Divorcing? Shooting yourself in the foot will only make it hurt more

Written by Sabrina Layman

The truth is, breaking up is hard to do. While most people want a simple, amicable divorce, there are a number of details that need to be considered. Even the easiest divorce has to go through the same number of steps as a very complicated divorce. No matter the situation, keep these key points in mind when you’re going through the process to ensure the best outcome.

1. Grieve the death of your marriage

The reality is that no matter how amicable you are with your ex, divorce costs you both financially and emotionally. You’re essentially grieving the death of a marriage, and there’s no easy way to move through grief. However, if you don’t tread carefully and take your time, you can end up making poor decisions that cost you even more. And unfortunately, our society doesn’t provide as much leeway if you make poor decision as a divorcée compared to if you’re a widow or widower. So, grant yourself permission to grieve and take as much time as you need.

2. Eat your peas, but slowly

Most would tell you to eat your peas fast, getting them out of the way so you can enjoy the rest of your plate. Well, divorce goes down a lot tougher than peas, but it’s important you don’t rush through the process. When re-writing your life story, take it slow, carefully plan your next steps and don’t close the chapter in haste. What does your future look like? Where do you want to live? How are you going to raise your kids? Work through these questions with your attorney and, when things start to feel overwhelming, take a step back to avoid making rushed decisions you’ll inevitably regret.

3. You break the stool, you buy it

Just like a three-legged stool with one shorter leg is a little tippy, each of your finance legs need to be even to ensure your financial independence and stability. Emotions run high during a divorce and can quickly impact your financial decisions. Frankly, you’re not a good decision maker when you’re sad, angry, or anxious. Put your emotions aside and keep your mind on your money at all times. Our job is to work with you, dissecting everything from your retirement fund to real estate investments, in order to safeguard your financial well-being.

4. General rule of thumb: you’re not a Kardashian

As much as you may want to live your life out loud, this isn’t a reality TV show on E! It’s best not to let your emotions lead the way and it’s never a good idea to show up at your ex’s house, talk to your kids about his or her infidelity, or blast your ex on social media. All of these knee-jerk, dramatic, and emotion-fueled choices will come back to haunt you. Suppress the urge to act out by taking a break, sleeping on it, and coming back to your reality with a clearer mind and more positive outlook.

5. Two sets of eyes are better than one

If you just can’t rationalize hiring an attorney, then at the very least, have one look over your final documents before they’re signed. It will be the best money you spend. There are many components that get forgotten and attorneys make a pretty penny fixing self-managed divorces after they’ve already been filed.

It can seem like everyone and their mothers have an opinion about how you should go about the divorce process, making it feel overwhelming. However, it’s often misconceptions that circulate with more frequency, rather than sound advice. It’s important to find an attorney that understands each case is unique, takes the time to get to know you, listens to your needs, fits services accordingly, and ultimately helps alleviate the stress. We will work with you every step of the way, asking the right questions to help you get your life back to a more peaceful and positive, optimistic place.

 

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.

Is child relocation a “slam dunk” for primary residential parents?

Washington’s statute on relocation of a child heavily favors permitting the child’s relocation with the primary residential parent. Many clients ask if it is even worth objecting to the relocation. The answer, unfortunately, is “it depends.” An important distinction to remember, however, is the court cannot prevent a parent from relocating. The court can only restrain a parent’s ability to take the child with them.

RCW 26.09.405 et. seq. requires that the “person with whom the child resides a majority of the time” shall provide notice to the other parent (or anyone entitled to residential time with the child) if they intend to relocate with the child. This has been interpreted to mean the parent who is designated as the primary residential parent in the Parenting Plan, but can also mean the person who actually has residential time with the child for more than 50% of the time. That is to say, the designation in the Parenting Plan will not, per se, carry the day.

Indeed, in my first relocation trial, the court actually did an analysis of the amount of time spent with each parent and determined a percentage allocation of parenting time to each parent. I have found that the more time the child spends with the alternate residential parent, the more the court will closely examine the request to relocate.

The statute further provides that there is a presumption that the relocation will be permitted. RCW 26.09.520. In layman’s terms, this means that unless the objecting parent can show the harm to the child outweighs the benefit to the child, the relocation will be permitted. The court is required to evaluate ten statutory factors to decide whether to permit or deny the relocation:

(1) The relative strength, nature, quality, extent of involvement, and stability of the child’s relationship with each parent, siblings, and other significant persons in the child’s life;

(2) Prior agreements of the parties;

(3) Whether disrupting the contact between the child and the person with whom the child resides a majority of the time would be more detrimental to the child than disrupting contact between the child and the person objecting to the relocation;

(4) Whether either parent or a person entitled to residential time with the child is subject to limitations under RCW 26.09.191;

(5) The reasons of each person for seeking or opposing the relocation and the good faith of each of the parties in requesting or opposing the relocation;

(6) The age, developmental stage, and needs of the child, and the likely impact the relocation or its prevention will have on the child’s physical, educational, and emotional development, taking into consideration any special needs of the child;

(7) The quality of life, resources, and opportunities available to the child and to the relocating party in the current and proposed geographic locations;

(8) The availability of alternative arrangements to foster and continue the child’s relationship with and access to the other parent;

(9) The alternatives to relocation and whether it is feasible and desirable for the other party to relocate also;

(10) The financial impact and logistics of the relocation or its prevention; http://apps.leg.wa.gov/rcw/default.aspx?cite=26.09.520

Those factors are not weighted such that one is more meaningful than another. Nor is there any instruction under the law regarding the required outcome where, for example, five factors weigh in favor of relocation and five factors weigh against relocation. There is also no indication that these factors are the exclusive factors for the court’s consideration. Ultimately the decision as to whether or not to permit the relocation of the child is within the significant discretion of the trial court.

Other information that may be pertinent, but not specifically outlined in these factors include:

• Distance between the proposed new location and the residence of the objecting parent, including any difference in time zones;
• Whether there are significant cultural differences or language barriers in the proposed new location;
• Whether or not the proposed location is a signatory to the Hague Convention;
• The ability of the parents to cooperatively parent prior to the proposed relocation;
• What impact new partners have on the relocation and whether the new partner facilitates and encourages the child’s continued      relationship with the alternate residential parent;
• Even if neither parent was subject to restrictions (RCW 26.09.191) in the existing Parenting Plan, whether those issues need to be  reevaluated (including substance abuse and mental health issues).

There are also various studies and professional publications on the risk factors and longitudinal impacts of relocation on the parent-child relationship, which are well briefed by Dr. Bernardo Mora in his article for the Journal of the American Academy of Psychiatry and the Law. http://www.jaapl.org/content/38/2/291.full. However, the way the Washington statute is currently written, the focus is more on the relocating parent, and less on the best-interests of the child sought to be relocated.

Given the many considerations, if a parent wishes to prevent the relocation of a child, it is often advisable to request the appointment of a parenting professional that is well versed in relocation actions. Also be prepared to spend considerable amounts of time and money in a relatively short period of time, as the determinations on relocation are expedited and require significant court and professional intervention.

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.