177

Do I Need a Prenuptial Agreement?

By admin  /  Ask a Lawyer

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.

177

Can I Get Custody of My Niece?

By admin  /  Ask a Lawyer  /  1 Response

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.

177

How Do I Change My Legal Separation to a Divorce?

By admin  /  Ask a Lawyer

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.

177

Can My Fiancé Adopt My Child?

By admin  /  Ask a Lawyer

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.

177

Will the Court Reduce My Child Support Payment Based on How Much Time I Spend with My Kids?

By admin  /  Ask a Lawyer

Question

My ex and I have two kids together.  We’re not divorced yet, but we’ve been separated for several months. Since we split up, we’ve been able to work out a schedule where the kids live half of the time with me, and half of the time with my ex.  We have recently decided to move forward with a formal divorce, and my ex mentioned that we’re also going to have to figure out how much child support is going to be. However, I have heard that when you have a 50/50 parenting plan, there is no child support payment between the parents.  Is this true?

Answer

In some cases, the court will reduce or even eliminate a parent’s child support obligation based on the amount of time that the children spend with that parent.  However, the right to such a deduction (legally referred to as a “deviation”) is not absolute.

Washington statute RCW 26.19.075(d) sets out the standard for a deviation based on the residential schedule.

To summarize, a parent who wants the court to reduce their child support payment due to the residential schedule has to prove three things: (1) that a support reduction won’t cause a financial hardship in the child’s other residence; (2) that the parent seeking the reduction has increased costs due to the amount of time spent with the child; and (3) that the other parent’s expenses are decreased due to the amount of time the child spends with the parent who is seeking the deduction.

In other words, simply having a 50/50 schedule does not guarantee that a parent won’t have to pay child support to the other parent.  You should consider consulting with an experienced family law attorney about the specific facts of your case in order to determine whether you might be entitled to a deviation.

177

Can I Get An Annulment?

By admin  /  Ask a Lawyer

Question

My wife and I got married a month ago.  While we were on our honeymoon, I discovered text messages on my wife’s phone which led me to suspect that she’d been unfaithful to me just days before our wedding.  I confronted her about it, and she admitted that she cheated on me for much of our 3 year relationship.  Since we got back from our disastrous honeymoon, I’ve been staying with friends and have no intentions of living with my “wife.”  I feel completely deceived by her, and that our wedding and marriage were a sham.

Is there any way I can have my marriage annulled?

Answer

Probably not.  Washington state law does provide for a marriage or registered domestic partnership to be declared “invalid“ by a court, but only under very narrow circumstances.  Those circumstances include:

  • When one of the parties is a minor – both parties to a marriage must be 18 or older at the time that the marriage ceremony is performed; however, the parties may “ratify” the marriage by continuing to reside together after the minor party reaches the age of 18;
  • When one of the parties is already married or in a domestic partnership - you can only be in one marriage or domestic partnership at a time so any previous marriage or domestic partnership must have been terminated by the death of the other spouse or a legal divorce;
  • When there are “reasons of consanguinity” - under Washington, persons who are closely related by blood cannot legally marry each other or become domestic partners;
  • When one of the parties lacked capacity to consent to the marriage or domestic partnership either due to mental incapacity or intoxication – like any contract, a marriage or domestic partnership can be voided if one of the parties was disabled by either a mental illness or intoxication to the point that he or she cannot understand the nature and consequences of the decision to marry.  Note that this type of invalid marriage can also be “ratified” if the spouses continue to live together after the incapacitated person attains the requisite capacity;
  • When one of the parties was coerced into the marriage by force, duress, or fraud involving the essentials of marriage – Washington courts apply a very strict evidence standard to prove force, duress or fraud in all cases, including allegations of an invalid marriage. The court will need to see “clear and convincing” evidence in order to making such a finding; this is a much more stringent standard than the “preponderance of the evidence” standard in other civil cases.   This type of invalid marriage can also be ratified by continued cohabitation after the alleged misconduct is discovered.
A sordid example of what kind of facts would constitute fraud or duress , as well as lack of capacity, can be found in the case Murphy v. Lint.  In that case, the Washington Supreme Court found that there was sufficient evidence that a cancer stricken woman’s consent to marry a man with whom she had had a casual dating relationship was obtained when she was significantly disabled by her illness, and also by both fraud and duress.

The court noted that the purported husband had systematically isolated the woman from her friends and family while she was dying of cancer.  In addition, the court found that the significant cognitive side effects caused by her illness deprived the woman of the capacity to consent to the marriage.  Indeed, one expert witness testified that  in reviewing the woman’s medical and other records, he “came very close to being absolutely certain that she could not understand in any way or comprehend what was happening [when she married the man in a Las Vegas wedding ceremony], let alone what the meaning or significance of that was.”

In short, it is only when a marriage or domestic partnership was formed in a way that violates  Washington law that a court will consider it null and void.  Most couples – even those whose marriages did not last through the honeymoon – have to seek a divorce to legally end their relationship.