Divorce

Washington Appeals Court Allows Separate Property to Be Traced from Joint Account

November 10, 2021 | by Blair & Kim, PLLC

In a Washington divorce, a party who claims an asset is separate property must show it qualifies as separate property by clear and convincing evidence. If separate property becomes commingled with community property to the extent it is impossible to distinguish it, then it becomes community property. In a recent case, a husband challenged the trial court’s distribution of property, arguing the certain assets could not be sufficiently traced to retain their separate character.

The parties were married for nearly 32 years when they separated in January 2018. They owned nine rental properties. The wife argued she made the down payments for three of the properties from her inheritance from her father’s death. She claimed she had a traceable separate property interest in those properties.

Her inheritance had been deposited into a joint savings account where community funds had been deposited. The funds in the account were sometimes used for community expenses. The wife testified the account was used infrequently so the inheritance “was kind of kept separate in there.” She testified she had wanted to keep her inheritance as separate property, but was concerned putting it in a separate account would look like she was not trying to work things out after a recent reconciliation.

Appeals Court Reverses Dog Visitation in Washington Divorce Decree

October 13, 2021 | by Blair & Kim, PLLC

Many people consider their pets to be part of the family, but the law often treats pets as personal property. In a recent case, a husband challenged court-ordered visitation with the dogs awarded to him in his divorce decree.

The parties, who had been married for about 27 years, had two dogs at the time of the divorce. They referred to the dogs as “[t]he babies” and regularly texted about them. When the wife moved out into a motor home, the dogs remained in the marital home with the husband. The wife visited them several times a week.

The husband petitioned for legal separation at the end of August, 2018. In her answer, the wife asked the court to dissolve the marriage and requested at least 10 hours per week visitation with the dogs and the right of first refusal for their care. She also asked that the parties split costs for the dogs. The commissioner’s temporary orders only ordered the wife to pay half of the dogs’ grooming and veterinary bills, but otherwise did not address the dogs. She kept visiting them several times per week.

Washington Divorce Granted Despite Party’s Incapacity

September 27, 2021 | by Blair & Kim, PLLC

A court must appoint a guardian ad litem when a party to an action is incapacitated and does not have a guardian. RCW 4.08.060. In In re Marriage of Gannon, the Washington Supreme Court held that a guardian or guardian ad litem may pursue a Washington divorce on behalf of an incompetent ward if it is in the ward’s best interests, noting that never allowing divorce to be pursued on behalf of the incompetent spouse would allow the competent spouse “absolute, final control over the marriage” and such a result was “not equitable.” The trial court must hold a hearing to determine whether dissolution is in the ward’s best interest.

In a recent unpublished case, an appeals court considered whether the trial court properly granted a divorce. According to the appeals court’s opinion, the parties married in 1989. The husband was diagnosed with Alzheimer’s disease in 2014. The parties started having arguments, including a physical altercation in 2016. The wife testified that she told the husband she was afraid he would kill her if she stayed with him. A neighbor testified the husband came to his house and said he could not go home because he was afraid he would be killed. The neighbor testified the husband asked him to call the police. The police arrested the wife.

The husband’s children tried to obtain a vulnerable adult protection order, but were unsuccessful. The wife requested a Guardian Ad Litem for her husband, stating she wanted to maintain their finances and control over his healthcare decisions. The husband signed a durable power of attorney for healthcare and durable power of finances. He stated he wanted a divorce.

Termination of Washington Spousal Maintenance Based on Remarriage

August 28, 2021 | by Blair & Kim, PLLC

Unless an agreement or the divorce decree provides otherwise, a Washington spousal maintenance obligation generally ends when the party receiving it remarries or registers a new domestic partnership or when either party dies. RCW 26.09.170(2). Generally, the court may only modify a maintenance order if there is a substantial change in circumstances. RCW 26.09.170(1). Washington law also allow a divorce decree to preclude or limit modification of a maintenance provision if the parties agreed to do so in the separation agreement. RCW 26.09.070(7). A court does not have the authority to modify such a provision.

In a recent unpublished case, an ex-husband appealed a court order terminating the spousal maintenance he received. The parties’ divorce decree in 2007 was based on a separation agreement that required the wife to pay the husband spousal maintenance. The agreement provided that the spousal maintenance would terminate when the husband remarried or died. It stated the spousal maintenance obligation was otherwise “non-modifiable” except in the case of the wife’s disability.

The wife sought to terminate the maintenance in 2019, alleging the husband had remarried. She claimed she had seen a news article indicating the husband was married to another woman.

Washington Court Holds Mother in Contempt for Violating Parenting Plan

July 16, 2021 | by Blair & Kim, PLLC

A parent may be held in contempt if they fail to comply with a Washington parenting plan. A parent may move for contempt if the other parent prevents visitation, does not return the child from visitation, or fails to engage in joint decision-making.

In a recent case, a mother appealed a contempt order after a commissioner found she had failed to notify the father of dental and medical appointments. A parenting plan was entered when the parents divorced in 2014. Pursuant to the parenting plan, the children would live with their mother in another state and come to Washington to visit their father for winter and summer vacations. Each parent was allowed to make day-to-day decisions and emergency healthcare decisions while the children were with them, but nonemergency health care decisions were to be made through joint decision-making.

The father alleged the mother had taken the children to the dentist without notifying him. The mother said she probably had notified him, but that she could have forgotten to do so. The father wanted to engage in joint decision-making and participate in the appointments remotely.

Committed Intimate Relationships in Washington Divorce Cases

March 20, 2021 | by Blair & Kim, PLLC

Washington, unlike some states, recognizes “committed intimate relationships.” Courts may consider a number of factors, including the parties’ intent, the length and purpose of the relationship, whether the parties continuously lived together, and whether the parties pooled their resources. When a couple acquires property during a committed intimate relationship, it is presumed to be community property. The date a committed intimate relationship began can therefore be very significant in a property distribution during a Washington divorce. A husband recently challenged a court’s finding he and the wife were in a committed intimate relationship when a house was purchased.

The parties started dating in 2008 and the wife moved in with the husband in April 2009. The husband paid the rent and bills, and the wife helped with food and other things. She also had furniture and two vehicles. They maintained separate finances.

They bought a house together in March 2010. The wife said they saved money because she knew the builder and her husband helped them. She testified they decided to put the title and loan in the husband’s name because they weren’t married yet. She said the husband told her they would refinance after they got married. The husband paid the mortgage, and the wife said he “was adamant that [the mortgage payments] come from his sole, own checking account.”

Modifying Washington State Spousal Maintenance

November 23, 2020 | by Blair & Kim, PLLC

Before awarding Washington spousal maintenance, a court must consider certain factors. Those factors include the financial resources of the spouse requesting maintenance; the time it would take that spouse to get the necessary education or training to find appropriate employment; that spouse’s age, physical and emotion conditions, and financial obligations; the established standard of living; the length of the marriage; and the ability of the other spouse to meet their own financial needs and obligations and those of the requesting spouse. RCW 26.09.090(1).

A wife recently challenged a modification of her spousal maintenance after the husband lost his job. The parties were married for nearly 31 years before they divorced in 2017. The husband had reached the level of senior vice president in his career and was earning a gross income of about $20,600 per month plus a discretionary annual bonus of up to half his salary. Their children were adults at the time of the divorce.

The parties agreed to an equal asset division. The wife received the home and some cash and retirement assets, and the husband kept most of the liquid assets. They agreed the husband would pay $6,000 per month in spousal maintenance for five years until he turned 60. He would then pay the wife $3,000 per month until he turned 67. The agreement was intended to give the parties equal financial circumstances until they both could access retirement funds without penalties.

Washington Court Finds Property Cannot Remain Separate after Being Conveyed to the Community

November 12, 2020 | by Blair & Kim, PLLC

The court must characterize property as community or separate when distributing property in a Washington divorce. Character is generally determined when the property is acquired. When a spouse acquires property before the marriage, that property is presumed to be separate property unless there is sufficient evidence of an intent to change it to community property. A wife recently challenged a court’s determination that property remained separate after a conveyance to the marital community.

Before the parties married, the husband moved into the home the wife owned with her previous partner.

The husband owned property on Aldergrove with two rental units. He also owned a property on Yew Street. After the marriage, the parties rented the Aldergrove units and the Yew Street property and deposited the proceeds into a marital community joint bank account.

Washington Court Cannot Correct Judicial Error in Property Division in a Divorce Decree

January 22, 2020 | by Blair & Kim, PLLC

A trial court in a Washington divorce generally has broad discretion in the disposition of property and debts. Once the court enters the dissolution decree, though, it generally may not modify the property division unless there are conditions justifying the reopening of a judgment. The court may, however, correct clerical errors pursuant to CR 60(a). The court may not correct judicial errors, which involve “errors of substance.”

In a recent case, a husband challenged a court order that he argued changed the distribution of debt after he had moved for clarification of the original decree.

In his divorce petition, the husband had requested the debts be split equally and paid from the proceeds of the real property the parties owned together. The trial court awarded the husband the landscaping business along with its premises, equipment, and debt. The court awarded the wife $38,000 in spousal maintenance. The “Petitioner’s Debt” section of the decree stated the husband pay the 16 listed debts. Next to a mortgage debt and accounts in the husband’s name, the court wrote 100%. The court did not write any percentage next to two items on the list. The rest of the items had 50% written by them.

Washington Appeals Court Upholds Spousal Maintenance Award to Repay Debt

October 7, 2019 | by Blair & Kim, PLLC

Courts in Washington divorce cases must make an equitable and just distribution of the couple’s property and liabilities. In some cases where one spouse owes the other, spousal maintenance or alimony may be used to achieve an equitable and just distribution. In a recent case, a husband challenged the award of spousal maintenance to pay off his share of the community debt.

The evidence showed the wife had a home worth about $500,000 with a mortgage and about $400,000 in other assets at the time of the marriage. A prenuptial agreement provided that the husband had no interest in the home. The husband had a checking account with a small balance and a vehicle. He also had an interest in a limited liability company he established and shares of another company, with values listed as “unknown.” He owed $8,000 on the vehicle, $36,000 in back taxes, and $55,000 on a promissory note to the wife. The wife’s assets were depleted during the marriage and the couple accrued significant community debt in the wife’s name.

In accordance with the prenuptial agreement, the trial court awarded the home to the wife. It also ordered the husband to repay the promissory note. The trial court found a BMW in the wife’s name was community property. In her petition, the wife listed the vehicle and the debt on it as property to be awarded to the husband. She ultimately changed that position, partly because the husband had not obtained separate financing. The trial court awarded the vehicle to the wife, noting the husband had surrendered his driver’s license and therefore would not be allowed to drive for a significant while.