The process of divorce can be an extremely traumatic and painful experience. For many, it is difficult to set aside emotions and determine future needs and direction.
Backed by many years of experience, attorney Leonard Kerr will focus on the financial issues of your divorce, and will give you straightforward advice that may difficult to accept in some instances. Often, a trained psychologist or counselor can be helpful during this time period with the stress and emotions.
Answering Your Questions
Please review the following overview of the divorce law in Washington, which can provide answers to some of your questions. If you are uncertain of any issues relating to your rights and obligations, please call the law firm and ask.
Since you often will feel stress when considering issues, you may want to write your questions down. Making a list of your questions will ensure that you get all of your questions answered.
Grounds for Dissolution
At the time the term divorce was changed to dissolution, the legislature removed the requirement to prove specific grounds for ending a marriage. The marriage status will be terminated if the court finds that the marriage is irretrievably broken.
If either spouse alleges that the marriage is irretrievably broken and continues to insist upon the same, the court has no choice but to grant a decree of dissolution. Thus, if your spouse says he or she will contest the basis for the divorce, or will never give you a divorce, in order to remain married, that is not possible under the laws of the State of Washington.
I. NO FAULT
Fault, as it relates to terminating a marriage, is no longer relevant. Under certain limited circumstances, the misconduct of either spouse may be brought to the attention of the court. The court may need to know this information to determine whether either party is wasting an asset or income by his or her conduct. If the living arrangements of the children are an issue and the alleged misconduct bears on either parent's parenting ability, then it may be an issue.
II. COMMENCING THE PROCEEDINGS
You will have an initial interview to decide whether a Summons and Petition for Dissolution should be filed, or whether it would be to your advantage to wait until a later date to file an action, or whether to consider pursuing alternative legal actions pertaining to your spouse.
A Summons notifies your spouse that you have commenced a legal action and provides a time frame in which your spouse must respond. If your spouse fails to respond within 20 days from receipt, (60 days if served outside of Washington State), you may be entitled to an Order of Default granting to you the relief requested in your Petition.
A Petition for Dissolution recites the date of marriage, your residence, and whether any obligations were accumulated during marriage. It further lists children's names, birth dates, the party seeking to have residential placement of the children, and whether child support is sought. It may set forth your financial status, whether you seek maintenance (formerly known as 'alimony') and whether the wife desires her maiden name to be restored. Either spouse may change his or her name to any other name as a part of the Decree.) In short, it will allege what relief you desire from the court. Petitions for Dissolution can be prepared to be general in content by not setting out the proposed divisions of property and debts. This way, you are not bound by proposed property divisions or economic decisions until the accuracy of all of the information related to your case has been ascertained and your options have been fully discussed with you.
After the Petition for Dissolution is filed with the court clerk, a copy will be given to a process server to serve upon your spouse. The official commencement of the dissolution proceeding will be deemed to start with either the filing or service of the Summons or the Petition, whichever is later. Your spouse or his/her counsel may accept service, which will eliminate the cost to you and potential embarrassment to your spouse.
Service by Publication or Mail
If you do not know the whereabouts of your spouse, and they cannot be located after reasonable attempts, your Summons and Petition may be published in a local newspaper six times weekly. Under certain limited circumstances the court may permit service by mail. On your behalf, your attorney may send through the mail a copy of the Summons and Petition to your spouse's last-known residence or employer. The publication must run for a certain number of days and your spouse will have a longer period in which to respond.
If you have been served with a Summons and Petition for Dissolution, your attorney must prepare a Notice of Appearance and a written Response to the Petition on your behalf, serve it on your spouse's counsel and file it with the clerk of the court. This must be accomplished within twenty days after you were served with (or received) the Summons and Petition to avoid being in default. If you filed the Petition, your spouse will have to file a Response after being served. A Response will admit or deny the allegations in the Petition for Dissolution and set forth the relief sought by the spouse responding. It is possible to lose your chance to challenge the Petition by waiting beyond the twenty days to answer. After a response has been filed, wither side may request a Snohomish County Trial date.
If your case does not settle, your attorney and your spouse's attorney may serve 'interrogatories' on one another's client. Interrogatories are written questions that must be answered within 30 days. The information sought is regarding property, debts, expenses, children and anything else relevant to your dissolution. Some questions, even though they may seem unpleasant, must be answered. Interrogatories should be answered fully to give the opposing counsel (and later the court) a clear picture of the marital debts and assets, separate debts and assets, and issues regarding the children. Misstatements or omissions can cross you up at the time of trial and may ultimately hurt your case. In addition, any false or incorrect answers may be used at trial or in a deposition to discredit you.
Requests for Production
In conjunction with the interrogatories, requests for production of documents may be forwarded by your spouse's attorney or by your own attorney. These requests require the other party to produce documents that will help in analyzing the case. You now should keep financial documents that may be of help in documenting the financial history of the marriage and the parties.
Depositions may be taken in dissolution cases. A deposition consists of an attorney asking you, your spouse or on rare occasion another person questions, under oath, before a court reporter. Both attorneys will be present and both spouses may attend. The purpose of a deposition is to obtain testimony relevant to the issues of the case before going to trial. The knowledge of the facts and issues can then be used in preparing for trial, especially preparing for cross examination of witnesses.
During the deposition, the Court reporter records the questions and answers verbatim. Therefore, your answers must be verbal. If you are unsure of an answer to a particular question, say so. Do not speculate. Only the party whose deposition is being taken may speak. The deposition is being transcribed; anything less than the candid truth can lead to a poor result at trial because you will not be credible. Likewise, if you are in attendance at the time your spouse's deposition is conducted, take notes and you later can tell your attorney how and where if your spouse was incorrect. You will always be notified of your spouse's deposition and you will help prepare for it with your attorney. When your spouse is being deposed, advise your attorney with a written note if your spouse is slanting the truth or lying. Remember to help your attorney as much as possible by revealing all information that you have to ensure that your rights are fully protected. When your deposition is sche! duled, your attorney will prepare you for it well in advance. The same rule, to reveal to your attorney all information that you have, applies to your deposition as well. Any information you give your attorney is confidential; however you will not be permitted to testify inconsistent with any information you have revealed.
Frequently asked questions
How long will a dissolution take?
Washington law provides that no marriage can be terminated until after 90 days from the date the Petition was filed, or served, which ever comes later. If you and your spouse agree on all of the issues, or an Order of Default is entered (in the event your spouse has not responded to the Petition for Dissolution), a Decree of Dissolution may be entered on the 91st day after the later of service or filing. If you and your spouse are unable to agree on any issue, your case may be tried before a judge, unless you subsequently reach an agreement. In Snohomish County, the trial date is approximately 6 months after the Response to the Petition and a Note for Trial Setting are filed.
Can a dissolution action be settled between parties?
Your case can be settled at any time. Bear in mind that you must know the extent and values of all assets, income, debt, etc. Most records can be subpoenaed to ascertain property values. Knowing these, your attorney may be able to facilitate an ultimate settlement. Please note that a settlement should be under the guidance of your attorney and only after careful consideration of all factors regarding income, assets, debts, risks, and expectations. Please remember, you engaged your attorney's services to protect you and you should not sign any agreement until your attorney has reviewed it with you. Settlements normally are negotiated by your attorney and your spouse's attorney with you and your spouse participating through your respective attorney. One of the most difficult requests an attorney makes of a client is that he/she be patient as the case progress through the legal system. Prior to confirming your trial date mediation is required and almost always sucessful.
A document may be drafted reflecting any arrangement that has been reached. It is combined with official documents such as a Decree of Dissolution and submitted to a judge for his/her signature after the 90-day waiting period, or as soon thereafter as an agreement has been reached. Agreements are approved routinely by the court, and only one party needs to appear in court on the day the divorce is finalized. Normally, the party who originally filed the divorce is the one to appear in court, but this is not mandatory and may even be a part of the negotiations to settle your case. The odds are in your favor that your case will eventually settle. Over 95% of our cases settle.
Do I need witnesses?
Always advise your attorney of possible witnesses in your case. Witnesses include people who have knowledge of your debts, property, your past responsibilities, your ability and fitness as a parent, etc. Witnesses may be asked to provide sworn written statements for a motion. Witnesses can be called to testify for a trial. If any possible witness intends to leave your county or state before trial, notify your attorney immediately so that your witness' testimony can be obtained before he or she leaves.
Do I need to go to the initial hearing?
You are not required to attend the initial hearing for temporary orders when an attorney represents you. However, it is best for you to attend hearings because you will hear the attorneys' arguments and hear the judge's decision and the basis for the judge's decision. If you attend the hearing, your presence will aid the attorney should the judge ask a question that requires the attorney to consult with you. Sometimes, the judge will ask the client a question. Should this happen, answer honestly. Think before you answer. If you do not know an answer or are unsure, say so.
What happens if my spouse fails to pay support?
Notify your attorney. Your attorney can either take care of the problem by calling your spouse's attorney or by filing a motion with the Court seeking a finding that your spouse is in contempt for failing to pay the support. Usually your spouse will be ordered to make immediate payment or installments on the back due support. If you must file the motion in order to obtain payment, and the Court finds your spouse in contempt, the Court may order payment of your attorneys' fees for having to bring the motion. However, remember you are responsible to pay your fees until any payment is received from your spouse, and the Court seldom orders payment of all the fees you incurred in bringing the motion.