Bellevue Family Law Frequently Asked Questions
Making important decisions about your family's future can be difficult -- and learning about the legal avenues that can make those changes happen can also be hard. This page of Bellevue, WA, divorce frequently asked questions is here to help those who are learning about Seattle family law issues such as divorce, child custody, domestic violence, and divorce mediation.
Do you have a question that isn't addressed below? Contact us today to talk to an experienced Seattle family law attorney.
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Are retirement accounts considered marital property in a divorce?
Most people who get married plan for a financial future together. That often includes sharing many assets and saving for retirement. But not all partnerships last, and sometimes, despite your best efforts, the relationship ends in a divorce. When this happens, it can throw many of your future plans into disarray and cause a variety of problems when it comes to dividing up your shared assets. Asset division is often one of the most challenging parts of a divorce, and dealing with retirement plans is no exception to that rule.
Retirement Plans as Marital Assets
The state of Washington is a community property state. This means, most types of assets that you or your spouse acquire after marriage become shared, giving you both equal ownership interest in case of divorce. There are certain exceptions such as inheritances given solely to one partner or anything that you or your partner owned individually prior to marriage. However, if you “commingle” your assets with your spouse’s such that they are indistinguishable from community property, those assets will be considered community property.
Retirement earnings or investments made by you or your spouse after marriage also count as community property during a divorce, so you are eligible to receive your fair share. This includes accounts such as:
- 401(k) or 403(b) plans
- IRAs (traditional or Roth)
- Pension plans
- Employee stock option plans (ESOPs)
- Keogh plans
- Other Employee Retirement Income Security Act (ERISA) plans or funds
Even if only one spouse contributed to the fund during the marriage, it’s still considered community property during the divorce. Both partners are eligible for a fair share of all retirement accounts, so you should expect this to be a point of negotiation during your divorce.
Do not try to move or withdraw retirement assets during the divorce until asset negotiation is complete. Not only could you face heavy tax consequences for early withdrawal, it could be considered an attempt to hide assets from your spouse, which is illegal and can cost you heavily.
Dividing Retirement Accounts in a Divorce
In many divorces, retirement accounts are the biggest assets that must be divided, so it’s usually in your best interest to be careful about negotiating for your share. In some cases, such as when splitting an account is impossible or would incur tax penalties, one spouse may choose to keep the account in exchange for an equivalent value in other assets. For the spouse who wants to keep a retirement account, he may also agree to take on a portion of a debt of equivalent value.
In some cases, a Qualified Domestic Relations Order, or QDRO, may be necessary to split a retirement account such as a 401(k) without incurring tax penalties. With a QDRO, you may choose to let funds stay in your spouse’s account until you retire, or you may roll them over to an IRA. You may also choose to take a cash distribution, but you will face early withdrawal penalties if you’re under age fifty-nine and a half. You may also choose to take a partial cash distribution and roll the remainder over into an IRA, in which case you would only face the early withdrawal penalty on the cash.
Get Legal Assistance
The rules about retirement accounts and how assets should be divided can be complicated. Consult with an experienced family law attorney to make sure your rights are protected and you’re not leaving assets on the table that are rightfully yours.
The attorneys at the Law Offices of Molly B. Kenny have decades of experience with divorce and other family law issues, including complex asset issues and high-value divorce situations. To arrange a private consultation with an attorney at our Bellevue location, call us, or use our online contact form to send an email.
What’s the Difference Between Legal Custody and Physical Custody of a Child?
Child custody is often a primary issue in a divorce. Defining a parenting plan with your spouse to determine custody can be a real challenge, especially if it’s a high-conflict divorce. In some cases, the court has to make a ruling about which parent will be responsible for the kids or how responsibility will be shared between parents.
If you have children and are getting a divorce, it’s important to understand how custody works in Washington, including the difference between legal and physical custody, how to resolve child care disputes after the divorce, and how to get legal help.
Legal Custody of a Child
When an adult is granted legal custody of a child, he or she is responsible for making life decisions that affect the child. These may include:
- Ensuring that educational needs are met
- Making choices regarding the religious upbringing of the child
- Making appropriate healthcare and medical needs
Either one or both parents may be granted legal custody, depending on the specifics of the situation. The court will always try to rule about legal custody in such a way as to benefit the best interests of the child over everything else and will take many factors into consideration when doing so. A judge will consider child abandonment, drug or alcohol abuse, domestic violence or abuse towards the child or others in the household, how involved each parent has been in the child’s life overall, and other related issues.
What Is Physical Custody?
Physical custody is simply which parent the child lives with, either full-time or part-time. It is determined by a residential schedule that is spelled out, in detail, in the parenting plan. It’s very common for both parents to share legal custody, with one parent maintaining primary physical custody and the other having secondary physical custody. Time may be divided between parents equally, or one may have custody for a larger percentage of time.
Dealing With Custody Disputes
After a parenting plan has been made and approved by the court, both parents are expected to abide by it. If there is a special occasion or other situation that requires changes to the residential schedule, your parenting plan should have worked out in advance how such conflicts are handled. Usually, this is done by a simple agreement between parents to exchange times or dates to accommodate events such as vacations, camps, school trips, or other travel needs, or for special days such as birthdays, anniversaries, and other celebrations.
If you’re encountering more and more issues with the parenting plan and you feel the needs of the child aren’t being met, it may be time to ask for an alteration. This is done with a motion to the court and a decree in which you explain why you want such a change and why it serves the bests interests of your child.
Violation of a parenting plan is a serious offense that the court does not take lightly. If a parent isn’t meeting his or her responsibilities as agreed, the consequences can be severe. Some ways that a parenting plan may be violated include the following:
- Not letting the child visit the other parent
- Late in returning the child from visitation
- Refusal to return the child to the other parent at all
When legal custody is shared, violations of the parenting plan may include acts such as:
- Not including the other parent in a major decision
- Not informing the other parent of major medical issues
- Going against the wishes of the other parent
Failure to adhere to the parenting plan can result in a contempt of court charge against the parent. This can lead to fines, mandatory parenting classes or counseling, and a regular schedule of monitoring to ensure the plan is followed in the future. The court may also decide to make a modification to the parenting plan to encourage future compliance. There is also the possibility of jail time.
Get Legal Help With Your Custody Issues
If you’re having problems with your custody schedule or would like to make a change, a family law attorney can help you with the evaluation process.
The attorney at the Law Offices of Molly B. Kenny have been helping Washington families with their custody problems and other legal issues for decades, so let us use our years of experience to help your family, too. Call us, or use our online contact form to arrange a private consultation in our Bellevue office today.
What if we change our minds during a divorce?
After you and your partner decide to end your relationship, you both my regret the decision and question whether you really want a divorce. If you reach that point, it’s important to know if you can reverse your decision once papers have been served and divorce proceedings are in process.
When Divorce Isn’t Final
For couples who decide to reconcile before their divorce is complete, it’s entirely possible to halt the divorce process at any point, right up until the divorce has been finalized by the court. The state of Washington also imposes a 90-day “cooling off” period before a dissolution is granted, so there is a fair amount of time available should you change your mind. However, there are some rules to the process, so you should talk to your family law attorney as early as you can to get started with a dismissal.
If divorce papers have been served and the recipient has responded, you will need to file a petition asking the court to grant an order of dismissal. Both the person who initially filed for divorce and his partner (the respondent) must approve the dismissal, or it will not be granted.
This protects the legal rights of the respondent partner because this response to a divorce is actually a legal claim all its own, in the form of a counterclaim to the original petition for divorce. It also allows either partner the ability to get a divorce without the consent or permission of the other.
However, if the papers have not yet been served, or the recipient has not yet responded, it may be possible for the person who initially filed for divorce to unilaterally (without needing permission from the respondent) dismiss the divorce without needing the consent of the other partner. Similarly, if the respondent has only replied with a notice of appearance and has made no other legal answer or counterclaim, a unilateral withdrawal may be possible.
How Not to Cancel a Divorce
It’s not enough to simply ignore the divorce papers once they’re legally served. If the respondent is served but fails to answer and no petition for an order of dismissal is made, it’s possible that a default judgement could be made by the court, granting the divorce on the terms requested in the initial filing. In some cases, if nothing is heard from either side in the case, the court clerk may issue a warning that the case will be dismissed, but this could incur additional fees.
If you and your partner are considering divorce but neither one of you has filed, you may consider a legal separation first. A legal separation in Washington imposes a six-month period of waiting during which you cannot file for divorce. This is an option that some couples choose to grant additional time to either attempt to reconcile or to disentangle their lives and finances from one another. Once that time period is up, a simple motion can then be made to the court to formally dissolve the marriage, since the terms have already been agreed upon as a part of the separation process. Many legal separations do end in divorce. However, if you do successfully reconcile, the marriage can continue.
Once the divorce is finalized by the court, you are no longer married, and the divorce cannot be undone. If you’ve reconciled with each other at this point, you have the option of re-marrying your partner.
Get Legal Help Today
If you and your partner have begun the divorce process but think you’ve made a mistake, talk to a family law attorney to determine your options. The attorneys at the Law Offices of Molly B. Kenny have experience handling unique and challenging divorce cases, including high-conflict divorces and divorces where significant assets are at stake, and we’re here to help you move forward with your life. To arrange a private consultation at our Bellevue location, call us by phone today, or use our online contact form to send us an email.
How does Washington law define domestic violence?
Washington state offers a very broad interpretation of the term domestic violence. Washington law defines it as any physical harm, bodily injury, assault, or inflicting the fear of physical harm, bodily injury, or assault, between members of the same household or family. It also includes sexual assault by a family member, as well as stalking.
Here is some important information about domestic violence in Washington, including details about domestic violence charges, how victims can seek legal protection through the court system, and how to get help from an attorney.
Domestic Violence Charges in Washington
Since the legal definition of domestic violence is so broad, there are a number of acts or crimes that can potentially count as domestic violence when committed by one family or household member against another. This can include acts such as:
- False imprisonment
- Criminal trespassing
- Property damage
- Violation of protective orders
While these are all crimes when committed against anyone, when it happens at home between family or household members, it’s typically considered domestic violence. This is legally important because the state of Washington has mandatory arrest laws in certain domestic violence situations.
If a police officer responds to a 9-1-1 report of domestic violence and finds reason to believe (probable cause) that a domestic violence offense occurred within the past four hours, the officer is legally obligated to arrest who he believes to be the primary aggressor. This is sometimes known as the “four-hour rule,” and very little evidence is required to make an arrest, even if charges are later dropped.
Legal Protection From Domestic Violence
The state of Washington has several legal mechanisms that can help protect victims of domestic violence. One of the most common ways to protect yourself is with a domestic violence order for protection. The forms for this type of order can be obtained from the Court Clerk. Once the paperwork has been filled out you, will be put in contact with a judge to talk about it. If it’s an emergency, a 14-day temporary order may be put into effect immediately while a more formal hearing with a judge is arranged within two weeks. This hearing will determine whether the order should be extended to a year, or possibly longer, depending on the severity of the situation.
A domestic violence order of protection does several things to help victims, including barring the respondent (the person accused of domestic violence) to leave a shared residence or to stay away from your residence. It can also temporarily grant sole custody of children to one parent, and it can establish temporary visitation rights for a parent. An order of protection can also let you retrieve essential personal items from a residence and allow you the use of a family vehicle, if needed.
An order of protection does not offer a permanent solution to child custody, however. It also does not deal with the permanent division of assets, child support payments, or spousal maintenance payments.
Orders of protection are often confused with restraining orders, but restraining orders are actually a different type of court order. Restraining orders are usually a part of a divorce or other family law situation, and they have broader powers than an order of protection that include child support, spousal maintenance, and asset division.
Lastly, a no-contact order may be issued by the court when criminal charges for domestic violence are pending. You do not need to apply for this type of order, as the court will make the decision as a part of a bail hearing, arraignment, or sentencing for the accused. It does not offer solutions for child custody or support, spousal support, or asset division.
Getting Help for Domestic Violence in Washington
Nobody should have to suffer domestic violence in silence, regardless of gender or sexual orientation. You are not alone, and help is available. There are many resources available for domestic violence survivors in Washington and the Seattle/King County area, including emergency shelters and housing alternatives. A family law attorney with domestic violence experience can also help connect victims with the support they need.
The attorneys at Law Offices of Molly B. Kenny will be there when you need legal help with domestic violence or other family law issues. To arrange a private consultation in our Bellevue office, please call us today, or use our contact form to send an email.
How does community debt affect my divorce?
During the asset division phase of a divorce, you and your spouse will need to sit down and decide how to divide up your community property. According to Washington state law, community property is that which either you or your spouse have acquired since your marriage began. What not everybody realizes as they begin a divorce is that community property includes not only marital assets but also marital debts. Here’s what you should know about community and individual debts and how they’re handled in a divorce.
Different Types of Debt in a Divorce
When you or your spouse takes on debt during your marriage, this debt is generally considered to be marital property. That means, both you and your spouse share equal responsibility for that debt—usually even if you didn’t spend that money. You can be accountable for expenses such as:
- Medical bills and other healthcare expenses
- Your spouse’s student loans, if taken during marriage
- Educational expenses for your children
- A mortgage on the shared family home
- Home maintenance and repair costs
- Car payments
There are just a few examples of what is usually considered “community debt.” There may be other debts that are included, too, depending on your situation.
It’s important to understand that even if you didn’t know your spouse had incurred debt, it is still considered community debt. If you cannot come to an agreement with your spouse about who is responsible for what share of the community debt, the court will make a decision based on what it believes to be fair.
Separate Debts in a Divorce
There are also some expenses that you may not be responsible for and you may not include as part of community debt. These are called separate debts and include debts incurred by one spouse or the other before the marriage took place. You are typically not responsible for your spouse’s separate debt, and your spouse is not responsible for yours.
This also holds true for debts incurred once you separate. Once you physically separate from one another, any new debts incurred by your spouse are not your responsibility, unless those debts are on an existing account that still has your name on it such as a shared credit card. That’s why it’s important to open your own accounts and remove your name from shared accounts as soon as possible.
If you do decide to reconcile before your divorce is complete, be aware that you are also once again able to be held liable for those debts that your spouse incurred while you were apart.
Debts incurred that solely benefit one person’s separate property are also generally considered separate property, as well. For example, if prior to marriage your spouse owned a home and he incurred debt repairing or remodeling that home, that debt could be considered a separate debt, and you may not be responsible for a portion of it.
Under most circumstances, you are not allowed to use community property to pay for your separate debts during the divorce. However, it is possible to use community property to pay for things such as spousal support (alimony payments) or child support.
Get Legal Help With Your Divorce
The topic of asset and debt division during a divorce is a complicated one. Every family is unique, and what is considered community or separate property or debt in one case may not be in another. Review your divorce inventory carefully and discuss it with an attorney before you make a legal decision that could affect the outcome of your divorce, especially if you’re in a high-asset divorce situation. An attorney can help you protect your legal rights and advise you of your legal options.
At the Law Offices of Molly B. Kenny, we have decades of experience helping families through divorce. We understand that it’s a difficult time in your life, and we are here to help you and your family through the legal process, so you can move forward with your life. To arrange a private consultation at our Bellevue location, call us by phone today, or use our contact form to send us an email.
What does the term “irreconcilable differences” mean?
There are many reasons why a couple chooses to get a divorce. Money problems, cheating or infidelity, drug and alcohol addictions, or simply falling out of love with one another are some of the most common causes cited for splitting up.
However, when it comes to the legal paperwork for your divorce, there’s only one real reason that matters in the state of Washington: “irreconcilable differences.” It’s important that you understand what the term means to the no-fault divorce process in Washington and how the reason for your breakup could affect the divorce proceedings, including alimony and child custody.
No-Fault Divorces in Washington
In some states, there are at-fault divorces, in which you must have a stated reason for divorce and then prove that your spouse has violated the marital contract in some way. But that’s not necessary in the state of Washington, which adheres only to no-fault divorce laws. With a no-fault divorce, you do not need to have a specific reason to file for a divorce beyond believing that the relationship is irretrievably broken. That is usually the definition of “irreconcilable differences.”
What specifically constitutes an irreconcilable difference can vary depending on the couple, but here are some common examples of reasons why couples may decide to end a marriage:
- Frequent arguments or fights over one or more problems
- Child-rearing or other issues related to the children
- Financial concerns such as excess or uncontrolled spending or debt
- Religious conflicts or other matters of spiritual importance
- Problems with time management in the relationship
- Deeply held political beliefs or other differences of opinion
No matter the exact cause, the key to an irreconcilable difference is that it’s not something you feel can be solved with any amount of counseling, therapy, or open communication with your partner. Irreconcilable differences are terminal to the marriage, so if you believe that to be the case, you have grounds to file a divorce, and it will usually be granted.
How Irreconcilable Differences Affect Your Divorce
Proving marital wrongdoing is not necessary with a no-fault divorce proceeding, and Washington does not recognize at-fault reasons for divorce at all. The specific “difference” won’t affect the outcome of your divorce. However, evidence of certain kinds of wrongdoing could be used in making decisions about child custody and alimony.
In certain cases, evidence of infidelity may result in an increase in alimony payments if it is believed that the cheater used marital assets to fund the affair. Evidence of infidelity, drug abuse, or other marriage-breaking behavior may also be relevant during the child custody phase of a divorce, as it could bring into question your partner’s ability to make sound decisions when it comes to childcare.
Get Help With Your Divorce
Irreconcilable differences are an important part of a divorce in Washington. The issues that drove you apart may have persisted from day one, or they could have developed over the course of the marriage. In either situation, when you’ve had enough and decide that the marriage is no longer salvageable, a no-fault divorce due to irreconcilable differences is how you can move forward with your life.
At the Law Offices of Molly B. Kenny, we understand that it’s never easy to end a relationship. We serve a diverse range of clients in the Seattle area and have decades of experience with many difficult divorce situations, including high-conflict divorces, domestic violence cases, and high-asset situations where significant assets are at stake.
To arrange a private consultation to talk about your own divorce situation, call us today, or use our online contact form to send an email.
What should I do if I’m falsely accused of domestic violence?
Domestic violence is a serious problem all across the nation, including in Washington, and charges need to be taken seriously in order to protect lives. However, a false accusation of domestic violence by your spouse can leave you feeling embarrassed, angry, and afraid for your future. It’s easy to become paralyzed by emotions or act rashly in the aftermath, which may only make things worse. However, there are steps that you can take to protect yourself and how to get legal help.
After a False Accusation Is Made
A false accusation can be a powerful destructive force in your life, potentially alienating you from your family, friends, and even co-workers if the word gets back to your employer. It’s an extremely damaging form of revenge emotionally, socially, and legally. Sometimes it is used as an attempt to gain leverage during a divorce, particularly during child custody proceedings, as a domestic violence charge could result in losing custody or visitation rights, or both.
Domestic violence carries serious legal penalties that can affect your life for a long time. Most domestic violence is charged as a fourth-degree assault, which is considered a gross misdemeanor. A conviction can result in up to a year of jail time and a fine of up to $5,000, plus mandatory therapy that can take a year. A more serious charge is a second-degree assault, which is a class B felony. A conviction for this can result in up to a decade of jail time and as much as $20,000 in fines.
With either charge, it’s likely that you’ll lose the right to possess a firearm or a concealed carry license in the state of Washington if you are convicted. You also face the prospect of losing your job, particularly if you’re in the military, law enforcement, or certain other public service positions.
False Accusations Are a Crime
You should be aware that the state of Washington takes false accusations seriously. The person who makes a “false or misleading statement to a public servant” such as a police officer can be charged with a gross misdemeanor under state law. This type of crime can carry a penalty of up to a year in jail and a fine of up to $5,000. There may instead be a charge of “obstructing a law enforcement officer” in the discharge of his duties, which can carry similar penalties.
What to Do Next
Talk to an attorney as soon as possible, especially if you’ve already been arrested. Washington law mandates that an arrest be made if the violence is believed to have happened within the past four hours. Your attorney will be able to advise you of your legal options and what to do to protect yourself.
A no contact order or other protective order may be issued as well, legally barring you from speaking to or contacting your accuser. It’s important that you not violate this order. Your main recourse is to go through the legal system, which is why it’s vital that you reign in your emotions, get legal help, and think carefully before you act after the accusation is made. By keeping a cool head, you can avoid making the situation worse and ensure that your legal rights are protected.
How to Get Legal Help
At the Law Offices of Molly B. Kenny, we know how serious domestic violence is and how damaging false accusations can be. Not only does it hurt everyone involved in the situation, it also harms all the men and women who truly are the victims of domestic violence. Know that we treat all of our clients with respect, and we will work tirelessly to gather the necessary evidence that can disprove false allegations of domestic abuse and violence.
For a private consultation in our Bellevue office, please use our contact form to send an email, or call us today to discuss your situation.
What if both parents want custody of their children after a divorce?
Any time a couple with children decides to get a divorce, working out custody arrangements is usually one of the most important issues that needs to be addressed. In the state of Washington, this is done via the process of creating a parenting plan. But sometimes, both parents want custody, so it’s important to understand how the custody process works, what the court can do, and how to get legal help.
Washington State Parenting Plans
The courts in Washington use the term “parenting plan” to cover what other states call custody and visitation rights. The parenting plan is a document that details information such as:
- Where the children will live or a schedule of when the children will live with each parent
- How important life decisions will be made for the children such as health care, education, and religious upbringing, or which parent will bear that sole responsibility
- A method of resolving disputes when there is a scheduling conflict or another issue
When you think about your parenting plan, it’s important to include specific details, including weekends, holidays, and other special dates. It can be helpful to cite how birthdays will be observed and how to handle child care arrangements during the school year or when school is out. You should also include who will be responsible for transportation to and from exchanges or visitations. The court will review your plan and make a determination as a part of the divorce proceedings.
Dealing With Custody Conflicts
Ideally, you and your partner will sit down and come up with a parenting plan that works for both of you and present it to the court. If you can create a plan together that you both agree on, it’s likely that the court will grant consent for your arrangements.
However, there are times when you may not be able to see eye-to-eye with your partner and cannot come up with a parenting plan together—such as in a high-conflict divorce. In some situations, mediation may be able to help. While mediation can take a little bit of time, it often takes less time and costs less than a trial. It can help you and the children avoid some of the emotional stress of a protracted courtroom battle, too.
Additionally, the court may step in to create a parenting plan if you cannot agree on one. Whether a judge is creating a plan or is making a decision about one that you both agreed on, remember that one of the biggest factors the court must consider by law is the best interests of the child. This is the guiding principle behind any parenting plan. The judge may also consider factors such as:
- Whether one parent has been primarily responsible for the children in the past
- The ability of each parent to provide continued emotional, financial, and social support
- The ability to maintain the child’s current lifestyle
- The child’s existing relationships with siblings and other family members
- The child’s involvement with school, church, sports, and other extra-curricular activities
The wishes of the child may also become a factor, if the child is old enough to be able to share such wishes.
Once a determination is made about a plan, or if the court decides on a plan for you, it is legally binding once signed off by a judge. Violation of a parenting plan, once agreed to by the court, can result in fines or even jail time for the offending parent.
Get Legal Help With Your Parenting Plan
Few divorces are easy, and parenting plans can become complex and difficult. You don’t have to create one on your own, though. Your divorce attorney can help you craft a plan that works best for you and your family, as well as help you with negotiations and keep you informed of your legal rights during the divorce process.
The Law Offices of Molly B. Kenny offers family law services to a diverse range of clients throughout Washington, King County, and the Seattle area. To arrange a private consultation in our Bellevue office, please call us, or use our contact form to send us an email.
What if my spouse wants a divorce, but I don’t?
It often happens that one person in a marriage wants a divorce, but the other partner doesn’t. Perhaps there’s an objection for family reasons, religious beliefs, or maybe that partner just isn’t ready to move on. When only one partner in the relationship is ready for divorce, it’s important to understand the divorce laws in Washington State.
Washington No-Fault Divorce Laws
The state of Washington is a no-fault divorce state. This means, there is no legal need to prove that one spouse is responsible for the breakdown of the marriage or to find a “fault” with the relationship. A claim of “irreconcilable differences” by either party is enough for a court to agree to end the marriage.
In short, if one person wants out of a marriage, he is legally able to do so, whether the other person agrees or not. This is a freedom that hasn’t always been the case—prior to 1970, no-fault divorce laws didn’t exist in the United States. While a few states also maintain a fault-based divorce system, every state has since enacted some form of no-fault divorce. As a purely no-fault state, the state of Washington does not recognize fault in divorce proceedings at all, so claims and evidence of infidelity, abuse, or other issues aren’t needed to get divorced.
If you don’t want a divorce but your spouse does, you have few options if your spouse has made up his mind. You may try to talk through your issues as a couple, and you may consider marriage counseling or legal separation for a period of time. What’s most important, however, is not to be legally uncooperative.
High-conflict divorces are often time-consuming and expensive, and being the source of conflict is unlikely to make your spouse change his mind about ending the relationship. The emotional and psychological toll that a drawn-out and challenging divorce takes can be extremely high, not just for you and your spouse, but also for your family, especially if you have children.
However, you also don’t have to give up your legal rights in a divorce in the name of expediency. For example, you have a right to your fair share of marital property. Since Washington is a community property state, you typically have a right to half of all assets (and debts) that either partner has gained since the marriage. These can include:
- Cash, checking, and savings accounts
- Retirement accounts such as an IRA, 401(k), and pensions
- Investments, including stocks, bonds, profit-sharing plans, and mutual funds
- Life insurance policies
- Real estate, including the family home, vacation homes, and rental properties
There are many other kinds of assets to consider during the asset division phase of a divorce that you may have a right to, depending on your specific financial situation. Your divorce attorney will be able to review the facts of your case and help you negotiate with your spouse to obtain a fair settlement—or represent you in court if your spouse is being unreasonable.
Get Help With Your Divorce Today
Divorce can be legally complicated and emotionally challenging, but you don’t have to face it alone. If your spouse has asked for a divorce or has already filed, now is the time to seek legal help from a divorce attorney to discuss your options for moving forward.
To speak to an experienced divorce attorney about your situation, call the Law Offices of Molly B. Kenny. To arrange a private consultation with a legal professional at our Bellevue office, call us, or use our contact form to send an email.
Where can I file for divorce in Washington state?
When it’s time for a divorce, the question of jurisdiction can be a big one, especially if you and your spouse have already split up and no longer share a home. It’s important to know where to file, what’s involved, and how to get started.
Where to File Your Divorce Paperwork
At the start of any divorce, you need to file paperwork with an appropriate county court. You may choose to file in the county that either you or your spouse reside in, such as through the office of the King County or Snohomish County Court Clerk. You also have the option of filing for divorce in Lincoln County no matter where you live in Washington. Lincoln County is a unique divorce venue in Washington, as everything must be filed via postal mail there—no court appearances are required in Lincoln County.
If you have a choice of counties to file in, it’s worth consulting with your attorney before you make a final decision. Since divorces are handled on a county-by-county basis, each jurisdiction can make its own rules and laws about how marriages are dissolved, and there could be advantages or disadvantages for you depending on which county you pick.
How to Get Started
There are a few steps to take before you and your attorney file paperwork with the county. Once you’re ready to begin, there is a legal process to follow that is generally the same no matter what county you’re in. You’ll need to:
- Complete your divorce paperwork. In King County, the Petition for Dissolution of Marriage form will be your starting point. You’ll also need to fill out a Confidential Information form and complete the Notice About a Marriage or Domestic Partnership, also known as a summons, and a few other additional documents that your attorney can help you with.
- Legally serve the summons to your spouse. This document is the official notice to your spouse that you are filing for divorce. Broadly speaking, it cites the conditions of the divorce, including assets, child support, spousal support, and child custody. Your spouse has 20 days to reply, either by accepting or contesting the terms you’ve offered.
If your divorce is uncontested, the court will grant your dissolution of marriage after a 90-day waiting period. If your spouse contests your terms, you may enter into court-ordered mediation, so you and your spouse can work out an agreement that works for the both of you. Arbitration is another possibility, where you appear before an arbitrator who will make a binding ruling. If you still can’t come to terms, then you may need to appear before the court for a trial, where a judge will make a final ruling.
Trials can be time-consuming, as well as emotionally and financially draining, so in many cases it may be in your best interest to avoid trial, if possible. However, because you have certain legal rights in a divorce, it may be necessary to take things to court.
Get Legal Help With Your Divorce
An experienced divorce attorney is one of your greatest allies during your divorce. She will advise you of your rights and explain your legal options, help you with your paperwork, and represent you during mediation, arbitration, or a divorce trial.
The Law Offices of Molly B. Kenny has been serving Washington families for decades. Every divorce is unique, and whether you are dealing with a high-conflict situation, extensive assets, or a later-life divorce, we are here to represent you when you need experienced legal help. To arrange a private consultation in our Bellevue office about your divorce situation, call us, or use our contact form to send us an email.
Can a living trust be used to avoid probate?
In the state of Washington, the process of probate is for managing the estate of someone who has recently died without leaving directions on what to do with his property and assets. Going through the probate system ensures that the person’s final affairs are settled, and all assets and debts have been distributed or paid off according to strict rules that are dictated by state law.
However, probate comes with some considerable disadvantages for many estates, and it may be desirable to avoid the process as much as possible. If you want to have control of how your assets are distributed when you’re gone, a living trust is a tool you can use as part of your estate plan, and it can help your heirs avoid the considerable time and expense of the probate process, as well. Here’s what you need to know about getting started with a living trust.
Starting a Living Trust
Starting a living trust in the state of Washington isn’t difficult, but it does take some care and planning. At its heart, the living trust is a document that establishes a legal entity (a trust) in which a trustee is named and describes who will receive the property held by the trust when you die. These assets will transfer directly to the heirs or beneficiaries that you’ve chosen, without the need for probate court intervention.
There are two types of living trusts that are commonly used in the state of Washington: the revocable trust and the irrevocable trust. Deciding which trust is right for you is a matter to discuss with your attorney, as each has advantages and disadvantages that can affect your estate, including tax implications and rules about who can alter the terms of the trust. Revocable trusts are a common choice for many estates, due to the flexibility they offer.
Funding Your Living Trust
Regardless of which type of trust you choose, your trust must be funded to be of use. To fund a trust means to transfer the ownership of assets and property into the trust’s name. Only assets that are in the trust can be transferred upon your death to the beneficiaries, so it’s important to ensure that you fund the trust with all the assets you wish to pass on.
Many kinds of assets can be used to fund a trust, including:
- Bank accounts, including checking, savings, and money market accounts
- Real estate, including your home and other properties you own
- Vehicles, including cars, motorcycles, boats, and planes
- Other belongings, including antiques, firearms, jewelry, or other collectibles
Other kinds of assets may be put in the trust, as well, but there are some that you may not want to use to fund your trust, such as a 401(k) or certain other retirement accounts. The transfer of ownership can incur stiff tax penalties for early withdrawal on these types of accounts. Usually, these plans have their own provisions to name a beneficiary upon death, so the use of a trust is unnecessary. When in doubt, your attorney can help you decide which assets would be best used to fund your trust and which are best served by other parts of your estate plan.
Get Legal Help With Your Living Trust
A living trust is just one part of a complete estate plan, and it is rarely enough on its own to provide complete legal protection for your assets when you pass away. An estate planning attorney can help you decide how to build an estate plan that fully covers your needs and the needs of your family, so that you can ensure your loved ones are cared for after you’re gone.
If you have questions about starting a living trust or are ready to discuss your own estate plan with a legal professional, the Law Offices of Molly B. Kenny is here to help you. We have decades of experience helping families prepare for the future, and we look forward to serving your family, too. To arrange a private consultation in our Bellevue office, please call, or use our contact form to send us an email today.
How does substance abuse affect divorce mediation?
When you want to get a divorce in the state of Washington but can’t agree to the terms with your spouse, mediation is often the first step toward resolving your issues. Having a neutral third party to guide you both through the process of reaching an agreement comes with many benefits, including saving time and money. There are instances, however, when mediation is not always the best solution, such as when drug or alcohol abuse is involved. Here’s what you should know about the mediation process and how substance abuse issues can affect your divorce.
Getting Started With Divorce Mediation in Washington
Mediation isn’t required by law in the state of Washington. However, many localities, including King County, may have rules that require some form of “alternative dispute resolution” (ADR) if your divorce is contested, which in many cases means that the court orders you and your spouse into mediation before trying other methods of dispute resolution.
When you agree to mediation (or are ordered by the court), you’re agreeing to meet with someone who isn’t involved with your divorce or life affairs. The best mediators are typically professionals, and many have either practiced law as an attorney or may be retired judges.
The mediator will act as a go-between with you and your spouse as you each discuss the terms and conditions that you wish for your divorce. Frequently, mediators will seat you each in separate rooms to ensure that each spouse is able to speak freely to the mediator without causing additional resentment or ill-will. You’ll be able to discuss with the mediator what your wishes are and how you would like the divorce to go, which may include the way your marital assets will be divided (Washington is a community property state), child support payments, a parenting plan that details custody, visitation rights, and alimony or spousal support payments.
Your mediator will talk to you and your spouse separately over the course of the session, working to find a compromise that you both find acceptable. A mediation session may be scheduled for a full eight hours, so don’t feel the urge to rush into an agreement. It’s important that you take your time and think things through before you agree to a settlement.
When Divorce Mediation Isn’t the Answer
Drug or alcohol use is a factor in many divorces in Washington, and a substance abuse problem can make it difficult or even impossible to have a successful mediation. In order for mediation to have a chance at success, both spouses must be able to negotiate with one another clearly, fairly, and at least relatively amicably.
Sobriety is absolutely essential to the mediation process. Showing up to an appointment such as mediation or a court appearance while intoxicated generally precludes the ability to think clearly or otherwise apply logic and reasoning skills. Addictions may also alter the priorities of a spouse as well as cloud his thinking even when not actively intoxicated, making mediation impossible. In situations like this, going through the full process of a court divorce is often recommended by divorce experts.
Counseling for both spouses, as well as for any children that are involved in the relationship, may also be beneficial. Divorce is hard enough, and drug and alcohol issues only stand to make things more difficult. The help of professionals who are trained in substance abuse problems are likely to offer psychological benefits to everyone involved.
Get Help With Your Divorce
Whether mediation is the answer to your divorce issues or not, having a divorce attorney by your side can help you be sure that your legal rights are protected. Your attorney will be there for every step of the process, so you and your family can focus on starting your new life.
The Law Offices of Molly B. Kenny offers decades of divorce and family law experience, and we would like to help your family, as well. To arrange a private consultation with an experienced legal professional here in our Bellevue office, please call us, or use the contact form on this page to send an email now.
Is a community property agreement right for me?
In the state of Washington, married couples (and registered domestic partners) may change the way that property is transferred when one partner dies by using a community property agreement (CPA). This type of legal agreement can allow the surviving partner to avoid the Washington probate process, but it’s not always the right solution for every couple.
What a CPA does is allows all separate property of a spouse to convert immediately to community property upon death and then transfers it to the surviving partner without going through the probate process. This can greatly simplify estate planning, making the transfer to assets happen both faster and with less expense than probate.
How Community Property Agreements Work in Washington
The state of Washington is one of several states that governs the ownership of property in a marriage through the legal concept of community property. This means, when a couple decides to get married (or join in a domestic partnership), most property and assets acquired from that point onward belong to both partners in equal share. Any property owned before the marriage will remain as separate property, fully owned by whoever owned it before the marriage or partnership—unless those assets become “commingled” in such a way that they are indistinguishable from community property.
When a spouse dies, the share of community property that belonged to the deceased spouse will go to the surviving partner, unless he has a last will and testament that dictates otherwise. However, the will cannot give away the surviving partner’s 50 percent ownership interest of the community property. Without a will, separate property is divided equally between the surviving spouse and any children. If there are no children, the parents of the deceased will be owed a share. If the deceased partner had a last will and testament, he may leave instructions for the disposition of separate property to any heir or beneficiary he chooses.
In order to be valid, a CPA needs specific legal language arranging for the property transfer from one spouse to another upon death, must be agreed upon in writing by both partners, and must be signed before a notary public.
When You Should Consider Other Options
A CPA works for many couples, but it’s not always the right solution in every case. Sometimes, skipping probate can actually be a detriment to the estate. For instance, during the probate process, creditors have a four-month period to reply to an official “notice to creditors” and make a claim against the estate of the deceased; after this time period has passed, no more claims may be made. With a CPA and none of the protections afforded by probate, the time period for claims against the estate could be extended out as far as six years.
Another downside to the CPA is that it cannot be altered unless both spouses agree. It’s also important to include provisions to account for divorce in a CPA, or unintended consequences could result. A CPA is also typically an “all-or-nothing” document, in which you leave all or most of your assets to your spouse alone. Although provisions can be made to exclude particular assets from the agreement, generally it’s better to use a last will and testament in your estate plan if you want to leave some of your assets or property to someone else, such as an heir or other beneficiary. If you have both a CPA and a last will and testament, if there are any conflicts, the CPA will take precedence, so careful planning is always necessary to avoid any unwanted overlaps.
Get Legal Help Now
There are advantages and some disadvantages to using a CPA as a part of your estate plan, and only you and your partner can decide whether it meets the needs of your family. An experienced estate planning attorney can help you explore all your legal options and build a comprehensive plan that will ensure your loved ones are taken care of in the future.
Whether you’re ready to begin your estate plan now or have questions about your existing will, CPA, or other estate planning documents, the Law Offices of Molly B. Kenny is here to help you. To arrange a private consultation in our Bellevue office, call us by phone, or use our contact form to send an email today.
Is Washington a no-fault divorce state?
Divorce can be a confusing and stressful time for everyone, and there are many misconceptions about the terms “fault” and “no-fault” in the state of Washington. If you’re considering a divorce, it’s important to understand these terms and how they affect your divorce.
Fault Versus No-Fault Divorce in Washington
The first no-fault divorce law was enacted in 1970 by the state of California. Since then, every state in the union has recognized the benefits of no-fault divorce and has adopted some form of no-fault divorce law, and that includes Washington. There are some states that also maintain the option for a more traditional fault-based divorce; in those states, fault-based divorces may have an impact on spousal support (alimony) or other issues, depending on the local laws. Fault-based divorce is becoming less common across the nation, however, as a no-fault divorce is often simply faster, easier, and cheaper.
A no-fault divorce provides a freedom that a traditional fault-based divorce does not. No-fault divorce laws mean there is no legal need to make a claim of wrong-doing by your spouse. With a no-fault divorce, a marriage can be terminated at any time by either partner, and it’s not necessary to show evidence that the contract of marriage has been breached in some way. Thus, if either partner thinks that the marriage is irreparably damaged at any time, a legal divorce is possible for that reason alone.
The state of Washington, like many other states, is purely a no-fault divorce state. It does not offer a fault-based divorce at all.
Beginning a Washington State Divorce
To begin your no-fault divorce in the state of Washington, you’ll need to complete a Petition for Dissolution of Marriage, as well as some additional paperwork. You may fill out and file this paperwork yourself, but a divorce attorney can help ensure that everything is correct and that you aren’t accidentally giving away your legal rights.
If you and your spouse are residents of King County, your petition and other paperwork need to be filed with the King County Superior Court; otherwise, you may file for your divorce in the county that either you or your spouse live in. After your paperwork is filed, you’ll have to legally serve both the petition and a summons to your spouse.
There are specific rules for legal service regarding who may deliver the papers and how they must be delivered. Typically, they must be delivered in person, unless you have permission from the court to do otherwise; further, you cannot usually deliver them yourself. You may ask a friend to deliver the papers for free, but often the better option is to use a commercial service that specializes in this type of legal service. When in doubt, talk to your attorney about what would be your best legal option with regards to how to serve your spouse. Once papers have been served, your spouse has as long as thirty days to decide whether to contest the terms of the divorce.
If your spouse agrees to your terms and follows the instructions on the papers, a ninety-day waiting period begins, after which the court will grant your request for dissolution and you will be legally divorced. If your spouse contests the terms of your petition, the process may take longer, as mediation may be required to negotiate terms that you both find acceptable. If mediation fails, a trial may be necessary, which can take up to a year or longer.
Get Help With Your Divorce
Getting a divorce can be a lot to handle, but you don’t have to do it on your own. An experienced divorce attorney will be able to help you with the entire process from beginning to end, so that you can focus on moving forward into a new chapter of your life.
If you have questions about your divorce, the Law Offices of Molly B. Kenny is here to help you. To arrange a private consultation to discuss your divorce situation in our Bellevue office, please call us, or use our contact form to send an email today.
What is a civil annulment, and how does it differ from a religious annulment?
When you consider ending your marriage, divorce is often the most common solution. However, there is another way you can legally end your marriage—through an annulment. This legal procedure cancels a marriage and legally declares that it did not exist and was not valid. There are two types of annulment—civil and religious—and you may wish for one or both, depending on your personal needs and situation. If you choose an annulment over a divorce, it’s important to know the difference between the two types and how to get legal help.
Civil Annulments in Washington State
In the state of Washington, a civil annulment is usually reserved for special circumstances, as it is a more powerful legal option than divorce. Like a divorce, a civil annulment will terminate a marriage. However, unlike divorce, the annulment will also invalidate the marriage entirely as though it never happened.
Washington is a no-fault divorce state, meaning that either partner can initiate a divorce without needing a reason other than believing that the marriage is irreparable. However, an annulment must have statutory legal grounds to be granted, or a divorce is probably the better legal option. Some of the reasons the court may grant a civil annulment include:
- One or both parties were underage. In Washington, you must be 18 years old to get married or 17 with parental consent and a petition for special circumstances.
- Multiple spouses. Bigamy (having more than one spouse) is not legal under Washington law and is grounds for annulment.
- Close relations. Incestuous marriages are not permitted and may be annulled.
- Mental incompetence. If a spouse was determined to be mentally incompetent at the time of marriage because she was intoxicated, incapacitated, or mentally ill, she may not have been in a state to legally consent, and the marriage may be invalidated.
- Under duress. Coercion, through threats, blackmail, or force, is grounds for annulment.
- Fraudulent activity. If a spouse lied about an essential fact that would have influenced whether the marriage would have taken place, including past criminal history, sexually transmitted diseases, or certain other issues, the marriage may be determined as fraudulent and, thereby, annulled.
To attain an annulment, a Petition to Invalidate (Annul) Marriage form is needed from the Washington State Court. Since many marriages that are annulment end within the first year, there may be little need for asset division or child custody and support, but for a longer marriage annulment, there are state rules that can help with this process. Your attorney can assist you with the form and any supporting evidence you may need to make your case, as well as offer advice on the next legal steps during and after the annulment process.
Religious Annulments in Washington State
A religious annulment is a choice made by some people when their beliefs or religion disfavor or disallow divorce entirely. This process is not a part of the court system but, rather, a part of the church or institution to which you belong. However, it serves a similar purpose in that a religious annulment of a marriage typically decrees that the marriage was invalid from the beginning. In many cases, this allows you the freedom to re-marry in the future, depending on the policies of your religious institution.
To obtain a religious annulment, it’s common that you first obtain a civil annulment, but you’ll need to check with your church or religious leaders for details on what the requirements are and how to begin the process. In the Catholic Church, it’s common for a tribunal to have the final say, and it’s common for religious counseling to be required as a part of the process.
Legal Help With Marriage Annulments
If you have further questions about annulment or divorce and need help, the Law Offices of Molly B. Kenny is here to provide the answers you need. Our experienced family law attorneys understand the difficult time you’re going through, and we will be there to help you every step of the way. Please call us, or use the contact form to send an email and arrange a private consultation in our Bellevue office today.
What forms do I need to fill out in a Washington divorce?
On a purely legal level, marriage and divorce are both matters of paperwork. At a time in your life that’s often full of complex and highly-charged emotions, the technical procedure required to get started with a divorce can seem overwhelming and confusing. It’s important to understand the paperwork needed to get a divorce, including the official forms and other documents that you’ll want to have ready.
The Forms You Need for a Divorce in Washington
There are multiple pieces of paperwork and documents you need to prepare for your divorce. While all are important, there are several key forms that must be filed in order to initiate the divorce. Here are some of the most important forms you may need:
- Petition for Dissolution of Marriage. This is one of the longer forms you’ll need to fill out. It includes information about when and where you were married, information indicating that the court has jurisdiction over the marriage, whether you have children, marital debts and assets, spousal and child support, custody, and a formal request to dissolve the marriage. You can also use this form to change your name as a part of the divorce.
- Confidential Information. This form contains information not to be filed in the public record but is still necessary for the divorce. The only way that your spouse or his attorney can see the information contained on the CI form is by court order. It mainly asks about issues related to health and safety, including any restraining or protective orders—especially those that affect children. There is also an addendum form that may be required.
- Summons. The summons form, or Notice about a Marriage or Domestic Partnership form, is a two-page document that gets served to your spouse in order to begin the divorce proceedings. It notifies him that you have started an action to ask the court to end your marriage. This form is also used for ending a domestic partnership or engaging in a legal separation. Your spouse typically has twenty days to respond, unless he was served out of state, in which case the deadline is extended to sixty days.
There are other forms that may be required, including a vital statistics form. There is also additional paperwork if you’re requesting a restraining order or if you have children with your spouse. Your divorce attorney will be able to help you select which forms are necessary, how to fill them out, and how to file them.
In addition to filling out the right forms, you may also need to spend some time compiling some additional information to include with these forms. Financial paperwork such as credit card and bank statements, bills, records of debt such as loan or mortgage documents, retirement plan information, and deeds or titles to real property such as a home or a car may be needed. If your divorce involved domestic violence, you’ll want to compile medical records, police reports, logs of 9-1-1 calls, and other evidence of the situation.
If your spouse is the one who filed for divorce and you received a summons and a petition, the summons will include directions about how to reply. Typically, this reply is with a form called the “Response to Petition about a Marriage,” and is available, as are the other forms, on the website of the Washington State Courts.
Get Legal Help for Your Divorce
Legal divorce paperwork can be confusing, but you don’t have to face it alone. An experienced divorce attorney will be familiar with all of the necessary forms and can help you every step of the way.
To get the legal help you need with your divorce, the Law Offices of Molly B. Kenny is here for you. Reach out to us by phone, or send us an email via our contact form to arrange a private consultation with an experienced and caring attorney in our Bellevue office.
Is legal separation required before a divorce?
When people are considering a divorce, one of the first questions they have is about whether they need to go through the legal separation process first. Because there are many misconceptions and myths surrounding legal separation and divorce, it’s important to know the difference between the two and whether you really need to go through a separation before a divorce.
Legal Separation Versus Divorce
In the state of Washington, legal separation and divorce are actually very similar—but there are a few key differences, including:
- You cannot marry someone else. When you’re legally separated in Washington, you are still technically married in the eyes of the state. This means you cannot get re-married if you enter a relationship with someone else unless you proceed to a full divorce first.
- You must wait six months for a divorce. When you go through a divorce, there is a 90-day waiting period before the decree of divorce can be issued. When you legally separate, you must remain so for at least six months before the court will accept a conversion to divorce.
- Legal separation is not a divorce. The name itself matters to some people for moral or family reasons, religious beliefs, or personal preference. Some people or religions have a preference to avoid divorce. Legal separation allows a way for some people to go their separate ways without ever officially being “divorced.”
- Legal separation may let you keep insurance. When you get divorced, most insurance policies (such as health insurance) won’t let someone who isn’t married stay on a family policy. By contrast, many policies allow legally separated partners to remain on a shared policy. It’s important to check with your insurance agent or insurer about this.
The procedures for a legal separation are nearly identical to those of a divorce. The same legal statute in the Washington Revised Code applies to both, and the same standards of asset division are followed. That is, alimony is calculated the same way, parenting plans for child custody are formulated in the same way, and any community property is divided up equally, just as with a divorce. The paperwork filed with the court is also almost identical.
Separation Before Divorce
You do not need to legally separate before a divorce. In fact, it may be against your own best interests to do so—many, if not most, legal separations end in divorce anyway. In most situations, a legal separation prolongs the process of starting your new life, since you must wait at least six months to convert a separation to a divorce.
Some couples choose to use this time to engage in marriage counseling or other therapy and attempt to reconcile, under the logic that a six-month deadline provides some incentive to work things out. After all, the decree of separation can be reversed if both parties agree and file a motion with the court. On the other hand, it’s also just as easy to convert the separation into a divorce because the legal separation already has laid the groundwork for the divorce, and both parties have likely been living as though divorced during that time.
Legal Help With a Separation or Divorce
Even if you choose legal separation instead of divorce, it’s still a good idea to have an attorney on your side. Remember that asset division, child custody, and spousal support are all negotiated as a part of legal separation. Should you wish to transition to a divorce after the six-month waiting period is up, you’ll already have an attorney who is familiar with your situation to help protect your rights and ensure that you get your fair share of marital property.
If you have questions or concerns about your legal separation, the Law Offices of Molly B. Kenny is here to help you. To arrange a private consultation in our Bellevue offices, please contact us by phone, or use our contact form to send an email today.
How much does probate cost?
When you’re making an estate plan and determining how to best pass your assets on to your heirs and beneficiaries after you die, probate costs are often a big question mark. It’s something that everyone who is just getting started in estate planning hears about, and it’s often high on their list of planning concerns. After all, the goal of estate planning is to plan for your family’s future when you’re gone, not spend it all in fees. Here’s some important information about probate fees, how to avoid additional costs, and how to contact an attorney for help.
Typical Probate Expenses in Washington
One of the biggest probate expenses in Washington is just the amount of time it takes to go through the entire process. There are certain minimum time limits that must pass in order to successfully close out the estate, such as the mandatory notice to creditors, which must be published for at least four months. The time required to inventory the estate, get appraisals, manage complex title issues, or handle tax problems all adds up. It can take from six to nine months for even the simplest estate. Larger or more complex estate situations can extend this time considerably, and the longer it takes, the more likely attorney’s fees will pile up, too.
The actual fixed expenses involved in probate depend almost entirely on the details of the estate. There are many filing fees with the court involved in the process, which can run from a few dollars each to over $200, depending on the filing. Your county clerk’s office will have a schedule of fees, and King County has these fees published online. There are a few other fixed costs that can’t be avoided, as well. The four-month publication of a notice to creditors is one expense that simply can’t be ignored, so you’ll likely end up paying your local newspaper’s rates for a classified ad for that period of time.
Estate taxes are one major source of dread that many people have, but there is a little bit of good news there for smaller estate situations: the standard exclusion amount in Washington is a little over $2 million dollars, and the federal estate tax exemption is over $5 million dollars as of 2017. Larger estates will have to file and pay these estate taxes, which often also means hiring a tax attorney or accountant, which only adds to the expense.
Whether your estate is large or small, there are many legal tools available to help your family avoid the probate process after you die, including:
- Living trusts. You may choose to use either a revocable or irrevocable trust to hold your assets, allowing the transfer of assets directly to the named beneficiaries and avoiding probate.
- Community property agreements. This agreement between spouses allows the transfer of property to a surviving spouse directly, making probate unnecessary.
Very small estates may also be able to avoid probate altogether, as Washington does not require probate for estates with assets under $100,000.
Every probate situation is unique, with different goals and challenges to be overcome. Your estate planning attorney will be able to tell you the best tools to use to meet the unique needs of your own family’s situation, so you can have peace of mind knowing that your loved ones will be cared for when you are gone.
Legal Help for Estate Planning
At the Law Offices of Molly B. Kenny, we have spent years helping families and individuals plan for the future, and we’d like to be there for you, too. If you have any questions or concerns about your estate planning situation, schedule a private consultation with one of our experienced attorneys here in our Bellevue office. Reach out to us by phone, or use the contact form to send an email to speak to a professional today.
Do I need a lawyer to create a separation agreement in Washington?
In the state of Washington, the court permits couples who wish to legally separate to do so without filing for a divorce. This option is available for those who may not wish to engage in a formal divorce for any number of reasons, including financial concerns, personal or religious objections to divorce, concerns for the children, or if the couple is unsure about whether they’re ready to divorce at all.
If you’re thinking about a legal separation in Washington, here’s what you should know about the process, including the advantages and disadvantages of separation versus divorce, whether you need a lawyer’s help to create your separation agreement, and how to get legal help with a separation or divorce.
Advantages of Legal Separation
The process for a legal separation is nearly identical to the process for a divorce. In a legal separation, you file a petition with the court that is similar to a divorce petition. Since Washington is a community property state with specific rules about the division of assets acquired by either partner during a marriage, dividing up your marital property (including debts) will also be required as a part of that process, just like in a divorce. Partners may come to a mutual agreement about what’s fair or may rely on the court’s help in splitting the marital assets fairly.
Much like with a divorce, it will also be necessary to make arrangements for the children in your separation agreement, including a parenting plan. It should include who will maintain physical and legal custody of the children, visitation rights, and plans for child support payments.
Why Legally Separate Instead of Divorce
The key difference is that after the legal separation has been filed, in the eyes of the law, the couple remains legally married and may not divorce until six months have passed. This can allow both partners time to disentangle their lives from the other and make financial arrangements, find housing, and work through asset division. After the six months have passed, the separation may be transitioned into a divorce by either partner by filing a petition with the court. Some couples choose to use the six months to work on aspects of their relationship so they may reconcile, in which case the separation can be ended without needing to go through the legal process of re-marrying.
Creating a Separation Agreement
Many people wonder if they can create a separation agreement on their own, without involving an attorney, and the answer is yes. The state of Washington does not require a lawyer’s help to create a legal separation agreement, and the forms are available online through the website of the Washington Courts.
However, keep in mind that it may not be in your best interests to sign a legal separation agreement without the advice of an attorney. Your separation agreement is considered a contract, and you want to protect your rights. Remember, the terms of your legal separation are almost exactly like those of a divorce—the biggest difference being only that after a legal separation, you cannot remarry without first obtaining an actual divorce. Your attorney can help you make sure that the terms of your separation agreement are fair and you’re receiving your due share, especially when there are significant assets at stake.
A major advantage to having an attorney help with your separation agreement is if you and your ex-partner do decide to go ahead with the divorce. After the six-month waiting period is up, you’ll already have an attorney on your side who knows you and is familiar with your situation, ready to help you with your unique family needs. On the other hand, if you and your partner reconcile, your attorney will be able to reverse the separation with a minimum of hassle, saving you time and headache.
Get Legal Help for a Separation Agreement
The Law Offices of Molly B. Kenny has decades of family law experience and is dedicated to helping families like yours move forward into a new chapter of their lives after a separation or divorce. Our office is conveniently located in Bellevue, so please call us, or click the contact link to arrange a private consultation with an attorney who can help you today.
Is a community property agreement right for my estate plan?
A community property agreement, or CPA, can be a powerful tool for your estate plan. It has some real advantages for certain situations that can be used to avoid probate when one partner in a marriage dies. However, it may not be the best solution for every marriage, as there are many limitations that a CPA has that other estate planning documents do not.
Here’s what you need to know about having a community property agreement as part of your own estate plan, including what a CPA does, what limitations it has, and whether you need an attorney to help you.
Creating a Community Property Agreement
Washington is a community property state, which means that when you enter into a marriage, most of the assets or property that you each acquire afterward belong in equal part to each partner (although there are exceptions, such as gifts or inheritances). However, property owned by each partner before the marriage stays separate, unless it is later commingled with community property.
A CPA is a form of legal agreement between you and your spouse that converts all property of both partners into community property and then transfers ownership interest of all that community property to the surviving spouse without the need to go through probate. This can save quite a bit of time and some legal expense, too, so for less complex situations, it can be a relatively simple and painless document.
In the state of Washington, you do not need an attorney to create a CPA. It’s a document that you can create on your own, if it meets certain criteria. At a minimum, a CPA typically should state that:
- Any separate property owned by either partner must become community property
- Any future property acquired by either partner, including gifts or inheritances, must become community property
- Upon death of a partner, all community property is vested in the surviving partner
It’s also important to note that a CPA must not only be signed by both partners but also notarized to be considered valid. If this requirement is not met, the CPA likely will not hold up in court, and the assets of the deceased partner may end up going through probate despite his last wishes.
When a CPA Is Not a Good Choice
If you want to create a CPA, it’s a good idea to think about why you’re creating it and what your estate needs really are. There are many instances where there is a better solution, such as a will. Your CPA cannot:
- Make gifts to any other heirs, beneficiaries, or favored charities. All of your property must go to your surviving spouse.
- Name a personal representative to manage your estate.
- Cite guardians for your minor children.
- Make arrangements for your property if you and your spouse should both die at the same time.
Changing or dissolving a CPA is a little more difficult than with a will, too. Unlike a will, any changes to a CPA must be agreed upon by both partners, and a new document must be drafted, signed, and notarized. Revoking a CPA also requires the signature of both spouses, whereas a will can be revoked by simply destroying the document.
Get Legal Help With Your Estate Plan
Although you’re not required by law to have an attorney help you with your community property agreement, the potential complexities and pitfalls of a CPA mean that having a professional review yours is never a bad idea. An attorney can make sure that your CPA is legally valid, does what you need it to do, and there is no conflict with any other part of your estate plan.
If you’re not sure whether a community property agreement is right for your marriage, the Law Offices of Molly B. Kenny is here to help you ensure that your family and loved ones will be taken care of when you’re gone. To get the help that you need, please call us by phone or send an email using our contact form and arrange a private consultation to discuss your estate planning needs in our Bellevue office.