COMMON MYTHS ABOUT DIVORCE, CHILD CUSTODY AND COMMUNITY PROPERTY IN WASHINGTON STATE

Here are some random Friday musings about some of the misconceptions I often hear. No particular order or importance just as I thought about them. As always, this is informational only and not intended as legal advice for your particular situation. Always confer with an attorney before taking any action regarding these issues.

My Spouse won’t give me a divorce

You don’t need your spouse’s permission or agreement. Washington is a “no fault state” and the only grounds for divorce (technically called “dissolution of marriage”) are “The marriage is irrevocably broken”. If one person believes this is true, then the marriage will be dissolved. The person seeking to dissolve the marriage first files a Petition for Dissolution of Marriage. If the spouse refuses to sign anything and there is proper service meeting specific legal specifications the divorce can be completed by default. Even if you don’t know where your spouse is, you can still accomplish legal service with a court order for mail or publication in a legal newspaper.

While the divorce can be accomplished without the other person’s cooperation, you still may have issues regarding children or division of property. If you are very clear on you petition as to what you are requesting and your spouse does not respond, then your request will be granted.

A divorce by default is probably only appropriate if there are no children, real estate and very little property.

My spouse and I agreed to 50-50 custody so no one will be paying child support

I hear this constantly and it is simply not true. Custody is now called a “parenting plan” and the parenting plan determines where the children are on a day to day basis. Child support is a separate issue and is based upon the Washington State Support Schedule. While there may be some adjustment for residential time, child support is mostly based on the parents respective income.

Washington is a community property state so if we get married everything will be community property

Only property acquired during the marriage is community. This means that if you owned a house or business before you married it does not automatically become community property when you get married. What gets tricky is that your income during the marriage is community and if you put that money into the business or property, the community has an interest. Gets tricky here doesn’t it? Gift or inheritance also is separate. A common problem I see is when parents give a gift to the couple. Was it a gift only to their offspring or was it to the couple? Depends who you ask. At the time of the wedding, everyone may think it is to the couple but if the marriage is dissolved, they parents may claim the gift was to their son or daughter only.

Community property is one of the most difficult subjects in law school and even professionals differ over this issue. Don’t be surprised if you and your spouse have a different opinion. And don’t be surprised when your lawyer answers your question with “that depends”.

Community property means everything is divided 50-50

My clients are shocked when they learn this is not true in Washington. The operating word in Washington State is “equitable”. Is it safe to say that divorcing couples rarely agree on what is equitable? Some folks actually believe property should be divided by who contributed the most toward purchase. They couldn’t be more wrong. Equitable is based upon the relative position of the parties, the length of the marriage, the earning capacity of each and many other factors. In a long term traditional marriage it is not unusual for the stay at home spouse to receive 55 to 60 percent of the community assets and sometimes more.

Every case is different and, as they say “these results are not typical”. By the way, don’t think this just applies to stay-at-home moms. I have had several cases where the higher earning spouse was the wife. Once again, the lawyer answer: “It depends”. If you really want to know, here is the specific law:

“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 taken into consideration when making this distribution. Not that it is divided but it does affect the relative economic circumstances of the parties.

My name is not on title to the house/car/boat etc. therefore it is not community.

See numbers 3 and 4 above. Only one name on the title doesn’t necessarily mean it is not community.

I worked hard all these years for my pension so it is mine. Or, I built this business myself without any help from my spouse, therefore it is all mine.

See number 3 and 4 above. I often tell my clients “I don’t care if your spouse sat on the couch and ate bon bons all day, your business/ pension is community property.

When my child turns 14 (or 12, or 16, or name an age) he/she can decide which parent to live with.

The age when a child can decide which parent to live with is the age of majority in Washington, Not only is there not an age when a minor can choose which parent to live with, most parenting specialists would not approve of putting a child in such a position.

If I move out of the house, it will be considered “abandonment” and I will lose my house and custody of my children.

No. While most divorce attorneys would advise making some arrangements for parenting time with the children before moving, you will not lose your rights because you moved out. Moving out does not affect ownership of the property. I really urge folks to get a consultation before they move but moving is not "abandonment" as it is in some states.

Disclaimer: These answers are intended for Washington State residents. The laws of every state are different and these answers may not apply in another state.

Minor Children and No Will?

If you have minor children you definitely should have a will. Parents I talk to say they've been meaning to get around to it, they can't afford it, or don't see why they need one because they have no "estate". I have added estate planning to my practice to counter these very arguments. My intention is to make it affordable and easy to take care of this important matter.

If you have life insurance, and you should, your children will have an estate.

Here are the provisions you should have in your will.

Guardian of a minor child

A guardian is the person you designate to take care of your children if both parents are dead. If a parent dies the other parent automatically is the guardian. Even if the parents are divorced the children would go with the other parent unless a court has found something seriously wrong with that parent. While you can state your preference in your will, the other parent has precedence.

The designated guardian should be someone you feel will raise your children with the same values you would. Some parents make a mutual pact with another family to serve as guardians for their children. If you don't have a will, the state will make a determination. You don't want to risk having your children with Child Protective Services until a guardian is selected.

If your chosen guardian lives far away you might want to appoint a temporary or interim guardian. This could be a neighbor or close friend who will step in immediately until the permanent guardian can be reached and is available.

The guardian of the person might not be the person who will manage the children's money. I strongly recomend a different person as the trustee of the children's estate.

Trustee of the Children's Estate

The trustee manages the funds and property you have willed to your children. This can be a large sum if you have life insurance. This is the relative who is good with managing money, a very trusted friend, or a professional trustee. The trustee will disburse funds to the guardian for the care, feeding and education of your children.

By naming a separate trustee and guardian you provide a good check and balance. The nurturing substitute parent you select may not be the best money manager and the best money manager may not be the best nurturing parent. This provides balance and protects the guardian from being questioned as to what happened to the money.

If you are divorced: It is even more important that you name a trustee. If you don't, your ex spouse will be in charge of the children's estate. Probably not what you would prefer.

A Children's Trust

Your will should provide for a trust for the children. Besides naming a trustee, you can designate an age when your children will receive the disbursement. Remember there may be a large sum of money if you have life insurance. Most parents I meet don't want the funds disbursed at age 18, which it will be unless you make other provisions. Some parents designate age 25, some 35 with provisions for partial disbursements at certain ages. The money can be spent on education, and other expenses for the children. Your trustee should have a great deal of discretion but has the power to say no, just as you do.

Get a Will Now

Hopefully I have given you enough reason to get a will. You really should work with a lawyer to make sure your will accomplishes what you intend and that it is effective. I would be happy to discuss options with you.

10 Simple Communication Strategies for Divorced Parents

10 Simple Communication Strategies for Divorced Parents

Courtesy of Rosalind Sedacca. Her site provides good information for divorcing parents. http://www.childcentereddivorce.com.

by Cindy Harari, Esq.

Cindy Harari, Esq. is my guest contributor this week. She offers valuable information about communicating with your ex that is effective and promotes healthy parenting relationships. My thanks for Cindy for her excellent advice. Rosalind Sedacca

One of many challenges faced by divorced parents is the dilemma of communicating with their child's other parent. Although the parents have decided to divorce and end their "personal" relationship, when children are involved, the dissolution of a marriage mirrors the end of a business relationship where the business partners (the parents) have produced a product or asset (the children) that remains after the termination of the business.

Even though the parents no longer wish to continue to "work together," they share the desire for their children (the priceless marital asset) to grow and thrive. Among other things, the success of the children requires divorced parents to communicate with each other about child-focused issues. So how do divorced parents communicate effectively about their children when they are angry or upset or would simply rather not speak with their child's other parent ever again? Read on...

1. Whenever possible, communicate in writing. Writing gives you the opportunity to clarify your thoughts and express yourself clearly. Also, in the event of a misunderstanding, everyone can go back and look at what is written. E-mails and faxes have the advantage of having a date and time embedded as well.

2. Stick to child-focused issues and keep your communication informative, not emotional.

3. Keep your communication clear. Use bullet points or numbers rather than paragraphs.

4. If an item requires a response, indicate when the response is necessary. Also state what action will be taken in the event the other parent does not respond. For example: Our son's class trip is on (date) and the cost is ($X). The permission slip is due on (date). Please let me know by (date) if this is OK with you. If I don't hear from you, I will sign the permission slip and you and I will split the cost.

5. Do not use your communication as an opportunity to re-hash your feelings about the subjects you are writing about. Remember - this is business communication about your children.

6. Divide your writing into sections such as "old business," "new business" and "FYI."

7. Respond to communication from your child's other parent as you would like to have them respond to you. Be prompt and businesslike.

8. Use e-mail (and all written communication) courteously. Do not write entirely in capital letters. Do not use boldface type. Do not use extremely large type. Do not use exclamation points. Stay away from sarcasm. No name-calling or bad language at any time.

9. Take the initiative so neither parent becomes the "communication liaison." Children's schools, day care providers, extracurricular activity providers, etc. should have contact information for both parents. Each parent should receive notices from these sources. If that is not happening, the parent who is not receiving the information can provide their contact information and get on the distribution list.

10. Look into online programs such as OurFamilyWizard and ShareKids for calendaring and communication. These programs are designed especially for divorced parents.

There is a time and a place for your emotional release regarding your divorce, but, at the same time, there is a need to conduct the business of raising your children with someone you would probably rather not talk to. So how do you find the strength to "take the high road" time after time and communicate calmly and effectively with your child's other parent?

Always remember that your child's wellbeing depends on what you do and how you do it. It takes work to compartmentalize your emotions and put the needs of your children first, but you can do it. You are not alone - there are many resources available for to help you grow through the divorce. Successful communication strategies are a great addition to your post-divorce parenting toolkit.

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Cindy Harari, Esq. is an attorney, trained parenting coordinator, mediator, and arbitrator. Her professional training combined with years of practical experience gives Ms. Harari a unique perspective and distinctive insight regarding issues of divorce and parenting. For additional information, please visit www.solutionsnottalk.com. © 2008. Cindy Harari. All Rights Reserved.

Rosalind Sedacca, CCT is a relationship seminar facilitator and author of the new ebook, How Do I Tell the Kids ... about the Divorce? A Create-a-Storybook Guide to Preparing Your Children -- with Love! The book provides fill-in-the-blank templates for customizing a personal family storybook that guides children through this difficult transition with optimum results. For more information about the book, Rosalind's free articles and free ezine visit http://www.childcentereddivorce.com.

© Rosalind Sedacca 2008. All rights reserved.