Seven Common Misperceptions about Divorce in Washington State

1. This is a community property state so everything is 50-50

While asset and debt acquired during the marriage is community property in Washington, it is not necessarily divided equally. The operating word in Washington is “equitable.” There are a number of standards by which equitable is determined. The length of the marriage, the relative earning capacity of the parties, the age and health of the parties as well as the existence of separate wealth are all factors in determining equitable.

For example, a spouse who has stayed home with the children and has not stayed current in the job market may receive 55, 60, 65% of the assets. Also factoring in will be the amount of spousal maintenance the spouse receives. Sometimes a couple will choose a higher percentage of assets for the non working spouse instead of maintenance.

2. Children can decide which parent they live with when the reach a certain age

That age is 18. We family lawyers hear comments all the time such as: “when my son is 14 (or 12, or 16) he will decide where he will live.” Washington State does not give minors such decision making power. A companion to this one is “my daughter will let the judge know where she wants to live.” Also not true. A judge will not hear direct testimony from a minor child, nor will a judge read a letter from a child. In a genuine dispute as to what is best for the child, the Court will appoint a Guardian ad Litem (GAL) to represent the child. Even then, the GAL will not merely present the wishes of the child but will determine what is in the child’s best interest.

3. A man can never receive alimony in Washington State

Washington State uses the term “spousal maintenance” instead of alimony and the standard is supposedly gender blind.  I often ask the opposing party or even my client to reverse gender. Given the facts of this case, if this were a women, would spousal maintenance be appropriate? If the answer is yes, then gender should not be an issue. In the real world? I still find a lot of prejudice. I often find my own male clients reluctant to request maintenance even if the facts warrant it. Often the opposing counsel has the attitude of “Why doesn’t the lazy bum just get a job.”  Counsel, would you say that about the wife who has not worked in a long time or one who has health issues preventing her from working?

4. Once you get married, everything becomes community property

This is the way it happens in movies, isn’t it? I am amused at Hollywood’s depiction of community property because that isn’t the way it is even in California. Getting married does not convert all property to community. All property acquired during marriage is community. (Unless, and there always seems to be an unless, it is acquired through gift or inheritance.)  Thus the house owned by one of the parties before marriage continues to be separate property. Where it gets complicated is when the marital community spends money on repair or remodel of the house. The community is entitled to reimbursement. More complicated, the couple sells that house and uses the proceeds to buy another. Does that make the new one community? Maybe, but there may be a reimbursement for the amount of separate property put into the second house. It gets complicated here and that is just the point. It is complicated and not as simplistic as some folks would like to make it.

5. If you have been living together a certain number of years, you have a common law marriage and everything is community

This one has so many variations it is hard to pin down. There is no common law marriage in Washington. Not California and I am not sure if there are any states that still have it. I am often asked by concerned business owners that if they live with someone a number of years, that person may have claim on the business. Probably not, unless you have had a “marriage like” relationship. There are very specific standards regarding so called meretricious relationships. If in doubt, seek legal counsel.  Merely living together does not create such a relationship. That being said, when measuring the length of a marriage, Washington law does allow you to “tack on” periods of co-habitation before the marriage. Told you this one wasn’t so easy.

6. If one of the parties “Quit Claims” the house then the other party will no longer be responsible for the mortgage.

This is one I see often amongst the do-it-yourselfers. There is the mistaken belief that if the house is assigned to one of the parties in the divorce decree, the other party is off the hook on the mortgage. The court does not have jurisdiction over the lender and the other party continues to be responsible. This can be a big surprise when that party tries to get another mortgage and is unable to qualify because he/she is still responsible for the first loan.  Generally a lender will require a refinance. A few lenders will rewrite the loan for a fee without requiring a refinance. Incidentally, many people refer to a “Quick Claim." The actual term is Quit – as in I quit any interest I have in that property.

7. One parent always gets custody

I place great emphasis on language. My family law colleagues avoid the term “custody”. We refer instead to “parenting plan.” We develop a parenting plan that is in the best interest of the children. Take into consideration the age, school schedule where each parent lives and their work schedule to develop a plan that makes sense. The parents themselves are in the best position to make these decisions. If there is disagreement, I recommend working with a parenting specialist to work on parenting plan issues. The plan outlines “residential time,” not “visitation.” You do not visit your own children. Each parent is responsible for the children during his/her residential time even if the children are with a caretaker or relative. That means taking them to extra curricular activities and social events such as birthday parties.

Washington State has some very specific provisions as to when a parent’s residential time is restricted or curtailed. Mostly this involves impairment due to drugs, alcohol or mental health issues.  Just because one parent doesn’t like the other parent’s parenting style is not a reason for limiting time with children.  I have rarely seen a parent restricted in my cases. Those cases will be an interesting blog post for another time.

In some cases, a court will appoint a guardian ad litem (GAL) to represent the children. The GAL can request mental health evaluations and they will recommend a parenting plan. Whenever I have read a parenting evaluation, I have not been surprised. I generally have a good sense of what the GAL or evaluator will report.

The vast majority of parents do work out their parenting issues and develop a reasonable parenting plan.