Many people are under the misunderstanding that community property means a 50-50 division in a divorce. While that may be true in some other community property states such as California, it is not true in Washington.
Washington law provides that property must be divided "equitably". Specifically, Washington provides:
"the Court shall, without regard to marital misconduct, make such disposition of the property and liabilities of the parties, either community or separate, as shall appear just and equitable after considering all relevant factors, including but not limited to:
1. The nature and extent of the community property
2. The nature and extent of the separate property
3. The duration of the marriage, and
4. The economic circumstances of each spouse at the time the division of the property is to become effective, including the desirability of awarding the family home or the right to live therein for reasonable periods to a spouse with whom the children reside the majority of the time." (Revised Code Of Washington 26.09.080)
Often "just and equitable" will mean a greater than 50% to a spouse who has forgone a career and does not have the ability to build retirement assets. The other surprise to some people is that separate property is considered when making this distribution.
I worry about people who believe they can do their divorce without lawyers. Particularly if one has more financial savvy than the other and perhaps also more bargaining power.
You should always at least consult with an attorney for advice in your particular situation.
Monday, September 29, 2008
Friday, September 19, 2008
PROJECT MANAGMENT OF THE DIVORCE PROCESS
As an attorney focusing on cooperative divorce I find that I have to customize the process depending on the individual couple. Some couples want as little involvement in the legal process as possible while some couples want to be more pro-active and actively apply project management techniques to the process. They want some degree of control over the process but recognize the need to delegate and to seek legal and financial advice. It may be helpful for this project manager type to consider the following:
NOTE: These guidelines apply to Washington State divorces only. All states are different. Consult with an attorney in your state.
Consider alternatives to traditional divorce litigation
Couples involved in the litigation process generally completely give up control of the process and are bound by court schedules, procedural issues, formal discovery processes and the litigating attorney’s processes. If a couple agrees to cooperate on the divorce they can explore various alternatives that will keep them out of court and allow them to maintain control.
Line up your professional team
In some cases, couples are able to engage in rational discussions and have general agreement on most issues. Often these couples believe they can simply get the forms on line and process their own divorce. The first thing they find is that the forms are voluminous, confusing and most of all – very intrusive. An experienced family law attorney can save the couple considerable frustration, time and help them preserve their privacy. It is important also to engage an attorney to assist in the timing of various filings.
The couple should determine if they each need an advocate to represent their interest or if each feels strong enough to advocate for herself/himself. Each can have separate representation and still have a non-adversarial divorce. A process called “Collaborative Law” had been developed by a group of legal professionals for this very purpose. In collaborative law the couple and their respective attorneys sign an agreement that they will not engage in litigation.
After the legal team has been assembled, the couple will want to engage additional professionals. If one of the parties owns a business, they will want to have an appraisal of that business. Again, the couple can agree on one business appraiser with the instruction to provide a neutral, unbiased report. Mortgage advisors, real estate agents, financial planners and tax professionals may be part of the financial team.
Mental health professionals can serve a valuable purpose on the team. A parenting specialist can help the couple with helping their children adjust to the process and offer guidance as to individualized parenting plans. Sometimes the couple will want to engage a mental health professional to help them communicate in a more positive manner.
Determine the issues
A divorce resolution usually resolves around a key set of issues. Some will be more difficult than others. Some issues will be emotional and some can be resolved in pragmatic, non-emotional solutions. The former are generally parenting plans and the latter involve property settlement. Child support and spousal maintenance can present a little of both. Making a list of issues without offering immediate solutions will help the couple prioritize the issues. Also to be addresses would be placing a value on various assets – home and business appraisals, pension plan and retirement account assessments.
Set timelines
The only timeline imposed by the state is that a couple must wait 90 days between filing a divorce and obtaining a decree. The rest is up to the couple. It may be wise to not file any legal papers until refinance or loans have been completed. Sometimes medical insurance may be an issue. Some couples complete everything in less than a month and then merely wait for the 90 day period. More likely, it will take several months to complete all the negotiations and agreements. Timelines help set goals for accomplishing certain processes to keep everyone on track. Most couples like to start the 90 day clock by filing a petition and then work on their settlement agreements but they may have valid reasons for postponing the filing.
Gather data
A couple will need to gather information regarding assets and debts. Have they considered pension and retirement accounts? What is the value of the home and what is the mortgage balance. Has all debt been accounted for. Besides value of a business, I have had couples needing an appraisal on collectibles, horses, farm land, classic cars and once a violin. It is necessary to have all the assets and debt on the table in order to obtain an equitable division.
Don’t forget the parenting seminar
Washington State requires all parents to attend a seminar “What about the Children” before a divorce can be completed. It is frustrating to have all agreements completed and the documents executed and find that the decree cannot be entered before the parents attend the seminar. It often takes a few weeks to get a space in the seminar. Early registration is encouraged.
Go to court for the final decree
An attorney can make the final step much more efficient and time saving than an individual appearing on his own. Only one of the parties need to go in front of the judge and family law attorneys can go in without a scheduled court date and usually know the best times and places and how to avoid a long wait. The final hearing is usually over in less than five minutes and waiting time is almost always minimal.
Conclusion
The legal community has recognized the need for non-adversarial divorce, especially for couples who have been married for a longer period of time, and have accumulated a variety of assets including real estate and retirement plans. Today, a group of attorneys are now active in collaborative law, divorce mediation, cooperative divorce and some are even available to help a couple in a so-called “kitchen table” divorce where the couple does most of the negotiations themselves. An on-line search on http://www.respectfuldivorce.org/ , collaborative law sight provides many resources and several resources are also available on my web site http://www.karinquirk.com/.
So, no matter how you decide to manage your divorce process, or what role you wish to play in it, remember that there are choices. By defining your role and responsibilities, much like other project management opportunities, divorce can be a process that is easier navigated than you think.
NOTE: These guidelines apply to Washington State divorces only. All states are different. Consult with an attorney in your state.
Consider alternatives to traditional divorce litigation
Couples involved in the litigation process generally completely give up control of the process and are bound by court schedules, procedural issues, formal discovery processes and the litigating attorney’s processes. If a couple agrees to cooperate on the divorce they can explore various alternatives that will keep them out of court and allow them to maintain control.
Line up your professional team
In some cases, couples are able to engage in rational discussions and have general agreement on most issues. Often these couples believe they can simply get the forms on line and process their own divorce. The first thing they find is that the forms are voluminous, confusing and most of all – very intrusive. An experienced family law attorney can save the couple considerable frustration, time and help them preserve their privacy. It is important also to engage an attorney to assist in the timing of various filings.
The couple should determine if they each need an advocate to represent their interest or if each feels strong enough to advocate for herself/himself. Each can have separate representation and still have a non-adversarial divorce. A process called “Collaborative Law” had been developed by a group of legal professionals for this very purpose. In collaborative law the couple and their respective attorneys sign an agreement that they will not engage in litigation.
After the legal team has been assembled, the couple will want to engage additional professionals. If one of the parties owns a business, they will want to have an appraisal of that business. Again, the couple can agree on one business appraiser with the instruction to provide a neutral, unbiased report. Mortgage advisors, real estate agents, financial planners and tax professionals may be part of the financial team.
Mental health professionals can serve a valuable purpose on the team. A parenting specialist can help the couple with helping their children adjust to the process and offer guidance as to individualized parenting plans. Sometimes the couple will want to engage a mental health professional to help them communicate in a more positive manner.
Determine the issues
A divorce resolution usually resolves around a key set of issues. Some will be more difficult than others. Some issues will be emotional and some can be resolved in pragmatic, non-emotional solutions. The former are generally parenting plans and the latter involve property settlement. Child support and spousal maintenance can present a little of both. Making a list of issues without offering immediate solutions will help the couple prioritize the issues. Also to be addresses would be placing a value on various assets – home and business appraisals, pension plan and retirement account assessments.
Set timelines
The only timeline imposed by the state is that a couple must wait 90 days between filing a divorce and obtaining a decree. The rest is up to the couple. It may be wise to not file any legal papers until refinance or loans have been completed. Sometimes medical insurance may be an issue. Some couples complete everything in less than a month and then merely wait for the 90 day period. More likely, it will take several months to complete all the negotiations and agreements. Timelines help set goals for accomplishing certain processes to keep everyone on track. Most couples like to start the 90 day clock by filing a petition and then work on their settlement agreements but they may have valid reasons for postponing the filing.
Gather data
A couple will need to gather information regarding assets and debts. Have they considered pension and retirement accounts? What is the value of the home and what is the mortgage balance. Has all debt been accounted for. Besides value of a business, I have had couples needing an appraisal on collectibles, horses, farm land, classic cars and once a violin. It is necessary to have all the assets and debt on the table in order to obtain an equitable division.
Don’t forget the parenting seminar
Washington State requires all parents to attend a seminar “What about the Children” before a divorce can be completed. It is frustrating to have all agreements completed and the documents executed and find that the decree cannot be entered before the parents attend the seminar. It often takes a few weeks to get a space in the seminar. Early registration is encouraged.
Go to court for the final decree
An attorney can make the final step much more efficient and time saving than an individual appearing on his own. Only one of the parties need to go in front of the judge and family law attorneys can go in without a scheduled court date and usually know the best times and places and how to avoid a long wait. The final hearing is usually over in less than five minutes and waiting time is almost always minimal.
Conclusion
The legal community has recognized the need for non-adversarial divorce, especially for couples who have been married for a longer period of time, and have accumulated a variety of assets including real estate and retirement plans. Today, a group of attorneys are now active in collaborative law, divorce mediation, cooperative divorce and some are even available to help a couple in a so-called “kitchen table” divorce where the couple does most of the negotiations themselves. An on-line search on http://www.respectfuldivorce.org/ , collaborative law sight provides many resources and several resources are also available on my web site http://www.karinquirk.com/.
So, no matter how you decide to manage your divorce process, or what role you wish to play in it, remember that there are choices. By defining your role and responsibilities, much like other project management opportunities, divorce can be a process that is easier navigated than you think.
Friday, September 5, 2008
LIFE AFTER DIVORCE – CAN BOTH PARENTS GO TO WEDDINGS, GRADUATIONS, AND BIRTHDAY PARTIES?
Recently while working with a couple to end their marriage I had a sense that something was missing. Through a lot of negotiation and hard work we had developed a parenting plan, support orders and the property settlement agreement. The final divorce would be completed without engaging in litigation. But I felt something was still missing. The negotiations had taken their toll and this couple was so angry it would be impossible to be in the same room at major events in their children’s lives. I consider this a loss to both parties and a loss to their children.
How often we read in advice columns about a bride and groom conflicted because a mother insisted she would not attend the wedding if the father was there or the father would not attend college graduation or come to a birthday party if mother was present. What a disservice these parents had done to their son or daughter. Could it have been possible to have divorced differently so the future relationship could be more harmonious?
There is a growing group of divorce attorneys and marriage counselors who insist it is possible. The way a couple handle the divorce process can affect their future relationship with their children and each other. If the divorce is handled in a non-adversarial process with mutual respect the parties can move forward with their lives unburdened by the emotional baggage of a high conflict divorce.
This “respectful” divorce can be handled through mediation, collaborative law or mutual, interest-based negotiation. I categorize this type of divorce under the overall term of “cooperative divorce”.
Is a Cooperative Divorce right for you?
Choosing a cooperative divorce means that you value an approach that focuses on the needs of the entire family. If you answer "Yes" to most of the questions below, a cooperative process is right for you.
• Are you more interested in moving on with your life than in perpetuating a marital battle in court?
• Do you want to be in control of your future, including custody and financial support issues, rather than relying on a court's decision?
• Do you want your divorce to be between you and your spouse and not aired in public?
• Do you want to end the emotional battle--the anger, upset and fighting?
• Do you want to be treated with respect and dignity during your divorce process?
If you have children:
• Do you and your partner feel your children are your primary responsibility when making financial plans?
• Do you want to preserve your children's emotional health during and after the divorce?
• Do you want your children to be able to invite both their parents to all the special events in their life?
Think about your future legacy.
In a cooperative divorce the parties and the "team" focus on the future. Even adult children can be a factor. Think about what it will look like when there are grandchildren. Don't you want everyone to go to the birthday parties?
My favorite story is of a young girl who attended the final session of her parents collaborative law session. She drew a picture of her family. It was a two house family, but still a family. Think about how much brighter her future will be and think about the impact on her future relationships.
Your children’s special events will truly be special despite their parent’s divorce. You owe it to them.
How often we read in advice columns about a bride and groom conflicted because a mother insisted she would not attend the wedding if the father was there or the father would not attend college graduation or come to a birthday party if mother was present. What a disservice these parents had done to their son or daughter. Could it have been possible to have divorced differently so the future relationship could be more harmonious?
There is a growing group of divorce attorneys and marriage counselors who insist it is possible. The way a couple handle the divorce process can affect their future relationship with their children and each other. If the divorce is handled in a non-adversarial process with mutual respect the parties can move forward with their lives unburdened by the emotional baggage of a high conflict divorce.
This “respectful” divorce can be handled through mediation, collaborative law or mutual, interest-based negotiation. I categorize this type of divorce under the overall term of “cooperative divorce”.
Is a Cooperative Divorce right for you?
Choosing a cooperative divorce means that you value an approach that focuses on the needs of the entire family. If you answer "Yes" to most of the questions below, a cooperative process is right for you.
• Are you more interested in moving on with your life than in perpetuating a marital battle in court?
• Do you want to be in control of your future, including custody and financial support issues, rather than relying on a court's decision?
• Do you want your divorce to be between you and your spouse and not aired in public?
• Do you want to end the emotional battle--the anger, upset and fighting?
• Do you want to be treated with respect and dignity during your divorce process?
If you have children:
• Do you and your partner feel your children are your primary responsibility when making financial plans?
• Do you want to preserve your children's emotional health during and after the divorce?
• Do you want your children to be able to invite both their parents to all the special events in their life?
Think about your future legacy.
In a cooperative divorce the parties and the "team" focus on the future. Even adult children can be a factor. Think about what it will look like when there are grandchildren. Don't you want everyone to go to the birthday parties?
My favorite story is of a young girl who attended the final session of her parents collaborative law session. She drew a picture of her family. It was a two house family, but still a family. Think about how much brighter her future will be and think about the impact on her future relationships.
Your children’s special events will truly be special despite their parent’s divorce. You owe it to them.
Tuesday, September 2, 2008
DISSOLVING A MARRIAGE – AT MID-LIFE AND BEYOND
When I meet people and tell them that I am a divorce lawyer, I often get comments something like: “We have been married for over 20 years; I guess we will never need your services.” Or, “We’ve been married so long, there’d be no point breaking up. Divorce is something the younger folks do.” Contrary to popular belief, mature couples divorce every day. Many of my clients have been married 20 to 30 years and even more. A significant amount are over 50 and I have even had clients over 70. The mid life and beyond divorce is not as unusual as one may think.
Privacy and Respect are important values to mature couples.
Most couples seeking to end their marriage do want to with a minimum of rancor maintaining some dignity and respect for each other. But for the mature couple, who has witnessed friends and family turn their lives upside down both emotionally and financially through expensive litigated divorces, this is even more important. They have worked hard to build an estate and are not interested in wasting their assets on a financially draining process. A recent issue of Consumer Reports points out that one of the most expensive money mistakes a person can make is “Launching a Divorce War”. This ranks as number three in the publications list of 12 biggest money mistakes.
To avoid the divorce war, mature couples are looking for solutions preserving their privacy, dividing their assets according to their individual needs and minimization of the emotional trauma that comes from closing the door on a relationship and lifestyle that has weathered many years.
There are alternatives to litigating a divorce
The legal community has recognized the need for non-adversarial divorce, especially for couples who have been married for a longer period of time, and have accumulated a variety of assets including real estate and retirement plans. Today, a group of attorneys are now active in collaborative law, divorce mediation, cooperative divorce and some are even available to help a couple in a so-called “kitchen table” divorce where the couple does most of the negotiations themselves. An on-line search on www.respectfuldivorce.com , collaborative law sight provides many resources and several resources are also available on my web site ww.karinquirk.com.
Divorce is a normal life transition
Although divorce is sad at any juncture in life, it is especially important for long term couples ending their marriage to put it in perspective. As Tim Jenkins, a family therapist in Redmond, Washington points out “The success or failure of a marriage should not be judged upon whether it ends or continues “until death do us part.” It might be better judged on how much growth it has afforded us as conscious human beings striving to connect intimately. There is nothing abnormal or blameworthy about divorce. It is to be expected. If we can help people to use this normal life transition to launch into new and richer living then we will be doing a far better service than trying to maintain relationships that don’t serve or brutally severing relationships that must end through litigation.”
Privacy and Respect are important values to mature couples.
Most couples seeking to end their marriage do want to with a minimum of rancor maintaining some dignity and respect for each other. But for the mature couple, who has witnessed friends and family turn their lives upside down both emotionally and financially through expensive litigated divorces, this is even more important. They have worked hard to build an estate and are not interested in wasting their assets on a financially draining process. A recent issue of Consumer Reports points out that one of the most expensive money mistakes a person can make is “Launching a Divorce War”. This ranks as number three in the publications list of 12 biggest money mistakes.
To avoid the divorce war, mature couples are looking for solutions preserving their privacy, dividing their assets according to their individual needs and minimization of the emotional trauma that comes from closing the door on a relationship and lifestyle that has weathered many years.
There are alternatives to litigating a divorce
The legal community has recognized the need for non-adversarial divorce, especially for couples who have been married for a longer period of time, and have accumulated a variety of assets including real estate and retirement plans. Today, a group of attorneys are now active in collaborative law, divorce mediation, cooperative divorce and some are even available to help a couple in a so-called “kitchen table” divorce where the couple does most of the negotiations themselves. An on-line search on www.respectfuldivorce.com , collaborative law sight provides many resources and several resources are also available on my web site ww.karinquirk.com.
Divorce is a normal life transition
Although divorce is sad at any juncture in life, it is especially important for long term couples ending their marriage to put it in perspective. As Tim Jenkins, a family therapist in Redmond, Washington points out “The success or failure of a marriage should not be judged upon whether it ends or continues “until death do us part.” It might be better judged on how much growth it has afforded us as conscious human beings striving to connect intimately. There is nothing abnormal or blameworthy about divorce. It is to be expected. If we can help people to use this normal life transition to launch into new and richer living then we will be doing a far better service than trying to maintain relationships that don’t serve or brutally severing relationships that must end through litigation.”
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