A Lawyer's Most Often Used Word -- It Depends

Sometimes Facebook has a game where it shows you your most often used words as a digital image depending on size.  If such a game existed for my conversation with clients, the word or phrase that would be the largest up front and center would be IT DEPENDS.  

How much financial support can I expect?  It depends.  How long will it last?  It depends.  How long will my divorce take?  It depends.  How much will my divorce cost?  It depends.

As a lawyer I have learned to not make guarantees.  There are way too many variables. I have to gather all the facts.  Some of my engineer clients want things to be more definitive.  They want probabilities or percentages. They want rules. There must be rules.  My creative types also don't like uncertainty.  They expect that they hired me -- the expert.  And here I am with all these depends and maybes and wherefores.  

The standard for spousal maintenance (sometimes still called alimony) in Washington State is "need and ability to pay."  See:  I told you the answer is "It depends."  As far as costs and length of time, there are just too many variables to account for.  The minimum waiting period for a divorce in Washington State is 90 days but there are many many reasons it can take longer.  The same with costs.  Here I really try to be more definitive.  I do work with a flat fee but, you guessed it, even that depends.  

As your lawyer, I will explain the options, the probabilities and the law.  Just don't ask me for a final answer -- it depends.   

 

 

Beginning a divorce case: There is no one way

We get a lot of questions about when and how to begin a divorce case.  While there is no one right way there can be quite a few options depending on you and your spouse's particular circumstances.  Here are some considerations:

1.  Does it matter who files first?

There is no legal significance to who files first.  Sometimes a party will file because the other party just isn't taking them seriously.  I call it the "dammit this time I mean it" approach.  I have not verified this but my sense is that women are more often the petitioner.  Not because they are more apt to ask for the divorce but they find that their husband has emotionally and/or physically left the marriage but not taken any legal action. 

Sometimes a couple really wants to be cooperative and will choose to file together.  This can either be by "joinder" or a legal fiction my colleagues and I have developed called a "co-petition".  This seems far less adversarial than Petitioner and Respondent.  

2.  Do we have to have all the details worked out before we file?

No.  In fact, the divorce petition should not provide any details about your financial status.  We generally state "to be determined" or "reserved" on financial issues.  Remember, everything filed with the court is public record and can be seen by anyone.  

Most couples will file a petition to get the clock running.  (There is a 90 day waiting period in Washington State before a divorce can be final)  We then use the interim time to work out the details on property and parenting. 

3.  Are there reasons to wait to file?

Sometimes a couple wants to purchase a home or refinance an existing mortgage.  In this case, we often delay filing a petition until the loan is closed.  It is possible to obtain financing while the divorce is pending, however.  A lender will want to see what each person's obligations, income and assets will be.  An executed Property Settlement Agreement can fulfill this requirement.

4. What if I don't know where my spouse is?

This can be challenging but can be done.  Sometimes you will need to have a process server do a search or in some cases, you can serve your spouse by mail or by publications.  There are special rules that must be complied with.  Out of country becomes even more challenging.  

If you know your spouse will not respond or cooperate then you want to make sure your petition spells out everything you want.  (unlike the more cooperative approach described above)  If you are expecting a "default" judgment, you can only receive what you asked for in your original papers.  You really want to do this with the help of a lawyer because you do not want your spouse coming back in the future to set aside your judgment.  

5.  What is the very first step?

Not surprisingly, your first step is to talk to a lawyer.  Pay for a consultation not a free "sales pitch".  Get some good advice how to start your case.  You will feel much more confident if you have a plan.

Of course, we are always here to help you through this process.  

What to do about the family business when there is a divorce

Can you preserve a family business even though the principals are dissolving their marriage?

While it can be a challenge to dissolve a marriage and preserve a family business, it can be done and often is in the best interest of not only the parties, but the employees, suppliers and patrons of the business.  There are a number of ways this can be handled in a cooperative manner.

As a first step, the value of the business must be determined

As with a family home, it is difficult to find a resolution when the value is not known.  It is well worth hiring someone to give an opinion of value on the business.  The expense of a business valuator can be mitigated by the amount you cooperate in providing information.  Also, if you let the evaluator know that you are not planning to litigate the matter, the amount of supporting documentation can be minimized.  A business evaluator can also let you know what standards are used in different industries.

Do not make the assumption that because you are the only one working the business that it has not value without you.  We once worked with a person who owned a boat washing business.  The couple was ready to make an agreement based on no value to the business.  A business valuator found the business to be worth $35,000 -- substantial enough to make a difference in the negotiations.

Will just one of the partners continue running the business or will both be involved?

Either scenario can work but the lines must be carefully drawn.

One party continues to run the business:

 If one party is to continue to run the business it is expected that the business will provide revenue to that party and a determination can be made to pay spousal maintenance on that.  If the spouse is receiving payments on her/his share of the business, those payments would be deducted from the operating parties income.  There are tax implications either way that should be carefully considered.  

Example:  A woman agreed to take monthly payments as buy out from her husband's professional services business.  The divorce decree called the payments spousal maintenance and she later found out subjected her to significant tax obligations.  It is crucial to label the payments correctly. 

Both parties continue to run the business 

Some couples can be reasonable and actually complementary business partners even though they don't choose to continue their marital relationship.  The parties should be sure to form an operating agreement or legal entity to own the business.  While your divorce lawyer can be very helpful in the property division and the determination of support amounts, it is best to work with a business attorney to set up the business structure.  A working agreement is essential to successfully continue the business.

Example:  We helped a couple who owned a home contracting business.  He was excellent at the construction work and she was a great manager and bookkeeper.  The two were able to successfully run the business together as they each brought their particular skills to the table. The legal documents were written as if they were for two unrelated business partners.  

There are more owners than just the couple

This can be tricky but again, proper documents can avoid problems.  Sometimes one of the spouses is a silent partner -- receiving benefits from the business but having no controlling interest.  Other times, both partners are voting members.  A business attorney is essential in setting up the rules.  

Example:  Husband was the only one of the couple working in a business but he had several partners.  A special class of ownership was set up for the wife so that she would receive a share of profits and ultimately a share of the proceeds of the sale of the business but she had no authority in the day to day management of the business.  Because of her cooperation, the business was not affected by the divorce and ultimately sold at a premium.

Maintaining privacy is crucial to keeping a business unaffected

By working cooperatively, a couple can avoid the pitfalls of a contentious, litigated divorce which can destroy a business or at least, reduce the value.  All financial disclosure can be handled  informally and discreetly and the final property settlement agreement can be be a private contract not placed in the public record by filing with the court.  

A contentious divorce can affect not only the productivity of the principals but also create a tense environment affecting the productivity of all the employees.  Certainly patrons of the business should be completely unaware there is a private legal proceeding between the owners.  

A cooperative divorce can minimize the impact on a family business, preserve everyone's privacy and minimize stress and emotional trauma.  

 

 

Questions from the neighborhood

Recently I asked a neighborhood Facebook group for input on topics to discuss.  Some responses were very personal and I won't discuss them here.  But there was a patter to the general questions.

 Here are is a collection of general questions asked by the group.

 

Does it matter who files first?

There is no legal significance to who files first.   The one filing is the Petitioner and the other is the respondent.  There really is no benefit of winning the race to the court house.  In fact, Washington State allows couples to file a "joinder".  If both parties sign, one does not have to worry about a process server or filing a response.  It can set the tone for a cooperative divorce.  

If I move out of the house, do I lose all my rights to the property?  Have I "abandoned" it?

I am asked this quite often.  Someone's hairdresser's friend's cousin said that if you move out you are abandoning all rights to the property.  One party moving out is often the most sane thing to do. Give everyone some cooling off time.  

*this does not apply if there are children.  If you have minor children, consult with an attorney before moving out.  

My name is not on the title of the house, does that mean it belongs solely to my spouse?

It does not matter whose name is on title to a house, car, bank account or boat.  If it was obtained with "community funds" it is considered community property.  Community funds are any money earned during the marriage.  If it was obtained by gift or inheritance it MAY be separate property.  

Can I change the locks on the house after my spouse moves out?

If your spouse moves out you can have "exclusive use".  This does not mean you are the sole owner.  Consider it similar to a landlord/tenant relationship.  A landlord can't just drop by anytime.  A landlord must give notice and obtain permission to enter.  Incidentally, if you are changing the locks, don't forget the garage door opener.  

How much alimony can I get and how long can I get it?

We now call it "spousal maintenance" and it is available to either party depending on circumstances.  The standard is "need and ability to pay". That is not very definitive and there is no calculator, even though your hairdresser's friend's cousin tells you there is. We look at how much each party earns and what the expenses are. There is also not a standard calculation for length of time support runs. The length of the marriage and either party's age, health and circumstances are issues that are considered.  This is truly a lawyer answer of "it depends".

Is it true that in a fifty parenting plan, no one has to pay child support?

Not true.  While the state mandated support schedule does provide for a "deviation" the deviation is considered "discretionary".  This means it depends on the relative income of either party.  If one person earns $200,000 a year and the other earns $40,000 it would not be fair to waive child support.  If one party is getting spousal maintenance, that would be considered income also.  

Does my spouse have an interest in my business if I have an LLC, partnership or corporation?

Yes.

Again, there are other factors such as did you start the business before marriage?  It does  not matter whether your spouse ever took part in the business or did anything to make if viable.  

Do we have to have all the details worked out before filing?

You do not.  I generally advise to file the petition with most issues "to be determined".  That way the ninety day clock can start running.  You can work out the parenting, support and property issues after filing.  There can be circumstances where one or both of you are trying to secure financing.  Then there may be reason to wait to file since the petition is public record.  Your attorney and lender can work together to make sure the timing is right. 

What if we reconcile after I file? 

If both of you agree, you can file an agreed dismissal of the case. 

What are the grounds for divorce in Washington?

Washington is a "no fault" state.  That means if one party thinks the marriage is "irretrievably broken", it is.  No further information is necessary.  The other party does not need to agree.  If one person says it is, then the Court deems it to be so.

I don't want a divorce.  Can I object?  

See above.

Do you have questions I can address in a future post? Send your question to karin@divorceforgrownups.net   

 

 

Common law marriage -- Can you be married without knowing it?

A warm, sunny beach and a man proposes marriage to a woman.  He tells her that since they have been living together for four years they will be married anyway in three years because it will be a common law marriage so they might as well do it now.  She said yes.

This story was told to me by a friend.  It is romantic and funny.  It is also based on a myth.  

In Washington State and most others, there is no such thing as common law marriage.

Never has been.  Only 16 states have common law marriage and most are phasing it out.  If you really have a need to know, google it.  The above story happened in California and California also does not have common law marriage. 

A question I get asked frequently in social and business networking situations is: 

How many years does it take to have a common law marriage in Washington State? 

Folks often look incredulous when I tell them there is no such thing. because they just know it is true because their friend's hairdresser's cousin said so.  (I get a lot of legal opinions from friend's hairdresser's cousin)  

But like most legal questions, the answer isn't always that simple.  While there has never been common law marriage in this state there are a couple of situations in which a couple might find they have some obligation to each other that are similar to being married.  I generally ask the person if they are just curious or if they have some genuine concerns.  Are they living with someone?  Do they own property together?  In business together?  This is where the conversation is way beyond the ordinary cocktail party small talk.  The person may find a "marriage like" relationship that subjects both parties to some legal consequences.

A committed intimate relationship  (CIR)

Currently there is no specific statute regarding CIR but there is sufficient legal precedent for courts finding that a couple has a legal obligation to each other similar to marriage.  (With one very important difference)

The factors for a CIR are:

  • continuous cohabitation
  • the length of the relationship
  • the purpose of the relationship
  • whether the couple pooled resources and servicesfor joint projects, and
  • the intent of the parties.

Note:  If either of the parties is already married, you cannot have a CIR.  

Thus under the theory of CIR, a court can divide property.  The three pronged test a court uses is:

  • determine whether a “meretricous” relationship existed (see above)
  • evaluate the interest each party has in the property acquired during the relationship, and
  • make a just and equitable (fair) distribution of the property.

Complicated and confusing?  It sure is.  

A CIR does not obligate either party to support the other

This is a very important distinction.  There is no support (alimony) in a CIR.  I know several people who were unpleasantly surprised to find that even after living together for twenty years or more they were not entitled to any support.  

What about child support?

Whenever a couple has a child, there is a support obligation. Married, unmarried or CIR.  Child support is according to the state guidelines.  

Can same sex couples have a CIR?

Yes.  Since Washington State has marriage equality the same rules apply to everyone.  

Can you have written agreements to protect both parties?

Not only can you, but you should.  What are your intentions?  What are your obligations to each other?  Spell it out.  Get it in writing.  

 

 

 

 

 

What if your spouse is not a "grownup"

I am often asked what to do if a spouse is not behaving as a grownup.  Does this mean the case has to become contested and ugly?  Not necessarily.  There are a number of strategies that have worked with my clients.  If my client can be the grownup we can resolve the matter in an amicable fashion.

First, try to have a meeting.  I invite the other party to meet with my client and me.  Often the person wants to "save face" by acting like a grown up in front of me.  He/she will explain how logical their position is and why things should go his/her way.  I always listen, pointing out that listening is not agreeing.  This is not the time to attack the opposing side's position.  That will only result in push back.  I want the person to feel heard.  Then I may ask questions or  present my clients position.  The key is to listen.  I am amazed how much I can accomplish by listening. At this meeting, we try to make a determination if we can work together cooperatively.   The majority of the time we actually can.  I make it clear that the opposing party is free to consult an attorney or even seek representation.  Leaving that back door open is important.

There are times where the opposing party is obstinate and clearly has no interest in being cooperative.  At that point I ask the opposing party to seek his/her own counsel.  I explain to my client that this is not necessarily a bad thing because then I have a grownup to talk to.  I advise my client that we will know a lot more about how the case will go after I find who they hired.  Mean nasty people like to hire mean nasty lawyers.  If that happens, we do not have a cooperative case and we proceed as necessary.  

An important point to remember is that even if a case is very contentious, it will probably not go to trial.  Fewer that 1% of divorce cases actually go to trial. There are a lot of steps along the way and almost all cases settle somewhere before trial.  

If the case does become contentious, there is no reason you need to be contentious.  Fighting fire with fire is not a very good approach when it comes to divorce.  Then you both get burned. 

Yes, a divorce can be negotiated even if only one of you is the grown up.  

 

Welcome to Karin's Blog

This is a collection of random thoughts and observations.  Questions are welcome for future posts.  You may want to check out the page "Thoughts about Divorce" for a collection of previous posts that I have written over the years.  Many of these started out as newspaper columns.  I hope you find them educational.  

In my 21+ years of family law I have many stories.  I may share some of those here, but always preserving my client's anonymity.   Each of us is different and yet there are so many commonalities.  I share other peoples stories so you can see that you are not alone, or learn how other people handle certain issues.  

How did I get into this business?  That is an often asked question.  When I completed law school and became licensed to practice law I only knew that I wanted to have my own practice -- "hang my own shingle" as they used to say. I tried several different areas -- employment, personal injury, will and trusts and even did some eviction work just to pay the rent.  Everywhere I went socially people would tell me their personal stories and ask me to help.  I helped a young mother get a better parenting arrangement with her young daughter.  I helped several people with a divorce and realized that was what I was meant to do.  I decided if family law was what I was going to be practicing I better learn more.  I went to countless trainings, I apprenticed with one of the top attorneys in the county and  I also took classes in mediation, conflict management and even trial practice.  

Over the years I have also taken extensive training in divorce mediation and collaborative law.  When I relocated to Washington State in 2003 I took a fresh look at my practice and decided there must be a better way.  That's when Divorce for Grownups began.  I find that most people would prefer to resolve their marital dissolution in a grown up way.  That doesn't mean there isn't emotion, even anger and resentment but it can be harnessed so that both parties can move forward with their new lives.  Clients also appreciate the privacy I offer them.  They avoid court and public airing of their grievances.  Life is better for me, my staff and all concerned since I developed Divorce for Grownups.   

I welcome your questions for future postings.  I am always open to ideas.  

Help! Ive just been served!

Getting served divorce papers must be right up there with the worst day of your life.  The papers are very official looking and in your shock completely incomprehensible. The cover is a Summons that extols you to respond within a certain number of days.  What to do?

Over the years I have many experiences with these shell shocked people.  What amazes me is how many of them claimed they didn't see it coming.  How do you not know your spouse has been meeting with a lawyer and is planning to divorce you.  Didn't you have any conversation about this?

The worst experience ever happened in California.  Henry came to my office with the requisite official papers but he also had a letter from an attorney.  No, not the letter from his wife's attorney but from an attorney who was soliciting his business.  Henry did not know his wife had filed for divorce until he got a letter from an attorney informing him his wife had filed for divorce and said lawyer would be happy to help him.  This lawyer was combing the public records and sending solicitation letters to soon-to-be Respondents in divorce actions.  Henry hired me rather than the ambulance chaser.  When I called the wife's attorney he was even more appalled at the solicitation.   He and the wife were not yet ready to tell Harold about the divorce.  Not a good start for the case.

Being served has a very technical legal definition.  It means that a process server came to your home or employment and left papers.  Often, however, people merely received papers in the mail, by e mail or even handed to them by their spouse.  Often this is accompanied by a document Acknowledgment or Receipt.   I rarely use a process server but there are times where it is necessary.  Here are some points for either method:

NOTE:  The following are only general guidelines and your case may be different.  Also note that this information is intended for WASHINGTON STATE cases only. 

Were you served by a process server?  Or, Is a process server trying to serve you?

  • First of all, dont try to evade service.  Process servers are pretty diligent and will find you and you have only made things more expensive and difficult.  This is not the time to be evasive.
  • The process server may have left the papers with someone else at your house.  This is probably still good service.
  • You do not have to sign for the papers.  Even though you through them on the ground, you have been served.
  • Dont leave abusive messages for your spouse.  Restraining orders will usually follow.
  • Dont file anything with the court even though the Summons only gave you 20 days.  you want to do this one correctly.
  • Find a lawyer you resonate with.  Review some web sites of the individual lawyer, not the lawyer listing services.  Most of us try to express our philosophy and point of view on web sites.  Make a phone call or visit in person for a face-to-face.  Make a decision.  Your new lawyer will file a response for you and then you can plan the next steps.
  • Using a process server generally is a more aggressive approach.  You really do need to talk to a lawyer.

Did you receive papers in the mail,  e mail or in person with an Acknowledgment or Receipt?

  • The acknowledgment merely asks you to acknowledge that you received the papers, not that you are agreeing to anything.  Its OK to acknowledge receipt.
  • You can give the papers to your lawyer who can accept service on your behalf.  Probably the preferred route
  • Again, pay attention to the time requirements on the Summons.  You really do need to respond by filing a response with the court
  • While this is a more amicable approach, you must take these papers seriously.  If you do not acknowledge receipt a process server will come knocking and you will be expected to pay for it.

Is there a court hearing scheduled on this case?  For what purpose?

  • This means it is a particularly aggresive case.  You must take action immediately.
  • Often clients overlook this because it comes in such a thick package.  Your lawyer needs time to respond to this.  Dont wait until the day before the hearing to talk to a lawyer.
  • Dont panic.  Often a lawyer can get a brief continuance for the hearing and sometimes can negotiate it away entirely.
  • Not attending the hearing or attending unprepared is a big mistake.

Are there temporary restraining orders?

  • You must pay attention to these.  This is serious business
  • If they are financial restraining orders just make sure you dont close accounts, cancel insurance, etc.  Follow instructions.
  • If they are restraints on personal conduct they really mean it.  DO NOT CONTACT your spouse in any manner.  Do not have a friend or relative do so.  This could result in severe consequences, even jail.
  • Dont panic.  Your lawyer may be able to negotiate these away or find a less harsh solution.
  • Dont try to handle this yourself.
  • NOTE FOR WASHINGTON STATE RESIDENTS:  Some counties (Snohomish for one) have automatic financial restraints.   These are automatic and not something your spouse requested.  It is not necessarily overly aggressive.  The court requires it.

Papers you were probably served.

  • Summons and Complaint
  • Petition
  • Blank Response

you may have also received:

  • Acknowledgment or Receipt
  • Automatic Financial Restraining Orders
  • Blank Response
  • Case Schedule
  • Notice of required parenting class and registration information

If you received the following, see a lawyer immediately:

  • Temporary Restraining Orders for Personal Conduct
  • Notice of Hearing for temporary orders
  • Proposed Temporary Orders

Conclusion If you have been served divorce papers

  • Dont panic
  • Talk to a lawyer right away
  • Be able to tell your lawyer which of the above papers you were served