50 Frequently Asked Questions about Divorce in Washington State
1. What are the grounds for divorce in Washington State?
Washington State is a no-fault state. That means a spouse does not have to prove the other spouse did anything wrong to get a divorce. Stating the marriage is “irretrievably broken” as the reason is enough.
2. When can I get a divorce in Washington State?
A divorce may be granted under the following conditions:
- You are legally married.
- You or your spouse reside in Washington State.
- You or your spouse state the marriage is irretrievably broken.
- The Petition for Dissolution and Summons are filed.
- At least 90 days have passed since the Petition for Dissolution and Summons are filed and served or a signed “joinder” is filed.
3. Can I get a divorce even if my spouse does not agree to one?
4. What is a legal separation in Washington State?
In Washington State, a legal separation differs from a divorce as follows:
- The marriage is not legally ended so neither spouse can legally remarry unless the decree is converted to a divorce.
Social security benefits do not change with a decree of legal separation as in a divorce.
- As a result, a legal separation preserves a spouse’s right to certain social security benefits that require 10 years of marriage;
- Some employment health insurance plans allow a legally separated non-employee spouse to stay on the employee spouse’s plan;
- Otherwise, the legal process and applicable laws are the same. Both a legal separation and divorce require the preparation of a parenting plan and child support orders (if minor children are involved), spousal support if applicable, and property/debt division.
5. Do spouses have to be separated before a divorce can be filed?
No. Washington State does not require the spouses to be separated, or live separate and apart, before filing for divorce.
6. What is a “Dissolution of marriage”?
“Dissolution” is the legal term used for a divorce in Washington State.
7. Do both spouses have to live in Washington State to file for divorce here?
No. Only one party needs to be a resident of Washington State or a member of the armed forces stationed in the state.
8. Do I have to reside in Washington State before filing for a divorce here?
9. Does my spouse have to reside in Washington State before filing a divorce here?
No, but the general rule is that your spouse must have lived with you in Washington State before departing for Washington State courts to be able to order a property division or spousal support. If you have children, other significant contacts with Washington State, such as conceiving a child in Washington State, may substitute for prior residency for Washington State to have authority over parenting and child support.
10. If I have children, how long do I have to live in Washington State before filing for divorce?
Generally, the children must have lived in Washington State since birth or the six months before the divorce action is filed (i.e., Washington State must have “home state” jurisdiction).
11. How do I file for a divorce in Washington State?
- To start a divorce, a spouse (the “petitioner”) must generally file a petition for dissolution and summons, and then serve both on the other spouse to start the divorce action and the 90 day waiting period. The legal term for the delivery of legal documents to the other spouse is called “service of process”.
- Exception – Uncontested Divorce – However, if the spouses have agreed on all legal issues beforehand, the case is uncontested and the spouses start the divorce action by filing a petition with a “joinder”. No summons is necessary.
12. What is the major difference between a legal separation and a divorce?
A legal separation is a court order that provides the rights and duties of a couple while still married. A divorce is a court order that provides the same rights and duties of a couple but ends the marriage. The laws (i.e., property division, spousal support, child support, and parenting plan) are the same, but the parties officially remain married after a decree of legal separation and cannot remarry. A decree of legal separation can be converted to a divorce decree after six months.
13. Are there any advantages to getting a legal separation over a divorce?
Aside from emotional or religious concerns, the following reasons may apply to make a legal separation advantageous:
- Social Security Benefits – If a marriage has lasted at least 10 years, a divorced spouse who has not remarried is entitled to social security benefits equal to the greater of 1) those based on one’s work record or; 2) 50 percent of what the ex-spouse is entitled to. As a result, some people married for close to 10 years will seek a legal separation rather than a divorce until the 10-year threshold is met.
- Health Insurance – Some employers will continue to provide coverage for a spouse who has legally separated. That is not true of a divorced spouse.
14. Is a Legal Separation the same as the Date of Separation?
No. A legal separation is a court order that provides the rights and duties of a couple while still married. The date of separation is when facts indicate the marriage is “defunct” and marks the end of the community property estate. Property earned or acquired after the date of separation is assumed to be that spouse’s separate property (see question 13 below).
15. Is there any way to prevent a spouse from getting a divorce?
16. Do I need a lawyer to get a Divorce?
- No. A lawyer is not required, but is very beneficial, especially in high asset divorces with complex property issues, custody conflicts, when divorcing couples are in volatile relationships and/or in sharp disagreement. In domestic violence cases, legal representation is essential. An unrepresented party is generally at a severe disadvantage. Minimally, legal advice in the form of a consult is always recommended in such cases.
- If you cannot afford a lawyer for the entire process, some lawyers offer legal advice and limited scope representation for individual legal tasks such as a request for protection orders, appearing at hearings or mediation, etc.
17. What does a “no-fault” divorce mean?
It means marital misconduct (i.e., adultery, verbal abuse, etc.) is not needed to obtain a divorce, and, with limited exception, is not considered a factor in determining property division, spousal support, or child support.
18. What is a prenuptial or post-nuptial agreement?
- A prenuptial agreement is a contract entered into by the spouses before their marriage. Similarly, a post-nuptial agreement is a contract entered into by the spouses, but after their marriage.
- Either type of agreement, if legally binding, supersedes general Washington State community property and family laws regarding property division, spousal support, and inheritance.
- Note: A prenuptial or post-nuptial agreement is limited to property division and alimony (spousal support) issues. Child support and parenting (visitation and custody) issues may be addressed in either agreement but are not binding or enforceable.
19. What is the Date of Separation and why is it important?
- The date of separation is when at least one spouse expresses his/her intent to end the marriage and there are not subsequent attempts to reconcile or continue ongoing marital relations. It does not require the spouse to move away and obtain a new residence.
- The date of separation is important because the “community” ends on that date. Property earned or acquired after the date of separation is assumed to be that spouse’s separate property (see question 22 below).
Example 1 – No Date of Separation:
In a heated argument, one spouse informs the other he/she wants a divorce, packs up a suitcase, and moves to a hotel. One week later, the spouse returns and the couple attempt marital therapy.
Example 2 – No Date of Separation:
Same as above, but the spouse returns occasionally to engage in romantic relations. This is evidence of an attempt to reconcile.
Example 3 – Date of Separation Exists:
Same as above, but the spouse stays at the hotel indefinitely, refuses to engage in marital therapy, and files for divorce.
Example 4 – Date of Separation Exists:
- The spouse informs the other spouse he/she wants a divorce, moves to a separate room within the same residence, living separate lives and engaging in minimal or no communication with no intent to reconcile or engage in marital relations.
- Note-As suggested above, a spouse may file for divorce even if the date of separation has not occurred. In other words, a divorce may be filed while reconciliation is still attempted.
20. What is community property and debt?
- Community property is ALL property that either the husband or wife acquires during the marriage, except for inheritance or gifts (i.e., gifts between spouses or from third parties that not intended for both husband and wife). Similarly, community debt is all debt acquired by either the husband or wife during marriage.
- Generally, each spouse has a 50% ownership interest in community property, and a 50% obligation to pay community debt, regardless of who earned or acquired it.
- ALL property means ALL property – including real property, personal property, bank accounts, retirement, employee benefits, business interests, etc. This is true even if the asset is in only one spouse’s name.
Example 1 – My bank account/retirement/car is in my name. Is it community property?
Example 2 – My bank account is in my mother’s name. Is it community property?
Answer: Yes, to the extent the account balance is made up of your post-marital earnings.
21. What is separate property and debts?
Separate property is all property acquired before the marriage or after the date of separation. It is also inheritance or gifts to one spouse acquired during the marriage. A spouse has a 100% interest in separate property. Similarly, separate debts are debts incurred prior to marriage or after date of separation.
22. Do I have to disclose all my property and debts for a property division?
Yes. Parties must disclose to the court all property and debts, separate and community.
23. Will the court divide all of our property and debts equally?
Not necessarily. The court divides property and debts in a way that is “just and equitable.” This does not always mean 50/50.
A judge has the freedom to decide (“discretion”) what a “just and equitable” division is after taking into account all relevant factors including the following:
- The nature and extent of the community property;
- The nature and extent of the separate property;
- The length of marriage.
- Each party’s economic circumstances at the time the division of property is to become effective. This is the most important factor.
24. Will the court consider my spouse’s misconduct in dividing property and debts?
- No. Washington is a no-fault state. A spouse’s misconduct, e.g., infidelity, verbal abuse, unwillingness to engage in sexual relations, etc. is not a relevant factor in deciding a property division.
- Exception – Dissipation of Assets: However, a spouse may seek reimbursement of community assets spent on certain actions that do not benefit the community, such as money spent on an extra-marital affair or gambling, and illegal activities such as prostitution or drug use, is allowed.
25. What is an Annulment?
An annulment is a legal ruling that the marriage never happened.
26. What are the legal grounds for an annulment in Washington State?
A marriage may be declared annulled if one of the following can be proven:
- A party is already married to someone;
- The parties are more closely related than second cousins (i.e., first cousins, siblings, etc)
- Either party has not reached age 17 (absent court approval);
- A spouse lacked the ability to consent at the time of marriage due to mental incapacity, influence of alcohol or drugs;
27. Can I obtain a divorce if I do not know where my spouse is?
Yes. However, it requires obtaining a court order to bypass the regular personal service requirements and permit service by publication in a local newspaper.
28. What am I entitled to in a divorce or legal separation?
At the time of divorce or legal separation, each party is entitled to the following:
- Division of property and debt;
- If minor children are involved, a parenting plan that spells out custody and visitation schedules and terms;
- If minor children are involved, a child support order;
- Spousal support, or transfer payments to the other spouse, if legal requirements are met.
- Legal Change of Name
29. How long will the divorce take?
- A divorce decree may be obtained in as little as 90 days if the spouses can amicably settle all legal matters, and as much as 11 months if they cannot.
- At least 90 days must pass before a decree is entered. This is known as the “waiting period”. However, if the parties are unable to settle during the course of the 11 month divorce case schedule, a divorce may not occur until a trial ruling 11 months later (or longer if the trial date is extended for good cause).
30. Do I have to keep my husband’s name after the divorce?
No, you do not have to keep your husband’s name.
31. Will dating while my divorce is pending affect the outcome?
If custody and visitation issues of minor children are in dispute, it may complicate matters and is generally not advised. Otherwise, no.
32. What is a waiting period?
A “waiting period” is the minimum amount of time after filing and serving a petition for dissolution and summons on the other spouse before a divorce can be obtained. The purpose for the waiting period is to prevent impulsive divorces and allow time for reconsideration and possibly reconciliation.
33. What is the “waiting period” in Washington State?
34. What is an uncontested divorce?
An uncontested divorce is one in which the parties have settled the terms for property division, spousal and child support, and the parenting plan (visitation and custody (if applicable)) before filing the petition for divorce, and sign a “joinder” as part of the petition for divorce.
35. When does a divorce case end?
When all legal issues, i.e., property division, spousal support, child support and parenting (if minor children are involved), are settled. If the spouses cannot agree to settlement, a trial is held and a trial judge issues a ruling on all legal issues. Whether by settlement or trial, the case ends when a “Decree of Divorce of Marriage” order is signed by the court and filed as a matter of public record.
36. Is there an alternative to going to trial?
Yes. Trial only occurs if settlement isn’t reached after filing starting a divorce case. Parties can attempt to settle by direct negotiations, divorce mediation, and the collaborative law process. Private arbitration is also an alternative to trial.
36. What is Mediation?
Mediation is the process by which a neutral third party mediator attempt to facilitate settlement between the two parties. A mediator has no authority to issue a ruling. Their only role is to attempt to get the parties to settle.
37. How do mediators settle family law cases?
Mediators use various methods. However, mediation starts with finding out basic case facts such as the parties’ values of assets and debts, focusing initially on agreed facts, then moving toward resolving disputed ones. Each party’s position on disputed facts is articulated, with documents and other evidence given to corroborate them.During the mediation session, a mediator will try to access a party’s needs and understanding of what’s fair, which may be different than their legal position and unknown to the other party. Settlement is easier to reach if each party’s needs are addressed directly.
38. Can a mediator give legal advice?
No. A mediator is not permitted to provide legal advice. However, they can convey general legal information to help guide the parties.
39. Do I need a lawyer with me at mediation?
No, but it is advised to consult with a lawyer in advance to know your legal rights prior to mediation.
40. What is Arbitration?
Arbitration is the process by an agreed privately hired attorney or former Judge is given the legal authority to issue rulings. Their rulings are binding, just like a Judge’s rulings. Parties may also expedite rulings by deciding the process for presenting their case.
Alimony (Spousal Support) in Washington State
41. What is spousal support?
Alimony, known as spousal support or maintenance in Washington State, is money paid by one spouse to the other. Their general purpose is to help pay for ongoing monthly expenses.
42. When is spousal support granted?
It may be granted when one party has the ability to pay spousal support, and the other has a need for it. “Need” may not be limited to support to cover basic necessities. The parties’ standard of living during the marriage is a factor in determining “need” in high asset divorces. How long you’ve been married is also a very important factor in determing whether spousal support is granted, and for how long. Other important factors in determing amount and duration are the incomes of both parties, their health, age, and their overall economic circumstances.
43. Do I have to pay spousal support if my spouse just doesn’t want to work?
Maybe, but if the court believes a spouse is capable of working but chooses not to, the law assumes they are working full-time (at least 35 hours per week) and “imputes” that income to reduce their spousal support amount. This also applies to child support.
Child Support in Washington State
44. What is Child Support?
Child support is money paid by one spouse to the other to pay for the child’s expenses.
45. Do I have to be married to the other person to get Child Support?
No. Unmarried parents must still pay child support.
46. Can the other parent and I agree on the amount of child support?
No. It must be calculated, based on net incomes and age of the child(ren), according to the Washington State Child Support Schedule and then made part of a child support order reviewed and signed by a Judge.
47. How long does a person have to pay child support?
Generally until a child is 18 years old or graduates high school, whichever occurs later. Beyond that, child support is not mandatory subject to narrow exceptions (disabled dependent child, etc.). Post-secondary, or college expenses, are not required to be paid by law, but may be awarded under certain circumstances.
48. Do I still need to pay child support in a 50/50 parenting plan?
Maybe. Generally, having significant residential time with a child is a legal basis to reduce and sometimes eliminate child support. However, a court will only reduce child support to the extent the parent receiving support will be left with sufficient funds to meet the basic needs of the child. A court will not reduce child support if the child is receiving temporary assistance for needy families.
49. What if a party is not paying the ordered child support?
Past-child support becomes due, collects interest, and is subject to contempt proceedings by the State or other parent at any time up to 10 years after the youngest child covered by the order turns.
50. Can I force the other parent to give an accounting of how my monthly child support transfer payment is being spent?