Wa Bar Family Law And Community Property

Front 1

Is there a valid marriage?

Back 1

A. Common law marriage – WA does not have, but recognizes CLM that was valid in another state
B. Capacity –
i. cannot suffer from incapacity at time of marriage (inability to consent, usually because of intoxication) ceremony,
ii. no force or fraud
iii. void if either party under 17
iv. voidable (by 17 y.o.) if either party is 17 at time
v. Court may grant waiver of age requirement for good cause
C. Declaration of Invalidity – may be sought based on
i. incapacity
ii. force or fraud
iii. age of party, or
iv. prior undissolved marriage
*Note* Parties ratify marriage by voluntarily staying together

Front 2

Decree of dissolution

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i. Obtaining a basic decree of dissolution – No fault state, need only assert that marriage is irretrievably broken to obtain. 90 day waiting period that starts after petition is filed and service is accomplished. Dissolution can be filed for immediately upon moving to WA

Front 3

Personal Jurisdiction

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ii. Personal Jurisdiction – WA will have if spouse resided in WA during marital relationship regardless of later departure. No PJ where custodial parent moved to WA and other parent has never resided in the state. PJ if other parent fails to support child in WA and has resided in WA at some time

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Temporary relief

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Either party may petition for them. Applies to temporary relief, parenting plan, or imposition of financial obligations. The standards for temporary relief are the same basic standards as those imposed in the final decree of dissolution. TROs may also be entered for contact or removal of children from J. If Temp relief not complied with, court can impose contempt orders. Violations of TROs may constitute a crim. offense

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Division of property and liabilities: Basic rule

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All prop, both CP and SP brought before court to be divided in a just and equitable manner

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Division of Property and Liabilities: Prenuptial agreement

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B. Validity of prenuptial and separation contracts – must meet the three part test
i. Fair and in good faith
ii. Voluntary
iii. Opportunity to seek counsel

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Special Types of Property to look out for

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i. Deferred earnings – earned during marriage remains CP regardless of when paid. If the earnings are part CP and part Sp, the income will be prorated based on that acquired during marriage vs. that acquired before marriage or after separation
ii. Good Will – asset subject to just and equitable distribution
iii. Causes of Action – Remember Special damages obtained during marriage = CP, General damages are SP
iv. Increase value of separate property due to contribution of Com. funds or labor – creates an interest in the prop based on the increased value attributable to the com funds or labor. Once that is established, it is reduced by any interest by the benefit received by the community from the improvements
v. TiC – All CP not divided in Decree of Dissolution will be owned as TiC by the parties
vi. Rights of Creditors – Division of debts by court does not effect creditor’s ability to go after the other spouse if they are able to.

Front 8

Spousal Rights and responsibilities

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A. Maintenance - Based on what is just in light of need and ability to pay. Washington favors rehabilitative maintenance. Considerations include:
i. financial resources of the parties,
ii. standard of living during the marriage,
iii. duration of the marriage, age and physical and emotional conditions and
iv. employability of the parties

Front 9

Child Support

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The Washington legislature has adopted mandatory child support schedules based on the income of each parent and the ages of the children. Time spent with children may be a reason to deviate from schedule
A. Step parent obligation – responsible for child support during pendency of dissolution, but not once finalized
B. Generally ends at age 18 or emancipation, may continue through higher education based on resources, standard of living of the parties and ability of the child.
C. Enforcement – contempt or automatic wage assignment

Front 10

Parenting Plan

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Based on best interests of the child
A. Plan includes
1. Dispute resolution
2. Decision making authority
3. Residential scheduling with each parent
4. Designated custodial parent
5. Limitations on contact
B. Standards for limitation – mandatory if severe abuse or neglect. May include no contact or supervised time with child only. Discretionary limitations placed on contact for less severe abuse or neglect

Front 11

Parenting Plan: Rights of non-parents

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C. Rights of non parents
i. Custody – only if strict standard has been met which determines that both parents are “unfit”
ii. Visitation – visitation petition may only be brought as part of an ongoing legal action between parents. “Best interest of child” remains the standard

Front 12

Uniform Child Custody Jurisdiction and Enforcement Act

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When child is not illegally taken across state lines. Two step test to determine J
i. First, use the Home state rule – where child has resided for the past 6 mo = home state
ii. OR (if that is too hazy because child is traveling back and forth) the state with the most significant contacts

Front 13

Standard for relocation of children

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If parent w/ majority time with child wishes to move they must give at least 60 days notice before moving. Objection must be filed by other party within 30 days. Trial will be held on the merits. There is a rebuttable presumption that the move will be allowed. Opposing party must show that the detrimental effect of the move outweighs the benefit of the change.

Front 14

De Facto Parentage

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Where one partner is not legally recognized as a parent. Only in narrow circumstances does this work, and court will adhere to the principle that the welfare of the child is the paramount consideration. The 4 part test to establish a de facto parent is
i. natural or legal parent consented to and fostered the parent-like relationship
ii. P and child lived together
iii. Assumed obligations of parenthood w/o financial compensation
iv. Parental role for a length of time sufficient to establish a bond with the child.

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Standards for Modification

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A. Property and debt division - Cannot be modified, can be overturned if it does not meet the three requirements for validity (fair, voluntary, opportunity)
B. Maintenance, Child Support, Parenting plan - modification allowed with substantial change in circumstances

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Uniform Parentage Act

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A. Father-Child relationship – established by an
i. unrebutted presumption in the context of marriage
ii. adoption, and
iii. a signed acknowledgement
iv. adjudication of paternity, or
v. a valid surrogate parentage contract or
vi. having consented to assisted reproduction by his wife
B. Presumption of Paternity in the context of marriage –
i. A man presumed to be father of child born during marriage or attempted marriage or within 300 days after termination of the marriage or attempted marriage
ii. A man is presumed to be the father after the birth if he and the mother married each other, he asserts his paternity and the assertion is on record, he has agreed to be named on the birth cert. or promises to support the child.
C. Order Determining Parent child relationship – will include support provisions for the child and residential provisions (or a parenting plan if requested by a party.
i. Order for Genetic Testing – Ct. will order child and other individuals to submit to gen. testing based upon sworn statements alleging or denying paternity

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Adoption

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adopted child retains same rights as biological one.
A. Finality of Adoption – Adoption may not be challenged by a person alleging paternity based on lack of notice or any other defect in the proceedings
B. Revocation of consent – can only be revoked based upon fraud, duress, or lack of mental capacity within 1 year of court approval of the consent. Otherwise consent may not be revoked.

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Domestic violence prevention act

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provides for immediate protection order against party who has committed DV. No contact order may be sought – hearing will happen asap

Front 19

Registered domestic partners

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applies to Same sex couples and opposite sex couples where one partner is over 62. property rights nearly identical to those of married couples. A dissolution action will be required to terminate a RDP, except when all of these factors are met.

A Notice of termination must be filed which will be effective 90 days from filing when the following factors are met.
A. Notice of termination signed by both parties
B. Neither party has children under 18 or is pregnant
C. Partnership is not more than 5 years in duration
D. Neither has an ownership interest in real prop
E. No unpaid obligations in excess of 4K incurred after RDP, excluding auto debt
F. Market value of CP must be less than 25K and neither party has SP assets in excess of 25K
G. Parties execute doc setting forth division of prop
H. Parties waive right to maintenance
I. Parties desire the RDP to be terminated

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Tax Ramifications

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None regarding division of property and liabilities and child support. Maintenance will generally be deductible by the payor and taxable income to the payee

Front 21

Attorney's fees

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can be awarded based on whatever is fair considering the income and assets of the parties.

Front 22

Character of Property

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All property acquired during marriage is presumed to be community property except gifts, inheritance or pain and suffering for an injured spouse. All property acquired before marriage or after separation (often determined by when parties begin living apart) is separate property unless commingled with community property so that it is untraceable under the source rule.

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Exceptions to the rule

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A. Personal injury Damages – General Damages (pain and suffering, loss of consortium) = SP; Special Damages (lost wages or med bills) = CP
B. Inter-spousal tort – Special Damages = CP; Future earnings = recoverable by a ½ fraction that will be the SP of injured spouse; General Damages = SP of injured spouse
C. Gifts & inheritance – Given to 1 Spouse = SP; Given to both = CP
D. Investments acquired over time – Prorated based on portion acquired during marriage v. portion acquired before and after separation
E. Rents, profits etc. – If SP, will remain SP if
i. can be traced back to SP source,
ii. no comingling with CP, and
iii. no sig. com. Effort made to increase value (increases w/o sig com. Effort remain SP)
F. Real property or other purchases using both community and separate property – Portion paid in SP remains SP (e.g. downpayment SP = fractional share ownership of prop)
G. Life insurance –
i. Last payment during marriage = CP
ii. If marriage dissolved, goes back to SP
iii. Separated, but not yet dissolved probably = CP
H. Prenuptual, separation contracts (Property Settlement Agreement) – allowed to change character of CP to SP or SP to CP. Will be valid if following factors are met
i. fair on face and made in gf
ii. made voluntarily w/ full disclosure of material facts
iii. opportunity to seek independent counsel
I. Enhancement of value of separate property using community funds and/or labor – creates community interest in proportion to increased value, reduced by community benefit received
J. Registered Domestic Partners - All the same rules apply
K. Meretricious relationships/committed intimate relationships

Front 24

Management of separate/community property

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i. SP = completely in owners control whether real or personal prop
ii. Situations where Joinder is necessary for CP
a. Purchase or sale of real property
b. Sale or encumbrance of community household goods
c. Sale or encumbrance of community business assets for any business transaction other than the ordinary course of business
d. Gifts of community property to third party

Front 25

Disposition of property at death

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i. Intestate – all CP inherited by surviving spouse, ½ of SP inherited by surviving spouse with remainder going to children
ii. Testate – spouse can alienate all SP and up to ½ interest in the total community prop to someone other than spouse
iii. Community Property Agreement – entered into in form of Deed by both spouses. After death, estate passes to surviving spouse. CPA trumps a will

Front 26

Dissolution

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i. ALL PROPERTY both CP and SP is before the court for a just and equitable distribution. Factors the court looks at for just and equitable distribution are
a. character of property
b. length of marriage
c. economic circumstances of parties
ii. Any CP not directly distributed in dissolution will be owned by parties as TiC
iii. Once Dissolved, all rights and interest of spouse in testator’s will (or a CPA) are revoked unless expressly provided otherwise.

Front 27

Rights of creditors

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i. Contractual Obligations
a. Debts incurred during marriage presumed C debts done in furtherance of C benefit. One Spouse, acting alone, cannot bind the SP of the other unless for a “family expense.”
b. Marital Bankruptcy Rule – premarital debts or liabilities cannot be enforced against any CP or the SP of a new spouse (earnings during marriage are CP) – unless spouse brings SP to new marriage, there will be no prop for which a creditor can collect. The three limitations to this rule are
i. Maintenance and Child support obligations
ii. Federal tax liens
iii. Separate debts reduced to judgment within 3 years of the marriage of the parties
ii. Tort Claims – Generally, a tort committed by a spouse during marriage will result in CP liability, but there is no formal presumption. SP always available. Injured party may be able to get all SP and up to ½ CP (notes say that to get to CP the tort must be heinous).

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Variations on CP system

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iii. Prop brought into WA from another state = remain SP of spouse who owned it before coming to WA
iv. Quasi community property = acquired by deceased spouse while living out of state and would have been CP if acquired while spouse was in WA. If owner dies, surviving spouse may have a ½ interest in the prop.
If it is transferred before death, spouse will still get 1/2 interest if it meets these factors of QCP
a. Transfer occurred within 3 years of death
b. Made without other spouse’s consent
c. Made for less than adequate value
d. Transfer left the deceased spouse some control over right over the property
v. Real property will be governed by the law of the state it is located

Front 29

Cohabitants

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– Commited Intimate relationships/Meritricious relationships are defined as stable relationships evidenced by such factors as
vi. Continuous cohabitation
vii. Duration of relationship
viii. Purpose of relationship
ix. Pooling of resources
x. Services for joint projects
xi. Intent of the parties
xii. If such relationship exists, the court will evaluate the interest of each party in the property acquired and make a just and equitable distribution