Washington Divorce Laws: A Primer

Washington is a “no fault” divorce state. The only ground for divorce under Washington state laws is that the marriage is irretrievably broken.

Washington Residency Requirements.

To file for divorce in Washington state, at least one spouse must be a resident of the state. However, there are no specific periods of residency required.

If you and your spouse have minor children, the court must have jurisdiction over them. Generally this means your children must have lived in Washington for at least six months and currently live in Washington, or have lived in Washington within six months of filing.

Please note that you may be able to qualify for residency based on other requirements. If you are not sure whether you fall into one of the above categories, please seek advice from an attorney.

Filing for Divorce.

Lincoln county allows you to file your divorce by mail as long as one spouse is a resident of Washington state, even if neither spouse resides in Lincoln county. You just mail your divorce papers to the Lincoln county clerk of the courts, and the Decree is signed and mailed back to you. If you’d like to file your divorce by mail, just indicate Lincoln County on the questionnaire when asked what county you’ll be filing in.

If you’d prefer to attend a hearing, you can file in the Washington county where either spouse lives.

Washington Divorce Filing Fees.

When you file the papers, you will have to pay a separate filing fee to the Courts. Please check with your local court clerk to find out how much the current filing fee is.

Serving Your Spouse.

In Washington, you are not required to serve your spouse with the divorce papers because both spouses will sign a joint petition. Although both spouses are required to sign, only one spouse is required to actually take the papers to the courthouse. Or, if you file through Lincoln County (see above), you just mail the papers to the Court and they mail them back.

Waiting Period.

There is a 90 day waiting period after filing the papers with the court before your divorce can be finalized. How long it actually takes to finalize your divorce will simply depend on the schedule of the Court.

Finalizing Your Divorce.

If you file by mail (see above), there is no hearing required. A judge reviews your paperwork, signs you decree, and mails it back to you.

If you file in your own county, your divorce will be finalized during a brief uncontested divorce hearing. Only one spouse is required to attend, although both can attend if desired.

Guidelines for Determining Alimony.

The court may grant an alimony order for either spouse, in such amounts and for such periods of time as the court deems just, without regard to marital misconduct, after considering all relevant factors. Washington laws include but are not limited to the following guidelines:

  1. The financial resources of the party seeking alimony, including separate or community property apportioned to him, and his ability to meet his needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party;
  2. The time necessary to acquire sufficient education or training to enable the party seeking alimony to find employment appropriate to his skill, interests, style of life, and other attendant circumstances;
  3. The standard of living established during the marriage;
  4. The duration of the marriage;
  5. The age, physical and emotional condition, and financial obligations of the spouse seeking alimony; and
  6. The ability of the spouse from whom maintenance is sought to meet his needs and financial obligations while meeting those of the spouse seeking alimony.

-From RCW 26.09.090

Property Division Guidelines.

The court shall, without regard to marital misconduct, make a division of the property and the liabilities of the parties, either community or separate, as shall appear just and equitable after considering all relevant factors including, but not limited to:

  1. The nature and extent of the community property;
  2. The nature and extent of the separate property;
  3. The duration of the marriage; and
  4. 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.

-From (RCW 26.09.080)

What is Considered Community Property.

All property acquired during the marriage is community (marital) property, except property and pecuniary rights owned before marriage and that acquired afterwards by gift, bequest, devise, or descent, and the rents, issues and profits thereof.

“Quasi-community property” means all personal property wherever situated and all real property

  1. Situated in this state;
  2. Situated outside this state if the law of the state where the real property is located provides that the law of the decedent’s domicile at death shall govern the rights of the decedent’s surviving spouse to a share of such property; and
  3. Leasehold interests in real property described above, if it is not community property and was heretofore or hereafter acquired:
    1. By the decedent while domiciled elsewhere and that would have been the community property of the decedent and of the decedent’s surviving spouse had the decedent been domiciled in this state at the time of the acquisition; or
    2. In derivation or in exchange for real or personal property, wherever situated, that would have been the community property of the decedent and the surviving spouse if the decedent had been domiciled in this state at the time the original property was acquired.

-From (RCW 26.16.010 through RCW 26.16.220)

Parenting Plan.

Every divorce case involving child custody, whether uncontested or contested, must include a parenting plan that will set out provisions for resolution of future disputes between the parents, allocation of decision-making authority (legal custody), and residential provisions (physical custody) for the child.

-From (RCW 26.09.181-26.09.225)

Laws Restricting Visitation with the Child.

The court may place restrictions on a parent’s visitation time with the child if it finds any of the following factors exist:

  1. Willful abandonment that continues for an extended period of time or substantial refusal to perform parenting functions;
  2. Physical, sexual, or a pattern of emotional abuse of a child;
  3. A history of acts of domestic violence or an assault or sexual assault which causes grievous bodily harm or the fear of such harm.
  4. A parent’s neglect or substantial nonperformance of parenting functions;
  5. A long-term emotional or physical impairment which interferes with the parent’s performance of parenting functions as defined in RCW 26.09.004;
  6. A long-term impairment resulting from drug, alcohol, or other substance abuse that interferes with the performance of parenting functions;
  7. The absence or substantial impairment of emotional ties between the parent and the child;
  8. The abusive use of conflict by the parent which creates the danger of serious damage to the child’s psychological development;
  9. A parent has withheld from the other parent access to the child for a protracted period without good cause; or
  10. Such other factors or conduct as the court expressly finds adverse to the best interests of the child.

Legal Custody Guidelines.

Assuming none of the following factors exist, the court will allocate decision-making authority (legal custody) to one or both parties regarding the children’s education, health care, and religious upbringing based on the parenting plan proposed by the parents. Regardless of the allocation of decision-making in the parenting plan, either parent may make emergency decisions affecting the health or safety of the child. Each parent also may make decisions regarding the day-to-day care and control of the child while the child is residing with that parent.

The court shall consider the following in deciding whether to award in favor of or against joint legal custody:

  1. The history of participation of each parent in decision making regarding the child(ren);
  2. Whether the parents have a demonstrated ability and desire to cooperate with one another in making decisions regarding the child(ren);
  3. The parents’ geographic proximity to one another, to the extent that it affects their ability to make timely mutual decisions.

Physical Custody Guidelines.

The court shall make residential provisions for each child which encourage each parent to maintain a loving, stable, and nurturing relationship with the child, consistent with the child’s developmental level and the family’s social and economic circumstances. The court shall consider the following factors when determining the residential custody of the child:

  1. The relative strength, nature, and stability of the child’s relationship with each parent, including whether a parent has taken greater responsibility for performing parenting functions relating to the daily needs of the child;
  2. The agreements of the parties, provided they were entered into knowingly and voluntarily;
  3. Each parent’s past and potential for future performance of parenting functions;
  4. The emotional needs and developmental level of the child;
  5. The child’s relationship with siblings and with other significant adults, as well as the child’s involvement with his or her physical surroundings, school, or other significant activities;
  6. The wishes of the parents and the wishes of a child who is sufficiently mature to express reasoned and independent preferences as to his or her residential schedule; and
  7. Each parent’s employment schedule, and shall make accommodations consistent with those schedules.

Joint Physical Custody.

The court may order that a child frequently alternate his or her residence between the households of the parents for brief and substantially equal intervals of time (joint physical custody) only if the court finds the following:

  1. The parties have agreed to such provisions and the agreement was knowingly and voluntarily entered into; or
  2. The parties have a satisfactory history of cooperation and shared performance of parenting functions; the parties are available to each other, especially in geographic proximity, to the extent necessary to ensure their ability to share performance of the parenting functions; and the provisions are in the best interests of the child.

Access to Records.

Each parent shall have full and equal access to the education and health care records of the child absent a court order to the contrary. Neither parent may veto the access requested by the other parent.

Standards for Determination of Income.

All income and resources of each parent’s household shall be disclosed and considered by the court when the court determines the child support obligation of each parent. Only the income of the parents of the children whose support is at issue shall be calculated for purposes of calculating the basic support obligation. Income and resources of any other person shall not be included in calculating the basic support obligation.

Monthly gross income shall include income from any source, including salaries; wages; commissions; deferred compensation; overtime; contract-related benefits; income from second jobs; dividends; interest; trust income; severance pay; annuities; capital gains; pension retirement benefits; workers’ compensation; unemployment benefits; spousal maintenance actually received; bonuses; social security benefits; and disability insurance benefits.

The following income and resources shall be disclosed but shall not be included in gross income: income of a new spouse or income of other adults in the household; child support received from other relationships; gifts and prizes; temporary assistance for needy families (TANF); supplemental security income; general assistance; and food stamps.

The following expenses shall be disclosed and deducted from gross monthly income to calculate net monthly income: federal and state income taxes; federal insurance contributions act deductions; mandatory pension plan payments; mandatory union or professional dues; state industrial insurance premiums; court-ordered spousal maintenance to the extent actually paid; up to $2000 per year in voluntary pension payments actually made; and normal business expenses and self-employment taxes for self-employed persons.

The court shall impute income to a parent when the parent is voluntarily unemployed or voluntarily underemployed. The court shall determine whether the parent is voluntarily underemployed or voluntarily unemployed based upon that parent’s work history, education, health, and age, or any other relevant factors. A court shall not impute income to a parent who is gainfully employed on a full-time basis, unless the court finds that the parent is voluntarily underemployed and finds that the parent is purposely underemployed to reduce the parent’s child support obligation. Income shall not be imputed for an unemployable parent. Income shall not be imputed to a parent to the extent the parent is unemployed or significantly underemployed due to the parent’s efforts to comply with court-ordered reunification efforts under chapter 13.34 RCW or under a voluntary placement agreement with an agency supervising the child. In the absence of information to the contrary, a parent’s imputed income shall be based on the median income of year-round full-time workers as derived from the United States bureau of census, current populations reports, or such replacement report as published by the bureau of census.

-From RCW 26.19.071

Standards for Establishing Lower and Upper Limits on Child Support Amounts.

Neither parent’s total child support obligation may exceed 45 percent of net income except for good cause shown. Good cause includes but is not limited to possession of substantial wealth, children with day care expenses, special medical need, educational need, psychological need, and larger families.

When combined monthly net income is less than $600, a support order of not less than $25 per child per month shall be entered for each parent unless the obligor parent establishes that it would be unjust or inappropriate to do so in that particular case. The decision whether there is a sufficient basis to deviate below the presumptive minimum payment must take into consideration the best interests of the child and the circumstances of each parent. Such circumstances can include comparative hardship to the affected households, assets or liabilities, and earning capacity. A parent’s support obligation shall not reduce his or her net income below the need standard for one person established pursuant to RCW 74.04.770, except for the presumptive minimum payment of $25 per child per month or in cases where the court finds reasons for deviation. This section shall not be construed to require monthly substantiation of income.

The economic table is presumptive for combined monthly net incomes up to and including $5000. When combined monthly net income exceeds $5000, support shall not be set at an amount lower than the presumptive amount of support set for combined monthly net incomes of $5000 unless the court finds a reason to deviate below that amount. The economic table is advisory but not presumptive for combined monthly net incomes that exceed $5000. When combined monthly net income exceeds $7000, the court may set support at an advisory amount of support set for combined monthly net incomes between $5000 and $7000 or the court may exceed the advisory amount of support set for combined monthly net incomes of $7000 upon written findings of fact.

-From RCW 26.19.065

Health Insurance Coverage.

In entering or modifying a child support order, the court shall require either or both parents to provide health insurance coverage for any child named in the order if coverage that can be extended to cover the child is or becomes available to that parent through employment or is union-related; and the cost of such coverage does not exceed 25 percent of the obligated parent’s basic child support obligation.

The court shall consider the best interests of the child and have discretion to order health insurance coverage when entering or modifying a support order under this chapter if the cost of such coverage exceeds 25 percent of the obligated parent’s basic support obligation.

-From RCW 26.09.105

Additional Expenses.

Ordinary health care expenses are included in the economic table. Monthly health care expenses that exceed 5 percent of the basic support obligation shall be considered extraordinary health care expenses. Extraordinary health care expenses shall be shared by the parents in the same proportion as the basic support obligation.

Day care and special child rearing expenses, such as tuition and long distance transportation costs to and from the parents for visitation purposes, are not included in the economic table. These expenses shall be shared by the parents in the same proportion as the basic child support obligation.

-From RCW 26.19.080

Deviation from Child Support Guidelines.

Reasons for deviation from the standard calculation include but are not limited to the following:

  1. Sources of income and tax planning. The court may deviate from the standard calculation after consideration of the following:
    1. Income of a new spouse if the parent who is married to the new spouse is asking for a deviation based on any other reason. Income of a new spouse is not, by itself, a sufficient reason for deviation;
    2. Income of other adults in the household if the parent who is living with the other adult is asking for a deviation based on any other reason. Income of the other adults in the household is not, by itself, a sufficient reason for deviation;
    3. Child support actually received from other relationships;
    4. Gifts;
    5. Prizes;
    6. Possession of wealth, including but not limited to savings, investments, real estate holdings and business interests, vehicles, boats, pensions, bank accounts, insurance plans, or other assets;
    7. Extraordinary income of a child; or
    8. Tax planning considerations. A deviation for tax planning may be granted only if the child would not receive a lesser economic benefit due to the tax planning.
  2. Nonrecurring income. The court may deviate from the standard calculation based on a finding that a particular source of income included in the calculation of the basic support obligation is not a recurring source of income. Depending on the circumstances, nonrecurring income may include overtime, contract-related benefits, bonuses, or income from second jobs. Deviations for nonrecurring income shall be based on a review of the nonrecurring income received in the previous two calendar years.
  3. Debt and high expenses. The court may deviate from the standard calculation after consideration of the following expenses:
    1. Extraordinary debt not voluntarily incurred;
    2. A significant disparity in the living costs of the parents due to conditions beyond their control;
    3. Special needs of disabled children;
    4. Special medical, educational, or psychological needs of the children; or
    5. Costs incurred or anticipated to be incurred by the parents in compliance with court-ordered reunification efforts under chapter 13.34 RCW or under a voluntary placement agreement with an agency supervising the child.
  4. Residential schedule. The court may deviate from the standard calculation if the child spends a significant amount of time with the parent who is obligated to make a support transfer payment. The court may not deviate on that basis if the deviation will result in insufficient funds in the household receiving the support to meet the basic needs of the child or if the child is receiving temporary assistance for needy families. When determining the amount of the deviation, the court shall consider evidence concerning the increased expenses to a parent making support transfer payments resulting from the significant amount of time spent with that parent and shall consider the decreased expenses, if any, to the party receiving the support resulting from the significant amount of time the child spends with the parent making the support transfer payment.
  5. Children from other relationships. The court may deviate from the standard calculation when either or both of the parents before the court have children from other relationships to whom the parent owes a duty of support.
    1. The child support schedule shall be applied to the mother, father, and children of the family before the court to determine the presumptive amount of support.
    2. Children from other relationships shall not be counted in the number of children for purposes of determining the basic support obligation and the standard calculation.
    3. When considering a deviation from the standard calculation for children from other relationships, the court may consider only other children to whom the parent owes a duty of support. The court may consider court-ordered payments of child support for children from other relationships only to the extent that the support is actually paid.
    4. When the court has determined that either or both parents have children from other relationships, deviations under this section shall be based on consideration of the total circumstances of both households. All child support obligations paid, received, and owed for all children shall be disclosed and considered.

Agreement of the parties is not by itself adequate reason for any deviations from the standard calculation.

-From RCW 26.19.075

Income Withholding.

If the division of child support is providing support enforcement services under RCW 26.23.045, or if a party is applying for support enforcement services, the superior court shall include in all court orders that establish or modify a support obligation a provision that orders and directs the responsible parent to make all support payments to the Washington state support registry; unless one of the parties demonstrates, and the court finds, that there is good cause not to require immediate income withholding and that withholding should be delayed until a payment is past due; or the parties reach a written agreement that is approved by the court that provides for an alternate arrangement;

In all other cases, the court may order the responsible parent to make payments directly to the person entitled to receive the payments, to the Washington state support registry, or may order that payments be made in accordance with an alternate arrangement agreed upon by the parties.

In all cases, withholding action may be taken against wages, earnings, assets, or benefits, and liens enforced against real and personal property under the child support statutes of this or any other state, without further notice to the responsible parent, after a payment is past due.

-From RCW 26.23.050

Standards for Postsecondary Educational Support Awards.

  1. The child support schedule shall be advisory and not mandatory for postsecondary educational support.
  2. When considering whether to order support for postsecondary educational expenses, the court shall determine whether the child is in fact dependent and is relying upon the parents for the reasonable necessities of life. The court shall exercise its discretion when determining whether and for how long to award postsecondary educational support based upon consideration of factors that include but are not limited to the following: Age of the child; the child’s needs; the expectations of the parties for their children when the parents were together; the child’s prospects, desires, aptitudes, abilities or disabilities; the nature of the postsecondary education sought; and the parents’ level of education, standard of living, and current and future resources. Also to be considered are the amount and type of support that the child would have been afforded if the parents had stayed together.
  3. The child must enroll in an accredited academic or vocational school, must be actively pursuing a course of study commensurate with the child’s vocational goals, and must be in good academic standing as defined by the institution. The court-ordered postsecondary educational support shall be automatically suspended during the period or periods the child fails to comply with these conditions.
  4. The child shall also make available all academic records and grades to both parents as a condition of receiving postsecondary educational support. Each parent shall have full and equal access to the postsecondary education records as provided in RCW 26.09.225.
  5. The court shall not order the payment of postsecondary educational expenses beyond the child’s twenty-third birthday, except for exceptional circumstances, such as mental, physical, or emotional disabilities.
  6. The court shall direct that either or both parents’ payments for postsecondary educational expenses be made directly to the educational institution if feasible. If direct payments are not feasible, then the court in its discretion may order that either or both parents’ payments be made directly to the child if the child does not reside with either parent. If the child resides with one of the parents the court may direct that the parent making the support transfer payments make the payments to the child or to the parent who has been receiving the support transfer payments.

-From RCW 26.19.090

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