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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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3240EN - If you have children and want to get a divorce, you should read this publication first.

Contents
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Section 1: Introduction

Section 2: Ending the relationship

Section 3: Where to file

Section 4: How long it will take

Section 5: What to do if you are served with divorce papers

Section 6: Getting a court order in fewer than 90 days

Section 7: The house and other property, and the debts

Section 8: Custody and visitation

Section 9: Child support

Section 10: Our Do-it-Yourself Family Law Packets

Section 11: Yakima County Superior Court Suggested Residential Schedule Guidelines

 

Section 1: Introduction

This publication gives an overview of the state laws that apply to ending your marriage or domestic partnership in Washington. Use this publication

  • to file for divorce or end your domestic partnership

  • if you have been served with divorce papers

*To make things simpler, "spouse" in this publication refers to either your spouse or partner, "marriage" means either your marriage or partnership, and "divorce" means either your divorce or your petition to end domestic partnership case.

You can also use one of our do-it-yourself packets. They have forms and instructions for filing or responding to a Petition for Divorce or to End Domestic Partnership.  Ask the county court clerk or family law facilitator (if your county has one) if your county has their own packet. Local packets may be easier to use. They have required local forms and procedures. 

Before filing anything in court, try to meet with a lawyer who specializes in family law. If any of these are true, talk to a lawyer before using our packets:

  • you or your spouse has a lot of money or property

  • you have been married a long time

  • the other spouse is going to disagree with any of what you are requesting

You may lose rights if you do not present them properly in your case. Even if you cannot afford to have one file your case, at least get advice from a lawyer. If you are very low-income and you live outside King County, call the CLEAR hotline at 1-888-201-1014.

Section 2: Ending the relationship

Do I file for divorce or to end a domestic partnership?

You may file for divorce only if you are married. If you are in a registered domestic partnership, you file to end your partnership.
Usually, if you are legally married according to the laws of the state or country where you got married, Washington state will recognize your marriage as legal. 

Will I need to prove one of us caused the marriage to end?

No. Washington is a "no-fault" divorce state. You do not need to prove a spouse was "at fault." You must only prove there are irreconcilable differences (you no longer get along).

*State law about divorce also applies to marriages between same-sex couples. See the publication called Marriage for Same-Sex Couples in Washington by the ACLU for more information. https://aclu-wa.org/marriage

What can a divorce do for me?

Its main purpose is to legally end your marriage. In general, the court may also divide your property and debts, award a party maintenance (alimony), enter orders restricting one party's contact with the other party or children, change a party's name, and, if you have children, enter a parenting plan and order child support.

*To make things simpler, "spouse" in this publication refers to either your spouse or partner, "marriage" means either your marriage or partnership, and "divorce" means either your divorce or your petition to end domestic partnership case.

In some cases, the court may have the power to end your marriage, but cannot grant other relief. It depends on whether the court has jurisdiction over the other party and your children. If Washington does not have jurisdiction over the other party or your children, you may still file for divorce here. However, there will be limits on what the court can order. We explain below.

What is a legal separation?

In a legal separation, the court may grant all the relief available in divorce, but does not end the relationship. The married couple is still married; the domestic partners are still partners.

You might file for legal separation instead of divorce because you do not want to end the marriage, but you do want the other relief (such as a parenting plan, or property and debt division) available. Example: your religious beliefs discourage you from filing for divorce.

We have no packet on filing a petition for legal separation. The procedures are alike and use the same forms. For more information, talk to the family law facilitator (if your county has one) or court clerk.

If you are thinking about filing for legal separation:

  • You do not need to file a petition for legal separation before filing for divorce.

  • To make sure you are not responsible for debts your party may create after one of you moves out of the house, file for divorce and a motion for Temporary Family Law Orders.

  • If you file for legal separation, but the other party counter-petitions divorce, the court will probably grant the divorce. To get a divorce, one party only needs to show there are irreconcilable differences.

  • If you file a legal separation, but later change your mind and want a divorce, you must file and serve a new petition for divorce (unless the other party has already cross-petitioned for divorce).

  • You can easily change a legal separation decree to a divorce. Any time after six months have passed after the entry of the decree of legal separation, either party may file a motion to change it to a divorce order. The court must grant the request.  All the other parts of your legal separation orders (such as the parenting plan and child support order) will stay in effect. Our packet called Legal Separations: What if I Want a Divorce or to Get Back Together has forms and instructions for converting a legal separation to a divorce or petition to end domestic partnership.

Can I get an annulment instead?

No. There is no legal "annulment" action in Washington. A little-used action called a petition for a declaration of invalidity is like an annulment. It declares the marriage was void (could not legally exist) from the day it started. This action applies to very few cases.  The court must decide the parties should never have been married or registered because of one of these:

  • one or both parties were under age (under 17)

  • lack of required parental or court approval for persons under 18

  • one or both parties was already married when the marriage took place or you registered the domestic partnership

  • the parties are too closely related by blood

  • one party lacked capacity to agree to the marriage (could not give consent), because of mental incapacity or alcohol or drugs

  • a party was made to enter into the marriage by force or threat, or by fraud

Even if the court finds one of these is true, the petitioner must also prove the parties have not voluntarily continued to live together as husband and wife after turning 18, or after having the ability to consent, or after the force or threat stopped or discovery of the fraud.   Only the party who was the victim of force or fraud may petition for a declaration of invalidity. 

*Talk to a lawyer if you want to file a petition for a declaration of invalidity, or have been served with such a petition.

Section 3: Where to file

Can I file for divorce in Washington?

Yes, IF:

  • You live in Washington OR

  • The other party lives in Washington OR

  • You are in the military and stationed in Washington OR

  • The other party is in the military and will be stationed in Washington for at least 90 days after the date you file and serve the divorce

*To make things simpler, "spouse" in this publication refers to either your spouse or partner, "marriage" means either your marriage or partnership, and "divorce" means either your divorce or your petition to end domestic partnership case.

What if one spouse has never lived in Washington?

Washington must have personal jurisdiction over the respondent (the one who did not file the divorce) to be able to make certain types of orders. Washington generally will have personal jurisdiction over the respondent if one of these is true:

  • Respondent lives in Washington

  • Respondent lived in Washington at some point during your marriage

  • One of your children was conceived in Washington

  • You (Petitioner) still live, or are stationed in the armed forces, in Washington

If you are the respondent and you have never lived in Washington, Washington will only have personal jurisdiction over you if you do something to give it jurisdiction. If Washington does not have personal jurisdiction over the respondent, the Washington court cannot order that party to pay maintenance, child support, or debts, or divide any property that is not physically in Washington. 

The petitioner (the party who files the petition) may still be able to get a divorce even if the court will not decide custody and property issues. If Washington has jurisdiction over your children (see below), the court can enter a parenting plan even if Washington does not have personal jurisdiction over the respondent.

*If you believe Washington lacks jurisdiction over you, you must make that claim in writing to the court before filing anything else (such as a response) with the Washington court. If you do not challenge jurisdiction right away, you can waive (give up) your right to challenge Washington's jurisdiction over you.

You may agree to Washington having jurisdiction over you if you want to.

What if I cannot find my spouse?

You may still be able to file for divorce and serve the other party by publication. If you do, you may 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.

Think carefully before relying on service by publication. If you serve the other party by publication, you must follow the rules for doing so very carefully. Otherwise, a court could set your orders aside years later.

Service by publication does not give the court personal jurisdiction over the other party unless you can prove that the other party is hiding to avoid being served or to avoid paying debts.  A court that does not have personal jurisdiction over the other party cannot set child support, order maintenance, or enter restraining orders.

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

Even if it is not his/her tribe of origin, you may have to file your divorce in tribal court.  Talk to a lawyer with expertise in Indian law.

I have been served with divorce papers. I do not think my case should be in Washington. What should I do?

If you think the Washington court should not have jurisdiction over you, the children, the property, and/or the marriage, you must argue about jurisdiction BEFORE filing anything else. See a lawyer. If you cannot afford one, do not do anything that could give Washington jurisdiction over you, such as filing a response, signing agreed orders, or asking the court to grant relief to you (other than dismissing the case).

If you do not tell the court you do not think Washington has personal jurisdiction over you right at the start, you probably will not be able to object later. You should object to jurisdiction over your children early in the case if possible.

You should write the court before any hearings and tell it why you believe Washington does not have jurisdiction over you. You may also file a motion to dismiss for lack of jurisdiction. For more information, talk with a lawyer.

If a hearing is already scheduled, and you cannot write the court before the hearing, go to the hearing in person (or call the court in advance to ask about appearing by phone). Tell the judge why you think there is no jurisdiction over your case. A judge who decides in your favor should dismiss the case to the extent that the Washington court has no jurisdiction over the case. If the judge rules against you, be ready to respond to the divorce in Washington.

*If you are going to a hearing to tell the judge you think Washington lacks jurisdiction, you should still prepare a response to the motion or petition before the hearing. Do not file the response, but bring it with you to the hearing. If the judge decides that Washington has jurisdiction, you should then ask the judge to read your response.

Which county should I file in? 

You may file for divorce in the county where you live OR the county where your spouse lives. If you file in the county where you live, and your spouse wants to move the case to the county where s/he lives, the court may (but does not have to) change venue.  See the publication called Filing a Motion for Change of Venue in a Family Law Case at our website www.washingtonlawhelp.org. You should also talk to the family law facilitator or court clerk to see if a local publication is available, and/or talk to a lawyer. If you are low-income, and live outside King County, call CLEAR at 1-888-201-1014.

Filing in a County Where Neither Party Lives: Some private services prepare divorce papers for a fee. They may advise you to file your divorce in a county neither spouse lives in. Non-residents commonly file for divorce in Lincoln County. Do not do this. The responding party has the legal right to move the case to the proper county. This will mean more paperwork for you. 

There are also practical problems with filing in a county where you do not live. It will make all of these harder:

  • Filing a motion, going to trial, or getting copies of your court papers.

  • Changing the final court order later

  • Getting a default order against your spouse if s/he does not respond to the petition

*If you cannot afford the divorce filing fee in your county, make a motion asking the court to waive the fee. Our publication called Filing Fee Waiver has more information. Our packet called Filing for Waiver of Your Filing Fee has forms and instructions.

What if the children have not always lived in Washington?

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

*Our publication called Which Court Can Enter Custody Orders? Questions and Answers about Jurisdiction has more information.

If your children have always lived in Washington and no other state has entered a custody order about them, Washington has jurisdiction over them. Go to Section 4.

If your children have not always lived in Washington, use the basic guidelines below to make sure Washington has jurisdiction over them before filing for divorce if you want to a Washington court to decide custody. Jurisdiction is complicated. If you are unsure if Washington has jurisdiction over your children, talk with a lawyer.

1) If you already have a court order about custody of the children, and a party to that case or the children still live in the state that entered the court order, that state still has jurisdiction over the children. You must file a custody action there. (We call this continuing jurisdiction.). When another state has continuing jurisdiction over your children, you may still file for divorce here, but Washington cannot grant you a parenting plan or custody order. If Washington has continuing jurisdiction over your children, you may get a parenting plan here.

2) If no court has ever entered a custody order about your children, Washington has jurisdiction over them if:

a. Your children have lived in Washington with a parent (or custodian at least six months in a row before you filed your divorce – Washington is your child's home state.

OR

b. Your child is less than six months old and has lived in Washington with a parent or custodian since birth at the time you filed your divorce – Washington is your child's home state.

OR

c. Washington was your child's home state (either a. or b. were true) within six months before you filed your divorce, and one parent or custodian has been living in Washington since the child left the state.

3) If Washington does not have continuing jurisdiction (under 1) or home state jurisdiction (2), you may still be able to get a parenting plan or custody order here if you can show there is an emergency (see paragraph 4 below), or no other state is the children's home state (meets the requirements of 2.a., 2.b., or 2.c.).

If another state is your children's home state, or was their home state within the last six months, Washington probably will not have jurisdiction over them until they have lived in Washington for six months in a row.

*You and your spouse cannot agree to give Washington jurisdiction over custody. If Washington does not have jurisdiction over your children under the UCCJEA, you must file a court case asking for custody in the state that has jurisdiction over the children, or ask the other state to decline and allow Washington to take jurisdiction. If you want to ask another state to decline jurisdiction, talk to a lawyer.

4) Emergency jurisdiction: In certain limited cases where an emergency requires court orders protecting your children from abuse, Washington may be able to take emergency jurisdiction over the children. Emergency jurisdiction usually is temporary. Washington's order typically will last only until someone files a case in the children's home state. Your children must actually be in Washington at the time you file your petition for Washington to take emergency jurisdiction.

*If Washington takes emergency jurisdiction over your children and you want their home state to decide custody, you must file a custody action right away in their home state and have the Washington court communicate with it. If you wait too long, Washington becomes the children's home state. The other state loses jurisdiction to Washington.

Jurisdiction is very 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 4: How long it will take

*To make things simpler, "spouse" in this publication refers to either your spouse or partner, "marriage" means either your marriage or partnership, and "divorce" means either your divorce or your petition to end domestic partnership case.

You must wait at least 90 days after filing the petition serving it on your spouse before entering final orders. Divorces often take longer than 90 days. If your spouse responds and disagrees with anything in your petition, the amount of time it takes to finalize your case will depend on your county and how complicated your case is. In some counties, the court will give you a trial date at the start of the case. In most others, you must ask for a trial date after the other parent has filed a response. 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.

*A divorce can take anywhere from four to eighteen months to finalize.

Section 5: What to do if you are served with divorce papers

Read ALL documents you receive very carefully.

Find out what county your case is in.

Look at the papers. They should say "Superior Court of the State of Washington, County of _______" at the top. Make sure your case was filed in the right county. See Section 3 above.

If you have been served with a Motion for Temporary Family Law Orders or Immediate Restraining Order

Look carefully at the title of your papers (upper right section of the first page, under the case number).

Note:  Some of the packets listed above are for divorce. The procedures and instructions are basically the same as for ending a domestic partnership.

*An Immediate Restraining Order and Hearing Notice is a court order your spouse got without giving you notice. You must obey the Immediate Restraining Order until your court hearing.  At your hearing, the court will decide whether to keep the Immediate Restraining Order in effect.

Respond on time!

When you are served with legal papers, you must figure out right away how to respond. If you do not respond on time, your spouse will automatically get what s/he wants. For a motion, you may have as few as four business days after receiving the papers to file your response. It takes time to find legal resources and read through this packet. Start as soon as you can. If you cannot respond in time, you must file a Notice of Appearance and ask for a continuance. (See below.)

Talk with a lawyer

Talk to a lawyer familiar with family law before filing anything. Some counties have family law facilitators who can help fill out forms or free legal clinics that give legal advice.

  • Do you live in King County? Call 211. 211 is open Monday through Friday between 8:00 a.m. and 6:00 p.m.  From a pay/public phone, call 1-800-621-4636. 211 will identify and refer you to the appropriate legal aid provider.

  • Apply online with CLEAR*Onlinehttps://nwjustice.org/get-legal-help

  • Call the CLEAR Legal Hotline at 1-888-201-1014.

Get the Do-it-Yourself packets you need

See Section 10 below.

Section 6: Getting a court order in fewer than 90 days

You may want Temporary Family Law Orders. These are orders the court enters very quickly that can last until trial or the end of your case.

Example 1:  You can ask for Temporary Family Law Orders if you want a parenting plan before trial saying which parent the children will live with and how much time they will spend with the other parent.

Example 2:  You can ask for an order before trial making it clear you are not responsible for your spouse's debts, or to keep him/her from cleaning out the bank accounts or selling things. You may do this through a Motion for Temporary Family Law Orders or, in an emergency, through a Motion for an Immediate Restraining Order and Hearing Notice.

What is a temporary family law order?

It is an order the court can enter any time between when you file your Summons and Petition and the day your case is final giving you certain rights and/or protections before your case ends.

You must file a Motion for Temporary Family Law Orders and give your spouse notice and a chance to respond to your motion. You will have a hearing on the motion within about one to three weeks. At the hearing, the judge will decide whether to grant what your motion asked for. The amount of notice you must give your spouse before a hearing varies by county. Ask the court clerk or family law facilitator about your county's notice requirements.

Do I need temporary family law orders?

It depends:

  • Are you happy with how things are going right now without temporary orders in place? 

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

You may ask for many types of things in a temporary order, including:

  • A parenting plan saying how much time the children will spend with each parent until the divorce is final. Until you have a court order, each parent has an equal right to custody of the children. A parenting plan can also give you scheduled visitation with the children if you are being denied visitation. In deciding a temporary parenting plan, the court should consider the relative strength, nature, and stability of the child's relationship with each parent and which parenting arrangements will cause the least disruption for the child during the case, and the factors for deciding a permanent parenting plan.  See Section 8 below.

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

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

  • Restraining orders keeping a party from giving away or selling 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 property, such as house or car.

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

  • Appointment of a guardian ad litem (GAL) or parenting evaluator to investigate and make recommendations to the court about which parent should have custody and whether a parent poses a risk to the children.

Do I need Immediate Restraining Orders?

If there is an emergency, you may need the court protection of an Immediate Restraining Order right away. The judge often enters this order without giving the other spouse any notice. (The other party later has a chance to have a hearing where the judge will decide whether 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:  the other party

  • is harassing or harming you

  • has harmed the children or is a danger to them

  • has threatened to take the children

  • is taking large amounts of money out of your accounts or selling/hiding property

If you file a Motion for Immediate Restraining Orders, you do not need to file a Motion for Temporary Family Law Orders.

Can I change my temporary family law order?

Yes. Unlike a final Divorce Order, the court can change a Temporary Family Law Order 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 the other party has hurt me or the children?

If you are afraid the other party may hurt or threaten you or your children, the court can issue special orders to help protect you. If you have been a victim of domestic violence, or have been threatened with harm, consider asking for a Domestic Violence Protection Order. You can do this anytime. You may also ask for a permanent protection order as part of the final orders in the divorce.

A Domestic Violence Protection Order can:

  • Give care of children to one parent

  • Set up a visitation schedule for the other party (or stop the other party from seeing them)

  • Keep a person out of the family home and away from your home, work or school

  • Order a person not to threaten, assault, harass or stalk another

  • Order a person to get treatment for domestic violence and/or alcohol/drug treatment

  • Order a person to turn their gun or other weapon in to law enforcement

For more information about getting a Protection Order, contact your court's protection order advocates or your local domestic violence program, or call the 24-hour statewide domestic violence hotline at 1-800-562-6025.

Washington LawHelp also has a Petition for Order for Protection interactive interview that will put the forms together for you after answering questions. If you are thinking about asking for an Order for Protection, talk to a lawyer.

What is a Guardian ad Litem or Parenting Evaluator?

In a Motion for Temporary Family Law Orders, you can ask the court to appoint someone to make a recommendation about parenting arrangements. This publication has some information about GALs and parenting evaluators. Our packets, Guardian Ad Litems in Family Law Cases and How to Work with GALs and Parenting Evaluators, have more information.

Generally, the judge does not appoint a GAL to just report what your child wants but to investigate all parties' parenting history and abilities, the child's situation, and recommend what type of custody and visitation would be in the children's best interests. The main difference between a parenting evaluator and a GAL is that a GAL is a party to the case (who must get notice of all court hearings). A parenting evaluator is not.
The GAL or parenting evaluator may be a privately employed person who charges by the hour. The parties usually share the fees for a GAL. If you cannot afford a private GAL, ask if your county has a volunteer family law GAL program called Court Appointed Special Advocates (CASA) who the court can appoint for free. Your county may have a Family Court Services office which employs social workers to act as parenting evaluators in family law cases on a sliding scale or low fee. You can also use our packet Your Family Law Case: If You Cannot Afford the GAL Fee.

You may want to ask for a GAL or parenting evaluator if

  • there has been any physical or sexual abuse of you or the children

  • a parent is seriously mentally ill

  • a parent has an alcohol or drug addiction

The court may also decide to appoint a GAL or parenting evaluator even if you do not ask for one.

*Guardian ad Litems are "mandated reporters."  Under state law, a GAL must report a family to law enforcement or CPS when s/he has reason to believe a child in a family s/he is investigating has been abused or neglected.

Section 7: The house and other property, and the debts

Each party must tell the court about all his/her property and debts. The court must divide all the parties' property and debts in the Final Divorce Order.

Washington is a community property state. Generally, all property either party gets during the marriage is community property and belongs to both parties.  If you buy or get property, such as a house, other real estate, or a car during the marriage, it is probably community property even if only one of you is on the title. Each party's earnings made during the marriage is community property.

*Domestic partners' community law rights are different. If you and your partner were involved in a marriage-like relationship and got property together before June 12, 2008 OR the date you registered your partnership, see a family law attorney with expertise in community property issues.

Separate property belongs to only one party. Generally, it is property you got before the marriage through inheritance or as a gift (whether before or during the marriage), or after separation. (If you lived together in a stable relationship before your marriage, the property and earnings you had while you lived together may also be community property.)

Generally, all debts created by either party during the marriage are community debts. Both parties are equally responsible for paying for them. Separate debts are made before the marriage or after the separation.

The law about division of community and separate property in divorces can be very complicated. This publication cannot provide all the information you might want about property and debts. This section tries to give general answers to frequently asked questions. Talk to a lawyer about your case.

Will the court divide all our property and debts 50/50?

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

  • The nature and extent of the community property

  • The nature and extent of the separate property

  • How long the marriage lasted

  • Each party's economic circumstances at the time the property division is to become effective, including the desirability of awarding the family home or the right to live there for reasonable periods to a party with custody of the children

What is a "just and equitable division of property and debts"?

It will depend. If you have children, the main consideration will be who will have custody. The court will probably order that the parent with custody should keep living in the family home, if financially possible. The court may award the custodial parent more property and fewer debts to the custodial parent, especially if the other parent is not going to be able to pay much child support.

The court will also consider (especially if you have no children) what type of financial condition the division of property and debts will leave you each in post-divorce. The court generally will not want to leave one party extremely wealthy and the other poor. The court will consider factors such as each party's:

  • age

  • health

  • education

  • work prospects

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

Example 2:  You are disabled and will not be able to work. The court may award you more of the community property. 

Example 3:  the court may consider which party will be able to afford to pay the debts after divorce when deciding who must pay them.
In most cases, the court will award each party his/her separate property and order each party to pay his/her separate debts. The court will award one party's separate property or separate debts to the other only in very unusual cases.

What if I have a Prenuptial Contract, Domestic Partnership Agreement or Community Property Agreement?

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

Or 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 and debts. We call this a Property Settlement Agreement or Separation Contract.

If you believe you have any type of written agreement about your property and debts, have a lawyer review it. This may (does not always) determine how the court will divide property and debts in your particular case.

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

It depends. Property you bought with money earned during the marriage is community property. Each party's income during the marriage is community property. Anything you buy with either party's income belongs to you both. It does not matter whose paycheck you used.  The judge will divide the car and other property according to what s/he decides is just.

The other party 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 (sometimes called an equitable lien).

The house is the other party's separate property because s/he 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 toward the mortgage. Your community interest would be reduced by the house's reasonable rental value because you had the benefit of living there during the marriage. The court might even rule you have no community interest in the house because your community contributions were offset by the value you got from living there. 

*This issue is complicated. Talk to a lawyer.

What should we do with our home?

Take a careful look at

  • the home's value

  • what you still owe on it

  • your respective post-divorce incomes  

Example: can one person alone pay the mortgage?  If not, awarding one of you the property may lead to foreclosure and all the related negative effects to your credit.  It might be safest to sell the property (liquidation).

Be careful creating 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, so your spouse's name stays on the mortgage.  Your spouse later 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 difficulties in this situation, you must refinance the property in one spouse's name at/near the time of the divorce.

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

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

Yes. The court has the power to order you to do this even if one party objects. The court will most likely do this

  • if necessary to divide the property fairly OR

  • if you are behind on payments

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

It depends:

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

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

  • Disability benefits that substitute for pension benefits: might be community property.

If you believe your spouse has a pension (including a military pension), 401(k), IRA, or other retirement or disability plan, talk with a lawyer about what rights you may have to it. You may be able to get a Qualified Domestic Relations Order (QDRO) ordering the other party's pension plan to pay you benefits directly after the other party retires. The Pension Rights Center publishes a very good book called Your Pension Rights at Divorce:  What Women Need to Know. Find out more at their website:

 http://www.pensionrights.org/publications/book/your-pension-rights-divorce-what-women-need-know or call them at (202) 296-3776.

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

No. Washington has "no-fault" divorce. The court may not consider which party "caused" the divorce when deciding how to divide the property. The court may consider the other party's conduct if s/he wasted assets from the marriage without your consent OR tried to hide assets from the court.

I am not working right now. Can I get alimony?

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

  • length of marriage

  • both parties' financial situations, given the division of property and debts and one spouse's ability to pay maintenance

  • time it will take for the spouse asking for maintenance to get education or training

  • standard of living during the marriage

  • age and health of the spouse asking for maintenance

If you have been unemployed a long time (example:  you stayed home to care for the children), the court is more likely to award you maintenance than if you have been laid off temporarily. On the other hand, even if the spouse asking for maintenance can work (or is working to support him/herself), the court may still award him/her maintenance if it will help him/her enjoy the same standard of living s/he had during the marriage. The court uses maintenance "not just as a means of providing bare necessities, but rather a flexible tool by which the parties' standard of living may be equalized for an appropriate period of time."  The court is more likely to award you long-term or permanent maintenance

  • after a long marriage AND

  • if you are disabled and/or stayed home to care for the children while the other spouse worked and are now less likely to be able to get a well-paying job 

Unless the Final Divorce Order states otherwise, maintenance payments end when the person getting maintenance remarries or dies. 

*Whether the court will award maintenance in your case is complicated. Try to talk to a lawyer.

Important Information about Community Debts

You may end up paying a debt even if the court ordered your spouse to pay it. As part of the Final Divorce Order, the court will order one or both of you to pay any debts you both owe. This could include a mortgage, car loans, credit card debts, utility bills, back taxes, and so on. Even if the court orders your spouse to pay a debt, the creditor (person owed) may still come after you to collect any community debts. You cannot stop the creditor from collecting from you by telling the creditor your ex-spouse is supposed to pay the debt.

If your ex-spouse does not pay the debt and you end up paying, you must sue your ex- to force him/her to pay you back. If you think this might be a problem, you should check the "hold harmless" provision in the Final Divorce Order form (section 12, second box). Then, if you must sue your ex- to force him/her to reimburse you for debts you paid, s/he must pay your attorney's fees and costs as well.

Your ex-spouse may try to get out of paying community debts by filing for bankruptcy. If s/he files for bankruptcy after the court enters your Final Divorce Order, the bankruptcy court may relieve him/her from paying for those debts. If s/he files for bankruptcy, you should get notice of it. Talk immediately about your rights with a lawyer who knows bankruptcy law. You may need to take part in the bankruptcy case in order to protect yourself.

Section 8: Custody and visitation

In Washington, the courts generally do not say custody and visitation when talking about how much time each parent spends with a child. They talk about the residential schedule and decision-making authority for the children.

As part of your divorce, the court will decide:

  • which parent the children will live with the majority of the time (custody), or whether they will live with each parent half-time   

  • how much time the children will spend with the other parent (visitation)

  • who will make decisions about the children's schooling, medical care, and other issues

  • how the parents will resolve future disagreements about the children

The court will do this in a court order called a Parenting Plan.

*The way the court decides your temporary and permanent parenting plan is complicated. This packet will explain it generally. Talk with a lawyer about your case if at all possible.

Do we need a parenting plan?

If you have one or more children together under age eighteen, you must fill out a parenting plan. If your spouse served you with a petition and parenting plan, and you disagree with what the papers are asking for, you must file your own parenting plan telling the court what you want.

The court may enter a temporary parenting plan (to cover the period while the divorce is pending) and will enter a permanent parenting plan at the end of your divorce.

What if I do not follow the parenting plan?

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

You must have a good excuse not to follow a parenting plan. A good excuse would be that following it would cause serious harm to you or the child. Even then, you cannot simply refuse to follow the court order. You must go back to court to ask to change the order. You should file an action to change the parenting plan as soon as you can so the court can approve a new, more appropriate schedule. If you believe your child may be in danger, you can contact Child Protective Services, State of Washington Department of Social and Health 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?

Under Washington law, the court must consider.

Reasons to restrict one parent's time with the children

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

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

  • Physical, sexual, or a pattern of emotional abuse of any child

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

  • Has been convicted as an adult of certain sex crimes, including rape of a child, child molestation, sexual misconduct with a minor, incest, or sexual exploitation of children, 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 or physical problem interfering with his/her ability to parent the children

  • The parent has a long-term drug, alcohol, or other substance abuse problem interfering with his/her ability to parent the children

  • There is no or a seriously damaged emotional bond between the parent and 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 denied the other parent contact with the child for a long time for no good reason

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

Limiting a parent's residential time if there is a reason to under RCW 26.09.191

It depends. In most cases, the court will not allow this parent to have custody. In very serious cases, where the court decides no other limits will protect the child from harm, it must order no contact between the parent and the child. 

*The court must follow very specific, detailed rules if a parent or someone living with him/her has been convicted of a sex crime against children or been found to have molested or otherwise harmed children in a civil case. That parent may again have unsupervised contact with his/her child in only a few cases. If you or the other parent in your case has been convicted of such a crime, talk with a lawyer and read RCW 26.09.191 very carefully.

The court may order any restriction reasonably calculated to protect the child from the physical, sexual, or emotional abuse or harm could come from contact with the parent.  The restrictions may also be to provide for the parent's safety if she may be at risk of physical, sexual, or emotional abuse or harm from contact with the other parent.  Some common restrictions include requiring the parent to:

  • See the children only when supervised by a professional supervisor or neutral third party

  • Complete domestic violence or substance abuse treatment

  • Submit to random drug or alcohol tests

  • Complete a parenting class

  • Go to mental health counseling or take prescribed medication for his/her mental health condition

  • Complete a sexual deviancy evaluation

  • Stop interfering with the other parent's contact with the children

  • Stop creating conflict or getting into disputes with the other parent without good reason

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

Under RCW 26.09.187, the court must encourage each parent's loving, stable and nurturing relationship with the child, consistent with each child's developmental level and the family's social and economic circumstances. The court must consider:

  • The relative strength, nature, and stability of the child's relationship with each parent.

  • Agreements of the parents, if you entered them knowingly and voluntarily.

  • Each parent's past and future potential for taking care of the children, including whether one parent has taken more responsibility for taking care of the child's daily needs.

  • Each child's emotional needs and developmental level.

  • The child's relationship with siblings and other adults important to him/her, and his/her involvement with school, activities, and community.

  • The parents' wishes.

  • The child's wishes, if mature enough to give an opinion (the court will usually not consider the child's wishes until s/he is a teenager).

  • Each parent's work schedule. 

The court should not give much importance to:

  • Which parent earns more or is going to remarry.

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

Section 12, Yakima County Superior Court's suggested residential guidelines, at the end of this publication are an example of the amount of each parent should have the child. These guidelines are for families where there has been no child abuse or domestic violence. If you believe the other party may present a danger to you or the children, talk with a lawyer.

I want equal time with the children. Will the court order this?

Maybe, but only if the court finds it is in the child's best interests.  The court may take into consideration the parties' geographic closeness.

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

Either parent can make emergency decisions about the child or may make 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 doctors or other health care providers the child will see, when the child gets medical care, and what religious institution the child attends (if any).

The court must give only one parent the authority to make these non-emergency decisions if there is a limiting factor under RCW 26.09.191 against the other parent  OR both parents do not want joint decision-making. If one parent disagrees with joint decision-making, the court may order one parent sole decision-making if

  • a limiting factor under RCW 26.09.191 applies to the other parent

  • the other parent has not ever taken part in the decision-making about the children

  • the parents cannot and do not want to cooperate in decision-making

  • the parents do not live close enough to each other to make joint decisions in a timely way

In most cases, the court should treat decisions about the children's religious upbringing differently from decisions about school and medical care. The court should allow each parent to provide the child with the religious instruction of the parent's choice while the children are 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? Why is it in the parenting plan?

The parenting plan includes a section saying how you and the other parent will solve future disagreements about it. Alternative Dispute Resolution (ADR) refers to ways of solving disagreements besides going to court. You and the other parent may choose options such as counseling, mediation, or arbitration. The court should not order alternative dispute resolution if any of these is true:

  • a limiting factor under RCW 26.09.191 applies to one parent

  • the parents will not be able to take part in dispute resolution equally

  • one of the parents cannot afford alternative dispute resolution

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

Some people find ADR helpful. If you choose counseling, you will typically meet with a mental health professional who will use counseling techniques to help you and the other parent solve your disagreement. If you choose mediation, you will meet with a mediator, a neutral third party who may be a lawyer, retired judge or court commissioner, or mental health professional. The mediator will try to encourage you to come to an agreement. If you choose an arbitrator, you will meet with a neutral third party (often a lawyer, retired judge or court commissioner) who may try to help you reach agreement, but who will make a decision that you both must follow if you cannot reach agreement. If the parenting plan orders arbitration, you can still 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 a counselor, mediator, or arbitrator. The fees can be very expensive. However, ADR can also help you avoid the stress, expense and unpredictability of going to court.

*Our publication called Mediation: Should I Use It has more info. 

What if I want to move to a different state with the children?

Under state law at RCW 26.09.405 through RCW 26.09.560, all parenting plans must say what will happen if one of the parents wants to move. You CANNOT change that language in or take it out of the parenting plan.
The moving parent must give the other parent notice before moving. This gives the parent who is not moving a chance to object to the move and ask the court to change a parenting plan, including custody. Our publication called Questions and Answers about Washington's Relocation Lawhas more information.

My spouse is pregnant. Can we still get a divorce?

Yes. You must tell the court the other spouse is pregnant. The court cannot then use the pregnancy as the sole reason to put off entering a final divorce order.

*Any child born during your marriage or within 300 days after the entry of your Final Divorce Order is legally presumed to be the other spouse's child even if it is not actually his/her biological child. 

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

  • File a motion to request genetic testing. Either parent may file this motion. If you do this, the court may appoint a Guardian ad Litem (GAL) for the unborn child to investigate and decide whether genetic testing is in the child's best interests.

  • 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. Washington law imposes strict time limits in which a presumed or acknowledged father may deny or challenge paternity. Talk with a lawyer.

Section 9: 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 amount is based on the Washington State Support Schedule. The court also takes into consideration

  • the children's needs

  • both parents' incomes

It is a parent's legal duty to help support his/her children. In most divorce cases, the non-custodial parent must pay the other parent child support. Even if the parents each have half the time with the children, one parent may have to pay the other support if there is a big difference in their incomes.

*A stepparent may have a legal duty to help support his/her stepchildren until a divorce from the child's parent is final or the court relieves the stepparent of this obligation.

How does the court decide the child support amount?

The court bases the amount on both parents' incomes and the number and ages of the children, using the Washington State Child Support Schedule. You should read the Schedule to understand everything the court takes into account when setting support. 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 and ages of children you have.

The court's main concern in setting child support is to make sure your children have enough money to meet their needs. Support is for clothes and food, to give the children a place to live (rent/mortgage and utilities), and assure they have decent day care and medical care.

The court also takes into account parents' ability to pay. Both parents may have to share costs for uninsured health care, day care, school tuition, and long distance visitation expenses. The court will determine how much each parent pays in proportion to their incomes and by considering the number of children living with them. The court may also award the federal income tax exemptions each party is entitled to claim.

Section 10: Our Do-it-Yourself Family Law Packets

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 and county bar and pro bono programs represent people in divorces. However, 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 that teach you how to file your own divorce. A class may cost more than this packet, but it may give more help filling out the forms and with local court procedures. If you can go to a class, you should. To find out whether your county has a self-help class, contact your local family law facilitator, if your county has 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.

What packets do I need?

The Northwest Justice Project publishes several different do-it-yourself packets. They have instructions and forms for completing your divorce. The following list should help you decide which packets you will need. You will need more than one packet to file and finalize a divorce case. Get only the packets you need at the time you need them.

Where do I get more information about the law?

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

Section 11: Yakima County Superior Court Suggested Residential Schedule Guidelines

Some divorced parents are able to flexibly change residential schedules as children grow and their needs change. These families do not need to turn to by the legal system or other helping professionals. For other families there will be conflict. These guidelines may be helpful in making up residential schedules which best suit the needs of each child.

The primary residential parent and/or step-parent can greatly influence a child. Parents and step-parents should support an ongoing relationship with the other parent. Both parents should help the child know that it is normal and healthy to feel good about both parents and to enjoy time with each.

It helps to understand the needs of children at different ages. We have put the information into age-related stages. This info is general. There may be great individual differences between children of the same age.

DEVELOPMENTAL ASPECTS

INFANTS (0 - 18 MONTHS)
(Birth to 6 months) The baby must have consistent physical care and sensitive, cooperative interaction between the infant and caregiver. The pattern of access should not interrupt the ability of the parents to provide smooth child care routines. Access periods should take place often enough to create good bonding between the infant and parents. Daily contact of a few hours in the primary residence of the infant would be the optimal plan. Both parents should share in feeding, bathing, changing, and otherwise caring for the infant, as well as playing with the child.
Both parents should be committed to the infant developing a good relationship with each of them. Parental cooperation is crucial during infancy. If the parents cannot avoid conflict, visits should happen someplace besides the residential parent's home. Depending on the case, you may need to have visits in a protected setting or in the office of a mental health professional.

During early infancy, frequent and predictable contact with the child is best. Unless circumstances allow several contacts a week, time with the child away from the residential parent should be limited to one or two hours.

(6 to 18 MONTHS)
The forming of secure attachment relationships is the major issue at this age. The most important features of caregiving are stability and responsiveness. Young children can quickly lose feelings of attachment to people they do not see often.
As for younger infants, the more frequent and stable the pattern of access, the longer it can be.
If there are fewer than one or two visits a week, access should not be more than one to three hours. Children this age need routine contact with familiar people. Overnights away from the primary caregiver are a bad idea unless the instability for the child is outweighed by other factors.

TODDLERS (18 MONTHS TO 3 YEARS)
Children at this stage are developing a sense of separateness from the parents and learning to master limits. The child should have enough freedom to explore and permission to resist the parent on unimportant issues. But the child must still obey in areas of safety, self-control and social interaction.

Children of this age can handle a schedule that provides less frequent contact. An 18-month old child who is with the other parent only on weekends can handle parts of a day. For older toddlers, when the nonresidential parent has been a regular and significant caretaker, one overnight a week is possible once the child has become accustomed to the other parent's surroundings. Weekend long access is still not recommended.

PRESCHOOLERS (3 TO 5 YEARS)
Preschool children are developing sex-role identification and peer relationships as well as learning to manage their impulses. Parents need to model clear roles and values and to use effective parenting skills.

The level of conflict between parents is more important than the schedule of contact for preschool children. The predictability and frequency of the contact is also important.

We recommend one overnight for younger preschoolers and full weekends for older preschoolers throughout the year. More frequent contact is okay if there is little conflict between the parents. A few week-long contacts for holidays and summer vacations can be handled well. If there are reasons you need to have visits that are longer than a week at a time, you should get specialized consultation on helping children handle the lengthier time frames.

EARLY ELEMENTARY AGE (5 TO 9 YEARS)
At this age, the parents now share primary influence with teachers, peers and often community contacts. Schedules need to take into account various organized activities children may be involved in.

The recommended schedule is at least two weekends a month. If the parents get along reasonably well, more frequent access is okay - including midweek visits. At the age of seven or eight, children who see the nonresidential parent several times a week are most satisfied with the schedule.

Extended time with the other parent is more possible at this age because of the child's developed sense of time. Up to six weeks may be appropriate. You should not necessarily take all that time at once. When staying for long periods with the nonresidential parent, you should arrange for contact with the residential parent.

LATER ELEMENTARY AGE (9 TO 12 YEARS)
The schedule for this age group can be much the same as for ages five to nine. But children of this age generally need definite involvement in the decisions affecting them. Also, by ages 11 to 12, their friends and school involvements have more importance. This may lead children to want less contact with the parents and a more flexible schedule.

ADOLESCENTS (12 OR OVER)
(12 to 15 YEARS)
The child at this age needs more support and guidance from parents than does the older one. The recommended schedule is much the same as for ages 9 to 12, but the younger adolescent needs to be able to opt out of occasional visits or vary from the schedule.

(15 to 16 Y RS)
The schedule for older adolescents should be mutually established between the teen and the nonresidential parent. The schedule should take into account that teenagers do not need contact of long duration with either parent, but need to know they can count on both parents. We strongly recommend at least brief contact on a weekly or every other week basis for the teenager and nonresidential parent.

There is no legally designated age at which children have the right to decide with whom they live or whether they will have time with the other parent. In practice, you will need to balance the adolescent's need for autonomy against the child's sometimes unfelt need for at least minimal contact with both parents. Some teenagers may experience spending a full weekend with a parent as being grounded.

HOLIDAYS
There needs to be specific provisions for holiday time. You should structure this according to the family's traditions. You should make sure that religious or other holidays that are important to the family are defined and stated in the legal decree. Sharing time should be your most important consideration. Example: You can alternate major holidays such as Thanksgiving, Christmas and Fourth of July. Some parents would rather have a tradition of Christmas Eve in one home and Christmas Day in the other. Minor holidays – those adjacent to the visit weekends - can be included in those weekends. You can divide school vacations, winter and spring, divided between the parents in ways consistent with the children's needs. Holidays and special occasions spelled out in a residential schedule take priority over the routine schedule.\

DISTANCE
The residential schedule recommendations probably will not work when the parents live far from one another. In those situations, the child's needs for a relation-ship with both parents will have to be met with individualized access programs.

If a pre-school child can separate from the residential parent, extended time with the other parent may be appropriate. When the child reaches school age, you should think about the child spending much of their school vacations with the non-residential parent.

Modified with permission from the Yakima Superior Court Guidelines Updated 11/12

3240EN

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 December 2016.

© 2016 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: Dec 29, 2016
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