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Seattle Family Law Blog

The Residency Requirement

Written by Wolfgang R. Anderson

Attorney at Law

Anderson, Fields, Dermody & McIlwain

A party has to be a resident of the State of Washington before being able to file for a divorce. No time frame need be met for residency if a person wishes to file for dissolution so long as they are a resident of the State of Washington. If challenged, a person has to show that he/she has been a resident (voting in state, owning a home or renting one). This means an out of state person cannot initiate a dissolution as a petition in Washington unless agreed to.

Time lines are irrelevant, but intent to be a resident is material. As stated, intent can be shown through the renting of an apartment, buying property, registering one's car, registering to vote, and statements to third parties that they intend to be a resident of the State of Washington. A court will scrutinize one's acts to determine if one party in fact is a resident or is commencing a bogus proceeding.

The Term "Parenting": What Does It Mean

Written by Wolfgang R. Anderson

Attorney at Law

Anderson, Fields, Dermody & McIlwain

Instead of the term "custody" and "visitation" we now use the term "parenting time". A form Parenting Plan can be found at the back of this book. It must be followed section by section.

Because the term "custody" was abused by those who needed to be known as "the custodian" needless and harsh battles were fought. To ameliorate the issue custody was even split into "legal" and "physical" custody. Thereafter and for a short time it became "joint custody". Ultimately, our courts settled on the much more benign and neutral term "Parenting time."

As can be seen from the Parenting Plan attached, we now say the children are in the parental care of X at the following times and Y at other times. (Gone is the term visitation.)

Parental cooperation should consist of: (a) A flexible, predictable schedule of access so that the expectations of children are not disappointed; (b) An understanding and joint planning of activities to avoid conflicts and to foster harmony; (c) An agreement regarding gift giving to prevent "sugar-daddying" by either parent; and (d) Regular baby-sitting arrangements with capable sitters (preferably licensed). The best result is most often achieved when parents allow the other to provide care when they are unable. Such a result also verifies our law which states that parents are preferred over third parties.

Younger children tend to need more predictability in their lives. The fact that mom and dad are no longer together is unsettling. While children are adaptable, they need reassurance they are not being abandoned. They need to feel secure. The more clear cut and easy to understand their structured surroundings the easier it will be for them to adapt and the less likely they will act out and create problems.

The Children: Common Grounds

Written by Wolfgang R. Anderson

Attorney at Law

Anderson, Fields, Dermody & McIlwain

No matter how abrasive or traumatic a relationship, or how bitter the parties feel vis-à-vis one another, children should not be made a part of a party's acrimony and ire. Generally speaking, children should be encouraged to have a healthy outlook toward both parents and should be advised to visit liberally and foster harmony.

If possible, parties should attempt to agree on common curfews, rules, presents and guidelines.

Residential arrangements should be effectuated by providing both parties and the children optimal time with each other, unless abuse, apathy, neglect, alcohol or drug dependency adversely affects a relationship. Neither party should be relegated to the position of an aunt or an uncle. Children should not be allowed to play one parent against the other, which often happens when children are in their teens. Spouses should realize that parenting is for the benefit of their children and not a tool to get even. A child should not be made a litigant's soldier.

The Children: Common Grounds

Written by Wolfgang R. Anderson

Attorney at Law

Anderson, Fields, Dermody & McIlwain

No matter how abrasive or traumatic a relationship, or how bitter the parties feel vis-à-vis one another, children should not be made a part of a party's acrimony and ire. Generally speaking, children should be encouraged to have a healthy outlook toward both parents and should be advised to visit liberally and foster harmony.

If possible, parties should attempt to agree on common curfews, rules, presents and guidelines.

Residential arrangements should be effectuated by providing both parties and the children optimal time with each other, unless abuse, apathy, neglect, alcohol or drug dependency adversely affects a relationship. Neither party should be relegated to the position of an aunt or an uncle. Children should not be allowed to play one parent against the other, which often happens when children are in their teens. Spouses should realize that parenting is for the benefit of their children and not a tool to get even. A child should not be made a litigant's soldier.

Separate Property Owner Must Prove: The Burden of Proof

Written by Wolfgang R. Anderson

Attorney at Law

Anderson, Fields, Dermody & McIlwain

Where separate property funds have been so commingled with community funds that it is impossible to differentiate between them, all of the funds become community property. Bank accounts provide the best example.

Often spouses use bank accounts which existed prior to marriage or contained inherited money (by definition, separate property). After marriage, earnings or wages may be deposited into them and/or funds withdrawn (i.e., an in and out process). It could also be a bank account opened after marriage and into which separate monies are deposited. Most likely the comingling occurs in a checking account into which deposits are made and from which frequent dispersals are made. Chances are slight a segregation of community and separate funds could withstand any scrutiny. It is possible, but highly unlikely. The result is the creation of a community bank account, even if it is in the name of only one of the spouses. On the other hand, if there are few dispersals and clearly traceable deposits of large chunks of separate property, a segregation could be successfully conducted. It will remain separate.

CHARACTERIZING PROPERTY: COMMUNITY VS. SEPARATE

Written by Wolfgang R. Anderson

Attorney at Law

Anderson, Fields, Dermody & McIlwain

Generally

Before a court can make a division it must characterize the parties assets as either community or separate. Only then can it divide them. (That is because a party may be able to retain a separate asset without offset . . . not the case with community property.)

Separate Property

Separate property is legally defined as property acquired before marriage (and maintained as such), or assets acquired after separation (a permanent separation), or acquired as a result of a gift, inheritance, or devise and kept separate.

Through case law, property acquired during marriage is presumed to be community property. It is one of the strongest and most important presumptions of our community property system. (In layman's terms, the burden of proving property is reversed, i.e., it is community until you prove differently.)

Funds or property acquired in other states as separate property (by virtue of the law of such states) and brought into Washington and if not commingled with community property, likely will also retain its status and be classified as separate property. An allegation of this type to be considered must be recited in the petition and later be deemed applicable.

Dividing Property

Written by Wolfgang R. Anderson

Attorney at Law

Anderson, Fields, Dermody & McIlwain

Generally: What Happens To Property

Foremost on everyone's mind is "how does a court divide our estate?" The bottom line is it's all a matter of economics, which entails providing the disadvantaged spouse more than one-half, generally 55%, of the total net worth (asset value less what's owed) of the estate.

Dividing property constitutes one of the least understood yet simple processes in dissolving a marriage. Washington is commonly known as a community property state. Many people think they know what this means but they don't.

The basic premise of community property in a dissolution is to place litigants in equality considering (a) their overall earnings and capacity, (b) their separate property, (c) their age, and (d) their health. "Equal" can therefore equate to unequal.

Many laypersons harbor misconceptions about the meaning of the very word "property." One should not be surprised to learn that "property" includes far more than tangible "items" a person can touch, see and feel. Property includes "interests in" things and "rights in" contracts, pensions vested or not, stock options and awards, etc.

Appeals

Written by H. Michael Finesilver (f/k/a Fields)-Now Retired 

Attorney at Law

Anderson, Fields, Dermody & McIlwain

Appeals

This blog provides explanations of things anyone who wants to appeal or defend against an appeal should know in any marital dissolution or parenting dispute. It is the result of over forty years of professional experience pursuing and defending against appeals in those kinds of cases. Appeal means filing a case in the State Court of Appeals or State Supreme Court.

Temporary Orders Cannot Be Appealed

There is no right to appeal any temporary order. Review of temporary orders decided by Court Commissioners can only be by a motion for revision to be heard by a superior court judge, and only if the motion is filed and served within 10 days of the entry of the Commissioner's order. A judge's order on a motion for revision of a temporary order cannot be appealed.

Appeals to the state Court of Appeals must be filed and served on the other party within thirty days of either the date of entry of the superior court judge's final orders, findings of fact and conclusions of law, or the date an order on a motion for reconsideration of any aspect of the judge's final orders, whichever date is later. Any appeal filed later than that thirty day window will not be heard.

Why Appeals Are Difficult To Win

Appeals are decided by a panel of three judges. Appeals are difficult to win because of what they do not involve.

The Court of Appeals will not review credibility disputes. This is a great source of frustration for a lot of people. The panel might will not review whether the trial judge got it wrong when it believed the other party or witness or found that the appealing party was a liar. Deciding who was lying and who was telling the truth is known as a "credibility determination". Courts of appeals do not make credibility determinations. Credibility determinations are not legal errors. They are NOT appealable. A lot of lawyers who handle an 

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Anderson, Fields, McIlwain & Eubanks, Inc., P.S.

Anderson, Fields, McIlwain & Eubanks, Inc., P.S.
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