177

Am I In a Common Law Marriage?

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Question

I’ve lived with my boyfriend for over ten years, are we in a common law marriage?

Are these two "married"?

Answer

No – not if you and your boyfriend live in Washington.   Eleven states recognize “common law marriage”, but Washington is not one of them.  “Common law marriage” is a a legal status given to some couples who have not had a formal wedding ceremony or signed a marriage contract but act a lot like a married couple.  In states that recognize common law marriage, couples who meet certain specific requirements are considered legally married even though they haven’t actually tied the knot.

However, Washington does recognize “intimate committed relationships” (or “marriage-like” relationships)* and will give those couples some of the same rights as married people.  We’ll talk a little more about those rights in a moment.

First, let’s take a look at how Washington courts define a committed intimate relationship. There’s no strict checklist, but a 2002 case provided a list of factors that a Washington court should look at when determining whether a relationship qualifies as a committed intimate relationship.  Those factors are:

  • Continuous cohabitation, or living together as a couple for a continuing period of time without any significant break ups;
  • Duration of the relationship, or how long a couple has been together;
  • Purpose of the relationship – this factor is a little odd, but generally it means the court wants to know if the couple was together in order to partake of the generalized benefits of a marriage such as “companionship, friendship, love, sex, and mutual support and caring”;
  • Pooling of resources and services for joint projects such as sharing a bank account and the money in it or buying a house together;
  • The intent of the parties or, whether the couple intended their relationship to be like a marriage.

See In re Pennington, 142 Wn.2d 592 (2002).

couple in field

So, assuming that a couple fits all of these requirements, what does being part of a “committed intimate relationship” mean? What rights do people in committed intimate relationships get?  Generally speaking, the rights of people in such a relationship are pretty limited.   This is what makes Washington’s committed intimate relationships different from common law marriages in other states.

In Washington, if a couple qualifies as being in an intimate committed relationship, they are entitled to inherit property from their partner’s estate.   They can also ask the court to divide their property according to Washington’s community property laws when or if they split up.  In essence, the title of “committed intimate relationship” only matters in Washington after a relationship ends – either by death or a break up – and relates primarily to property.  It does not give couples many marriage rights during their relationship.

*Interestingly, Washington courts called  these types of relationships “meretricious relationships” for a long time before adopting the more PC term “committed intimate relationship.”   Meretricious means “relating to prostitution.”  Guess that shows you what Washington courts thought about cohabitation!

177

What’s Community Property?

By admin  /  Ask a Lawyer  /  1 Response


Question

I’ve heard that Washington is a community property state.  What does this mean?

Answer

Community property refers to the way that Washington laws treat the property of married people.*  In general, married people in Washington have two kinds of property: community and separate.  Community property is property that both spouses own equally, while separate property is property owned only by an individual spouse.

New house

As a general matter “property” means anything a person owns.  So, when we’re talking about property in this article we’re talking about everything from jewelry, to cars, to houses and land, to stocks and bonds, and so on.  Any kind of property that a person can acquire can be characterized as community or separate in Washington.

So, how do you decide what’s community and what’s separate?  Washington courts apply a general rule to determine the character of property:  All property acquired prior to marriage is separate property, and all property acquired during marriage is community property.

Any property that a spouse receives as a gift, or under a will or through inheritance is also considered separate property even if it was received during marriage.

In addition, separate property can occasionally turn into community property if it’s “co-mingled” with community property in such a way that it’s no longer possible to tell which is which.

To simplify things a bit, here are some examples of community,  separate and co-mingled property:

  • House purchased after 5 years of marriage:  community.
  • A paycheck for the first week  back at work after the honeymoon:  community.
  • Car received from parents on 16th birthday:  separate.
  • Grandma’s wedding ring received under will during marriage:  separate.
  • A bank account containing only money earned prior to marriage:  separate.
  • A bank account containing a mixture of money earned prior to and during marriage: co-mingled property that may or may not be considered community.
Gee, Mom and Dad, thanks for the super cool piece of separate property!

While the two distinctions don’t matter to most people much during marriage, the distinction between community and separate property can become very important when a marriage ends – either by death or divorce.

You see, if a piece of property is considered community, then both spouses are presumed to have an equal interest in it.  Thus, each spouse is presumed to be entitled to at least half of that property.

So, when one spouse dies, the other spouse is entitled to keep at least half of the community owned property, and that half cannot be given to anyone else.

And, when a couple gets divorced, their property must be divided between them.   Very generally speaking, each party is entitled to keep their separate party, and must divide their community property in equal parts between the two of them.

It’s important to note, however, that in Washington a court has the power to divide all the property of both spouses whether it is considered separate or community.

*Washington now also applies the law of community property to domestic partners.  We use the term “married” in this article only for simplicity’s sake.  Keep in mind, however, that these rules now also apply to persons who have become domestic partners under Washington law.  In addition, these rules can also apply to people who never marry, but live together for a long time, and act a lot like married people.
177

Do Courts Enforce Promises To Send Kids To Private School?

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Question

My wife and I always agreed that we would send our daughter to private school.  Now that we’re splitting up, she says that she can’t afford it – even though she earns the same salary.  Will the court make her stick to her promise?

private school girl

Answer

Maybe.

An Order of Child support sets out the financial obligations that both parents owe to their children.   This will include special expenses like uninsured medical costs, daycare and (if appropriate for that particular family) private school.

There are no hard and fast rules about whether the court will order parents to pay for private school.  If the child is already attending private school and has been enrolled there for several years, it is more likely that the court will try to see if there is any realistic way to keep the child there.

The same is true for a child who has special educational needs or special aptitudes that make a private school a better choice.

private school girl smiling

On the other hand, usually everyone in a divorcing family has to cut costs.  The money which used to run one household now has to run two.  Giving the kids the same material standard of living as they had before the divorce is a great idea, but for most families it just isn’t possible.

So you’ll have to show the court more than just promises your spouse made when you’re family was in tact.  You need to sit down and do the math so that you can show the court where the money is going to come from.

177

I’ve heard that I have to tell my ex if I am going to move. Is that true?

By admin  /  Ask a Lawyer

The Child Relocation Statute (RCW 26.09.430-560) requires the parent with whom the child resides primarily to give the other parent 60 days notice of any plan to move outside his or her present school district. If you can’t give 60 days notice (for example, because you did not know about the move in time) you need to give notice as soon as you can, and in any case within five days of learning of the move.

boy in box

Use the correct form (“Notice of Intended Relocation of a Child”), and fill it out to the best of your ability. It is especially important to say when you plan to move with the child, where the child is going, and how you and the child can be contacted after the move. You can get the form from the Washington State Courts website here: http://www.courts.wa.gov/forms/index.cfm?fa=forms.contribute&formID=6
The other parent then has 30 days to object to the move. That objection also requires a special form (“Objection to Relocation”) which you can find here: http://www.courts.wa.gov/forms/index.cfm?fa=forms.contribute&formID=57

A local move (one which is just inside the present school district) does not require any special formalities: the law says that you have to give the other parent “actual notice by any reasonable means.” It’s common sense to put this notice in writing and to keep a copy for your records, even though you don’t have to use any particular form. The other parent can’t object to a move within the present school district.

girl moving pictures

If you are not the parent with whom the child resides primarily, then the notice requirements don’t apply to you. You don’t have to give the other parent notice if you intend to move. However, many parenting plans include provisions requiring both parents to keep each other informed of their residential address and contact telephone number at all times. If your parenting plan has such a provision, you should follow it.

If you want to know what happens after an objection is filed, and what factors the court considers when deciding whether a child can move, read the relocation statute here: http://apps.leg.wa.gov/RCW/default.aspx?cite=26.09.430

177

When Kids Choose

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Question

I’ve heard that once a child reaches 12 years old, he or she can decide which parent to live with. Is this true?

girlbeingtugged

Answer

Not in Washington. Unlike many states, including California, Washington tries to keep children away from court altogether in custody disputes. In fact, Washington courts often react quite negatively to a parent even saying “But my son keeps telling me he’d rather live with me.”

The courts take the “best interests of the child” seriously, but don’t believe that children should decide where they should live any more than they should decide about tattoos, alcohol, or staying in school—they’re children. Instead, the courts look to other indications of whether a child is thriving in the home he or she is living in—such as grades, socialization in school, etc.

As a practical matter, once a child reaches 16 or 17—and can drive—even though a court will not hear their testimony on custody matters, the court will often not interfere with a child who simply drives to the house in which he or she wants to spend time.

177

How Do I File An Appeal Of A Family Law Order?

By admin  /  Ask a Lawyer, Features

There are 4 basic ways of appealing a court decision you don’t agree with:

  1. a Revision (to a Judge);
  2. a Reconsideration (back to the Judge or Commissioner who just ruled);
  3. an Appeal (to the Court of Appeals); and
  4. a CR60 motion (for cases of clerical error, fraud, etc.).

We looked at Revisions and Reconsiderations in previous posts.  Now for actual Appeals.

rock-climber

While revisions and reconsiderations are appeals in the sense that they are appealing a decision that the person doesn’t like, a true appeal is generally a formal appeal to the Court of Appeals.  Appeals are usually, but not always, made after the final Decree is entered.

The reasons for an appeal are also much narrower than the R&R twins (revisions and reconsiderations) – you have to spell out exactly what legal mistake you believe the lower Court made.   Appeals are expensive too.  In addition to filing fees, you will also have to order a transcript of the entire trial or hearing.   Depending on the length of the proceeding, the official transcpript alone can cost many hundreds or even thousands of dollars.

While revisions and reconsiderations are each governed by the Civil Rules (CRs), Local Civil Rules (LCRs) and Local Family Law Rules (LFLRs), appeals are governed by the Rules of Appellate Procedure (RAPs).

You have exactly 30 days to file for an appeal (and serve the other parties) from the date of the Order or Decree.    If you wait 31 days you will be completely out of luck.

REMEMBER – Though I have attempted to craft an accurate article as of the date this is posted, these rules change frequently.  This post is for informational purposes only, and should not be relied upon in deciding what steps you should or should not take in your own case.  For that, find a good lawyer.


177

How Do I File A Reconsideration Of A Family Law Order?

By admin  /  Ask a Lawyer  /  1 Response

There are 4 basic ways of appealing a court decision you don’t agree with:

  1. a Revision (to a Judge);
  2. a Reconsideration (back to the judge or commissioner who just ruled);
  3. an Appeal (to the Court of Appeals); and
  4. a CR60 motion (for cases of clerical error, fraud, etc.).

We looked at Revisions in an earlier post.  Now for Reconsiderations.

maze

While revisions only apply to hearings in front of commissioners, you can file a reconsideration of any Order or any Final Decree, either in front of a commissioner or a judge.   A Reconsideration is exactly what it sounds like – you’re asking the judge or commissioner to reconsider her ruling.

Family law Reconsiderations are mentioned in the Local Family Law Rules at LFLR 5(c)(8) , but all the rule says is “See LCR 7(b)(5)” – sending you to the Local Civil Rules.  When you go actually go look up LCR 7(b)(5), it isn’t even about Reconsiderations – it’s about “Form of Motion and Responsive Pleadings.”  If you read the next item, LCR 7(b)(6), you’ll find “Motions to Reconsider,” and perhaps believe that you’re finally going to get an answer.

But psych!  LCR 7(b)(6) just tells you to go to LCR 59. When you finally get to LCR 59, it just sends you back to LCR7(b)(4), and none of these various rules says anything about deadlines.  For that you have to go to state civil rule 59 (CR 59) – which tells you that the deadline is ten days.  Yes, the rules are a mess.  Yes, I’ve already written to, and spoken to, the Clerk’s office to try to rectify this. They are working on it. Hopefully a lot of it will be fixed by Summer 2009.

Once you get the basic rules down, there are a few other other points to keep in mind:

  • One thing the court rules don’t tell you is that the Family Law Motions office (W-291 in Seattle, A1222 in Kent) has a special, colored form for Reconsiderations (salmon-colored, more or less).  It’s not on the clerk’s website either.  Cool, huh? ;)
  • Another thing the rules don’t tell you is that you can sometimes add evidence to your Reconsideration of an Order on a motion. This is because of the practical reality that people usually just get 14 days notice of a motion, and don’t always have a chance to get their evidence together properly.  If you want to add evidence to a Reconsideration of a hearing, you’ll have to explain why you didn’t include that evidence the first time – and expect the other side to object.
  • One interesting corollary to how new evidence is handled between Reconsiderations and Revisions is that lawyers will often ask for a reconsideration of a commisioner’s order even when they are pretty sure they will lose, just so they can get in the new evidence they want the judge to see on revision.
  • Yet another thing that’s not explicitly stated in the rules is that reconsiderations don’t have hearings.  You just file your papers and wait. This is why LCR59(c) asks you to include a self-addressed stamped envelope for both you and the other party (or lawyer).
  • One odd rule about reconsiderations is that the other party does not get to respond unless the judge/commissioner specifically requests a response.  This is so you don’t have to waste time responding to a frivolous reconsideration that the court wasn’t going to see favorably anyway.  If the judge/commissioner does ask for a response, then the party asking for the Reconsideration will then get two days for a strict reply from the date of receiving the response.
  • As a practical matter, the court will often specify a date by which it wants the Reconsideration, then give a date two days later for the reply.   LCR 59 does not specify a time of day for strict reply (strict replies on motions on the family law motions calendar, for example, are due at noon, per LFLR 6(b)), so just get it filed by 4:30 and served upon the opposing party (or attorney, if she is represented) by 5:00 pm.
checklist

You have exactly 10 days to file for a Reconsideration (and serve the other parties) from the date of the order (usually the same date as the hearing). Reconsiderations on orders signed on a Wednesday or Thursday, however, may be filed two Mondays later (because 10 days after any Wednesday or Thursday falls on a weekend day).

If you wait 11 days you will be completely out of luck. These rules are pretty absolute.

An order from a hearing is usually given the day of the hearing, but a decree after a trial may not be handed down until weeks or even a couple of months after the trial.  In this case, the ten days doesn’t start ticking until the date the judge actually signs the decree.

Note that if you file for a Revision after a Reconsideration, the 10 day clock for the revision doesn’t start ticking until the date the Reconsideration is decided.  Of course, you may not actually get the order or decree until a couple of days later, but the rule says 10 days from the “date of the filing of the Commissioner’s written order of judgment on reconsideration.”

REMEMBER – Though I have attempted to craft an accurate article as of the date this is posted, these rules change frequently.  This post is for informational purposes only, and should not be relied upon in deciding what steps you should or should not take in your own case.  For that, find a good lawyer.

177

Child Support – What Are Extraordinary Medical Expenses?

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Washington State child support orders set out each parent’s responsibility for the child’s Extraordinary Medical Expenses.

This provision is found at paragraph 3.19 of the pattern form child support order.

teddy-bear-bandaid

An extraordinary medical expense is a medical expense which in one month amounts to more than 5% of the child support transfer payment.

If you are the parent receiving child support, you are expected to spend up to 5% of the money you receive each month on uninsured medical expenses for the child:  co-pays, deductibles, or any other medical expense that is not covered by health insurance.

If you are the parent paying support, then you are expected to contribute towards uninsured medical costs, IF they total more than 5% of your usual monthly payment.

Here’s a simple example:
  • Dad pays child support of $400 per month.
  • In June, the child has $100 in uninsured medical expenses.Mom pays the first $20, because that amounts to 5% of the usual child support payment ($400 x 5% = $20).
  • The additional $80 are extraordinary medical expenses.
  • Dad and Mom split the extra $80 between them according to the percentages stated at paragraph 3.19 of their child support order.
177

How Do The Layers Of Court Rules Fit Together?

By admin  /  Ask a Lawyer, Features

Going to court on a family law motion, even if you have a lawyer, can be a bewildering thing. There are rules, rules, and more rules – then there are customs that are generally followed but not even written down anywhere (like the purple cover sheet form used for family law motions for reconsideration, found at the family law motions office at each courthouse).

LFLR's overlay both LCR's and CR's

How do all these sets of rules work together? Without understanding this, there’s no way to figure out what rules actually apply to your particular case. The best way to think about these rules is as a set of transparent overlays on an overhead projector. Each set sits on top of another set of rules, and so on:

  • The very first set of rules are the state-wide GR’s or General Rules. The GR’s relate to all proceedings, and are a hodgpodge of rules that, for the most part, you don’t need to worry about – GR 11 says that foreign language interpreters may be used, for example.  One GR that is useful is GR 14, which explains that the papers you file need to be on 8 1/2 by 11 inch paper, with a top margin of 3 inches, etc. – and no colored pages.  How you reconcile this last point with the colored reconsideration cover sheet is anyone’s guess….
  • Think of the CR’s as giving rules for both hearings on your case, and the underlying case itself. The underlying case includes how you file suit, how you conduct discovery (get information from the other party, and from third parties), and how you conduct trial. Motions in family law cases, on the other hand, are generally interim rulings that try to keep things more or less together (parenting plan, who pays the bills, child support, etc.) until a Judge makes a final ruling on everything (or you settle).
  • In addition to state-wide rules, counties are also allowed to create LCR’s, or Local Civil Rules – so long as they do not contradict the CR’s. Like the state-wide CR’s, the LCR’s govern all sorts of civil cases. Some small counties have next to no LCR’s.  But the bigger the county, the more local rules it has.
Sorting out the CR's, LCR's, and LFLR's can be tricky.

There aren’t many LFLR’s – just 17 – and in theory, they sit on top of both the LCR’s and the CR’s, supplementing but never contradicting.  The problem is that while each LCR maps directly to a corresponding CR (LCR 7 –> CR 7), the LFLR’s are free-floating. So LFLR isn’t about civil motions at all; it’s about Unified Family Court. The rules that supplement CR7 / LCR 7 can be found in LFLR 2, 4, 5, 6, 8, 10, 12 & 17.

Now, this isn’t as crazy as it may sound.  The reason for free-floating LFLR’s is that most of the special rules for family law relate in some way to a family law motion.  So breaking them down into separate rules is a way of avoiding having to number a rule, for example: LFLR 7(b)(6)(A)(iii) – which is what you’d likely get if you put them all under LFLR 7. Also, the LFLR’s are, as far they go, fairly well written and straight-forward.

The final set of rules you may come across, primarily at trial but also sometimes in hearings, are the ER’s, or Rules of Evidence. These rules talk about what a court may consider (such as business records) and not consider (such as most hearsay statements).

The rules are certainly more complex than they ought to be be. Right now it’s tough even for lawyers to sort out the various rules, much less non-lawyers. People ought to hire lawyers for our judgment and our advocacy, not because the rules don’t make sense. As long as the rules remain complex and sometimes contradictory, it’s an issue not just of clarity but of access to justice for all our citizens – not just the ones who can afford a lawyer.

As the chair of the local rules committee, I (along with the committee) am actively working with the Court to help standardize and simplify these rules. But it’s a big job with zero funding.

Wish us luck!

177

Should I Pay Child Support Directly To My Ex?

By admin  /  Ask a Lawyer, Features

So you have an Order of Child Support (OCS) saying that you owe a certain amount each month – a transfer payment. Now what?

If you’re the parent who owes child support (usually, but not always, the non-residential parent), then you’re called the “Obligor” – that is, the parent obliged to pay support for your children. The other parent (your ex) , the one receiving support, is called the “Obligee.”

So how do you pay your ex?  Many parents prefer to pay by directly, often because they feel it gives them some control over a situation they can’t control at all.  This is usually a mistake.  Obviously, if you pay by cash, you and your ex can get into a big ol’ fight over exactly how much was paid, when.  Even when paying by check or money order, there are mail issues and bank issues.  If only there was some way to avoid all that.  Yeah, you guessed it – there is!

dadwithtoddler

Your tax dollars go to fund the Washington Division of Child Support, part of DSHS. Most people think that DCS is there to help the parents receiving support, but it can help you too.  How? Because it offers four different ways to pay your support, each of them tracked online.  Because a DCS support enforcement officer helps to manage the process, and because payment is processed by DCS, the system actually protects you from mistakes, misunderstandings, and accusations that your child support is late or unpaid.

What are the four ways to pay through DCS?

  1. Check/Money Order (directely to DCS).
  2. Wage withholding – This is the easiest in many ways.  Your payment is simply deducted from your paycheck (either once or twice a month, depending what your OCS says) automatically.  It’s important to understand that this is not a garnishment, and should not be seen as such by you or your employer.
  3. Electronic Funds Transfer directly from your bank account.
  4. On-Line Payments.

Keep in mind that automatic withholding from your paycheck or automatic transfer from your bank account work best for regular, periodic payments (and for paying back support, if applicable). You may wish to make supplemental payments, such as day care, education and extraordinary medical payments by check or money order to DCS.

Regardless of which method of payment you use through DCS, the beauty is that you and your ex each deal with the support enforcement officer, not each other.  Money is often a touchy subject, even years after a split, and payments through DCS can often help to make things go more smoothly.

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