What’s the rush? What to consider before fast forwarding your divorce process

Written by Sara Epler

This is a follow-up to a blog Sabrina Layman wrote on the five key points to keep in mind when going through the divorce process. This post expands on the concepts she touched on in points one and two, providing my perspective on the divorce timeline and why rushing your divorce could be detrimental to your future.

Throughout 15 years as a divorce attorney, I’ve dealt with a variety of clients including many with complex financial matters. During this time, I’ve learned each case needs to follow certain steps in a measured, methodical manner, and that clients must be well-supported emotionally in order to come out on the other side without regrets.

Step-by-step

The divorce process typically begins with a client consultation where I gain a snapshot of the situation by reviewing the various financial documents that are needed to put the wheels in motion. I also gain an overview of the parenting situation, if applicable. Then there’s evaluating the assets. Although the marriage is coming to an end, many clients don’t want to divorce certain assets. This initial information allows me to design a plan to help the client achieve their desired end results and start the divorce proceedings.

Slow and steady

These steps require time, patience, and objectivity. With most cases, there is typically one spouse who wants to put the pedal to the metal (usually the one who filed for divorce), while the other spouse is reeling backward, struggling to come to terms with this new reality. Some clients have a full understanding of all their accounts and can quickly answer my questions, while others are at the opposite end of the spectrum. Regardless of where you stand, my advice is the same: don’t rush.

A friend indeed

It’s often said that divorce is one of the hardest things in life to deal with. The intense steps involved, decisions that need to be made, and documents that need to be combed through can feel overwhelming. Even if you initiated the divorce, you likely aren’t prepared for the feelings of anger, confusion, sadness, or loss you may experience. All too often, I’ve witnessed a spouse give up everything in an effort to keep the peace and quickly find “closure.” Finding a support system of friends, family, and/or a therapist will do wonders for your mental and emotional well-being, ensuring you regularly take a step back to clear your mind.

The bottom line is that pressing fast forward on your divorce proceedings is never a good idea. I advise you to take your time to adjust to this unfamiliar situation, and make reasoned decisions based on careful consideration and solid advice. These decisions can affect the rest of your life, and my goal is to help you find peace of mind knowing your assets were fully evaluated and details were appropriately attended to. Only then are you well positioned to create a future which brings you stability and happiness.

If this topic was of interest, be sure to check out Sabrina Layman’s post.

CHANGE YOUR BENEFICIARY DESIGNATIONS

A new Washington State Court of Appeals decision was issued on June 1, 2015, which makes it clear that if you have not removed your ex-spouse as your beneficiary from your pension or retirement plans that are Federally regulated and you die – your ex-spouse will get the money.  Even when your divorce decree awards you all of your pension or retirement, if you do not change your beneficiary form, the Federal form mandated by ERISA, the state court cannot help your estate make a claim to that money.  The case can be found here – http://www.courts.wa.gov/opinions/pdf/719009.pdf

And, the decision makes it very clear that even where this Decree stated that 100% of the deceased man’s pension plan was awarded to him as his separate property, the old beneficiary designation form which gave his ex-Wife all the proceeds upon his death was controlling  Four years had passed from the time of divorce to the time of death and the man failed to change the form with his employer.  When he died, his ex-Wife received $497,435.77.  The Court of Appeals made it very clear when it overruled the trial court and stated that Federal law preempts a person’s reliance on Washington State Court orders or statutes.  The Court of Appeals did not decide whether there would be an ability in future cases to claim a basis for action against the ex-spouse where there was a private agreement (no specific agreement existed here), but that little loophole is not a reason to fail to act now.

So, if you have not changed your beneficiary designations on your pension or retirement plans to conform with your Decree, be warned – your pre-Divorce beneficiary designation will control.

I think my child’s other parent is under the influence . . . .

As a parent who is either going through a dissolution proceeding, or has an existing Parenting Plan or other custody order, there may come a time when you suspect that the other parent is suffering from an addiction to drugs or alcohol. Even if you don’t believe that there is an addiction problem, you may learn that the other parent is occasionally impaired due to the use of an intoxicant. Many clients ask about their options in these circumstances.

Warning Signs of Commonly Abused Drugs (http://www.helpguide.org/articles/addiction/drug-abuse-and-addiction.htm)

• Marijuana: Glassy, red eyes; loud talking, inappropriate laughter followed by sleepiness; loss of interest, motivation; weight gain or loss.
• Depressants (including Xanax, Valium, GHB): Contracted pupils; drunk-like; difficulty concentrating; clumsiness; poor judgment; slurred speech; sleepiness.
• Stimulants (including amphetamines, cocaine, crystal meth): Dilated pupils; hyperactivity; euphoria; irritability; anxiety; excessive talking followed by depression or excessive sleeping at odd times; may go long periods of time without eating or sleeping; weight loss; dry mouth and nose.
• Inhalants (glues, aerosols, vapors): Watery eyes; impaired vision, memory and thought; secretions from the nose or rashes around the nose and mouth; headaches and nausea; appearance of intoxication; drowsiness; poor muscle control; changes in appetite; anxiety; irritability; lots of cans/aerosols in the trash.
• Hallucinogens (LSD, PCP): Dilated pupils; bizarre and irrational behavior including paranoia, aggression, hallucinations; mood swings; detachment from people; absorption with self or other objects, slurred speech; confusion.
• Heroin: Contracted pupils; no response of pupils to light; needle marks; sleeping at unusual times; sweating; vomiting; coughing, sniffling; twitching; loss of appetite.

As an initial matter, if you have a reasonably good co-parenting relationship with the other parent, the first step is to directly address the issue, preferably at a time when you do not believe they are impaired. Without blaming, shaming or creating a scene, try to express your concerns about the perceived issue. Make sure you have this conversation without the child present. Keep the conversation child focused, and express your concerns relative to your child’s health and safety. Be clear with the other parent that they are free to live their life as they choose, but when those choices impact your shared child’s safety you have an obligation to protect the child.

If a parent is impaired when you are dropping off your child, waiting for a “good time” to have a conversation may not be an option, as the child’s immediate safety may be at risk. Under those circumstances you may have to immediately intervene by either suggesting the visit be rescheduled, or offering to drive the child (and perhaps the other parent) to your own residence. If the other parent demands to leave with the child, you may have to refuse. Ultimately, you will need to assess the risk to the child, with the awareness that a refusal to permit residential time to proceed as scheduled may be determined to be contemptuous. That is to say, the court may find your refusal to permit visitation was in bad faith, and you may face sanctions or other penalties, and the other parent may be granted make-up time and awarded attorney fees.

If there is a history of substance abuse, the issue may also have been addressed in the Parenting Plan. One parent may have the authority to demand that the impaired parent take a drug test, and visitation will only be permitted if the impaired parent produces a clean result. There are several types of drug tests, and you will want to ensure the appropriate test is utilized for the person’s substance of choice. http://www.questdiagnostics.com/home/companies/employer/drug-screening/products-services.html. If you believe substance abuse is an issue, and a Parenting Plan has not been entered by the court, you may want to consider these types of safeguards.

Ultimately, it may be necessary for the parent to engage in substance abuse treatment, either inpatient or outpatient. Hopefully, the parent will voluntarily engage in services, but if not, you may need to seek court intervention to attempt to modify residential arrangements until the parent receives the necessary treatment. The key to any intervention, testing or treatment, should be to help the parent so as to facilitate a continued relationship with the child in an environment that is safe for the child.

Substance Abuse in the Context of Family Law

Increasingly as family law practitioners we are faced with couples and families caught in the grip of crippling addictions. It can start simply: A dependence upon pain medication, prescribed in response to an injury, which blooms into an addict engaging in drug-seeking behavior. Or a drink at the end of a hectic day to “take the edge off” turns into drinking all day, every day. Many of these challenges aren’t readily apparent until the problem is out of control. Addicts become masters at hiding their addiction. The house of cards begins to fall when someone loses a job, is involved in an auto accident, or is pulled over for driving under the influence. In many situations, the addiction becomes the elephant in the middle of the room, not talked about until the situation becomes a crisis and patience wears out. Addiction’s effects on a family are devastating and often lead people to our offices.

Because Washington is a no-fault state, some people wonder if it matters that their spouse is an addict when it comes to the divorce settlement. The answer is “yes” but not always for clearly apparent reasons. If you have minor children, the court will want to ensure the addiction issues do not impair your parenting functions. See RCW 26.09.191 (http://apps.leg.wa.gov/rcw/default.aspx?cite=26.09.191). In my experience, addiction issues almost always impair parenting functions in some capacity. In those cases, the issue becomes how to best protect the children from the dangers posed by the addiction. These safeguards can include restrictions on visitation, substance abuse evaluations, treatment, and drug testing.

Addiction can also lead to questions regarding depletion of the community estate. Substance abuse can be costly, not only related to the amount of money expended upon the person’s substance of choice, but also on property damage due to auto accidents, legal fees for defending a DUI, or erratic spending patterns. These issues need to be evaluated by legal counsel to determine if they rise to the level of marital waste.

If you or a loved one is struggling with addiction, there are many resources available. Washington Recovery Help Line: http://warecoveryhelpline.org/
Alcohol and Drug Helpline: http://www.adhl.org/
Seattle Narcotics Anonymous: http://www.seattlena.org/
Seattle Alcoholics Anonymous: http://www.seattleaa.org/
Seattle Alanon (for families of alcoholics): http://www.seattle-al-anon.org/
Nar-Anon (for families of narcotics addicts): http://www.nar-anon.org/

The Intersection of Mental Health and Family Law

Mental health issues have sprung to the forefront of the public consciousness in recent months. Robin Williams’s suicide being one of the most acute examples of the impact of mental health issues on a person who appears, to the outside world, to be jovial, put-together, and established. Sometimes people with a mental health diagnosis can shield the outside world from their condition, and sometimes they cannot. Similarly, sometimes one partner can disguise or downplay their condition to the other partner until, as often happens, the challenges associated with living with someone suffering with a mental health issue becomes too much to bear for one or both partners.

When partners, specifically families with children, decide to separate, mental health issues can pose some very real challenges to the process. Dealing with these issues is exacerbated by the unfortunate stigma still associated with mental health diagnoses, from something perceived as “benign,” like situational depression or more “severe,” such as schizophrenia.

Notice, I use the quotations because anyone who has suffered from depression would never describe it as benign, and often schizophrenics don’t recognize the severity of their condition. Simply put, until you live it, you don’t understand it. The National Institute of Mental Health reports that in 2012, on average nearly twenty percent (18.6%) of adults in the US had experienced a mental health illness within the last year.

Handling mental health issues in the context of a divorce, particularly when children are involved, requires awareness and finesse. Whether you are the person suffering from the illness or the other party, it is important to recognize and respect the challenges associated with the interplay of mental health and the family court system. Sometimes, what seems obvious to one spouse is not at all apparent to the other spouse—or to the court.

Washington is a “no-fault” divorce state, so a person’s behaviors are generally not permitted to influence the court’s decision when dividing the assets and liabilities of a couple. The same cannot be said of the court’s determination of a Parenting Plan or residential schedule for a couple’s minor children. Indeed, our statutes may permit or even require restrictions on a parent’s residential time if they suffer from “a long-term emotional or physical impairment which interferes with the parent’s performance of parenting functions . . . .” RCW 26.09.191(3)(b).

Of course, the operative phrase in the statute is the impairment must interfere with the parent’s ability to perform parenting functions. What constitutes a genuine impairment versus what is simply a difference in “parenting style” is subject to debate and discussion. Achieving a clear understanding of the difference between the two—from the perspective of the judicial system—is important in terms of building a case, and in terms of managing the expectations of both parents.

The interplay between mental health and performance of parenting functions is a difficult concept to analyze, from either parent’s perspective. Having a legal advocate who is experienced in handling divorces in which one spouse is mentally ill can make the difference in the outcome of a parenting plan or custody agreement. It is critical for a divorcing couple to build a support team which consists of a qualified attorney, a parenting evaluator and other professionals capable of addressing concerns and attempting to achieve results that are child-focused and sensitive to the delicate nature of the issues involved.

What is most important, however, is to recognize that mental health problems are not uncommon and the associated challenges can be addressed adequately in the legal process.