In “contested” custody cases, the court will appoint a guardian ad litem. A guardian ad litem is the court’s eyes and ears and will conduct an investigation which includes but is not limited to the following: talking to both parents; if old enough, talking to the children; talking to references provided by the parents; talking to the attorneys; reviewing documents filed in the court file; reviewing medical records; and reviewing the results of evaluations such as domestic violence/anger management evaluations, drug and alcohol evaluations, parenting assessments, psychological evaluations, etc.
The guardian ad litem then will write a report in which the guardian ad litem will propose the substantive terms of a parenting plan which will include a recommendation as to whether the children are best residing with the mother the majority of the time, the father the majority of the time, or if a 50-50 residential schedule is in the children’s best interests.
The court can also appoint a guardian ad litem to investigate factors relating to either or both parents and/or the homes of either or both parents including but not limited to the following–otherwise known as the “scope of the guardian ad litem’s investigation”:
- Domestic violence;
- Drug / Alcohol abuse;
- Physical / Sexual abuse of a child;
- Criminal history;
- Parenting ability;
- Psychological / Mental health issues;
- Concerns regarding other adults in household;
- Detrimental environment;
- Abusive use of conflict; and
- Abandonment / Neglect.
A child never has the legal power to choose the parent with whom the child wishes to live the majority of the time. However, in a contested custody case, the court will take into consideration the wishes of a child who is “sufficiently mature to express reasoned and independent preferences as to his/her residential schedule.” Typically, the child’s wishes are relayed to the court via a guardian ad litem.
A 50-50 residential schedule generally is in the children’s best interests when the parents can demonstrate that they have good communication with each other relating to their children, both want a 50-50 schedule, and that exchanging the children on a weekly basis, e.g., Friday to Friday, is in the children’s best interests. In the past, if one parent was against a 50-50 plan, and if the case litigated, the court generally would not approve a 50-50 schedule. However, the trend is that despite one parent’s objection, if the court felt that a 50-50 schedule was in fact in the children’s best interests, the court could approve a 50-50 residential schedule.
Because the issue relating to children can be very complex, a significant amount of time can be spent drafting and/or litigating a parenting plan that is in the children’s best interests. Generally, the following factors are considered when determining a parenting plan:
- The relative strength, nature, and stability of the child’s relationship with each parent (this is the most important factor);
- The agreements of the parents, provided they were entered into knowingly and voluntarily;
- Each parent’s past and potential for future performance of parenting functions including whether a parent has taken greater responsibility for performing parenting functions relating to the daily needs of the child;
- The emotional needs and developmental level of the child;
- The child’s relationship with siblings and with other significant adults, as well as the child’s involvement with his or her physical surroundings, school, or other significant activities;
- The wishes of the parents and the wishes of a child who is sufficiently mature as the child’s involvement with his or her physical surroundings, school, or other significant activities; to express reasoned and independent preferences as to his/her residential schedule; and
- Each parent’s employment schedule.
The analysis of whether a parent should help contribute for postsecondary education is different than the analysis for “regular” child support and typically is based on the following factors:
- Whether the child is dependent and relying upon the parents for the reasonable necessities of life;
- The child’s age;
- The child’s needs;
- The expectations of the parents for the child when the parents were together;
- The child’s prospects, desires, aptitudes, abilities or disabilities;
- The nature of the postsecondary education sought;
- The parents’ level of education, standard of living, and current and future resources; and
- The amount and type of support that the child would have been afforded if the parents had stayed together.
- As a rule, courts generally order both parents to help contribute to a child’s postsecondary education. For the parent who was the obligor parent when regular child support was paid, the support may remain the same. In the past, the court often considered the “rule of thirds,” i.e., father pays a third, mother pays a third, and child pays a third (often via student loans) for the cost of attending college with the parents’ obligations often “capped” at one-third of the cost of a student attending the University of Washington at Seattle (inclusive of room and board).
The trend is to burden the child as little as possible with student loans. The court also can order something entirely different than anything discussed above. In short, each case is different.
If the child lives at home while attending college, the court can consider part of a postsecondary support award being paid to the parent with whom the child lives as a form of room and board.
Typically, child support ends when a child turns 18 or graduates from high school, whichever occurs last. However, both parents may have an obligation to pay “postsecondary support”– meaning helping pay for the room and board, tuition, books, and/or other expenses associated with a child attending a four-year college, a two-year college, a vocational/trade school, etc. The analysis of postsecondary education is different from the analysis of child support that is paid through the time a child turns 18 or graduates from high school.
For example, with “regular” child support, the analysis is mostly income and deductions driven. For the most part the law focuses on someone’s income and allowable deductions to arrive at net income. The net incomes of both parents then are entered into our child support software that calculates the amount of child support that the “obligor” parent should pay. We also take into consideration numerous other factors such as whether the parents have 50/50 custody arrangement (or whether the children spend a “significant amount of time” with the obligor parent), whether the obligor parent has other children that he/she supports, etc.
The issue of whether a spouse will get spousal maintenance, and if so, in what amount and for how long, is a complex one. Whether the issue of maintenance is litigated or resolved by agreement, the following factors typically are applied:
- The financial resources of the party seeking maintenance, including separate or community property apportioned to him or her, and his or her ability to meet his or her needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party;
- The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find employment appropriate to his or her skill, interests, style of life, and other attendant circumstances;
- The standard of living established during the marriage or domestic partnership;
- The duration of the marriage or domestic partnership;
- The age, physical and emotional condition, and financial obligations of the spouse or domestic partner seeking maintenance; and
- The ability of the spouse or domestic partner from whom maintenance is sought to meet his or her needs and financial obligations while meeting those of the spouse or domestic partner seeking maintenance.
We also apply the following analyses:
- Equalization of cash flow for a period of time after divorce
- Equalization of net income.
Washington is a “community property state”. This means that each spouse has a 50 percent interest in all assets and debts acquired during the marriage. Thus, to the extent that you or your spouse accrued retirement through an employer, union, military, etc. (such as a pension, 401k, TSP, military retiree pay, etc.) during the marriage, both spouses have a 50 percent interest in it. Whether you actually need to give your spouse 50 percent of your retirement is another matter which our attorneys can help you navigate.
If the parties engage in alternative dispute resolution the issue of attorney fees may still come up. In those cases, the parties negotiate whether someone will agree to pay something towards the other side’s attorney fees in order to settle the case.
If your divorce is litigated the court has the power to award attorney fees to one spouse or the other. Generally, the court considers one spouse’s need for attorney fees and the other spouse’s ability to pay them. Other factors may come into play such as whether one spouse is cooperative during the legal process or not-otherwise known as intransigence. With contempt motions, if a party is found in contempt there is an automatic award of attorney fees but the court has discretion in determining the actual amount.
If the parties engage in alternative dispute resolution the issue of attorney fees may still come up. In those cases, the parties negotiate whether someone will agree to pay something towards the other side’s attorney fees in order to settle the case.