The laws of Washington governing separation, divorce, alimony and other family matters are contained in the Revised Code of Washington (RCW), available here.
To fully understand Washington divorce law and family law, it may be necessary to read and interpret statutes with case law and regulatory law. It is also important to know if law is up to date. For these and other reasons, it is always best to consult with a qualified Washington family law attorney to know how the law applies to your particular situation. The following legal summaries are not intended as legal advice and should not be relied on as such. They are intended only as an introduction to the way that the law functions in these areas.
Legal Separation in Washington
A legal separation does not end a marriage or domestic partnership in Washington. A legally separated person cannot enter into a marriage or a domestic partnership with another person unless the marriage is legally terminated by a divorce.
Often parties prefer to be legally separated instead of seeking a divorce for religious, economic or other reasons. A couple may decide to live apart while attempting to save a failing relationship or the separation may be an interim step towards terminating their marriage. There is no legal requirement for actual separation before dissolving a marriage.
Legal Separation can be entered into by entering into a legal contract for separation or through obtaining a "Decree of Legal Separation," from the court or both. Its not mandatory for the parties to approach the court to get their separation sanctioned, entering into the contract for legal separation is sufficient, however they need to put the contract on record and need to publish a notice notifying their separation in any of the legal newspaper of the county where the parties had resided prior to their separation. The legal separation contract could include provisions for maintenance of the spouses, disposition of property, parenting plan, child support.
The second method to seek legal separation is through filing of petition in the court. Both the parties need to agree on the issue of separation for the Court to pass the decree of legal separation. If any party expresses that the separation is being sought by fraud or force, the court will investigate into this issue and will dismiss the petition if the allegations are proven.
Initial Considerations for Divorce in Washington
The divorce or dissolution of marriage proceedings are initiated by filing of a petition in the court. The person filing for the divorce is called ‘petitioner’ and the other party is called ‘respondent’. Once the petition is filed, it needs to be served to the other spouse along with the summons.
Who can file for divorce (Dissolution of marriage) in Washington?
Any person who is a resident of the State, or is stationed in the State as a member of the armed forces or is married or in a domestic partnership to the person who is the resident of the State, at the time of seeking divorce is eligible to file the divorce petition. There should be 90 days period wait from the time the petition is filed and summons are served upon the respondent, for the court proceedings to commence.
Grounds for Divorce
“Grounds for divorce” are the legal reasons for a divorce. “Irretrievable Breakdown of the Marriage” is the only ground available under which a spouse can seek divorce in Washington. Both the parties must agree to dissolve the marriage for the court to pass the decree of dissolution. In case the other party denies that the marriage has been irretrievably broken or there has been use of force, fraud by the spouse then the court will initiate investigate the allegations and decide the matter accordingly. If the grounds alleged are baseless, then the court can dismiss the petition.
Division of Property
Washington is an ‘equitable distribution state’ which means both the property and debts are divided equitably (not necessarily not equally or 50/50) amongst the spouses.
There are two kinds of properties recognized under RCW, namely 'community property' and 'separate property'. Community property is the property acquired during marriage and the separate property is the property acquired by either of spouse by way of gift or inheritance before marriage. The court has the jurisdiction to distribute both the kinds of the properties.
There are four essential factors that the court will decide for determination of equitable distribution of properties. They are:
- • Nature and extent of community property
- • Nature and extent of separate property
- • Length of marriage or domestic partnership
- • Economic circumstances of each spouse or domestic partner at the time the division of property takes places, including the desirability to seek family home, or the right of each spouse to live in the family home for specific periods or the spouse with whom the child will be residing for maximum time.
Alimony in Washington
Alimony (referred to as maintenance in Washington) is the court-ordered financial support of one spouse by the other spouse as a part of divorce.
The laws of Washington governing alimony are generally contained in the Revised Code of Washington (RCW), available here.
Alimony can be granted during the pendency of actions taken in cases of legal separation, divorce or dissolution of marriage, declaration of invalidity of marriage or in a maintenance proceedings initiated after dissolution of marriage.
There are two basic types of alimony or maintenance in Washington: temporary maintenance and permanent maintenance. The Court has the power to decide which type of alimony to be awarded, case to case basis, either as agreed by the parties or it’s the Court’s discretion.
The alimony will be granted in specified amounts and for period as it deems fit, irrespective of the marital conduct. In determining whether to grant alimony, a court will consider all relevant factors, such as:
- • Financial resources of the party seeking maintenance, including separate or community property apportioned to him or her, and his or her ability to meet his or her needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party;
- • Time required to acquire sufficient education or training to enable the party seeking maintenance to find employment appropriate to his or her skill, interests, style of life, and other pertinent circumstances;
- • Standard of living established during the marriage;
- • Length of the marriage;
- • Age, physical and emotional condition, and financial obligations of the spouse seeking maintenance; and
- • Ability of the spouse from whom maintenance is sought to meet his or her needs and financial obligations while meeting those of the spouse seeking maintenance.
Alimony could be modified if there has been substantial change in circumstances. The obligation to pay alimony will end if the other party seeking alimony dies or remarries.
Tax Consequences of Alimony
It is important to understand that there may be tax implications for individuals who pay or receive alimony. According to Section 71 of the Internal Revenue Code, alimony must be included in the recipient’s gross income and can be excluded from the payer’s gross income.
However, it is critical that payments actually qualify as alimony under the law. To qualify as alimony (also according to Section 71 of the Internal Revenue Code), payments must generally meet five conditions:
- (1) The payment is be a cash payment (such as a check or money order)
- (2) The payment is received by (or on behalf of) a spouse under a “divorce or separation instrument”
- (3) The divorce or separation instrument does not designate the payment as a payment which is not includible in gross cross income as alimony and not allowable as a deduction for the payee spouse (under Section 215 of the Internal Revenue Code).
- (4) The payer and payee are not members of the same household at the time payments are made
- (5) There is no liability to make payments after the death of the recipient spouse
Sometimes it is difficult to determine whether a payment qualifies under the law as alimony. There also may be state and local tax implications for individuals who pay or receive alimony. Therefore, it is best to consult with an attorney or qualified tax professional.