Family Law Questions
Child Support
Who has a duty of support?
Both parents have an obligation to support their child/children.
How is support established?
Child support can be established by the superior court or through an administrative process. To establish a support obligation judicially, a lawsuit must be filed in superior court. This is usually done by filing a summons and petition either under the Dissolution of Marriage Act Chapter 26.09 RCW, the Uniform Parentage Act Chapter 26.26 RCW or the Family Expense Statute RCW 26.16.205.
How is the support amount determined?
The Washington State legislature has established a child support schedule based upon the incomes of the parents and the needs of the child(ren). All support orders entered in this state must be based on the support schedule. RCW 26.19.035(1).
The schedule consists of four components: (1) standards for determination of child support; (2) an economic table, which is the child support table for the basic support obligation; (3) the worksheet used in determining the amount of support; and (4) instructions.
How long must I pay child support?
Under the Dissolution of Marriage Act, the obligation to pay child support is based on dependency, not minority. However, the general rule is, unless otherwise agreed to in writing or expressly provided for in the support order, the obligation of support terminates upon the emancipation of the child.
A child is considered emancipated when he/she reaches the age of 18 or by emancipation in fact, whichever occurs sooner. Examples of emancipation in fact include marriage, service in the armed forces, or attaining economic sufficiency. Generally, support is paid until the child reaches 18 or graduates from high school, whichever occurs later. Parties can agree to additional support such as Post Secondary Educational Support (college support).
When may an order of child support be modified?
At any time upon a showing of substantial change in circumstances.
What constitutes a substantial change in circumstances?
A substantial change in circumstances would be circumstances not anticipated at the time of divorce. Examples would be one parent being laid off or fired from a job, a material change in income of a parent, or the child changing residences (with any accompanying change in the parenting plan). Examples of circumstances that are not considered substantial changes are voluntary unemployment or underemployment, voluntarily incurred debt, remarriage, and circumstances that were considered at the time of the entry of the divorce decree such as retirement.
Can an order of child support be modified without a showing of substantial change in circumstances?
Yes. Generally, an order of child support may be modified one year or more after it has been entered without a showing of substantial change in circumstances if:
(a) the order works a severe economic hardship on either party or the child;
(b) the child is no longer in the age category on which the current support amount was based; and
(c) a child is still in high school and there is a finding that there is a need to extend support beyond the eighteenth birthday to complete high school. An Order of Child Support also can be modified every two (2) years without establishing a substantial change of circumstances or other factors.
Maintenance & Meretricious Relationships
Who is entitled to maintenance?
Maintenance may be ordered for either spouse in such amounts and for such periods of time as the court deems just, without regard to marital misconduct.
Are there factors the courts consider when determining maintenance awards?
Yes. Generally, courts consider the following list of factors in determining maintenance awards (however it is not limited to these factors):
(a) The financial resources of the party seeking maintenance, including separate or community property apportioned to him/her, and his/her ability to meet his needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party;
(b) The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find employment appropriate to his/her skill, interests, style of life, and other attendant circumstances;
(c) The standard of living established during the marriage;
(d) The duration of the marriage;
(e) The age, physical and emotional condition, and financial obligations of the spouse seeking maintenance; and
(f) The ability of the spouse from whom maintenance is sought to meet his/her needs and financial obligations while meeting those of the spouse seeking maintenance. The court will also take into consideration the economic circumstances of each spouse at the time the division of the property is to be coming effective.
Can maintenance be modified?
In most cases, yes, upon a showing of substantial change in circumstances. Each case is unique but possible changes in circumstances could include severe illness of one of the parties, a substantial loss of income not anticipated at the time of divorce, or disability of one of the parties resulting in substantially increased expenses or decreased income.
Can the modification of maintenance be prevented or limited?
Yes, if agreed to by the parties in a Separation Contract. A trial court or judge cannot order non-modifiable maintenance in a decree of dissolution.
How long do I have to pay maintenance?
It is within the court’s discretion to award spousal maintenance. All of the factors listed above are considered in determining the length and amount of maintenance. The length of maintenance is very much impacted by the duration of the marriage, the standard of living enjoyed during the marriage, the economic condition of both parties at the time of divorce, and the future earning ability of each party.
Since these factors vary so widely from marriage to marriage, an experienced attorney would best be able to provide you with guidelines.
When does maintenance terminate?
Absent language in the Decree to the contrary or a written agreement of the parties specifying otherwise, maintenance terminates automatically on the:
A. The remarriage of the recipient; or B. The death of either party.
What is a meretricious relationship?
In essence, a meretricious relationship is a living together relationship where the parties are not married. Washington state courts have defined a meretricious relationship as, “a stable, marital-like relationship where both parties cohabit with knowledge that a lawful marriage between them does not exist.” Connell v. Francisco, 127 Wn.2d 339, 898 P.2d 831, (1995).How do you distinguish between a “roommate” relationship and a “meretricious” relationship?
The court has set out several factors to be considered in determining whether a meretricious relationship exists:
1. Continuous cohabitation; 2. Duration of the relationship; 3. Purpose of the relationship; 4. The pooling of resources and services for joint projects; and 5. Intent of the parties.
Lindsey v. Lindsey, 101 Wn.2d 299 (1984) and In re Marriage of Pennington, 142 Wn.2d 592 (2000). However, the Lindsey court emphasized that the issue of meretricious relationship should be determined by the court based on the facts of each case, and that these criteria were not a rigid set of requirements to be strictly followed.
What are some examples of meretricious relationships?
The factors for determining meretricious relationships have been applied in several cases which illustrate what type of relationship rises to the level of a meretricious relationship. In In re Sutton and Widner, 85 Wn.App. 487, 933 P.2d 1069 (1997), the court found a meretricious relationship to exist where the parties cohabited for five years, socialized as a couple, and worked together, but maintained separate property and banking accounts. During their relationship, they built a house together on property previously purchased by Mr. Widner. The court held that there was a meretricious relationship based on these facts, even though the couple maintained their separate identities and accounts. Id. at 90.
Additionally, in In re Hilt, 41 Wn.App. 434, 704 P.2d 672 (1985), a meretricious relationship was also found. The parties cohabited for 4 years, during which time they purchased a home, shared in the management of household affairs, and contributed to each other’s separate checking accounts. The court specifically noted that the parties, made little effort to keep their income separate and apart, and held that these facts substantiated the existence of a meretricious relationship.
A meretricious relationship can exist between two parties when one of the parties was legally married to another during the relationship. In Foster v. Thilges, 61 Wn.App. 880, 812 P.2d 523, (Wn.App. 1991), the couple lived together approximately 10 years. They bought their first property together on Camano Island while Thilges was still married to another woman. They evidenced their mutual trust by putting the property in Foster’s name because of Thilges’ marital status. Foster later formally conveyed half interest in the property to Thilges. In addition, they built a home together, jointly obtained a construction loan, and both contributed considerable physical labor to the project. They also had joint bank accounts and combined theirearnings. Although it is not necessary for a couple to represent themselves as husband and wife to establish a pseudomarital relationship, in at least some of their social activities, Foster and Thilges were known as husband and wife.
Once it’s been determined there is a meretricious relationship, how does this affect property division?
In Lindsey, the court states that upon dissolution of a meretricious relationship, a court must, “examine the [meretricious] relationship and the property accumulations and make a just and equitable disposition of the property.” Lindsey, 101 Wn.2d at 304. The Lindsey court cited RCW 26.09.0802 as supporting this rule by analogy. This was later interpreted in Connell v. Francisco, 127 Wn.2d 339, 898 P.2d 831 (1995), to mean that while it is appropriate to look to RCW 26.09.080 for guidance in the division of property upon dissolution of a meretricious relationship, it does not directly apply. The court in Connell stated that, [t]he critical focus is on property that would have been characterized as community property had the parties been married. Id. at 352.
Additionally, Connell sets out a presumption that all property acquired during a meretricious relationship is subject to a rebuttable presumption of community ownership.
Can the court award maintenance (alimony) or attorney’s fees in a meretricious relationship lawsuit in the same manner as they can in divorce proceedings?
No. Parties to a meretricious relationship are not entitled to an award of maintenance or attorney’s fees.
Does the meretricious relationship doctrine apply to same-sex couples?
Yes and no. It depends where you live. Division II (Tacoma) and Division III (Spokane) of the Washington State Court of Appeals disagree on this issue. Division I (Seattle) has yet to decide the issue. The Washington State Supreme Court also has yet to rule.
Prenuptial & Property Agreements
What is a prenuptial/premarital agreement?
A prenuptial agreement is a contract between two parties made prior to marriage but in contemplation and consideration thereof providing for the disposition of the parties’ assets and debts at the end of their marriage, whether it be by death or divorce.
Why do people enter into prenuptial agreements?
Prenuptial agreements are generally entered into when at least one of the parties has a substantial estate that he/she wishes to keep separate from the marital community. This estate could be a long time family business, an inheritance, or anticipated substantial future earnings.
I thought Washington was a community property state. How can you have separate property when you are married?
Separate property is generally that property you bring to the marriage. In addition, gifts and inheritances are considered separate property. Finally, parties are free to enter into agreements determining the character of property as separate or community.
If separate property stays separate property, why do I need a prenuptial agreement?
Separate property does not always stay separate. There are numerous factors that can change the character of property. An example of the character of property being changed by the actions of the parties is an inheritance being placed in a joint account where community funds are also deposited and withdrawn, and it becomes impossible to determine community funds versus separate funds. In that event all funds may be deemed to be community funds. Another example is the marital community investing substantial funds remodeling a home that was owned by one of the parties prior to the marriage. In that instance the community may have a lien against that property. There are numerous circumstances where separate funds may be partially or completely characterized as community property as a result of the actions of the parties. A prenuptial agreement will explicitly set forth those items that will retain their separate character.
I have heard stories of prenuptial agreements being determined invalid. How do I make sure an agreement I enter into is valid?
The preeminent case on validity of prenuptial agreements is In re the Marriage of Foran, 67 Wn.App. 242, 834 P.2d 1081, (Wash.App. Div. 1 1992). In Foran, supra, the court found:
“The validity of a prenuptial agreement is evaluated by means of a 2-prong analysis: First, the court must decide whether the agreement provides a fair and reasonable provision for the party not seeking enforcement of the agreement. If the court makes this finding, then the analysis ends and the agreement may be validated…. The second prong of this analysis involves two tests … (1) whether full disclosure has been made by [the parties] of the amount, character and value of the property involved, and (2) whether the agreement was entered into fully and voluntarily on independent advice and with full knowledge by [both spouses of their] rights. In re Marriage of Matson, 107 Wash.2d 479, 482-83, 730 P.2d 668 (1986).
What this means is that the court must first determine if the contract is fair and reasonable. It does this by deciding if each party is fairly compensated for the resources brought to the marriage and the time and resources contributed to the marriage. If so, the court will determine the contract valid and there will be no further review.
However, if the court feels the contract is not fair, then it must determine two additional matters set forth above.
Determining if both parties disclosed assets and debts is a fairly simple process as a list of debts and assets is usually included in each agreement. However, determining if both parties entered into the agreement with full knowledge of their rights is a more difficult finding. Usually the courts will look to make sure both parties were represented by independent counsel. After all, how can a person have full knowledge of his/her rights unless they know what their rights are. Additionally, the courts will make sure that both parties were given sufficient time to review the contract. The infamous stories of being handed a prenuptial agreement to sign in the limousine on the way to the wedding with the threat of “sign it, or no marriage” will almost always result in an invalid contract.
What happens if a prenuptial agreement is declared invalid?
If the parties are going through a dissolution proceeding, the courts are free to award property in a fair and equitable manner without regard to terms of the contract.
Is Washington a community property state?
Washington is a community property state. Generally, anything acquired during the marriage is considered community property. This includes the earning of income from employment, the accumulation of retirement benefits during the marriage, and the purchase of assets with community income. However, not all property is community property. Some examples of separate property are gifts, inheritances, and accumulated interest or equity in property acquired prior to the marriage.
Is it important whether I keep my property separate from, not commingled with, our community property?
Yes, if you keep that separate property segregated from your earnings and other assets you acquire after marriage, that asset is likely to remain your separate property. The income earned off a separate property investment is also separate property. Determining whether an asset is separate property or community property or a combination of separate and community property can be complex and is best discussed with an attorney.
Can separate property be converted to community property?
Yes, there are numerous ways to convert separate property to community property. One of the most frequent methods is by the co-mingling of funds. This means that a separate asset such as a gift or inheritance is placed in a joint account from which both parties withdraw funds and into which both parties deposit community funds. Once the parties are unable to clearly establish which funds are community and which are separate, all funds may be considered community.
Another method to convert the nature of property is the execution of a deed transferring real property from one spouse’s separate estate to the community’s estate.
One last example is the execution of a Community Property Agreement. Although generally executed for estate planning purposes, some Community Property Agreements can be effective immediately. Before executing a Community Property Agreement, it is wise to speak with an attorney to determine what effect such an agreement would have.
What if I cannot recall when I bought an asset?
A party claiming an asset to be separate property has the duty to provide documentation or testimony to establish the asset as separate property. If the party cannot do so adequately, the court will presume the asset is community property.
Can the court award my separate property to my spouse?
Yes, all property (both separate and community) is before the court for division. However, the courts generally only award separate property of one spouse to another in limited circumstances. These circumstances may include a long marriage where the community assets are very limited but one party’s separate assets are substantial. In this instance, the court will look at the overall economic circumstances of each spouse at the time the division of property is to become effective and may award one spouse’s separate property to the other to achieve a more equitable division of assets.
Division of Assets
What factors are considered by the judge in dividing property?
A fair and equitable division of property of divorcing spouses requires the court to consider the spouses’ relative health, age, education, length of marriage, and employability. The ultimate concern is the economic condition of the parties upon dissolution of the marriage. The division must be fair, considering all of the circumstances of the marriage, both past and present, and an evaluation of the future needs of the spouses and their respective earning potential. It is not a matter of mathematical precision. Factors for division of property are found at RCW 26.09.080 Disposition of property and liabilities–Factors, which states as follows:
“In a proceeding for dissolution of the marriage, legal separation, declaration of invalidity, or in a proceeding for disposition of property following dissolution of the marriage by a court which lacked personal jurisdiction over the absent spouse or lacked jurisdiction to dispose of the property, the court shall, without regard to marital misconduct, make such disposition of the property and the liabilities of the parties, either community or separate, as shall appear just and equitable after considering all relevant factors including, but not limited to: (1) The nature and extent of the community property; (2) The nature and extent of the separate property; (3) The duration of the marriage; and (4) The economic circumstances of each spouse at the time the division of property is to become effective, including the desirability of awarding the family home or the right to live therein for reasonable periods to a spouse with whom the children reside the majority of the time.”
How does the length of the marriage make a difference
Judge Robert W. Winsor, while on the bench of the King County Superior Court, suggested that cases be divided into one of three categories when analyzing the length of the marriage factor:
1. Short Marriage: Those lasting approximately 5 years or less.
2. Long Marriage: Those lasting approximately 25 years or more.
3. Midrange: All the others.
In a short marriage, Judge Winsor suggested that the parties be returned to the same economic condition they enjoyed at the inception of the marriage, after accounting for interest and inflation. Judge Winsor’s rule can be modified in extraordinary circumstances, e.g., if one of the parties gives up a job to accommodate the marriage.
In a long marriage, Judge Winsor suggested that both spouses be placed in roughly equal financial position for the rest of their lives.
In the midrange marriage, Judge Winsor suggested that the extent to which a court looks at the considerations underlying the analyses of both long and short term marriages depends upon the length of the marriage and the necessities of the parties.
Judge Winsor’s suggestions are guidelines, not mandatory rules, and courts have discretion to fashion fair and equitable division that may not mimic Judge Winsor’s suggestions.
Can maintenance be used in a property division?
Yes. The court may utilize maintenance to equalize property division in certain circumstances where their is a lack of marital assets to make an equitable division.
My husband/wife was abusive during our marriage and had numerous affairs, how does this affect property division?
Washington is a “no-fault” state. As such, property division is made without regard for marital misconduct, except for a few exceptions including the depletion of substantial marital assets by one spouse without the consent of the other.
How is custody/visitation determined?
Not so long ago “custody” was usually awarded to the mother with “reasonable” visitation rights granted to the father. This, of course, lead to numerous disputes over what constituted “reasonable” rights of visitation.
In an attempt to significantly reduce conflict between parents, Washington courts no longer award “custody” of the children to one parent with visitation rights granted to the other parent, nor do they award “joint custody.” Instead, all parties seeking a dissolution of marriage where children are involved (or establishment of paternity) must agree to a Parenting Plan or have one imposed by the court.
Parenting Plans and Support
What issues are addressed in a Parenting Plan?
A Parenting Plan is an extensive document that includes a residential schedule for the school year, summer vacation, school breaks, holidays, and special occasions. In addition, it addresses decision making issues such as educational choices, religious upbringing, and medical care. It will also set forth any restrictions as to residential care. Although the document may at first seem overwhelming, its purpose is to eliminate disputes by setting forth specifically each parent’s rights and responsibilities.
How does the court determine the residential schedule?
The Washington State Legislature has set forth specific factors to be taken into consideration when establishing a Parenting Plan. These factors include, but are not limited to, the following:
(a) The court shall make residential provisions for each child which encourage each parent to maintain a loving, stable, and nurturing relationship with the child, consistent with the child’s developmental level and the family’s social and economic circumstances. The court shall consider the following factors:
- The relative strength, nature, and stability of the child’s relationship with each parent, including whether a parent has taken greater responsibility for performing parenting functions relating to the daily needs of the child;
- The agreements of the parties, provided they were entered into knowingly and voluntarily;
- Each parent’s past and potential for future performance of parenting functions;
- The emotional needs and developmental level of the child;
- The child’s relationship with siblings and with other significant adults, as well as the child’s involvement with his or her physical surroundings, school, or other significant activities;
- The wishes of the parents and the wishes of a child who is sufficiently mature to express reasoned and independent preferences as to his or her residential schedule; and
- Each parent’s employment schedule, and shall make accommodations consistent with those schedules.
Factor (i) shall be given the greatest weight.
What are “Parenting Functions”?
“Parenting functions” means a parent making decisions and performing acts necessary for the care and growth of the child. Parenting functions are defined by six (6) non-exclusive factors:
Maintaining a loving, stable, consistent, and nurturing relationship with the child;
Seeing to the child’s daily needs, such as physical care ( feeding, clothing) and engaging in age-appropriate activities with the child that are within the social and economic circumstances of the particular family;
Providing adequate education for the child;
Helping the child develop and maintain appropriate interpersonal relationships;
Exercising appropriate judgment regarding the child’s welfare; and
Providing for the financial support of the child.
At what age can a child determine where he or she wishes to live?
Children do not have the final say as to where they wish to live. The court may take into consideration the child’s desires by interviewing the child in chambers pursuant to RCW 26.09.210. However, the court will take into consideration all of the factors set forth above when determining an appropriate parenting plan along with child’s desire.
How are disputes over the establishment of a parenting plan resolved?
When the parents are unable to reach an amicable agreement in the best interests of the children, the courts will often times appoint a guardian ad litem to look after the child’s bests interests. A guardian ad litem will conduct an “investigation” by interviewing the parents, the children, and others who have knowledge regarding the children. The guardian ad litem will then make a written recommendation to the court.
How does someone get to be a guardian ad litem?
A guardian ad litem is someone who has special training in parenting matters. Often times he or she will be an attorney or a counselor or psychologist. Guardian ad litems must be approved by the court.
What are the factors to have restrictions placed on my spouse’s residential time with our children?
RCW 26.09.191 provides, in part, as follows:
(2)(a) The parent’s residential time with the child shall be limited if it is found that the parent has engaged in any of the following conduct:
(i) Willful abandonment that continues for an extended period of time or substantial refusal to perform parenting functions;
(ii) physical, sexual, or a pattern of emotional abuse of a child;
(iii) a history of acts of domestic violence as defined in RCW 26.50.010(1) or an assault or sexual assault which causes grievous bodily harm or the fear of such harm; or
(iv) the parent has been convicted as an adult of a sex offense.
When is a child emancipated for purposes of a parenting plan?
At age eighteen (18) or graduation from high school, whichever comes later, except in unusual circumstances.
What authority allows courts to order the payment of post secondary educational support?
In general, RCW 26.09 gives trial courts discretion to award post secondary education support for adult children who are dependent. A court can either recognize a contractual agreement between the parties to pay post secondary education expenses or canorder these expenses to be paid upon a showing of certain standards.
What are the standards for payment of post-secondary educational support?
The standards are found at RCW 26.19.090. Standards for postsecondary educational support awards, which states as follows: “(1) The child support schedule shall be advisory and not mandatory for postsecondary educational support. (2) When considering whether to order support for postsecondary educational expenses, the court shall determine whether the child is in fact dependent and is relying upon the parents for the reasonable necessities of life. The court shall exercise its discretion when determining whether and for how long to award postsecondary educational support based upon consideration of factors that include but are not limited to the following: Age of the child; the child’s needs; the expectations of the parties for their children when the parents were together; the child’s prospects, desires, aptitudes, abilities or disabilities; the nature of the postsecondary education sought; and the parents’ level of education, standard of living, and current and future resources. Also to be considered are the amount and type of support that the child would have been afforded if the parents had stayed together. (3) The child must enroll in an accredited academic or vocational school, must be actively pursuing a course of study commensurate with the child’s vocational goals, and must be in good academic standing as defined by the institution. The court-ordered postsecondary educational support shall be automatically suspended during the period or periods the child fails to comply with these conditions. (4) The child shall also make available all academic records and grades to both parents as a condition of receiving postsecondary educational support. Each parent shall have full and equal access to the postsecondary education records as provided in RCW 26.09.225. (5) The court shall not order the payment of postsecondary educational expenses beyond the child’s twenty-third birthday, except for exceptional circumstances, such as mental, physical, or emotional disabilities. (6) The court shall direct that either or both parents’ payments for postsecondary educational expenses be made directly to the educational institution if feasible. If direct payments are not feasible, then the court in its discretion may order that either or both parents’ payments be made directly to the child if the child does not reside with either parent. If the child resides with one of the parents the court may direct that the parent making the support transfer payments make the payments to the child or to the parent who has been receiving the support transfer payments.”
My child is 18 years old, lives with his mother, and has a job. At one point does he stop being dependent?
The determination of dependency is the most important factor contained within these standards. Guidelines for determining dependency were established in Childers v. Childers, 89 Wn.2d 592, 575 P.2d 201 (1978). A dependent is “one who looks to another for support and maintenance, one who relies on another for the reasonable necessities of life.” Id. at 598.
When dependency ends is a factual determination to be made from surrounding circumstances, such as child’s needs, prospects, desires, aptitudes, abilities and disabilities, parents’ level of education, standard of living and current and future resources, and amount and type of support child would have been afforded if parents had not divorced. Oblizalo v. Oblizalo, 776 P.2d 166, 54 Wash. App. 800 (1989). In Oblizalo, the court found that the child had a debilitating arthritic condition which had and would continue to require surgery and therapy. The child had also developed Reiter’s Syndrome, for which he required additional therapy six times per week.
If my former husband and I agree to pay post-secondary educational support, what should be included in the agreement?
An agreement which includes a requirement to pay college expenses must clearly express the length and type of support. The Washington Family Law Deskbook suggests four general areas of clarification.
1. Defined time limit of support.
2. Maximum level of cost.
3. How parents will share expenses.
4. What the child is required to do.
Am I still required to pay post-secondary educational support if a trust fund has been established for my child?
An educational trust fund established by either the parents or a third party does not obviate the parents’ obligation to pay for college expenses if, by agreement or court order, the parents are responsible of the expenses. See, Huff v. Huff, 68 Wn.2d 501, 413 P.2d 818 (1966). However, the existence of the trust fund may reduce the extent of each parent’s obligation.”My children are very young. How can post-secondary educational support be determined for them now?” :
The issue of support for post secondary education can be reserved for later determination by entering a finding that the child’s needs for post-majority educational expenses cannot be determined at time decree is entered and that the matter may be heard de novo if the future. Failure to preserve the issue may bar subsequent modification if the need for support is known to the parents at the time of decree. See, In re Marriage of Zander, 39 Wn. App. 787, 275 P.2d 976 (1989).
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