Divorcing a non-resident of Washington state

What if the spouse whom you wish to divorce lives in a foreign country?   Can you still obtain a divorce here in Washington?

If the person seeking the divorce is domiciled in Washington state, Washington courts will have jurisdiction (legal authority) to enter a dissolution decree (divorce) if the other party can be served by a method authorized by Washington’s court rules and statutes.  Specifically, the court has jurisdiction over the marriage and may dissolve it even if the non-resident spouse has never been to Washington state.  However, the court would need to obtain personal jurisdiction over the non-resident spouse to order child support or make a property division.  If the non-resident spouse has never physically been to Washington state, never conducted business in Washington state, or has no other “sufficient” contacts in Washington state, the courts here may not exercise personal jurisdiction over the non-resident spouse. This means that the domiciled spouse seeking the divorce cannot obtain support or a property award against the non-resident spouse.  Of course, if the non-resident spouse has agreed to submit to the jurisdiction of Washington state, then the domiciled spouse could seek support or a property award.

In regard to establishing a custody decree or parenting plan, whether a Washington court can address such issues will depend upon a number of factors.  If the child has always lived in Washington state, and no other state or foreign country has made a custody order about the child, then Washington would have the ability to make a custody determination.  In other situations such as where a child was born in a foreign country, it is essential to determine whether the laws of that foreign country or international conventions  were observed, among other factors.

The civil rules allows for service in a foreign country in a manner prescribed by the laws of that country.  There exists an international treaty called the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters.  These procedures can be very complex, costly and time consuming.

If you find yourself in such a situation, please speak with an experienced attorney to evaluate the facts of your particular situation and make recommendations tailored to your situation.

Drafting Prenuptial Agreements

Over the years, potential clients have approached me to request that I draft a prenuptial agreement.  A prenuptial agreement is a written agreement made by a couple before they marry which determines ownership of their respective assets should the marriage eventually fail.  A prenuptial agreement could include other provisions as well, including matters regarding maintenance or the characterization of property (community or separate).

The first question I always ask a client when approached to prepare such an agreement is:  when are you getting married?  If the wedding date is in close proximity to the date I am contacted, I will decline to draft the prenuptial agreement for the potential client.  Here are the reasons why:

Prenuptial agreements are creatures of caselaw and must be prepared with precision in order to be enforceable in court.  To determine the enforceability of a prenuptial agreement, a court undertakes a two-prong analysis. Under the first prong, the court determines whether the agreement is substantively fair, that is, whether it makes reasonable provision for the spouse not seeking to enforce the agreement.  If the agreement makes a fair and reasonable provision for the spouse not seeking its enforcement, the analysis ends and the court will find the agreement as enforceable.

If, as in most situations, the agreement is substantively unfair to the spouse not seeking enforcement, the court proceeds to the second prong. Under this second prong, the court determines whether the agreement is procedurally fair by asking two questions: (1) whether the spouses made a full disclosure of the amount, character, and value of the property involved and (2) whether the agreement was freely entered into on independent advice from counsel with full knowledge both spouses of their rights. If the court determines the second prong is satisfied, then an otherwise unfair distribution of property is valid and binding upon the parties.

When a potential client seeks to have an attorney draft a prenuptial agreement in close proximity to the wedding date, more often that not wedding invitations have already been sent, wedding arrangements and receptions have been booked, and so forth.  The disadvantaged party may feel coerced or pressured into signing a prenuptial agreement under such circumstances.  Additionally, it may be difficult for parties to effectively make a full disclosure of their assets (real estate with fair market values, IRA, 401(k), automobiles, boats, collections, etc.) and debt (student loans, credit card debt, mortgages, etc.), or for the disadvantaged party seek competent legal counsel to review a draft of a prenuptial agreement with enough time prior to the wedding date.  The bottom line is that a court would likely find that such a document, even if executed, would not be enforceable in the future.

If you find yourself in a situation where you wish to consider a prenuptial agreement, I strongly recommend getting started well in advance of your wedding date – preferably before sending out invitations or announcing the date of the wedding – and each party hiring experienced counsel.

Interstate Custody Disputes

America is a very mobile society.  Decades ago, it wasn’t uncommon to find families who lived in the same town or state for generations.  Today this is very rare.  People often move from one state to another for a variety of reasons, such as obtaining new employment, attending school, or to be closer to extended family.  In families where custody issues arise, this can raise serious and complex legal issues over jurisdiction.

Washington state has the legal authority (jurisdiction) over custody issues if

  • The child has always lived in Washington, and
  • No other state, tribal court, or foreign country has made a custody order about the child.

If another court has already made a custody decision about the child, the Washington court will ask:

  • Does either parent or the child still live in the state that made that decision?
  • If so, did that court have child custody jurisdiction when it made the order?
  • Did the parties in that case have proper notice and the chance to be heard?
  • Is Washington a more convenient forum for issues of custody to be resolved?

If there is no earlier custody decision:

  • Was Washington the child’s “home state” when the case was filed?
  • Has a case been filed in another state with home state jurisdiction?
  • Does Washington have emergency jurisdiction to make orders that protect the child, at least on a temporary basis?

Washington state is considered the “home state” if

  1. The child has lived in Washington with a parent or a person acting as a parent for at least the last six consecutive months (six months in a row) before your court case is filed; OR
  2. The child is less than six months old and has lived in Washington with a parent or a person acting as a parent since birth at the time your court case is filed; OR
  3. Washington was the child’s home state (either (1) or (2) were true) within six months before the court case is filed, and one parent or person acting as a parent has continued to live in Washington since the child left the state.

Interstate custody issues can be very complicated and often depend upon the specific facts of each situation. Consider the following two examples:

Example 1:  Parents married in Washington in 2002 where the child was born.  They later moved to California in 2005.  They have lived there for six years. The parents separate, and no custody order was entered at that time. Mother and child move to Everett, Washington in 2015.  Five months after the mother and child left California, father files for custody in California, where he still lives. Mother receives the California court papers in Everett.

Result:  California remains the child’s home state.  California is the only state that can make the permanent custody decision, unless it declines jurisdiction. The mother may be able to ask California to decline jurisdiction. If it does, Washington may decide custody.

Example 2:  Parents were married in Washington in 2008 where the child was born.  The parents later divorce in Washington state and a parenting plan is established in Washington state.  Seven months ago, the father moves to Idaho with the child.  Three months later, the mother moves to Georgia.  Now a parent wants to modify the parenting plan.

Result:  Idaho now has jurisdiction to modify because: 1) Washington lost its exclusive continuing jurisdiction and
2) Idaho has now become the home state of the child.

As one can see, interstate custody issues can be very complex.  If you have a situation involving multiple states and a custody conflict, please call our office for a consultation.

Court ordered Grandparent Visitation

I am often asked by grandparents about obtaining court-ordered visitation with their grandchildren.  This is most acute when the relationship between the grandparent and the parent of the grandchild are strained.  Based upon the precedent of court decisions, I have to respond that this is not possible under present law.

A U.S. Supreme Court case in 2000 interpreting a Washington statute at the time ruled that statute unconstitutional as it infringed on the Due Process Clause of the Fourteenth Amendment.  The U.S. Supreme Court determined that the statute presented a substantial burden on the traditional parent-child relationship. In analyzing the statute, the Court asserted that the liberty interest of parents in the care, custody and control of their children is perhaps the oldest fundamental liberty interests recognized by the Court, and this should not be disturbed so long as the parents are fit to care for their children.   A subsequent decision issued by the Washington Supreme Court struck down a different grandparent visitation statute, also finding it unconstitutional.

According to this Washington Supreme Court decision, parents have a fundamental right to autonomy in child-rearing decisions.  State interference with this interest is justified only if the state can show that it has a compelling interest and such interference is narrowly drawn to meet only the compelling state interest involved.  This is a very difficult standard to meet.  Moreover, there is a constitutionally required presumption that a fit parent acts in the child’s best interests.

A recent Washington Supreme Court case issued on July 7, 2016, In re Custody of M.W., affirmed that a third party cannot petition for visitation rights through a custody proceeding.  The court opined that “[a]llowing any third party to petition for visitation rights (in this case, a step-grandparent) poses a serious threat to the stability of … nontraditional families.”   The Court flatly stated that there “is no statutory right to third-party visitation under our laws, and we decline to exercise our equitable powers to create such a right.”  Consequently, grandparent visitation cannot be ordered by a Washington state court.  Alternatively, the law permits a grandparent or other third party to seek non-parental custody by demonstrating that the parent is not a “suitable custodian” for the child.  Chapter 26.10 RCW.

Committed Intimate Relationships and Cohabitation Agreements

Although the concept of “common law” marriage is not recognized in Washington state, through case law courts have developed the concept of partners in a “committed intimate relationship” (CIR).  Formerly known as “meretricious relationships,” a CIR is a stable, marital-like relationship where both partners cohabit with knowledge that a lawful marriage between them does not exist.

Courts will consider the following factors in determining whether a CIR exists between partners:

  1. Continuous cohabitation;
  2. Duration of the relationship;
  3. Purpose of the relationship;
  4. Pooling of resources and services for joint projects; and
  5. The intent of the parties.

As with a dissolution (divorce) or legal separation proceeding, a court has the authority to divide the assets and liabilities acquired during a CIR relationship once it has ended.

However, there are several significant differences between a CIR and a dissolution or legal separation.  While attorney fees can be awarded in a dissolution action if one partner has a need and the other has the ability to pay, attorney fees cannot be awarded in a CIR case.  Additionally, a court cannot award spousal support (alimony) to one partner or the other in a CIR situation.  Finally, there is a 3-year statute of limitations to bring a property division action based on a CIR – you must bring a lawsuit within three years of the end of the relationship to establish that it existed for the purpose of having the court determine the division of property.

Partners may prevent a CIR from changing their property rights by entering into a mutual agreement, commonly referred to as a “living together” or cohabitation agreement. Like a prenuptial agreement, a cohabitation agreement allows the partners to agree in advance as to the effect of their relationship and the consequences should it end on each partner’s property. However, courts carefully review cohabitation agreements and will only enforce those that meet specific substantive and procedural requirements.

Consult with an attorney if you believe you are in a CIR, or if you and your partner wish to protect your rights through a cohabitation agreement.

 

 

Enforcement of foreign judgments in domestic matters

A client recently asked whether a Washington state court would enforce a foreign judgment from another country in a domestic relations matter.  The Uniform Foreign-Country Money Judgments Recognition Act (Chapter 6.40A RCW) does not apply to a judgment for divorce, support, or maintenance, or other judgment rendered in connection with domestic relations. RCW 6.40A.020(2)(c).

However, the savings clause in that Act permits recognition of a foreign judgment under principles of comity. RCW 6.40A.090. The comity doctrine allows a court in Washington state, acting within its discretion, to give effect to the law and resulting orders of another jurisdiction out of deference and respect, considering the interests of each jurisdiction.

For enforcement to be recognized, the foreign court must have had jurisdiction and there must have “been opportunity for a full and fair trial abroad before a court of competent jurisdiction, conducting the trial upon regular proceedings, after due citation or voluntary appearance of the defendant, and under a system of jurisprudence likely to secure an impartial administration of justice between the citizens of its own country and those of other countries, and there is nothing to show either prejudice in the court, or in the system of laws under which it was sitting, or fraud in procuring the judgment.”

If a foreign judgment is so contrary to the laws and policies of this state that enforcing it will seriously interfere with the state’s policies or laws or is prejudicial to the state’s interests, then comity does not apply. However, a mere fact that the law of a foreign jurisdiction and Washington’s own law are different does not establish a violation of Washington’s public policy.

From the caselaw I have examined, Washington courts will try to apply comity to a foreign court’s order. The reason is that comity is a doctrine of practice, convenience and expediency which involves exercising respect for and deference to the legal determinations of another country.  A party desiring to defeat the enforcement of a foreign judgment will have a heavy burden of proof to convince a court in Washington not to recognize the decision of the foreign court.   However, if a foreign court entered a judgment in violation of the principles of comity and enforcement is being sought against a party in Washington state, speak to an attorney to analyze the situation as you may have a good defense to enforcement.

Helping children get through a divorce or separation

Divorce or separation can be very challenging for adults.  The stress can be all the more overwhelming for children. Separating a family can be a highly emotional time, and how each child reacts will depend upon that child’s age, personality, and the circumstances set forth by both of the parents.  These reactions can involve shock, sadness, frustration, anger, acting out, or guilt should a child believe he or she is to “blame” for the separation.

Parents should try to minimize the negative impact of divorce or separation on their children taking the following measures:

  • Keep visible conflict, heated discussions, and legal talk away from the kids.
  • Minimize the disruptions to kids’ daily routines.
  • Confine negativity and blame to therapy sessions or conversations with friends or family outside of the home and not in front of the children.
  • Keep each parent involved in the kids’ lives.
  • Getting support for the kids through family, friends or professionals.
  • Both parents should frequently reassure their kids of their love and care despite the changed situation.

For other helpful guidance, please check out the information on the following website:

http://www.seattlechildrens.org/kids-health/parents/emotions-and-behavior/feelings-and-emotions/helping-your-child-through-a-divorce/

 

Trial Judge rules “Wheel of Fortune” winnings are Community Property

The Seattle Times reported that Scott Dole who won $51,600 on “Wheel of Fortune” had his winnings cut in half by a trial judge in Clark County Superior Court.

Dole and his wife Carrie are involved in a divorce proceeding, with one of the issues being whether the money Scott won on the television show was community property, and, therefore, be subject to the Washington state’s community-property law mandating equal separation of assets.

The husband and wife went to trial on Wednesday, May 25, 2011 before Clark County Superior Court Judge James Rulli. Testimony took most of the day.

Rulli decided that even though Carrie Dole had filed for divorce well before the show, the couple were reconciled at the time of filming, so the winnings were community property.

“This property was acquired when he won the game show in October 2009. At that time, the parties were living together as husband and wife,” the judge said after the trial. “She flew with him and stayed with him at a hotel. The argument that it was a defunct marriage … is not the telling factor.”

Rulli’s decision splits the jackpot down the middle. The money, which has been in escrow since 2009, will be disbursed to Scott Dole and Carrie Dole in two weeks, once the paperwork is finalized, Rulli said.

Scott Dole did say he tried to show at trial that his former wife was indebted to him because of a large monetary gift his late father gave the couple, which they had used to purchase a house.

A month after the game show win, the couple separated, and Carrie Dole moved out and renewed her petition for dissolution. With the renewed petition came the request that the “Wheel of Fortune” winnings be placed into a trust pending the outcome of the divorce. The money, which is $46,988 after taxes, was then placed in escrow at a local bank.

The take away lesson is: what you earn (or win) during the term of your marriage in Washington state is considered community property, in which each spouse has an equal right to such proceeds.

Terminating a lease in domestic violence situations

If you are a victim of domestic violence who needs to leave your apartment after an act of domestic violence, you should be aware of a Washington state law that can help you.  Under RCW 59.18.575, first enacted in 2004, a tenant may terminate a rental agreement and quit the premises without further obligation under the rental agreement if the request to terminate is made within 90 days of a reported domestic violence act, event or circumstance that gave rise to a protective order or report to a qualified third party.  A qualified third party includes under the definition in RCW 59.18.570(5) as law enforcement officers, court employees, licensed mental health professions or other licensed counselors, employees of crime victim/witness programs and members of the clergy.

Victims covered under this statute includes victims of sexual assault, unlawful harassment, or stalking.  A tenant who terminates a rental agreement under this statute is entitled to the return of a full deposit.  Other tenants who are parties to the rental agreement except household members who are also victims are not released from their obligations under the rental agreement.

Another provision under this statute permits a tenant or household member who is a domestic violence victim to change or add locks to the tenant’s dwelling unit at the tenant’s expense under certain conditions.  The legislation further prohibits landlords from discriminating and refusing to enter into a lease agreement based on an individual’s status as a domestic violence victim.   RCW 59.18.580, 585.

Be sure to consult with a knowledgeable attorney to confirm whether you may qualify under these laws.

Seeking Temporary Orders in a Domestic Relations Case

A temporary order is a court order that provides a party certain rights and/or protections before completion of the divorce, separation or parentage action. A party may request a temporary order at any time between the time the Summons and Petition is filed and the day the proceeding is final. To obtain a temporary order, a party must file a Motion for Temporary Orders, other necessary pleadings as required by court rules, and provide the other party with notice to respond to the motion. The amount of notice a party must provide prior to the hearing on temporary orders varies from county to county.

To evaluate whether one should seek a temporary order, consider the following questions:

• Are you happy with the way things are going right now without the temporary order? Do you need to ask the court for help to require the other party to do something, or to stop doing something?

• Do you require a temporary parenting plan to determine how much time the children will spend with you or the other party until the divorce is completed? Until there is a court order, each parent has an equal right to residential time with the children. A parenting plan can also give a party scheduled visitation with the children if you are being denied visitation.

• Do you need restraining orders that require the other party not to harass or come near you?

• Do you need restraining orders to prevent another parent from taking the children out of state?

• Do you need restraining orders that prevent the other party from giving away or selling property, or taking out loans in both of your names, or taking your name off of insurance policies?

• Do you need orders for temporary child support, maintenance (spousal support), attorney’s fees, or use of property (such as a house or car)?

• Do you need an order that permits you to live in the family home and to remove the other party from the family home?

• Do you want the appointment of a guardian ad litem (GAL) or parenting evaluator to do an investigation and make recommendations to the court about which parent the children should live with and whether the other parent poses a risk to the children?

If you have responded in the affirmative to any of the above questions, you should seriously consider seeking temporary orders. As part of the temporary orders, you may seek provisions that prevent economic and/or physical harm – by one spouse or mutually. Restraints against dissipating assets, maintaining insurance coverage, and related matters may be included in a temporary order.

NOTE:  In Snohomish County, the Court automatically issues a Temporary Order upon the filing of a Summons and Petition for Dissolution, Legal Separation, Invalidity, Committed Intimate Relationship or state registered Domestic Partnership that includes the following provisions:

A. The parties shall be restrained from transferring, removing, encumbering, concealing, damaging, or in any way disposing of any property except in the usual course of business or for the necessities of life or as agreed in writing by the parties. Each party shall notify the other party of any extraordinary expenditure made after the order is issued.

B. The parties shall be restrained from assigning, transferring, borrowing, lapsing, surrendering, or changing entitlement of any insurance policies of either or both parties, or of any dependent children whether medical, health, life, or auto insurance, except as agreed in writing by the parties.

C. Each party shall be immediately responsible for his or her own future debts whether incurred by credit card, loan, security interest, or mortgage, except as agreed in writing by the parties.

Importantly, the period of time between when the opposing party is served and the hearing date there will exist no order for residential time with the children or other restraints (except as noted for Snohomish County). If this is of concern which could result in irreparable harm to you or your children, you may want to consider obtaining a temporary restraining order and order to show cause through an ex parte hearing.

In King County, a party seeking financial relief such as maintenance or child support must file a financial declaration signed under penalty of perjury as well as filing under seal the following financial documentation:

  1. Pay stubs for the past six months. If a party does not receive pay stubs, other documents shall be provided that show all income received from whatever source, and the deductions from earned income for these periods;
  2. Complete personal tax returns for the prior two years, including all Schedules and all W-2s;
  3. If either party owns an interest of 5% or more in a corporation, partnership or other entity that generates its own tax return, the complete tax return for each such corporation, partnership or other entity for the prior two years;
  4. All statements related to accounts in financial institutions in which the parties have or had an interest during the last six (6) months. “Financial institutions” includes banks, credit unions, mutual fund companies, and brokerages.
  5. If a party receives or has received non-taxable income or benefits (for example, from a trust, barter, gift, etc.), documents shall be provided that show receipts, the source, and any deductions for the last two (2) years.

While King County’s local rules are more detailed, both Snohomish and Pierce Counties also require a party to file a financial declaration and submit financial documentation as well.

Obtaining temporary relief can be a very complicated process. Often, the issuance of temporary orders (including a parenting plan, support orders and restraints) has a huge impact on the entire case. It is very important to consult with a competent and experienced attorney if you find yourself involved in this situation.