Considerations for More Complex Divorce Cases
There are few divorces that are simple. Implications of a divorce can have lasting effects on all aspects of your life. Even among an already complicated process, some dissolution cases, discussed below, have additional legal differences that should be handled by highly experienced divorce lawyers.
High Net Worth
High net-worth cases are cases that involve significant and complicated assets, property, businesses, and investment interests, as well as significant personal expenses. High net-worth cases are often substantially more complex than other divorce cases as set forth below.
Forensic Research of Financial Holdings
It may be necessary to provide information regarding the financial holdings and history of the spouses' assets and debts. In high net-worth cases obtaining this information may be so complex that detailed forensic research or tracing is required to establish the extent of property involved as well as its character (that is, whether it is treated as community or separate property).
Valuation of Business Interests and Investments
Involved property may relate to a business, business interests, or investments that must be valued. Valuation is typically based on expert appraiser and accountant opinions. Usually each spouse hires one or more experts and the court decides the value based on the information provided. Valuation methods are varied and complex, especially for assets that will not be immediately sold. Selecting, working with, preparing, and presenting the case using appropriate experts is critical.
Family businesses or investments often bring with them even more complicated interests to be considered. Parties are often less likely to want to sell these types of assets, whether the sale be to the other spouse or to a stranger.
Complex Assets and Interstate or International Financial Holdings
Property may include complex assets, such as tax shelters, limited partnerships, venture capital funds, angel investments, and subordinated debt. Assets or investment of interests also may be owned and/or located interstate or internationally. Financial experts and accountants will be required to value these types of assets.
Tax Implications
With more assets come more potential tax implications. There may be legal, financial, accounting and tax issues related to business entities and ownership, real estate, fine art and other collections, employment contract and benefit plans, and other types of properties and interests. There may also be tax implications for alternative property and debt distribution scenarios.
Contentious Litigation
High-net worth cases often include the possibility of significant spousal maintenance, and a considerable amount of property is at risk. The high financial stakes can cause one or both parties to engage in dramatic, combative, and extensive discovery, negotiation, mediation, and/or litigation. There may be accusations that one or both parties are hiding assets, undervaluing assets, or breaching a fiduciary duty during the marriage. Investigating these suspicions may require specialized discovery and trained experts.
High net-worth divorce cases may take longer, and be more stressful for both the client and the attorney. It is important that your Washington divorce attorney is experienced in handling high net-worth divorces, and has built relationships with the accountants, appraisers, and tax experts you will need to prepare and present your case.
Military Divorce
While the grounds for a military divorce in Washington are the same as for a civilian divorce, the military divorce will be subject to some unique conditions, and specific state and federal laws and rules will apply.
Dissolution of marriage involving a spouse in the military can include some of the following special issues:
- Proceedings may be postponed while the active service member is deployed or otherwise unavailable due to service obligations and for up to 60 days thereafter. This right can be waived by the military spouse.
- Garnishment of military pay for child support and maintenance is capped between 50 - 65% depending on circumstances.
- Washington's standard child support worksheets and schedules are used to determine the proper amount of child support owed.
- Residential time with the children can be difficult to plan and arrange, especially if the military member is subject to out-of-state relocation, or overseas duty, and/or deployment.
- Collection of child and spousal support may be aided by the federal government and the military spouse's superior officers.
- While Washington property division laws apply to most assets, federal law governs how military retirement benefits are calculated and paid upon divorce (Washington law governs division)
International Divorce Issues
Divorces involving spouses living or owning property in different countries can be legally complicated. Such complications may include the following:
- Other countries' laws and international treaties may apply. The Hague Convention on the International Aspects of Child Abduction may or may not apply, affecting a parent's ability to retrieve minor children if one parent absconds with them to outside the United States.
- If one of the divorcing spouses is located overseas, there may be special requirements before the Washington court can handle the divorce.
- Issues regarding custody and parenting time can be particularly emotional because of the logistics of international travel for visitation.
- Dividing property can be especially complex, involving differing laws and cultural or religious beliefs.
- Washington court can decide your divorce, but it may not have jurisdiction over property or children located outside the country. Washington courts can divide property located in other states and (usually) other countries, but the Washington court may not be able to enforce certain provisions of the judgment for assets and children located outside the United States.
- There may be a visa or immigration issues. It is often wise to consult with an immigration attorney as well as a Washington divorce attorney if visa or immigration issues may be affected by your Washington divorce.
After the divorce is finalized, international complications may continue. For example, getting a passport for children under age 16 years of age generally requires both parents' consent. Both parents consent is not required when one parent is awarded sole custody, and the sole right to obtain a passport for the child.
Whether or not your support order and spousal maintenance order will be enforced will depend on the country you are in. Some countries will enforce orders, while others will do nothing to assist in enforcement of U.S. family law orders.
In any divorce involving parties who live in, have family in, or hold property in another country or parties that have other visa or immigration issues a family law attorney with international experience should be consulted.
Common Law Marriages
What is a common-law marriage?
In some states, marriages can be created without a government marriage license. Instead, common-law marriages can be created by meeting certain requirements including a minimum period of living together and specific behavior by the common-law spouses.
Are there common-law marriages in Washington?
Common-law marriages cannot be created in Washington. However, if you began a common-law marriage in a state that recognizes these marriages, and meet certain requirements, you can continue your (common-law) marriage in Washington. If it becomes necessary for you to sign legal documents as a married couple, then you may need to give the government office some sort of proof that you entered a common-law marriage in another state.
While Washington does not recognize common-law marriages, it does provide some rights and responsibilities to parties that have lived in stable "marriage-like" relationships under the doctrine of committed intimate (formerly known as "meretricious") relationships discussed below.
How can I divorce my common-law spouse in Washington?
If you are trying to divorce your common-law spouse in Washington, you will be unable to obtain a standard dissolution of marriage in Washington. However, you and your spouse have several options:
- You may file for divorce in the state in which your common-law marriage began, if permitted to do so by that state's rules.
- You may choose to divide assets and debts and decide how your children will be co-parented without the use of the court. However, it may not be wise for you to go this route unless you and your partner do not share children and have limited assets and debts.
- In most cases it will be necessary or at least beneficial to have an attorney assist you with property valuation, complete debt division, and co-parenting, even if you do not have a civil marriage. If you decide to hire a lawyer, be aware that the same lawyer cannot represent both you and your spouse because that would create a conflict of interests.
- For parties with minor children, common-law spouses may want to file an agreed parenting plan in the local court. Doing so is not mandatory, but can be useful if you need the court's assistance to enforce or change the parenting plan at a later date. If the common-law spouses are unable to agree on a parenting plan, then one party can file a custody lawsuit in court so that a judge can decide the issue. The custody case follows the same procedure as the steps set forth in Part 4 of this guide. You will not divide assets and debts during this lawsuit because it is not a divorce.
- Hire an unbiased mediator (paid for jointly by both parties) to hear your case and assist with negotiating a divorce settlement. A Washington family law attorney can assist you in choosing an appropriate mediator for your case. The attorney can also advocate for you during mediation and help you finalize your settlement.
- Courts are unable to award spousal maintenance in cases where common-law spouses are splitting up. However, you and your common-law spouse may agree on spousal maintenance, or have a prenuptial contract or other binding agreement that provides you with spousal maintenance. You should consult with a Washington lawyer to determine whether the court will enforce your agreement.
- When one common-law spouse is seeking child support, and the other spouse agrees, the parties and their lawyers can write up an agreement ordering child support be paid without the court's involvement. Parties may also choose to ask the court to approve and sign the order. However, a court order is required to collect unpaid child support, and the court is not required to abide by your agreement.
- If the parties cannot agree regarding child support, a child custody suit requesting that child support be provided will need to be filed. Because this will not be dissolution of marriage case, the court may also require that you prove that you and your common-law spouse are each a biological or adoptive parent of any child support is being sought for. This may require a paternity test.
Committed Intimate Relationships
What is a committed intimate relationship?
While Washington does not have common-law marriages, there is some relief available to parties that are not married, but have been living in a stable, marital-like relationship. The Washington doctrine of committed intimate relationships (formerly known as meretricious relationships) gives a legal status to parties living in a relationship similar to marriage but without a formal ceremony or marriage certificate.
This doctrine applies retrospectively. That is, the court will determine whether the relationship is a committed intimate relationship only after the relationship has ended. If a court determines that a couple's relationship qualified as a committed intimate relationship, then the court may help resolve how to deal with financial issues, assets, debts, and even children when the relationship ends.
How to determine if you are in a committed intimate relationship?
While there is no strict definition of committed intimate relationship, the more marital-like a relationship is, the more likely a court will find the doctrine to apply. There are some factors the court will review when determining whether a committed intimate relationship existed:
- Continuous, exclusive co-habitation during the relationship, or living together as a couple;
- Length of the relationship;
- Joint sharing and saving of resources and services for joint projects during the relationship, such as purchasing real estate together or maintaining joint bank accounts;
- The intent of the parties to maintain a marriage-like relationship, such as referring to each other as "my wife/husband," having children together, and/or creating wills together; and
- Purpose of the relationship, or enjoying the benefits of marriage such as companionship, friendship, love, sex, and mutual support.
What happens to our property when our committed intimate relationship ends?
Property divisions after a committed intimate relationships ends can be similar to property divisions after dissolution of marriage. Once the court establishes that a committed intimate relationship existed, the court will attempt to divide property in a fair and equitable manner. This may result in an equal (50%-50%) division of property, but it also may not. The court strives to ensure that no one member of the relationship is unjustly economically disadvantaged.
Although an equitable division of assets is the goal in both dissolution cases and committed intimate relationship cases, there is one very large difference. In committed intimate relationship cases, the court will divide only community property and debts, the court will not touch either party's separate property. All property acquired during the relationship is presumed to be community property. Similar to community property rules in marriage, the exception to this presumption is property acquired by gift or inheritance, which is separate property even if acquired during the relationship. Property acquired before the relationship or following separation is also presumed to be separate in nature. Such property is not subject to division. There are exceptions to this rule, such as where separate property is improved by community funds (for example, one member of the relationship remodels the kitchen in his or her partner's home), or where separate property has been mixed with community property to the extent that it is no longer possible to identify whether the remainder is separate or community.
Debts will be divided in a similar way. Debts acquired during the committed intimate relationship are presumed to be community debts, while debts acquired before the relationship, or following separation, are presumed to be separate debts.
Will the court award maintenance?
No. The court lacks authority to award spousal maintenance in committed intimate relationship cases.
Can I receive a share of my partners' government benefits?
No. This is another difference from dissolution cases. Unless special circumstances exist, those involved in a committed intimate relationship will not be considered the "spouse" or "immediate family" of their partners in a way that entitles them to a portion of their partners' government benefits (such as unemployment compensation or social security).
Are there issues that should concern me as a member of a committed intimate relationship?
Maybe. Where minor children are involved, the court can step in to address such as a parenting plan and an order of child support. A committed intimate relationship may also raise issues related to hospital visitation, inheritance, probate, public assistance, and taxes, among others.
Divorce While Pregnant
Pregnancy is an exciting but stressful time. Pregnancy stress can be exacerbated by the divorce process. In some instances, it may be worthwhile to postpone the dissolution process until after the baby is born. However, there are times when a divorce should not be postponed even if one of the spouses is pregnant. Below is some information relating to divorce while pregnant.
Can spouses divorce when one spouse is pregnant?
Yes. The courts may not prevent parties from divorcing because one of the spouses is pregnant. (RCW 26.09.030 (1) (e)). However, there are some issues that may arise under these circumstances. One such issue is the marital presumption. In Washington there is a legal presumption that a baby born during a marriage or born within 300 days of the divorce is the legal child of both spouses. This presumption also applies to domestic partners.
If one of the divorcing spouses is not the parent of the child, then you should be sure to indicate that within your petition for divorce. Under these circumstances, the court will not make decisions related to that child. (Issues related to this child will need to be settled in a separate suit between the child's parents.) If the spouses are both the child's parents then the parents should indicate that within the petition and the court will then decide divorce issues related to that child.
In some cases the parents disagree about the parentage of the child. When the parties disagree on parentage, there are several directions the case (or new case) may go:
- A pregnant woman who believes her spouse or partner is the parent can allege parentage.
- The spouse or partner that believes they are a parent can allege parentage.
- A pregnant woman who believes a third person is the parent can sue that third person to establish parentage.
- A potential father can step forward and try to establish parentage.
- Washington's Division of Child Support can sue the person it believes is the parent. This most likely in cases when the mother receives public aid.
- A parent can ask Washington's Support Enforcement Division to establish parentage through an administrative procedure.
The parentage suit is a separate lawsuit from the dissolution suit. The parentage suit will determine the legal parent of the child, and will also determine custody, parenting plan issues, and child support issues.
Will the spouse be listed on the birth certificate?
When a married woman gives birth she can choose to either include her spouse's name on the parent section, or leave that section blank. If the married woman chooses to include the other parent's name it makes the spouse the default parent, thereby negating the need to file a lawsuit to determine parentage. This may make it easier to pursue child support. If you are considering not including your spouse on the birth certificate in hope of avoiding him, or for other reasons, you should discuss your circumstances with a Washington family law attorney.
If you do decide to include your spouse's name on the birth certificate, check with your hospital to make sure it carries the correct form. If not, you may obtain a copy from the Washington State Department of Health.
Can the birth certificate be modified to list a different person?
Yes. Changes to a birth certificate must be sent to the Washington State Department of Health. If you need to make a modification to a birth certificate after it has been issued, an affidavit for correction must be filed. When only one parent was listed on the original birth certificate, however, you must file a paternity acknowledgment form.
When parentage is adjudicated, the Department of Health will issue a new birth certificate including the adjudicated legal parent's name on it.
Who decides the child's last name?
Whoever fills out the baby's birth certificate application will have the ability to fill in the child's complete name. If the child's parents later agree to change the child's name they may do so.
Will divorcing while pregnant allow me to avoid child related issues?
No. If the spouses are both parents to the child, then issues related to the child's financial support and parenting plan will still need to be resolved. It does not make a difference whether the divorce is filed prior to or after the baby's birth. However, if the spouse is not the parent to the child, then the spouse will not have any financial obligation to the child, or rights to visitation.
What if I never married or registered as a domestic partner with the other parent?
The parentage of a child conceived by people who do not have a legal relationship is established through genetics. (Parentage can also be established where a sufficient parent-child relationship exists to meet the holding out provision for de facto parentage status. But these only apply after the child is born.) Thus, people in unmarried relationships having children can be at risk of losing rights to their children because they would have no legal parent status. If you are unmarried and having a child, you should consult with a family law attorney to discuss your options.
Divorce for Men and Father's Rights
Some gender-specific concerns of divorcing men are warranted and legitimate.
Most fathers are concerned about their children. They want to have relationships with their children, and protect their financial futures. Some fathers are concerned that custody is usually given to mothers, regardless of the facts of the case. In reality, Washington's laws are gender-neutral in custody determinations. That said, custody is usually awarded to the children's primary caregiver, and this is often the mother. If a father is the child's primary caregiver, he should be treated the same by the Washington courts.
Child support laws are also written to be gender neutral. Father's do often end up paying more, but this is because they generally earn higher salaries.
If you are concerned about your rights being protected, you should discuss these concerns with a qualified Washington attorney. Your attorney can help you fight for what is equitable and in the best interests of your children, regardless of your gender.
If you are considering hiring a law firm that professes to protect "men's rights," be cautions as their political agenda may not match the needs of your case, and their reputation may impact your case in court. A competent and ethical attorney should be focused primarily on the rights and interests of the client, not on gender issues or politics.
Divorce for Women and Mother's Rights
Divorcing women also have some concerns about the divorce process and life after divorce. Divorced women generally face a much lower standard of living, overall, than do divorced men. This is especially true when a stay-at-home wife needs to re-enter the workplace after divorce. Your attorney should consider your situation carefully and work to ensure that your division of property and spousal maintenance awards will provide you with the time and resources you need to become financially self-sufficient.
Single mothers often struggle with inadequate finances. Being awarded primary custody of minor children may affect employment opportunities; you probably cannot work evening hours or travel for work if you have to be at daycare by 6:00 p.m. daily. Your attorney will help you explain these concerns to the court and advocate for special considerations in the property settlement agreement to address these concerns.
Divorce After 40
According to statistics, most divorces involving couples over age 40 are initiated by the wife. Women at this age may be financially self-sufficient, may feel their children are old enough to handle the divorce, or may look forward to the freedom of being single. Some men are surprised and feel blindsided by their wife filing for divorce.
Couples in this age group often have minor children, investments and property that make divorce cases more complex. In cases with greater complexity, there is an even greater need to discuss the case with a family law attorney. This attorney can help ensure that you and your children are well protected.
Regardless of gender, divorcing spouses need to seriously consider what they want from divorce and what they can realistically expect will change when they are single. Parties should consider whether to change careers or to obtain higher education to increase earning potential. Divorced people must decide whether you want the upkeep or expense of keeping the marital home. They must also think about their financial future including retirement and paying for their children's college.
Most divorced people in this age group will date again, and many will remarry. Dating and remarriage can be complicated by the needs of existing children and financial obligations. The effect of future remarriage is highly relevant to the existing divorce.
You will want to discuss with your lawyer what is realistic to expect about custody, co-parenting, child support, and future stepparents. When you divorce in your 40s, it is important that you have some idea of where you want to end up when the divorce is final and you settle into your single life. Knowing where you want to end up will help your attorney decide what to ask for in a property division and parenting plan.
Divorce After 50
There are special considerations for parties divorcing after the age of 50. People in this age group may be concerned about rebuilding enough retirement assets in their working years left prior to retirement. If you have children in college, you may experience an additional financial strain that should be addressed in your divorce settlement. Your lawyer, perhaps with the help of a financial expert, should advise you regarding an appropriate division of your retirement assets, and the best way to assist your children with educational costs.
Sometimes divorce requires a person over 50 to return to work or school for the first time in a long time. This can be a difficult transition. A good lawyer may be able to help ease the transition by requesting additional financial support from the other party while they get their career started or restarted.
After a long-term marriage you may feel awkward being single, especially among your married friends. Your children may be grown and no longer living in your home. You may feel lonely. These issues should be discussed with your lawyer who will have the names of resources, from counselors to support groups, to help you through this life transition.
