Monday, July 29, 2013

Divorce in Snohomish County-An overview of the Divorce Process

Divorce in Snohomish County

A summary guide for litigants, to help in the beginning phases of and the understanding of a divorce
By Kenneth A. Berger, Attorney at Law

Overview of the Divorce Process

Divorce is a difficult time for everyone involved.  Part of the difficulty, is that the process is complicated and not particularly user friendly.  This guide is intended to assist litigants who have attorneys; this is not a do-it-yourself manual (although I'll admit that some may be tempted to try to use it that way).  So, please understand that a few precautionary comments are in order.
A little learning is a dangerous thing; drink deep, or taste not the Pierian spring: their shallow draughts intoxicate the brain, and drinking largely sobers us again.
Alexander Pope (1688-1744) - An Essay on Criticism.
The legal rules are constantly changing.  Keeping up with the rules is difficult for family law attorneys, and even judges; it is highly likely that by the time you read this, some aspect of the legal process will have changed.  DO NOT RELY ON THIS GUIDE AS YOUR EXCLUSIVE, OR EVEN PRIMARY SOURCE OF INFORMATION regarding your family law matter; your attorney, or your own learning and investigation should be your primary source of information. This summary does not constitute the giving of legal advice and does not constitute an attorney client relationship.
Ultimately, you are responsible for complying with the law and the current court rules.  Of course, in accepting the benefits that you may derive from this guide, you agree to hold me, your guide, harmless from any problems which may, or should I say willoccur, if you choose to venture forth without the benefit of active representation by a qualified attorney.  That said-
I like to think of the Washington divorce process as having three phases:
1) The Beginning Phase
- the beginning phase always includes filing some initial documents, including: summons, petition, confidential cover sheet, and health district form (and other documents if you have dependent children).
- in simple cases, there may, or may not, be a need for extensive "temporary orders."
- in more complex cases, a temporary orders hearing will usually be held within a few weeks following the initial filings (although an automatic restraining order enters upon the filing of every case in Snohomish County, it rarely eliminates the need for a regular temporary orders hearing).
2)  The Middle Phase
- the middle phase in a simple case is just waiting for 90 days to pass after the date of service.
- in more complex cases, and almost all cases involving children, the middle phase of the case is a time to gather information and stabilize the new living, parenting, and financial situation, when one household becomes two.
3)  The End Phase
- the end phase in a simple divorce case is going to court and having a judge sign your documents.
- in more complex cases, the end phase involves either some type of settlement conference (like mediation) or going to trial.

Who's Fault is this, Anyways?

Washington State follows most other states in allowing divorces without regard to "fault."  The theory seems to be that everyone is entitled to a divorce, even if they sleep with someone else while they are married or do other not so great things.
My experience is that most judges roll their eyes (without you seeing it, of course!) when one side launches into an angry tirade about how their spouse has been cheating on them, or how the other spouse was the only one to spend money in excess during the marriage.   Stories about a badly behaved spouse, may garner sympathy at the church, or at the family reunion, but in today's busy courtrooms, there is just barely enough time to recite the details that matter for the judge's decision, and very little patience for everything else.
There are a few circumstances, however, where "fault" type information may be presented and may even be important.  Some of these situations will be outlined below.   And not to sound contradictory, but there can be quite a bit of cross-over between important details (i.e. financial info or recent use of drugs) and unimportant bad spousal behavior.

How long is this Going to Take?

If you stay on the fast track for a simple divorce, your divorce could be complete in as little as 90 days from the date that the respondent (the side that does not file) is served.  You cannot get a divorce in less than 90 days (although some, typically short, marriages can be annulled in less than 90 days).
When there are children involved, or when a case gets complicated, your divorce may take up to a whole year to complete, even with a skilled lawyer on your side.
An average complex case at our office lasts about 7 months.  Yet, if the average case is sent all the way through trial, it might take about 9 months or longer.  This time difference is because most complicated cases are resolved through mediation rather than going to trial.  As the trial date gets near, the information needed to either settle or go to trial is complete, and the pressure of an impending trial will push most litigants to settle.  Here is a typical complex case timeline:
Jan 1                Case is filed
Jan 1-7             Initial case documents are served on the respondent
Jan 14-21         Court commissioner hears a motion for temporary orders
Feb to March   Response to petition is filed, or default is taken
Feb to March   If response is filed, then case is set for trial
April to June   Information is gathered to complete the case
June to July     Settlement is attempted, such as a mediation, or a settlement conference
July to Sept.    Trial will likely be set in this time period

Do you really want or "need" a lawyer?

In a word, YES!  OK, I know my view as an attorney is a bit jaded, but the way I see it, you won't even know what you are giving up if you are not represented. 
How do you evaluate the "fairness" of a deal your spouse may offer you if you don't have someone's else's opinion of what is fair to start with?  That opinion will be given to you by your attorney, probably repeatedly, and in a number of different situations during the course of representation.
Once or twice a year, I will be asked to review a final order (like a decree of dissolution) where either the litigant thinks the order means something totally different (at least different than what it really means in my opinion) or where the litigant didn't have any idea what the order meant to start with, and certainly doesn't have any better idea now.  Most of the persons requesting a document review like this were unrepresented at the time of their divorce.  It is rather unpleasant for me to tell them now, what they should have been told prior to the entry of the order.  The outcome is often: shock, dismay, and complete frustration.   Please, save yourself this agony.  Hire an attorney.  Stay in close communication with your attorney during the entire case.  It may be expensive, but likely cheaper than the alternatives in the long run.

Mandatory Forms

There is a long list of mandatory forms that must be filed to start your divorce case.  The problem is that much of the complication is in the completionof the form, not in obtaining the form itself.  At our office, we subscribe to a special service that provides us with updated forms on our computer in a way that makes it easy for us to quickly complete them.
One of the handy things that you can do as a client in our law office is to use our "uplink" process to enter information on your case on your own computer.  We then upload the information to our computer and incorporate the information into the final forms that get submitted to the court.  This process can really be a time and money saver for you in some circumstances.
Of course all of the mandatory forms are available online at:
http://www.courts.wa.gov/forms/

The Petition

Please don't be bashful when making the list of assets and debts for the petition.  List them all!  An unlisted asset  may be "up for grabs," if the question comes up afterthe divorce is finalized.  Unlisted debts are also in limbo if they are not assigned to either party.  You may even have to go back to court to address an unlisted asset or debt; not good.
There are some simple boilerplate wording clauses that can help greatly in reducing future litigation, relating to who keeps/pays what in the event that the assets or debts are unassigned.

Complete Filings versus Later Date Filings

A "complete filing" is one where the petition and other documents are completed as to all the details, especially assets and debts, that no questions remain to finalize the divorce.  A "later date" filing is when you check the box in the petition that says that the petitioner's requested division of assets and debts will be determined later.
Simply put, you do a later date filing when you're in a hurry, or you don't know how to finalize the orders yet.  Otherwise, a complete filing is almost always preferred.
One big advantage of a complete filing is that you can finalize by default if needed, and know exactly what the outcome will be.

Can You Obtain a Joinder or Agreement?

A "Joinder" is when the opposing party agrees with the filing (and signs to this effect), so much so, that they agree that the way the petition and other documents are drafted express the exact same outcome that they want to see.
There are two options when joining in the divorce: 1) the petitioner can enter final documents without any further notice to the Respondent as long as they precisely mirror the petition and initial documents that were joined into, or
2) the Respondent agrees with the initial documents filed, but notice must be given to enter final documents.
The joinder can be revoked, or taken back, in some circumstances.  For example, if the Respondent joins in the petition, and the 90 days has not passed (minimum time required by law from filing and service to finalization), then the joinder can be revoked by filing a revocation document.  Unfortunately, there is no standard/pattern form for revoking a joinder.

The Temporary Orders Hearing

In Snohomish County, once a petition is filed, the court will enter an abbreviated standardized temporary order.  Although this order affords a small amount of protection, in most complicated cases a more complete temporary order is needed.
So, at the beginning of most cases, the court is asked to sign a set of orders that establish some of the rules by which the parties will operate under, at least until trial or the case settles (whichever happens first).  Issues addressed in the temporary orders often include:
Who will reside in the family home
Who will pay the parties debts
Who will temporarily use what assets
Who will be primary custodian of the children
Will there be a temporary award of maintenance (known as alimony elsewhere)
Will there be child support paid, and/or
Is there a need for the appointment of a Guardian Ad Litem

Drafting the Motion and Supporting Declarations

The motion for Temporary Orders is supported by declarations in writing.  At trial, the Court gets their information mainly from live witnesses.  But at the Temporary Orders hearing, the factual information presented is almost exclusively in written form.  The oral presentation at the Temporary Orders hearing is only for "argument" and is not to put forth new facts that have not been presented in the motion.
Just as importantly, the moving party has the obligation to raise any issues for which they will request relief, in their motion.  The reason for this is a matter of fairness.  It allows the responding party to address the issues in writing during the one chance they get.
The declarations must provide the factual information to support the motion.  Many judges and commissioners will refuse to grant relief if the motion does not specifically request the relief sought, even if the supporting declaration makes it clear what relief is being sought.  Because of this complication, it is often a good idea to provide a proposed order with your motion and refer to the proposed order in the motion itself.
The drafting of declarations is really a bit of an art.  From my perspective, the objectives are to:
1.       Write in first person, using what I call "fact driven writing";
2.       All facts presented should be based on the declarant's "personal knowledge,"
meaning they personally saw it, or heard it or know of it because of their own experience.  Hearsay statements (those made by others) are often objectionable and therefore should generally be avoided, with the one exception of statements made by the other party to the litigation, which are almost always allowed.
3.       Place the most important facts at the front of the declaration;
4.       If you are in the responding position respond to every allegation, if possible within the space limitations.
Speaking of space limitations, Snohomish County rules limit the length of family law declarations in rule 94.04(b).  The declarations in support of a motion are limited to 25 pages (double spaced 12 pt. typing or legible hand written) inclusive of the reply. The reply cannot exceed 5 pages.  The response declarations are limited to 25 pages.  Exhibit materials, and a standard financial declaration do not count towards the page limitations.
So, what this all means is that your declarations are not the place to drone on about your opinions and arguments.  Limit your writing to the relevant facts only and tell your story that way.

Will the Hearing Date be set by Calendar Note or Do you have to Show Cause?

Typically, every motion has to have a calendar note.  The calendar note sets the date of the hearing, based on a preset schedule of when the Court hears your kind of case.  Family law motions with attorneys are set before a commissioner (a judge like person appointed by the elected judges) at 9 am in Departments B or C. 
Some matters, however, are required by rule or statute to have the hearing date set by a court order.  This form of setting a hearing is known as a show cause order.  The order can also be used to obtain immediate emergency relief when necessary (such as ordering a home to be occupied only by one side pending the hearing).  The types of hearing that get set by show cause order include: motions for contempt, motions to vacate, and any motion which later orders a person to appear.
While a show cause order allows a party to walk in to Department A (ex parte department) and request relief (pending a hearing 12 to 14 days later) with limited notice to the other side, this can really add cost to your case and so this procedure should be used only when either required or necessary.

During the Hearing

If I represent you, I will ask you to come to court dressed in your best formal clothes.  Please let me do the speaking unless I request you to speak or the Court asks you to speak.  There are numerous ways you can send an unspoken message to the Judge that you are having difficulty controlling yourself.  These include: making faces after the other side says something bad; speaking when not requested to do so; coming to court looking like a mess; coming to court smelling like last night's party; or interrupting your attorney's presentation.
It is never too late to try to resolve the temporary orders issues by agreement.  I may ask you to talk in the hall or meet in a conference room to reach an agreement short of going to a hearing.  Also, sometimes the issues can be narrowed so that only the issue really in dispute need be argued.  Be prepared to say what your bottom line is with regards to the outcome of the hearing.  Sometimes that is all it takes to reach an agreement, especially with the assistance of a competent attorney on the other side.

After the Hearing

If you felt that you "won," do not gloat.  If you felt that you lost, do not panic.  An appeal (known as a review) may be possible.  A review must be filed within 10 days.
Court orders are meant to be followed precisely.  Failure to do so can lead to a contempt motion or other motion, even if you and the other party have agreed to follow a different plan than the order states.  So, if after the hearing, you do not want to follow the order, the only safe procedure is to change the court order prior to not following the order.  This is especially true with respect to following a parenting plan and the financial aspects of a family law temporary order.

Discovery

Following the filing of a petition, or the temporary orders hearing, most attorneys will attempt to amass all the important information and documentation that will be needed to either settle the case or go to trial.  The process of doing this is often referred to as Discovery.
Attorneys are granted a special power to sign subpoenas and notices of deposition as a part of the discovery process.  Using these powers can get expensive and careful consideration should be given to whether it makes economic sense to conduct extensive discovery.  I remember one case this year where my opposing attorney insisted on doing extensive discovery prior to mediating a fairly simple case.  After the discovery, both sides had obtained thousands of financial documents at a cost of about $5,000 to each litigant.  The issue that triggered the discovery was what happened to $10,000 in their joint bank account.  Needless to say, it was impossible for either side to "win" this issue given how just one of the two parties decided to handle discovery.  The moral of the story is that you should not let your emotions dictate how you conduct discovery; instead ask yourself: does it really make economic sense to do this?

Parenting Seminars

Taking the "For Kid's Sakes" parenting seminars is now mandatory.  There are a few exceptions, but for the most part, just do it.  Besides learning about good parenting skills, you also get the benefit of being able to taut the certificate to show what a good parent you are.  If you don't take the seminar, but should have, all kinds of bad things can happen, like being precluded from going to trial, enter final orders, or present your requested relief.  See Snohomish County Local Rule 93.04(C)(5)(D).

Guardian Ad Litems

A Guardian Ad Litem (GAL) is a person who is appointed by the Court to represent the best interests of the child or children.  They are often a social worker or attorney.  The GAL conducts an investigation and then reports back to the Court one or more times.  The report is usually in written form.
A GAL should be appointed when there are serious allegations of bad parenting or dangers to the children caused by the parents or others.  The cost of the GAL is borne by one or more of the parties, often by the party who is requesting the GAL, subject to possible later reallocation at trial.
The GAL's recommendations are usually given respect by the Court as most GALS try to look at the case from a neutral and unbiased perspective.  An adverse GAL report does not guarantee however the GAL's outcome in the case.  This is one of the areas where good lawyering and good judgment must be used to determine if opposing the GAL recommendations is warranted.

Settlement Conferences, Arbitration, and Mediation

Mediation is now requiredin Snohomish County family law cases, before a trial can be confirmed.  There are a few exceptions, and if you want to claim an exception, you should bring a motion.  Yes, it costs money, but it is often the fastest and cheapest way to get the divorce done.
There are lots of good reasons to try to mediate a case.  The parties can take control of the outcome.  If agreed, that outcome will likely stick and end possible years of litigation.  Settling can also send a good message to the children.  Even if the mediation fails, the parties and litigants can gain insight into the weaknesses of their case, or just narrow the issues. A good mediator can really do wonders in getting parties to agree.
A settlement conference is like a mediation between the parties and usually their attorney's but without a mediator.  This should only be considered in the simplest of cases, where the parties are already close to settlement.
An arbitration is different than both a mediation and settlement conference.  An arbitrator sits as a paid judge and decides the case like a judge.  Typically, financial issues may be arbitrated, but a parenting plan cannot. 

Preparing for and going to Trial

The economic and emotional impact of a trial should not be underestimated.  Just the preparation for trial can take a while, depending on the complexity of your case.  This is where experience really shines.  You should be prepared to spend the time we request to both prepare you for trial and prepare your case for trial.  This will likely be an active interaction with you.
Expect to be challenged in mock trial cross-examination.  Expect to be drilled on your presentation of your side of the case.  Remember to both fully answer the question asked and when appropriate, get your factual story out to the Judge.  Make eye contact with the judge or me.  Do not make eye contact with the other party or their lawyer.
Be respectful of the Court at all times.  Do not use any foul language unless quoting what the other party has said.  Dress nicely.  For men, suit and tie is preferred.  For women, Sunday best and not too revealing.  Turn off your cell phone and pager.

Conclusion

Going through a divorce is a complicated process.  I hope this guide will help you in understanding some of the complications.  If you need legal assistance, our office offers a one time, no cost, telephone consultation for the purpose of determining if we would likely be able to help you through the process.  Please give us a call.
Regards,
Law Offices of
Kenneth A. Berger, PLLC
Kenneth A. Berger
(360) 794-6083

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