the title. Each spouse’s earnings during the marriage is community property.

Your Divorce Petition proposes how the court should divide the property and debts. The court in the Final Divorce Order decides who gets what.

Separate property belongs to only one spouse. Generally, it is property you got before the marriage through inheritance or as a gift (before or during the marriage), or after separation.

*If you lived together before your marriage, property and earnings you had while living together might also be community property.  Talk to a lawyer.

Generally, all debts either spouse incurred during the marriage are community debts. Both spouses are equally responsible for them. You incur separate debts before the marriage or after separation.

The law about division of property in divorces can be complicated. Talk to a lawyer.

Will the court divide everything 50/50?

It depends. The court can make any division that is just and equitable, after considering:

  • The nature/extent of the community property.

  • The nature/extent of the separate property.

  • How long the marriage lasted.

  • Each spouse’s economic circumstances at the time the property division will become effective.

  • Whether the spouse with custody should get the family home.

What is a “just and equitable division” of property and debts?

It will depend. If you have children, the court looks at who gets custody. The court will probably let the parent with custody keep living in the family home, if possible. The court may award that parent more property and fewer debts, especially if the other spouse cannot pay much child support.

The court will also consider (especially if there are no children) what condition property/debt division will leave you each in post-divorce. It generally does not want one spouse very wealthy and the other poor. It will consider your

  • Age.

  • Health.

  • Education.

  • Work prospects.

Example 1:  You had a long marriage.  You have not worked much outside the home. The court may award you more community property (or long-term maintenance) so you do not end up much poorer than your spouse is. 

Example 2:  You are disabled. You cannot work. The court may award you more community property. 

Example 3:  The court can consider which spouse will be able to afford to pay the debts when deciding who must pay them.
In most cases, the court will award each spouse their separate property and order each to pay their separate debts. It rarely awards one spouse’s separate property/debts to the other.

I have a Prenuptial Contract, Domestic Partnership Agreement, or Community Property Agreement. What will happen?

You may have signed a written agreement before marrying stating how you would divide your property/debts if you divorced. We often call this a prenuptial agreement.

You may have signed an agreement during the marriage stating which of your property is community and separate. We call this a Community Property Agreement. Couples sometimes do these as part of an estate plan.

You might have signed an agreement after separation dividing property/debts. We call this a Property Settlement Agreement or Separation Contract.

If you think you have any written agreement about your property/debts, have a lawyer look at it. This might determine how the court will divide property/debts in your case.

I bought our car and most other property with my income. Should the court award me those things?

It depends. Property you bought with money earned during the marriage is community property. Your income during the marriage is community property. Anything you buy with your income belongs to you both. The judge will divide the car and other property according to what they decide is just.

My spouse owned our house before our marriage. We both paid the mortgage. Should I get part of the house?

Maybe. The court might award you an interest in the house. We sometimes call this an equitable lien.

The house is your spouse’s separate property. They bought it before your marriage. It remains separate after you marry UNLESS your spouse gives it as a gift to the community. This could happen if, for example, you refinance it in both names.

You may be entitled to an interest in any increase in the house’s value from improvements you made to the house (such as a remodel or new deck) during the marriage, plus the community payments on the mortgage. The court would subtract the house’s reasonable rental value from your community interest because you benefited from living there during the marriage. It could rule you have no community interest in the house because of the value you got from living there. 

*This issue is complicated. Talk to a lawyer.

What should we do with our home?

Look at

  • The home’s value.

  • What you still owe on it.

  • Your post-divorce incomes.  

Example: can just one of you pay the mortgage?  If not, awarding one of you the property may lead to foreclosure and damage your credit.  It might be safer to sell the property.

Do not create a post-divorce situation where title is in one name, the debt in another. Example: The divorce court awards you title to the home. No one takes action to make this official. Your spouse’s name stays on the mortgage. Your spouse falls behind on payments. It will then be very hard to get the lender to give you a modification with your spouse’s name still on the mortgage.  To avoid problems, you must refinance the property in one spouse’s name at/near the time of the divorce.

*These are important, often complex, considerations.  Talk to an experienced lawyer. 

I think we should sell our house. My spouse disagrees. Can the court order us to sell it?

Yes, even if one spouse objects. The court will most likely do this if one of these is true:

  • You must sell it to divide the property fairly.

  • You are behind on payments.

Do I have any right to my spouse’s pension?

It depends:

  • Retirement/pension benefits, including 401(k) plans, earned during the marriage are community property. Both spouses have a legal interest in them.

  • Pensions earned both before and during the marriage: the portion earned during the marriage (and the increase in value of that portion) is community property. 

  • Disability benefits substituting for pension benefits might be community property.

If you believe that your spouse has a pension (including a military pension), 401(k), IRA, or other retirement or disability plan, talk with a lawyer about what your rights. You may be able to get a Qualified Domestic Relations Order (QDRO) ordering your spouse’s pension plan to pay you benefits directly after your spouse retires. The Pension Rights Center publishes Your Pension Rights at Divorce: What Women Need to Know. Find out more at http://www.pensionrights.org/publications/book/your-pension-rights-divorce-what-women-need-know or call them at (202) 296-3776.

My spouse had an affair. I filed for divorce. Should the court give me more of the property?

No. Washington has “no-fault” divorce. The court cannot consider which spouse “caused” the divorce when dividing property. The court may consider if your spouse wasted marital assets without your consent OR tried to hide assets from the court.

I am not working. Can I get alimony?

Maybe. Maintenance (alimony) is a payment one spouse makes to the other for financial support. The court does not always award maintenance. It must look at things such as:

  • How long you have been married.

  • Both your financial situations, given the division of property/debts and your spouse’s ability to pay maintenance.

  • Time it will take for you to get education/training.

  • Standard of living during the marriage.

  • Your age/health.

If you have been unemployed a long time (example:  you stayed home to care for the children), you are more likely to get maintenance than if you have been laid off temporarily. On the other hand, you can get maintenance even if you are working, if the court decides you should enjoy the same standard of living you had during the marriage. You are more likely to get maintenance if both of these are true:

  • You were married many years.

  • You are disabled and/or stayed home to care for the children while your spouse worked. You are less likely to get a good job now. 

Maintenance payments generally end when you remarry/die.  The Final Divorce Order may say otherwise.

*Maintenance is complicated. Try to talk to a lawyer.

The divorce court ordered my spouse to pay our community debts. She did not. What can I do?

You must pay the debt and sue your spouse to pay you back.  Even if the court orders your spouse to pay a debt, the creditor (person owed) may still come after you to collect. You cannot stop the creditor by telling the creditor the debt is your ex’s responsibility.
If you think this might happen, check the “hold harmless” box in the Final Divorce Order form. It is the second box in section 12. Then, if you must sue your ex- to force them to pay you back for debts you paid, they must also pay your attorney’s fees and costs.

Can my ex get out of paying community debts through bankruptcy?

Maybe. If your spouse files for bankruptcy, you should get notice of it. Talk immediately with a lawyer who knows bankruptcy law. You may need to take part in the bankruptcy case to protect yourself.

Section 6: Custody and visitation

Washington courts generally do not say custody/visitation anymore. They talk about the residential schedule and decision-making authority for the children.

As part of your divorce, the court will decide:

  • Who will have custody, or if the children will live with each parent half-time.   

  • Visitation.  

  • Who will make decisions about the children’s schooling, medical care, and other issues.

  • How you will work out future disagreements about the children.

The court puts this in a court order we call a Parenting Plan.

*How the court decides your parenting plan is complicated. Talk with a lawyer about your case if possible.

Do we need a parenting plan?

Yes, if you have one or more children together under age eighteen. If your spouse served you with a parenting plan, and you disagree with what it proposes, you must file your own proposed parenting plan. The court may enter a temporary parenting plan to cover the period while the divorce is pending. It enters a permanent parenting plan at the end of your divorce.

What happens if I do not follow the parenting plan?

A parenting plan signed by a judge/court commissioner is a court order. You both must follow it. If you do not, the court could hold you in contempt. You might face criminal charges.

You must have a good excuse not to follow a parenting plan. Example: following it would cause serious harm to you or the child. Even then, you cannot simply stop following it. You must go back to court to ask to change it. Do this as soon as you can. Then the court can approve a new, more appropriate schedule. Changing a Parenting Plan/Child Custody Order has more info.

If you believe your child may be in danger, you can contact Child Protective Services (CPS).

*If you do not want to follow part of a court-ordered parenting plan, get the other parent’s permission in writing OR contact a lawyer.

How will the court decide custody?

It must consider:

1. Reasons to restrict one parent’s time with the children

The court must first decide if there is any reason under RCW 26.09.191 to limit a parent’s time/contact with the children. In most cases, the court must limit a parent’s time if that parent, or someone living with him/her, has engaged in any of these:

  • Long-time willful abandonment of or refusal to care for the children.

  • Physical/sexual/emotional abuse of any child.

  • A history of domestic violence or an assault or sexual assault that causes serious bodily harm or the fear it.

  • Has a conviction as an adult of certain sex crimes with a child victim, or has been found to be a sexual predator.

The court may choose to limit a parent’s time with the child if it finds any of these:

  • The parent neglected or substantially failed to provide care for the children.

  • The parent has a long-term emotional/physical problem interfering with their ability to take care of the children.

  • The parent has a long-term drug, alcohol, or other substance abuse problem interfering with their ability to take care of the children.

  • There is no bond or a seriously damaged bond between parent/child.

  • That parent has engaged in the abusive use of conflict, creating a danger of serious damage to the child’s psychological development.

  • The parent has kept the child from the other parent for a long time for no good reason.

  • There is another reason unrestricted contact would be bad for the child.

2. Limiting a parent’s time if there is a reason to under RCW 26.09.191

It depends. In most cases, the court will not let this parent have custody. In very serious cases, it must order no contact between parent/child. 

*The court must follow very detailed rules if a parent or someone living with them has a conviction for a sex crime against children or been found to have molested/harmed children in a civil case. Courts rarely allow that parent unsupervised contact with their child. If you or your spouse has a conviction for such a crime, talk to a lawyer.

The court may order any restriction reasonably calculated to protect the child OR a parent from abuse/harm that could come from contact with the other parent.  Restrictions can include requiring a parent to:

  • See the children only when supervised.

  • Complete domestic violence or substance abuse treatment.

  • Take random drug/alcohol tests.

  • Complete a parenting class.

  • Go to counseling or take medication for a mental health condition.

  • Complete a sexual deviancy evaluation.

  • Stop interfering with the other parent’s contact with the children.

  • Stop creating conflict with the other parent without good reason.

3. None of RCW 26.09.191 applies. How will the court decide custody?

The court must encourage each parent’s relationship with the child, consistent with the family’s social/economic circumstances. The court must consider:

  • The relative strength/nature/stability of the child’s relationship with each parent.

  • The parents’ agreements, if you entered them knowingly and voluntarily.

  • Each parent’s past/future potential for taking care of the children, including if one of you has taken more daily responsibility.

  • The child’s emotional needs and developmental level.

  • The child’s relationship with siblings and other important adults, and involvement with school/activities/community.

  • Your wishes.

  • The child’s wishes, if mature enough to say. (This usually means a teenager.)

  • Each parent’s work schedule. 

The court should not give much weight to:

  • Which parent earns more, or is remarrying.

  • When deciding a permanent parenting plan, what the temporary parenting plan says.

RCW 26.09.187.

4. Will the court order equal time with the children?

Only if it finds it is in the child’s best interests.  How close the ex-spouses live to each other may matter.

How will the court decide who should make important decisions about the children?

Either parent can make emergency OR day-to-day decisions (examples: what the child will eat; who will babysit the child) when the child is in that parent’s care. The court may allow one or both parents to make non-emergency decisions, such as where the child will go to school, what health care providers the child will see, when the child gets medical care, and what religious institution the child attends.
The court must give only one parent the authority to make these decisions if there is a limiting factor under RCW 26.09.191 against the other parent OR the parents do not want to decide together. If one parent disagrees with joint decision-making, the court may order one parent sole decision-making if 

  • RCW 26.09.191 applies to the other parent.

  • The other parent has never taken part in decision-making about the children.

  • The parents cannot and do not want to cooperate.

  • The parents do not live close enough to each other.

In most cases, the court should treat decisions about the children’s religious upbringing differently from school and medical care decisions. The court should allow each parent to provide the child the religious instruction of the parent’s choice while in that parent’s care, unless it decides that exposure to a parent’s religious views will harm the children.

What is alternative dispute resolution?

The parenting plan has a section saying how you will solve future disagreements about it. Alternative Dispute Resolution (ADR) refers to ways of solving disagreements besides going to court. You can choose counseling, mediation, or arbitration. The court should not order ADR if any of these is true:

  • RCW 26.09.191 applies to one parent.

  • The parents cannot take part in ADR equally.

  • One parent cannot afford ADR.

In any of those cases, the parenting plan should just require you to go back to court over any future disagreements about the parenting plan. 

If you choose counseling, you typically meet with a mental health professional who uses counseling techniques to help you solve your disagreement. If you choose mediation, you meet with a mediator, a neutral third party who may be a lawyer, retired judge, or mental health professional. The mediator tries to encourage you to come to an agreement. If you choose an arbitrator, you meet with a neutral third party (often a lawyer or retired judge) who tries to help you reach agreement, but who makes a decision you both must follow if you cannot agree. You can file a motion asking for a review of the arbitrator’s decision if you do not agree with it.

In most cases, you must pay for ADR. It can cost a lot. However, ADR can also help you avoid the stress/expense/unpredictability of going to court. Some people find ADR helpful.

Can I move to a different state with the children?

Your parenting plan says what happens if you want to move. You must give the other parent notice before moving. They can object to the move and ask the court to change your parenting plan. RCW 26.09.405 - RCW 26.09.560 Questions and Answers about Washington’s Relocation Law has more info.

My spouse is pregnant. Can we get a divorce?

Yes. You must tell the court your spouse is pregnant. The court cannot use the pregnancy to put off entering final divorce orders.

*The law presumes that any child born during your marriage or within 300 days after the entry of your Final Divorce Order is your spouse’s child even if it is not actually their biological child. 

You should resolve the unborn child’s paternity before the entry of Final Divorce Orders.  You can:

  • File a motion for genetic testing. Parentage Cases: Filing a Motion for Genetic Testing has forms and instructions.

  • Contact the Division of Child Support, for referral to the family support section of the Prosecuting Attorney’s office. They may file a parentage action in court to determine the child’s paternity. There are strict time limits in which a presumed or acknowledged father may deny/challenge paternity. Talk with a lawyer.

Section 7: Child support

What is child support?

It is what one parent pays the other to help support the children. You usually must pay child support monthly. The court bases the amount on the Washington State Support Schedule. The court also considers

  • The children's needs.

  • Both parents' incomes.

Parents have a legal duty to help support their children. In most divorce cases, the non-custodial parent pays the other parent child support. Even if the parents split custody evenly, one may have to pay support if there is a big difference in their incomes.

*A stepparent may have a legal duty to help support stepchildren until a divorce from the child’s parent is final or the court ends this obligation.

How does the court decide the child support amount?

The court uses the Washington State Child Support Schedule. It works like an income tax table. The court figures out each parent’s income, adds it together, and finds the amount of support on the Schedule that applies to the number/ages of children you have.

The court’s main concern is making sure your children have enough to meet their needs. Support is for clothes and food, to give the children a place to live (rent/mortgage/utilities), and assure they have decent daycare and medical care.

You both may have to share costs for uninsured health care, daycare, school tuition, and long-distance visits. The court determines how much each parent pays in proportion to their incomes and by considering the number of children living with them. The court may award the federal income tax exemptions each spouse is entitled to claim.

Section 8: Our Do-it-Yourself Family Law Packets

What packets do I need?

The Northwest Justice Project has several do-it-yourself packets. They have instructions and forms for getting through your divorce. This list should help you decide which you need. You may need more than one. Get only what you need at the time you need them.

What if I do not want to or cannot use one of the packets?

Hire a lawyer to represent you. If you can afford to, you should talk to one about your case and consider hiring them to file for you. If you cannot afford a lawyer, contact your local legal services office. Some legal services offices, county bar associations, and pro bono programs handle divorces. They usually can directly represent only a very few people. If you are low-income and live outside King County, call CLEAR for a referral at 1-888-201-1014. If you are low-income and live in King County, call the King County Bar Association at (206) 623-2551. Ask for a referral for low-income representation in family law.

Take a “Self-Help” class. Some counties have classes on how to file your own divorce. It may cost more than this packet, but may give more help with forms and local procedures. If you can go to a class, you should. To find out if your county has a self-help class, contact your local family law facilitator, if there is one.

Where available, use the local family law facilitator’s Do-It-Yourself packets. Some counties have family law facilitators who can help you file your own divorce. They are not lawyers. They cannot give legal advice. They do often have do-it-yourself packets designed for that county.

Where do I get more info about the law?

We have other publications and packets on our website, www.washingtonlawhelp.org, and links for legal research. If you need more info, or do not have internet access, visit your local law library (usually in your county’s Superior Court building). The library staff may be able to help you find the resources you need.

 

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This publication provides general information concerning your rights and responsibilities. It is not intended as a substitute for specific legal advice. This information is current as of November 2018.

© 2018 Northwest Justice Project — 1-888-201-1014
(Permission for copying and distribution granted to the Alliance for Equal Justice and to individuals for non-commercial purposes only.)

Last Review and Update: Nov 07, 2018
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