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Pre-separation issues:
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Property -
In Washington, which is a Community Property State, both spouses have
equal management rights with regard to personal property such as
joint bank accounts or joint credit cards. This means that
without a restraining order, either spouse may withdraw money out of
a joint account or run up credit cards for which the other spouse
may be responsible. The best protection against this is a
preemptive withdrawal of a fair share of the accounts, closing joint
credit cards and/or obtaining a restraining order.
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Children
- If custody of your children is to be an issue in your family
law case, you should know that judges tend to preserve the status
quo. If the children have been living with you and you have
been taking care of the children when you go to court, you are much
more likely to end up with custody. Those who want custody
should usually not to move out of the family home and leave the
children behind. Judges often take a dim view of those who
unilaterally uproot their children, taking them to a new
location. There may be times when such a move is unavoidable,
but it is usually best to have the court establish a parenting plan
first.
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Restraining Orders
- If there has been domestic violence in your home, which
includes threats of physical harm, or if there have been threats to
take the children out of state, or take money out of an account, the
court may be able to issue immediate restraining orders.
Restraining orders can order that one spouse vacate the family
home.
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Dividing Property and Debts --
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Equitable, not Equal
- The legal standard for the division of community property
in Washington is that the result be fair and equitable. This does
not necessarily mean equal. Often where one spouse has a much higher
earning capacity or may have substantial separate property, the court will
award a disproportionate amount of the community property to the other spouse in an attempt to bring
them into financial parity. While the courts have the power to award
one spouses separate property to the other spouse this is highly
unusual. In Washington the property you have before marriage or
acquire during the marriage by gift or inheritance is your separate
property.
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Pensions and
Retirement Accounts - In either a Dissolution of Marriage or
a Decree of Legal Separation the court will divide retirement
accounts. For funds such as a 401k the account can be divided into
two separate 401k accounts. For a defined benefit pension the court
can enter an Qualified Domestic Relations Order which identifies a certain
portion of the pension as belonging to the non-employee spouse so that when
the pension begins, the plan administrator will automatically pay that
portion to the non-employee spouse.
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Debts - The
court will allocate existing debts between the parties. It is
important to note however that a Decree of Dissolution does not bind the
creditors. If the court orders one spouse to pay a debt and they do
not, the creditor may sue both spouses. If the spouse who was not
ordered to pay the debt in the dissolution is forced to pay the debt to
the creditor, that spouse's remedy is to sue the former spouse who was ordered by
the Family Court to pay the debt for reimbursement. This is not
always an effective remedy.
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Parenting Plans -
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Temporary Plans
- Rather than simply awarding custody of children to one parent, the
courts enter a parenting plan which provides a residential schedule for
the children. The plan will set forth the days and times the
children live with each parent. The plan will also allocate decision
making authority between parents. If there are concerns about the
unfitness of either parent, the plan may impose limitations that
parent. The most important factor in awarding a Temporary Parenting
Plan is which parent has provided the majority of the parenting functions
during the last twelve months.
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Permanent Plans
- The most important factor in awarding the Permanent Parenting Plan is
the quality of the relationship between the parent and the children.
The courts want to know to which parent the children are more closely
"bonded". "Joint Custody" or "Split
Custody", where the children live half the time with one parent and
half the time with another, will usually not be ordered unless there has
been a pattern of joint custody in the past that has been effective or the
parents agree.
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Planning for
Parenting Plan Litigation - I advise any parent who plans to engage
in litigation over a parenting plan to keep an ongoing journal.
Write down your interactions with the child, problems you have with the
other parent and concerns you have about fitness, substance abuse or other
issues. You should also contact friends, family and others who know
you and your children and find out if they are willing to testify in
person or in writing on your behalf.
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Child Support -
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Child Support
Schedules - There is no "basic" child support
amount. There is a complicated child support schedule that has been
adopted by the state legislature. In order to determine child
support it is necessary to plug the net incomes of both parents into the
formula along with other information such as health insurance premiums and
day care expenses. Once this is done the schedule yields the
"standard calculation" that will be used by the court absent
some limited reasons to "deviate" from that amount.
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Modification of
Support - Once support is established it may be modified at least
every two years. It may be modified before two years, but only upon
a showing of a substantial change in circumstances or other similar
equitable basis. If you ask the same court that granted the original
support order to modify it, you may be able to have that done with a
simple motion hearing.
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