Although “alimony” is still commonly perceived to be a man’s burden, more and more women are providing financial support to their exes during or after a divorce. A recent survey of the members of the American Academy of Matrimonial Lawyers indicates that 47% of American divorce lawyers have seen an increase in the number of women ordered to pay alimony to their husbands. 56% of those lawyers have also seen a greater number of woman who pay child support.

The reason for the uptick? The greater economic and career opportunities available to women. As more women become the higher earners in their families, more women end up bearing the greater financial burdens of a divorce.  And, they’re not any happier about their new-found financial obligations than men are.  “We see women who are every bit as angry as their male counterparts, maybe more so, when they are confronted with the concept of paying spousal support to a man,” says Alton Abramowitz, president-elect of the AAML.

As women continue to make strides in the professional world, we can expect to continue to see an increase in the number of women who out-earn their male counterparts. As that trend continues, we can also expect see more women paying child support and alimony.

Curious about how courts in Washington approach spousal support? Check out our previous articles which discuss the law of “maintenance” in Washington, here and here.

Story via Reuters.com.

Do I Need a Prenuptial Agreement?

Question

My fiance and I are getting married this summer. A couple of nights ago, he mentioned that one of his buddies said we should look into getting a prenup before the wedding.  Neither of us have much property to speak of, and my fiance’s small business is still getting off the ground. Is this really something we need?

Answer

A prenuptial agreement (or “prenup”) is a private contract that is executed by a couple prior to marriage. The purpose of most prenuptial agreements is to define exactly what property is or will be the separate property of each spouse, and what property will be considered jointly-owned or “community” property during the marriage. Commonly, the prenup permits the parties to define property that would otherwise be considered community property under Washington law as the separate property of one spouse.

Common examples of property that would ordinarily be considered “community” include a spouse’s income, retirement savings, and real estate.  Under Washington’s community property laws, all of these assets, if earned or acquired during marriage are presumed by a court to be the property of both spouses.  What a prenup allows soon-to-be-spouses to do is define all or some of those assets as separate property of one of the parties.

A prenuptial agreement ultimately comes into effect in one of two ways: the death of a spouse or a divorce. And the impact of most prenups is far-reaching, especially in cases where one of the spouses comes into the marriage with very little property or income, and does not acquire or earn much during the marriage.

Washington case law governs the enforcement prenuptial agreements, and there are some basic principles and/or requirements that all couples should have in mind if they choose to execute such an agreement.

First, if a prenuptial agreement comes before the court in the context of either a divorce or the death of one spouse, the court will first review the agreement to see if it is financially equitable.  If the agreement appears to be fundamentally fair, then the court will not make a further inquiry into the circumstances under which the agreement was executed.

However, if the effect of the agreement is substantially financially disadvantageous to one of the spouses, the court will then look to the circumstances around the agreement’s execution to determine whether it should be enforced.  This inquiry looks to the “procedural fairness” of the agreement’s execution.

Procedural fairness requires both spouses to make an adequate financial disclosure.  This means that each party needs to give the other an accurate description of what property will be defined as separate, so that the other will have a informed understanding of what exactly he or she is giving up. So, for example, if you were to sign a prenuptial agreement which said your fiance’s business is his separate property, your fiance will need to provide you with information about the company’s assets, the income he earns or expects to earn from the business, the company’s current and expected profitability, etc.

A court will not enforce a prenuptial agreement that is substantially unfair to one spouse if there was not an adequate financial disclosure prior to the signing of the document.

The agreement must also be entered into freely, voluntarily, and on independent advice of counsel.  This means both spouses must have the opportunity to consult with an attorney who represents his or her own financial interests, and will explain the meaning and effect of the agreement.  The attorney should be one that each party has selected and met with independently of the other party.

The court will also look to how much time the party had to review the contract; the less time that a party was afforded in order to talk to an attorney or even just simply read the document, the more weary the court will be about its validity.

Other issues, such as domestic violence in the relationship or mental incapacity of one party, may also indicate to the court that one party’s agreement was not free or voluntary.

In addition, courts will look to the timing of the execution of the agreement to determine whether the agreement was entered into freely and voluntarily. The closer to the wedding that the agreement was signed, the more scrutiny the court will give to the agreement. Courts recognize that the pressure and expectations of a pending wedding celebration may affect a person’s ability to make an independent decision about a prenuptial agreement. After all, who wants to potentially blow up an engagement when the invites have been sent, the dress has been bought, and the cake is on order?

In short, the decision to enter into a prenuptial agreement is a very serious one; the advice of an independent and experienced attorney is not just desirable – it’s essential.

For the last ten years, artist Mercedes Gertz has been turning painful artifacts – wedding photos from doomed marriages – into stunning works of art.  Using a scanner, Gertz and her collaborator, Nancy Louise Jones, transform unwanted bridal portraits into mandalas – circular diagrams that originated in Hindu and Buddhist spiritual artworks. Karl Jung once deemed  mandalas “a representation of the unconscious self.”

Gertz herself was divorced 11 years ago, but could not bring herself to discard the photos of her wedding. In talking with friends who were also divorced, Gertz discovered that she was not alone.  As Gertz puts it:

None of us ever had the guts to get rid of our wedding pictures. We were raised to see our wedding day as the most important day of our lives—to fantasize that for one day we were princesses chosen by a wonderful prince, and that we would live happily ever after.

In addition to finding solace in her friends, Gertz also began studying Jung, and his philosophies helped her change her perspective on the end of her marriage.  They also inspired her to create the mandalas.  Gertz began to collect her friends’ unwanted photos, and with Jones, constructed the mandalas by cutting the bride, or part of her dress, out of the photos, and then arranging the images in circular patterns.

The results are beautiful and occasionally disconcerting.

Says Gertz of her project:

My intention is to create a space where [the bride] can exist with out the need for a groom or someone outside of themselves for completion. In this way they embody both the archetype and its consequences. Marriage and divorce are seen in the light of false expectations. Art has that power of deconstructing and constructing an idea by giving it a body and a shape.

Like the “Museum of Broken Relationships“, which I wrote about in February, Gertz’s mission is aimed at transforming the singular pain of a marriage’s end into something both collective and transformative, not only for the subject but also for the observer. Check out more of Gertz’s work on her personal website, and one the Frank Pictures Gallery site.

Story via mamiverse.com.

Can I Get Custody of My Niece?

Question

My younger sister has a seven year old daughter. The dad’s been out of the picture for years, and lately my sister has too. While I don’t know for sure, I suspect that my sister is abusing drugs.  She lost her job about a year ago, and since then she’s been relying on me for “baby-sitting” more and more – even though she hasn’t gone back to work. More often than not, I end up taking care of my niece for days at a time, with no word from my sister. My niece seems exhausted whenever she’s dropped off at my house, and I’ve noticed that her clothes are often dirty and stained.

Recently, my niece told me that she and her mommy were going to move in with “mommy’s new friend” because they couldn’t live in their apartment anymore. I’m very worried about my sister, but even more so about my niece. Is there any way I can get custody of her?

Answer

Washington law permits courts to award custody of a child to someone other than her parents, but only in certain, narrow circumstances.

RCW 26.10 governs all third party or “non-parental” custody proceedings, and there are a number of legal and procedural requirements that you must fulfill in order to succeed.

The governing standard for an award of non-parental custody is parental unfitness or actual detriment to the child in her present circumstances.  That is, it is not enough to show that the child would have a better environment with you; the non-parent must show that the child will be harmed if she continues to live with her legal parent(s)—not just that a different custody arrangement would be in her best interests.

You are required to give notice of your petition to both parents, even if you do not know where one, or either of them, is living.  In those cases, you may have to serve the parent(s) by alternate means, such as by publishing a legal notice in a newspaper.  Otherwise, you have to arrange for personal service of your petition, and a summons, on both parents.

And, when you file a petition for non-parental custody you must allege, and be able to prove, that your niece is either (1) not in the custody of either of her parents or (2) that neither of her parents is a “suitable custodian” for her, before the court will allow your case to proceed to trial. You must also give the court and the parents the names of any other adults who live in your house.

You must also schedule an initial hearing (referred to as a “show cause” hearing) so that the court can determine whether you have enough evidence to meet the standards for non-parental custody. You need to allege specific facts about your sister’s problems, the father’s failure to parent your niece, and the negative effect that both parents’ conduct has on your niece’s development, well-being, and safety.

The court will dismiss the case unless you can show that you have sufficient evidence to prove that both parents are unfit, or that living with either of them would be detrimental to your niece. If you are successful at the show cause hearing, your case will then proceed to a trial.

If you are ultimately successful in your claim for custody, the court will enter a final custody order called a Non-parental Custody Decree.  That decree will give you the right to have the child live with you, and to make all educational, medical, and other major decisions about the child.

The decree may also give one or both of the legal parents the right to limited contact or visitation with the child, usually on the condition that the parent comply with certain services such as drug/alcohol treatment or mental health counseling. The court may also order the parents to pay child support.

While the decree will give a non-parent most of the powers and duties of a legal parent, it does not actually make the non-parent the child’s legal parent; nor does it strip the legal parents of their inherent parental rights. That can only be achieved through termination of the parents’ legal rights, and an adoption of the child by the non-parent.  The standards for termination of parental rights are even stricter than that those for non-parental custody.

These are just some of the major requirements and aspects of a non-parental custody case; there are many other requirements and procedures that you must follow in order to comply with the law of third party custody.  For this, and other reasons, non-parental custody cases are usually fact intensive, legally complex, stressful, and emotionally charged.  Whether you should undertake a non-parental custody case is something that you should determine only after some personal reflection, and consultation with an experienced family law attorney.

Unlike in the U.S., where “no fault” divorces are now standard in every state, family courts in England still require a finding of spousal misconduct before a divorce will be granted.  Along with adultery or abandonment, an aggrieved spouse may cite “unreasonable behavior” as the grounds for divorce.  According to some lawyers there, this often means that divorcing parties have to exaggerate the daily annoyances of marriage in order to meet the requirement.

An article published in the New York Times last week highlights some of the more ridiculous accusations made in English divorce cases.  They run the gamut from failing to share the remote control to insisting that a pet tarantula sleep in the marital bedroom.

Vanessa Lloyd Platt, an English family law attorney interviewed by the Times, calls the phenomenon “insane” and argues that such accusations should have no place in divorce litigation. She recalls the difficulty she had maintaining a straight face while championing her client’s complaint that her husband wore her clothes and was “stretching out all of her best outfits.”

Ms. Lloyd Platt is not alone in her criticisms. The Times notes that an English family law judge recently argued that there is “no need” for the requirement, which represents “the social values of a bygone age.”  Naturally, the judge’s critique was set forth in a ruling on a divorce in which the husband alleged that the wife repeatedly threw away the husband’s cold cuts (the wife countered said allegation by citing the husband’s failure to appreciate her disdain for “intensely farmed meats”).  Ms. Platt, and other prominent family law attorneys and judges, are now campaigning for reform.

The government considered changing the law back in 1996, but dropped reform efforts due to concerns that a “no fault” standard would make divorce too easy.  One advocate for change says these concerns are misplaced, as a “no fault” system simply takes some of the vitriol out of divorce litigation.  However, a government spokeswoman informed the Times that there are currently no plans to reform English divorce laws.

Question

A few years ago, my husband and I agreed to legally separate, and we submitted agreed orders to the court.  I’ve since met someone new.  While I am not ready to get re-married yet, I’d like to have the option and I understand that a legal separation means I’m still technically “married” to my ex.  Is there a way for me to change to my legal separation into an actual divorce, or do I need to file for divorce?

Answer

No, you do not need to file a separate divorce action.  Under Washington law, either party to a legal separation can ask the court to convert a decree of legal separation to a decree of dissolution. The only major requirement for doing so is to wait at least six months after the decree of separation is entered.   There are relatively simple pattern forms for conversion of a legal separation available on the Washington court’s website.

The court also requires that you give your husband “adequate notice” of your intention to convert your legal separation to a divorce.  In addition, you should note that all that a conversion from legal separation to divorce does is legally end your marriage.  All of the other provisions of your decree of legal separation will be unchanged.  What this means is that any and all agreements or orders about the division of your property/debts, arrangements for your children, etc., will be unaffected by the conversion to a dissolution.

Ellanora Fulk of Tacoma, Washington was browsing her ‘suggested friends’ on Facebook when she came across one suggestion that struck her as odd.  She clicked on Terri Wyatt O’Neill’s page, and began perusing her photos – only to discover a photo of Ms. O’Neill and someone Ms. Fulk knew very well indeed: her estranged husband, Alan Fulk.

And this was no ordinary photo; Mr. Fulk and Ms. O’Neill are pictured sipping champagne and standing next to a wedding cake.

Although the Fulks had been separated and estranged for several years, they were never officially divorced.  This technically makes Fulk (who’d changed his name to ‘Alan O’Neill’) a bigamist, and he was charged accordingly.  He faces up to one year in jail.

Source: Mashable.

Last week the Washington Post published an interesting peek into the uniquely complicated marriages and divorces of CIA agents.  Unsurprisingly, the secrecy required of CIA agents can take a tremendous toll on the civilian spouse, leading to an “astonishingly high” rate of divorce in the agency.

The article highlights to story of one unidentified woman’s divorce from her CIA agent husband, which at times reads a bit like something straight out of a spy thriller:

Her sense of being used grew more acute two years later when her husband asked her to visit a winery with their newborn daughter.

“I said, ‘No, unless you tell me what we’re getting into,’ ” the woman recalled.

He revealed the ulterior motive: A potential informant was meeting that day with a CIA colleague at the winery. But the colleague was not going to show up. The agency wanted to see how the informant would handle a surprising situation, the wife said she was told. The CIA needed her husband to observe the informant’s behavior. And the husband needed his wife, with baby in tow, to help him blend in.

The family of three found seats on a bench at the winery, the wife said. She fed the baby while they kept an eye on their target: The man in the dark suit waited 15 minutes before he made several frantic phone calls, the wife recalled. Eventually, he left.

Meanwhile, over on the Huffington Post’s divorce blog, you can read up on the affairs and divorces of presidential candidates throughout history, starting with a recount of Franklin Delano Roosevelt’s two year affair with a younger woman who also happened to be Eleanor Roosevelt’s personal secretary. The article was inspired by the recurring media hubbub over Newt Gringich’s three marriages (and two divorces).

In addition to providing mildly titillating details on the escapades of various presidential candidates, the article highlights how Americans’ views on divorce and adultery have changed over time.  In FDR’s day, a divorce and/or affair could be political suicide (if the media chose to report it, which they often declined to do). Today, Newt’s alleged marital misconduct – including an allegation that he served his ailing wife with divorce papers while she was in the hospital – are of little concern even to most very conservative voters.

March is the Most Popular Month for Divorce

At least according to Findlaw.com, the popular online legal information site, which reports that searches for terms like “divorce” and “child custody,” are at their highest in the third month of the year.  Researchers for Findlaw also analyzed divorce cases commenced between 2008 and 2011 in courts across the nation.  They discovered that new divorce filings begin to increase in January of a given year, with the peak occurring in March.

The news release has prompted quite a bit of press, with a number of commentators speculating on why exactly March is the most popular month for divorce.  The consensus seems to be that a mixture of emotional and practical factors prompt unhappy marrieds to wait until March to file for divorce, such as the desire to stay together through the holidays for the sake of children or the tax benefits available to a married couple at the end of the year.

In addition, factors such as the financial and personal stresses of the recent holidays,  higher rates of infidelity during the holiday months, or just the simple New Year’s realization that one cannot spend yet another year in an unhappy marriage, may also explain the high number of new divorce filings in March.

So, for better or for worse,  it appears that we can now add “filing for divorce” to the list of March milestones like March Madness, St. Patrick’s Day, and the First Day of Spring. Makes you wonder whether March is giving April some competition for “cruelest month.”

See more commentary on this subject here and here.

Can My Fiancé Adopt My Child?

Question

I have a ten year old son from a relationship that ended shortly after he was born.  We moved to Washington about six years ago, and my son has had almost no contact with his father since then.  Occasionally, his father sends a check for child support, but otherwise his role in our child’s life is minimal to non-existent.

I have been in a great relationship for the last three years, and plan to get married next summer.  My son is very close to my fiancé, who has lived with us for most of the relationship.  My son has even started to call my fiancé, “dad.”  Once we are married, can my fiancé adopt my son?

Answer

In order for a Washington court to approve an adoption of your son by your fiancé, the biological/legal father’s parental rights must first be terminated by the court.  The court will likely approve a voluntary relinquishment of parental rights if the biological father signs a written consent in which he agrees to give up all of his parental rights.

The written consent to termination of parental rights must contain very specific information, be signed in the presence of a witness, and can be revoked by the parent any time before the revocation is approved by the court.  These and the other requirements for a written consent to relinquishment of parental rights are set out in RCW 26.33.160.

If your son’s biological father does not consent to termination of his rights, then you will have to seek an involuntary termination in order to complete a stepparent adoption by your husband-to-be. Involuntary termination of parental rights requires a showing of:

clear, cogent, and convincing evidence that it is in the best interest of the child to terminate the relationship and that the parent has failed to perform parental duties under circumstances showing a substantial lack of regard for his or her parental obligations and is withholding consent to adoption contrary to the best interest of the child.  RCW 26.33.120

Whether or not a court would approve an involuntary termination of your ex’s parental rights is highly dependent on the factual history of his relationship with both your son and you, and also on whether the father actually appears in court to contest the termination.

The effect of both voluntary and involuntary termination is to sever all legal ties between the parent and child – meaning that all duties, rights, and obligations between the parent and child are permanently extinguished. But, of course, the effect of the adoption is to impart on your fiancé the same duties, rights, and obligations of the biological/legal parent.  In other words, the rights and duties of the biological parent are terminated, but only because the stepparent is ready, willing, and able to take on these rights and duties himself.

In addition to termination of the rights of the other legal parent, there are several other requirements that your fiancé will have to meet before he can adopt your son. One of the most important and time-consuming requirements is the filing of a “post-placement report“.

The post-placement report is prepared by a person with special training and education in child development and/or family services. The object of the report is to provide the court with information about your family, and to tell the court whether the adoption would be in your son’s best interests.

The report preparer will meet with  you, your fiancé, and your son for interviews and observation. The post-placement preparer will also visit your home to ensure that it is a healthy, safe, and child-appropriate environment.  The post-placement report further includes a state criminal, and Child Protective Services, background check, as well as a brief medical report from your fiancé and your son’s primary care physicians.

In short, the decision to pursue a stepparent adoption is a highly personal one, and requires a careful evaluation of both your legal and factual positions.  In the case of a child with a living, but uninvolved, parent, the decision to permanently sever all ties to that parent should not be taken lightly.  In addition, some families may find the scrutiny of the post-placement report process somewhat invasive and/or stressful.  Working with an experienced family law attorney who can explain the law and procedure of adoption, as it may apply to the specific facts of your case, can help you decide whether pursuing a stepparent adoption is the right decision for your son.

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