It’s never an easy conversation to have with clients, when discussing child custody and child visitation, determining the primary residence for the children. This article defines “birdnesting” or “nesting” after a divorce as leaving the children in the family home, and parents come and go in rotation.
While this may be unconventional, there is a level of mindfulness on behalf of the parents that makes this scenario work. In nesting, children are able to stay in the home, maintain their neighborhood friends, stay in the same schools, and have the least amount of disruption to their daily life.
While this may work for some couples, it seems that the majority of my divorced or separated clients would benefit from only a short-term nesting arrangement.
“I don’t want to get divorced, it’s him (or her), not me.”
That’s the start of one of the toughest conversations I have with potential clients. It’s a conversation, by the way, that really shouldn’t be put off for any length of time. Options disappear quickly with time when you’re dealing with a legal issue.
I’ve heard variations on the ‘I don’t want to get divorced, but …” theme for what seems countless times, and yet they never seem to get any easier. People come in for an initial consultation, introduce themselves, we share a few pleasantries about the weather or the Seahawks or the latest movie, and then they tell me they’re not in my office because they want to get divorced, they’re only here because their spouse–sometimes to their surprise–does.
That brings the comfortable part of the conversation to a halt. It was hard for them to tell me that, and I’ve heard it enough that I know the person across from me is in pain.
I completely understand. Barring extreme situations–abuse, addictions, etc.–people generally don’t want significant relationships to end. It just seems to happen.
I don’t want these relationships to end for my clients either, if it can be avoided. That brings up a very knotty question, one that books and countless daytime TV shows have been dedicated to: when can divorce be avoided, when can’t it, and how is anyone supposed to know?
From what I’ve seen, the question comes down to whether it’s past a point of no return, the point where there’s nothing the partners can do to save the relationship. The point where it’s obvious–at least to one spouse–that there’s nothing left to pursue or explore that can make a difference in saving the marriage.
The legal term for that point is dry but straight to the point: “The marriage is irretrievably broken.”
So, back to my conversation with the potential client who doesn’t see the relationship as truly over?. The person doing the “dumping,” or the leaving, can say it’s done, and has taken actions —like serving a summons and petition–to convey that, but it certainly doesn’t mean that the “dumpee” thinks it is. In fact, it usually comes as quite the shock.
Yet, the person in front of me, in pain, upset, shaken, has no choice but to respond. Where do I begin. First, here’s what I absolutely, under any circumstances, do not talk about – promises, how much alimony (called spousal maintenance in Washington) are you going to pay/receive, do you get to keep the kids 50/50, how much do you keep in your retirement plan, etc.
We are going to have a discussion about your options. That simple. There are more than you think. In there someplace, we’ll figure out a realistic plan to get you through this opening stage of the divorce proceedings.
There’s really only one truly important, have-to-do-this-immediately-or-else move when you find out your spouse wants to divorce. It’s also the easiest step: pick up the phone and call me.
All parents want a loving atmosphere for their children. And typically, when there are more people to provide support for the children, the better. “Third-parties” such as grandparents, aunts, uncles, siblings, and even family friends (“fictive kin”) often take part in caring for a child by babysitting, or sometimes providing long-term care. However, in some situations, a parent might not be fit to parent their children.
In those cases, these third-parties may want to pursue “non-parental custody” of a child. These cases are difficult, as a parent’s right to exercise control over his or her child is protected under the United States Constitution. If a grandparent or other third-party wants to obtain legal custody of a child, then the third-party must prove that a parent is unfit, or that placing the child with the parent would be detrimental to the child’s growth and development.
Also, even if obtaining non-parental custody is not feasible, when the relationship between the parents and the non-parents falls apart, the non-parents can pursue court-ordered visitation. This is referred to as “third-party visitation.”
These types of cases most frequently arise in the form of grandparents seeking visitation with their grandchildren (although nothing prevents someone who is not a grandparent from seeking visitation). Under Washington law, a third-party may request visitation with a child in the event that the parents are divorced, separated, or in the process of a divorce.
In order to be successful in this request, the third-party must demonstrate — among other factors — that he or she already has a significant relationship with the child. The trial court will consider a list of other items in determining whether visitation is in the child’s best interest, including the reasons the parents object to visitation, the relationship between the third-party and the parents, the strength of the relationship between the child and the third-party, and the visitation schedule in place between the two parents.
If the third-party proves all of the factors associated with third-party custody, then it is presumed that visitation would be in the child’s best interest. A parent may produce evidence to rebut this presumption, and demonstrate that visitation would endanger the child’s physical or emotional well-being.
A third-party should be cautious about when to bring such an action. For one, there is the potential of forever alienating the parents of the child. Also, if a third-party cannot successfully prove a pre-existing significant relationship with the child, the third-party may be ordered to pay the attorney’s fees incurred by the parents.
Third-party custody and visitation cases can be complicated and challenging, with the odds in favor of the parents, no matter how wonderful the relationship between the third-parties and children may be. We at The Levey Law Group have extensive experience helping both parents and third-parties in these types of disputes. Call us today at (253) 272-9459 to set up a consultation to discuss your case and your options.
For most people, divorce is a serious and difficult life crisis. Yet, when facing divorce, it is important to understand that divorce is much more than this. For one, divorce is a process — a fairly lengthy process, measured in months not days.
Divorce is also a lawsuit — one that typically involves not only the divorce law in Washington, but possibly other forms of law such as immigration law, the state Constitution, the Rules of Civil Procedure, the Rules of Evidence, Civil Practice & Remedies Code, Penal Code, Business Organizations Code, federal tax laws, and/or bankruptcy laws. In short, divorce can be complicated and complex.
Divorce is definitely a tough time on many levels and emotions run high. Yet, it is really a good idea to try your hardest not to get angry when you are discussing divorce issues with your spouse. Anger will not solve over-all issues and could delay the divorce process, or make it far more difficult to get to a final settlement. It is also a good time to talk with a therapist and find out how you might better process the negative emotions you are feeling.
As much as possible, proceed carefully and methodically through the process of divorce. This is especially true when you and your spouse have children together. Your divorce decree may affect your life, the lives of your children and your relationship with your children for many years to come.
Learn all you can from your attorney about the law as it pertains to your unique case. Think through issues and goals before taking a stand on a specific settlement arrangement. Boil down what is really important to you. And always review any settlement offer with your lawyer before proceeding.
Our attorneys are trained in all methods of dispute resolution, including Collaborative Divorce. We have extensive experience in guiding clients to a settlement with their futures in mind. Contact us today at (253) 272-9459 for an appointment.
Many of us don’t have the option of buying a home during the process of divorce due to financial constraints. Even if you have the resources to afford the down payment, mortgage payments, property taxes, and upkeep, careful thought should still be given to this idea.
Going through a divorce is highly stressful. You likely will experience a wide variety of emotions, including the fear that you won’t have anywhere to live. At the beginning of a divorce, many questions remain unanswered about you and your spouse’s financial future. You can count on one thing: many changes are coming. Most legal, financial, and psychological experts advise that couples who are going through divorce not charge forward with major financial decisions. It just doesn’t make sense.
If you buy a home during the divorce process, you conceivably would be purchasing a house with funds that belong partially to your soon-to-be ex-spouse. If you intend on buying the house in your name alone, title and escrow companies still will require your spouse to attend the closing, sign the documents, and basically give permission for the home to be purchased in your sole name. In fact, many attorneys require the non-purchasing spouse to sign a special agreement to permit the purchase of a home by the purchasing spouse during divorce proceedings.
Granted, during the divorce process, your spouse and you could buy a house and place both the title and/or mortgage in both of your names. This generally is not a good idea for a host of reasons. You first should discuss this with your attorney if your spouse and you are considering doing this.
During the divorce process, “temporary orders” or “temporary restraining orders” (also known as “temporary injunctions”) often are put into place to prevent spouses from spending down assets or incurring new debt. Typically, a temporary order specifically forbids both spouses from using community funds for major purchases without first obtaining the consent of the other spouse (and possibly the involvement of the attorneys). Further, a temporary order typically instructs both spouses not only to spend only what is absolutely necessary to sustain their individual households, but also to notify the other about any expenses that are out of the ordinary, even if “separate funds,” i.e., non-community funds, are used for that expense.
It is also possible that purchasing a home during divorce could ultimately result in financial difficulties for one or both spouses. One spouse might be approved for a loan on a new home based on his or her current income and expenses. However, this doesn’t take into account future debts–the amount of which might be unknown at the time of purchase–such as debts pursuant to final divorce documents, e.g., child support, alimony (referred to as “spousal maintenance” in Washington), a “lump sum” pay-out to the other spouse, etc.
It may make more sense to rent a home temporarily instead of buying one during divorce. While it may be possible to purchase a home while going through the divorce process, it generally is ill-advised and can be problematic–especially buying a home where both spouses are on title and mortgage.
The Levey Law Group recommends that you consult with your attorney and financial advisor to thoroughly address the following: 1) the long-term effects of financial decisions such as home purchases; 2) the tax implications; 3) future projected financial responsibilities; and 4) other factors.
If you have any questions regarding this topic or any other topic related to divorce, please call our office at 253-272-9459 to schedule a consultation.