Uncontested Divorce In Depth

MY PHILOSOPHY ON DIVORCE

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.


DIVORCE AND BANKRUPTCY

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:

http://www.bankruptcylawnetwork.com/bankruptcy-and-divorce/

 DIVORCE AND ESTATE PLANNING

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.

 14205 SE 36th St Ste 100
Bellevue, WA 98006-1553
www.mulvaneylawoffices.com
Phone: 425-649-1190
Fax: 425-223-3197

chris@mulvaneylawoffices.com
 

 

Top 10 Uncontested Divorce Pitfalls

                              

1.  Failure to prepare a post-nuptial agreement (even if you already have a pre-nuptial agreement).  As married people, you can contract with each other and modify your rights and responsibilities.  This can have a positive effect on whether you get divorced at all, and how many issues remain to be resolved if you do get divorced.

Finances are a major source of friction in marriage, especially debt.  Couples can contract to avoid community property and debt and keep everything separate, including retirement accounts, businesses, inheritance, intellectual property and anything else of value.  The process of making a forward-looking agreement can be helpful to reduce anxiety about money.

2. Failure to prepare separate property trusts.  Separate property trusts are a place to put separate property that is clearly labeled as such and confirmed in a pre-nuptial or post-nuptial agreement.  This has beneficial effects in terms of possibly preventing divorce, as well as making divorce easier if it does occur, protecting spouses from each others creditors while married, and creating the foundation for a pre-nuptial agreement if divorce occurs and the spouses remarry others.

3. Failure to disclose assets and debts.  If you don't disclose assets or debts, then you risk having your divorce re-opened for the purpose of revisiting the property and debt settlement.  This can be very expensive, especially if years have passed before the divorce case is reopened and the omission was large.

4. Failure to analyze bankruptcy issues.  Bankruptcy and divorce often go together whether filing is before or after divorce or by one spouse or both.  The automatic stay in bankruptcy stops court cases from proceeding that involve finances (child related issues continue).  This includes jointly filed petitions.  A bankruptcy filed after the filing of a joint divorce petition, but before the Decree is entered, will double the amount of time before the decree is signed from 90 days to 180 days.

A bankruptcy filed after the Decree is entered by one spouse typically triggers a filing by the other spouse.  This is because the Decree does not affect the rights of creditors who are not parties to your divorce.  For example, if the Decree says husband is to pay the VISA bill that is in both spouses' names, and husband files bankruptcy, then the bank that issued the VISA card can sue the wife.  Wife's right of contribution from the husband for what she pays VISA is discharged in the bankruptcy, so wife will likely file bankruptcy as well if sued and facing garnishment of 25% of wife's net pay.

5. Failure to appreciate costs of not reaching an agreement.  Litigation is expensive and extremely wasteful and destructive.  The analogy of litigation to war is not misplaced in that regard.  Couples net worth, if they have any, will be significantly reduced in protracted and contentious litigation costing tens of thousands or even hundreds of thousands of dollars.  If you cannot reach an agreement on an uncontested divorce petition, then I lost two clients.  I cannot represent either of you and you both will need to obtain other counsel at significant expense.  If only one spouse works, then that spouse will pay the attorney's fees for both sides.




6. Waiting too long before attempting to reach an agreement.  if you wait too long, then the goodwill necessary to reach a voluntary agreement may be exhausted.

7.  Not separating issues relating to children and issues relating to property.  Do not attempt to offset child support with the property and debt settlement in the divorce.  The best interests of the children should be considered in the agreed parenting plan first, then address property and debt issues.

8.  Attempting to keep confidences in joint representation.  I cannot keep the secrets of one spouse from the other in joint representation for uncontested divorce.  If you ask me to do so, I must withdraw and not represent either spouse.

9.    Failure to record quitclaim deeds and change titles.  Divorce Decrees are not self-executing.  If the Decree says the wife gets the house and the husband gets the car, and both names are on both assets, then the husband needs to sign a Quitclaim Deed to wife and record it and wife needs to submit notice of her release of interest in the vehicle.  Otherwise, the other spouse's name remains on the asset and will need to be removed in order to sell or refinance the asset.  This can be difficult if much time has gone by after the divorce, so do so as soon as possible (even before the Decree is entered in uncontested cases).

10.  Failure to change beneficiaries on 401(k) accounts and life insurance.  If you do not change your beneficiaries on accounts that have beneficiary designations, Washington has a statute that voids the gift to the x-spouse unless it was made after the divorce.  This may protect your intended beneficiaries, or may not.  The best practice is to make sure your beneficiary designations reflect your wishes and that written confirmation of the designation is ava

 14205 SE 36th St Ste 100
Bellevue, WA 98006-1553
www.mulvaneylawoffices.com
Phone: 425-649-1190
Fax: 425-223-3197

chris@mulvaneylawoffices.com
 

 
ilable for the beneficiaries who need to claim the asset.