IMPORTANT INFORMATION FOR PEOPLE CONTEMPLATING DIVORCE

By Meredith Mckell Graff

First, no matter how done you are with your marriage, or how hurt you are that your spouse does not wish to be married to you anymore (evidenced by either actions or words), take a deep breath and pay close attention. You can make your case easy financially and emotionally by behaving in a civil and cooperative manner or you can assume an adversarial stance, which will cost you time and money and may not bring you the satisfaction you seek.

In Washington, as in many other states, the statutes and case law provide for a “no-fault” consideration of all the issues in your family law matter. That means that no matter how angry, hurt, disappointed, enraged you might be, the court will decide the issues according to the parameters of the law, not based on your emotions. Thus, you will get the same result whether you fight like a tiger or you behave civilly. Fighting is emotionally draining, and is costly. Behaving civilly means that the case will be done sooner so you can get on with your life, it will cost less, and you will experience less of the emotional rollercoaster that people feel while their divorce case proceeds. Generally, it takes about a year or more for a contested case to get to trial. Or, you can be done in the 90 day waiting period. It is up to you.

There are four basic issues in a divorce case: Property Division, Spousal Maintenance, Parenting Plan, and Child Support. If you don’t have kids, the last two issues are off the table. If you don’t meet the criteria set out by the courts and the law, spousal maintenance, also known as alimony, spousal support, or rehabilitation, is also off the table. Some states consider fault when considering spousal maintenance. Washington does not. Property Division is the distribution of the assets and debts accumulated during the period of the marriage–from the date of the marriage to the date of separation for purposes of divorce (or a date the two of you choose, if you can agree).

Washington has a “community property” law that more clearly defines what belongs to the two of you and what is separate. However, the court presumes everything is community in a divorce and the burden to prove it is separate is on the person who wants to characterize an asset or debt as separate. Know, however, that all property, community and separate, will be considered by the court in a divorce. That means that if one spouse owes the other money to equalize the community estate, and the only liquid asset has been determined to be separate, the court could order the equalizing payment to come from the separate asset. Not all assets are community by law: pain and suffering personal injury awards and inheritances are two assets the courts most often characterize as separate.

Some people think that having an asset titled in one person’s name only will protect him or her from the community property law. This is not so. The court does not consider titles as the only indicator of what is community and what is separate. Titles, along with other evidence, may lead the court to decide that an asset is separate, but the one who wants the asset to be separate has to give the court more information before it will decide in that person’s favor.

There are many family law attorneys, who, unfortunately, promise potential clients results that are not likely to happen, in order to be hired. Clients go into the divorce process with unrealistic expectations and inflated senses of entitlement, which cause the case to drag on for months or years, and cost both sides thousands of unnecessary dollars. In the end, the clients get exactly what the court would have given them with less conflict, and the attorneys pad their bank accounts. Clients who use the adversarial process to vent their emotions spend many more dollars than those who approach their divorces with logic and business-like manner. These latter clients understand that the court tends to rule similarly in every case on same issues, thus, assets and debts are calculated and the property is equally divided. The party who keeps a greater share owes the other party the difference between what he or she received and the amount that represents half of the net community estate. The courts use a standard parenting plan for parents who cannot agree and the state requires a child support calculation and orders for the standard calculation no matter what the parents want to do. Child support is not negotiable.

People fight over the silliest things. People think because they worked and put money into a retirement or pension account, that it is theirs alone. Not true, it is a community asset. People think they will get “sole custody” of children and don’t understand that the court prefers joint decision-making and regular, scheduled contact with both parents. People think they can negotiate child support or trade it off for a property asset. Also not true. Each issue is separate and not up for trade.

Probably the only issue that can be negotiated creatively is spousal maintenance. If a person is qualified to receive it, that is, they have been married at least ten years, have a disparity in incomes, there is a clear need by one party and the ability to pay by the other, then it is likely the court will order it. Washington courts tend to order one year of support for every five years of marriage. Not a lot, so the person receiving it needs to be focused on how to best use the time during which he or she receives the support to improve his or her earning power. That might mean retraining, more education, or a job that offers advancement within the time frame of the support. Once spousal maintenance has been determined, some people decide to calculate a total amount, based on the monthly amount and the length of time it is appropriate, and then add this to an equalizing payment for the community property and debts, to make an unequal settlement. The benefit to the person receiving it is that the settlement is considered property and not income by the IRS. The benefit to the person paying it is that he or she is done at the divorce and does not need to send spousal maintenance payments every month for the next few years. The downside to the person receiving it is that it is not modifiable because it isn’t spousal maintenance. No going back to court if it isn’t enough. The downside to the person paying it is that he or she loses a tax deduction. Most payors are happy to lose the deduction to be able to pay it all at once.
The biggest problem people get themselves into in their divorces is listening to non-lawyers who style themselves as experts on divorce. When a person takes direction from someone who has no legal training and experience, he or she tends to believe that he or she is entitled to something that is not realistic and likely to happen at court. People who accept the information and advice of non-lawyers generally are not happy with the eventual orders of the court, even more so than other litigants. People do not realize that the judges have the attitude that “if both parties are unhappy with the court decisions, it is probably just right.” Judges do not want one party very happy and the other party very unhappy. It needs to be equitable. Equitable misery seems to be the goal of the courts.

When people chose a less adversarial method to resolve their divorce issues, such as mediation, collaborative law, or sitting down together and working it out, and are successful in making agreements on all the issues in their case, while neither ends up with everything he or she wanted, the parties generally feel happier with their results than those who have litigated and come away unhappy with the results. Most people who resolve their issues in a civil and non-adversarial manner are able to do so because they either have been separated long enough to move past the strong emotions that arise when the relationship breaks down, or because they have obtained the assistance of a mental health counselor to help them navigate the emotionally choppy waters of the divorce process. In collaborative law, coaches, who are mental health counselors, are trained in the process and work with each party to ensure success of the negotiations by helping each party with his or her emotions, as they arise in the course of the case.

Most people are not happy to be involved in a divorce. They married with the hope and dream of a life-long commitment. Not all relationships are able to adjust as people age and make changes in their lives. When people are able to recognize that a relationship is a vehicle to teach individuals important life lessons and not every relationship has the capacity to continue through an entire life, the process of disengagement is a little easier. When people are able to “get off the merry go round when the music stops” rather than stay on and “kick the horsie because it won’t go,” they are more likely to find a new merry go round that meets their needs at that point in their lives, rather than cursing the old merry go round because it stopped.

Some people choose to live their lives as victims and martyrs. There is not much that can be done for these people. Divorce is a process that fuels victim and martyr mentalities. As long as a person chooses to lie face down on the floor and offer him or herself up as a doormat, he or she needs to know that being stepped on will be a matter of daily experience until the person gets that one does not need to lie on the floor and be a doormat. One can get up, shake oneself off, and get on with one’s life. It is probably easier said than done, but those who do feel better, are happier, and more able to enjoy life than those who let life decide for them, like a caboose swinging at the back of a train, rather than being the engine that faces front-on, whatever is around the next bend.

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