Three Ways to Financially Protect Yourself During a Divorce
There are three ways to protect yourself financially during a divorce. The first is ensuring that child support is paid. The second is requesting spousal maintenance if appropriate. The third is conducting proper discovery to ensure that all assets are known and are fairly divided.
Whether you will be receiving, or paying, child support is often the subject of much worry. How will you make ends meet? The mechanisms for both payment and receipt of child support are rather simple, and help is available for collecting support if it is not paid both from the courts and the Division of Child Support (DCS). The custodial parent receives child support. The non-custodial parent will not receive child support regardless of his or her financial circumstances. Child support may also be available when there is a joint custody and one parent earns less than the other.
A judge has the authority to enter a temporary order for custody and child support. This order ordinarily remains in place until a final decree establishing custody is entered. In most cases, a hearing for temporary custody and support can be held shortly after the filing of the petition for dissolution. All that is required is a motion for temporary support with supporting documents. The amount that you receive will be based on the Washington State Child Support Guidelines and are based on the incomes of both parents.
In Washington, spousal maintenance and alimony have the same meaning. Spousal maintenance is awarded on a “need and ability to pay” basis. This means one spouse must have a documented need for spousal maintenance in order to meet their monthly obligations after consideration of his or her monthly income, if any. The other spouse must have the ability to pay spousal maintenance after consideration is given to his or her income and reasonable monthly expenses. Judges usually see through attempts by one side to artificially increase the “need” for more maintenance, as well as efforts by a spouse to increase expenses in order to escape a finding of “ability to pay.” Factors which may affect your eligibility to receive spousal maintenance include:
- The length of your marriage
- Your need for education or other rehabilitation in order to find meaningful employment. This is especially true if you interrupted your career to care for your children or to support your spouse’s career.
- Your work history and earning capacity
- Your health
- Your overall financial situation compared to that of your spouse including your prospects for future earnings, especially in long-term marriages
- The lifestyle enjoyed during the marriage, especially in long-term marriages
Every case for spousal maintenance is unique. Providing your attorney with clear and detailed information about the facts of your marriage and current situation will allow him or her to make an informed spousal maintenance assessment. Your attorney must make a careful calculation of your spouse’s monthly net income and available income in order to determine the “ability to pay.” Similarly, a careful calculation must be made of your net income, if any, along with monthly expenses in order to determine your “need.” Your attorney will typically use a form called a financial declaration in order to present this information to the court.
Discovery and Division of Assets
Washington law provides for a fair and equitable, but not necessarily equal, division of the property and debts acquired during your marriage. Regardless of how a title is held, the court will use its discretion to divide the marital assets and debts. In many cases, this may mean equal division, but as little as one-third of the assets awarded to one party and two-thirds to the other may still be considered “equitable.” There are reported cases more extreme than this. The court will consider a number of factors, including the current economic circumstances of you and your spouse and the length of the marriage. The future earnings potential and the health of the respective spouses will be significant factors. Generally, courts are more likely to employ a “50/50” split of the net asset value in short-term marriages or where the spouses’ incomes are similar. They may begin to deviate from the “50/50” sharing in longer-term marriages where there is a significant difference in the earnings or economic outlook of the parties. The greater this difference, the greater the potential for a court to deviate in favor of the financially disadvantaged spouse.
In order to get an appropriate division of the assets, you have to know what the assets actually are and what they are worth. This is where discovery comes into play. Discovery is often among the most important steps in a divorce to protect financial assets and receive an appropriate award. The purpose of discovery is to ensure both you and your spouse have access to the same information on finances and assets. Similarly, the judge must know all of the facts to make a fair decision.
Through a variety of methods, attorneys will request information from your spouse and potential witnesses in your case. Types of discovery include:
- Interrogatories, which are written questions that must be answered under oath.
- Requests for production of documents, which asks for certain documents to be provided by you or your spouse.
- Requests for admissions, which asks certain for facts to be admitted or denied.
- Subpoena of documents.
- Depositions in which questions are asked and answered under oath in the presence of a court reporter, but outside the presence of a judge.
Discovery can take anywhere from a few weeks to a number of months, depending upon the complexity of the case, the cooperation of you and your spouse, and whether expert witnesses are involved. The discovery process can be critical to a successful outcome in your case for several reasons:
- It increases the likelihood that any agreements reached are based on accurate information
- It provides necessary information for deciding whether to settle or proceed to trial
- It supports the preparation of defenses by providing information regarding your spouse’s care.
- It avoids surprises at trial, such as unexpected witness testimony.
- It ensures all potential issues are identified by your attorney.
By applying all of the above information, a spouse can best protect all of their financial interests. If you have any questions about divorce in Washington, contact our family law attorneys at Crouse Erickson today.