Family Law

What Happens When the Husband (Presumed Father) is Not the Child’s Father?

June 10, 2013 | by Blair & Kim, PLLC

This blog previously discussed the uncomfortable reality for Kim Kardashian that her ex-husband will be the presumed father of her child. Kim is not the only one facing this situation, and we thought this might be a nice time to go through what can be done in Washington (a state with a marital presumption like California) when a woman’s husband is not the father of her child. As stated in the first blog article regarding the topic, there is a marital presumption in Washington that presumes a child born during a marriage, or within 300 days of its dissolution, is the husband’s child. While Kim’s sixty-two day marriage may be uncommon, this situation is more common than you might think. Sometimes couples end their marriage emotionally, socially, financially, and physically without doing so legally. The legal spouses move on and have other relationships, some of which might result in pregnancy. In this instance, the husband (even if he has not had marital relations with his wife in years) is still presumed the father of the child.

When this happens, it is often of interest to one or all of the involved parties to have the husband’s paternity disestablished, and the biological father of the child established as the legal father. To have his paternity disestablished, the presumed father may seek an order disestablishing his paternity. He can do this as part of his petition for dissolution. Another option is for the presumed father (the husband), the mother (the wife), and the biological father (wife’s new partner) to sign an acknowledgment of paternity establishing the biological father as the legal father of the child. A third option is for one of the interested parties to file a parentage action, asking the court to establish the biological father’s paternity.

There are important legal obligations that come with being a child’s presumed legal parent. If you are in a situation like the one above, it is likely in your interest to discuss your options with a family law attorney. We would be happy to discuss your case and the possible outcomes of your situation.

Summer (Parenting) Plans

June 6, 2013 | by Blair & Kim, PLLC

As summer vacation draws near, thoughts of swimming pools, suntan lotion and backyard barbeques fill most of our minds. But for parents facing their summer parenting plan schedule, other thoughts might be coming to mind. Many families with parenting plans have one residential schedule for their children during the school year and another for the summer. This means that in the coming months, these families have to adjust to more than just getting used to seeing a bit more sun in the sky.

Kids often spend more time during the summer with the parent that they don’t reside the majority of the time with during the school year. This can mean excitement and some stress for the kids and the non-majority parent. There are adjustments to family schedules, how much food to make for meals, limits on screen-time, the setting of summer bedtimes, and more. For the parent with whom the children reside the majority of the time it can often mean less time with the kids. Some parents use this as a time to do some adults-only traveling, or a time to do some summer cleaning without frequent interruptions from the kids.

For most families, summer parenting plans can be personalized to the needs of a particular family. If the kids are young they may do better with an every-other-week rotating schedule (or perhaps even maintaining the school year schedule). When kids are older, some families choose to have a three to five week block of time with each parent. Still other families choose to maintain the school year schedule. The plan should be personalized to meet the needs of a particular family.

Child Support and Unemployment

May 16, 2013 | by Blair & Kim, PLLC

When faced with the unenviable position of being both unemployed, and ordered to pay child support, people often have questions about what type of relief they can receive from their child support obligations. The answer to that question (and so many others in the world of law) is: it depends. As with all issues discussed on this blog, the more thorough response that follows is not personalized, and it is advisable to talk to an attorney about your specific circumstances.

In general, if an obligor (paying parent) is unemployed at the time child support is set, the court will consider this in setting child support. Often, the court will order that the obligor pay a lower amount while unemployed, but may require that as soon as the obligor obtains employment, the child support amount be modified. In other circumstances (for example if the court believes that you are under employed or unemployed intentionally to reduce your child support amount), the court will not take your unemployment into consideration and will order child support to be paid at an amount based on your earning potential, not your actual income.

If the obligor become unemployed (or the income is otherwise significantly reduced) after child support is set, it is likely that the obligor will want to advise the court of this change and ask that the court give him or her some relief. This is done by petitioning the court to modify your order of child support. (It is often important to petition the court as soon as a change occurs; the change in child support may only date back to the date of the petition, not the day your income changed.) If the obligor is only unemployed for a month or so, and then returns to work earning a similar income, it may not be worth the time and resources to ask the court to change the support order; however, if the obligor anticipates having a harder time earning the same income or finding a job at all, it is more likely to be worth the time and resources to request a modification.

Temporary Orders

May 12, 2013 | by Blair & Kim, PLLC

For some divorcing couples, the dissolution process can be relatively short. If the parties agree on the disposition of their property, where the children should reside, child support, and other details, a decree of dissolution can be entered in as little as ninety days after the filing of the petition for dissolution. However, if things are not this simple (and they usually are not) people often wonder what happens to their kids, property, child support, spousal maintenance (commonly known as alimony) and financial accounts in the time between the petition and decree. The answer is often temporary orders. (Temporary orders may also be requested and entered in other non-dissolution family law cases.)

Temporary orders are orders entered by the court that provide how issues are to be handled prior to the entry of the decree. They can limit the spouses’ rights to spend money from certain accounts, order which spouse should pay debts, order child support, order spousal maintenance, provide the parties with a temporary parenting plan, and much more. These orders can be especially helpful in situations where communication and cooperation between spouses has strained or ceased.

While temporary orders are replaced by the final orders at the time of the decree, their importance should not be underestimated. The schedule in the temporary parenting plan can have effects on the final parenting plan. The temporary maintenance and child support can have huge ramifications on the standard of living for the economically disadvantaged spouse and the children (and the paying spouse too). Court orders requiring debts be paid can save both parties’ credit.

Four Tips for Emailing a Former Spouse (or Soon-To-Be Former Spouse)

May 5, 2013 | by Blair & Kim, PLLC

Email between spouses (or former spouses), and even text messages, often serve as valuable evidence in family law cases. This form of communication can be used to bolster either spouse’s case. We have been on both sides of this situation, and have learned a few things along the way. Below, please find our four tips for people who communicate with their spouse electronically and may be facing litigation in the future:

Abide By the 24-Hour Rule – We all know the cathartic feeling we get after writing a particularly scathing email to a deserving recipient. It feels good to type out exactly what you think the recipient did wrong and how incredibly right you were. That said, after typing a cathartic email, wait 24 hours. After the wait, read the email and see if it will serve your best interests should the email appear before the court, or opposing counsel. If not, don’t send it.
Assume the Judge Will See All Electronic Communication – When you do decide to send an email to your (former) spouse, assume that the judge or opposing counsel will see everything you write.
Leave Out the Pejoratives – While your spouse might deserve to be called a mean name, it is likely that using this form of communication will hurt you more than your spouse, should your case go to court. The court will not look kindly on you calling your former spouse bad names.
Confirm it in Writing – While our other suggestions encourage you to limit your online communication, this suggestion encourages you to increase your electronic communication in certain circumstances. Those circumstances include times that a spouse does something that s/he will later deny, but that you will want the court to have evidence of (for example, if a spouse admits that they quit their job because they think not working will reduce their child support obligation, or if they are late picking up the children from school or for a visit, or if they recklessly waste community assets). In any of these cases (and others) it is often wise to type an email of the facts (again no pejoratives – see suggestion three) and send it to the offending spouse. With luck, the spouse may respond in a fashion that provides an admission that they did act inappropriately.

If you have questions about your electronic communication with your spouse and how it can be used for or against you in your family law case, please contact a family law attorney for legal advice.

A Primer on Community Property

April 24, 2013 | by Blair & Kim, PLLC

Prior to dividing marital property during the dissolution process, a judge must characterize the marital property as community or separate. Even when a judge is not involved (in the case of private settlement or mediation/arbitration), attorneys for both parties will likely want to know what property is held as community, and what is held separately by the parties. Let’s start with a definition of community property. Community property is all property acquired during the marriage that is not separate property. RCW 26.16.030. Separate property is property received prior to (or after) the marriage and/or property received during the marriage by gift, bequest or inheritance (etc.) to one spouse only. RCW 26.16.010. Rents, issues and profits from separate property are also considered separate property, while rents, issues and profits from community property are considered community.

Why does this matter? It matters because of how it affects a spouse’s right to manage property during marriage, as well as potentially affecting how property will be divided upon divorce. Per RCW 26.16.030, separate property may be managed during the marriage as if the party owning the property was unmarried. Community property management is limited in some regards (ex. gifting of property, transferring of real property) by a requirement that both members of the community be involved.

At the time of dissolution, the court considers the character of property (i.e. community or separate) when determining how it is to be awarded. Even after property is characterized as separate, equity may require the court award separate property of one spouse to the other spouse. In other words, just because property is deemed separate property by the court does not mean it cannot be awarded to the other spouse.

Notice of Relocation – One More Thing That Can Make Moving Difficult

April 16, 2013 | by Blair & Kim, PLLC

As if packing your entire home into cardboard boxes, finding a new place to live and work, and saying goodbye to local friends and family aren’t enough, we have one more thing you may need to consider before moving. If you have children that you intend to also relocate, with someone whom you are not moving with, you may need to provide your kids’ other parent (and/or anyone else with legal rights to residential time with your children) with notice of your intent to relocate. (This may not be true if there is no court order providing the other person(s) with legal rights to time with the children, but there are other laws that may still affect your ability to move with your kids.)

The content and type of notice required varies based on where you intend to relocate to and whether there is a court order requiring notice.

If, based on your circumstances, notice is required pursuant to RCW 26.09.430, it should be provided no less than sixty days prior to your move. (As with most rules, there are exceptions to this rule.) If the general rule applies and sixty days’ notice is to be provided, the opposing party must file their objection within thirty days of receiving notice of your intent to relocate. If they do object, the court (unless you can settle the issue before hand) will decide whether or not you may move with your children.

Legal Separation: Four Things You Should Know

April 10, 2013 | by Blair & Kim, PLLC

In Washington, instead of filing for dissolution of marriage, a spouse may request what is called a legal separation. People, are often confused about what this means. This is probably partially because the term “legal separation” or “separated” is used in different ways in family law. First, the term is used to define the period of time between when the marriage becomes defunct, and when the parties are finally divorced. Second, there is the legal process to obtain what is called a legal separation. This blog post intends to speak about the latter meaning of the term. Below please find a list of things you may want to know about legal separation:

Legal Separation as defined by RCW 26.09.030 is not a necessary part of the dissolution process (though it can be part of the process). Instead, it is a separate process that can be used to achieve somewhat different (though overlapping) relief.
With a legal separation spouses can obtain a parenting plan, a division of debts and liabilities, spousal maintenance, a child support order, and more.
If a spouse files a petition for legal separation, and changes their mind and wants a divorce, that person may have to file a second petition (this time for dissolution of marriage) requesting that the court dissolve their marriage.
Six months after a decree of legal separation has been filed, the decree may be converted to a decree of dissolution by either party (without the other party’s consent).
Unless a spouse takes further action (see above), the marriage will not be dissolved at the end of the legal separation process.

If you have questions about legal separation, please schedule an appointment with a Seattle family lawyer.

Parenting Plans in Practice

April 8, 2013 | by Blair & Kim, PLLC

Recently, in the family law community a discussion was had regarding how strictly parenting plans are followed by our clients. While the question was batted around for a while with anecdotal stories of perfect compliance and/or utter disregard of the plans, the answer was less than conclusive. That is: it depends. The level of compliance with a parenting plan seems to vary as much as the families they are drafted for.

While the question couldn’t be answered conclusively, some generalizations could be drawn from the anecdotes. From this (entirely unscientific) exercise, it became clear that what we have seen from parents is similar to what other family law practitioners are seeing. Some families follow their parenting plan to a T, while others toss it in a drawer and all but forget it ever existed. One commonality that seems to exist is that if parents got along well regarding parenting during the marriage they are more likely to be flexible and understanding with each other regarding the parenting after the divorce. Another similar observation is that parties who experienced long, contentious litigation were often less likely to be flexible regarding aspects of their parenting plans. Another shared experience, is having clients who begin as a flexible agreeable partnership, and then change to a less-agreeable, more rigid pair of individuals.

Whether you anticipate strict compliance or a laissez-faire attitude toward your plan, it is important that it be drafted in a way that you would be satisfied if strict compliance was required. Even in dissolutions where both parties anticipate flexibility and friendliness, a well drafted and reasonably specific plan is an absolute necessity (this plan can even explicitly permit flexibility). Sometimes, having a specific framework helps people maintain order and efficiency. It’s not that they won’t stray from the plan occasionally, just that when they do, they’ll have a framework to return to. Also, sometimes relationships sour (those who have been divorced know this all too well). Even if things seem copacetic during drafting, plan for the worst. Have a plan in place that you and your kids will be happy sticking too if your flexible relationship fails to remain so.

More on Real Estate and Divorce

April 2, 2013 | by Blair & Kim, PLLC

In most divorces, property has to be divided. Oftentimes, a divorcing couple’s most valuable asset (or greatest liability) is their real property (i.e. their house). As such, special attention must be paid to this property both during and after dissolution of a marriage. The New York Times recently ran an article about real estate agents who have found a niche helping people that have recently divorced (or are in the process of divorcing) market their real property. The article provides useful tips for parties in this situation.

The article is also of interest for its proposition regarding families choosing to live close together after divorce to make co-parenting easier. In our experience, for families that have decent communication skills and can tolerate being around each other, this can be a good option. It allows frequent visitation with each parent, allows both parents to attend the child(ren)’s events, and minimizes transportation time for the kids.

Read the article here.