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WSL - Common Legal Questions

What is legal separation?
  Can I do a trial separation first and protect my rights?
  How do courts decide who gets custody?
  How long does it take to get a divorce?
  Do I have a right to a share of my husband's retirement
and pension plan at work?
  My spouse has become violent. How can I be protected?

What is legal separation?

Do not get confused between a 'legal separation' and a 'separation'. A 'legal separation' is procedure, which looks very much like a divorce. You serve and file your petition and summons, and the court gives you the case schedule telling you when you have to achieve certain things on your case culminating in the trial date. Really, the only significant difference between a divorce and a legal separation is that if you become legally separated, you cannot remarry until you convert this into a divorce. Converting from a legal separation into a divorce or 'dissolution', as it is called in the state of Washington, is not difficult, merely a time-consuming process. There is a waiting period before you can convert the decree of legal separation into a dissolution. My own experience is that most people end up converting. Why do people do it? Generally, legal separations are appealing to those people who have not fully come to terms with the concept of the divorce or those who do not wish to divorce for religious reasons.

A 'separation' is simply the act of separating from your spouse. This typically takes the form of one spouse moving out of the family home.

If you decide to use a 'legal separation', you should take care of all the issues associated with a divorce from division of assets, debt, to parenting and child support. These will all be part of your final decree of legal separation which the judge will sign at the end of the case. In case you do not wish to pursue a legal separation, please read 'trial separation' below. This may be the kind of separation you, in fact, wish to have.

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Can I do a trial separation first and protect my rights?

Trial separations are for people who have not decided to file for a divorce or 'legal separation' (see above for definitions and implications.), but want to live apart for a while. They may or may not decide to file for divorce later. However, they want to protect their rights and define their responsibilities in a contract which is legally enforceable. This can cover as many things as you wish it to cover. For example, it could take care of just temporary matters such as temporary maintenance, or support of the children, or perhaps, who is to use the house and pay certain bills. It could include all of the terms of a divorce in the event that you decide you go ahead and divorce. In the event that this contract does not have any challenges, for example, fraud, duress, undue influence, etc., it is enforceable. Be aware, however, that the courts always keep a wary eye on the interests of children. Anything which the court finds unacceptable in your agreements about child support or parenting will not be signed by a judge.

Very often people agree to make the separation contract part of their divorce decree in the event that the case goes that far.

Be aware that no matter what the two of you agree about paying your debts, this does not affect your creditors rights.

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How do courts decide who gets custody?

This can be a very emotional area. It usually has a very common sense answer. Put yourself in the position of the judge. If you were the judge, to whom would you give custody? You may say yourself, although are you really putting yourself in the position of the judge? Judges like continuity. They want to know who has been the primary caretaker of the child. They will often start with the last six months. Were you the primary custodial parent during that time? If the answer is no, particularly if you have never been the primary custodial parent, the judge will want to know why you should now be made the primary custodial parent. It is just common sense. There may be very good reasons for this, but the judge will want to know what they are. If you are tell the Judge that the other parent is a bad parent, the judge will want to know why you let that person be the primary custodial parent in the past. Again there may be a very good reason for this, but be prepared to address all reasonable questions which may be in the judge's mind.

Parents who have spent their time going out to work enabling the other spouse to stay at home looking after the children can become very frustrated by this status quo attitude by the Courts. How could they establish a track record? This is where we get our custody fights and introduction of experts. We battle over why it is that custody should be different now that the parents are getting divorced. However, it does not have to be a battle. It is also a time that parents who cooperate with each other can come to a very reasonable residential schedule which meets the needs of the child and both parties and can have everybody feeling quite satisfied. If you want to achieve the latter, try to keep a cool head, and attempt negotiation and reason rather than demands and accusations? Often the latter comes from fear about ones position. These fears may be unreasonable. Often, I find that both parents want to encourage considerable access by the other parent to the children. It is a shame, when in these cases, one parent takes an extreme and aggressive position and pushes the other parent into doing the same. Getting reasonable attorneys who can talk to each other on both sides prior to entering the fray of a court battle, can help your case immensely. For a list of attorneys who adhere to the King County Bar Association Guidelines of Professional Courtesy and to the Washington State Bar Association Creed of Professionalism which includes an effort to avoid unnecessary litigation, see Attorneys list on the Resources page.

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How long does it take to get a divorce?

The law of Washington states that you must wait a minimum of 90 days from serving and filing your summons and complaint to obtain your divorce decree. Therefore, on the 91st day, you can go in and get a divorce if you have all of your issues decided and ready in written form to be signed by the judge. However, if you are not ready, you have until approximately one year out (from serving and filing) until your trial date. At the trial the judge will sort out whatever it is you cannot agree on.

Do I have a right to a share of my husband's retirement and pension plan at work?

Yes. In Washington, anything that is acquired during marriage is community property and that includes compensation, including pension and retirement from work. It does not matter that it is just in your spouse's name. Also know that in Washington technically all property, both separate i.e. earned before marriage or after separation or by gift or inheritance by one person, is before the court and can be divided to produce an equitable result. Be very careful, however, if you are going to transfer the pension or retirement or any part of it. It must be done in the proper fashion using a QDRO or you will have tax problems. See a further discussion of this under Financial Planning.

My spouse has become violent. How can I be protected?

Once you have filed your divorce, you can ask the court for a restraining order. Before you file your divorce, you can ask for a protection order. You can go to your local district court or superior court to get a protection order. There are usually staff at the courthouse who can help you with this. For some suggestions for websites and other resources for domestic violence, see Resources listed in the Index.


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