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Major Milestones in a Divorce

One of the most consistent concerns we hear from our clients is that they are nervous about, or even intimidated by, the legal process of obtaining a divorce. Most often, this concern is rooted in the fact that our clients have very little, if any, experience dealing with the court system and just do not know what to expect. At O’Brian & Associates, our primary responsibility is to help our clients navigate the legal nuances of the divorce process. Below is an overview of the major milestones in a divorce proceeding in Washington.

Residency - The first step to obtaining a divorce in Washington is establishing residency. Once at least one spouse is a resident of the State of Washington, they can file a petition and commence divorce proceedings in the county where they live. This is true even if the other spouse lives in a different state. While this sounds easy enough, there are two other factors to consider.

First, if the spouses have high-value property in another state, a Washington court will likely be hesitant to assume jurisdiction over the out-of-state property. For example, if the spouses live in Washington, but own a second home in British Columbia, the court may be hesitant to include the asset in the divorce. This does not prevent the parties from filing for divorce in Washington, it just means they may have to resolve issues with out-of-state assets outside the divorce litigation.

Second, if a divorce will involve custody of minor children, the minor children generally must reside in Washington for at least 6 months before a divorce is filed for a Washington court to obtain jurisdiction over them. There are situations where a court can accept immediate jurisdiction over children, but usually it means if a spouse moves to Washington with minor children they must wait at least 6 months before beginning a divorce in Washington.

Filing the Initial Paperwork- The divorce process formally begins when one spouse files the required paperwork, which consists of:

  • Petition for Dissolution of Marriage- the Petition for Dissolution of Marriage is usually the most important because it contains the filing party’s desires for dividing property and debt, child custody, child support, spousal support, and any other issues that will be involved in the divorce.
  • Summons- the Summons is a simple document that informs the other spouse a divorce has commenced and instructs them to respond to the Petition by a certain date.
  • Confidential Information Sheet- the Confidential Information sheet provides the court with the participants’ personal information, such as birthdays, contact information, driver’s license number, and social security numbers, that the court will need to track and process the divorce.
  • Vital Statistics Form- the Vital Statistics Form contains much of the same information as the Confidential Information Sheet, but it is provided to the Washington Department of Health.

When these documents are filed, the spouse that files the initial paperwork is called the “Petitioner” and the other spouse is called the “Respondent.” These are the titles the parties will use for the duration of the divorce.

Serving the Initial Paperwork- After the Petitioner files the documents above, they must be “served” on the Respondent. Usually, this involves someone, typically a professional process server, physically handing the documents to the Respondent. Courts require the initial documents to be served in this manner, and to have someone attest to the service, to ensure the Respondent is notified that a divorce has begun and given adequate time to respond. Once the Respondent files their response, the parties (or the parties’ attorneys) can agree to be served via electronic service or email, which simplifies the process significantly.

Responding to the Petition- After the Respondent has been served with the petition and other documents, they can file a response. In some rare instances, the Respondent will agree with everything in the petition and they simply sign a joinder and submit it to the court. More often, the Respondent will file a response to the petition identifying what, if anything, they agree with as well as what they disagree with.

Temporary Orders- After the petition is filed and the other spouse responds, the parties can file a Motion for Temporary Orders asking the court to issue an order that will govern child custody schedules, child support, spousal maintenance, financial protections, and other issues. As the name suggests, this order is only temporary and remains in effect until the court files final orders at the end of the case.

Discovery- Discovery is the stage where both parties gather information. Generally, the purpose of discovery is to allow the parties to gather information in order to prepare to present evidence to a judge and prove their case. As the parties gather information it also helps them more fully understand what their legal rights and obligations are, which can help the parties agree on the terms of their divorce.

Discovery usually involves some, or all, of the following:

  • Interrogatories- With interrogatories, each party asks written questions to the other party and the other party provides written answers to the questions. One drawback of interrogatories is that the answers provided tend to be carefully crafted with the assistance of legal counsel. This does not mean, however, that the answers can be dishonest or inaccurate, as they are also signed under penalty of perjury.
  • Requests for Production- With requests for production, each party asks the other party to produce documents and other items, such as, financial documents, email and text message communications, photographs, audio recordings or any other documents or item that may be needed. Drafting carefully tailored requests are critical to obtaining necessary evidence.
  • Subpoenas- A subpoena is, essentially, a request to a third party, such as a bank, an employer, or a marriage counselor, to provide documents. One common example is submitting a subpoena to a bank to obtain statements and other records for checking accounts, savings accounts, investment accounts, or other financial accounts.
  • Depositions- Depositions allow an attorney to question other parties or potential witnesses face-to-face and under oath before a court reporter. This gives the parties’ attorneys the chance to ask questions, gather information, and evaluate the effectiveness of a witness before trial. Depositions can be an effective tool because the responses tend to be fairly candid and the face-to-face questions allow counsel to ask follow up questions and dig for additional information.
  • Expert Witnesses- In some cases, the parties may need expert witnesses. Expert witnesses are common in cases where there the spouses own considerable assets that may be difficult to value. A common example of when an expert witness would be necessary is when one of the spouses owns a business. An expert witness would be employed to examine the financial performance of the company and provide an opinion as to the value of the business.

Negotiation or Mediation­- The majority of divorces are resolved by negotiation before trial. Throughout the divorce proceedings, the parties can work on informally negotiating a resolution, usually with the assistance of counsel. Having experienced counsel allows parties to obtain guidance on whether they should accept proposed terms because they are fair or whether they should push back and provide a counter offer because the client may be able to get a better result.

Other times the parties may choose to use a more formal negotiation method, such as mediation. In mediation the parties and their counsel are still attempting to negotiate a resolution, the difference being that in mediation a neutral third party, the mediator, is present to help facilitate the negotiations. A skilled mediator can be extremely helpful in working with the parties to resolve all or some of the issues they disagree on. Mediators cannot, however, force the parties to agree.

If the parties cannot reach an agreement on all of their issues, they proceed to the last and final step of the divorce process, trial.

Trial- The vast majority of cases are resolved before reaching trial, but if the parties cannot agree to fully resolve all aspects of a case they will go before a judge and let a judge decide the issues. At trial, both parties have the opportunity to present evidence they have gathered in discovery and make arguments as to why the judge should decide a certain issue in their favor. For example, if spouses cannot agree on the value of their home or a business, they can present evidence to a judge, argue why they feel the home or business should be valued at a specific amount, and then the judge decides the issue.

After trial, the parties typically file a number of documents, which can include the following:

  • Final Divorce Order- The Final Divorce Order contains all of the judge’s orders from trial. How the parties will divide their assets and debts; how the parties will share custody of their children; whether either spouse is entitled to spousal maintenance or child support; whether one or more of the parties will change their names. All of these orders are contained in the Judge’s final order.
  • Findings and Conclusions About Marriage- The Findings of Fact and Conclusions of Law is the judge’s written explanation for why they made their decisions. If, for example, the court awards spousal maintenance to one of the spouses in the final order, the judge will explain why they feel the spouse is entitled to maintenance, why they awarded the amount they did, and why they awarded support for the amount of time they did.
  • Final Parenting Plan- When divorcing spouses have children, the parties will also file a Final Parenting Plan. This Final Parenting Plan explains in detail when each parent will have time with the child/children, What holidays the child/children will spend with the parents each year, how major decisions for the child/children will be made, and many other issues that will come up as the parents begin co-parenting.
  • Final Child Support Order- If the Judge ordered child support the parties will file a Final Order of Child Support, along with the Child Support Worksheet.
  • Qualified Domestic Relations Order- If, as part of the divorce, the parties will need to split a pension, 401(k), or another retirement account they will need a Qualified Domestic Relations Order (QDRO) instructing the institution holding the account on how the assets in the account will be divided.

At trial the judge’s decisions are final and the parties have filed all the final documents, the parties are officially and finally divorced and are obligated to abide by the judge’s rulings. This means the parties are obligated to follow the instructions and orders or they may find themselves back in court.

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