Divorce, dissolution, and annulment are all terms generally used to describe the same event–the end of a marriage. Entry of a “decree” is required to legally end a marriage, such as a “decree of invalidity” (annulment) or a “decree of dissolution of marriage” (divorce). Entry of a “decree of legal separation” does not end the marriage, but will affect your finances, property, and children similar to a divorce. Beresford Booth PLLC lawyers will help you determine the best option for you and provide you information to make a well-informed decision.
A legal separation does not end a marriage. A spouse may choose to separate rather than divorce for financial, insurance coverage, religious, and other reasons.
If you choose to separate, you are not legally required to file a legal action. Spouses are not required to seek legal separation before getting a divorce.
A spouse may decide to file a legal action, known as a petition for legal separation, in order to seek relief from the Court. The consequence of filing an action for legal separation means more than the parties are simply living in separate homes. Filing a petition for legal separation allows a spouse to seek temporary orders, such as a temporary parenting plan and child support. Upon entry of a “decree of legal separation”, the Court has the power to make final financial orders, divide property, determine a parenting plan, and order child support.
An action for legal separation may be converted to a divorce by either spouse, with appropriate notice and upon further Court action.
Annulment is a relatively rare process requiring the Court declare the marriage invalid. Entry of a decree of invalidity requires a finding the marriage was legally deficient from the start. If the Court grants the request for an annulment and enters a “decree of invalidity”, the Court has the authority to divide assets and debts and determine a residential plan for children.
In Washington, a divorce is referred to as dissolution of marriage. A Decree of Dissolution of Marriage legally ends the marriage.
Either spouse may file for dissolution of marriage if the marriage is “irretrievably broken”. The Court will find the marriage is “irretrievably broken” if one spouse says it is, even if the other spouse disagrees. Washington Courts follow a no-fault system. A spouse does not have to prove wrongdoing (such as cruelty or adultery) to get a divorce.
In the course of a dissolution action, the Court will determine parenting arrangements for children, how children will be supported, how the parties’ assets and debts will be divided, and whether to award spousal support (alimony).
An action to dissolve a marriage begins when one spouse (known as the “petitioner”) files a summons, petition for dissolution of marriage, and other mandatory forms (which vary from county to county). The summons commands the other spouse to respond to the petition and provides contact information for the Court. The petition for dissolution recites general facts concerning each spouse, the parties’ children, and the circumstances of the marriage, such as the date of the marriage, and date of separation. The petition for dissolution also serves to identify the petitioner’s desired property division, requests for spousal support (alimony), and parenting issues. The petition for dissolution may be filed jointly if both spouses agree to the divorce and related terms. Courts also generally require the petitioner file additional documents (e.g., Confidential Information Form, Case Cover Sheet) and pay a filing fee to start the dissolution action. Every situation is different and parties are encouraged to seek legal counsel to determine how the petition for dissolution should be prepared.
If the spouses do not agree to the divorce, the summons and petition for dissolution of marriage must be personally delivered to the other spouse (referred to as the “respondent”) by “service of process”. Service of process generally requires physical delivery to the respondent by a third party who is 18 years or older and not a party to the legal action. Ensuring proper service of process is a critical component of the case. Consult with legal counsel to ensure you comply with the laws governing service.
After service of the summons and petition for dissolution, the respondent has a specific deadline to file a written response (referred to as the “response to petition for dissolution”). If served in Washington, the respondent has 20 days and if served outside Washington, the respondent has 60 days to respond. The Response to Petition is intended to identify the respondent’s position on division of assets and debts, parenting arrangements, spousal support, and other issues.
The petitioner may seek entry of an order of default without notice to the respondent after failure by the respondent to file a timely response. An order of default will be limited to the requested relief in the petition.
After filing and service, it is often necessary to seek temporary relief to provide guidelines for the parties’ conduct while the action is pending. Temporary orders often address temporary possession and use of assets, occupancy of the family home, determination of a residential schedule for children, and payment of child support, spousal maintenance/spousal support/alimony, and restraints to protect people or preserve assets. If the spouses do not agree, both spouses are authorized to file motion asking a Judge or Court commissioner to decide the disputed terms following a hearing.
Washington requires a waiting period of 90 days before entry of a decree of dissolution. The 90 day period begins to run after the summons and petition have been filed and served upon the other spouse. This is a mandatory minimum waiting period intended to allow the parties time to “cool down.” The waiting period cannot be waived.
Unless the parties reach an agreement, it is likely the legal proceeding will take much longer than 90 days.
A marriage is not ended until the Court signs final orders, including a decree of dissolution, together with findings of fact and conclusions of law. If the parties have minor children, a final parenting plan and final order of child support are also necessary. The Court will enter final orders after: 1) expiration of the 90 waiting period upon motion of the petitioner if the respondent was property served, but failed to respond; 2) the parties agree on all issues, including property division, parenting arraignments, and financial support; or 3) the Court conducts a trial to resolve disputed issues.
If spouses agree with respect to all issues (e.g., property division, child custody, child support), the agreement will be memorialized in final pleadings and must be approved by the Court. Where spouses do not agree, the Court will conduct a trial. At trial, the parties have the opportunity to present their evidence and arguments supporting their respective positions. The Court will rule on all issues in dispute and enter final orders after consideration of the evidence presented at trial.
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