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Articles Tagged with property settlement

It is intuitive that a divorce after one year looks different from a divorce after ten years. It follows that a divorce after twenty or thirty years can be different by a greater degree. Here are three ways divorces can vary based on the length of the marriage:

  1. Spousal Maintenance: If one party is the sole breadwinner (or the main breadwinner), the longer the marriage is increases the likelihood that spousal maintenance will be ordered. It also often extends the duration of the spousal maintenance. On the other hand, if a marriage only lasted one year, it is unlikely that the economically disadvantaged spouse has the same level of reliance on the other party, and thus may not be awarded maintenance.
  2. Retirement Assets: A longer marriage usually involves more retirement assets. These assets need to be awarded to either one party, the other party, or divided between the parties. Longer marriages usually mean that more of the retirement assets go to the party with the lower ability to recoup the losses caused by the divorce. If the parties are already retired, there are other issues that must be addressed.
  3. Status of the Parties: In short term marriages, the parties’ statuses often don’t change much from the time of the marriage to the time of the dissolution. In mid-length marriages, community assets and debts are often acquired, and kids have often been added to the equation. In long-term marriages there is often an abundance of community assets and debts, and less time for the parties to replace assets lost during dissolution.

The length of a marriage can have other implications too. Sometimes aging brings on health issues that can complicate dissolution issues. Sometimes people in mid-length marriages want to get support to get a educational degree or accreditation. In short-term marriages sometimes a home has been purchased, but very little equity has been acquired and selling the house might be tough, but keeping the house might be impossible with only one income paying for it.

While divorces change based on the length of the marriage, it is always important to find an attorney that runs a client-centered practice. This allows the attorney to get to know you, learn about your marriage, and help you plan for your future after divorce.

A recent article on Bloomberg.com states that the divorce rate in America is rising alongside our improving economy. The article suggests that people stuck in marriages for financial reasons, are now able to leave in the improved financial climate. The changing economy definitely impacts our clients. Here are three changes we’ve noticed in the last few months:

  1. Homes are more likely to be an asset. Before housing prices dropped, we would often see clients whose greatest asset was their home. Then, when the recession hit and housing prices dropped precipitously, clients were dealing with a home that was their greatest debt. Parties would argue over who got stuck with the house! Now, we’re back in a place where most of our clients’ homes are assets again.
  2. Child support and spousal maintenance levels are likely to be higher. With an improved economy, there are many people with improved salaries and more assets. Unsurprisingly, this usually means that they will pay more in child support or spousal maintenance than they did when they made less, and had less.
  3. People are employed. We’ve seen more of our clients with stable full-time employment in recent months. This is especially helpful as we try and help our clients plan for their financial futures post-divorce. It also impacts how parenting plans are designed. A parent at work may require more evening and weekend time, and less middle of the day time than a non-working parent.

As things continue to change in our local and national economies, we are prepared to help with all your family law issues. We stay abreast of the changing economic conditions, and how these conditions might affect our clients. Please contact us today.

A woman approached me at a social gathering recently to ask me to help her resolve her confusion regarding a family law issue. She said that she had two friends get divorced under similar circumstances, but obtain very different results. She wondered whether laws varied from county to county or courthouse to courthouse, and if that was the reason for the variation in results. Her confusion reminded me of the misperception I have heard from many family law clients who come in expecting that they can get the same result as a friend did because their “circumstances are so similar”, or that they can avoid the result a friend obtained because “their circumstances are totally different”. The reality is that no two families are similar enough to guarantee similar results.

Family law is mostly governed by state laws. There are some laws in family law that come from the federal level (ex. DOMA, IRS Code, PKPA), but for most of the laws that impact most families we look to the Revised Code of Washington, the  Washington Administrative Code, and the case law from Washington’s appellate courts. There are court rules that vary from county to county, but these are mostly (if not entirely) procedural and should not (but may) affect the outcome of a case. In other words, whether your family law proceedings are handled in Spokane County, King County, Kitsap County or any other county in Washington shouldn’t make much of a difference. In reality, things do vary from county to county, courthouse to courthouse and decision-maker to decision-maker (commissioner or judge). Part of being a family law attorney (or rather any attorney that appears before a decision-maker on a regular basis) is knowing how the decision-maker(s) in your county is likely to rule on a particular issue. That way you are best able to advise your clients whether settlement or continued litigation is in their best interest.

But variations based on the decision-maker is not a complete answer to why there is so much variation in family law court decisions. It is more likely that the differences arise from one of two things. First, what may appear to be similar circumstances to someone looking at two families from the outside, may not be so similar when you take a closer look at the families’ finances, structure, and parenting histories. For example while two divorcing families’ may live in the same neighborhood and drive similar vehicles, their debt to income ratios and retirement savings may look entirely different. In other words, the similar families you see, may not be so similar upon further investigation.

After separation, many people want to discuss with their lawyers some of the immediate issues that need resolution: temporary child support, temporary parenting schedules, and who gets to live in the house. As part of these discussions (especially the one regarding which spouse gets to live in the home), they also want to talk about how to divide the household furniture (both during the temporary phase, and the final division). They want to know whether they can take the bedroom set to furnish their bedroom at their new apartment, or whether they can keep the kids’ beds.

In many cases, we encourage our clients to sort these issues out with the other party directly. (We would never encourage this in cases where allegations of domestic violence are at issue whether our client is the accused or the victim/accuser.) The reality is, we know that in many cases the furniture being argued over is not worth spending your legal fees on. The court will often attribute a value to the furniture based on what the furniture could be sold for at a garage sale. This means that many of the things you want to fight over will be worth just pennies on the dollar. Furthermore, the court will often look favorably on the party that is willing to negotiate regarding the small assets and not waste the parties’ resources (and the court’s time) on low-value items.

As such, we often encourage separated spouses to figure these things out based on necessity. For example, the spouse moving out of the family home will often take a guest room bedroom set for their new master bedroom. The party who has the kids the majority of the time often takes the kids furniture. Also, in many cases the parties both have items that were purchased to meet their specific needs and it often makes the most sense for that party to take these items with them (or keep them at the house as the case may be).

Prior to dividing marital property during the dissolution process, a judge must characterize the marital property as community or separate. Even when a judge is not involved (in the case of private settlement or mediation/arbitration), attorneys for both parties will likely want to know what property is held as community, and what is held separately by the parties. Let’s start with a definition of community property. Community property is all property acquired during the marriage that is not separate property. RCW 26.16.030. Separate property is property received prior to (or after) the marriage and/or property received during the marriage by gift, bequest or inheritance (etc.) to one spouse only.  RCW 26.16.010. Rents, issues and profits from separate property are also considered separate property, while rents, issues and profits from community property are considered community.

Why does this matter? It matters because of how it affects a spouse’s right to manage property during marriage, as well as potentially affecting how property will be divided upon divorce. Per RCW 26.16.030, separate property may be managed during the marriage as if the party owning the property was unmarried. Community property management is limited in some regards (ex. gifting of property, transferring of real property) by a requirement that both members of the community be involved.

At the time of dissolution, the court considers the character of property (i.e. community or separate) when determining how it is to be awarded. Even after property is characterized as separate, equity may require the court award separate property of one spouse to the other spouse. In other words, just because property is deemed separate property by the court does not mean it cannot be awarded to the other spouse.

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