One of the heaviest doors to open is the one that leads to your first meeting with a divorce lawyer. In addition to all the emotional stress of separating from your life partner, there are usually an endless number of questions about the path you are about to travel.
Having met with countless clients who are facing family law actions, I have found that knowledge helps calm nerves and relieve some of the stress. To that end, one of my primary roles throughout my relationship with my clients is to help educate them about the process – what to expect, what tasks they will have to do, and how I advocate for their rights.
Below are some general answers to the top questions I get from people during my initial consultations. The answers provided are not intended to be legal advice. Family law matters are highly fact specific. If you need legal counsel, please consult a lawyer about your individual situation.
1. How much child support will I get or have to pay?
Child support in Washington is calculated using a standard formula based on the number of children, age of the children, who the children are living with, and combined household income. The total amount of child support owed is apportioned between the two parents according to the percentage of income each parent earns.
For example, imagine a family where one parent earns $100,000 per year and the other parent earns $25,000. They have three children under the age of 12 that live with the parent who makes the smaller amount. The total child support obligation for three young children in a family that makes $125,000 per year is $2925 per month. The high wage earner makes 80% of the household income, so he would pay the other spouse 80% of the monthly obligation, or $2340.
It seems like a simple math problem, but a lot of fighting happens over the amount of income each spouse earns, because you can deduct a variety of things such as income taxes, professional dues, voluntary retirement contributions, maintenance to another former spouse, etc. If one spouse is unemployed or underemployed, it may also be possible to impute income to that spouse based on historical earnings or other factors. Finally, there is a question of deductions and deviations for health care, day care, education, maintenance being paid for other children, and time spent with the kids.
It pays to talk to an experienced attorney about your circumstances, but you can noodle around with the numbers on the state’s child support calculator, here, and get an estimate of what you might expect.
2. Do I qualify for spousal maintenance?
Unlike child support, there is no magic formula for calculating spousal maintenance. A court considers a set of factors to come up with a fair award. These factors include the duration and standard of living during the marriage, and the requesting spouse’s age, physical and emotional condition, and financial obligations. The court also looks at the requesting spouse’s financial resources, such as the separate or community property acquired at divorce, and this spouse’s ability to self-support. Likewise, the court evaluates the other spouse’s ability to pay.
Especially in the case of a long marriage, a dependent spouse may need additional education or training to achieve financial independence. Where this is the case, a court also considers, among other factors, the time necessary for the requesting spouse to complete training and find employment that is appropriate to this spouse’s skills and interests.
In addition to these listed factors, a court is free to look at anything else that impacts the spouses’ financial well-being after divorce. It also has wide discretion in how the payments are structured. For example, a court could order payments to be made on a temporary basis, permanently, or a combination of the two. Also, payments could be made in lump sum, periodically, or both.
You can read more about the law on spousal maintenance in RCW 26.09.090.
3. I want full custody. How do I get it?
While other states use “legal custody” and “physical custody,” Washington designates one parent as the “primary residential parent.” What most people think of as “joint custody” is what we call a “shared residential schedule” in which the child spends a portion of the time with each parent.
When determining who the primary residential parent is and the child’s residential schedule, a court must consider the following factors:
- The relative strength, nature, and stability of the child’s relationship with each parent;
- The agreements of the parties, provided they were entered into knowingly and voluntarily;
- Each parent’s past and potential for future performance of parenting functions as defined in RCW 26.09.004(3), including whether a parent has taken greater responsibility for performing parenting functions relating to the daily needs of the child;
- The emotional needs and developmental level of the child;
- The child’s relationship with siblings and with other significant adults, as well as the child’s involvement with his or her physical surroundings, school, or other significant activities;
- The wishes of the parents and the wishes of a child who is sufficiently mature to express reasoned and independent preferences as to his or her residential schedule; and
- Each parent’s employment schedule.
It is very rare for a court to make a parent the primary residential parent and completely eliminate the other parent’s rights to visitation with their child. The law presumes it is in the children’s best interests to have a relationship with both parents. It does happen in some instances, for example, where there is a history of domestic violence or severe issues that impact the child’s well-being.
4. Do dads have equal rights as moms for getting custody?
Some firms market themselves as “father’s rights” firms. The truth is that while some judges may favor the traditional role model of a family with the mother as the primary caretaker and the father as the sole breadwinner, the choice of who will serve as the primary residential parent and the visitation schedule rests on factors listed above. If both spouses were working full time and sharing parenting duties 50/50, then the father has just as solid an opportunity to be named the primary residential parent as the mother. The court will seek to do what is in the best interests of the children.
5. Is it possible to avoid going to court?
It really depends on the result you want and how badly you want it. It also depends on your spouse’s position. To avoid court, both parties need to take reasonable positions so that they can settle outside of court in mediation – which will save them both a lot of stress, time, and money. But if either party is looking at the process as a way to punish the other spouse, or if either party has unreasonable demands, you are destined to be on the witness stand. And if your spouse has hired a large firm that needs 60% just to cover their overhead, then you may find yourself in court so much that you start to memorize the coffee stand menu and say goodbye to the security guards, who are now your friends.
6. I used to have a shady past. Is that going to factor in to this case?
Washington is a no-fault divorce state, meaning the parties can’t allege that their spouse’s wrongdoing was the cause of the divorce. Instead, most divorces are based on the grounds that the parties have irreconcilable differences that have led to the breakdown of the marriage.
That said, your past behavior may impact the outcome of your divorce, especially your residential schedule with your children. Examples of past behaviors relevant to your divorce include recent suicide attempts, DUI charges, CPS investigations, malingering videos/photos of you online in “compromising” positions. The past is relative, however. If you’ve been sober for more than a year and are actively seeking recovery, or if you can prove (ideally with documentation) that you have changed your ways and reformed the “old you,” your shady past could be a distant memory and irrelevant to a judge or commissioner.
One thing you must do is inform your attorney of everything (even if you don’t think your spouse knows and it won’t come out in court). It is important to that your attorney is prepared in the event that it does arise.
7. How much is this going to cost?
That depends – do you want to send my kids to college or yours? Seriously though, costs of a divorce can range from $2,500 to well over $40,000 just for attorney fees and court costs. It is hard to estimate because there are factors, such as the willingness of the other party to negotiate, type of attorney the other party hires, number of issues you can agree on vs. have to fight about in court, etc. You should always ask for full information about a prospective attorney’s retainer policy, fee structure, and billing practices before hiring.
8. How long will this take?
Divorce can take as little as 90 days or more than a full year. You are in the driver’s seat, but your spouse may drag it out. There may also be strategic reasons (recovery, simultaneous criminal proceedings, bankruptcy, depression, age of children, etc.) that delay the process.
9. This should be simple. Do I really need a lawyer?
There are no simple cases (unless you really don’t care about losing everything). Many divorce attorneys advertise “flat fee” divorces, but you get what you pay for. Washington’s mandatory state forms are adequate to represent yourself, but a bad divorce decree is difficult to undo. It can be much more expensive to pay an attorney to mop up the spills of a bad pro se case than to simply hire a competent attorney.
10. What happens if we get back together? Did I just waste all of my money?!
Even if you and your spouse are in the one-third of one percent of couples that get back together, chances are that you are not wasting your money. Any “retainer” or advance fee deposit that you paid will be held in a trust account in your name. Any amount that has not been earned by your attorney must be refunded to you per the lawyer’s Rules of Professional Conduct.
Carry Porter frequently advises and represents individuals in divorce proceedings. She can be reached at (206) 624-6271.