DOUG SIMPSON MEDIATION | TACOMA • SEATTLE • OLYMPIA • SAN DIEGO •  ONLINE MEDIATION ANYWHERE

DIVORCE AND PARENTING PLAN MEDIATION

 

 

 

Divorce and Parenting Plan Mediation 1

Divorce Mediation—a.k.a Dissolution of Marriage Mediation

Divorce (dissolution of marriage), like other areas of the law, can be legally and factually complex. Mediation of divorce, child custody, parenting, and divorce property settlements, and of spousal support and child support are similarly complex. Below is some additional information about these and other subjects.

Divorce Process Options.

Getting divorced requires filing dissolution-of-marriage paperwork with the courthouse, and, if you have children, parenting-plan paperwork. It’s not all that complicated if spouses agree on everything.

But the devil is in the detail.

But often spouses don’t agree on everything. Some divorces, especially those of longer duration, more in the way of assets, and children have more issues and are more difficult to resolve. In that event, there are several methods of resolving their dispute.

Mediation. The parties work with a neutral mediator helps them achieve agreement on all issues, or narrow the issues of controversy. If they reach agreement on everything, they can record their agreements in a memorandum of agreement, then use that to prepare the solution and parenting paperwork. Spouses who need assistance can hire inexpensive dissolution-paperwork-filing services, or attorneys. Parties can also be represented by attorneys, if they wish, and can have financial professionals, divorce coaches, or others present in mediation if they desire.

  • The chief advantages of mediation are self-determination (you decide all issues), simplicity, speed, confidentiality, and cheaper cost than other alternatives.
  • The chief disadvantage is that mediation typically requires paying the mediator for his or her time.

Collaboration. “Collaborative divorce” is a process in which a collaborative team works together to resolve the dispute. Basically each spouse hires their own lawyer, and also financial experts, divorce coaches, or others who help the spouses resolve all issues and come to grips with the new reality. The lawyers agree that they will not litigate in court if they can’t reach agreement; instead, they will in effect fire themselves, and spouses will need to hire new attorneys if they decide to litigate. As a result the lawyers tend to be very collaborative— they want to get the job done for their clients, and have no incentive to make threats or do other kinds of things that might increase the likelihood of this agreement or litigation.

  • The chief advantage of collaborative divorce is that the spouses have professional advice on all issues and a team who work together to resolve the dispute.
  • The chief disadvantage is cost as there are several professionals involved, each of whom typically charge for their time.

Litigation. Litigation is the process of using the court to decide all issues. Litigation starts with the filing of a petition that gets the ball rolling. The matter will proceed according to court rules, and will typically involve fact investigation (called discovery), motion work, trial preparation and trial. The more contentious the litigation and the more complicated the facts, the more expensive the litigation will be. Ultimately the judge will decide all issues.  Most litigated cases end up settling, often at mediation, before trial occurs.

  • The chief advantage of litigation is that it uses the power of the court to get things done, even if the other side is unwilling to cooperate. As an example, if the other side is hiding evidence of assets, there are specific mechanisms for obtaining that information even if the other side is not cooperating.
  • The chief disadvantages are:
    • Expense, and the expense is driven by the parties contentiousness and complexity of the facts.
    • Lack of self-determination—the judge will decide everything based on facts, law, and argument.
    • Potential appeal and retrial—another go-round that drives up the expense.

What Issues Are Decided in Divorce Mediation?

Divorce involves allocating property, income, debt and details related to parenting of children.

Divorce mediation is a process that allows you to create the necessary agreements that best fit your needs, interests, values, and preferences, while allowing you to focus on the tasks necessary to complete your divorce.

We can help develop parenting plans, and mediate parenting plan disputes.

Can I have a lawyer with me at mediation? How about a divorce coach?

Yes, and yes.

One of the beauties of mediation is that you can do it any way you like, so long as you have agreement from the other side.

Mediation is voluntary. You decide how it occurs. You decide who participates. You decide when it occurs. You decide whether to agree, or not.

Divorce and Parenting Plan Mediation 2

What are the steps for getting divorced in Washington?

In Washington, divorce is referred to as “dissolution of marriage.”

In order to get divorced, at least one of the spouses must make a request to the court for divorce. The request is called a “Petition for Divorce (Dissolution).”  You can get Washington State Divorce court forms here. The petition outlines how you would like property divided, the amount of spousal support you believe you should receive, how you believe debts should be allocated, and your proposed parenting plan for children, as well as other issues.

Because Washington State is a no-fault divorce state, you need not have any specific reason for getting divorced. But you need to acknowledge that the marriage is irretrievably broken and that the spouses are not likely to reconcile. Only one party needs to believe that the marriage is beyond repair; you don’t need both spouses to agree on this issue. RCW 26.09.030

At least one spouse must be a resident of the State of Washington at the time of filing the petition. Other documents that need to be filed to begin the divorce process include a summons, a confidential information form, and a vital statistics form. Dissolution Court forms are here.

The other spouse of course to be informed, and this occurs by serving papers on the other spouse. In order to tell the court that spouse has been served and is aware of the matter is pending, you either need to have the spouse acknowledge receipt of the papers or you need to file a proof of service of the paperwork. Dissolution Court forms are here.

Thereafter, you will need to make financial disclosures, and share them with the other spouse and the court. Ultimately you can expect a court hearing if children are involved, although you may be able to have a summary proceeding if there are no children involved.

If you have an uncontested divorce in Pierce County, Washington, your divorce will follow a streamlined procedure. Here is an information sheet.

How long does it take to get divorced in Washington State?

In Washington State, there is an automatic 90 day waiting period from the time that you file a divorce petition/petition for dissolution of marriage. Depending on how contentious the divorce, it can take up to a year, and sometimes more, until the marriage is finally dissolved.

Should I file for divorce right away?

This is something you should discuss with your attorney.

But in general, be aware that when you file for divorce, it is a matter of public record.

Filing for divorce might keep you from being able to refinance your home. If your home is an item of property to be split between you and your spouse, with one of you remaining in the home, one option might be to refinance the home to decrease the overall living expense, because you and your spouse will now be having to pay for separate living accommodations. So before you file, consider whether you wish to refinance first.

California and Washington are no-fault-divorce states. You need not be the first to file, unless your lawyer advises you otherwise, we wish to file for other reasons.

What is legal separation, and what are the benefits?

Legal separation is an alternative to divorce, an alternative that does not end the marriage.

Sometimes couples decide to legally separate because that is the only way to preserve health insurance, certain federal benefits like Social Security, or tax benefits.

In the State of Washington, legal separation is virtually the same for divorce. Either party can file a petition for divorce/dissolution (provided that at least one spouse is a resident of the state at the time the petition is filed). RCW 26.09.030.

Once filed, there is no automatic 90-day waiting period before a judge can act on the legal-separation request.

During this time, the spouses can negotiate a separation contract that provides for division of assets, income, property, spousal support/maintenance and child support.

Once a court orders legal separation, the spouses must wait six months from that date to make it into a divorce/dissolution. RCW 26.09.150.

What is a separation contract?

A separation contract is an agreement between separating spouses recording agreements about the fundamentals of separating. The purpose of a separation contract is to promote amicable resolution of disputes at the time spouses separate or while the dissolution of marriage is pending. The Washington separation contract statute is RCW 26.09.070.

If and when the spouses file or pursue a dissolution of their marriage, the separation contract is binding upon the court unless it finds, after considering the economic circumstances of the parties and any other relevant evidence, that the separation contract was unfair at the time the spouses entered into the agreement.

Child support may be included in the separation contract. The court will review the child-support provisions for compliance with RCW 26.19.020.

Search Google for Washington separation contract forms.

Can I convert a separation contract into the divorce/dissolution decree?

Yes. Washington’s separation contract code provision exists to help settle spousal disputes that occur at the time of separation and at the time of the filing of a petition for dissolution, until the matter is resolved. In effect, a separation agreement or contract is a temporary agreement subject to being confirmed by a court.

A court will be bound by the spouses’ separation agreement unless it finds that the separation contract was unfair at the time it was signed based upon the economic circumstances of the parties and other relevant evidence. The court also will make sure that he child support provisions of the separation contract are consistent with the guidelines set forth in RCW 26.19.020.

So be sure that when preparing your separation contract that everybody is aware about all of the facts; don’t try to hide something, it will not work in your favor. Be candid. Be honest. Be open. Any effort to pull a fast one will likely be viewed with extreme disfavor by a judge and could end up eliminating portions or even all of your separation contract.

Court forms to assist in converting a separation contract into a divorce decree or dissolution decree are here: Court Forms: Convert Legal Separation to Divorce (Dissolution).

 

Dividing property in divorce.

One of the main tasks and getting a divorce is dividing up property. The purpose is to clarify who owns what property, and who is responsible for the debt.

Property includes personal property, real estate, business interests, professional goodwill, retirement plans, expectancies and even memberships to clubs or involvement in plans like airline mileage plants.

Debts of course include credit cards, mortgages, and also potential liabilities such as potential business losses or claims against you or your business.

Washington, like California, is a community property state. The general concept is that when people marry, all property, income, and debt is shared equally—such property is community property. On the other hand, separate property is property that a spouse either brought with him or her before the marriage, or acquired during the marriage by gift or inheritance. Although courts try to respect a spouse’s separate property, it can be reallocated.

Courts will try to make a just and equitable” division of the property. (RCW 26.09.080.) But this might not be a 50-50 split; , especially where one spouse has been the sole source of income while the other raised kids and stayed out of the workforce.

Another issue is evaluating today’s value of property subject to division so the property can be split fairly. Because money today typically is worth more than the same money in the future, and because sometimes we have an expectancy of property in the future, such as retirement, financial experts often help us evaluate the present-day value of future income or assets.

In dividing property, courts consider many relevant factors, including:

  • The nature and extent of community property.
  • The nature and extent of the separate property.
  • The duration of the marriage.
  • The economic circumstances of each spouse at the time of property division.
  • The desirability of awarding the family home or right to live in the home to one spouse or the other, particularly where children are involved.

Spousal support, a.k.a. maintenance, a.k.a. alimony.

The general concept is that every adult is responsible to do what he or she can to support himself or herself. But this principle is balanced by the fact that in most marriages, particularly with children, there is a division of responsibility that often favors the career and advancement of one spouse versus the other, so that one spouse’s ability to earn income may be unfairly disadvantaged at the end of the marriage—at least for a time.

Washington law leaves a lot of room for argument. Argument tends to be expensive.

According to Washington State law (RCW 26.09.090), courts may award maintenance in amounts and for a length of time that it deems just, without regard to misconduct, and considering a number of factors including, but not limited to these factors:

  • The financial resources of the party seeking maintenance, including separate or community are pretty apportioned to him or her, and his or her ability to meet his or her needs independently, including the extent to which a provision for support of a child living with a party includes a sum for that party.
  • The time necessary to acquire education and training.
  • The standard of living established during the marriage.
  • The duration of the marriage.
  • The age, physical, and emotional condition as well as the financial obligations of the spouse seeking spousal support.
  • The ability of the paying spouse to pay spousal support.

In 1982, a prominent judge, Judge Winsor, wrote an article attempting to bring some semblance of clarity to the issues. The strategy he wrote about have become rules of thumb or norms. The norms are as follows, although courts are free to do whatever they want—whatever the court deems “just,” in its opinion, which is the only opinion that matters in a contested divorce proceeding because the judge decides.

  • Temporary spousal support, while the divorce is pending: Spouses have the duty of supporting one another even while the parties are going through the process of divorce.
    • A court might order temporary spousal support while the matter is pending, which often takes a year or so.
    • A court might award temporary spousal support while the case is pending even where neither party is likely to be awarded spousal support at the end of the case.
    • Temporary support orders sometimes incentivize the party receiving spousal support to drag his or her feet and not get the matter to trial or to settle the case because the temporary-spousal-support order ensures some income for that party. But sometimes the party paying temporary spousal support can buy out the duty to pay so that the matter can be resolved.
  • Short-term marriages, roughly 0 to 5 years: For short-term marriages, from roughly zero through three to five years, courts often will try to put parties back in the financial position they were in before the marriage.
    • Often courts will award spousal support for a few months, or a short while, while the spouse who earn less gets back in his or her feet. The payments taper off quickly, or abruptly end typically, and generally never extend beyond the entry of the divorce decree.
    • Where both parties are healthy and able to work, the court is unlikely to award any spousal support in a marriage lasting only a couple of years.
  • Medium-length marriages, marriages of between 5 and 25 years: there is a lack of consistency in spousal-support orders.
    • As a rule of thumb, courts will award approximately one year of spousal support for every three or four years of marriage.
    • Many judges will order spousal support for somewhere between 20% and 33% of the length of the marriage.
    • But there is no explicit law or formula requiring this or another method of determining a spousal support award. And the amounts will typically taper off over time.
  • Long-term marriages, 25 years or longer: For marriages of 25 years or longer, courts often try to equalize the financial status of the spouses for the duration of their lives, or at least for many years. This sometimes means that property is divided 50-50 and incomes are equalized via spousal support to the party earning less income.
  • Effect of child support. Many judges will dramatically reduce maintenance wards where a spouse receives child-support. The concept is that payments for support of the child include items such as partial rent or utilities from which the custodial spouse benefits.

Child support.

Parents are required to financially support their children. Child support is the primary tool used in divorce to ensure that both parents make financial contributions to their children’s support.

Child-support typically has two components:

  • A monthly payment (or other periodic payment).
  • A sharing of certain expenses.

In Washington, the court’s determination of child support generally is made with reference to worksheets or calculators that presume a percentage sharing based on the parents’ net incomes. One such worksheet is here. This is a presumed amount, but not necessarily and automatically ordered amount. There may be unique circumstances requiring departure from the schedule.

In court, the court will typically determine the total income of the parents, reference the presumptive child-support level from the child support worksheets, whether to deviate from the presumptive child-support payment, then allocate the child support obligation.

Mediating parties will agree on child-support payments will ultimately become a court order. The order for child-support payments can be modified based on changes in circumstances, , but only applies future payments, not past payments. So if you have a change of circumstances, you will need to modify the court order before being entitled to a change in child-support payments.

What is a parenting plan, and what does it have to do with child custody?

Parenting plan sets forth the details of child custody, such as how the children will spend their time, and with whom. It may specify a specific schedule of days in a calendar, pickup and drop-off times, holidays, and vacations.

Parents are free to agree to a parenting plan as they negotiate their divorce. Once the parties agree to a parenting plan, ultimately parenting plan will be given to the court will enter an order requiring both parties to comply with plan.

But if the parents can’t agree on the terms of the parenting plan, ultimately court will decide for the parents.

Parents should take care in creating a parenting agreement because they can be difficult or expensive to change once they have been added to a court order. Courts take parenting plans in the duties required very seriously— they become part of the court order that the court can enforce by contempt orders.

In order to get a parenting plan/order modified, a parent will need to move the court for an order. RCW 26.09.260. The basis of the order is a substantial change of circumstances arising after entry of the order on the prior parenting plan, and that the modification is in the interests of the child.

Courts discourage major changes in parenting plans, because Washington State leaves instability of parenting arrangements once made. RCW 26.09.002. In order to get a major change made, you might need to attend an adequate cause hearing in order to see whether a court is likely to even consider a major change in the parenting plan.

More about parenting plans.

Locations Served

Doug Simpson is one of a few certified mediators in Tacoma, Washington—and one of a few certified mediators in Seattle, Bellevue, and Olympia too. With special arrangements, he is available as a mediator in San Diego and Los Angeles also. No matter where you are, though, he can arrange a virtual online mediation.

Mediations can take place at anyone’s attorney’s office, subject to the parties’ agreement, at a local Regus office (see locations below), or other spaces with appropriate conference rooms to accommodate the expected size of the mediation.

Doug is one of a few divorce mediators in Tacoma and Puyallup. He also is a Seattle and Bellevue divorce mediator, and practices collaborative law (civil) and collaborative divorce.

As indicated on the practice areas page, he mediates business disputes, environmental civil litigation, insurance claims and other matters also.

Regus office locations:

  • Tacoma: 1201 Pacific Ave, Tacoma, WA 98402
  • Seattle: Columbia Tower, 701 Fifth Avenue, Seattle, WA 98104
  • Olympia: 400 Union Ave SE Suite 200, Olympia, WA 98501
  • Bellevue: Skyline Tower, 10900 NE 4th St, Bellevue, WA 98004
  • San Diego: 350 10th Avenue, Suite 1000, San Diego, CA 92101

CONTACT ME
OR ASK QUESTIONS

13 + 5 =

Divorce and Parenting Plan Mediation 3