Important Issues in Family Law and Divorce

Clearwater Law Group | 5205 West Clearwater Avenue | Kennewick, WA 99336 | (509) 734-8500

Important Issues in Family Law and Divorce
Clearwater Law Group
Kennewick Family Law Attorneys and Divorce Lawyers
As a full service law firm located in Kennewick, WA and serving the entire Tri-cities area of
Kennewick, Pasco and Richland WA, we get many questions concerning Family Law and
Divorce. This will address many of those questions and give the reader a clear understanding
of the wide and varying legal services that fall under Family Law.
Please understand that everything discussed here applies to Washington State, and you need
to check the laws in the state in which you reside pertaining to these issues, as every state is
different.
Family law (also called matrimonial law) is an area of the law that deals with family matters
and domestic relations, including: marriage, civil unions and domestic partnerships;
establishment of paternity, adoption, guardianship, and non-parental custody.
Let's tackle the biggest one first. Since Family law includes marriage, divorce is top of the list.
Divorce:
As Divorce Lawyers in Tri-Cities, we have an abundance of expertise with all manner of
divorce cases, as well as with all of the legal issues which relate to a divorce. In order to keep
this fairly simple, we will focus on the main issues that arise in virtually any divorce scenario
we see.
The main five issues in a divorce case are:
1. Dissolution of the marriage.
2. Property and debt division.
3. Child custody and visitation.
4. Child support.
5. Spousal maintenance.
We will address each of these Divorce issues below.
Dissolution Of The Marriage:
Because a divorce case involves the breakup of the family, it can be fraught with emotional
decision making by the divorcing parties. That can get in the way of properly resolving the
dissolution of the marriage and its related issues. Our firm encourages you to try to leave your
emotions aside – and, instead, make sober and responsible decisions about how to resolve
your divorce issues. If both parties with do that, it will keep the legal fees and costs down for
both sides, which is a good thing. It is better for the divorcing parties to spend their money on
themselves and their family, rather than spending it on emotional efforts to “beat” the other
side. In the end, nobody hits a grand slam home run in a divorce case.

Washington State is a “no fault” divorce state. That means that the only grounds for divorce is
that “the marriage is irretrievably broken.” So, in terms of a married person’s entitlement to
obtain a divorce, other ground for divorce which historically (but no longer) had to be proved
in order to obtain a divorce – e.g., mental cruelty, adultery, physical abuse, or etc. – are
irrelevant. Any married person is entitled to obtain a divorce, so long as the person asserts in
the divorce petition that “the marriage is irretrievably broken.”
Once the divorce petition is filed and served on the other side, there is a statutory 90-day
waiting period which must run before your divorce case can be finalized. Our local court
system has procedures in place to assist the parties with moving their case along to
completion. For example, there is an in-court Mandatory Status Conference process which is
designed to keep the court apprised about any particular issues in your case which might
require special handling. For another example, the parties will be required to participate in a
Mediation, which is designed to assist the parties with reaching a global settlement of all of
their issues, so they won’t have to bear the additional time and expense of going to trial. If the
parties are unable to resolve their issues via Mediation, their case will be set for a trial – at
which a judge will decide how the parties’ various issues will be resolved. (Jury trials are
inapplicable to divorce cases.) We will advise and assist you during all of the stages of your
case.
Property And Debt Division:
Washington State is a “community property” state. So, all property obtained by either party
during the marriage is presumed to be community property. Likewise, all debts incurred by
either party during the marriage are presumed to be community debts. Also, certain types of
property are regarded as the separate property of one of the spouses – and certain types of
debts are regarded as the separate debts of one of the spouses. Those include property
obtained (and debts incurred) by the spouse prior to the wedding date and after the date of
the parties physical separation from each other (i.e., when they start living apart). If the
parties’ property and debts are going to be divided by the court at trial (rather than by
agreement at a Mediation), the court will have before it (for dividing between the parties) all of
the parties’ community property and community debt – and all of the parties’ separate
property and separate debt. By statute, the court is required to make “a fair and equitable
distribution” of all of the parties’ property and debt.
Certain kinds of marital assets usually require special handling. For example, if the parties
have ownership in a home or other real estate, and both parties are obligated on the
mortgage, the real estate usually is divided as follows:
One party essentially “buys out” the other party’s interest in the real estate, by refinancing the
real estate in his/her own name, or the real estate is sold and the parties will split the sale
proceeds.
Another example involves certain kinds of investment accounts, e.g., pension accounts,
retirement accounts, mutual fund accounts, 401(k) accounts, IRA accounts, and etc. Such
investment accounts often are in the name of just one of the spouses. The divorce decree will
specify how much of the investment account is to be allocated to the other spouse. The
allocation to the other spouse is then effected with a Qualified Domestic Relations Order –

which is commonly referred to as a QDRO. The QDRO is a court order that is directed to the
plan administrator of the investment account. So, for example, if the husband has $300,000 in
a 401(k) account through his employment, and the divorce decree awards half of his 401(k)
account to the wife, the QDRO will direct the plan administrator for the husband’s existing
401(k) account to create a new and separate 401(k) account in the wife’s name only – and
the QDRO will direct the plan administrator to fund the wife’s new and separate 401(k)
account with $150,000 from the husbands existing 401(k) account. In this example, each
party would then have their own, separate 401(k) account, each with $150,000 in it.
In the end, all of the parties’ personal property, bank accounts, real estate, investment
accounts, and debts will be divided between them. The more property and debt the parties
have, the more complicated the divorce process can be.
Child Custody And Visitation:
If you and your spouse have any minor children together, a Parenting Plan will be entered in
your divorce case. A Parenting Plan is a court order which specifies when the minor children
will spend time with each parent. In the Parenting Plan, one parent will be designated the
“primary residential parent” and the other parent will be designated the “visiting” parent. The
primary residential parent is the parent with whom the minor children will reside a majority of
the time. The Parenting Pan will specify when the minor children will spend time with the
visiting parent. Those specifications will address weekly visitations, holiday visitations,
visitations during the children’s and the parent’s birthdays and other special occasions, school
break visitations, summer visitations, and etc. Unless there are reasons not to do so, typically,
the Parenting Plan will specify that both parents will have “joint decision making” with respect
to which schools the children will attend, which kind of religious upbringing the children will
have, and what kinds of non-emergency medical or dental procedures may be undertaken for
the children (e.g., elective orthodontia). In Washington State, grandparents have no legal
rights to visitation.
A thorny issue can arise after the divorce is finalized – i.e., after the Final Parenting Plan has
been entered: relocation. Relocation is where the primary residential parent wants to move
away (perhaps very far away) with the minor children. Because doing so can tremendously
undermine the visiting parent’s opportunities to spend time with the children, the primary
residential parent must apply for a court order authorizing any such move. The court will
address certain statutorily designated factors in determining whether to authorize the primary
residential parent to move away with the minor children.
Child Support:
The court will require an Order of Child Support to be entered to provide financial support for
the minor children. Because this issue involves the parties’ finances, the parties will be
required to produce their last 2 year’s tax returns and written verification of their last 6 months
of income. The parties’ income figures are then used to generate the Child Support
Worksheets. Although, theoretically, this can be done manually, that is very hard to do
(especially to do it correctly). We have the FamilySoft® software, which is continually updated
by the manufacturer, to accomplish the task. The Child Support Worksheets will identify the
monthly amount of child support that the visiting parent will be required to pay to the primary
residential parent for the financial support of the children. Then, the court will enter its Order

of Child Support reflecting that monthly child support obligation.
The Order of Child Support will also address some other, related issues. For example, it will
specify when the visiting parent’s child support obligation will end; that is typically “when the
child turns 18 or graduates from high school, whichever is later.” Also, the Order of Child
Support will specify, for the future years, which parent will be able to claim which children for
the dependent exemption on their tax returns. Also, it will require the parents to provide
medical insurance, where available – and pay a specified portion of uncovered medical
expenses – for the children. Also, it will specify how (and by when) either parent can have the
issue of “post-secondary educational support” addressed by the court with respect to a child.
Post-secondary education support refers to the parents’ obligations to financially assist their
child with trade school or college expenses, even after the child no longer is a minor.
Spousal Maintenance:
Spousal maintenance (sometimes referred to as spousal support) is another issue which the
court might be called upon to address in a divorce case. of course, one of the problems a
divorce creates is that the two parties now must live separately – and, overall, it is more
expensive for two to live separately than together. So, if the two parties have an appreciable
difference in income, the lesser-income spouse might ask the court for an award of spousal
maintenance.
Spousal maintenance is statutorily designed to be temporary, rather than permanent. Its
purpose is to provide the lesser-income party some additional income to enable him/her to get
further job training or education – so as to enable that party to begin making more income.
(That said, if the lesser-income party already is retired, the purpose of spousal maintenance
really is to provide additional income to the party, without the need for requiring that party to
seek further job training or education.) The monthly amount and the duration of the spousal
maintenance award will largely be dependent upon four factors:
1. The length of the marriage.
2. The life station of the parties.
3. The requesting party’s degree of financial need
4. The other party’s financial ability to pay
A spousal maintenance award of a required duration typically will end sooner upon (1) the
death of either party or (2) the remarriage of the party receiving the spousal maintenance.
Spousal maintenance payments, unlike child support payments, are regarded as an income-
shifting mechanism. So, the party paying the spousal maintenance gets to deduct the
payments for income tax purposes. Therefore, the party receiving the spousal maintenance
must declare the payments as income for tax purposes.
As you can see, going through a divorce can be a very complicated and emotionally straining
process. Many issues in addition to those discussed above can arise. With our abundance of
expertise with divorce cases, our divorce attorneys will reasonably guide you through the
entire divorce process.
In addition to divorce, family law encompasses a great variety of legal issues. Our

experienced Family Law attorneys effectively represent our clients with respect to those
additional legal issues, as well.
Property and Debt Division for the Dissolution of a Meretricious Relationship
As you recall, our definition of Family Law included all relationships, so can involve the legal
dissolution of those relationships as well.
A “meretricious relationship” refers to an unmarried couple who has been living together. A
meretricious relationship also is referred to in the case law as a “committed, intimate
relationship” or an “equity relationship.” How the court handles the division of the parties’
property and debts when their meretricious relationship is dissolving is described in the case
law, as follows:
A meretricious relationship is a “stable, marital-like relationship where both parties cohabit
with knowledge that a lawful marriage between them does not exist.”
The use of such terms as “marital-like” or “marriage-like” are mere analogies because
defining meretricious relationships as related to marriage would create a de facto common-
law marriage, which our Supreme Court has refused to do. When a meretricious relationship
terminates, the trial court must use a three-prong analysis for disposing of property.
First, the trial court must determine whether a meretricious relationship exists. Accordingly,
the trial court analyzed five relevant factors:
1. The purpose of the relationship.
2. The pooling of resources and services for joint projects.
3. The intent of the parties.
4. The degree of continuous cohabitation.
5. The duration of the relationship.
These factors are neither “exclusive nor hypertechnical.” These factors are meant to reach all
relevant evidence helpful in establishing whether a meretricious relationship exists. Thus,
whether a relationship is properly characterized as meretricious depends on the facts of each
case.
Second, if such a relationship exists, the trial court evaluates the interest each party has in
the property acquired during the relationship.
“The critical focus is on property that would have been characterized as community property
had the parties been married.”
Both the property owned by each party before the relationship and the property that would
have been characterized as separate property had the couple been married should not be
before the court for distribution at the end of the relationship.
While property acquired during a meretricious relationship is presumed to belong to both
parties, this presumption can be rebutted. If the presumption is not rebutted, the trial court
may look to the dissolution statue, RCW 26.09.080, for guidance in fairly and equitably

distributing the property acquired during a meretricious relationship.
Third, the trial court must make a just and equitable distribution of such property. The trial
court may consider all relevant factors, including but not limited to, the nature and extent of
the community property and the economic circumstances of each spouse at the time the
division of the property is to become effective. RCW 26.09.080. Therefore, “The court may
consider the health and ages of the parties, their prospects for future earnings, their education
and employment histories, their necessities and financial abilities, their foreseeable future
acquisitions and obligations, and whether ownership of the property is attributable to the…
efforts of one or both spouses.” Finally, when distributing the community property, the trial
court’s paramount concern should be the economic condition in which it leaves the parties.
Establishment of Paternity (or Parentage)
When a married woman bears a child, the law presumes her husband to be the father of the
child; the law regards the husband as the child’s “presumed father.” As long as his status as
the presumed father never is successfully challenged, he is the father of the child for all legal
purposes. For example, if the parents divorce, he has the full right to spend time with the
child according to the parties’ Parenting Plan and he has the full obligation to support the child
pursuant to the parties’ Order of Child Support. Also, inheritance rights as between the child
and the presumed father are fully recognized.
However, when an unmarried woman bears a child, the law does not presume anybody to be
the father of the child. (That is true regardless of whether the woman is cohabiting with a man
at the time of the birth.) It may occur that a man is at the hospital during the birth – and he
may have there signed an Acknowledgement of Paternity and had his name placed upon the
child’s Birth Certificate, identifying himself as the child’s father. In such events, the law
regards that man only as the child’s “acknowledged father.” That is a low-level status of
fatherhood under the law. Therefore, his right to be regarded as the father of the child for all
legal purposes requires that his “paternity” (fatherhood) be judicially established in a paternity
case.
Sometimes the paternity case is initiated by the State or by the mother against an alleged
father, because child support is being sought from the alleged father. Sometimes the paternity
case is initiated by the alleged father himself, because he wants to get a Parenting Plan
entered with the court, so he can spend time with his child. No matter who initiates the
paternity case, if the other party often doesn’t contest the alleged father’s paternity, in which
case a court Decree Establishing Paternity is pretty easily obtained. Where the other party
does contest the alleged father’s paternity, the court will order a blood test (DNA test), to
determine whether the child and the alleged father are a DNA match. If the result is that they
are not a DNA match, the paternity action will be dismissed with respect to the alleged father.
If they are a DNA match, a court Decree Establishing Paternity will be entered, judicially
establishing the alleged father to be the father of the child for all legal purposes. The resulting
Parenting Plan and Order of Child Support will be entered as part of the paternity case.
Non-Parental Custody (Third-Party Custody):
There are a variety of reasons why someone other than a biological parent might petition the
court for custody of a minor child. The biological parents might be deceased, in prison,

addicted to drugs or alcohol, or homeless – or may have abandoned the child. In such
instances where neither biological parent is available to exercise custody of the minor child, a
friend or other family member might step forward to petition the court for custody of the child,
so a to avoid having the child going into foster care. The case law describes the standard for
seeking non-parental custody of a minor child as follows:
We also note that the third party custody statutes place “a high threshold burden on a
petitioner seeking non-parental custody.” To meet this heightened standard, a party seeking
to interfere with a parent’s liberty interest in the custody of her children must show that the
parent is either unfit or custody with the parent would result in actual detriment to the child’s
growth and development. For the purposes of non-parental custody, our Supreme Court as
stated, “A parent is unfit if he or she cannot meet a child’s basic needs.”
If a party successfully obtains a Non-Parental Custody Decree from the court, that does not
necessarily decide the issue for the entire remainder of the child’s status as a minor. Rather,
the law still would prefer a biological parent to have custody of the child. So, for example, if a
minor child’s biological mother is deceased and his biological father has abandoned the child,
a set of the child’s grandparents might successfully obtain a Non-Parental Custody Decree
from the court. However, later (even quite a lot later), if the biological father shows up again
and wants to now undertake his responsibilities as the child’s parent, the court will explore
ways to restore the biological father’s custody rights, so long as the father can persuasively
demonstrate that he no longer is unfit and his having custody of the child no longer would
result in an actual detriment to the child’s growth and development. So, persons seeking to
obtain non-parental custody of a child should be mindful that, even if they are successful, their
success might be only temporary.
Guardianships:
Some children are so severely disabled that they cannot fend for themselves or make
decisions on their own behalf. That could be because of a physical disability (e.g., cerebral
palsy, spina bifida, or etc.) and/or a mental disability. The child may have been born with the
condition, or obtained it through an accident or illness. While the child is a minor, there is no
need for his parents to obtain a guardianship over him. His parents have full legal authority
and decision making control over him in the same manner that all parents have full legal
authority and decision making control over their minor children. However, once the child turns
18 and thereby becomes an adult, his parents’ legal authority over him ceases, unless they
obtain a guardianship over him. Without the guardianship, doctors’ offices, care givers,
banking institutions, and stores would be required to deal directly with the new adult. Because
that is not possible in the case of the severely disabled (now) adult, his parents will need to
obtain a guardianship over him, so that they can continue to look out for him, make decisions
on his behalf, and communicate those decisions to others.
Sometimes the parents of the adult child are unable to unwilling to perform such guardianship
duties. If so, another person (perhaps another family member) can step forward to seek to
become the guardian. Or, the court can appoint some other qualified guardian. The guardian
could even be a professional guardian” – i.e., someone who is certified by the State to
perform guardianship services for others. Whomever the guardian will be, the proposed
guardian has to undertake some court-ordered guardianship training in order to be appointed
as the actual guardian. Generally, once a guardianship over a person is approved by the

court, the court retains jurisdiction over the guardianship case – and the guardian has some
ongoing duties to report and account to the court with respect to how the guardianship is
going over time.
Adoptions:
There are two, main types of adoptions. First, there is the couple who wants to adopt a child
who has no biological connection to either of them. The source of the child could be from
someone the couple knows or from a complete stranger (as is the case when the child is
identified through an adoption agency). Second, is the so-called “step parent adoption,” where
a person wants to adopt the child of his/her spouse. It is very common that, in the case of a
step parent adoption, the child, the child’s biological parent, and that parent’s spouse already
have been living together for quite some time before the adoption case is commenced. The
remaining discussion assumes a mother has a minor daughter, the mother later marries a
man, and the married couple and the child have been living together for 2 years by the time
they commence the adoption case.
In order for the adoption to be approved, the child’s biological father must agree to the
termination of his parental rights. If he will not so agree, the adoption can only be
accomplished if the court forcibly terminate the biological father’s parental rights. That can
happen where the biological father hasn’t had much (or any) contact with the child, such that
the child barely knows (or doesn’t know) who he is, and where the biological father has not
been providing financial support for the child. Often, even in those circumstances, the
biological father will willingly agree to the termination of his parental rights (not the least of
which because, thereafter, he will not incur any additional child support obligation with respect
to the child). In any event, assuming the biological father’s rights will get terminated, the court
will need some additional information before it will approve the adoption.
The court will appoint a person to perform a “home study” of the couple’s home. The
appointed person will make a visit or two to the home to interview the couple and the child (if
the child is old enough to be interviewed), as well as anyone else living in the home. The
appointed person also will inspect the home to assess how things appear with respect to the
child’s surroundings, bedroom, accommodations, etc. That person also will make contact with
other persons close to the couple and child (e.g., the couple’s siblings or friends, perhaps the
child’s teacher), to determine their opinion about the proposed adoption. After all of that is
done, the appointed person will write a report for the court, explaining all of the findings, and
recommending either for or against the adoption. Then, a final adoption hearing takes place,
at which the court will decide whether to approve the adoption. If so, the court will enter a
Decree of Adoption. Thereafter, the adoptive father is the father of the child for all legal
purposes and all legal responsibilities. For example, if the couple later divorces, it is the
adoptive father, not the biological father whose paternal rights were terminated in the adoption
case, who will be required to continue to financially support the child.
The topics addressed above are only a few of the non-divorce-related, family law legal issues
with which you may need help. With our abundance of expertise with the great variety of
family law cases, our team of experienced family law attorneys and divorce lawyers will
responsibly guide you through the entire process of your case.

Important Issues in Family Law and Divorce

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Important Issues in Family Law and Divorce