Post-Divorce Issues and Considerations
Financial obligations between spouses continue after many divorces. Child support or spousal maintenance may be ordered, requiring one spouse to pay the other a monthly sum. Or, a spouse may be required to keep insurance for the benefit of the former spouse. You may also have credit issues, tax issues, or other financial issues that will be affected following your divorce. Below is some of the common ways financial obligations between spouses continue after divorce.
Is the Divorce Judgment Final?
Even when divorces are resolved by settlement (agreement) instead of the court making a decision, you may still have some remaining disagreements regarding your divorce judgment. It is important to discuss these with your lawyer to determine what, if anything, you might be able to do to resolve remaining disagreements.
Can my divorce judgment be appealed?
It depends. If your divorce judgment is a product of a settlement agreement, then your judgment may not be appealed. However, if your divorce judgment was entered by the court upon its own findings (not a settlement), then you have the ability to appeal as long as you meet the time restrictions (30 days after the date of the judgment). During the appeal, you will not be able to offer new evidence, but you can make new arguments. It is important that appealing parties understand that the appellate court may decide to require one party to pay the other party's attorney fees on appeal. You can choose to appeal one issue from your divorce judgment or several parts. Appeals are expensive, usually costing more than $5,000 for each party. It may take more than a year for the appellate court to issue its decision.
If you would like to appeal your non-binding arbitrator's award, you can do so as long as you do within a short time period (20 days after the arbitration award is filed in court). This appeal is "de novo," meaning that your divorce will begin all over again, from the beginning. The divorce judge will hear the appeal (not the arbitrator). The judge will conduct the trial as if the arbitration never happened. It is important for the filing party to know that if he or she does not receive a better result from the judge than from the arbitrator, he or she may owe all of the other spouse's attorney fees incurred after the arbitration award. As such, choosing to appeal a non-binding arbitrator's award should be done only after discussing potential benefits and disadvantages of doing so with a qualified Washington family law attorney.
Can the court modify the divorce judgment?
It depends. If you are seeking to change only the order of child support, or the parenting plan, you can file a modification request. Modifications of these types of orders are discussed below. Modification is faster, simpler, and usually much less expensive than an appeal. You may also seek modification of the spousal maintenance awarded to one spouse. Generally, other issues in your divorce judgment are non-modifiable.
Fully Separating Your Finances
It is unlikely that your divorce judgment will complete the process of dividing all of your assets and debts. Further steps may need to be taken by the parties to fully separate their finances.
How do I finalize the property division?
In some circumstances, it will be necessary to file additional documentation to comply with the divorce judgment. What needs to be done will depend on the type of asset or debt you are dealing with. Below are some common procedures necessary to effectuate the division of property and debts within a divorce judgment:
- For some retirement benefits a Qualified Domestic Order (QDRO) may be necessary. This document tells businesses holding retirement accounts whom is to receive what amount of the assets within the account. The business paying the benefits on that account will need the QDRO to determine any "alternate payee," that is, anyone other than the employee that is supposed to receive funds.
- Title should be changed on any vehicle changing ownership. Automobiles insurance companies should be advised of any changes.
- If your real property is changing ownership, you will need to file quitclaim deeds with your county recorder's office. Mortgages may need to be refinanced in the name of one party.
- Depending on your judgment, bank accounts and joint credit cards may need to be closed.
May I change my beneficiary designations?
If the court judgment allows for it, you generally can change the beneficiary on your retirement and estate planning documents after a divorce is final. (Remember to read your divorce judgment carefully in the case of life insurance. See Part 4 of this guide, "Life Insurance.") Documents you may need to change include the following:
- Pensions and retirement accounts;
- Investment accounts;
- Bank accounts;
- Life insurance;
- Living will;
- Power of attorney; and
- Revocable and irrevocable trusts.
Changing Your Name
Can I keep my last name?
Yes. You can choose to keep your married last name, or return to your pre-marriage last name. You can make the change within the decree of dissolution, or after the dissolution is finalized (though you will have to complete a separate process to do so). After you legally change your name, you will still need to inform others of your name change. This includes the Department of Social Security, the Department of Licensing, and other institutions (ex. financial institutions, utility providers etc.).
Changing Your Child's Name
If the child's other parent agrees that the name of the child should be changed, you will probably be able to do so. After reaching an agreement, file a petition for name change for a minor in the appropriate court and include the signed consent forms for each parent. You will have to pay a small filing fee to file the petition. For children under age 14, the court will appoint a guardian ad litem, to help evaluate whether the name change is in your child's best interest. If the child is age 14 to 17, your child is may choose to consent to the name change.
Soon after, the court will hold a hearing on the name change of the child. If nobody objects to it, then child's name will be changed. After you have obtained a court order changing the name of your child, contact the Washington Center for Health Statistics to obtain a new birth certificate for your child. You may also need to contact the child's school and other institutions and advise them of your child's new legal name.
If the other parent objects to the name change, you may still be able to change your child's name. The process will be the same as described above except that you will not be filing a consent form for your former spouse. If you have sole legal custody of the child and the name change is in your child's best interest, then the court will order the name change regardless of your spouse's objection. If you and the child's other parent share legal custody, then the court will hear and consider your former spouse's opinion. In addition, the court will consider the age of the child, their name preference, any parental misconduct, and the effect of a name change on your child (including your child's relationship with both parents). The court will decide in the best interest of your child.
Relocation: When You or Your Former Spouse Moves
Usually at least one spouse moves as a result of their separation or divorce. The initial relocation is often part of the dissolution process: you and your former spouse are separating, and so at least one of you needs to move out of the family home. However, in some circumstances one or both parties may want or need to relocate again, after the initial move.
If you have minor children and you or your children's other parent plan to move, you should discuss your options with a Washington family law attorney. There are steps you may need to take to protect your residential time with your children. Some of the issues are presented below.
Can one parent move and take the children outside of their current school district?
In most circumstances the custodial, or primary residential, parent will be permitted to move outside of their school district with the children. However, there is a procedure they will need to follow prior to doing so. First, check your final parenting plan, filed with your divorce judgment. There is likely a notification procedure that will need to be followed prior to moving outside of your current school district. In most cases, it will require that you give 60 days' advance notice to the child's other parent and any other person entitled to visitation with the child. Notice may be through personal service or by any form of mail requiring a return receipt.
The child's other parent will have the right to object to the relocation and ask the court to stop the children from being moved. The objection must be filed within 30 days of the notice of intent to relocate. While the court gathers information and makes its ruling, your former spouse may ask the court to restrain you from moving your children. Conversely, you may request a temporary order allowing you to move. You will want a family law attorney to assist you with your relocation hearing.
What are the exceptions to the 60 days' notice requirement?
In an emergency situation in which you have to move quickly, and therefore don't have 60 days to give notice, you must give notice within 5 days after you learn you're relocating. You will need to show that you couldn't reasonably have known about the relocation and that you can't reasonably delay the relocation. In addition, in circumstances of domestic violence or where you or your child's health or safety is at risk, you may delay notice.
How does the court decide whether to allow the relocation?
In Washington, there is a presumption that the primary residential parent will be permitted to relocate with the children. It is the burden of the objecting party to show that the negative effects of the move outweigh the benefits to your child and the custodial parent, and the court should not allow the children to move. The court considers the following factors:
The relative strength, nature, quality, extent of involvement, and stability
of the child's relationship with each parent, siblings, and other significant
persons in the child's life;
Prior agreements of the parties;
Whether disrupting the contact between the child and the person with whom
the child resides a majority of the time would be more detrimental to
the child than disrupting contact between the child and the person objecting
to the relocation;
Whether either parent or a person entitled to residential time with the child is subject to limitations;
- The reasons of each person for seeking or opposing the relocation and the good faith of each of the parties in requesting or opposing the relocation;
The age, developmental stage, and needs of the child, and the likely impact
the relocation or its prevention will have on the child's physical, educational,
and emotional development, taking into consideration any special needs
of the child;
The quality of life, resources, and opportunities available to the child and to the relocating party in the current and proposed locations;
- Potential alternative arrangements to foster and continue the parent -child relationship between the child and the other parent;
- The alternatives to relocation and whether it is feasible and desirable for the other party to relocate also;
- The economic impact and logistics of the relocation or its prevention; and
- For a temporary order, the amount of time before a final decision can be made in court.
May I move my children within the same school district?
If your move will be within the same school district in which your child currently resides, then you must give actual notice, preferably in writing, to every person entitled to visitation with your child. You must provide each person with your new address, your telephone number, and any new daycare provider or school. No one may object to this type of relocation.
May I move without my children?
Probably yes, but it may not be wise. If you are thinking of moving away from your children, check your final parenting plan to see if it includes requirements about the geographical living arrangements for you and your former spouse. Because there are no statutory prohibitions on you moving, if there are no requirements within the parenting plan, you will be free to move. However, consequence to your parenting relationship with your children could be extensive and you should discuss these with your attorney. Your move may require a modification of your current parenting plan. You should discuss a potential modification due to a change in your location with your Washington family law attorney.
If I don't have children with my former spouse, can I move?
Yes. If you do not have children with your former spouse there will be no restrictions on you moving. However, there may be instances where it is necessary to exchange new information with your former spouse, especially if your divorce judgment includes continuing financial obligations to one another. If your divorce judgment includes provisions for you to remain and maintain the marital home, you will want to discuss your move with a Washington divorce attorney.
Parenting Together After Divorce
When you have children, divorce rarely ends the need for you to have some working relationship with the other party (and their extended family). You will likely be co-parenting with your former spouse for many years to come. If you have a contentious relationship with the other party, it can lead to frequent litigation. This can be expensive and stressful. As such, it makes sense to do your best to understand your co-parenting rights and responsibilities at the time of divorce, so that you can avoid unnecessary litigation and contention.
What is the best way to communicate with my former spouse?
Some parents are able to move seamlessly into their post-dissolution co-parenting relationship. They are able to negotiate and communicate without court intervention. Respectful communication between parents is in your and your children's best interest.
Unfortunately, in many cases the co-parenting relationship can be high conflict, or parties may feel uncomfortable dealing directly with one another. In these circumstances it might be beneficial to develop a method of communication that minimizes direct contact; this can include online calendars (for children's appointments and the visitation schedule), email, and a notebook that travels with the children between homes. Try to avoid communicating about issues unrelated to the care of the children.
Can my former spouse be present during my parenting time?
Many children participate in extracurricular activities on various days during the week. As such, it is not uncommon for divorced parents to see each other on a semi-frequent basis. This can be uncomfortable, but there is usually nothing in a parenting plan that prohibits attending events (taking place in public) during the other parent's residential time. In fact, while it may be unfortunate for you, it is probably good for your child to have both of his or her parents there to support him or her. Your children should be allowed to greet their other parent at these events.
That said, your former spouse is not allowed into your residence without your invitation, even for holidays or the children's birthday parties. If your spouse continuously shows up at your home uninvited, and you believe their behavior rises to the level of stalking, then you should consider seeking a restraining order.
What if I disagree with my former spouse's parenting style?
The court will not get involved in differences of parenting style unless your child's other parent is being abusive to, or neglectful of, your children, or violating your parenting plan. Choosing to have a detailed parenting plan can help ensure that your children are parented in somewhat similar fashions at both homes. That said, disagreements over parenting style may still occur, and often must be settled between the parents. You may have to focus on your own parenting and try to adjust to your children receiving another style of parenting while at the other parent's home.
What if I do not want my former spouse's new romantic partner around my children?
While it is understandable to be nervous about any new adult being around your children, unless the other parent allowing this contact violates your parenting plan, you usually have no legal recourse. If you would like this issue addressed in your parenting plan, you might consider the following provisions:
- A provision requiring that only adults that have a blood relationship to the child may stay at the home while the children are present.
- A provision granting a right of first refusal. This means that if one parent is unable to care for the children during his or her parenting time, then the other parent shall be offered that time first (before a babysitter or even a stepparent).
- A provision including an agreement that no new romantic partners be introduced to the children, until certain requirements are met (such as six months of dating or a meeting with the other parent).
What if my former spouse says bad things about me to my children or to others?
Generally, there is no legal recourse. In extreme cases, if your co-parent "brainwashes" your children against you, and your children participate in insulting you, you may have a claim for parental alienation. Similarly extreme, if your co-parent lies about you in public and thereby causes monetary damage to you, you may have a claim for defamation. Both kinds of claims are difficult to win. If you believe you may have such a claim, you should contact a lawyer.
It may be worth keeping a record of insults stated in front of your children, in case your parenting case ever ends up in court again. It may be possible to offer these statements as evidence of your former spouse's inability to act in your child's best interests.
What if my former spouse violates the parenting plan?
If your parenting plan is violated you will want to review the parenting plan itself to determine whether the plan guides what action you take. The plan may require that you use mandatory dispute resolution prior to going to court in the case of minor violations.
However, in cases where the violations are more serious, such as when your former spouse withholds visitation or prevents phone contact, you may file either a motion for enforcement or a motion for contempt. These motions are filed with the family law court. Usually the court will conduct a hearing after 14 days. A motion for contempt requires additional steps, and therefore the process takes a bit longer.
If the court finds that there was a major violation of the parenting plan, it may do a variety of things in response. It may do nothing, enforce or modify the plan, order any missed residential time be made up, and/or award attorney fees to the non-violating party.
If the other parent is violating your parenting plan, you should speak with a Washington divorce lawyer to discuss your options.
Will the police enforce my parenting plan?
Usually, no. Enforcement of your parenting plan is a civil matter. As such, absent some criminal act, the police will not get involved. Your best choice is usually to proceed in civil court as discussed above.
What if my children don't want to see my former spouse?
You must do what you can to facilitate visits with your former spouse and comply with the parenting plan. That said, if you believe your children are being abused see the section below.
What if my children are being abused?
If you think your children are in immediate danger, you should call 911. In addition, you and your attorney may also request an emergency order in court. This hearing, called an "ex parte" hearing (meaning without one party present), is an emergency hearing (with little or no notice to the other party) that may allow you to obtain an order that will take effect immediately. As part of your ex parte hearing, you will need to write a declaration, explaining the immediate danger and why the court should give you emergency custody. You will also need to explain to the court the efforts you will take to contact your former spouse before the order is signed (or why you should not give your spouse notice). The court may then make an order awarding you temporary sole custody and will arrange to serve the order on the other parent. If the child's other parent contests the order, there will be another hearing in 14 days.
If there is not an immediate danger to your children, you should call your local Child Protective Services office (part of the Washington Department of Social and Health Services), your local police department, your county sheriff, or the Washington State Police. State that you wish to report suspected child abuse. In non-emergency situations, it might be wise to contact a family law attorney prior to calling the authorities. Your lawyer can give you a realistic evaluation about how the court or welfare office might respond. This could help you avoid having to pay the other party's attorney fees or other sanctions for unwarranted abuse reports.
MODIFYING PARENTING PLANS
Can I modify my final parenting plan?
It is important for divorcing parents to know that courts want children to have stability and continuity. Modifications of parenting plans can be disruptive to children, and thus courts are reluctant to allow modifications. With that in mind, it is important to draft a parenting plan that you are unlikely to want to modify. However, if the need for modification cannot be avoided, the parent seeking a change will have to decide whether to seek a minor or major modification. Each type of modification has its own process.
How can I obtain a major modification of the parenting plan?
If the change you seek will change significant portions of the parenting plan, like the primary parent designation, or significant changes to the residential schedule, then you are seeking a major modification. In order to obtain a major modification, you will need to demonstrate to the court that there has been a substantial change of circumstances for either your child or your former spouse, or that the current circumstances of your former spouse (the parent not seeking modification) were unknown at the time the plan was entered. To be valid, the change in circumstances must fall into one of the following categories:
- The primary residential parent under the current parenting plan has let the child live with the other parent for a substantial duration;
- The child's residence under the current parenting plan is mentally, physically, or emotionally unsafe for the child and it would be more harmful to leave the child than to move the child to the other home; or
- The other parent has been held in contempt of court at least twice in three years for not following the parenting plan or has been convicted of custodial interference.
- The major modification must also serve the best interests of your child.
What if I only want a minor modification of the parenting plan?
When a party wants to make relatively small changes to the parenting plan, then they are seeking a minor modification. Minor modifications include changing things like the dates of birthday visitation or the dispute resolution process. It is easier to obtain a minor modification. To obtain a minor modification, you must show a substantial change of circumstances of either you, the children, or your former spouse. Changes to your residence or work schedule may qualify as a substantial change of circumstances for these purposes.
Can parties just agree to changes?
Yes. Residential schedules may be modified by agreement at any time. It is almost always advisable to put any modification in writing with both you and your former spouse's signature included. You can then file the modified plan in court and ask a judge to sign it. After your modified parenting plan has been approved by a judge it will be a court order, replacing the former parenting plan.
When a party fails to pay support or maintenance
What if the other party does not pay child support?
A parent whose children who have ever received Washington public assistance, will generally be assisted by the Washington Department of Social and Health Services, Division of Child Support (DCS) in collecting child support (in addition to providing other services, such as establishing paternity and collecting past-due medical payments). Part of the collection of past-due support often includes garnishing the wages of the non-paying party.
If DCS is unable to collect the support owed to you, then the Prosecutor's Office of your county will assist you in obtaining the past-due child support. This is generally accomplished by filing a motion for contempt (for willful violation of the child support order).
You also have the choice of hiring a private attorney to assist you in collecting past-due child support. Hiring a private attorney will permit you to be in charge of the collection process, and obtain more legal advice. You will also have someone who will be advocating for you throughout the process. DCS and the Prosecutor's Office, on the other hand, work for the public (however, the interests may be aligned as both you and DCS have an interest in the child support being paid). The process of collection by a private attorney can be faster than the process of government collection.
Collection companies may also be hired for collection of child support. These companies vary in effectiveness.
The cost associated with the collection process varies depending on who you choose to assist you. Support services by DCS or the Prosecutor's Office generally may have an associated cost of up to $25 per year per case. Private attorneys usually charge hourly rates (sometimes the court will order the non-paying parent to reimburse your attorney fees). For-profit companies often charge a percentage of whatever amount they collect for you.
What if the party obligated to pay spousal maintenance fails to do so?
If the spouse obligated to pay spousal maintenance is also obligated to pay child support, DCS may assist you in obtaining the back maintenance in ways similar to the process for collecting past-due child support. In the alternative, you can obtain private legal counsel to represent you (sometimes the court will order the non-paying party to reimburse your attorney fees). The hired attorney will bring a motion for contempt against the party failing to pay maintenance. The attorney may seek to collect the past-due amount through wage garnishment or by other means.
adjusting and MODIFYING SUPPORT ORDERS
Does the court have the ability to modify my spousal maintenance order?
Yes. Either spouse may file a motion requesting the court modify spousal maintenance at anytime. The court will amend the order if it finds a substantial change of circumstances has occurred that was not contemplated by the parties at the time the order was entered. The filing party has the burden of proving the change in circumstances. If the party paying maintenance is the party that filed the motion, that person will usually need to be prepared to show the court that their income has decreased or their expenses have increased (because of a new child, for example). If the person receiving maintenance files for modification of spousal maintenance, that party will want to show the court that the other party's income has increased since the current order was entered.
You cannot obtain spousal maintenance after divorce if your original divorce judgment did not provide any spousal maintenance.
Can the court change an order of child support?
Yes. There are two ways parents can seek to have the court modify orders of child support: modification or adjustment. An adjustment is usually quicker and simpler than a modification. However, it limits what type of changes you can make to the order of child support. During an adjustment action you can only change the amount of support to be paid. A modification may take longer, but if the modification is granted, you may be able to change things like how expenses such as daycare, education and uninsured medical are paid.
Adjustments may be filed in the following circumstances:
- If the order of child support permits you to file for an adjustment, and you have followed the steps set forth in the periodic adjustment paragraph of your order, but have not been able to resolve the adjustment issues with the other party;
- If a minimum of two years have passed since the current order of child support was entered and the child support schedule has been changed, or your income has changed since the original order was entered; or
- If a year or more has passed since the current order of support was entered and any child has changed age categories.
If you can't meet the requirements for an adjustment, or you want to change something other than the amount of support owed, you will want to seek a modification of the order of child support, instead of an adjustment. Modifications may be ordered by the court if the court finds that there was an un-contemplated and non-voluntary change of circumstances (for example, this would not include you choosing to leave your current employer or taking a lower paying role at the same employer, and then asking for your responsibilities under the order to be reduced). Some other circumstances under which the court may order a modification of the order of child support include:
- If you meet the requirements for filing a motion for adjustment;
- If one year has passed since your current order of support was entered and the order causes severe economic hardship, you want the other parent to pay support beyond 18 and while your child is still in high school, or you want to add an automatic adjustment according to the statute; or
- If the current order of child support was entered by default.
The process of adjusting or modifying an order of child support can be complicated. In addition to their complication, in some circumstances the potential adjustment or modification will not be worth the resources you will have to expend in the process. A Washington attorney can advise you of the soundness of seeking an adjustment or modification in your circumstances.
Can the court change past support orders?
Generally no. However, in limited circumstances (where the ability to change past amounts of support owed is permitted within the order of child support) the court may order that it be done. Also under limited circumstances, the court has permitted the parent to change a past order when he or she has been paying the other spouse child support while the child had been living at the paying parent's home. It is extremely rare for the court to retroactively modify past child support orders, so it is important that you speak with a family law attorney as soon as you believe you have circumstances that warrant a modification of child support.
Parenting as a single parent
There are numerous worthwhile resources available for divorced parents. In addition to seeking out these resources, it may be worthwhile to seek resources for your children directly. In addition, here are some suggestions for easing the transition for children:
- Encourage children to have a relationship with the other parent, and help them adjust to life in a two-home family. This will not only benefit your kids, it will reflect well on your parenting abilities should you ever need to request a modification of the parenting plan.
- Celebrate differently, but with just as much enthusiasm. For many newly-divorced parents they will experience not have their kids on holidays for the first time in their child's life. Instead of dwelling on what you don't have, create new traditions and ways to celebrate, even if Christmas does have to come to your house on the 23rd instead of the 25th.
- Monitor your children's ability to adjust to their new family structure and assist them when you can. If they are young, give them a comfort item that they can bring with them no matter which house they are at. If they are older, consider asking your spouse to agree to regular phone conversations with the parent the kids are not residing with. These ideas can help children while they adjust to not seeing both their parents on a daily basis.
DATING & REMARRIAGE
Is there a waiting period before I can remarry?
In Washington State you can remarry as soon as your divorce is final.
How does remarriage affect spousal maintenance?
In most cases, remarriage of the spouse receiving spousal maintenance will end that spouse's right to receive maintenance. If the spouse paying spousal maintenance gets remarried (especially if the marriage includes adding children or stepchildren to the household), that spouse may want to seek a modification of their spousal maintenance due to increased financial obligations.
Emotional recovery after divorce
Ending a marriage is more than a legal process. It is a process that ends an important relationship between two people, and can have ramifications on many other relationships in a person's life. It is important that parties recognize how ending their marriage may affect their emotional or mental health. Counseling, family and friends, support groups, and clergypersons are all potential resources to help divorced spouses navigate their emotions and life after divorce. A qualified Washington divorce attorney can assist you with the legal process.