Divorce? What should I do?
Either spouse can seek dissolution of the marriage. The state of Washington is a no fault divorce state, meaning neither party is faulted for seeking a dissolution of the marriage. Regardless of who petitions the Court for the dissolution, both spouses have an equal right to the marital property and custody of any minor children. Once the initial summons and petition for dissolution of marriage is filed/served, there is a mandatory 90 day waiting period before the dissolution of marriage action can be finalized.The first thing that you need to do is decide how you want to proceed. If your spouse has already filed, this may limit some of your options.Options:Collaborative Divorce: This is a cooperative process whereby the parties, their lawyers and other third-party professionals (if necessary) work together and engage in meaningful dialog, with the intention of resolving all issues. The collaborative process involves several multi-party meetings with the goal being: to identify/work through all issues; explore alternatives in how to address these issues; to work toward an agreement that is acceptable to both husband and wife. Collaborative professionals are educated in the collaborative divorce process as well as interest based negotiation. Collaborative lawyers assist the parties to work productively to find agreements that meet the real interests of both spouses. Both lawyers need to be trained in the collaborative law process, which may eliminate this as an option if your spouse has already engaged an attorney who has not undergone this specialized training.Mediation: Divorce mediation is a process in which divorcing parties attempt to negotiate an acceptable divorce agreement with the assistance of a trained mediator as an objective third party. The mediator helps the parties to communicate and negotiate, but he/she is not permitted to make any decisions for the parties. It is not the mediator's job to resolve problems or force an agreement. Instead, he/she helps the parties come to an agreement by acting as an intermediary.Litigation: Litigation is a legal process. In a divorce situation, the parties may each choose their own lawyer to represent him/her throughout the dissolution of marriage process. The communications, correspondence and exchange of documents/information all is done through the parties' lawyers. Litigation often involves what is called discovery; specifically, an exchange of financial documents/information. Discovery includes, but is not limited to, interrogatories, requests for production of documents and depositions. The Court process can include motions, status conferences, pre-trial conferences and (if necessary), trial, which finalizes the dissolution of marriage and decides all issues in the divorce.Pro Se (self representation): You can choose to proceed without legal representation. In situations where the marriage is short term, there are no children, and there is agreement on how you want to divide the assets, this might be a reasonable and cost effective approach. You could also engage an attorney to prepare the documents under a limited legal service agreement. As the marriage becomes longer, with more community and separate property and debt issues, children needing comprehensive parenting plans, possible spousal maintenance or child support, and especially when there is an abusive or violent home environment, the need for an attorney greatly increases.The Law:There are essentially four (4) major issues in a divorce action: (1) property/debt distribution; (2) parenting issues (custody and/or the residential schedule); (3) child support; and (4) spousal maintenance. (When there are no minor children at issue, parenting issues and child support are not addressed.)Property/Debt Distribution: The Washington Courts divide property/liability equitably, with each spouse receiving roughly half of all marital assets/debts. Marital assets are defined as property acquired during the marriage. Marital debt is defined as debt incurred during the marriage. Assets a spouse acquired before the marriage, and any family inheritance received during the marriage, is separate property. Generally speaking, separate property is not subject to division between the spouses.Parenting Plan (Custody/Residential Schedule): A custody order is called a Parenting Plan. A Court uses the best interest of the child standard to determine which parent should be the primary custodial parent and/or what the visitation schedule should be. Factors examined to determine what is in the child/children's best interest include, but are not limited to: who has been the child/children's primary attachment figure; each parent's home environment; any special needs that the child/children may have; etc.Child Support: The Courts determine child support based on the parents' total income. The child support transfer payment is then proportioned based on each parent's contribution to the total combined income of the parents. The child support calculation is governed by the Washington State Child Support Schedule.Spousal Maintenance: Spousal maintenance, formerly titled alimony, allows for the requesting spouse to provide for his/her basic needs, including housing, utilities, food, transportation, etc. The Washington Courts apply several factors to determine whether spousal support is to be awarded. These include: the duration of the marriage; the discrepancy in income between the parties, weighing both spouse's assets, income, and ability to earn income; whether or not the requesting spouse requires training/education to become financially self-sufficient; and the requesting party's age and health. The amount of the spousal maintenance awarded and the duration of time during which spousal maintenance is to be paid are determined at the discretion of the Court on a case by case basis.
How can mediation or Collaborative Law help me?
There is growing interest in the legal community and by the general public for what alternatives are available to resolve legal disputes in the area of family law, especially divorces, to avoid the trauma of litigation. People hear the horror stories of family and friends who have gone through court, and logically ask, "Isn't there a better way?" For a significant number of people, the answer is YES. The two most common ADR (alternative dispute resolution) methodologies are mediation and, more recently, Collaborative Law, which is a relatively new process that is quickly growing in popularity across the nation and internationally.
Mediation: You control the results
Mediation permits you to have direct input into the final solution, since you must agree to any proposal before it becomes final. That, however, is also a weakness of the process, since people often feel that their "position" is stronger than the other party's position, and may be reluctant to move towards a mediated compromise. If the underlying problem is based more upon communication dysfunction, then the meditator can facilitate a settlement by acting as the neutral communicator between the two parties. The mediator is prohibited from giving specific legal advice, which can also limit the effectiveness of mediation if either person has unrealistic expectations. One of the biggest advantages of mediation is that it might quickly result in a resolution of the specific issues in dispute at a much lower cost than the traditional litigation route.
If you pursue mediation, retaining your own legal counsel is generally wise, ensuring your agreement to a proposed resolution is given only after being fully informed of your rights and probable results under the law if you went all the way through the litigation process. Depending upon who the mediator is and who you have engaged as your attorney, the attorney may or may not sit through the mediation process with you. It is important to note that mediators do not have to be licensed; you need to make sure that you know the credentials of your mediator.
All attorneys at Burke Law Group have completed the week long interest-based mediation training recommended by the Washington Mediation Association. We have conducted numerous mediations that have resulted in full resolution of disputed issues, and have often encouraged our litigation clients to try to resolve their issues using other third party neutral mediators.
Collaborative Practice: A better way to solve your family law disputes
Divorce is often referred to as being nearly as traumatic as a death in your family. You do not need to compound that stress by going through a difficult and contentious court battle, looking to "win" over your spouse when, in reality, there are no true winners. While newer than mediation, thousands of people have already enjoyed the innovative process known as "Collaborative Law" or, as it is more commonly referred to today, "Collaborative Practice." What one Minnesota attorney started in 1990 has now spread throughout the United States, Canada, Australia and, more recently, Europe. The reason? Collaborative Practice just makes sense. It is a way to solve problems with mutual respect and privacy.
Collaborative Practice is fundamentally a new model and set of rules about how to solve legal disputes. Instead of racing to court, Collaborative participants agree not to go to court. Instead of spending thousands of dollars on formal discovery per numerous court rules, under the watchful eye of both collaboratively trained attorneys Collaborative participants provide each other with all information that could even remotely be relevant to the issues in dispute. Instead of focusing on what is wrong with the other person, Collaborative attorneys and participants identify the goals and interests of both parties, and then work together as a team to resolve the issues needed for final resolution. In traditional litigation, each side often hires expensive experts who come up with differing opinions (attorneys commonly refer to this as "the battle of the experts"). In the Collaborative approach, one expert is hired with the approval of both attorneys and each party, who then works for both participants. Traditionally, the court and attorneys determine when progress occurs. In Collaborative Practice, you control the pace. Instead of having your court file open to anyone with access to the internet, most, if not all, of your personal information is kept private in Collaborative Practice.
Too often traditional litigation rewards bad behavior and brings out the worst in people. We've all seen how the traditional court system can be used as a weapon to attack. When people are in high conflict, their natural instinct is to fight back or to flee; in either case the resulting behavior is probably not something anyone is proud of. Compounding the damage, the "bad behavior" often results in further destruction of whatever ties that may still remain between the participants, which can make future parenting of children even more difficult.
In Collaborative Practice, both participants have their own collaboratively trained attorneys who advocate for them, but also "play nice" with each other because they are on the same team with the same goal: to help the participants find a solution to their legal issues. The collaboratively trained attorneys structure the process to promote healthy, non-threatening communication. In this setting, people can call upon their "higher selves" and more easily recognize what is really just. When the threat of hurting each other is eliminated, people can more effectively listen and develop creative solutions that are unique to them.
All attorneys at Burke Law Group have completed the over 50 hour basic training recommended by the International Academy of Collaborative Professionals. John Burke limits his family law practice to collaborative divorce cases. Kelly Padgham accepts cases that are traditional litigation or mediation, and more recently she has added collaborative divorce to her areas of practice. While Patty Grossman has taken the training and worked several collaborative cases, she has elected to focus her practice on litigation. However, Patty has referred many clients to a collaborative attorney within this firm if she feels it would be a better fit for that client.
Call Burke Law Group on our dedicated collaborative practice "hot line" for a no-cost one hour consultation on how collaborative practice might provide you with a solution that is creative and respectful of you: (509) 999-6747.
Can I get or change child support or custody?
Child support is based on either actual or imputed income of the parents. Sometimes parents are underemployed, going to school or on disability. These situations affect how the court calculates child support. Child support is set by statute and the judge usually does not have a lot of discretion when making an order. However, there are several court recognized reasons to deviate from the statutory calculation, such as multiple dependent children in multiple households or co-parenting of the children on a roughly equal basis. Our office uses a computer program which, using the incomes of the parents and other information, makes the calculation easier than using the charts available at the courthouse. The program can also provide calculations to guide the court in its decision process for many of the court recognized reasons for deviations. We also investigate all income sources and permitted deductions used to calculate the child support amount. We supply the court with pay information and worksheets showing what we think support should be.
Child support may be changed if the circumstances change, after a period of time passes or the child/children are older. Remarrying in and of itself does not change support. Changing support is not automatic; a motion or other court action is necessary.
If the parties have children under 18 years old, still in high school, or otherwise considered a dependent (child is disabled) child support may be ordered. If the child/children want to go to college there may be some provision for that event and a separate court action taken, but this needs to be done in a timely manner in compliance with applicable statutes that may limit the time to bring such an action.
The emphasis in the State of Washington is “primary placement”. When placing a child with one parent, or sometimes equally with both parents, the court looks at many factors. If there are issues relating to domestic violence, substance abuse, lack of acting like a parent, or other factors there might be conditions on placement. As noted in the section about parenting plans, Washington State provides for events, holidays, relocation, and issues that may arise in bringing up children. The important thing to remember about placement is that children are often times in the middle of the litigation whether it is a divorce or other action. Sometimes outsiders, such as counselors or school personnel, are asked to give input. Most courts in the U.S. use the “best interests” standard when placing a child with a parent(s). This is a subjective standard based on information provided by the parents, lawyers, and outsiders. The age of the child/children is another consideration because children have different needs when applying the best interests criteria. There is no preference for either parent whether mom or dad. Although the courts may consider a teenager’s preference, there is nothing set in stone that says that children get to control the decision on placement.
To change placement there must be a change in circumstances. Sometimes a parent has to relocate for a job, the child has different needs that would be better addressed with a new parenting plan, or one parent's ability to care for the child has altered. Usually, the parenting plan will provide for mediation first before asking the court to address these issues.
Is Estate Planning difficult?
Estate Planning encompasses Wills, Trusts, community property issues, dependent custody issues, future mental or physical incapacity, retirement planning, end-of-life directives, and other similar areas. Many law firms target their services towards the high net worth individual, and structure their fee rates accordingly. Many people think that they can buy an inexpensive Will software package at a local office supply store, fill out a few blanks in the software, and then they are all set. It is important to note that estate planning laws are state by state, while most of those software packages are very general, being sold across all 50 states. The unfortunate reality is that a poorly drafted or improperly executed Will, Power of Attorney, Living Will, or Trust is often subject to challenge in court once the grantor or principal becomes incapacitated or passes away.
Often times, when using the generic software, important terms or language can be overlooked. Additionally, many people have special interests or desires that the generic software programs may not be able to properly handle in compliance with Washington law. If you have a larger estate that raises the possibility of paying estate taxes, there are several ways to minimize or, in some cases, eliminate the tax consequences. Again, the generic programs may not be of much help to you.
To best ensure that your wishes are known and carried out upon your passing, and to minimize taxes if you are fortunate enough to have acquired some significant wealth, it is always best to engage the services of an attorney. This is why Burke Law Group provides estate planning advice at a low, affordable price.
Burke Law Group focuses its estate planning practice on small and medium sized estates, in an effort to bring these important estate and personal care planning services to the "everyday" person at a rate that is affordable by most persons who do not need extensive and/or complex estate planning.