Will my spouse take my 401(k)? Where will our kids live if we separate? Will I be able to afford anything?! Divorce is one of the scariest things a person can go through. The end of any relationship means both people will need to find a new normal. Unknowns and fear can lead to either a lack of decision-making or quick decisions to hurry things along that can have disastrous consequences in the long run. Let's examine three of the biggest mistakes people made in the divorce and separation process.
1. Not Having a Solid and Well Thought Out Parenting Plan
For anyone with children, establishing a parenting plan is one of the most important parts of your divorce. It will establish where your children will live, who makes the decisions for them and how, how holidays and vacations will be spent, and a variety of other critical aspects of shared parenting. Very often parties will end up with a parenting plan that does not anticipate the needs of their family, does not allow for changes as the children get older, is full of ambiguity, and leaves out major components when it comes to making decisions. These issues can lead to ongoing conflict even long after a divorce is final. A common misconception is the a parenting plan can easily be changed later so signing something quickly is a good idea. Another common mistake is thinking you will never need the plan because you and the other parent will always get along. The reality is that in Washington state, it is extremely difficult to change your parenting plan once you have one in place. Modifying a parenting plan requires a showing of a substantial change in circumstances that you could not have and did not contemplate when you decided on your last plan. By design, it is difficult to change of plan because plans are supposed to promote stability for your children and family. When you work on a parenting plan, it is critical that you get the advice and input of professionals who understand the provisions you will need to rely upon in the years to come. Assuming you can make changes later is dangerous and only sets you up for disappointment, conflict with your coparent, and a lack of stability for your children. Not having a clear decision-making protocol, or any number of other common parenting plan mistakes, can do the same. You do not know what you do not know. Talk to someone who does know to set yourself up for success.
2. Not Understanding Community and Separate Property
Every divorce will require the division of community debts and assets. Often, people have no idea what is community property and what is separate property. Why would they? For most people, going through divorce is the first-time experience and these are likely terms that have never been encountered. It is critical to first determine what is actually community property and what is separate property. Only then, can parties move on to determining how community property will be divided and whether it is appropriate to consider dividing any separate property. In Washington, separate property can be divided, but very rarely is and typically only in a long-term marriage if equitable. Many times, parties believe that because an account is in one person's name only, it is separate property. This is in accurate. In a community property state like Washington, name on title does not determine the character of the account and whether it is separate or community. Before understanding what you can and cannot divide, and not potentially giving away too much or receiving too little, it is necessary to understand how Washington law works with respect to property rights. In Washington, parties who cohabitate prior to marriage continuously, may have additional property rights during that time. There are far too many nuances to cover here, but the bottom line is not knowing and understanding can cost parties to a divorce in more ways than one. Finally, there is a common misconception that community property is always divided equally, 50/50. While this may be the case in other states, it is not the one in Washington. Simply put, we are not a 50/50 state. There may be instances where dividing community property 50/50 is appropriate, but it is not automatic. In Washington, the standard for how to divide community property is “just and equitable.“ in other words, it depends - and an understanding of how Washington love use division of community property, once you have established what it is, is something parties cannot afford to misunderstand.
3. Failing to understand Spousal Maintenance: What, When, How much, and How Long.
In Washington, spousal maintenance is the term used for what other states call “alimony.“ Spousal maintenance is a legal obligation for one party to provide the other financial support either before the divorce is final or after. There are two kinds of spousal maintenance, temporary, and post-divorce. Most people do not understand the difference, when either is available, and whether they should be seeking it or are likely to be paying it. Not understanding these fundamentals is common and can lead to a lack of being able to realistically prepare for what life will look like post separation and then post-divorce. In Washington, the amount of maintenance a party may receive is largely fact specific. There are important guidelines, statutory law, and caselaw, that help determine how maintenance can be awarded, but your individual situation matters. When going through divorce, you do not need to know about statutes and cases, but you
should connect with an attorney who does. Maintenance cannot be sought for the first time once your divorce is finalized. Making a request for spousal maintenance should happen when even filing the very first paperwork in a divorce case. In Washington, maintenance is a flexible tool and is open to negotiation and the discretion of the court, should a case not settle between the parties. A common mistake is attempting to negotiate this without the advice of an attorney, not understanding what is realistic, and ending up in a position either receiving nothing or far too little for far too short of a period of time, or on the other end, overpaying and doing so for far too long. parties during divorce cannot afford to have misconceptions about the spousal maintenance.
These common mistakes made before and during the divorce process can all be avoided and are just the tip of the iceberg with what to know and consider. Being educated on the divorce process, potential outcomes, and considerations for your individual situation can feel overwhelming. You may be tempted to get your information from Google, listen to what your (well-meaning) friends say, or you also may be inclined to just avoid the topic altogether. You cannot afford to do any of that. This is your life. Decisions about your family, children, and future financial security are at the heart of every divorce. A marriage is the most binding and intricate legal contract most people ever enter into without even realizing it and with just one signature on a marriage license. Do yourself the biggest favor and seek the advice of a competent family law attorney to assist with unwinding your marriage. It is a legal contract. Many times people come to us later and may have used a non-attorney mediator, may have done a “kitchen table“ divorce with no input, or maybe even ignored the process altogether and blindly agreed to anything their former spouse wanted just to be done. Typically, every one of these scenarios leads to regret, finding out the outcome obtained was far from the best, and wanting a “do over.“ Unfortunately, there are no do overs and making changes can be difficult if not impossible later. Treat the end of your marriage with a level of carefulness and information gathering that is on par with or if not more than you did when you decided to get married in the first place. Your future depends on it!