Category: Procedure

Understanding your role in the divorce process

Posted on by Kenneth Levey

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.

Divorce Myths

Posted on by Kenneth Levey

In our society divorce is common, and yet it is a confusing time for both spouses, full of upheaval and turmoil. As a result of divorce being both a complicated and common process, a lot of false information has made its way into common belief about the divorce process and its probable results. Dispelling these myths can be an important way to help spouses deal with the divorce process with more accurate and appropriate expectations.

Myth #1: Mothers always get the children in every custody battle. In any child custody dispute, the court will make a decision for custody and a residential schedule based on the child’s best interest. The determination for best interest is based on very specific factors, and nowhere included in that list is whether a parent is the mother or father. Courts acknowledge the importance of having both parents in the child’s life, and will make the final decision accordingly.

Myth #2: Each spouse will receive his or her own retirement. Washington is a community property state. This means that any assets that are accrued during the marriage are typically (but not necessarily) subject to equal division in a divorce. This includes retirement accounts.

Myth #3: “I don’t need an attorney.” Even in the most amicable divorce, having your own attorney is crucial. Attorneys are trained to deal with the issues that come up in most divorces, and among other things, can help you spot the potential post-divorce issues that should be dealt with before the divorce is final. Making sure your divorce is done completely and properly the first time can help you head off future problems and prevent post-divorce litigation.

Myth #4: “I am entitled to spousal support because my spouse cheated on me.” Washington is a no-fault divorce state. This means that which spouse was responsible for the disintegration of the marriage—and why the marriage collapsed–will not have any bearing on spousal maintenance, nor on other issues such as child support, division of property, and a parenting plan if the spouses have minor children. Washington courts examine particular factors when ruling whether one spouse should receive spousal support, and this list does not include adultery.

Divorce can be a complex process with many moving parts.  To gain clarity about this process, call us today at (253) 272-9459 for an appointment to talk about your case

Temporary Restraining Orders

Posted on by Kenneth Levey

The beginning of a divorce is obviously a time of immense change for everyone involved.  Financially, physically, and emotionally, it is a time of upheaval.  There are many stories about one spouse draining bank accounts or freezing credit cards in order to make the other spouse’s life as difficult as possible, or even in an attempt to keep the other spouse from hiring an attorney.  There are tools to help prevent this that can start at the very beginning of a divorce case.

In Washington, unlike in many other states, there is not an automatic order that comes into place at the beginning of a divorce that keeps either spouse from liquidating assets or freezing accounts.  Instead, either party can ask for the court to enter a type of restraining order.  The term “restraining order” conjures images of preventing a spouse from returning home or seeing children, but that is not the type of restraining order that is implied here.  Instead, this type of restraining order keeps either spouse from making specific types of financial changes.

In particular, these orders usually keep either spouse from draining bank accounts, cutting off cell phones, locking credit cards, or otherwise financially paralyzing the other party.  Essentially, these types of orders often keep either party from making big changes.  The order will also usually keep either party from gifting large quantities of cash or large assets.  This is to prevent either spouse from being able to hide money by “gifting” it to a friend or family member to hold until the divorce is over.

In order to obtain this type of order, the requesting party will often file the order along with the initial divorce papers.  The request will allege to the court that the failure to immediately grant this order may result in irreparable financial damage.  If the court commissioner agrees, he or she will sign the order and set a hearing, at which time the spouses may argue that the order should be lifted or altered in some way.

Temporary motions may also be filed, but these are slightly different.  Temporary motions ask for other temporary relief, such as temporary child support, spousal support, and/or parenting plan.

The beginning of a divorce is a complicated time, and it should not be made more complicated by one spouse trying to hide or liquidate assets.  Call our team today. We have extensive experience with helping our clients with the difficult beginning of a divorce. Call today for an appointment at (253) 272-9459.

Timing of a Child Support Modification

Posted on by Kenneth Levey

After a child support order is entered, it is not uncommon for one or both parents to later want to reexamine the child support amount.  As a child’s needs change or a parent’s income changes, a modification of a child support order may be appropriate or necessary.  In Washington, strict requirements exist as to when such a request may be made with the court and in what way.  Before filing a child support modification case with the court, you first should look at your child support order to see if there is a Periodic Adjustment paragraph.  If there is such a paragraph, there will be instructions as to when child support typically can be adjusted.

A motion to adjust child support is not the same as a petition to modify child support.  A motion has some advantages over filing a petition.  The greatest advantage is that the hearing may be held with less notice to the other parent, meaning that the case may be over faster.  However, you can file a motion to modify (versus adjust) child support if your current child support order gives you permission to do so.  As a matter of “right,” you are entitled to file a petition to modify child support every two years.

Regardless of whether a parent files a motion to adjust support or a petition to modify support, the court often considers the same factors, some of which are as follows:

  1. Increase or decrease in a parent’s income;
  2. At least one of the children has turned 12;
  3. The child support order causes a parent “severe economic hardship;”
  4. A parent wants the other parent to pay support past the age of 18, until the child finishes high school (assuming that the child support order does not account for this);
  5. A parent wants the other parent to help with college; and
  6. Other factors, such as a “substantial change in the circumstances” of either the parents or the children. These sorts of changes could include a severe and/or permanent injury, incarceration, or a permanent change in the child’s needs.

If you have questions about whether it is the right time for you to have a child support adjustment or modification, call us today at (253) 272-9459. We can help you review your current child support order and decide upon the best option for you

What to Do When the Other Party Has Disappeared

Posted on by Kenneth Levey

Any lawsuit, whether in family law or another area of civil law, must begin the same way. A complaint or petition is filed with the appropriate court and then the papers must be properly served on the defendant.  (In family law cases, the defendant is referred to as the respondent.) Usually the papers are served by “personal service,” which means that the respondent is the one to be handed the papers by a law enforcement officer or private process server. However, especially in divorces when the parties have long separated, it is not uncommon for the petitioner to not know where the respondent is located. Washington law makes special provisions for serving the respondent when the petitioner does not know where he or she is. These special provisions are for “substituted service.”

Substitute service may be accomplished in two ways. The first is by mail and the second is by publication. Before substitute service is allowed, the petitioner must ask permission from the court. The petitioner needs to be able to demonstrate that he or she has made due diligent efforts to locate the respondent. In the case of a divorce or child custody case, this often means attempting to contact the respondent at his or her last known address and place of employment. The petitioner also should consider contacting other family members and searching social media for clues to the respondent’s location. The petitioner needs to make a sincere effort at trying to locate the respondent. A judge will not allow substitute service if he or she believes the petitioner was not really putting forward the best effort to find the respondent.

Once the judge approves the request for substitute service, the petitioner may request that it be done by mail or by publication. By mail means that the petitioner will mail the papers both by regular and by certified mail with return receipt requested to the respondent’s last known address and to any other address ordered by the commissioner or judge. If the service is to be done by publication, a legal notice with specific wording must be run in the legal notices section of a newspaper in the place where the respondent was last known to reside, for a specific amount of time.

Once the petitioner serves the respondent by mail or publication, after waiting for a set amount of time, the petitioner may return to court and ask for a default judgment. This means that the petitioner will receive the divorce and most if not all of the requests made in the papers by default, given that the respondent will likely not show up at the final hearing to protest.

Completing a divorce or custody case when the respondent is nowhere to be found is a complicated process with many technical requirements. Our team has extensive experience in accomplishing our clients’ goals in such a situation. Call us today at (253) 272-9459 for an appointment to talk about your case.