WHAT YOU SHOULD KNOW ABOUT DISSOLUTION
(Some of the following information was provided courtesy of the Washington State Bar Association)
Dissolution in Washington State
Family law has many dimensions and is influenced by legal as well as social and economic factors. Laws affecting relationships may change as traditions and attitudes evolve. Because these laws are complex and subject to change, this information is only intended to provide general information; it is not give, nor is it a substitute for, legal advice.
(Some of the following applies to non-married couples and domestic partnerships. However, the law is still evolving in these areas creating uncertainty.)
Ending a marriage may be a particularly upsetting event, involving many uncertainties and emotions. If separation or dissolution is unavoidable or in your best interest, a lawyer can guide you in protecting your rights. Below discusses areas of concern and attempts to answer frequently asked questions.
How can a marriage be ended?
Various procedures may be used to end a marriage that breaks down, including annulment, separation and dissolution.
Annulment is a court-ordered dissolution of an invalid marriage. Technically called a "Decree of Invalidity," it nullifies a marriage from its inception and is granted in situations where no valid marriage exists because of some legal defect.
A separation may be formalized with a legal contract, or a "Decree of Legal Separation," or both. A legal separation may be preferred to dissolution for religious, economic or other reasons. A couple may decide to live apart while attempting to save a faltering relationship or the separation may be an interim step toward termination of the marriage. (There is no legal requirement for actual separation before dissolving a marriage.) After six months, a Decree of Legal Separation may be converted to a Decree of Dissolution by either party.
Oral or written understandings between spouses concerning property disposition, arrangements for children, maintenance or other agreements made while separated may become part of a dissolution proceeding.
If a marriage falls apart and is considered "irretrievably broken," one or both partners may seek a Court dissolution of the relationship. The terns "dissolution" and "divorce" are often used interchangeably. This Court proceeding legally terminates a marriage, and makes provisions for the parenting of minor children, family support and division of property and liabilities.
In Washington, a spouse does not have to prove wrongdoing to obtain a divorce (now legally called "dissolution of marriage"). This no-fault system is intended to help spouses settle matters without unnecessary bitterness or resentment.
What are the residency requirements?
You need only to reside in Washington on the date that your Petition for dissolution of marriage is filed.
What are the legal procedures?
Ending a marriage involves many legal considerations. Technically, an attorney is not required for the process, but a lawyer's skill and experience can be helpful to a person contemplating separation or divorce. A lawyer's advice may be especially beneficial in cases that are contested or that involve children and property settlements.
To start a dissolution proceeding, one spouse (called the petitioner") must file with the court a Summons and "Petition" for dissolution of marriage.
Once known as the "Complaint," the Petition is then served on the other spouse (known as the "respondent"), usually by having copies delivered to him or her. Although there is no major legal significance as to whether the husband or wife files the Petition, there may be emotional or procedural advantages.
The purpose of the Summons is to command the responding spouse to reply to the Petition. Basic facts about the marriage are contained in the Petition, which also generally provides specifies about what the petitioning spouse wants in the way of a parenting plan, child support, property division and maintenance. The term "maintenance" is generally the preferred term for "alimony."
Once served, and depending on the recipient's location (whether in-state or elsewhere), the responding spouse has from 20 to 60 days to reply in writing to the Petition. This reply, called a "Response," may include a "Counter-petition," and states the respondent's position on issues such as the children, child support, property and maintenance.
In many situations, the next step is to establish temporary orders to guide the conduct of the parties. Either spouse may obtain temporary orders. Typically, the requests cover such subjects as residential arrangements for the parties' children, child support, spousal maintenance, occupancy of the family home, payment of bills and other practical concerns for protecting the parties, their children and preserving property. If the parties cannot agree on the temporary orders, a Court hearing with a Judge or Court Commissioner will be held to establish necessary temporary requirements.
To settle any immediate problems in a dissolution action, a "Show Cause" proceeding may be requested by either spouse. This proceeding is initiated by obtaining a Court order that requires the non-moving spouse to show cause why the moving spouse should not be granted the requested relief. At the same time, the Court can also immediately restrain a spouse from harassing the other spouse, entering the family home, and taking children out of the state, changing insurance rights, disposing of property, or incurring any unusual debts.
Other restraints may also be imposed in exceptional circumstances. A hearing is held (usually about two weeks after the Show Cause Order is issued) to decide most requests for temporary relief. Attendance by spouses is recommended, but not usually required if both parties are represented by attorneys.
All issues must be settled in order to finish a case. If terms cannot be settled between spouses, a trial will be held to decide any unsettled disputes. If spouses agree on a settlement and no aspect of the dissolution is contested, the case does not have to go to trial.
The final stage of dissolution occurs when the Court signs a "Decree of Dissolution of Marriage." Any settlements negotiated between spouses may be presented in writing for approval by the Court and incorporation into the Decree and the Court's related Findings of Fact and Conclusions of Law. If the case requires a trial, the Judge's decision will be recorded in writing and signed by the Judge who conducts the trial. A marriage is not dissolved until the Judge signs the Decree.
How long does it take?
The waiting period for dissolution of marriage in Washington State is three months. This means the Summons and Petition must be filed with the Court and "served" upon the other spouse for more than 90 days before the judge may sign the Decree. This is a minimum period. It is intended to allow time for reconciliation between parties. The process can take much longer if any aspect of dissolution is contested and the parties have difficulty reaching an agreement.
As noted above, during the waiting period, temporary orders may be issued that provide a temporary parenting plan for minor children, provide protection or support money, or otherwise control the conduct of the parties. A property settlement and a resolution of parenting issues may be negotiated during this period or may, in fact, be arranged before filing the Petition for Dissolution.
The Courts in many Washington State counties require the parties to engage in some form of settlement conference before their case can go to trial.
Can a wife change her name?
At the wife's request, her maiden name or a former name can be restored as part of the dissolution Decree. The request should be included in the Petition.
What about the children?
Washington law requires a Parenting Plan in any proceeding for annulment, legal separation or marital dissolution where minor children are involved. The terms "child custody" and "visitation" are no longer commonly used in Washington dissolution law. Instead, the parents by agreement (or the Court in the event of a dispute) must develop a Parenting Plan that, among other things, will determine a residential schedule for the children.
The parents may make an agreed Parenting Plan, or each parent may propose opposing plans. Ultimately, the Court must consider the best interests of the children in determining how to provide for the children in a Parenting Plan. Every Parenting Plan must contain at least the following elements:
Both parents have a duty to support their children. Child support is based on the Washington Child Support Schedule which takes into consideration the total cost of providing a home for the children and of taking care of them in all ways, and for each parent's respective share of that cost, in accord with their incomes.
Child support is subject to periodic adjustment to meet changes in the needs of the children, as well as changes in each parent's ability to pay child support. Child support payments are usually required until a child is 18 years old, or graduates from high school, whichever occurs last, although circumstances may affect the duration of the support obligation for a different period of time. For example, if a child under the age of 18 gets married or otherwise becomes emancipated or self-supporting, the court may terminate the parental obligation for the support.
Post-secondary support may also be required for a dependent child's college or vocational education expenses, or for a handicapped child. Support may be required so long as the child remains dependent.
What about spousal support?
Spousal maintenance may be awarded where there is need on the part of one spouse and ability to pay by the other.
Once called "alimony," spousal support is now referred to as "maintenance." It will not be awarded or withheld as punishment for marital misconduct. The duration and amount depend upon the facts and circumstances of each case.
In determining the need for maintenance, and the appropriate duration and amount, the Court will consider:
There is no fixed method for determining how property should be divided. In Washington, all assets - real and personal, tangible and intangible - are available and before the Court for distribution between the spouses. As a community property state, Washington law provide for "just and equitable" division of property acquired during a marriage. This does not necessarily require an equal division. Under some circumstances, the court may also apportion separate (or individual) property.
If the husband and wife negotiate a settlement agreement, the Court will probably approve it, if no settlement is reached, the Court will decide how to divide the property in a trial. Property settlement agreements are binding and generally cannot be modified. (On the other hand, parenting agreements are subject to Court review before they can become finalized.)
Property division is generally made without regard to marital misconduct; instead, a court considers:
How are bills or debts divided?
All liabilities, or debt, must also be divided when dissolving a marriage. In this process, consideration is given to the type of debt and the circumstances under which it arose. Factors influencing the property division are also applied when dividing liabilities.
Many credit and charge account agreements provide for joint liability for any charges added to joint accounts. Therefore, creditors should be instructed (in writing) to remove inappropriate names from or, alternatively, close all joint accounts. If a spouse desires to maintain credit with certain creditors, separate accounts should be opened in that spouse's name alone.
What if one spouse fails to obey Court orders?
Like any judicial order and judgment, a Decree of dissolution will be enforced by the Court. Various legal remedies are available for such enforcement. Persons who willfully refuse to comply with Court orders may be held in contempt and jailed or fined.
Child support orders may be enforced by way of a mandatory payroll deduction paid to the Washington State Child Support Registry. Generally, however, the Court will find there is good cause to believe that the support will be voluntarily paid directly to the other parent on a timely basis. Mandatory payroll deduction also is available as a means of collecting support in cases where the original order did not provide for that method of collection and the paying parent has fallen behind in support payments.
Parents who are not receiving court-ordered support should contact their local Division of Child Support or a private attorney to determine their related rights.
What are the tax consequences of dissolution?
Property settlements and family support arrangements can have serious tax consequences to one or both spouses. Tax filing status will be affected by a Decree of Dissolution, Annulment or Legal Separation. Legal or accounting fees incurred for tax planning and advice in connection with a marital proceeding may be partially deductible.
Must I use a lawyer?
Washington law does not require that the services of an attorney be used in dissolution proceedings. However, ending a marriage involves serious and complex legal and financial considerations. Along with serving as your advocate and negotiator, a lawyer knows the process to follow and which papers to file. Your attorney can advise you of your legal rights and obligations, can help reach settlement of disputes, and can represent you in enforcing your rights.
Among alternatives to having a lawyer represent each spouse are self-help guidebooks and mediation with the help of a trained professional. The costs - and consequences - of each option can vary significantly, so spouses should carefully consider the possibilities before proceeding.
Deciding which approach to follow and selecting a lawyer are personal matters. Each party has the right to use an attorney, so if one person elects not to, the other still can.
How much does it cost to dissolve my marriage?
Lawyers set their own fees, so costs and payment arrangements may vary. An important factor in controlling costs is whether the parties can agree to a settlement. If matters are contested, the process is likely to be more expensive, since many attorneys base their fees on an hourly rate. The amount of time a lawyer must spend on a case will increase with the number of disputed issues, and with the complexity of the issues.
It is appropriate to discuss fees with a lawyer at the outset of a case. Your lawyer will be willing to explain the charges involved, including retainers and hourly rates, court costs and payment or credit arrangements.
It may be possible to require the other side to pay a party's attorney fees where there is a need for such payment and the other side has the ability to pay them. In addition, attorney fees may be awarded to a party when, for example, the other side has made the legal process unreasonably contentious.
(See State Bar pamphlets on "Lawyers" and "Legal Fees.")
Dissolution in Washington State
Family law has many dimensions and is influenced by legal as well as social and economic factors. Laws affecting relationships may change as traditions and attitudes evolve. Because these laws are complex and subject to change, this information is only intended to provide general information; it is not give, nor is it a substitute for, legal advice.
(Some of the following applies to non-married couples and domestic partnerships. However, the law is still evolving in these areas creating uncertainty.)
Ending a marriage may be a particularly upsetting event, involving many uncertainties and emotions. If separation or dissolution is unavoidable or in your best interest, a lawyer can guide you in protecting your rights. Below discusses areas of concern and attempts to answer frequently asked questions.
How can a marriage be ended?
Various procedures may be used to end a marriage that breaks down, including annulment, separation and dissolution.
Annulment is a court-ordered dissolution of an invalid marriage. Technically called a "Decree of Invalidity," it nullifies a marriage from its inception and is granted in situations where no valid marriage exists because of some legal defect.
A separation may be formalized with a legal contract, or a "Decree of Legal Separation," or both. A legal separation may be preferred to dissolution for religious, economic or other reasons. A couple may decide to live apart while attempting to save a faltering relationship or the separation may be an interim step toward termination of the marriage. (There is no legal requirement for actual separation before dissolving a marriage.) After six months, a Decree of Legal Separation may be converted to a Decree of Dissolution by either party.
Oral or written understandings between spouses concerning property disposition, arrangements for children, maintenance or other agreements made while separated may become part of a dissolution proceeding.
If a marriage falls apart and is considered "irretrievably broken," one or both partners may seek a Court dissolution of the relationship. The terns "dissolution" and "divorce" are often used interchangeably. This Court proceeding legally terminates a marriage, and makes provisions for the parenting of minor children, family support and division of property and liabilities.
In Washington, a spouse does not have to prove wrongdoing to obtain a divorce (now legally called "dissolution of marriage"). This no-fault system is intended to help spouses settle matters without unnecessary bitterness or resentment.
What are the residency requirements?
You need only to reside in Washington on the date that your Petition for dissolution of marriage is filed.
What are the legal procedures?
Ending a marriage involves many legal considerations. Technically, an attorney is not required for the process, but a lawyer's skill and experience can be helpful to a person contemplating separation or divorce. A lawyer's advice may be especially beneficial in cases that are contested or that involve children and property settlements.
To start a dissolution proceeding, one spouse (called the petitioner") must file with the court a Summons and "Petition" for dissolution of marriage.
Once known as the "Complaint," the Petition is then served on the other spouse (known as the "respondent"), usually by having copies delivered to him or her. Although there is no major legal significance as to whether the husband or wife files the Petition, there may be emotional or procedural advantages.
The purpose of the Summons is to command the responding spouse to reply to the Petition. Basic facts about the marriage are contained in the Petition, which also generally provides specifies about what the petitioning spouse wants in the way of a parenting plan, child support, property division and maintenance. The term "maintenance" is generally the preferred term for "alimony."
Once served, and depending on the recipient's location (whether in-state or elsewhere), the responding spouse has from 20 to 60 days to reply in writing to the Petition. This reply, called a "Response," may include a "Counter-petition," and states the respondent's position on issues such as the children, child support, property and maintenance.
In many situations, the next step is to establish temporary orders to guide the conduct of the parties. Either spouse may obtain temporary orders. Typically, the requests cover such subjects as residential arrangements for the parties' children, child support, spousal maintenance, occupancy of the family home, payment of bills and other practical concerns for protecting the parties, their children and preserving property. If the parties cannot agree on the temporary orders, a Court hearing with a Judge or Court Commissioner will be held to establish necessary temporary requirements.
To settle any immediate problems in a dissolution action, a "Show Cause" proceeding may be requested by either spouse. This proceeding is initiated by obtaining a Court order that requires the non-moving spouse to show cause why the moving spouse should not be granted the requested relief. At the same time, the Court can also immediately restrain a spouse from harassing the other spouse, entering the family home, and taking children out of the state, changing insurance rights, disposing of property, or incurring any unusual debts.
Other restraints may also be imposed in exceptional circumstances. A hearing is held (usually about two weeks after the Show Cause Order is issued) to decide most requests for temporary relief. Attendance by spouses is recommended, but not usually required if both parties are represented by attorneys.
All issues must be settled in order to finish a case. If terms cannot be settled between spouses, a trial will be held to decide any unsettled disputes. If spouses agree on a settlement and no aspect of the dissolution is contested, the case does not have to go to trial.
The final stage of dissolution occurs when the Court signs a "Decree of Dissolution of Marriage." Any settlements negotiated between spouses may be presented in writing for approval by the Court and incorporation into the Decree and the Court's related Findings of Fact and Conclusions of Law. If the case requires a trial, the Judge's decision will be recorded in writing and signed by the Judge who conducts the trial. A marriage is not dissolved until the Judge signs the Decree.
How long does it take?
The waiting period for dissolution of marriage in Washington State is three months. This means the Summons and Petition must be filed with the Court and "served" upon the other spouse for more than 90 days before the judge may sign the Decree. This is a minimum period. It is intended to allow time for reconciliation between parties. The process can take much longer if any aspect of dissolution is contested and the parties have difficulty reaching an agreement.
As noted above, during the waiting period, temporary orders may be issued that provide a temporary parenting plan for minor children, provide protection or support money, or otherwise control the conduct of the parties. A property settlement and a resolution of parenting issues may be negotiated during this period or may, in fact, be arranged before filing the Petition for Dissolution.
The Courts in many Washington State counties require the parties to engage in some form of settlement conference before their case can go to trial.
Can a wife change her name?
At the wife's request, her maiden name or a former name can be restored as part of the dissolution Decree. The request should be included in the Petition.
What about the children?
Washington law requires a Parenting Plan in any proceeding for annulment, legal separation or marital dissolution where minor children are involved. The terms "child custody" and "visitation" are no longer commonly used in Washington dissolution law. Instead, the parents by agreement (or the Court in the event of a dispute) must develop a Parenting Plan that, among other things, will determine a residential schedule for the children.
The parents may make an agreed Parenting Plan, or each parent may propose opposing plans. Ultimately, the Court must consider the best interests of the children in determining how to provide for the children in a Parenting Plan. Every Parenting Plan must contain at least the following elements:
- A schedule for residential care;
- Provisions for the resolution of future disputes between the parents with respect to parenting decisions; and
- Appropriate provisions for the protection of children from parental abuse or neglect, from continued exposure to domestic violence, from the abusive use of parental conflict, and from other types of conduct which the Court finds to be adverse to the child's best interests.
Both parents have a duty to support their children. Child support is based on the Washington Child Support Schedule which takes into consideration the total cost of providing a home for the children and of taking care of them in all ways, and for each parent's respective share of that cost, in accord with their incomes.
Child support is subject to periodic adjustment to meet changes in the needs of the children, as well as changes in each parent's ability to pay child support. Child support payments are usually required until a child is 18 years old, or graduates from high school, whichever occurs last, although circumstances may affect the duration of the support obligation for a different period of time. For example, if a child under the age of 18 gets married or otherwise becomes emancipated or self-supporting, the court may terminate the parental obligation for the support.
Post-secondary support may also be required for a dependent child's college or vocational education expenses, or for a handicapped child. Support may be required so long as the child remains dependent.
What about spousal support?
Spousal maintenance may be awarded where there is need on the part of one spouse and ability to pay by the other.
Once called "alimony," spousal support is now referred to as "maintenance." It will not be awarded or withheld as punishment for marital misconduct. The duration and amount depend upon the facts and circumstances of each case.
In determining the need for maintenance, and the appropriate duration and amount, the Court will consider:
- financial resources of each party;
- work experience and earning prospects of each spouse, including consideration for the time required for one spouse to obtain training for becoming employed or self-supporting;
- age and physical and emotional conditions of each party;
- the duration of the marriage; and
- the standard of living established during the marriage.
There is no fixed method for determining how property should be divided. In Washington, all assets - real and personal, tangible and intangible - are available and before the Court for distribution between the spouses. As a community property state, Washington law provide for "just and equitable" division of property acquired during a marriage. This does not necessarily require an equal division. Under some circumstances, the court may also apportion separate (or individual) property.
If the husband and wife negotiate a settlement agreement, the Court will probably approve it, if no settlement is reached, the Court will decide how to divide the property in a trial. Property settlement agreements are binding and generally cannot be modified. (On the other hand, parenting agreements are subject to Court review before they can become finalized.)
Property division is generally made without regard to marital misconduct; instead, a court considers:
- nature and extent of community property;
- nature and extent of separate property;
- how long the parties were married;
- financial position of each party: whether each spouse is employed and self-supporting;
- entitlements to social security and profit-sharing plans;
- who is going to pay the bills; and
- special circumstances.
How are bills or debts divided?
All liabilities, or debt, must also be divided when dissolving a marriage. In this process, consideration is given to the type of debt and the circumstances under which it arose. Factors influencing the property division are also applied when dividing liabilities.
Many credit and charge account agreements provide for joint liability for any charges added to joint accounts. Therefore, creditors should be instructed (in writing) to remove inappropriate names from or, alternatively, close all joint accounts. If a spouse desires to maintain credit with certain creditors, separate accounts should be opened in that spouse's name alone.
What if one spouse fails to obey Court orders?
Like any judicial order and judgment, a Decree of dissolution will be enforced by the Court. Various legal remedies are available for such enforcement. Persons who willfully refuse to comply with Court orders may be held in contempt and jailed or fined.
Child support orders may be enforced by way of a mandatory payroll deduction paid to the Washington State Child Support Registry. Generally, however, the Court will find there is good cause to believe that the support will be voluntarily paid directly to the other parent on a timely basis. Mandatory payroll deduction also is available as a means of collecting support in cases where the original order did not provide for that method of collection and the paying parent has fallen behind in support payments.
Parents who are not receiving court-ordered support should contact their local Division of Child Support or a private attorney to determine their related rights.
What are the tax consequences of dissolution?
Property settlements and family support arrangements can have serious tax consequences to one or both spouses. Tax filing status will be affected by a Decree of Dissolution, Annulment or Legal Separation. Legal or accounting fees incurred for tax planning and advice in connection with a marital proceeding may be partially deductible.
Must I use a lawyer?
Washington law does not require that the services of an attorney be used in dissolution proceedings. However, ending a marriage involves serious and complex legal and financial considerations. Along with serving as your advocate and negotiator, a lawyer knows the process to follow and which papers to file. Your attorney can advise you of your legal rights and obligations, can help reach settlement of disputes, and can represent you in enforcing your rights.
Among alternatives to having a lawyer represent each spouse are self-help guidebooks and mediation with the help of a trained professional. The costs - and consequences - of each option can vary significantly, so spouses should carefully consider the possibilities before proceeding.
Deciding which approach to follow and selecting a lawyer are personal matters. Each party has the right to use an attorney, so if one person elects not to, the other still can.
How much does it cost to dissolve my marriage?
Lawyers set their own fees, so costs and payment arrangements may vary. An important factor in controlling costs is whether the parties can agree to a settlement. If matters are contested, the process is likely to be more expensive, since many attorneys base their fees on an hourly rate. The amount of time a lawyer must spend on a case will increase with the number of disputed issues, and with the complexity of the issues.
It is appropriate to discuss fees with a lawyer at the outset of a case. Your lawyer will be willing to explain the charges involved, including retainers and hourly rates, court costs and payment or credit arrangements.
It may be possible to require the other side to pay a party's attorney fees where there is a need for such payment and the other side has the ability to pay them. In addition, attorney fees may be awarded to a party when, for example, the other side has made the legal process unreasonably contentious.
(See State Bar pamphlets on "Lawyers" and "Legal Fees.")
WHAT YOU SHOULD KNOW ABOUT THE PARENTING PLAN
(Some of the following information was provided courtesy of the Washington State Bar Association)
Introduction
One of the most difficult parts of a marriage breakup is the effect it has on children. The Parenting Act of 1987, which went into effect on January 1, 1988, attempts to help parents work out a legal arrangement for their children during and after a separation or dissolution.
Although the Parenting Act tries to address the concerns of both the mother and father in allocating their parental rights and responsibilities, the child's best interest is the Act's primary consideration. It eliminates the concepts of "custody" and "visitation," and instead provides a residential schedule that specifically details the time that the child(ren) will reside with each parent. The following information explains the Parenting Act and discusses some of the decisions that will normally have to be made on behalf of the child(ren).
To whom does the Parenting Act apply?
The Parenting Act applies to parents who are married and domestic partnerships where the parents are going through or who have gone through a dissolution or legal separation. It applies even if the dissolution is not being contested. For unmarried parents, some of the same concepts involved in a Parenting Plan may apply, but the situation may be different, so an attorney should be consulted.
What is the Parenting Act?
The new Parenting Act revises child custody laws. In fact, this new law does not use the words "custody" and "visitation." Instead, it refers to a Parenting Plan, "parenting functions" and "residential schedules." Even though the terms differ, the ideas are similar.
A Parenting Plan is a court-approved, written arrangement that is worked out between parents, or decided by a Judge if the parents cannot agree on its terms. It is a legal document now required in Washington for any annulment, legal separation, marital or domestic partnership dissolution proceeding where minor children are involved.
The Parenting Plan has several parts, including sections on residential provisions, decision-making functions, dispute resolution procedures and limitations.
The residential schedule states where the child(ren) will live and what contact they will have with each parent. The decision-making section states who (mother, father or both parents) will make major decisions about concerns such as the child's education, health care or religion. The dispute resolution provisions outline a process for settling disagreements or problems without going back to court. A limitations section may be used to restrict contact by an abusive parent who could harm a child.
A child support section outlines financial arrangements. Other sections may include instructions, identification of the parents, children or other parties, and other provisions or special agreements.
What is the purpose of the Parenting Act?
The Parenting Act looks to the present and future needs of children. It tries to define how to best meet their needs. It does so, on a functional basis of "who does what," rather than the legal theory of "who has custody."
In general, the purposes of the Parenting Act are to specify the duties of each parent and to identify and try to resolve sources of conflict involving the children during the dissolution process.
The Parenting Act tries to reduce the harmful effects of separation and conflict on children by encouraging parents to keep their child's best interest in mind when working out a "parenting plan." This means trying to provide the most loving, stable and nurturing environment possible.
The Parenting Act recognizes it is important for the child to have a relationship with both parents after the marriage ends.
One important goal of the Act is to preserve the parent-child interactions and relationships that exist at the time of the dissolution or separation. Other goals of the parenting plan are to, for example:
How is a Parenting Plan made?
In developing a Parenting Plan, it is important to consider specific parenting functions and each parent's ability to, for example:
Decision Making Authority
The Parenting Act requires parents to specify who may make major decisions about the child's care. Specific areas of concern are education, health care and religious upbringing; other items may also be specified.
Decisions about these issues may be made by both parents, be divided between them, or the parents may arrange, or the Court may decide under certain circumstances, that only one parent will make these decisions.
A Court uses various factors in deciding whether both parents should share decision-making, or it only one of them should have this authority. These factors include how much the parents have participated in past decisions about their children (the "status quo"), whether they can cooperate with one another in decision-making, and how far they live from one another.
Even though some major decisions may be designated to be made by only one parent, it is important to remember that each parent may make decisions about day-to-day care and control of the child while that child is living with that parent. In an emergency, either parent may make decisions regarding their child's health or safety.
Residential Schedule
Parents will be asked to propose a living arrangement showing the amount of time each child will spend with each parent. Along with school days and weekends, this residential schedule considers occasions such as holidays, birthdays of family members and vacations. The schedule must be specific about these days and may not simply state "reasonable visitation." Transportation arrangements also may be considered. The Court will expect a residential schedule that maintains the most loving and stable relationship between each parent and child. It may favor giving the greatest amount of time to the parent who has been more involved in caring for the child's daily needs, and whose relationship with the child is more stable and stronger.
The court also considers other factors, such as:
Dispute Resolution Process
Conflicts may arise in the course of implementing the Parenting Plan. For example, parents may have disagreements about the plan itself or the care of children after a plan has been approved. Sometimes, these differences cannot be solved by the parties themselves. Therefore, the Parenting Act includes a process in the plan to help clear up questions resolve disputes.
The parents can decide which procedures to use, and they may even name a particular individual or agency to help them settle future parenting disputes. Also, they may use this dispute resolution process to make some changes in their plan if necessary.
Among options, parents may use counseling or mediation (a process where both parents meet with a third person to try to work out the problems together). Arbitration is also an option. This method involves a neutral third party, called an arbitrator, who listens to both sides and makes a decision.
Most other dispute settlement processes, agreed upon by the parents, may also be used.
Settling issues cooperatively outside of court is usually in the best interest of the children. In fact, only after using a dispute resolution procedure can the parents go to Court. (Child support conflicts are one exception; these matters, and restrictions requested because of certain misconduct by parents, are usually settled by Court action.) The parents retain the right to have dispute resolution decisions reviewed by the Court.
What happens to our child while I am going through my separation or dissolution?
The child's needs must, of course, continue to be met while parents are trying to settle marital differences. The Parenting Act calls for a "temporary parenting plan" to do just that. This replaces what used to be called "temporary custody."
A Temporary Parenting Plan will operate only until a final Parenting Plan is worked out and approved by the Court.
The temporary plan is the first step in the process of identifying and allocating the parents' responsibility and time with the child. It considers the child's needs, while allowing time for families to adjust to new circumstances.
Each parent may propose a Temporary Parenting Plan. Then, if the parents cannot agree, each makes a sworn, written statement (called a declaration) and the matter is resolved by the court. The declaration filed with the court should address the following:
Can there be any limitations to the plan?
While the Parenting Act tries to have both parents involved in the parenting of their children, there are circumstances when a parent's involvement can pose s risk to the child.
Limitations on a parent's involvement with a child may be made for certain reasons. For example, if either parent has abandoned their child for a long period of time or repeatedly refused to take part in caring for their daily needs, or physically, sexually, or emotionally abused the child, it may be possible to arrange restrictions. Serious acts of domestic violence can also cause the court to restrict or eliminate a parent's participation in the parenting plan.
There may be other cases where the court can limit or eliminate a parent's role in the parenting plan if doing so would be in the best interests of the child. Some examples are:
A parent may request the court to appoint a Guardian ad litem to investigate allegations and issue a recommendation for residential placement/limited parent contact, if any.
How is the plan enforced?
The law requires parents to deal in good faith. If they fail to do so, the violator could face civil or criminal charges. For example, if one parent fails or refuses to comply with the temporary or permanent Parenting Plan, or tries to stop the other parent from doing so, the Court can enter an order preventing the offending parent from continuing such action. Furthermore, the Court can require the violator to pay court costs, attorney fees or other charges as a penalty for not following the plan. Fines or even jail terms (depending on the seriousness of the violation) also may be imposed.
The law specifically states that even if one parent violates the Parenting Plan, the other parent must continue to perform his or her duties and take appropriate legal action to resolve the dispute. For example, one parent cannot unilaterally restrict the other parent's residential time because child support payments are late.
Can a Permanent Parenting plan be changed?
A final Parenting Plan can be changed in only a very limited number of circumstances. For example, it may be changed if both parents agree to the change, and if it is in the best interests of the child.
If one parent does not agree to a proposed change, the court can modify a final Parenting Plan only if revisions are made necessary by an unanticipated substantial change in circumstances that has occurred in the child's life or in the lives of the parents since the parenting plan was ordered.
Any change in the final Parenting Plan must be in the best interests of the child. Similarly, the residential schedule can be modified if the Court finds that the child's present living situation and environment are physically or emotionally harmful.
Introduction
One of the most difficult parts of a marriage breakup is the effect it has on children. The Parenting Act of 1987, which went into effect on January 1, 1988, attempts to help parents work out a legal arrangement for their children during and after a separation or dissolution.
Although the Parenting Act tries to address the concerns of both the mother and father in allocating their parental rights and responsibilities, the child's best interest is the Act's primary consideration. It eliminates the concepts of "custody" and "visitation," and instead provides a residential schedule that specifically details the time that the child(ren) will reside with each parent. The following information explains the Parenting Act and discusses some of the decisions that will normally have to be made on behalf of the child(ren).
To whom does the Parenting Act apply?
The Parenting Act applies to parents who are married and domestic partnerships where the parents are going through or who have gone through a dissolution or legal separation. It applies even if the dissolution is not being contested. For unmarried parents, some of the same concepts involved in a Parenting Plan may apply, but the situation may be different, so an attorney should be consulted.
What is the Parenting Act?
The new Parenting Act revises child custody laws. In fact, this new law does not use the words "custody" and "visitation." Instead, it refers to a Parenting Plan, "parenting functions" and "residential schedules." Even though the terms differ, the ideas are similar.
A Parenting Plan is a court-approved, written arrangement that is worked out between parents, or decided by a Judge if the parents cannot agree on its terms. It is a legal document now required in Washington for any annulment, legal separation, marital or domestic partnership dissolution proceeding where minor children are involved.
The Parenting Plan has several parts, including sections on residential provisions, decision-making functions, dispute resolution procedures and limitations.
The residential schedule states where the child(ren) will live and what contact they will have with each parent. The decision-making section states who (mother, father or both parents) will make major decisions about concerns such as the child's education, health care or religion. The dispute resolution provisions outline a process for settling disagreements or problems without going back to court. A limitations section may be used to restrict contact by an abusive parent who could harm a child.
A child support section outlines financial arrangements. Other sections may include instructions, identification of the parents, children or other parties, and other provisions or special agreements.
What is the purpose of the Parenting Act?
The Parenting Act looks to the present and future needs of children. It tries to define how to best meet their needs. It does so, on a functional basis of "who does what," rather than the legal theory of "who has custody."
In general, the purposes of the Parenting Act are to specify the duties of each parent and to identify and try to resolve sources of conflict involving the children during the dissolution process.
The Parenting Act tries to reduce the harmful effects of separation and conflict on children by encouraging parents to keep their child's best interest in mind when working out a "parenting plan." This means trying to provide the most loving, stable and nurturing environment possible.
The Parenting Act recognizes it is important for the child to have a relationship with both parents after the marriage ends.
One important goal of the Act is to preserve the parent-child interactions and relationships that exist at the time of the dissolution or separation. Other goals of the parenting plan are to, for example:
- provide for the child's physical care;
- maintain the child's emotional stability;
- provide for the changing needs of the child in a manner that minimizes the need to alter the Parenting Plan;
- set forth the authority and responsibility of each parent with respect to the child;
- minimize the child's exposure to harmful parental conflict;
- encourage agreement between parents to meet their responsibilities without reliance on judicial intervention; and
- protect the best interest of the child.
How is a Parenting Plan made?
In developing a Parenting Plan, it is important to consider specific parenting functions and each parent's ability to, for example:
- maintain a loving, stable, consistent and nurturing relationship with the child;
- attend to the daily needs of the child, including feeding, clothing, physical care and grooming, supervision, health care, day care and other needs as indicated by circumstances;
- attend to adequate education, including remedial and other essential education that serves the best interests of the child;
- assist the child to develop and maintain appropriate interpersonal relationships;
- exercise good judgment regarding the child's welfare; and
- provide for financial support of the child.
Decision Making Authority
The Parenting Act requires parents to specify who may make major decisions about the child's care. Specific areas of concern are education, health care and religious upbringing; other items may also be specified.
Decisions about these issues may be made by both parents, be divided between them, or the parents may arrange, or the Court may decide under certain circumstances, that only one parent will make these decisions.
A Court uses various factors in deciding whether both parents should share decision-making, or it only one of them should have this authority. These factors include how much the parents have participated in past decisions about their children (the "status quo"), whether they can cooperate with one another in decision-making, and how far they live from one another.
Even though some major decisions may be designated to be made by only one parent, it is important to remember that each parent may make decisions about day-to-day care and control of the child while that child is living with that parent. In an emergency, either parent may make decisions regarding their child's health or safety.
Residential Schedule
Parents will be asked to propose a living arrangement showing the amount of time each child will spend with each parent. Along with school days and weekends, this residential schedule considers occasions such as holidays, birthdays of family members and vacations. The schedule must be specific about these days and may not simply state "reasonable visitation." Transportation arrangements also may be considered. The Court will expect a residential schedule that maintains the most loving and stable relationship between each parent and child. It may favor giving the greatest amount of time to the parent who has been more involved in caring for the child's daily needs, and whose relationship with the child is more stable and stronger.
The court also considers other factors, such as:
- what agreements parents have arrived at regarding the residential schedule;
- how well each parent has performed his or her parenting functions in the past, and their ability to do so in the future;
- the child's relationships with brothers, sisters and other adults in his or her life
- how involved the child has become in his or her environment, including school and other activities; and
- the wishes of the child (if old enough to express those wishes).
- if there has been a great deal of cooperation between parents in the past;
- if there is reasonable geographic proximity; and
- if the arrangement serves the best interest of the child.
Dispute Resolution Process
Conflicts may arise in the course of implementing the Parenting Plan. For example, parents may have disagreements about the plan itself or the care of children after a plan has been approved. Sometimes, these differences cannot be solved by the parties themselves. Therefore, the Parenting Act includes a process in the plan to help clear up questions resolve disputes.
The parents can decide which procedures to use, and they may even name a particular individual or agency to help them settle future parenting disputes. Also, they may use this dispute resolution process to make some changes in their plan if necessary.
Among options, parents may use counseling or mediation (a process where both parents meet with a third person to try to work out the problems together). Arbitration is also an option. This method involves a neutral third party, called an arbitrator, who listens to both sides and makes a decision.
Most other dispute settlement processes, agreed upon by the parents, may also be used.
Settling issues cooperatively outside of court is usually in the best interest of the children. In fact, only after using a dispute resolution procedure can the parents go to Court. (Child support conflicts are one exception; these matters, and restrictions requested because of certain misconduct by parents, are usually settled by Court action.) The parents retain the right to have dispute resolution decisions reviewed by the Court.
What happens to our child while I am going through my separation or dissolution?
The child's needs must, of course, continue to be met while parents are trying to settle marital differences. The Parenting Act calls for a "temporary parenting plan" to do just that. This replaces what used to be called "temporary custody."
A Temporary Parenting Plan will operate only until a final Parenting Plan is worked out and approved by the Court.
The temporary plan is the first step in the process of identifying and allocating the parents' responsibility and time with the child. It considers the child's needs, while allowing time for families to adjust to new circumstances.
Each parent may propose a Temporary Parenting Plan. Then, if the parents cannot agree, each makes a sworn, written statement (called a declaration) and the matter is resolved by the court. The declaration filed with the court should address the following:
- where and with whom the child has lived for the past 12 months;
- to what extent each parent has taken care of the daily needs of the child for the past 12 months;
- what each parent's work and child care schedules are now and have been for the past 12 months; and
- whether there are any circumstances that exist that might negatively affect the child if the child lives with or visits the other parent.
Can there be any limitations to the plan?
While the Parenting Act tries to have both parents involved in the parenting of their children, there are circumstances when a parent's involvement can pose s risk to the child.
Limitations on a parent's involvement with a child may be made for certain reasons. For example, if either parent has abandoned their child for a long period of time or repeatedly refused to take part in caring for their daily needs, or physically, sexually, or emotionally abused the child, it may be possible to arrange restrictions. Serious acts of domestic violence can also cause the court to restrict or eliminate a parent's participation in the parenting plan.
There may be other cases where the court can limit or eliminate a parent's role in the parenting plan if doing so would be in the best interests of the child. Some examples are:
- A parent has a long-term drug, alcohol or other substance abuse problem which has prevented that parent from taking care of the child's daily needs;
- A parent has a long-term emotional or physical impairment that interferes with his or her taking care of the child;
- There are few or no emotional ties between the child and parent;
- The child's psychological development is in danger of being seriously damaged because a parent continues to be abusive or is a source of substantial conflict in the child's life;
- One parent has not let the other see the child for a period of time without a good reason; and
- If one parent claims that the other parent has harmed the child, or would harm the child or the other parent, then this claim must be proved if denied.
A parent may request the court to appoint a Guardian ad litem to investigate allegations and issue a recommendation for residential placement/limited parent contact, if any.
How is the plan enforced?
The law requires parents to deal in good faith. If they fail to do so, the violator could face civil or criminal charges. For example, if one parent fails or refuses to comply with the temporary or permanent Parenting Plan, or tries to stop the other parent from doing so, the Court can enter an order preventing the offending parent from continuing such action. Furthermore, the Court can require the violator to pay court costs, attorney fees or other charges as a penalty for not following the plan. Fines or even jail terms (depending on the seriousness of the violation) also may be imposed.
The law specifically states that even if one parent violates the Parenting Plan, the other parent must continue to perform his or her duties and take appropriate legal action to resolve the dispute. For example, one parent cannot unilaterally restrict the other parent's residential time because child support payments are late.
Can a Permanent Parenting plan be changed?
A final Parenting Plan can be changed in only a very limited number of circumstances. For example, it may be changed if both parents agree to the change, and if it is in the best interests of the child.
If one parent does not agree to a proposed change, the court can modify a final Parenting Plan only if revisions are made necessary by an unanticipated substantial change in circumstances that has occurred in the child's life or in the lives of the parents since the parenting plan was ordered.
Any change in the final Parenting Plan must be in the best interests of the child. Similarly, the residential schedule can be modified if the Court finds that the child's present living situation and environment are physically or emotionally harmful.
CAMDEN HALL, PLLC
1001 Fourth Avenue, Suite 3312-13, Seattle, WA 98154
Direct Phone: 206-749-0200 Direct Fax: 206-749-0821 E-Mail: chall@camdenhall.com
1001 Fourth Avenue, Suite 3312-13, Seattle, WA 98154
Direct Phone: 206-749-0200 Direct Fax: 206-749-0821 E-Mail: chall@camdenhall.com
