Monday, January 12, 2015

Uncontested Divorce In Depth


I believe that divorce is too common, and too broadly contested.  I believe it is in the best interests of children and spouses to resolve family law issues by agreement rather than litigation.  Stipulation is by far the least expensive way to resolve domestic issues.
If the parties have decided to divorce and choose me as their lawyer, then I will do the best I can to assist them in reaching an agreement on all issues related to their case.  If such an agreement cannot be reached, for whatever reason, then the parties must find separate representation.  I am not permitted to represent either party at that point because the case becomes a contested matter requiring one party to serve the Divorce Petition on the other, and the other to file an Answer.

If a Joint Petition Divorce is something you think is not possible in your case, then you should seek other counsel to litigate on your behalf.  If you think a Joint Petition Divorce is likely in your case, and wish to put forth your best effort to achieving an agreed uncontested resolution, then I will be happy to assist you.

Dissolution of Marriage Template.doc
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Above is a template of joint petition forms that need to be filled out in order to obtain an uncontested divorce with no children.  If you fill out the forms as best you can in advance of meeting it is very helpful.  Once the Petition for Dissolution is electronically filed, you wait 90 days before the Decree can be submitted to the Court for signature by the Judge or Commissioner.  Normally, no appearance in Court is necessary.  A certified copy of the Decree can be ordered on line at the time of submission for signature and mailed to you.  If you disagree on any issues, or have children, then you cannot use this form.


A legal issue that is often associated with bankruptcy is divorce.  If you have questions about divorce and how it may impact bankruptcy and vice-versa please ask me.  It is important to understand that the divorce decree does not alter the rights of third parties such as creditors regardless of who is assigned a particular debt in the divorce decree.  Liability for a debt to an x-spouse is generally dischargeable in bankruptcy.  That means the assignment of debt by the family court may have little or no actual effect on who ends up paying the debt.  An analysis of the parties qualifications regarding chapter 7 and chapter 13 bankruptcy would be needed to determine who will pay creditors, how much, and over what time period.  Child support and spousal maintenance are not dischargeable in bankruptcy, so it is important to know how a payment by or debt to a spouse is characterized.   Below is a link with a brief overview of some issues:


Divorce and revised estate planning should always go together.  One reason is that most people do not want their x-spouse to have control of the money they leave to their minor children if they should die.  That is what would happen if a Trust is not created for the benefit of the children with a successor trustee other than the x-spouse.  Another reason is that most people do not want their soon to be x-spouse to have control over their medical care if they should need a health care agent at any time during the divorce process.  A third reason is that conflicts between the surviving spouse and children from a previous marriage can be mitigated or avoided by providing for the needs of each in such a way that they don't have to compete with one another for resources. 

Beneficiary designations on life insurance, IRA's, and 401(k)'s should also be changed in the divorce context.  A Washington statute (RCW 11.07.010) revokes beneficiary designations in favor of an x-spouse, but other inadvertent disinheritance issues can arise if the beneficiary designation is not changed to a Trust post-divorce.

A famous example of a disastrous lack of estate planning relating to divorce, remarriage, and children occurred in the case of Anna Nicole Smith.  Click her name to read about the case of Stern v. Marshall which involved years of litigation, and millions of dollars in legal fees.

There are many estate planning pitfall lessons that can be learned from deaths resulting in litigation in recent years, including:  Philip Seymour Hoffman, James Ganolfini, Amy Winehouse, Paul William Walker IV, and Casey Kasem.  The list of celebrity estates involved in probate litigation is long:  Martin Luther King, Jr., John Wayne, Michael Jackson, Elizabeth Taylor, Whitney Houston, Mickey Rooney, Gary Coleman, Brooke Astor, James Brown, Jackie Cooper, and Farrah Fawcett.

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