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Frequently Asked Questions

The legal information on this page is designed to help you learn about the laws that apply when you want to end your marriage in Washington (known as a "marital dissolution" or "dissolution of marriage"). It will give you an overview of the law and help you decide what type of case you need to file in court. This page is intended for persons who want to file a dissolution of marriage (petitioner) or persons who have been served with dissolution of marriage papers (respondent) and have questions concerning procedure.

If at all possible, you should meet with an attorney who specializes in family law before you file anything in court. If either you or your spouse has a lot of money or property, or you have been married a long time, or your spouse is going to disagree with any part of what you are requesting, you should talk with an attorney. Even if you cannot afford to hire an attorney to file your case, you should talk at least once with an attorney to get advice about your situation. 

Section 1.  Divorce or Separation?
     1. What is a Marital Dissolution?
     2. What relief may I get in a Marital Dissolution?
     3. How is a Marital Dissolution different from a Legal Separation?
     4. May I get an Annulment instead of a Divorce?

Section 2.  Where to file for my Divorce
     1. May I file a Marital Dissolution in Washington?
     2. What if one spouse has never lived in Washington?
     3. What if I cannot find my spouse?
     4. What if my spouse is a Native American who lives on an Indian reservation?
     5. What should I do if I have been served with a Dissolution and I don't think my case should be in Washington?
     6. In which county should my Dissolution be filed?
     7. What if the children have not always lived in Washington?

Section 3.  Length of a Divorce proceding
     1. How long will a Divorce take?

Section 4.  I was served with Divorce papers. The next steps.
     1. What should I do if I'm served with Divorce papers?

Section 5:  Court Orders
     1. What if I need a court order sooner than 90 days?
     2. What is a Temporary Order?
     3. Do I need a Temporary Order?
     4. Do I need an Emergency Order?
     5. What if I want to change my Temporary Order?
     6. What if your Spouse has hurt you or the children?
     7. What is a Guardian Ad Litem and a Parenting Evaluator?

Section 6:  Court decisions on property and debts
     1. How does the court decide who gets what?
     2. When we divorce, will the court divide all of our property and debts 50/50?
     3. How does the court decide what is a just and equitable division of property and debts?
     4. What if I have a Prenuptial Contract or Community Property Agreement?
     5. I bought our car and most other property with my income, so shouldn't the court award it to me?
     6. My spouse owned our house before our marriage, but we both paid the mortgage. Don't I get part of it?
     7. I think we need to sell our house, but my spouse disagrees. Can the court order us to sell the house?
     8. Is it true that I have no right to my husband's pension because he earned it?
     9. My spouse had an affair — the Divorce is my spouse's fault. Shouldn't I get more of the property?
   10. Since I'm not working right now, will the court order my spouse to pay me alimony?
   11. Important information about Marital Debts

Section 7:  Child Custody
     1. Who will get custody of our children?
     2. Who needs a Parenting Plan?
     3. How does the Parenting Plan affect my rights to see my children?
     4. How will the court decide who the children should live with?
     5. How will the court limit a parent's residential time if the court finds a Limiting Factor under the RCW?
     6. If none of the RCW Limiting Factors applies, how will the court decide who the children will live with?
     7. I want to have equal time with the children. Will the court order this?
     8. How will the court decide who should make important decisions about the children?
     9. What is Alternative Dispute Resolution and what does it have to do with the Parenting Plan?
   10. What if I want to move to a different state with the children?
   11. What if the wife is pregnant? May we still get a divorce?

Section 8:  Spousal Child Support
     1. What is Child Support?
     2. How is the Child Support amount established?

How does the court decide who gets what?

In a dissolution, each spouse must tell the court about all of his or her property and debts — separate and community. The court must divide all of the spouses' property and debts in the Decree of Dissolution. Washington is a community property state. 

Generally, in Washington, all property that either spouse gets during the marriage is community property and belongs to both spouses. If property, such as a house, other real estate or a car, is purchased during the marriage, the property is probably community property even if only one spouse is on the title. Each spouse's earnings, any pension benefits accrued, and any 401(k) contributions made during the marriage are community property. 

Separate property (which belongs to only one spouse) generally is property that the spouse got before the marriage, or which was given to that person by inheritance or gift (whether before or during the marriage), or which the spouse got after separation. However, if you lived together in a stable relationship before your marriage, the property and earnings that you had during the time that you lived together may also be considered community property.

Generally, all debts created by either spouse during the marriage are community debts, which both spouses are equally responsible for paying. Separate debts are those that are made before the marriage or after the date of separation.

The law about division of community and separate property in marital dissolutions can be very complicated.

When we divorce, will the court divide all of our property and debts 50/50?

The court is not required to award one spouse's separate property to that spouse, or to divide the community property 50/50. The court can make any division of property and debts that is just and equitable, after considering:

• The nature and extent of the community property;
• The nature and extent of the separate property;
• The duration of the marriage; and
• The economic circumstances of each spouse at the time the division of property is to become effective, including the desirability of awarding the family home or the right to live therein for reasonable periods to a spouse with whom the children reside the majority of the time.

How does the court decide what is a just and equitable division of property and debts?

How much property the court awards to each spouse, and who is ordered to pay what debts, will depend on a number of factors. If you have children, the main factor the court will consider will be which parent the children will live with the majority of the time because the court will want to provide for the children. 

In addition to ordering payment of child support, the court is likely to order that the parent with whom the children will be living should continue to live in the family home if that is financially possible. The court may award more property and fewer debts to the primary residential parent, particularly if the other parent is not going to be able to pay much child support for some reason.

A second factor the court will consider (which will be the main factor if you do not have children) is in what type of financial condition the division of property and debts will leave each spouse after divorce. The court generally will not want to leave one spouse extremely wealthy and the other poor. The court will consider issues such as each party's age, health, education and prospects for employment. 

Thus, for example, in a long–term marriage in which one spouse has not worked much outside the home, the court is more likely to award that spouse more of the community property (or long–term maintenance) to make sure that spouse does not end up much poorer than the other spouse. Or, if one spouse is disabled and will not be able to work, the court may award the disabled spouse more of the community property. Likewise, the court may consider which spouse will be able to afford to pay the debts after dissolution when deciding who must pay them.

In most cases, the court will award each spouse his or her separate property and order each spouse to pay his or her separate debts. The court will award one spouse's separate property or separate debts to the other spouse only in very unusual circumstances.

What if I have a Prenuptial Contract or Community Property Agreement?

Some people sign a written agreement before they marry that states how the parties' property and debts will be divided if they should divorce. This is often known as a prenuptial or antenuptial agreement. Other people sign an agreement during the marriage regarding their property, which states which property is community and what is separate. This is known as a Community Property Agreement. 

These are sometimes completed as part of an estate plan. Still others may sign an agreement after they separate that divides property and debts — an agreement known as a Property Settlement Agreement or Separation Contract. 

If you believe that you have any type of written agreement regarding your property and debts, you should get a copy of it and have an attorney review it. This type of contract or agreement may (but does not always) determine how the court will divide property and debts in your particular case.

I bought our car and most other property with my income, so shouldn't the court
award it to me?

Not necessarily. If your car and other property was purchased with money earned during the marriage, it is community property. Each spouse's income during the marriage is community property, so anything that you buy with either spouse's income belongs to both of you. It does not matter whose paycheck was used. The court will divide the car and other property according to what the court decides is just and equitable overall.

My spouse owned our house before our marriage, but we both paid the mortgage. 
Don't I get part of it?

Maybe. The court may award you an interest in the house (sometimes called an equitable lien), depending upon a number of factors. 

Because your spouse bought the house before your marriage, the house is your spouse's separate property. Therefore, the house remains separate, even after you marry (unless the house is given as a gift to the community, such as could happen if it is refinanced in both spouse's names). You may be entitled to an interest in the increase in any value due to improvements (such as a remodel or new deck) to the house, plus the community payments toward the mortgage.

However, your community interest would be reduced by the reasonable rental value of the house because you had the benefit of living there during the marriage. Thus, in some cases, the court could rule that you have no community interest in the house because your community contributions were offset by the value you got from living there.

This issue is complicated — you should consult an attorney about your specific case.

I think we need to sell our house, but my spouse disagrees. Can the court order us to
sell the house?

Yes, the court has the power to order that your house should be sold even if one spouse objects. The court is most likely to do this if a sale of the home is necessary to enable the court to divide the property equitably or if the parties are behind on payments.

Is it true that I have no right to my husband's pension because he earned it?

Not necessarily. Retirement or pension benefits, including 401(k) plans that are earned during the marriage, are community property in which both spouses have a legal interest. If a pension was earned both before and during the marriage, the portion of the pension earned during the marriage (and the increase in value of that portion) is community property.

Some disability benefits that substitute for pension benefits may also be community property in which both spouses have an interest. If you believe that your spouse has a pension (including a military pension), 401(k), IRA, or other retirement or disability plan, you should talk with an attorney about what rights you may have to the pension. You may be able to get an order entered, called a Qualified Domestic Relations Order (QDRO), under which your spouse's pension plan will pay benefits directly to you after your spouse retires. 

The Pension Rights Center publishes a very good book called Your Pension Rights at Divorce: What Women Need to Know, which you may want to buy. You can find out more at their website, http://www.pensionrights.org/pubs/books.html or you may call them at (202) 296–3776.

My spouse had an affair — the Divorce is my spouse's fault. Shouldn't I get more of
the property?

No. Because Washington has "no fault" divorce, the court may not consider which spouse "caused" the dissolution when deciding how to divide the property. However, the court may consider the conduct of the other spouse if that spouse wasted assets from the marriage without the other spouse's consent, or if that spouse tried to hide assets from the court.

Since I'm not working right now, will the court order my spouse to pay me alimony?

Maybe. Maintenance, or alimony, is a payment that one spouse makes to the other to provide financial support. Maintenance is not automatically awarded to either spouse. The court looks at several factors in deciding whether a spouse should get maintenance, including:

• length of the marriage;
• financial situation of both spouses given the division of property and debts;
• the other spouse's ability to pay maintenance;
• time it will take for the spouse asking for maintenance to get education or training;
• standard of living during the marriage; and
• age and health of the spouse asking for maintenance.

If you have been unemployed for a long time (such as may be the case if you stayed home to care for the children), the court may be more likely to award you maintenance than if you have been laid off temporarily. On the other hand, even if the spouse seeking maintenance is capable of working (or is working to support him or herself), the court may still award maintenance to that spouse if awarding maintenance will help that spouse enjoy the standard of living that was usual during the marriage. The court uses maintenance "not just as a means of providing bare necessities, but rather a flexible tool by which the parties' standard of living may be equalized for an appropriate period of time."

Long term or permanent maintenance is more likely to be ordered after long marriages and if one spouse is disabled and/or stayed home to care for the children while the other worked and is therefore less likely to be able to get a well–paying job. Unless the Decree of Dissolution states otherwise, maintenance payments end when the person receiving the payments remarries or dies. Again, whether or not maintenance will be awarded in your case is a complicated issue. If you have questions, you should talk with an attorney if possible.

Important information about Marital Debts

You may end up paying a debt even if your spouse was ordered to pay it. As part of the final Decree of Dissolution, the court will order one or both spouses to pay any debts that the parties owe. This includes your mortgage, any car loans, credit card debts, utility bills, back taxes, etc.

Even if the court orders your spouse to pay a particular debt, the creditor (person to whom the debt is owed) may still come after you to collect any community debts. You will not be able to stop the creditor from collecting from you by telling that person that your spouse is supposed to pay. If your spouse fails to pay the debt and you end up paying it, you will need to sue your spouse in court to force your spouse to pay you back. If you think that this might be a problem, you should make sure that you have a "hold harmless" provision in the Decree of Dissolution. Then, if you must sue your spouse to force him or her to reimburse you for debts you paid, your spouse will be required to pay your attorney's fees and costs as well.

Your spouse may try to avoid paying marital debts by filing for bankruptcy. If your spouse files for bankruptcy after your Decree of Dissolution is entered, the bankruptcy court may relieve your spouse of paying for those debts. 

If your spouse files for bankruptcy, you should get notice of it. You should immediately talk with an attorney who is familiar with bankruptcy law about your rights. You may need to participate in the bankruptcy case in order to protect yourself.

This Is Information, Not Legal Advice 
We are providing this information as a public service. We try to make it accurate as of the current date. Sometimes the laws change. We cannot promise that this information is always up–to–date and correct. Most of the information provided on this web site is specific to Washington State law.

We do not intend this information to be legal advice. By providing this information, we are not acting as your lawyer. If you need legal advice, you should contact a lawyer through your local legal aid organization. Always talk to a competent lawyer, if you can, before taking legal action.

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