Washington Family Law Reporter ™

We've Moved!

2013-10-04T04:52:00.000-07:00

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

2013-08-25T05:56:00.000-07:00

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

2013-07-30T17:16:00.001-07:00

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

2013-02-10T04:55:00.001-08:00

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

2013-01-10T12:39:00.001-08:00

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

2012-12-29T07:12:00.000-08:00

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.

About Child Support

2012-12-18T16:56:00.003-08:00

Jim Moeller, representing Washington's 49th District, which encompasses the Vancouver area, has filed advance bill HB 1027. Titled "An Act Relating to implementing changes to child support based on the child support schedule work group report" perhaps this bill will fare better than last session's attempt.

Speaking of child support, presently RCW 19.071(5) allows for a deduction of up to $5,000 annually in the support worksheets for voluntary retirement contributions actually made. The specific wording is as follows:

Determination of net income: The following expenses shall be disclosed and deducted from gross monthly income to calculate net monthly income: federal and state income taxes (see the following paragraph); federal insurance contributions act deductions (FICA); mandatory pension plan payments; mandatory union or professional dues; state industrial insurance premiums; court-ordered maintenance to the extent actually paid; up to five thousand dollars per year in voluntary retirement contributions actually made if the contributions show a pattern of contributions during the one-year period preceding the action establishing the child support order unless there is a determination that the contributions were made for the purpose of reducing child support; and normal business expenses and self-employment taxes for self-employed persons. Justification shall be required for any business expense deduction about which there is a disagreement. Items deducted from gross income shall not be a reason to deviate from the standard calculation. RCW 26.19.071(5).

This $5,000 corresponds with the annual IRS allowance. Beginning in 2013, however, the IRS amount is raised to $5,500. http://www.irs.gov/uac/2013-Pension-Plan-Limitations It'll be interesting to see if the RCW keeps pace.

Referendum No. 74

2012-11-18T11:46:00.001-08:00

Referendum No. 74

Same-Sex Marriage

Approved:1,600,308 (53.35%). Rejected: 1,399,364 (46.65%). Counties Approving: 9 (Whatcom, Snohomish, King, Island, San Juan, Jefferson, Kitsap, Thurston, Whitman). Counties Rejecting: 30.

Widest Margins: Adams (71.83% rejected) vs. San Juan (70.17% approved)

First date to apply for marriage: 12/6/12

Law phases out domestic partnerships, except for senior couples age 62 or over

DOMA (presently) prohibits federal recognition

By The Numbers

2012-10-27T13:07:00.002-07:00

The 2011 US Census Bureau Report contains interesting information and statistics regarding divorce and family households in America. The following are some highlights.

Divorce Rates Highest in the South, Lowest in the Northeast, Census Bureau Reports (Press Release)

· “National rates of marriage in the past 12 months were 19.1 for men and 17.6 for women. There were 3.5 instances of widowhood for men and 7.8 for women, per every 1,000 people.

· Children living with a parent who divorced in 2009 were more likely to live in a household headed by their mother (75 percent) than in a household headed by their father (25 percent). Additionally, children living with a parent who divorced in 2009 were more likely to be in a household below the poverty level (28 percent) compared with other children (19 percent), and they were more likely to live in a rented home (53 percent) compared with other children (36 percent).

· The economic well-being of those who experienced a recent marital event differed. Women who divorced in the past 12 months were more likely to receive public assistance than recently divorced men (23 percent and 15 percent).Women who divorced in the past 12 months reported less household income than recently divorced men. For example, 27 percent of women who divorced in the past 12 months had less than $25,000 in annual household income compared with 17 percent of recently divorced men. Similarly, women who divorced in the past 12 months were more likely than recently divorced men to be in poverty (22 percent compared with 11 percent).

· Women who divorced in the past 12 months were more likely to be living in a multigenerational household -- 11 percent of such women, compared with 5 percent of men.

· Thirteen states had median durations for second marriages for women below the U.S. median of 14.5 years. This included six states in the Northeast (Connecticut, Massachusetts, New Jersey, New York, Rhode Island and Vermont) ranging from 13.1 to 13.6 years.

· Among those widowed in the last year, 77 percent of men and 73 percent of women were white alone, non-Hispanic.”

2011 AmericanCommunity Survey
Excerpts from United States Census Bureau

Marital Status: Males (over age 25): 50% are married and 9.7% are divorced with age 55-64 largest category of divorced males @ 16.4%. Females (over age 25): 46.6% are married and 12.2% are divorced with age 55-64 largest category of divorced females @ 20%. Divorce By Ethnicity: American Indian & Alaska Native (13%), Black or African American (12%), White (11.4%), Hispanic or Latino (8.3%), Asian (5%).

Children (under 18) in Household:
Under 6: Married couple household (32.9%), male householder/no wife (34.8%), female householder/no husband (32%).
6-11 years: Married couple household (33.7%), male householder/no wife (31.5%), female householder/no husband (33.1%).
12-17 years: Married couple household (33.3%), male householder/no wife (33.7%), female householder/no husband (34.9%).

Presence of unmarried partner of householder present: male householder (40.9%), female householder (15.3%).

Committed Intimate Relationship

2012-10-02T09:03:00.002-07:00

A "Committed Intimate Relationship" is a moniker given by the Washington courts to a "stable, marital-like relationship where both parties cohabit with knowledge that a lawful marriage between them does not exist."    Five factors are relevant: (1) continuous cohabitation, (2) duration of the relationship, (3) purpose of the relationship, (4) pooling resources and services for joint projects, and (5) the intent of the parties.

According to the January-May 2012 Washington State Courts Report thirty-nine of the 17,456 domestic filings in Washington Superior Courts were "committed intimate relationship" cases: twenty-five in Western Washington and fourteen in Eastern Washington.   Two of filings went to trial: one in Thurston County and the other in Snohomish County.

There have been four recent appellate opinions dealing with these type of cases.   They make for interesting reading, particularly if you're in such a relationship or contemplating one.

Tatham v Rogers __WnApp __ (Div III, 8/14/12)

Committed Intimate Relationship, with a small town twist.

Marriage of McCarthy __WnApp __ (Div III, 08/21/12, Unpublished)
Husband appeals property distribution after finding of committed intimate relationship.
Finch v Weider__WnApp __ (Div I, 9/17/12).
Oral agreement rebuts property presumption in committed intimate relationship.
Kelly v Moesslang__WnApp __ (Div III, 9/18/12)
Three year statute of limitation applies to suit alleging committed intimate relationship.

Parents: 2+?

2012-09-07T15:56:00.001-07:00

In the "interesting" category is California SB 1476, which, if signed by Governor Jerry Brown, would allow a family law judge to split custody, child support or visitation rights among three or more people who had acted as parents to the child.

According to the official 8/28/12 Senate Floor analysis, the legislation, if approved, will:

Provide that nothing in the Uniform Parentage Act should be construed to preclude a finding that a child has a parent-child relationship with more than two parents.
Allow a court to find that a presumption of paternity is not necessarily rebutted by a judgment establishing paternity by another person.
Provide that where two or more claims or presumptions of parentage have been established, a court may find that a child has more than two natural or adoptive parents if it is required to serve the best interests of the child. Require the court, in determining the best interest of the child, to consider the nature, duration, and quality of the presumed or claimed parents’ relationships with the child, and the benefit or detriment to the child of continuing those relationships.
Provide that in any case where a child has more than two legal parents, the court shall allocate custody and visitation among the parents based on the best interest of the child, including, but not limited to stability for the child. States that this may mean that not all parents share legal or physical custody of the child.
Provide that the statewide child support guideline shall apply in any case with more than two parents, unless the court finds that application of the guideline is unjust or inappropriate.
Provide that the guideline amount may be rebutted in any case where a child has more than two legal parents.
Provide that this shall not be construed to require reprogramming of the California Child Support Automation System, a change in the guideline, or a revision in any Department of Child Support Services’ regulation, policy, procedure, form or training material.

Family Law Rules in Washington

2012-08-15T10:51:00.000-07:00

New and comprehensive Family Law Rules are being proposed for implementation throughout Washington State, eliminating the myriad of local county rules. Attorneys and individuals alike should be aware of the pending changes. Comments must be submitted by April 30, 2013.

Quoting from the State Court's website,

Key components of the FLCR include:

Specific provisions for timing and scheduling of motions, as well as delivery of responses and replies (FLCR 6(d));
Specific language allowing for presentation of telephonic oral argument, at the court’s discretion, and imposing page limits and other restrictions on motions (FLCR 7);
Format requirements (FLCR 10(d));
Provision for information exchange/automatic discovery of documents commonly required for family law actions (FLCR 16(c));
Entry of automatic temporary orders to preserve the status quo on petitions to dissolve marriages, relationships, or meretricious relationships (FLCR 16(d));
Discussion of tribal court exclusive and concurrent jurisdiction (FLCR 82.5);
Provisions addressing the use of courthouse facilitators (FLCR 101); and
Authority to require participation in extra-judicial services/parenting seminars (FLCR 102).

The Task Force anticipates that the FLCR will eliminate the need for many counties’ local rules; however, the Task Force also recognizes that different counties have different needs. “Placeholder designations” have therefore been included in the revised FLCR, so that counties can ensure their local rules follow the same numbering sequence as the statewide rules.

Voting for Judges

2012-07-23T09:43:00.001-07:00

Election Day, August 7, is drawing near and mail-in ballots have been delivered. While there are federal, state, county and local elections to be considered, judicial elections at all levels are important as well. Judges interpret and apply the law, for you and your community large and small. Take time and carefully consider how best to register your choice. The official state voter's pamphlet is a good place to start. There are also occasional news stories and debates. Two particularly good resources are the Judicial Election Information and Voting for Judges.

Legal Techicians

2012-06-23T07:57:00.000-07:00

In 6-3 decision, the Washington State Supreme Court on June 14, 2012 adopted APR 28, Limited License Legal Technician Rule as recommended by the Practice of Law Board. According to the majority of justices, such technicians will be permitted to perform “very discrete, limited scope and limited function activities.” Justice Owens, authoring the dissenting opinion, considered the ruling to be “ill-considered, incorrect, and most of all extremely unfair to members of the Washington State Bar Association.” Particularly objectionable to Justice Owens was taxing practitioners for “all costs and expenses reasonably and necessarily incurred” by the Non Lawyer Practice Commission.

WSBA President Crossland promptly issued this statement on the Adoption of the Limited License Legal Technician Rule:

“Today the Washington Supreme Court adopted the Limited License Legal Technician (LLLT) Rule. The adopted rule is substantively the same as the Legal Technician Rule that was originally proposed by the Supreme Court's Practice of Law Board in 2008, but never acted on.

This rule authorizes non-attorneys who meet certain educational requirements to advise clients on specific areas of law, which have yet to be determined.

While the Board of Governors consistently opposed the rule during its development, it's now time for our profession to participate and lead in the decision-making process to shape the best program possible. Nine attorneys will be appointed to the 13-member LLLT Board by the Supreme Court.

WSBA's role is to maintain the high standards we have set for our legal profession while serving as the regulators of this new rule. We will ensure quality implementation aimed at supporting our members and upholding protection of the public.

There is no other state with a similar LLLT rule. This rule provides Washington the opportunity to lead the nation in expanding legal services for the people of our state.”

There is considerable controversy surrounding this Rule. In addition to consistent opposition by the WSBA Board of Governors as noted by President Crossland, many attorneys question the costs and responsibility for expenses to administer a “legal technician” program plus the supervision and quality assurance of such a program. Upon learning of the Supreme Court’s decision the Pierce County Bar Association Family Law Section adopted a resolution opposing the program.

Accomodating Divorce - Room for Two?

2012-05-27T07:25:00.001-07:00

Today's New York Times includes an article about "The Divorce Hotel", the idea of a Dutch entrepreneur. Gimmick or genuinely good idea? Certainly the idea of accelerating the process at reduced cost will appeal to many divorcing spouses. But, how realistic is it to believe a weekend in close quarters, fine linen and fluffy pillows surrounded by mediators will resolve a vexing custodial issue, apportionment of a 40l(k) or disposition of the family home rapidly losing equity and possibly underwater? And what about relationships beset by domestic violence? Improvements to the process of divorce are needed but the answer may lie more in accessible information and better access to the dispute resolution options than an intense weekend together. In Washington State a good informative resource is Washington Law Help. And there are many family law mediators that will turn up through a Google search.

The Washington Family Law Reporter - 30 Years

2012-05-03T17:13:00.000-07:00

The first issue of the Washington Family Law Reporter was published in August 1982. This month's publication for the quarter ending in July marks the 30th year of providing timely and important family law information to the practicing professional and the public. A lot's happened - and been reported upon - since the first issue. Speaking of which, here it is:

The Status of Residential Credit

2012-02-07T12:30:00.000-08:00

The 2011 Child Support Schedule Workgroup Final Report, issued in September 2011, was passed along to the Legislature for possible legislation. HB 2279 was proposed as "Implementing changes to child support based on the child support schedule work group report." And that was true, at least in the initial bill proposed on January 11th. However, on January 31st SHB 2279 deleted new Sections 7 and 8 from the proposed legislation, thus apparently rejecting the Workgroup's following recommendation regarding residential credit.

The Workgroup makes the following recommendations regarding the residential schedule credit:

The Workgroup recommends that there should be a residential schedule credit to adjust the transfer payment, and that credit should be based on the number of overnights. There should be a mechanism to adjust the credit when necessary. The credit should be available in both the courts and the administrative forum, and the credit should not be granted if doing so would result in insufficient funds in the custodial parent’s household.

The Workgroup recommends that there should be an adjustment of the child support obligation – not a deviation – based on the child’s residential schedule. This concept is referred to as a residential schedule credit.70 While recognizing that there are many approaches to calculating a residential schedule credit, the Workgroup recommends that the easiest method for determining the credit or adjustment would be a method based on the number of overnights which the child spends with each parent. Although there are some family situations which would not fit nicely into the “overnights” scenario, the Workgroup members believed that the majority of cases would be amenable to such a calculation. [Page 23, Worksheet Study Group Report]

Left in this form, the proposed legislation would retain existing RCW 26.19.075(1)(d), thus eviscerating any hope that a mechanism other than arguing for a "deviation" might be available for obtaining a residential credit.

IRS & Innocent Spouse Rules

2012-01-19T11:21:00.000-08:00

The IRS has proposed new rules to qualify for innocent spouse relief. The rules will streamline the procedure, provide a broader view of how financial control and abuse may have affected the party claiming innocent spouse eligibility, and allow for refunds in certain cases. Notice 2012-8

Changing Child Support

2012-01-15T08:12:00.000-08:00

On January 11th, eight House Democrats introduced a bill that would change child support in Washington State. A brief summary of HB 2279 describes the changes as (1) adopting a new economic table that does not differentiate amounts based on the children's ages; (2) requiring an adjustment of the standard calculation based on "children not before the court" and shared residential schedules; (3) amending the postsecondary educational support statute to, among other things, require the court to consider any grants or scholarships awarded to the child; and (4) clarifying the statute on self-support reserve." Additional information is available at Complete Bill Analysis.

Help For Parents

2011-11-08T14:10:00.000-08:00

Up to Parents is a resource for parents experiencing difficulties in their relationship or coping with child custodial issues during divorce or separation. Included in this very informative free website are numerous child-centered articles and videos, frequently asked questions, and interactive questionnaire and even an input form for use in mediation. Certainly worth checking out!

Dependency Tax Exemption

2011-10-31T07:53:00.000-07:00

The US Tax Court ruled against a father seeking to claim his children as personal tax exemptions on his 2007 tax return. Arguing that he paid "all of their financial support" and was only temporarily absent from the family home, he couldn't overcome the requirement of being with the children more than half the time. It didn't help that his wife hadn't signed a Sec 152(e) release and that she filed a conflicting return claiming the exemptions. Alarcon v IRS (US Tax Court, 10/17/2011)

Recommendations To The Washington State Legislature For Washington’s Child Support Schedule

2011-10-07T10:43:00.000-07:00

Final Report of 2011 Child Support Schedule Workgroup

Final Recommendations (excerpts) - September 2011

The Legislature should adopt a new Economic Table, which is based on more current data, is presumptive to $12,000 combined monthly net income, and does not differentiate between age groups of children.

There should be a presumptive adjustment of support, not just a deviation, when a parent has children not before the court. The adjustment should be calculated using the Whole Family Formula. The court may not grant the adjustment if doing so would leave “insufficient funds” in the household of the custodial parent.

There should be a residential schedule credit adjustment, not just a deviation, based on the number of overnights a child spends with each parent. The residential schedule credit should be available in both the superior courts and the administrative forum, adjusted when the child’s time with the parents varies from that set out in the child support order granting the credit. The residential schedule credit should not be considered a deviation, should not be available if the adjustment would result in insufficient funds in the custodial parent’s household, not be available if the CP’s net income before receiving the support transfer payment is at or below 125% of the federal poverty level guidelines for one person; or not be available if the child is receiving TANF.

The statute regarding postsecondary educational support should be amended to provide more guidance on when to order postsecondary educational support; how to set the amounts; how/when it may be suspended and then reinstated; and when/how it may be terminated.

The statutory references to the self-support reserve should be clarified to provide that the self-support reserve is 125% of the federal poverty level for a one-person family.

Perjury Conviction

2011-08-02T20:07:00.000-07:00

On August 1, 2011 the Washington State Court of Appeals, Division One, affirmed a 2010 Snohomish County conviction of a mother who made false statements of an alleged assault by her son's father during a visitation exchange. State v Prigger.

2011 Child Support Schedule Workgroup

2011-07-31T19:29:00.000-07:00

   The Workgroup comprises 17 members appointed by the Governor: a law professor, a member of the Washington State Bar Association Family Law Executive Committee (FLEC), an economist, a representative of the tribal community, a superior court judge, a superior court commissioner, a representative from the Administrative Office of the Courts (AOC), a prosecutor appointed by the Washington Association of Prosecuting Attorneys (WAPA), a representative from legal services, an administrative law judge from the Office of Administrative Hearings (OAH), three noncustodial parents and three custodial parents. The Workgroup has assigned members to four subcommittees: economic table, children from other relationships, residential credit and post-secondary education.

Children From Other Relationships:    The children being considered by a court or administrative tribunal for the purpose of assessing a parent’s child support obligation and who are not the children for whom support is being determined shall be known as “Children Not Before the Court.” (CNBC).   Only dependent children may qualify as CNBC.     The whole family formula should be the method for determining the amount of the “adjustment” for CNBC.

Residential Credit Subcommittee. A “written plan” needs to be in place before a residential credit (RC) is applied.   A 25% minimum threshold is suggested.   A “guideline calculation” is recommended but not required as “rigid formula”, leaving the actual amount to the court’s discretion.    The “higher or lower time parent” can request a RC modification if the child is not spending the written plan time with one of the parents.

Postsecondary Education Subcommittee.   Requirement that child be enrolled on a “full time, per term basis.”   Payments not to the obligee parent.   Statute should mirror mandatory form language re: “child support terminated age 18 or graduates high school, whichever later.” Child should be required to pay minimum of one-third cost.   Tuition not to exceed in-state tuition.

· August 12 (L&I Tumwater Headquarters Building Rooms S118 & S119, 7273 Linderson Way SW, Tumwater, WA 9:00 am to 3:00 pm )

· August 26 (Administrative Office of the Courts SeaTac Conference Room, 11th Floor, Suite 1106, 18000 International Blvd, SeaTac, WA 9:00 am to 3:00 pm )

· September 9 (L&I Tumwater Headquarters Building Rooms S118 & S117, 7273 Linderson Way SW, Tumwater, WA 9:00 am to 3:00 pm ).

Final findings and recommendations are scheduled to be delivered to the legislature on October 1, 2011. More information is available at: http://www.dshs.wa.gov/dcs/Resources/workgroup.asp

Planning for Parenting Time

2010-12-26T09:34:00.000-08:00

The Arizona Supreme Court has published Planning for Parenting Time: Arizona's Guide for Parents Living Apart. With numerous caveats, including that the "guide does not provide legal opinions or legal advice and is not intended to serve as a substitute for the advice of licensed, legal professionals," the publication suggests parenting plans through various stages of a child's development and addresses several issues such as absent parent reunification, blended families, long distance parent, special needs children, etc. Parents may find this a useful resource.