Part 3: The Divorce Process
A Washington Divorce Case From Petition to Decree
Understanding the framework and requirements of the dissolution process in Washington will better prepare you for your divorce. Usually, one spouse files for divorce against the other by filing a petition for dissolution of the marriage. This is the process primarily discussed in this section. (The process of the parties filing jointly is discussed at the end of this guide.)
Prior to initiating any type of divorce process in Washington, you should discuss your circumstance and your options with a qualified Washington family law divorce attorney. An attorney will advise you and assist you in determining the proper and hopefully, the most beneficial approach for your situation.
What Do I Do if I Am Served With Divorce Papers?
The discussion that follows is from the standpoint of the spouse filing for dissolution of marriage in Washington, designated in the court documents as the "petitioner." If you are the spouse who is served with divorce papers, the process is the same as outlined below, but you are designated as the "respondent."
If you receive a divorce summons and petition for dissolution filed by your spouse you should speak with a qualified Washington family law attorney immediately about protecting your rights. The way you respond to the petition can affect the rest of your case. You should ensure that you are advised of, and understand, your options regarding your property, assets, and children. Review the summons and petition carefully, and discuss your concerns with your divorce attorney.
You usually have 20 days to respond to the petition. Do not procrastinate. Consider the time it will take you to hire an attorney, review the petition, locate paperwork and records, and complete any other tasks involved in preparing your response to the petition and filing it with the Washington court. It is important that you meet court deadlines.
Filing for Divorce as a Sole Petitioner in Washington
The steps provided below give the typical procedure in a typical Washington divorce case from before the petition to the decree. The below steps assume that there is a sole petitioner. (Meaning you are filing for divorce against your spouse, rather than the two of you filing together as joint petitioners).
|1||Establishment of Jurisdiction and Proper Venue||Determine in which state and county you can petition (file) for divorce.|
|2||Complete a Petition for Dissolution of Marriage||This document should be filed with the court clerk begin your divorce case. In some counties, this document also "restrains," or disallows, any disposal of marital assets. There is normally a court fee that needs to be paid to file the petition.|
|3||Have the Summons and Petition Served||Arrange for your spouse to receive copies of the summons and the petition as soon as possible after filing. There are restrictions on how to and who can serve the respondent.|
|4||Response and Counter Petition||In response to your petition, your spouse can file a response to petition, file a counter petition, or choose not to respond at all. If your spouse chooses not to respond, you divorce is uncontested and you can proceed to Step 9. If your spouse files a response and/or counter petition your divorce is contested and will proceed to Step 5.|
|5||Temporary Hearings||You may file a motion for temporary orders asking the court to make temporary orders regarding child support, a temporary parenting plan for your kids, who will reside in your home, and finances while your case is pending. If both parties agree about how your affairs should be managed during the divorce then the temporary order hearing may be unnecessary. You may have your agreed temporary orders signed and entered in the Ex Parte Department at the courthouse any time.|
|6||Mandatory Parent Education||Washington state requires divorcing parents of minor children to attend a mandatory parenting education course within sixty (60) days of service on the non-moving party.|
|7||Discovery||The discovery phase is a time for you to obtain information from your spouse and provide information to your spouse. You and your spouse may also obtain information from third parties.|
|8||Mediation||The parties may choose to resolve issues with the assistance of an impartial mediator or may choose to have some issues brought before an arbitrator.|
|9||Settlement||If you and your spouse resolve all your issues prior to trial, then you will present a written settlement document to the Ex Parte Department commissioner. If the commissioner approves your documents, your divorce is final. You will not move on to Step 10.|
|10||Trial||If you are unable to resolve all issues in your divorce then you will each present your case to the judge at a trial. The judge will decide on the issues, approve final orders and final judgment(s) (as appropriate), and finalize your divorce.|
As previously stated, the above outlines the "typical" dissolution process in Washington. Each case is different. The circumstances of your case might cause you to skip steps, go through the steps in a different order, or add steps not listed here. Your Washington divorce attorney will be able to explain what steps are necessary in your circumstances. Then, your attorney will lead you though each step.
STEP 1: JURISDICTION AND VENUE: WHERE DO YOU FILE FOR DIVORCE?
For a person to file a petition for dissolution of marriage in Washington the Washington courts must have jurisdiction. Your case must also be filed in proper venue, or county within the state.
If any of the following is true, the Washington court will have jurisdiction over your dissolution action:
- You or your spouse lives in Washington;
- You are a member of the armed forces stationed in Washington;
- Your spouse is a member of the armed forces stationed in Washington and will continue to be so for at least 90 days following the date that you file and serve the divorce papers.
For venue to be proper, you must file in either the county where your spouse, the respondent, lives, or the county where you live. If you file for divorce in the county where you live and your spouse wants to change locations to the county where he or she lives, the court may permit a change of venue.
There are counties, such as Lincoln County, that allow filing of dissolutions even if neither party lives there. This practice is generally discouraged because it can raise logistical issues and potentially lead to more costs later on. Common issues include finding it expensive and/or burdensome to obtain copies of court documents, or having a difficult time modifying a court order in the future. Or, if the responding party requests a change of venue, you will have additional paperwork to complete and will likely incur additional costs. In most circumstances it is best that you file for divorce in the county where you or your spouse resides.
Your attorney need not be located in the same county where your divorce is filed. Any attorney licensed in Washington can practice in all Washington counties.
Step 2: Initiating Your Divorce Action: the Petition for Dissolution of Marriage in Washington
There is one basis for dissolution of marriage in Washington: that the marriage is irretrievably broken. Washington is a no-fault state meaning that it is unnecessary to prove to the court which spouse caused the divorce. To begin your Washington divorce action, you or your attorney must complete and file a petition for dissolution of marriage. In this document, you will state that your marriage is irretrievably broken, and you are requesting the court dissolve your marriage. The petition also includes your other requests for relief from the court. To ensure that your petition is complete and filed correctly it is strongly recommended that you do not complete and file a petition without the advice and assistance of an experienced Washington family law attorney. The petition template can be obtained from your county clerk or you may be able to download a copy of the form from the clerk's web site. The Washington State Courts website is www.courts.wa.gov.
Frequently Asked Questions:
What is a petition for dissolution of marriage?
A petition for dissolution of marriage is the legal document that initiates your divorce action. The document contains some vital statistics about you, your spouse and your children. It can also include your requests regarding a property division, child support, spousal maintenance, parenting plans, health insurance, and allocation of debts. In some cases, it is beneficial to request that certain issues be reserved after some discovery has been completed.
When you work with a qualified Washington divorce attorney, they will help you ensure that your legal documents are filed out completely and properly. Prior to completing the petition, you will need to gather information and paperwork. Your petition should be as accurate as possible. Small mistakes within your petition can have the effect of delaying your dissolution, or cause later mistakes or unfair orders in your case.
Where do I file initial divorce documents?
After the petition has been completed, it needs to be filed with the clerk's office in the proper county.
Along with your petition, you need to file a certificate of dissolution (more commonly known as a vital statistics form). That form will also be submitted to the Washington family law court. Normally the court charges a filing fee when you file your petition. You may ask the court to waive this fee due to proof of economic hardship (this requires another form). The filing fee varies depending upon which county you are filing in.
What if I have an existing child support order or have a pending child support proceeding at the time I file for divorce?
If you have an existing child support order or have a proceeding pending then your attorney will notify the court with this information.
Once my court documents are filed on the record, how do I protect personal information?
In an effort to protect your private information, your attorney will file a confidential information form. These forms provide the court with your contact information, and your personal information including social security numbers without making them available to the general public.
What happens after you file the petition?
After the petition is filed it will be assigned a case number. From then on, everything to do with your Washington divorce case will be organized under your case number. You will also want to ensure that your case number is on the summons served on your spouse. You should keep well-organized copies of everything filed with the court or created for your case for your own records. If you have an attorney, he or she will also keep copies of all legal documents.
Often, after the petition is filed the court will set a trial date. Some counties, such as Snohomish County, require that you request a trial date later on in the process. Your attorney will know how and when to obtain a trial date in your county. Few divorces in Washington reach their trial dates. Most cases are resolved through negotiation, arbitration, and/or mediation prior to the trial date.
What happens to marital assets after the petition is filed?
Following the filing of the petition, to prevent either spouse from trying to sell, spend, give away or otherwise dispose of property, you may also choose to file temporary orders asking for a "restraint" on the disposal of marital property without court approval. The restraint may also prevent either spouse from cancelling, modifying, or failing to pay the premiums of any and all insurance policies that cover the other spouse or the children. If you seek these types of temporary restraints, be sure to understand that they are usually mutually ordered. If there is a reason that certain provisions of the restraints should not apply to you, let your attorney know at the outset of your case.
Step 3: Serving Your Spouse
After the filing of your petition is completed, and a case number is assigned, your spouse must be provided both a copy of the petition and your summons. This is called "being served" or "service." The purpose of the summons is to make your spouse formally aware of the dissolution action and allow your spouse (the "respondent") the opportunity respond to your petition. Notice is provided within the summons that if he or she fails to respond within 20 days of being served, the court may grant the petitioner's requests without having to consider any objections your spouse may have. This type of judgment is known as a "default judgment."
Service must be made by people meeting a certain criteria. Washington, service can be made by a sheriff or any person over the age of 18 who is not a party to the case. Most petitioners use either a process server or the sheriff to complete service. Your attorney will typically arrange service for you. When a spouse lives outside your county or outside of Washington the sheriff of the county in which your spouse lives, or a process server in that area, can be used to complete service.
The person who serves your spouse will need to complete an affidavit of service form. Once service has been completed and the affidavit of service has been filled out by the server, the petitioner is responsible for filing the proof of service and a copy of the summons with the court clerk.
What if I can't locate my spouse?
If the other party cannot be located for personal service, your attorney may file a motion with the court to serve your spouse by mail or by publication. Service using these methods is technical in nature and requires strict adherence to the rules. These methods can also be much more expensive than personal service. When feasible, it is best to have the respondent personally served.
If your circumstances require you to bring a motion for service by mail or publication, you need to show the court that you have made great efforts, or "due diligence," to locate and serve your spouse. Be sure to keep notes, documentation, and receipts of your attempts to locate and serve. You likely will need to explain what you have done to try to locate your spouse. You will also need to show the following:
- That your spouse is intentionally avoiding service by concealing his or her location from you or a process server attempting service; or
- That your spouse has relocated from his or her last known address and has not provided a forwarding address; and
- That you are unaware of your spouse's employer, and cannot access the information using due diligence; and
- That your spouse lives outside the state and you know where, but that you cannot afford personal service due to your income.
If the court permits service by publication, then service is made by publishing the summons in the newspaper or other regular, widely circulated publication, and mailing it to your spouse's last known address. You will send copies of the summons and the petition to the publication through which you are serving by publication. The publication will then publish the summons four times and send you a sworn affidavit stating that publication has taken place. After you file this affidavit with the court clerk and mail your spouse a copy of the summons and petition to your spouse's last known mailing address, service is considered complete.
If the court permits service by mail, then someone other than you must send the documents. Under certain circumstances the court may allow you to have the documents mailed to your spouse's relative or friend's address (if your spouse sees this person regularly) or to your spouse's last known address.
Service by mail or publication are procedurally technical. You should consult with your family law attorney before pursuing these methods of service.
What if my spouse is in the military?
If your spouse is in the military he or she must be personally served with the summons and the petition for dissolution. Whether being professionally served or accepting service, your military spouse may seek to have the dissolution proceeding postponed for the duration of his or her active duty and for up to 180 days thereafter. If the respondent signs a joinder, then the petitioning spouse may not have to serve the military spouse as long as the military spouse signs the appropriate forms and it is filed in the court.
Step 4: Response to the Petition: the Counter Petition
The respondent has 20 days to file a response to your petition. The response can either be in the form of a counter-petition or a response to petition.
What do I do if my spouse contests the proceedings and files a response?
If your spouse responds within 20 days, your divorce is contested, and you will need to proceed on the contested divorce track. The response to petition can be an informative document, as it lists what parts of your petition your spouse "admits" (agrees with) or "denies" (disagrees with).
Your spouse may also choose to delay their response, and instead seek an extension beyond the 20 days. This may mean that the court permits your spouse to respond after the 20 day timeframe.
If you do not have an attorney prior to filing, this is another time many people choose to obtain counsel. After receiving a response to petition or a counter-petition, you and your attorney will be better able to predict which issues will be difficult to resolve, and which issues might already be agreed upon.
What if my spouse does nothing in response to my petition?
A divorce is uncontested when a respondent fails to file a response within 20 days of receiving the petition. In that case, you will proceed along the uncontested divorce track. This will require you to file a motion for an order allowing judgment by default. This notifies the court that your spouse has not responded to your petition. You must include with your petition an affidavit of non-military service. This is required to prove your spouse is not a member of the military. If your spouse is a member of the military you may be unable to proceed with your dissolution case until after your spouse ends active duty. There are also additional service requirements that you should discuss with your family law attorney.
After you file with the court your motion and order allowing judgment by default, Washington law provides that you wait a minimum of 90 days after your spouse was served to finalize your dissolution. Once the 90 days has expired you may apply for a general judgment of dissolution of marriage. After ensuring that your court file is in order the judge will sign your judgment and other documents appropriate in your case, and you will officially be divorced.
Step 5: Temporary Orders
Starting as early as your initial consultation with a Washington divorce attorney, you may start discussing whether to seek temporary orders. Temporary orders are obtained by filing a motion with the court. This is done either directly after your petition is filed or sometime later on in the process, but prior to the final dissolution of your marriage. These orders remain in effect for the duration of your case.
Temporary orders establish the conduct ("ground rules") required of each spouse until the divorce is final. Typical temporary orders include the following types of temporary relief: child support, a residential schedule and other parenting guidelines, spousal maintenance, exclusive possession of the family home, payment of monthly bills, and payment of attorney's fees to assist you in paying for your case. You may also wish to request temporary restraints that prohibit dissipating assets, changing insurance coverage, transferring property, or incurring further debt.
In many cases some temporary orders issues can be resolved without going to court. Parties may be able to agree on how the parties should conduct themselves while the case is pending. This can save both parties money and stress. If the parties are unable to resolve the temporary orders issues, they may need to schedule a hearing with the court.
Temporary orders only last until the dissolution is final. At that time, the orders are no longer needed and are not effective.
Step 6: Mandatory Parent Education Seminar
All Washington counties (except Lincoln County), require divorcing parents of minor children to attend a parenting seminar. There is no requirement that the parties attend the seminar together. The seminar discusses the major changes to your family that come with a divorce and how these changes may affect your children. The seminar also provides information about successful co-parenting during the dissolution process. In addition, the seminar typically includes information on the emotional and developmental effects of divorce on children, how custody and parenting plans work, the conduct that is required of parents, and co-parenting after your divorce is final.
There is a fee for the class. Often the fee may be reduced or eliminated based on your income. You must complete it within 60 days after the petition is served. While it may feel inconvenient at an already-hectic time, the parenting class not only fulfills a requirement of the Washington family law court, but also better prepares you to negotiate parenting issues with your spouse. The goal of the class is to minimize the negative effects your divorce may have on your children.
Step 7: Discovery
In almost all cases you will want to conduct some discovery. The discovery process is the process of exchanging information for purposes of preparing for hearings, negotiations, arbitrations, mediations, and trial. The discovery process allows you and your attorney to obtain documents and information that will help you better understand the facts of your case and advocate for the most favorable resolution of all issues.
Discovery is almost always necessary unless both sides quickly resolve issues and are able to enter agreed final orders with the court. Documents you should seek in discovery include all documents pertaining to income, retirement funds, investment accounts, inheritances, insurance policies, real property, criminal records, and other appropriate historical information. During the discovery process you can seek documents from third parties as well as your spouse. This might include requesting information and documents from financial institutions, employers, and schools.
What does the discovery process include?
The Washington Rules of Civil Procedure govern discovery. The rules permit that discovery process can include:
- REQUESTS FOR THE PRODUCTION OF DOCUMENTS: You may ask for the physical documents themselves in production requests.
- INTERROGATORIES: Questions to be answered, in writing, under oath.
- RELEASES OF INFORMATION: You may subpoena persons or institutions to gain access to information relevant to your case. Such documents may include bank statements, medical records, employment/income information, etc., to be acquired from banks, medical providers, or employers.
- REQUESTS FOR ADMISSIONS: You may submit statements to your spouse and request him or her to admit or deny them under oath.
- DEPOSITIONS: You may conduct oral examinations under oath of the other party or other witnesses who may have information relevant to your case.
What if my spouse fails to provide the requested information?
In Washington, if your spouse refuses or fails to provide you with the requested documents within his or her control you may file a motion with the court to compel the production of information. If the court chooses it may enter an order requiring your spouse to produce the information you seek, and it may also order your spouse to pay your attorney fees for having to pursue the motion.
What are my obligations for discovery?
During the discovery process your spouse will likely request information and documents (as described above) from you. The rules of discovery will require you to provide the requested information or documents unless there is reasonable objection to the request. You should discuss the discovery you intend to provide to the other side with your Washington family law attorney.
Step 8: Mediation
If both parties are able and willing to communicate effectively and productively, mediation can be a good alternative to trial. Most of the time people choose to participate in mediation because they think it is the best way to resolve their differences, but sometimes they participate in mediation because they are ordered to do so by a judge.
Mediation usually involves both parties, their attorneys and an impartial third party called a mediator. The mediator facilitates discussions and negotiations and tries to help you and your spouse resolve any disputed issues. Mediation affords you and your spouse greater flexibility and control of the terms of your divorce than a trial.
Step 9: Settlement
If the parties reach an agreement on all of their issues, either through negotiation between divorce attorneys or during mediation, your attorney will draft a marital settlement agreement or stipulated general judgment of dissolution of marriage. Both parties must sign the final agreement or judgment in order for it to be binding and enforceable. After both parties have signed the agreement, it can be presented to the court. Your divorce is finalized when the judge signs the agreement.
Step 10: Trial
If the parties are unable to settle the issues in your case you will go to trial. Divorce cases in Washington are tried by a judge not a jury. During trial, your divorce attorney will present your case to the judge through testimony of witnesses (including yourself) and by providing documents called "exhibits."
If you filed the initial petition for dissolution you are the "petitioner" and your case is presented first. Your spouse is the "respondent" and will present his/her case second. Your attorney will call and question witnesses to testify on your behalf and who will be subject to questions (cross examination) by the opposing party/attorney. Your attorney will also present exhibits to the court. After your attorney "rests" your case the opposing party presents his or her case in the same manner. Following the respondent's presentation, the petitioner may have the opportunity for a brief rebuttal. Afterward, both will usually make closing arguments to the judge summarizing the evidence presented.
How long does a divorce trial last?
The number of unresolved issues and the complexity of those issues will determine the length of the trial in your case. A typical divorce trial may last one to three days. But, if there are expert witnesses have been hired to testify, or if there is a dispute regarding the parenting plan, the trial may last much longer.
How is a divorce trial decided?
At the conclusion of the trial the judge will issue his or her decision on the issues presented during the trial based on all of the properly admitted evidence and testimony. Then, one of the attorneys will draft a judgment and final orders to record the judge's ruling or written opinion. These judgments and orders are presented to the judge at a later date. If the judge agrees that the attorney's drafted documents conform to the rulings, then the judge will sign the documents and your divorce will be final. It is important that you obtain copies of the final judgment and other documents from the court for your records.
Divorcing as Joint Petitioners
Can my spouse and I file jointly for divorce?
Yes, if you and your spouse are in agreement about the issues of your divorce from the very beginning, you may file jointly (with one party still designated as the petitioner and one as the respondent). The respondent will fill out and sign the joinder section of the petition. Then, the petition and joinder will be filed together. After filing the petition, the parties must wait 90 days before the court will finalize the divorce. Once the 90 days has expired you may apply for a general judgment of dissolution of marriage. To do so, you will file a motion for judgment without hearing, a decree of dissolution of marriage, and if there are children involved, orders of support with child support worksheets. After you are sure that your court file is in order, the judge will review your documents and if the judge signs the documents, your divorce will be final.
Typically, a petition with joinder is desirable only in uncomplicated divorce cases, where the following factors may apply:
- You have a short-term marriage and have only been married for a few years;
- You have no minor children;
- You have no adult children in school or dependent upon you or your spouse;
- Neither party is pregnant;
- You do not own real property and have minimal (less than approximately $30,000 in) personal property (together or separately);
- Your debt is minimal (does not exceed approximately $15,000) (together or separately);
- Neither party is asking for spousal maintenance;
- There are no other unresolved court proceedings involving the marriage anywhere else;
- Neither spouse is seeking other temporary orders in court (with exceptions for restraining orders, or orders under the family abuse prevention act or the elder abuse prevention act that awards one spouse the exclusive use of the marital home); and
- Both parties agree on the terms and conditions regarding the assets and liabilities of your marriage.
Divorces can become more complicated than the parties anticipate. If you are considering filing a joint petition, speak with a family law attorney prior to filing your petition.