Family Law

RCW 26.19.071: The Standards for Determination of Income for Child Support Purposes

March 30, 2013 | by Blair & Kim, PLLC

When deciding the appropriate level of child support, the court has to determine the income of both parties involved (i.e. the parents). The determination of income (what’s included and what isn’t) is often the most important financial finding a court makes during an action involving child support. It has a lasting impact on both the obligor (paying spouse) and the obligee (receiving spouse).

It is important that you have competent and thorough counsel on your side when this determination is being made.

Some of the highlights of RCW 26.19.071 are provided below:

No Fault Divorce

March 24, 2013 | by Blair & Kim, PLLC

Washington is a no-fault-divorce state. This means that assigning blame, and/or proving that one spouse or the other is at fault for the marriage failing, is not necessary. This comes as a surprise to some people who come into our office to consult regarding the end of their marriage. Some are disappointed to learn that their spouse is not going to be punished by the court for his or her marriage-ending behavior. While we empathize with the hurt and sense of injustice our clients feel, we maintain our focus on the issues that will matter most in our clients’ cases.

Instead of requiring that one party be ordered at fault, in our state it is only required that one spouse state that the marriage is irretrievably broken, and ask the court to dissolve the union.

There are limited circumstances when the court will want to know about the behavior of one or both of the spouses that led to the failure of the marriage. For example, if the failure was due to domestic violence the court will do what it can to protect the victim and/or any children involved. Or, if the failure was due to a wasting of financial resources by one spouse, the court may want to consider this when determining whether to enter temporary orders restricting use of community financial resources. In other words, behavior during marriage is not irrelevant to the divorce process, but it is also not necessarily determinative of the outcome.

Name Change at Time of Divorce

March 6, 2013 | by Blair & Kim, PLLC

As part of a petition for dissolution of marriage, a petitioner may ask that the court order that his or her name be changed. In many cases, this request is made by a woman asking that her name be restored to her pre-marriage name. For some, especially those without children and those dissolving a marriage that is shorter in duration, the decision is easy. They have left the marriage and would like a fresh start without a constant reminder of their now-ending marriage.

In other cases, especially after longer marriages and those involving children, the decision is more difficult. Some people have built a professional reputation with their married name and have to consider how a name change may affect their professional life. Furthermore, if you share your name with your children, there are more issues a parent must consider. The child and/or parent may feel that the continuation of the shared name provides some sense of stability in an otherwise rapidly changing set of circumstances.

In addition to concerns about professional reputation and children, many clients also choose to keep their married name because they don’t want to go through the hassle of changing their name. In addition to the court ordering (via the decree) that your name be changed, there are additional steps. A person must change their name with the Department of Licensing, the Social Security Administration, their financial institutions, etc. It can be a time-consuming process.

Three Alternatives to Court

February 24, 2013 | by Blair & Kim, PLLC

Often, when a person comes into our office they assume that every family law dispute ends up with a judge handing down a verdict, after a public hearing. In family law, most of our cases involve some of our clients’ most intimate personal and financial concerns. As such, in most cases, our clients would prefer their case not be decided in the courtroom. There are many reasons for this: a client may have personal or financial privacy concerns; a client may be intimidated by the formal atmosphere of the courthouse; or a client may be afraid of having someone who knows very little about them and their children making a decision with such lasting implications. Fortunately for clients hoping to avoid court, there are other options.

One alternative to court is to make an agreement between parties and their attorneys. There is nothing (in the vast majority of cases) prohibiting parties from coming to an agreement on a previously disputed issue. Attorneys can draft the agreement into legally binding language, and have the new agreed order entered with the court. If the parties communicate well, and are not too far apart on the disputed issue, this can often be the most efficient option. It allows parties to keep private information private, and saves the cost of hiring a mediator or arbitrator.

Another alternative to court is mediation. In mediation, a trained (usually paid) mediator facilitates communication and assists parties in crafting a mutually agreeable resolution. The mediator does not hand down a decision, but instead facilitates and encourages the parties to create one themselves. If a resolution is reached, the mediator and/or the attorneys will draft the agreement into legally binding language. Mediation offers privacy (it is [with limited exceptions] a confidential process) and personalized results (as it is the parties themselves who decide the outcome).

Extending the Waiting Period

February 16, 2013 | by Blair & Kim, PLLC

The current RCW 26.09.030 requires that parties wait until ninety days after the filing of a petition before a decree of dissolution can be entered. There is a bill currently under consideration in the state Senate, seeking to change the waiting period from ninety days to one year. According to this Seattle Times article, the bill was heard by the Senate on Friday. Another provision of the bill would require that court-issued divorce handbooks be modified to include the benefits of reconciliation. Supporters, according to the Times article, believe that extending the waiting period could result in more reconciliations and thus less divorces. Opponents, again according to the Times, claim that the law is paternalistic.

In our experience, by the time people are ready to file for divorce their minds and hearts have been through a thoughtful and lengthy decision making process. While it is difficult, they have decided that ending their marriage is the best next step. Requiring that it take longer to take the next step is unduly stalling their lives, and the lives of their children.

Discover the Possibilities: The Basics of the Discovery Process

February 10, 2013 | by Blair & Kim, PLLC

Once a family law action is filed with the court, some clients are surprised to learn that they have the ability to obtain information from the other party, and even third parties, which is otherwise difficult or impossible to obtain. Other clients are surprised when they receive a hefty document containing hundreds of questions that have to be answered within a limited time period. Whether you are the purveyor or receiver of discovery documents, it is helpful for people to understand some basics about the discovery process.

In general, the discovery process is the process by which parties “discover” information relevant to their case. There are several options parties may use. Below is a list of four commonly used discovery methods and a brief definition of each:

Interrogatories: Interrogatories are questions directed to the other party. In family law cases, they often include questions regarding property, parenting, income, expenses, and anything else relevant to the case. The receiving party is required to respond to the questions within a limited period of time (usually thirty days).
Requests for Production: As may be obvious from the name, these are requests for the production of documents or other items currently held in the possession (or accessible to) the other party. This may include bank statements, other financial documents, appraisal documents, diaries, journals, student grades, resumes and more. The requests for production often come in a document along with the interrogatories and have the same time limits.
Subpoenas: Subpoenas are documents that order a person to appear, permit inspection, or produce documents. These can be served on both parties to the suit, and third parties. For example, if the opposing party holds an interest at a company, a party may request that the records custodian of that company provide the records s/he keeps. Or, a subpoena may order that a person appear for a deposition.
Oral Depositions: Oral depositions are an opportunity for a party to case to ask questions of another party, or a non-party. These depositions may be used to find out what relevant information a person has or doesn’t have. It may also be used to determine how a witness might testify if the case goes to trial.

In each case, the benefit of different methods of discovery must be balanced with the cost and time expended on obtaining it. We are experienced in determining a discovery strategy that properly balances these often conflicting interests.

Real Estate and Divorce – Knowledge is Power

January 25, 2013 | by Blair & Kim, PLLC

As part of most divorce property distributions, at least one piece of real property has to be distributed. For many people, dissolving their marriage is the first time, in a long time, that they have had to think about their real estate holdings as more than a place they call home. As such, many people feel unprepared to navigate the valuation, refinancing, and/or sale, of their real property. It is our belief that the more you know about your property, the better equipped you will be to make the best decision regarding its disbursal.

As part of his series, Divorce Dollars and Sense, meant to help people navigate the financial aspects of divorce, Jeff Landers provides a list of seven things he says women (and we say all people) need to think about when dealing with real estate as part of their divorce.

For many of our clients, their real property is their greatest asset – or in this market, their greatest liability. With so much on the line, it is important that you have the best team of professionals on your side. In addition to strong legal advocacy, this may include the use of our network of respected real estate professionals. We are ready to help you navigate the real property issues in your divorce.

Postsecondary Educational Support

January 15, 2013 | by Blair & Kim, PLLC

As many of us know, the days of parents’ financial support of their children ending on the child’s eighteenth birthday is largely a thing of the past. These days, whether divorced or not, many people are supporting their adult children through college or technical school (at least). In divorced families, it is often necessary and helpful to have a court order dividing the financial burden of supporting adult children through postsecondary schooling. (Please note, there are other grounds for requesting the continuation of child support into adulthood not based on anticipated college or technical school – this blog entry does not cover those grounds.)

Sometimes (especially if ordered in close proximity to the time the child will be leaving high school or turning eighteen), postsecondary support is ordered as part of the original order of child support. However, in most cases we see, the issue is reserved and will require further action by one of the parents to create an obligation to share costs. If it looks like your child is college or technical school bound, and your spouse would be able to assist with the financial burden of your child’s schooling it is important that you be proactive in obtaining a court order requiring that your former spouse assist you and/or your child with postsecondary expenses.

Washington law refers to post-high school financial assistance as postsecondary educational support. This support can include the tuition cost of college or technical school as well as the cost for housing, books, and fees. In determining whether to award postsecondary educational support (and if so, how much), the court considers the factors set forth in RCW 26.19.090.

Does Your Order of Child Support Fit Your Current Circumstances?

January 10, 2013 | by Blair & Kim, PLLC

Child support is meant to provide support for minor children based on the economic circumstances of that child’s parents. Sometimes after an order of child support is entered a child changes age brackets, gets close to graduating from high school , or other significant enough changes in circumstances occur, that it is necessary to modify the order of child support to reflect current circumstances.

RCW 26.09.175 sets for the procedure for modification of an order of child support. It requires that modification proceedings begin by the filing of a summons and petition. These documents must be served on the other party (service requirements vary depending on where order was entered). (There is also a process for adjustment of child support that has separate procedure that is not covered here. That said, while it offers more limited remedies, it can be a quicker and less expensive process and should be considered prior to filing a modification action.) Prior to filing an action for modification, a cost-benefit analysis must be done to ensure that the modification will be worth the resources.

An order of child support may be modified at any time based on a substantial change of circumstances. RCW 26.09.170(5)(a). Whether there is a substantial change of circumstances is fact-specific, and can be a difficult to prove. In some cases, it may be advisable to wait for time to pass before filing for a modification. After one year has passed, an order may be modified without a showing of a substantial change or circumstances if the order in practice works a severe economic hardship on either party or the child; if a party requests and adjustment based on the change of age category of the child; if a child is still in high school, upon a finding that the child will need financial support beyond graduation; or to add an automatic adjustment provision. RCW 26.09.170(5)(b-d). This information does not provide for some of the other exceptions and requirements of modifying child support. Furthermore, adjustments and modifications may be permitted due to language in the original court order.

The Marital Presumption in Washington State (and how it relates to Kanye West and Kim Kardashian)

January 5, 2013 | by Blair & Kim, PLLC

While this blog generally focuses on family law issues facing typical Washington families, every so often a matter facing a not-so-typical family provides an opportunity to discuss a topic that may affect families reading this blog. As many have heard (It’s even being discussed on CNN:http://marquee.blogs.cnn.com/2013/01/03/in-cali-kris-humphries-is-the-presumed-dad-of-kim-k-s-baby/), Kim Kardashian and Kanye West are having a baby together. Meanwhile, Kardashian’s marriage to Kris Humphries is not yet dissolved. According to the article linked above, California has a marital presumption that presumes a husband (or a recently divorced former-husband) of a pregnant woman is the father of that woman’s child. As such, under California law (again, according to this article), Kris Humphries will be the presumed father of Kanye West’s baby. In addition to being terrific tabloid fodder, this also gives this blog a chance to comment on the marital presumption in Washington.

In Washington RCW 26.25.116 provides a similar marital presumption: It states that in the context of marriage or domestic partnership, a person is presumed to be a parent if he or she is married or in a domiestic partnership with the mother or father of the child and the child is born during the marriage or domestic partnership or within 300 days of its dissolution. RCW 26.25.116(1)(a)&(b). It likely comes as a surprise to many outside the legal field that the presumption (i.e. the starting point for determination of paternity) is based on marital status not DNA. RCW 26.25.116(3) goes on to state that the presumption may be overcome only with the adjudication of paternity under RCW 26.26.500 through 26.26.630. Importantly, this may leave a person who is not the biological parent of a child responsible for providing support for the child until his or her paternity can be disproven. Also important to note, there are time limits on when this presumption may be disputed.

The main reason for this presumption is efficiency. In most cases, the spouse or domestic partner of a parent of a child born during (or soon after) a marriage is the child’s other parent. As such, the presumption allows the state to determine paternity of the child without the need for blood tests or litigation. That said, there are situations like the West/Kardashian pregnancy noted above, in which the results elude our notions of common sense and determinations of paternity are not easily made.