My husband and I divorced when our son was 10 years old. He’s 16 now, and is starting to think about where he wants to go to college. I am very supportive of his aspirations, and I think that my ex probably is too. While we were married, we started an account for college savings, but it’s been a long time since either of us contributed much to it. It’ll help with paying the first year of tuition (if our son goes to a state school), but after that we’ll have to find other ways to pay. My ex has always been good about paying child support and other expenses, but it’s been a long time since we talked about paying for college. What should I do to get my ex to help pay?
Answer
The first thing you should do is take a look at your child support order and see what it says about post-secondary educational support. All child support orders have this provision, and there are a few different ways in which post-secondary educational support is dealt with on a child support order. Probably the most common provision is for the issue to be “reserved” until the child is 18 or graduates from high school. Other orders, however, will have specific provisions about how the parents will pay for college.
Once you’ve reviewed the order, you should get in touch your ex – preferably in writing – about your son’s plans for college. The more specific you can be about his (realistic) post-high school options and the costs of each, the better. See what your ex says – it may well be that the two of you can work out a plan for paying for college.
If you aren’t able to come to an agreement with your ex, then you may need to seek the assistance of the court, either by filing a motion to enforce your support order (if your support order already has provisions specifically setting out each parent’s responsibility for college expenses) or by filing a Petition for Modification of Child Support in which you ask the court to establish each parents’ obligation for post-secondary educational support (if your child support order has reserved the issue).
If you ask the court to order post-secondary educational support, the court will evaluate a number of factors to determine whether and to what extent the other parent should pay. Washington statute RCW 26.19.090 lays out those standards.
A couple of months after we separated, my husband talked me into signing an agreement that his lawyer wrote for him. At the time I was still reeling from our split and hoping that my husband would eventually have a change of heart. So without even really reading it, I signed. Since then, I’ve finally taken a look at the agreement and feel that it is very unfair to me. Is there any way that I can get out of what I signed?
Answer
Generally speaking, Washington courts are inclined to enforce agreements between divorcing spouses.* Thus, it can be very difficult to get out of separation agreement. Only when a separation agreement is “unfair at the time of execution” will a court relieve a spouse from a separation agreement. And, the court is concerned primarily with the fairness of the process of actually signing the agreement – and not with the fairness of the terms of the agreement. So, a person who wants to be excused from a separation agreement has to be able to show the court that the agreement was not entered into fairly.
The court determines whether a separation agreement was entered into fairly by looking at two things. First, the court examines whether the spouses made a full financial disclosure before signing the agreement. Secondly, the court considers whether each spouse signed the agreement “fully and voluntarily”, had an opportunity to get independent advice, and had full knowledge of his or her rights.
So, whether or not you can get out of your separation agreement depends on whether a court would consider the execution fair. The fact that you were too upset to read it, unfortunately, is not enough to relieve you from the agreement.
*Note, however, that Washington courts have the discretion to set aside agreements about parenting. See our article about that issue here.
My husband and I have been separated for a few months, and we’re headed towards a formal dissolution of our marriage. A few of my friends have told me that I better be prepared to pay a bunch of alimony to him because I make a lot more money than he does. Is this true? I thought alimony is only paid to wives? If I do have to pay, how much will I have to pay and for how long?
Answer
When discussing divorce, it’s not uncommon for people to throw around the term alimony, which by many people is still understood to be a man paying his ex-wife a substantial sum of money for years and years after a divorce. However, the Washington courts have done away with the term, as well as the traditional understanding of “alimony.”
Instead, Washington family courts now deal with the gender-neutral concept of “maintenance.” And, the goal of maintenance is a practical one – to provide financial support to a less advantaged spouse for a period of time after a divorce so that they may seek education or otherwise develop job skills so that they might be financial independent in the future.
RCW 26.09.090 sets out the various factors that a court considers when determining whether to award maintenance, and if so at what amount and duration.
(1) In a proceeding for dissolution of marriage or domestic partnership, legal separation, declaration of invalidity… the court may grant a maintenance order for either spouse or either domestic partner. The maintenance order shall be in such amounts and for such periods of time as the court deems just, without regard to misconduct, after considering all relevant factors including but not limited to:
(a) The 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;
(b) The time necessary 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 attendant circumstances;
(c) The standard of living established during the marriage or domestic partnership;
(d) The duration of the marriage or domestic partnership;
(e) The age, physical and emotional condition, and financial obligations of the spouse or domestic partner seeking maintenance; and
(f) The ability of the spouse or domestic partner from whom maintenance is sought to meet his or her needs and financial obligations while meeting those of the spouse or domestic partner seeking maintenance.
Note that the statute explicitly states that maintenance may be paid by either spouse or domestic partner. So, in Washington either a wife or a husband may be ordered to pay maintenance to the other, after a consideration of the various factors such as the length of the marriage, the difference, if any, between each spouse’s income, the resources of the other spouse, and the amount of time that the spouse who receives maintenance will need to establish financial independence.
So, the answer to the question is “maybe” – and it depends on how the facts of your own marriage interplay with all of the factors above. And gender isn’t one of them.
My sixteen year old daughter has despaired over the size of her nose for years. I think she’s beautiful the way she is, but she says that her less-than-perfect nose is ruining her social life and her self esteem. She recently announced that she wants to “correct” her nose over the summer break so that she can have a fresh start when she starts her junior year of high school. My ex-wife supports this decision and has been helping our daughter shop for a plastic surgeon.
They recently found a plastic surgeon that they like and have made an appointment for the surgery. Now my ex is saying that I need to foot part of the bill because our child support order says that I am required to pay 72.4% towards uninsured medical expenses. She says that if I don’t pay up voluntarily, she’ll ask the court to order me to pay my share. Can she do this?
Answer
Probably not. Although every Washington Order of Child Support obligates a parent to pay a certain percentage of a child “uninsured medical expenses,” not all uninsured expenses are treated equally. RCW 26.19.080 is the Washington statute that sets out the rules about payment for uninsured medical expenses:
… Monthly health care costs shall be shared by the parents in the same proportion as the basic child support obligation. Health care costs shall include, but not be limited to, medical, dental, orthodontia, vision, chiropractic, mental health treatment, prescription medications, and other similar costs for care and treatment.
…
The court may exercise its discretion to determine the necessity for and the reasonableness of all amounts ordered in excess of the basic child support obligation.
While the statute does not specifically exclude plastic surgery expenses, it does give the court the discretion to decide whether or not the uninsured expense is both necessary and reasonable. In some cases, a court might very well decide that a plastic surgery procedure is necessary and reasonable – such as a case where a child is severely disfigured, or where the procedure will alleviate some other health problem (such as correction of a deviated nasal septum). It sounds like your daughter and your ex want this surgery for purely aesthetic reasons – which reasons a court will probably not find very compelling.
My wife and I separated two years ago. We met with a mediator and worked out a written separation agreement regarding finances and arrangements for our two children. We both signed the agreement in front of a notary. Now that we have decided to go forward with a divorce, she says that she wants a new residential schedule for the kids. Isn’t she bound by what it says in the separation agreement?
Answer
The short answer is “no.” Washington law generally encourages separation agreements as a way for couples to settle their disputes without litigation. Those agreements will generally be upheld so far as money and property is concerned. But when it comes to parenting arrangements, the court does not have to follow what the parents have previously agreed to do.
This applies to any agreement about the children, whether it’s an informal deal worked out through a couple of emails, or a professionally drafted separation agreement negotiated with the help of a mediator and signed in front of a notary. The court can certainly consider the previous agreement, as well as evidence about how well those arrangements have been working for your children. The court’s job ultimately is to enter a parenting plan which is in the best interests of your children, which might or might not be the same as the plan you agreed to two years ago.
My husband and I decided 6 months ago to get divorced. Since then he has started dating and now has a girlfriend. I am miserable and desperate to split up, but I don’t see how we can afford it.
We bought our house in 2007. We could probably just about sell it for what we paid for it, but we would have to pay the realtor and the closing costs out of our own pocket. I’m willing to just move out and give him the house, if he can give me enough money out of his 401(k) to allow me to start over with a new place, but he says his 401(k) has declined so much that he can’t afford to give me more than a few thousand dollars.
I feel like I’m in prison – help!
Answer
Historically, economic decline and the pressures that go along with it leads to an increase in divorces. In the recession of the 1970′s divorce rates nationally increased by nearly 20%. The flip side of the coin is that divorce itself can be an expensive process: it costs money to divide up assets, to move, and to establish two households with the same income which used to support just one.
The housing market doldrums makes this especially challenging, especially in a place like Seattle where couples have traditionally invested heavily in their homes, thinking that this was a smart economic move. When real estate prices fall, many divorcing couples are stuck with a large mortgage debt as well as a principle asset of little (or even negative) value.
There is no easy fix for this problem. The key is to think creatively.
Dealing With a House That Has Little or No Equity
This is not a great time for either of you to be getting out of the real estate market, so what are the alternatives? Find out what your house would rent for. Especially if you do not have children, it may feasible for both of you to re-house yourselves as cheaply as you can (for example, moving back in with parents, sharing a house with friend, renting a studio in a less-expensive neighborhood) and let rental income cover most of your monthly mortgage payment.
You could then either each continue to pay towards the monthly mortgage shortfall, or even negotiate with your mortgage company to see if they will grant you a temporary reduction in your monthly payments because of your separation. The advantage to arrangements like this is that you buy yourselves time to let the value of the house increase prior to a sale and division of the proceeds.
If one of you has enough income to cover the mortgage alone, it is possible for the other spouse to move out now, with a secure guarantee of a buy out at a later date. Let’s assume that your husband can cover the monthly mortgage payments on his own, but he can’t re-fi right now and he can’t afford to buy out your interest in any other way. The two of you agree that a fair settlement on the house would be for him to pay you $10,000.00 in no more than 2 years.
How can you move out and feel confident that he really will pay you? You can transfer the house to his sole name with a quit claim deed, he can sign a promissory note setting out the money he will pay you and when, and you secure the promissory note with a deed of trust which you register just like a mortgage.
This is a theoretically simple procedure which only protects the interests of both parties if it is done absolutely correctly; it is essential to have these documents professionally drafted by an attorney. This is one area where, even in a recession, you cannot cut corners.
If you do have children, then there is all the more reason for one parent to try to stay in the house with the kids, at least for a few years. If the parent with whom the children will live primarily is the lower-earning spouse, then the higher earning spouse may be in the unenviable position of having to move out AND keep paying towards the mortgage.
One option in this case is for the higher earning spouse to take a fair share of assets from other sources like savings, retirement accounts and vehicles to achieve an equitable balance, with the lower-earning spouse getting the house. If there are not enough assets apart from the house to balance the ledger, then the higher earning spouse may have to accept getting a share of the house when it is sold at some distant date: after the kids finish high school, for example.
Dividing Up Retirement Assets Without Liquidating
Another point to keep in mind is the fact that retirement accounts like 401(k)’s and pensions do not have to be liquidated to be split. In fact, closing or pulling money out of these accounts early will almost always land you with administrative charges, penalties and a load of deferred taxes.
A much smarter option is to divide the accounts via a Qualified Domestic Relations Order (QDRO). This order will segregate the funds in the account between you and your ex, while leaving the money where it is. Once the QDRO is entered and approved by the pension company, you will each own a separate part of the account. You can each independently withdraw money if you have to (but will have to pay penalties just as if you were not getting divorced), or just leave the account intact in the expectation that the value will increase when the economy improves.
My husband and I split up at the end of September. He says that we can’t file a joint tax return, because we are living apart and I have already filed for divorce.
He thinks that he will be better off by filing separately. But I still have taxes withheld from my pay checks based on a joint return. I don’t want to get in trouble with the IRS, but if I file separately I’m going to have a pretty huge tax bill for last year.
What can I do?
Answer
You and your husband were still married on the last day of the tax year – December 31st. That means that so far as the IRS is concerned, you may file a joint return if you wish to do so. Only a CPA who is familiar with all the details of your tax position can give you detailed advice about your particular return. However, in general terms their are several reasons that couples who are separated but not yet divorced should consider filing a joint return for the year of their separation.
Most analysts agree that married couples enjoy a more favorable basis of assessment under IRS rules than do singles – that means lower adjusted gross income figures for marrieds filing jointly. A joint return also avoids conflicts over who gets to claim the mortgage interest exemption and the exemptions for any children. One of the biggest reasons that divorcing couples should give serious consideration to filing a joint return is that doing so may avoid the creation of a new community debt.
Since you and your husband only separated at the end of September, you were a marital community for nine months out of the year. That means that 9/12ths (3/4) of your combined income is a community asset, and the taxes on that community income is a community debt. Your husband might think that filing separately is smart if his own separate return gets him a refund. But he won’t necessarily be better off if your marital community winds up with a big tax bill on your (separate) return.
Most of your tax bill (3/4ths) will be on the table as a debt to be divided in your divorce, just like the car loan and the credit cards. Similarly, 3/4ths of any refund that either of you get is a community asset to be divided in the divorce.
And as any lawyer can tell you, dividing assets is a lot easier than dividing tax debts.
My wife and I divorced about 5 years ago. We have two kids. Under our final parenting plan, I am the primary residential parent and my wife sees the kids every other weekend, and once a week during the week. I was recently offered a great new job that will really improve our financial situation. The only problem is that the kids and I will have to move if I take the job. Do I need to tell my ex?
Answer
Yes. Your parenting plan (like every parenting plan in Washington) – has a section which addresses the procedures for relocation as set out in the statutes (RCW 26.09.430 – .480) which cover the relocation of children. When the parent with whom a child resides the majority of time plans to relocate with the child, there is a very specific process that that parent must follow before he can do so. This process includes giving notice to the other parent. In addition, the other parent has a right to ask the court to modify the parenting plan as a result of the move, or to block the move altogether.
Step 1: Notice.
First, the parent who plans to move must provide notice to the other parent. The requirements for notice vary depending upon whether or not the relocating parent intends to move outside of the child’s current school district.
If a parent plans to move with the children inside the child’s school district, then the relocating parent must simply provide “actual notice” to the other parent “by any reasonable means.” Although the form of notice is not specified in the statute, the best way to provide actual notice is in writing so that there is a written record.
If the parent plans to move outside the child’s school district, written notice must be provided either personally (such as by hiring someone to actually hand deliver the document to the other parent), or by sending the notice by mail, with a return receipt requested. Importantly, this notice must be provided to the non-relocating parent at least 60 days prior to the intended move.
In addition, the relocating parent is required to give the other parent specific information about the move, including the parent’s reasons for moving; information about the other parent’s right to object to the move; the child’s new address and phone number; and the name of the child’s new school or day care. A blank notice form, which has spaces in which to put all of the required information, is available on the Washington courts’ pattern forms site – check out an example here.
Step 2. Modification or Objection.
In addition to being entitled to notice of the intended move, the other parent also has the right to seek a remedy with the court if they do not agree with the move.
When the relocating parent plans to move within the child’s school district, the other parent does not have the right to formally object to the move. However, she may ask the court to modify the parenting plan, and to provide them with more time with the children, or to add additional provisions to the parenting plan to make sure that the move does not affect that parents’ ability to see the children.
When a parent plans to with the children outside of their school district, the other parent has the right to object to the move. However, the objecting parent must object within 30 days after they receive notice of the move – and, because the other parent has 30 days to object, the relocating parent may not move until after those 30 days are up.
If the non-relocating parent does indeed object to the move, she must file her objection with the court, and serve a copy of the objection on the relocating parent. Like the notice form, a form for objection to a relocation is available on the Washington courts’ pattern forms site – check out an example here. Once the other parent has filed her objection, it is up to the court to decide whether or not the primary residential parent will ultimately be permitted to move with the children.
Under Washington law, there is a “presumption in favor” of relocation. What this means is that the court will presume that relocating with the primary residential parent is in the child’s best interests, and, unless the objecting parent can show that the move would be detrimental to the child, the move will more likely than not be permitted. Whether or not relocation is in any one child’s best interests is a highly factual inquiry. Thus, every relocation case is different. The important thing to keep in mind is that you must follow the requirements of the relocation statutes before moving – otherwise you could find yourself in trouble with the court later.
My husband and I are divorcing after 18 years of marriage. I stayed at home with our kids for nearly eight years, and even after I went back to work I never made nearly as much as he did. We are dividing our other retirement accounts, but our divorce decree says nothing about social security. Am I entitled to some of his social security, and do I lose this if it is not mentioned in the decree?
Answer
You may indeed be entitled to higher Social Security benefits based on your ex-spouse’s earnings; and it is not necessary to put this provision in your divorce decree.
Social Security Administration rules allow many lower-earning ex-spouses to receive higher benefits based on their ex-spouse’s higher incomes. The current rules require you to have been married for at least ten years; to be currently unmarried; to have been divorced for at least two years and to be at least 62 years old. Your ex-spouse needs to be retired, eligible to retire, or deceased.
These additional benefits are not paid automatically. Your local Social Security Office can tell you how to apply. In general, your benefit will be greatest if your ex-spouse has died, but any divorced person who was the lower earner during a marriage of at least 10 years should apply.
Generally Social Security benefits are not mentioned in divorce decrees at all, since their payment depends on SSA rules, rather than court orders.
For more information, see “If you are divorced” from the Social Security Administration.
When our child support order was entered a few years ago, I was ordered to pay my ex a certain amount each month for our kid’s day care – in addition to what I pay for child support. I suspect that my ex isn’t actually spending that much on care for our children anymore – what can I do to get some of my money back?
Answer
In Washington, some child support orders have a provision which orders the parent who pays child support (referred to as the “obligor” in an order of child support) to also pay a portion of the cost of day care expenses for the children. This is common in cases where, at the time the couple divorces, both parents work and the children are too young for school or to stay home alone. The way that the payment is to be made varies by order; however, typically the obligor parent will be ordered to either (1) pay a certain percentage of the total day care expense, (2) pay a specific sum of money towards day care expenses, or (3) to pay a certain amount of child support, in which the cost of day care is included.
However, in most families, day care arrangements for children – as well as the cost of the care – may change over time. For example, a child might start school and need day care for only a few hours before or after school instead of all day. Or a family member may start looking after the children for free or for much less money than a professional day care charges. Or the children may stop going to day care altogether.
So what’s a parent to do when they’re ordered to pay a certain amount for day care, but the other parent isn’t actually spending all of that money on day care? Fortunately for the parent ordered to pay for day care, reimbursement for day care expenses not actually incurred is mandatory in Washington:
If an obligor pays court or administratively ordered day care or special child rearing expenses that are not actually incurred, the obligee must reimburse the obligor for the overpayment if the overpayment amounts to at least twenty percent of the obligor’s annual day care or special child rearing expenses.
What this law means is that if you’re paying your ex $500.00 per month just for day care, but you believe your ex is actually spending only $200.00 per month on day care you can ask to be reimbursed for any money you paid that wasn’t actually spent on day care.
So how do you go about getting your reimbursement? You have two formal options for seeking reimbursement.
First, you can file a lawsuit in the Superior Court asking the court to order your ex to reimburse you. Or, you can apply for reimbursement through the Department of Social and Health Services. In either situation, your ex will be required to submit proof – in the form of receipts, canceled checks, invoices, etc – of how much he or she actually spent on day care. If it turns out that your suspicions are correct and your ex has been spending less than you pay for day care, the court will order your ex to pay you back for all the money you paid which wasn’t actually spent on day care.
Reimbursement is often accomplished by crediting or reducing the obligor parent’s monthly day care payment by a few hundred dollars per month, until the obligor parent has been sufficiently “reimbursed” for their overpayment. In some cases, the amount of reimbursement owed will be reduced by the amount of any past-due child support.
Additionally, the timing of your request for reimbursement is very important:
You can’t ask to be reimbursed too soon. Under Washington law, you may only request reimbursement for day care expenses paid over twelve months. So, if you’ve only been paying for day are expenses for six months and you begin to believe that you are over-paying in month seven, you have to wait another 5 months before requesting reimbursement.
You also should not wait toolong before asking for reimbursement. If you know or have good reason to believe that your ex isn’t actually spending all that money on day care but you keep paying it year after year without doing anything to get your money back, the court may find that you waived your right to reimbursement. In a 2001 case, the Washington Court of Appeals denied a father’s request for reimbursement because he continued paying day care expenses to his ex-wife for four years, after he knew that his children were not actually in day care anymore. The court in that case noted that it is not fair to require a parent who receives and relies on payments for day care expenses to pay back a parent who delays his request for reimbursement for an “unreasonable” period of time. See Marriage of Barber, 106 Wn. App. 390 (2001).
The right to reimbursement for overpaid day care expenses is pretty unique – note that an obligor parent does not have a similar similar right to request a breakdown of exactly what the other parent is buying with the basic monthly support payment. One likely reason that this special procedure exists for day care expenses and not others is that day care costs, unlike other expenses related to raising a child, can be accounted for with relative ease and specificity. It’s much easier for a parent to prove or disprove how much money was spent on day care than it is to prove how much money is paid towards other basic needs – which can include everything from food, clothing, and shelter to toilet paper, bicycle helmets, and school supplies.
