Deciding to Divorce

THE DIVORCE LAWS IN WASHINGTON STATE

Every state has its own divorce laws and the courts have different rules in each of the counties within a state. This Washington divorce guide can help you to better understand the laws that apply to your divorce in Washington and some of your legal options.

FINDING A WASHINGTON DIVORCE LAWYER

THIS GUIDE IS NOT INTENDED AS LEGAL ADVICE You should only accept legal advice from an attorney licensed in Washington who is privy to the details of your specific divorce case. For the most up-to-date information on divorce laws in Washington and how they apply to your divorce case, you should consult a qualified Washington family law attorney.

The Risks of Getting Divorced Without a Lawyer in Washington

A lot is at risk in your divorce proceeding, including your children, home, other real estate, business interests and other remaining assets. Therefore, proceeding without a Washington divorce attorney can pose a serious risk. Once final court orders are entered in your divorce case, those orders are often very difficult—if not impossible—to change.

You aren't required to hire an attorney to get divorced in Washington, but it is almost always the wise thing to do. The outcome of a divorce will mean some serious changes — to your home, your finances, and your relationship with your children— that can affect the rest of your life. Only a qualified and experienced Washington family law attorney can inform you of your rights and the risks and opportunities associated with getting divorced.

Why You Need Legal Advice and Representation

When getting divorced, you must consider:

• The rights that protect your relationship with your children and your access to money and assets.
• Your obligations to the health, education, and well-being of your children, to the welfare of your spouse, and to your creditors.

There are constantly evolving laws in Washington State that address these rights and obligations. It is your lawyer's job to understand the current law, explain their impact on your situation, and guide you in making life-altering decisions regarding these issues.

Unless you have no assets, no debts, and no children, you should obtain the advice of an experienced Washington divorce attorney to protect your interests and rights.

How to Choose a Washington Divorce Attorney that is Right for Your Case

Choosing your divorce attorney is a critical decision; you should be deliberate and thoughtful in selecting an attorney who will represent you. Review each potential attorney's credentials and speak with the attorney directly. Use the following criteria to evaluate attorneys and their qualifications:

• Check the attorney's license, disciplinary history, and standing with the Washington State Bar (wsba.org).
• How long has the attorney practiced family law in the state of Washington?
• Does the divorce attorney have firsthand experience with Washington divorce cases similar to yours?
• Did the attorney explain fees and the anticipated costs associated with your divorce in a straightforward manner?
• Can the attorney articulate a strategy to resolve your family law case and obtain successful results?
• Does the attorney explain the advantages and disadvantages of the various options available to you?
• Can the attorney give you a timeline for the expected resolution of your divorce?
• What resources can the attorney access? Does the attorney's law office in Washington include family law lawyers, paralegals, and support staff? What are their technological capabilities? Can the attorney access experts in fields such as mediation, taxes, financial planning, parenting investigation, bankruptcy, and real estate in Washington?
• Is the attorney ready and able to go to court hearings or a trial on your behalf when necessary? Does he or she have litigation, mediation, and trial experience in Washington?
• Do you feel comfortable with the attorney? Do you feel confident in the attorney's abilities?
• Does the attorney have a clear and understandable communication style? When explaining a law or legal issue to you, does the attorney make sure you understand before moving on?

Does the family law attorney look, speak, and act in a professional, intelligent, and courteous manner?

Finally, seek out a divorce attorney who is professional and who demonstrates a sincere empathy for you, your family, and the difficulties that you are going through.

WHO MAY GET DIVORCED IN WASHINGTON STATE?

You may file for divorce in Washington if any of the following apply:

• You currently reside in Washington
• You are a member of the armed forces and are stationed in Washington
• Your spouse lives in Washington
• Your spouse is a member of the armed forces, stationed in Washington, and will continue to be stationed in Washington for at least 90 days following the date you filed for divorce.

You should file for divorce in the county in Washington where you (or your spouse) currently live. (You may also file in Lincoln County even if neither of you lives there. To file for divorce in Lincoln County, you must have mutual consent.)

Legal separation can be filed if you do not yet qualify for divorce in Washington (or if your preference is to file for a legal separation versus a divorce). When filing a legal separation, all community/separate assets/liabilities will be divided but you continue to be legally married.

HOW DOES A WASHINGTON DIVORCE WORK?

A divorce in Washington begins when one spouse files the case as a sole petitioner, or the two spouses file together as joint petitioners.

Filing as Sole Petitioner

A sole petitioner can file for divorce in Washington without the knowledge or consent of his or her spouse. In this scenario, the sole petitioner files a petition for dissolution and the spouse is served with a summons and petition (often referred to as "divorce papers"). The spouse (the respondent) must file a response within 20 days. The response indicates whether the respondent contests (disputes) the relief requested in the petition.

A sole petitioner and respondent are typically each represented by their own family law attorney.

Filing as Joint Petitioners, a.k.a. Uncontested Divorce

When spouses can agree to all matters that the divorce court would otherwise decide, they are entitled to file as joint petitioners in Washington State. If spouses file their petition jointly, there is no need for filing a summons, for service of process, or for filing a response. This is often referred to as an uncontested divorce.

In an uncontested divorce, the spouses sometimes file without an attorney. Some couples choose to go to mediation to try to resolve their cases amicably. While this is a good option for some, there are considerable risks involved in filing for divorce without consulting a Washington divorce attorney.

HOW LONG DOES IT TAKE TO GET DIVORCED IN WASHINGTON?

Washington State law requires a 90-day waiting period after you've filed your petition before you may finalize your divorce. After that, there is no defined timetable for how long a divorce will take. Generally, your divorce will take from four to 18 months to be resolved.

Issues that affect the length of the divorce process include whether you and your spouse are in agreement, if you have children, or if you have complicated financial issues. Divorces involving a child custody dispute often take longer.

Even the court's schedule (other cases that are in trial or judges on vacation) could affect how long it takes to get a divorce. Your attorney can give you an idea of how long your particular divorce case will take in Washington.

WHAT CONSTITUTES GROUNDS FOR DIVORCE IN WASHINGTON?

Washington is a "No Fault Divorce" State

No-fault divorce means that a spouse does not have to prove wrongdoing (like abuse, dishonesty or infidelity) to get a divorce. The Washington family law court's only requirement for granting you a divorce is that you say your marriage is "irretrievably broken," even if your spouse does not agree.

Spousal Misconduct May be Relevant in Specific Issues

While Washington family law court does not consider spousal misconduct when dividing your assets and debts, it may be relevant in issues regarding children.

If you have minor children, the Washington courts may consider spousal misconduct when deciding issues related to your parenting plan. Spousal misconduct is only considered relevant if your children's health, safety, or welfare is at risk. The types of misconduct that may be relevant include current drug or alcohol abuse, domestic violence, mental illness, or child neglect. If your marriage involves any of these issues, you should discuss how this may affect your dissolution case.

It is also possible, although rare, for a Washington court to consider financial misconduct (such as extreme overspending, indebtedness, or hiding assets from your spouse) when awarding spousal maintenance or dividing property.

Having a Marriage Annulled

Called a "declaration of invalidity," an annulment is granted rarely in Washington and only under few specific circumstances:

• If either you or your spouse were under the age of 17 at the time of marriage;
• If you failed to obtain the required parental or court approval if under age 18;
• If either you or your spouse lacked the capacity to understand the marriage contract (usually because of mental illness or physical disability);
• If you or your spouse were already legally married to someone else at time of your marriage;
• If you or your spouse consented to the marriage, but did so as a result of force (because threatened) or fraud (because lied to); or
• You and your spouse are too closely related to each other by blood (first cousins or nearer relations).

Even if you meet one of these requirements, in some circumstances Washington courts may still find the marriage valid unless you can show that you and your spouse have attempted to discontinue the marriage by living apart. While a declaration of invalidity states that a marriage was invalid from its beginning, Washington courts still may enter a parenting plan for children, divide property, and make financial orders.

WHAT ARE THE STAGES OF DIVORCE IN WASHINGTON?

Litigation

Litigation includes the discovery of facts and documents, presentation of evidence and expert opinions, and written or oral legal argument to the court. There are many rules that govern the litigation process in Washington courts.

Divorce litigation is focused on uncovering areas of disagreement that may exist between you and your spouse and presenting your plan for resolving these disagreements. The court is more likely to decide in favor of the party with the best evidence and legal argument. Your attorney should provide a strategy for this process. Litigation ends when the court enters a judgment of divorce.

Divorce Mediation

Washington State requires parties with minor children to use mediation in custody and parenting plan issues. Parenting issues are only one of many areas that mediation can be helpful.

Mediation is one form of Alternative Dispute Resolution (ADR). It is used to resolve disputes and hopefully reach an agreement. Mediation can be especially useful in family law cases where information to be exchanged is often personal and private, as it allows parties to keep that information private. Parties often appreciate that mediation sessions are confidential. It is also helpful to know that the sessions cannot be brought forth as evidence in your case. Mediation can occur prior to trial and is almost always a more cost effective way to resolve disputes. Judges are sometimes present at mediation.

Mediators lead mediation sessions. The mediator is an impartial person that assists and facilitates the negotiation process. They may provide information regarding the potential outcomes should the mediation process fail and the parties end up at trial. It is beneficial to choose a mediator that has experience in family law. This may mean choosing a mediator who previously worked as a family law attorney, or is a retired family law judge. It is also best if the mediator has experience with and training in mediator techniques. Sometimes there are free or low cost mediation services available through the court system.

The mediation process in divorce cases is often entered by the parties after discovery has taken place. This means that the parties have exchanged necessary documents and obtained the opinions of experts, but no final decisions have been made by a judge. Parties sometimes feel that divorce judgments they have agreed to through the mediation process are fairer than ones issued by a family law judge.

There are circumstances that make mediation more or less likely to be effective. It is important that both parties want to participate in the mediation process. It is imperative that the spouses and their attorneys are willing to negotiate and genuinely want to resolve issues during mediation. Some mediation sessions do not include attorneys. Generally, parties are more successful at negotiating and reaching sound agreements when each party is represented by their own family law attorney. If the mediation concludes with an agreement, one (or both) of the attorneys involved will present the court with the negotiated, written agreement. The court will review the agreement, and if the agreement seems fair to the court, it will be approved. If there are any remaining unresolved issues, the court will make a decision on the issues remaining. However, some attorneys are unwilling to settle a part of a case without settling the entire case.

In the event that mediation does not result in an agreement, the case will proceed to trial.

Divorce Arbitration

Another form of ADR is arbitration. In arbitration, a neutral third party, the arbitrator, is chosen to hear and make a decision about the issues of the case. This process is very similar to a court hearing, with the arbitrator acting as judge. Arbitration is governed by specific rules. The rules are more flexible and less formal than those at trial. Parties often feel less nervous in arbitration than they do in a courtroom. Part of the reason for this is the more casual locations that arbitrations may take place. Arbitrations may take place at your attorney's office or the arbitrator's office.

There are many reasons to choose arbitration to resolve divorce issues. Arbitration can often occur much sooner than trial. This is especially true in instances where there is a long waiting period for court hearings, because of court schedules or if adversarial litigation is causing delay. Arbitration may be used to resolve specific, difficult issues in a case where other issues have already been resolved. Attorneys often do not want clients to settle a divorce case unless all issues have been resolved. If parties get stuck on one issue, that issue may be resolved through the arbitration process. After arbitration resolves the difficult issue, further negotiations on other issues may continue.

Arbitration is typically binding upon the parties. The arbitrator's decision (called the "award"), is final unless one party appeals. However, in parenting plan cases, Washington courts retain the power to modify the parenting plan even where an arbitrator has made a decision. There is also a type of arbitration called "non-enforceable binding arbitration." The process is similar to other arbitration, except that the arbitrator's decision isn't enforceable by law or admissible in court (as it is in binding arbitration). This type of arbitration is mostly used as a method for negotiating a settlement.

Collaborative Divorce

Collaborative divorce is yet another type of ADR. In collaborative divorce each spouse is represented by a divorce attorney who has been trained in a practice known as "collaborative law." Lawyers also bring in other team members (financial specialists, appraisers, child development experts, etc.). These team members assist the process by providing expert opinions and analysis for specific issues.

Spouses and their attorneys then work together to gather the necessary facts, brainstorm potential solutions, review the available options, and collaborate on a decision they feel will work best for both spouses and, where applicable, their children. Parties often feel more respected in collaborative divorces than they do in a traditional divorce.

Divorce is an emotional and sometimes frustrating process for most people. Divorces that are especially emotional or contentious may not be right for collaborative divorce. Collaborative divorce can be a good option, however, for low-conflict Washington cases where the spouses wish to work together, and discuss openly in a manner designed for win-win resolution. Both parties must be willing to agree to voluntary full disclosure, as there are no "sides" in a collaborative divorce. This collaborative process is a serious commitment in itself: if one of the spouses decides to withdraw from the process to seek protection of their rights in court, both spouses have to start over. This means that both parties' lawyers and all team members must withdraw completely from the case, and that both parties need to hire new, different attorneys. Furthermore, any work produced during the collaborative process is usually inadmissible in court.

When parties stick with the process, collaborative divorce continues until the spouses reach a settlement. When deciding whether collaborative divorce is right for you, you should fully research the benefits and disadvantages of the process and select a family law attorney who has a history of success in the collaborative process.

Cooperative Law and Cooperative Divorce

Though similar to the collaborative divorce process, cooperative divorce is different because it does not require the parties to waive their right to go to court. It also does not require parties to terminate their lawyers if they return to court.

Cooperative law is an organized negotiation process with the objective of settling disputes with little conflict and avoiding litigation. Like collaborative divorce, the goal of cooperative divorce is to minimize acrimony, hearings, and costly trials by focusing on the facts of the case.

Settlement

Washington divorce cases are usually settled (often during mediation) without needing to go to trial. Both parties and their attorneys negotiate an agreement and present it to the court. If the court agrees that all issues have been fairly addressed including the children's custody and residential schedule, spousal maintenance, and division of property and liabilities, the court will enter the divorce according to the terms of the settlement agreement.

Trial

If parties cannot agree regarding all issues in their divorce, then the family law court will decide the unresolved issues at trial, after the parties and their attorneys present their cases.

Trials can be costly and stressful. However, in some cases, trial is the best way to protect your rights, children, or property. This is especially true when dealing with an extremely contentious spouse or very divisive issues. During trial, the attorneys present their case and a judge makes decisions based on the evidence presented. The court's decision is legally enforceable and there is no guarantee that the ruling will be in your favor.

An experienced family law attorney will advise you about the likelihood of a favorable outcome should you go to trial. This advice can help you determine whether it is in your best interest to compromise on important issues, and how many risks you are willing to take, prior to making the decision to go to court.

Divorce Judgment/Decree

When spouses divorce in this state, the court's judgment includes the following:

• A declaration that the marriage is dissolved (the legal term for divorce in Washington is "dissolution of marriage");
• The date the divorce is final (the date the marriage will legally terminate);
• If there are minor children involved, the court's judgment will include a parenting plan stating each parent's residential time with the children and some specifics regarding that time and decision-making regarding the children;
• If there are minor children or a qualifying adult child attending college or other qualified institution), an order of child support detailing how the financial support of the children and/or qualifying adult child should be divided between the parties;
• A property division covering all the parties' assets. This may include cash, the family home and other real property, investments, retirement, business interests, vehicles and other assets;
• A debt division; and
• A list of any other obligations the parties will have to each other beyond the divorce becoming final. This may include spousal maintenance or requirements to maintain health or life insurance.

DOES WASHINGTON ALLOW FOR LEGAL SEPARATION INSTEAD OF DIVORCE?

Yes, Washington courts do permit parties to choose legal separation instead of dissolving their marriage. The legal separation process in Washington involves basically all of the same issues as dissolution of marriage—division of assets and debts, providing a parenting plan for the children, spousal maintenance, and the division of responsibility for supporting the children—but there is a significant difference: after the legal separation is entered, the parties are still married.

There are several reasons that people choose to legally separate instead of divorce. Some individuals are not ready to dissolve their marriage, but they still wish to live apart from their spouse. Legal separation allows them time to live apart, while also defining the rights and responsibilities for each spouse while living separately. In Washington, a separation agreement can establish precedence for a subsequent divorce, and may be converted into dissolution of marriage six months after the entry of the decree of legal separation, if a spouse ultimately decides to legally end the marriage.

Other people choose legal separation instead of dissolution of marriage for other reasons. These reasons include religious beliefs, not meeting the Washington residency requirements for divorce, the ability to retain medical or other benefits that a divorce would terminate, or to extend the marriage past a certain number of years in order to qualify for certain government benefits, such as social security or a military pension.

You have specific rights and obligations while separated that can have a significant and long-lasting impacts on your life; you should consult a qualified Washington divorce attorney who has experience handling legal separations. This attorney will help you decide whether legal separation is the best choice for you.

HOW MUCH DOES A WASHINGTON DIVORCE COST?

Why There Is No Such Thing as a Free Divorce

There are two types of legal expenses in a divorce case: attorney fees and legal costs. Attorney fees are payments for your attorney's work. Legal costs include (but are not limited to) court fees, fees to experts (such as property appraisers and accountants), mediator/arbitrator fees, computer research charges, copying and telephone charges, etc. If you have minor children, there may be fees for a parenting evaluator, an independent advocate for the child, and parenting classes.

Beyond the legal expenses, you will have other, personal costs during the dissolution process. Some of these costs will need to be paid at the inception of the process and some will be long-term. Parties should prepare and plan for these costs because many of them cannot be avoided. There is no way to get a free divorce.

If the spouses live in different residences during the divorce, there will be the increased cost of maintaining two households. Living separately may also increase childcare costs. There is also the cost of your time: a divorce case can take up a great deal of your personal time and often you need to take time off of work to attend court hearings, meet with your attorney, complete paperwork, collect and submit documents, appear at mediation, and research and compile information you will need to provide your attorney. It may also be important for you to seek counseling to assist you in dealing with the dissolution's emotional toll.

Then there are continuing costs that result from the financial effects of ending your marriage: decreased (divided) assets, child support, spousal maintenance, separate health insurance costs, etc. These costs may last for years, depending on your divorce judgment.

Understandably, with all of these unavoidable costs, some people attempt to save money on attorney fees by going through the dissolution process without the assistance and advice of a family law attorney. Often, people representing themselves spend significant amounts of time and money working on their divorce, but end up retaining an attorney anyway, or they overlook important issues, such as considerations for retirement assets or social security benefits, and they end up paying for their oversight for the rest of their lives.

Some of the same mistakes can occur if a party chooses to hire an attorney who is too inexperienced or unprofessional, or who is not knowledgeable enough about family law or divorce cases like yours. These people may end up hiring a better attorney (who has to try and fix mistakes and oversights of the previous attorney) or end up living with the lasting consequences of the errors made in your case.

A lawyer's bill can seem large, but it is a smart investment in your future. Ensuring you get the best possible legal advice and outcome in your divorce case is the most effective way to protect your finances and your family relationships.

How to Reduce Your Divorce Costs

The more contentious your case is, the more it will probably cost. Maintaining civil and constructive communication with your spouse and his or her attorney is the best to reduce the amount you will have to spend on legal fees. But of course, this tactic only works when both parties approach the case in a similarly cooperative fashion.

Negotiating legal issues prior to hiring a divorce attorney is not a good idea. When people do choose to negotiate directly without their lawyer's advice they often end up promising their spouse things that they later learn are not in their (or their children's) best interest. Unfortunately, this may create conflict and negative results that could be avoided by speaking with an attorney prior to attempting to negotiate.

Litigation is expensive. As such, avoiding it is another money-saver. Spouses should resist the impulse to fight over every issue. Instead, your attorney can help you decide when to compromise in order to reduce unnecessary conflict, and reduce the costs of your case. Your family law attorney should be just as ready to negotiate as to litigate, and should discuss these options with you when you prepare your case strategy. However, it is important to be mindful that the decisions and agreements you reach now will affect the rest of your life. Therefore, while it can save you stress and money to negotiate the less-important issues of your case, it is not in your best interest to give up rights and interests that are most important to you and your family's future. When to negotiate and when to litigate is a decision that requires an experienced family law attorney's advice.

Attorney and Legal Fees: Who Pays for the Parties' Attorneys?

You should be prepared to pay your own legal and attorney fees in a divorce case. In Washington, the most common result is that each party pays for his or her own legal fees unless there is bad faith by one party or, in some cases, if there is a considerable difference in the parties' financial positions.

Attorney Fees: How Much Does an Attorney Cost?

Most attorneys charge a per-hour rate for services rendered. This generally ranges from $200 to $500 per hour, and is usually billed in 5-to-10-minute increments. When retaining an attorney, you almost always pay an advance fee deposit (commonly known as a "retainer"), which is put into a trust account. Then, attorney fees and other costs are drawn from the advance fee deposit as your case continues and fees and costs are earned. If the advance deposit runs out, you must generally make further advance fee deposits to pay the attorney's hourly rate and other fees incurred. If there is money leftover in the trust account, when your case is closed, the remainder is returned to you.

Many attorneys also have paralegals and or associates that will assist your attorney with your case. You will be billed for these professionals work, but it will likely save you money because the paralegals and associates work at a lower per-hour rate.

There are lawyers in Washington that charge a flat, overall fee, especially for uncontested divorces. Attorneys are prohibited by Washington law from charging a contingent (percentage) fee in your divorce case.

Court Fees

In Washington, court fees may include (but are not limited to) the following:

• Petition Filing Fee. This is the fee paid to file a divorce petition with the court. As of June 7, 2012, the filing fee is $290 in King County.
• Service. Serving divorce papers on your spouse typically costs $50 to $75. If your spouse proves hard to serve, this cost may be greater.
• Reporting Fee. If your case goes to trial or you have hearings, you will also pay a reporting fee.
• Motion Filing/Respondent Fees. You may have to pay fees when a motion is filed with the court or when you file a response to a motion, depending on the nature of the motion.

The Washington court fees are similar in cases associated with annulment, legal separation, and dissolution of a domestic partnership.

Ongoing Financial Implications of Divorce

After dissolving your marriage, your lifestyle and finances will be affected. The effects can last for months, years, or even a lifetime. Understanding the financial implications of divorce will help you manage your finances and plan for your future. You may need to adjust to living on a reduced income or taking on more responsibility for paying expenses. You may need to find employment, or find a job that better suits your post-divorce life. You may also have to adjust to making child support or spousal maintenance payments. You may lose equity in your house if you have to sell it quickly. Your taxes will also be affected by these changes. In addition, your children's residential schedule and other child-related considerations may affect your finances and your taxes.

It is important that you speak with a Washington divorce attorney about specific financial implications that a divorce could have on your financial future.

Go to Part 2 - Prior To Divorce