Divorce

How does the Court Decide Whether to Order Spousal Maintenance?

February 16, 2014 | by Blair & Kim, PLLC

Spousal maintenance is a court-ordered amount of money paid by one spouse (or former spouse) to the other, during the pendency of a dissolution or legal separation case, and sometimes after the decree of dissolution or legal separation is entered. It is commonly referred to as alimony, and is still officially called that in some states.

In Washington, spousal maintenance issues can often be some of the most contentious and acrimonious issues in a dissolution case. If parties can’t agree to a spousal maintenance amount (or whether it should be ordered at all), the court will make the decision for them. The court will have to decide whether to order maintenance at all, how much maintenance to order (usually on a monthly basis), and how long to order the maintenance payments to continue. While results in family law cases vary, there are some factors you can be sure the court will consider when determining whether to order spousal maintenance. The main consideration is the need of the party requesting maintenance versus the ability to pay of the party who will pay maintenance. RCW 26.09.090 provides the factors a court must consider when awarding spousal maintenance.

There is also a factor the court is specifically ordered not to consider: the misconduct of either party that may have contributed to the divorce. (There is an exception to this rule if spousal abuse has affected the employability of the receiving spouse.) This differs greatly from many other states that allow the court to consider the misconduct of the other party, or even make it a determinative factor.

Why it’s Hard to Determine Exactly How Much You will Pay

February 2, 2014 | by Blair & Kim, PLLC

As family law attorneys, one of the first questions we often hear from our clients is “how much is this going to cost me?” The answer to that question (as with many legal questions) is often: it depends. Clients want to know how much child support and spousal maintenance they’ll be paying. This article hopes to explain why the answers to these questions are not as clearcut as clients (and we) wish they were.

Child Support: Although there are child support worksheets and a child support schedule that help us determine how much child support you will be paying, more detail is needed before we feel confident in our advice. While you might be able to provide your income information during an initial meeting, it is unlikely that you can provide all of your spouse’s income information. There are also some unknowns as to how the court may impute an income to a unemployed or underemployed person. Adding to the complexity, in cases involving spousal maintenance the amount of spousal maintenance can affect the child support payment, so without knowing the spousal maintenance amount it is difficult to determine the child support that will be ordered. This is only the beginning. There are also deductions, taxes, deviations and more!

Spousal Maintenance: There is no statutory formula for determining how much spousal maintenance a spouse will have to pay to support the economically disadvantaged spouse. Instead, there are statutory factors helping a court determine whether to award spousal maintenance, and if so, for how long. Most of the time, only after looking at financial declarations from both parties, and information relating to the factors in the statute, are attorneys able to provide a well-educated estimation of the amount of spousal maintenance the court may order.

What Happens to Child Support When Parents Share Residential Time with the Kids?

January 28, 2014 | by Blair & Kim, PLLC

Most people are familiar with the stereotypical “divorced dad schedule” for kids of divorce: every other weekend, and every Wednesday night for a couple hours. Times have changed. Nowadays, dads are often the primary parent. Even when they’re not the primary parent, dads are frequently receiving more time with their kids. There are families that have 50/50 residential schedules where kids are scheduled to spend equal amounts of time with each parent (or close to it). These schedules can be great for kids and parents, but they do lead to some interesting questions. One of the most frequently asked questions in these situations is: in a 50/50 residential schedule who pays child support?

This is a great question. Unfortunately, there isn’t always a certain answer. When kids spend a significant amount of time with the obligor parent (the one paying child support), a downward deviation may be requested. A deviation is an exception, or derogation from standard child support transfer amount (based on the Washington State Child Support Schedule). Deviations based on residential schedules are permitted under RCW 26.10.075(1)(d). That statute permits the court to deviate from the standard calculation if the children spend “a significant amount of time with the parent who is obligated to make a support transfer payment.” That paragraph continues, stating that this deviation may not be granted if the deviation will result in insufficient funds in the obligee’s home to meet the basic needs of the children. RCW 26.19.075(1)(d).

If the court determines that a deviation should be granted, the statute requires that in determining the amount of the deviation, the court consider evidence regarding increased expenses to the obligor parent and the decreased expenses of the oblige parent created by the residential schedule. RCW 26.19.075(1)(d). As an obligor parent, you would want to show that you have to provide clothing, an extra bedroom, sports equipment, meals in and out of the home, etc. You’d also want to show the savings that the obligee has because of the schedule (usually the reverse of the additional expenses you will have).

Having Your Say – Declarations in Family Law

January 9, 2014 | by Blair & Kim, PLLC

As family law attorneys, we often ask our clients to write declarations. Clients are often unsure of what a declaration is, and how it may be used. Here we’ll provide a brief overview of what declarations are and how they may be used in family law cases.

Declarations are sworn statements. They are written by people with factual information they think will be important to the court in making a decision. Declarations are the declarant’s story of how an event (or series of events) transpired. Parties and non-parties may write declarations. Declarations need not be notarized (that would be an affidavit), but they are signed under penalty of perjury. Declarations may be written on Washington’s pattern form.

Many clients have a lot they think the court needs to know in order to make a just decision. They may want to submit a 50 page declaration, or 50 one-page declarations from all their friends and family members. Unfortunately, the length of declarations is limited by court rules. The limitation generally includes the initial declaration as well as the reply declaration, meaning that you need to save some of your pages for after you receive the other side’s response. As attorneys, it is our job to help you decide what information is most important for the decision-maker to read.

Things to Consider when Serving a Petition for Dissolution of Marriage or Other Family Law Pleading

January 2, 2014 | by Blair & Kim, PLLC

The first pleading in a family law case usually has to be served upon (not just mailed) the other party. In general, this means that the other party will need hand delivered the initial documents by someone of suitable age and discretion (This person cannot be a party to the suit.). (After a case has been initiated, some pleadings can be provided to the other party by mail, fax, or even email [upon agreement].) Service of the initial pleadings can set the tone of the case. There are some legal requirements for service, but these are not the only things to consider when serving the other party. Here are some other considerations:

Where are your kids? If you are serving the other party, and you share children with that person, you will probably want to make sure they are served when the children are not present. It is unlikely that service in front of the children would ever help your case (or your kids).
Where is the other party at the time of service? In family law cases involving money (which is most of them) you want to be sure that serving the other party does not negatively impact their ability to earn money. Getting served at work can be embarrassing, but it can also reflect negatively on the person being served. Others might not know that the service is in regard to a family law case, and may assume the worst. If the other party ends up out of a job, it can impact your case.
Is the other party going to leave town? Service becomes more difficult if the other party is not in the state (and even more difficult if they are not in the country). If you know the other party is about to leave town, it is important to tell your attorney that at your first meeting. Your attorney may advise that you quickly draft initial pleadings and have the other party served before s/he leaves town.
Is there another way? In some cases where parties agree that there is a legal issue to be resolved, parties can join in a petition. If the other party joins in the petition, there is no need to serve that person. This can avoid embarrassment for the party, and can start proceedings off amicably.

How and when someone is served is something you will want to discuss with your family law attorney. Please contact us if you would like to discuss this, or any other family law issue, with an attorney at our firm.

New Year, New Family Law Issue

December 30, 2013 | by Blair & Kim, PLLC

Happy New Year! We hope that 2014 brings you happiness and joy.

January is often a busy time for family law attorneys. Clients come into our office for all sorts of reasons. Some people come into our office having just suffered through a stressful, contentious holiday season, intent on making sure they never have go through it again. Getting an early start on their family law action makes it much more likely that they will be able to conclude the action prior to the next holiday season.

Other clients come in with a resolution to resolve their family law disputes. They may have a nagging need to adjust their parenting plan or modify their child support. It is almost always best to act soon, rather than wait until later to make changes. For example, if changes need to be made to child support the court will usually only adjust the level back to the date the petition for modification is made.

3 Ways to Make Your Parenting Plan More Age Appropriate

December 28, 2013 | by Blair & Kim, PLLC

As any parent knows, kids change over time. They grow bigger, stronger, more independent, and busier. As they change, it is often necessary for the parenting plan that schedules their residential time to change with them. Last week, this blog discussed flexibility within parenting plans, or within the families following (or not following) a parenting plan. Here we’ll discuss a few ways that parenting plans can address growing children’s changing needs.

First, the form parenting plan provides two paragraphs for planning the child’s residential time with each parent. The two paragraphs address the child’s schedule at two different ages. Paragraph 3.1 of the form parenting plan addresses the child’s residential schedule while the child is under school age. (School age is defined by paragraph 3.2 of the form [usually when the child starts kindergarten or first grade]). Paragraph 3.2 provides the residential schedule for school-age children. This provides families the ability to make two residential schedules within the plan itself. Parents often choose to have more frequent, but shorter visits for the non-primary parent when the child is under school age, and then visits of longer duration when the child is older. These decisions are (hopefully) dependent on the needs of the child and their families.

Second, layered into the existing form, you can also have an even more graduated approach. If the child is very young, the child may need to have very short visits during the first year or so, followed by longer and longer visits all while they are still in the “before school age” definition. Or, you may want to design a different schedule for elementary, middle school, and high school. While the pattern form is designed for two schedules, it is possible to add more than two if both families agree, or if one party convinces the court that it is necessary.

Flexibility in Parenting Plans

December 18, 2013 | by Blair & Kim, PLLC

When it comes to parenting plans, some clients prefer a plan that spells out where the child will be during every minute of every day. Some of these families go on to live that plan down to the minute. Other families hope for a more flexible plan. They might want the plan to be drafted so that the child resides with the father two days per week based on his preference, or the child’s preference. Maybe they want the flexibility to choose who takes the child to soccer practice, regardless of where the child is residing at the time. Flexibility can be great. If parents are willing to change plans and accommodate one another’s schedule, and that of the child, the child often benefits. For example, if both parents work together and are flexible, it often means the child can spend the most time possible with one of their parents, and less time at daycare or other third-party care.

That said, issues can arise if parents draft a specific and/or strict parenting plan, and then ignore the provisions laid out therein. Parents should be aware that continually working outside the parenting plan can end up being grounds for a modification of the parenting plan. This can also have impacts on child support. For example, if under the parenting plan the child is supposed to be residing with the father during the week and the mother every-other-weekend, but the parents later agree that the child should remain with the mother three days during the week plus every-other-weekend, the mother may have grounds to modify the parenting plan. If the parenting plan is modified, it may mean that the child support obligations also shift.

This doesn’t mean that you shouldn’t work with your child’s other parent, and be flexible when things come up. It does mean, that if you are not following the parenting plan in a substantial way, it might be a good idea to discuss with a family law attorney your parenting plan, and your current parenting circumstances. Flexibility is good, but protecting your time with your child is most important.

When is it Time to Speak to a Family Law Attorney?

December 12, 2013 | by Blair & Kim, PLLC

Many people wonder when is the right time to consult with an attorney about their family law case. Often, the difficulty in making this decision results in people waiting too long to confer with an attorney. Having a client come into our office long after pleadings have been filed, arguments heard and even orders entered is often a frustrating experience. As family law attorneys we are able to see how the case might have gone differently if the person would have been represented throughout the process. Often, by the time the person comes into our office our ability to help them is severely limited by actions previously taken while unrepresented.

While each person’s case and circumstances are different, here are occasions when you may want to consider speaking with a family law attorney:

If you are served with a petition, motion, notice, or other court document.
If you are considering filing a petition or complaint in your family law case.
If you are entering a marriage and you want to know about protecting the assets you currently have.
If you are experiencing a change in circumstances in your family and want to know how it might affect your legal rights or obligations.

Just because you speak with an attorney about your case does not mean that you have to hire that attorney to represent you; however, at least you can ask that attorney what the process will be like. With more information you will be more prepared to decide whether you want to represent yourself, be represented by an attorney, or consult with an attorney, but do some of the work yourself.

Four Things to Bring with You When You Meet with Your Family Law Attorney

December 1, 2013 | by Blair & Kim, PLLC

People contemplating taking legal action to resolve a dispute involving their family are often nervous, emotional and stressed. This can be especially true when they go to meet with a family law attorney for the first time. Although it can be a challenge, we suggest you keep your focus. Remember that time is money, and be prepared for your first meeting. We hope providing the following list will help you feel more prepared.

Suggested items to bring with you when you visit your family law attorney for the first time:

Any court order relating to the issue at hand. If you want to change your parenting plan, child support order or other order, be sure to bring the actual order with you. It is very hard for an attorney to advise you on the proper way to ask that an order be changed (or if it is even possible to do so) without having the order in front of them.
Other documents related to your legal issue. If you are asking for a change in your spousal maintenance or child support, you may want to bring your tax return, or recent paystub including year-to-date pay amount. If you are asking about a change in your parenting plan (or initial creation of a parenting plan), you may want to bring a copy of your calendar, showing when the child was at your place, and when the child was at the other parent’s home.
A list of questions you would like to ask during your initial consultation. This might include questions that help you learn a bit about the attorney you are meeting with. You may want to ask about fee structures that are available, the attorney’s litigation style, and how much experience the attorney has in the area of law you are inquiring about.
Any intake form the law office might ask you to fill out. When you make an appointment, you might ask if there is a client intake form that you could fill out in advance.
Any other documents the attorney requests you to bring. When you call to make an appointment, ask whether there is anything you should bring with you to your first meeting.

Please feel free to contact us if you’d like to setup an appointment to talk about your family law issue.