The Petition, in and of itself, does not do anything other than outline and give notice to your spouse and the court of the issues that you wish the court to address. It will not automatically result in a divorce decree and can be written either specifically or generally. Sometimes, the attorney may elect to write a very general Petition so as to cover basic subject areas without getting into detail that may cause the other party to respond, thereby creating a more expensive process. Alternatively, the attorney may elect to make a much more detailed distribution of assets, debts and other issues existing between the parties. There are reasons for both and if you have any questions, you should feel free to ask why one method is selected over the other.
A Decree Can Only Be Obtained After
a. An Order of Default is entered against a party who has failed to respond to service of the Summons; or
b. The parties reach an agreement and sign the final papers; or
c. The parties go to trial where a Judge makes a ruling and enters a Decree. A Judge's ruling is often much less detailed or thought-out than an agreement between the parties. A trial is a disadvantage to both parties, but it's inevitable if a negotiated settlement is not reached.
The 90-Day Waiting Period
There is a minimum 90-day waiting period which must elapse before your Decree of Dissolution can be entered and your marriage dissolved. This time period is measured from the date the Summons is served on the other party. You will not automatically be divorced on the 91st day. Before any Decree can be entered, either the parties must reach an agreement and sign papers, an Order of Default must be entered, or the parties must go to trial and have a Judge decide the issues. The 90-day waiting period cannot be waived by agreement. Finalizing the divorce may require your presence in Court with your attorney, even if it is by agreement. There are some procedures that may be utilized to avoid appearing, in court in some cases. Your attorney will advise you if you need to appear in court in order to get your case finalized.
Preliminary Relief: Temporary Orders
While your case is pending, you may request temporary relief from the Court such as a parenting plan, child support, spousal maintenance, possession and use of the family home, restraining orders, and attorney's fees. Temporary restraining orders may include restraints against transferring, encumbering, concealing or disposing of assets, molesting or disturbing the peace of the other party or the children; entering the residence of the other party; removing the children from the jurisdiction of the Court; and incurring any community debts. All of these temporary measures are often referred to as Temporary Orders and they are designed to cover the period from the filing of the Motion for Temporary Orders until the Court either enters subsequent orders or a final Decree is entered. Temporary Orders will be in effect during the 90-day waiting period.
Maintenance (also called alimony) may be ordered where there is a real need for it on the part of one party and the ability to pay on the part of the other. Marital misconduct is not considered in settling maintenance. Maintenance is sometimes awarded temporarily pending trial, but the court is usually reluctant to award post-divorce maintenance except under appropriate circumstances. The law requires a Court to consider the following factors in determining whether to award maintenance: Length of the marriage; Education level of the parties; Employment histories of the parties; Age of the parties; Physical and emotional condition of the parties; Whether or not the party seeking maintenance is also receiving child support; and The Standard of living established during the marriage.
Division of Property and Debts
While the above factors may justify the need to order maintenance, maintenance is also dependent on the other party's ability to pay and is often a balance between the two competing needs. It is in the discretion of the trial court and there is no fast and sure rule in this area. As part of the dissolution, the Court makes a disposition of the property and liabilities of the parties, either community or separate, as appears "just and equitable" to the Court after considering all relevant factors. This means there is no basis to assume property and debts will automatically be split 50-50. There is also no basis to assume that property over which there is a disagreement will be sold -- this is very rarely ordered. Whatever result is deemed to be "fair and equitable" by the Court and justified by the facts of each case is a flexible standard which does not always result in a 50-50 split.
Factors to Divide Property
The factors to be considered by the Court in dividing property include:
a. The nature and extent of the community property;
b. The nature and extent of the separate property;
c. The duration of the marriage, and
d. The economic circumstances of each party, at the time division of property is to become effective, including:
1. Awarding the family home to the party providing the primary residence of the children, or
2. Awarding more property to a party who lost income producing potential during the marriage or who simply has noticeable less income producing potential than the other party.
The court has the discretion in appropriate cases (where one party has the financial ability to pay and the other party has the financial need) to award attorney's fees. However, Washington's Courts frequently display reluctance to award attorney's fees where each party has the ability to pay their own fees an costs. When there is exceptional need, the Court will consider it, but it is not a sure thing. You should not rely upon the court to issue you an award of fees.
If the other party responds by filing a written response to the petition, the case can only be resolved by voluntary dismissal, agreement or trial. All divorce trials are to a Judge only; there are no jury trials in divorce case. Judge do not like trying divorce cases and this is a factor for the parties to consider. If someone else is making a decision over the very important issues in your life, and that person is less than attentive or has some other negative feelings about your case, then you lose control over the ability to achieve the result you desire.
If it appears that an agreement is not possible, your attorney will send in a Notice to Set for Trial. The timing of this notice is variable depending on various circumstances, including the discovery process, the temporary orders, and the cooperation of the other party amongst other issues.
Time for Trial
Once the notice is filed, the Court Administrator will send out a Notice of Settlement Conference. This is scheduled about two to three moths after the notice it set for Trial is filed. It is an opportunity for the parties to settle the case, without trial, with the input of a Judge acting in an advisory capacity only to aid the parties in resolving the issues in their case. If the parties reach an agreement, a record of the settlement is made and placed on the record. The Parties are sworn under oath in court and from that point on, the settlement is binding. The divorce is then finalized only when the final papers are entered, that is, they are presented to the Judge and the Judge signs off on them. If the parties do not settle, the case is set for trial at a later date.
The trial date is set by the assigned Judge. It is susceptible to being bumped by criminal cases or cases that are older in time. Therefore, it is sometimes hard to be sure a date is firm until just before the actual date. Clark County is rapidly expanding and we do not have enough money to have enough Judges to timely hear all cases. At the present time, it is taking14 to 18 months to get a case to trial from the date of filing. In many cases, the time is much longer.
After negotiation, Settlement Conference, or trial, the attorneys will prepare the final documents such as the Decree of Dissolution of Marriage, Findings of Fact and Conclusions of Law, and if applicable, Final Parenting Plan and Order of Child Support.
The Decree of Dissolution governs the parties' future relationship with regards to the assets, debts, custody, visitation, and support of the children, and dissolves the marriage. Not until the Judge signs the Decree is the marriage actually dissolved. A Decree of Dissolution is the final court document granting dissolution of the marriage and stating the final terms of all the issues in the marriage like property, debts, the children's residence, et. At the time the decree is entered, the court will also enter other documents setting forth the rights and responsibilities of the parties including Findings of Fact and Conclusions of Law and a Parenting Plan and Order of Child Support (if children are involved.)
Write Down Your Questions
When and if you do decide to meet with an attorney, write down a list of questions you would like to have answered. Meeting with an attorney is an emotional time, and you should try to prepare a list that will help you in the interview process. I hope this brief summary will help clarify what can be a very confusing process. Please feel free to contact an attorney in your county of residence for additional guidance. Each County has a bar association office that may be able to refer you to family law attorneys in your area.
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