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Anatomy of a Divorce

The process of breaking up a marriage is often complicated. The assets must be divided; responsibility for the marital debts must be assigned; and when children are involved, their care and support must be arranged. Because marriages are all unique, divorces are not formulaic. Judges have much discretion in fashioning an equitable split. The legal process supports the judge in being as fair as possible. This letter explains that process.

The End Results

Divorces accomplish several tasks. These include:

  • Change in Marital Status. A divorce changes the marital status of each spouse from “married” to “single.”
  • Division of Property. The court usually awards to one spouse or the other ownership of each and every asset that the spouses owned. It also assigns to one spouse or the other responsibility for each marital debt. Spouses can end up jointly owning property or jointly responsible for satisfying debts. But this is rare, and usually occurs only by the agreement of the spouses. A court cannot adjust the relationship between a creditor and the spouses. So, even if a court assigns responsibility for a debt to one spouse, the other spouse is still liable to the creditor, such as the holder of a mortgage, and could be called upon to pay the debt if the spouse to whom the debt was assigned fails to do so.
  • Spousal Maintenance. The court can order one spouse to pay the other spouse money for a period of time. This occurs when there is an economic inequality between the spouses that cannot be satisfied through an unequal division of property. The greater the inequality and the longer the marriage, the more likely that spousal maintenance will be ordered, the larger the payment may be, and the longer the payments may last. Unless the parties agree otherwise, spousal maintenance can be modified by the court later if circumstances change in an unanticipated manner.
  • Attorney Fees and Costs. When one spouse cannot afford his or her litigation costs, and the other spouse has the ability to pay, then the court can order the better-off spouse to pay some or all of the litigation costs of the other spouse. A spouse may be ordered to pay attorney fees and costs for intransigence that increases the cost of litigation, such as a refusal to cooperate with a valid court order.
  • Protection Orders and Restraining Orders. In cases where a spouse’s or a child’s well-being is threatened, the court can fashion orders to protect the threatened person.
  • Name Change. One or both of the spouses can have their names changed as part of the divorce. Traditionally the wife changes her name back to her maiden name. But this is not required.
  • Parenting Plan. When there are minor children involved, the court will enter a parenting plan. Parenting plans determine where the children will reside at each moment, how they are transported from one household to the other, who makes important decisions in the children’s lives, and other miscellaneous decisions. Parenting plans usually are intended to last until the children are adults and graduated from high school. Generally, they can be modified only upon a substantial change in circumstances.
  • Child Support. Most often, the expenses of the children are paid primarily by one of the spouses. The other spouse then pays child support. In Washington, child support is determined using a formula based on the income of the spouses. Under certain circumstances, the formula-based support figures can be modified upward or downward. Child support is easily modified periodically as financial conditions change.
  • Post-secondary Education Support. When the children are going to college, a court can order the parents to pay for some or all of this education. The amount the court will order depends on the economic circumstances of the spouses and the family’s expectations for the children’s post-secondary education. Often, only the tuition, fees, and books are paid for, although there is no rule on this. If the children are younger, the court “reserves” this issue to decide at a more appropriate time.

Not all of these are decided in every divorce. Of course, there is no need to determine a parenting plan and child support if there are no minor children of the marriage. In some cases, the court does not have the jurisdiction to decide all of these issues, such as when a spouse moves into Washington State and files for divorce here.

Divorce Procedure

Divorces have a flow that includes some or all of the following steps.

  1. Initial Filing in Court. A divorce starts with one of the spouses, called the petitioner, filing a petition and summons with the court. The petition asks the court to perform some or all of the tasks listed above. Typically, the petition does not suggest a division of assets and debts, although it can. The petitioner may file a proposed parenting plan and child support worksheet as part of the initial filing or may file these later. The other spouse, called the respondent, can “join” the petition, which means that he or she agrees with everything stated in it.
  2. Service Upon Respondent. Unless the respondent joins the petition, the divorce does not really get going until the petitioner serves the initial paperwork on the respondent. Typically, a process server or police officer hands the paperwork directly to the respondent. The petitioner cannot serve the paperwork on the respondent his or herself. There are alternative methods of service, such as publication in a newspaper, when direct service is not possible. Also, the respondent can “accept service” by signing a piece of paper that states that he or she has received the paperwork. Acceptance of service often occurs when the spouses are cooperating at least somewhat in obtaining a divorce.
  3. The Response. The respondent has a period of time, usually 20 days, to file a response to a petition. Usually this is a simple filing that is not very informative. But, by doing so, the respondent becomes fully a part of the case. In family law cases, this step is sometimes skipped.
  4. Temporary Orders. In high conflict cases, temporary orders may be necessary to keep the situation from unraveling while the case is pending. Temporary orders may address short-term financial issues such as access to financial resources and temporary support, temporary possession of property such as the family home or vehicle, and/or a temporary parenting plan. Either party may move for temporary orders. The petitioner may make a motion for temporary orders at the same time that he or she files the petition itself. The court will hear the motion for temporary orders two to three weeks after the motion is filed. The court makes its decision entirely on the affidavits that the parties file. It does not typically consider oral testimony. Thus, the proceeding is quick. Temporary orders last at most until the final decree and orders are entered.
  5. If one party does not have all of the information he or she needs in the proceeding, that party may make formal requests to the other party for that information. These requests often take the form of written questions that the other party must answer, documents that the other party must produce, and oral questions at a deposition. The responding party must make his or her response under penalty of perjury. And, there are time limits governing those responses.
  6. Guardian ad Litem. In cases involving minor children, the court can appoint a guardian ad litem (GAL). A GAL becomes a party to the case and essentially represents the children’s best interests. The GAL investigates the children’s situation and makes recommendations regarding the parenting plan and potentially other matters such as who gets the family home. The GAL’s report helps the judge, who is sitting on a bench and is unable to conduct an independent investigation, to understand all of the details necessary to make good decisions for the children. The cost of the GAL is usually split between the parents based on their abilities to pay. In rare circumstances, the county helps to pay for the GAL. In some difficult cases, a professional parenting evaluator, who is usually a psychologist (PhD), does the investigation but is not a party to the case.
  7. Nearly every family law case in which the parties cannot reach agreement end up in mediation. In fact, with some exceptions, mediation is required in every case absence prior agreement. Typically, each of the parties are in separate, nearby rooms with their attorneys, and a mediator shuttles offers to settle the issues of the case back and forth. Good mediators are well versed in family law and can help get parties to see the reality of their legal situations. However, mediators cannot make any decisions. The parties must ultimately agree in order for mediation to be successful. Nevertheless, more than 80% of mediations are successful.
  8. If the parties cannot agree on how to settle the case, the case must go to trial. In a trial, the court takes oral testimony and considers documentary evidence. At the end, the court decides all of the issues. Parties can agree to some of the issues and put the balance of the issues before the court to save expense. If the only issue is child support, the court typically decides the proper amount of support viewing only affidavits. But otherwise, a court generally cannot consider affidavits of witnesses but must hear their testimony directly. Less than 1 in 20 cases go to trial.

The only steps that are mandatory in a divorce is the filing of the petition and either the service of the petition on the respondent or acceptance of service by the respondent. If the parties agree, then the court can enter final paperwork without all the fuss and even without either party appearing before the court. In high-conflict cases involving children, all of the steps above may be necessary.

The parties cannot have a divorce finalized until 90 days have passed since the petition is filed and served on the respondent. Unless the parties are basically in agreement from the beginning on how to resolve the case, then resolving the case will take more than 90 days and typically take 6 to 18 months if prosecuted diligently.

This website provides general information to the public on legal issues. These informational materials are not intended, and should not be taken, as legal advice on any particular set of facts or circumstances. You should contact Brandli Law for advice on specific legal problems.

Brandli Law PLLC * One Front Street North, Ste. D-2 * PO Box 850, Friday Harbor, WA 98250 * (360) 378-5544