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Thanks for visiting our blog site.    Sorry we missed you, but we've moved to the Washington Family Law Reporter's website.   Click here and be instantly transported!    Our new location allows us to bring the WFLR family to one site with more features, including blog posts.    We encourage you to stop by. 

Sincerely,

Christopher J. Fox, Esq.
President, Catalyst Publications, Inc.

Plain Language Forms

   Trying to make sense of the legal system, particularly as it deals with family law issues?   Well, the barriers to comprehension are slowing coming down.   For a long time the process was cloaked in  Latin,  but with few exceptions that's pretty much gone.   When mandatory forms arrived it was with the best intentions, i.e. present users a series of options to check and provide some consistency to the myriad of documents.  However, while those forms may be understandable to attorneys who work them everyday, the occasional visitor to family law still finds them confusing.   

   On January 5, 2012 Chief Justice Barbara Madsen, writing on behalf of the Washington State Supreme Court, announced the creation of the Access to Justice Board’s Pro Se Project Forms Review Work Group.   Justice Letter of Support.   The purpose of the Group is to convert mandatory domestic relations forms to "plain language".   

   Presently the Group has converted 75 forms, with 15 new conversions announced this summer.  While these forms are expressly in draft form only, some version of them will eventually be coming to a courthouse near you.  The forms are located at:    Domestic Relations Plain Language Forms.   

    Comments are being actively solicited.

Collaborative Law

By unanimous vote in both the Senate and House, the Washington State Legislature passed SB 1116, legislation that adopts the Uniform Collaborative Law Act (UCLA).    The law took effect July 28, 2013.

Here's the legislative summary:

The Uniform Collaborative Law Act (UCLA) is adopted and applies to collaborative law participation agreements signed on or after the effective date of the act. The use of collaborative law only applies to matters that would be resolved in civil court and may not be used to resolve matters in criminal cases.     

Some of the principal features of the UCLA include:

• The Collaborative Participation Agreement
• The Authority of Tribunal During Collaborative Law Process
• Concluding a Collaborative Law Process
• Responsibilities of Collaborative Lawyers.
• Disqualification of Collaborative Lawyers
• Confidentiality and Privileges of Collaborative Law
• Communications Standards of Professional Responsibility

Click here for the complete session law.  

Washington State Legislature: Domestic Relations Bills

The following bills, under the topical heading of "Domestic Relations" have been introduced in the Washington State Legislature.    Each bill has a link to the Legislature's website for more information and a status report.   The two bills addressing child support schedule and residential credit have been highlighted. 

Abduction of child by parent, educating parents concerning harmful effects: HB 1021

Child support, child support schedule work group recommendations: HB 1027, SHB 1027

Child support, collections, reporting payments to independent contractors: SB 5552

Child support, enforcement services, provision for recipients of subsidized or working connections child care: SB 5157, SSB 5157

Child support, noncompliance-based suspension of fishing and hunting licenses, violations of suspension: HB 1218, SB 5137

Child support, noncompliance-based suspension of licenses, sending notice to responsible parent: HB 1227

Child support, residential schedule adjustment for support obligation determinations: HB 1694

Child support, revising uniform interstate family support act to include foreign support orders: HB 1118

Child support, support obligation credit for veteran's benefits paid for veteran's child: HB 1145

Child support, vehicular homicide due to alcohol or drugs, offender to pay support for victim's children: HB 1151

Family and medical leave insurance program, implementing by amending provisions of family leave insurance program: HB 1457, SB 5292

Family coordinators in schools, funding allocation: SB 5117

Family leave insurance program, repealing family and medical leave insurance act: SB 5159

Home visiting and parent and caregiver support, department of early learning to reserve funds for: HB 1723

Incarcerated, parental rights when: HB 1284, SB 5460

Indecent liberties, modifying definition to include spouses: HB 1108

Marriage, dissolution after making a will, adding stepchild of former spouse to provisions: SB 5067

Marriage, dissolution, encouraging reconciliation and nonadversarial approaches through family second chances act: SB 5614

Marriage, dissolution, harmful effects of parental child abduction during custody disputes: HB 1021

Marriage, dissolution, mediation for parenting plan issues: HB 1353

Marriage, dissolution, residential provisions for children of military parents: HB 1107

Marriage, solemnizations of, authorizing without requiring certain judges and elected officials to perform: HB 1589

Marriage, solemnizing by tribal court judges: HB 1083

Marriage, solemnizing by tribal court judges and administrative law judges: SHB 1083

Parent with founded finding of child abuse or neglect, work group to consider creating certificate of suitability for parents who have turned their lives around: SB 5565

Parentage, adjudication of, public inspection of judicial proceeding documents and pleadings: HB 1446, SB 5135

Parental rights, when incarcerated or in residential substance abuse treatment: HB 1284, SB 5460

Parenting plans, dissolution of marriage, residential provisions for children: HB 1107, HB 1353

Rape, third degree, modifying definition to include spouses: HB 1108

Stillbirth, certificates of, issuance by county registrar to mother or father: HB 1137

Substance abuse treatment, participating in, parental rights when: HB 1284, SB 5460

Support, child and spousal, revising uniform interstate family support act to include foreign support orders: HB 1118

Uniform interstate family support act, revising to include foreign support orders: HB 1118

Visitation, sibling visitation after dependency proceedings dismissed or concluded: HB 1140

Visitation, sibling visitation for children in foster care: HB 1204, SHB 1204, SB 5389

Visitation, third-party, conditions and procedures: HB 1506

Prenuptial Agreements

Who has a prenuptial agreement?    The rich and famous:   Tom Cruise, Donald Trump, Andrew Carnegie, to name a few.   But many folks who fly under the celebrity radar also have them, or at some time will consider them.    Courts in Washington have reviewed them for many years, and a December 31, 2012 opinion by the Division One Court of Appeals is the most recent pronouncement.      Here’s a link to the opinion which provides interesting reading about the factual circumstances and the judicial review.     Keller v Estate of Keller

The Court took the opportunity to recite a few general principles.   “Prenuptial agreements are contracts subject to contract law, but also subject to special rules formulated by the legislature and the courts.  In re Marriage of Burke, 96 Wn. App. 474, 477, 980 P.2d 265 (1999).  The parties to a prenuptial agreement are unique, because they do not deal with each other at arm's length.  Friedlander, 80 Wn.2d at 301.  Their relationship is one of mutual confidence and trust which calls for the exercise of good faith, candor and sincerity in all matters bearing upon the proposed agreement.  Id.   The validity of a prenuptial agreement is based on the circumstances surrounding the execution of the agreement.  In re Marriage of Bernard, 165 Wn.2d 895, 904, 204 P.3d 907 (2009).”

The husband/widower’s estate sought to uphold the prenuptial agreement.   One of its arguments was that the wife/ widow waived any objection by “ratifying” the agreement over the years.    The Court disagreed.   “We rely on the reasoning in Flannery, Crawford, and Hollett in holding that a prenuptial agreement that is substantively and procedurally unfair is void from the inception and is incapable of ratification.”     

The wife/widow also asserted the agreement was unfair, which prompted the Court to recite the law:  "A prenuptial agreement is substantively fair if it provides a fair and reasonable provision for the party not seeking enforcement of the agreement.  In re Marriage of Matson, 107 Wn.2d 479, 482, 730 P.2d 668 (1986).  If it is substantively fair, the inquiry ends.  Id. If it is substantively unfair, then the court considers whether it is nevertheless procedurally fair.  Id. at 482-83.  To determine whether a prenuptial agreement is procedurally fair, we consider (1) whether there was full disclosure by the parties of the amount, character, and value of the property, and (2) whether the agreement was entered into freely and voluntarily, upon independent advice, and with full knowledge by both spouses of their rights.  Id. at 483.  Thus, a prenuptial agreement is valid if it is either substantively fair or procedurally fair.  The party seeking to enforce the agreement has the burden of proving its validity.  Crawford, 107 Wn.2d at 496."

The wife/widow claimed that a short period of negotiation was a reason to invalidate the agreement, but the Court wasn’t receptive to the argument.   "Donna claims that the negotiation process was "wholly inequitable and per se fatal to the agreement," because of the short period of time that passed between the date of the proposal, the date the prenuptial agreement was signed, and the date of the wedding.  Specifically, she asserts that she and Ken married 17 days after Ken's proposal, 13 days after the mediation, 8 days after Donna first saw the prenuptial agreement, and 5 days after she signed the prenuptial agreement.  But, issues of timing are relevant only to the extent they inform whether the agreement was entered into freely and voluntarily, upon independent advice, and with full knowledge by both spouses of their rights.  There is nothing inherently fatal about signing a prenuptial agreement five days before the wedding."

Next on the wife/widow’s list of complaints was that her attorney hadn’t provided effective legal counsel so the agreement should be thrown out.   That argument didn’t work either.

"First, we cannot say that effective independent counsel is required when independent counsel is not even required in all cases.  Matson, 107 Wn.2d at 483.  The Washington Supreme Court has stated that, in some circumstances, a requirement for independent counsel would be arbitrary and unnecessary.  Id.  The precise standard should be applied on a case-by-case basis.  Id. Likewise, counsel's presence at any mediation or negotiation is not a prerequisite to procedural fairness.  Here, the parties to the prenuptial agreement decided to negotiate the terms of the agreement with a professional mediator without the presence of counsel.  They negotiated further with the benefit of independent counsel and revised the agreement after the mediation.  The fact that counsel was not present at the mediation is not a valid basis to find that the prenuptial agreement is procedurally unfair.

Second, Donna's proposed subjective test for effective assistance is untenable.  The procedural fairness test directs us to consider "'whether the agreement was entered into fully and voluntarily, upon independent advice, and with full knowledge by [both spouses of their] rights.'"  Id. at 483 (alteration in original) (quoting Witney v. Seattle-First Nat'l Bank, 90 Wn.2d 105, 110, 579 P.2d 937 (1978)).  Accepting Donna's argument would require us to separately consider whether there was competent independent advice and whether there was full understanding of those legal rights.  A prospective spouse could not have confidence that an agreement was valid without inquiring  into, weighing, and evaluating  the adequacy of the other spouse's independent counsel.  To do so would eliminate the independence of that independent counsel and require an invasion of attorney-client privilege.  In addition to evaluating the independent counsel's performance, the prospective spouse would have to inquire into the other spouse's actual understanding of the legal issues.  Otherwise, in any subsequent challenge, the challenging spouse would only have to assert that her counsel failed to mention a legal right or that she lacked full understanding of her legal rights to defeat an assertion of procedural fairness.

Knowledge of one's legal rights is a conclusion that flows from the opportunity to obtain independent counsel. Donna had that opportunity in this case.  She obtained independent counsel, participated in a mediation in which counsel was not present for either side, and her attorney negotiated on her behalf for revisions after the mediation. It is not a requirement that she attain a lawyer's understanding of the nuance of family law. Our inquiry is not whether she failed to understand her rights or whether her counsel failed to adequately inform her.   It is sufficient that she had adequate opportunity to consult independent legal counsel.

A spouse who receives ineffective assistance during prenuptial negotiations and is not made fully aware of her legal rights may have a claim against her attorney, but she does not have a basis to invalidate the prenuptial agreement itself.  To the extent that our decision in Bernard conflicts with this conclusion, we decline to follow it."

Read into this case and situation what you will, but, for sure, prenuptial agreements are complex, complicated and very significant legal contracts.

HB 1027 & Residential Support Credit

While Representative Moeller's HB 1027 has many notable features it does retain the existing "deviation" language regarding residential credit in lieu of the Work Group's recommendation to implement the "Indiana Credit Formula"  (page 23 and Appendix XI of Work Group Report). 

The following is an excerpt drawn from the Parenting Time Credit  section of the Indiana Child Support legislation.

  Analysis of Support Guidelines.  The Indiana Child Support Guidelines are based on the assumption the child(ren) live in one household with primary physical custody in one parent who undertakes all of the spending on behalf of the child(ren).  There is a rebuttable presumption the support calculated from the Guideline support schedule is the correct amount of weekly child support to be awarded.  The total amount of the anticipated average weekly spending is the Basic Child Support Obligation (Line 4 of the Worksheet).

                The Guideline support schedules do not reflect the fact, however, when both parents exercise parenting time, out-of-pocket expenses will be incurred for the child(ren)’s care.  These expenses were recognized previously by the application of a 10% visitation credit and a 50% abatement of child support during periods of extended visitation.  The visitation credit was based on the regular exercise of alternate weekend visitation which is equivalent to approximately 14% of the annual overnights.  With the adoption of the Indiana Parenting Time Guidelines, the noncustodial parent’s share of parenting time, if exercised, is equivalent to approximately 27% of the annual overnights. As a result, these revisions provide a parenting credit based upon the number of overnights with the noncustodial parent ranging from 52 overnights annually to equal parenting time.  As parenting time increases, a proportionally larger increase in the credit will occur.

Analysis of Parenting Time Costs.  An examination of the costs associated with the sharing of parenting time reveals two types of expenses are incurred by both parents, transferred and duplicated expenses.  A third category of expenses is controlled expenses, such as the 6% uninsured health care expense that remains the sole obligation of the parent for whom the parenting time credit is not calculated.  This latter category is assumed to be equal to 15% of the Basic Child Support Obligation.

Transferred Expenses. This type of expense is incurred only when the child(ren) reside(s) with a parent and these expenses are “transferred” with the child(ren) as they move from one parent’s residence to the other.  Examples of this type of expense are food and the major portion of spending for transportation.  When spending is transferred from one parent to the other parent, the other parent should be given a credit against that parent’s child support obligation since this type of expense is included in the support calculation schedules.  When parents equally share in the parenting, an assumption is made that 35% of the Basic Child Support Obligation reflects “transferred” expenses.  The amount of expenses transferred from one parent to the other will depend upon the number of overnights the child(ren) spend(s) with each parent.

Duplicated Fixed Expenses. This type of expense is incurred when two households are maintained for the child(ren).  An example of this type of expense is shelter costs which are not transferred when the child(ren) move(s) from one parent’s residence to the other but remain fixed in each parent’s household and represent duplicated expenditures.  The fixed expense of the parent who has primary physical custody is included in the Guideline support schedules.  However, the fixed expense of the other parent is not included in the support schedules but represents an increase in the total cost of raising the child(ren) attributed to the parenting time plan.  Both parents should share in these additional costs.

When parents equally share in the parenting, an assumption is made that 50% of the Basic Child Support Obligation will be “duplicated.”  When the child(ren) spend(s) less time with one parent, the percentage of duplicated expenses will decline.

Controlled Expenses.  This type of expense for the child(ren) is typically paid by the custodial parent and is not transferred or duplicated.  Controlled expenses are items like clothing, education, school books and supplies, ordinary uninsured health care and personal care.  For example, the custodial parent buys a winter coat for the child.  The noncustodial parent will not buy another one.  The custodial parent controls this type of expense.  The controlled expenses account for 15% of the cost of raising the child.  The parenting time credit is based on the more time the parents share, the more expenses are duplicated and transferred.  The controlled expenses are not shared and remain with the parent that does not get the parenting time credit.  Controlled expenses are generally not a consideration unless there is equal parenting time. These categories of expenses are not pertinent for litigation.  They are presented only to explain the factors used in developing the parenting time credit formula.  The percentages were assigned to these categories after considering the treatment of joint custody by other states and examining published data from the Bureau of Labor Statistics’ Consumer Expenditure Survey.