Washington

Part of Real World Divorce: web edition | Kindle edition

In a field of law that is mostly about money and yet where a lot of practitioners have trouble using a basic spreadsheet, Todd DeVallance stands out for being our only interviewee with formal training in tax law, having received a post-graduate L.L.M. in Taxation from the University of Washington School of Law ("I started out as a family lawyer and then decided that the tax expertise would be helpful in my high net worth practice.") DeVallance has been handling divorce, custody, and child support cases for more than 12 years and is a "Super Lawyer". He takes as many as four cases per year to a complete final trial. See http://www.tlclawco.com/attorney-todd-devallance.html for more biographical information.

DeVallance explains that from the time the "petitioner" files a case against a "respondent" until the case is tried is approximately 12 months but can be extended. "In King County, the date is set at the outset of a case but it is not a firm date. Even if the case is not continued by agreement and if everyone is ready to go, we're at mercy of court to determine if there is a courtroom and judge available to hear the case. It is common to be transferred to a new judge on the day of trial." Does Washington State have a dedicated family court system like most states or an Alaska-style system in which cases are heard by generalist judges? "Motions for temporary orders are generally heard by commissions but the actual trials are heard by judges who've been assigned to the family law rotation, but that rotation is not permanent. And depending on availability your case might be tried in front of a judge who is not on the family law rotation," says DeVallance.

Does Washington State require a Perry Mason-style hearing with witnesses and cross-examination before a litigant can obtain a house, children, and temporary support? "No," explained DeVallance. "We have a 'declaration calendar' and it works differently in every country but our local rules in King County are that there are page limits of 25 pages of declarations for the moving party and 20 pages for the responding party. That doesn't include financial records and previous orders or expert reports. Attorneys come to court but their arguments are limited to five minutes per side." So one parent in a divorce could get the house, kids, and money after a 10-minute hearing? "Yes, but there is a local rule that allows attorneys to agree to submit a motion without oral argument," says DeVallance. "You submit documents [even via email] and get a ruling from the commissioner's chambers, although the court can still order the parties to appear for argument."

Can a lawsuit essentially be won just a few weeks after filing by prevailing at one of these declaration hearings? "Yes and no," says DeVallance. "The court will err on the side of caution if there are allegations of violence or abuse [i.e., giving sole custody on a temporary basis to the parent making the allegations]. But then the court will appoint a GAL or parenting evaluator to investigate the allegations. The temporary order can be changed at any time and a party can bring a motion to amend the temporary orders after the GAL investigation is complete." So is it truly different than in Massachusetts where the attorneys say "nothing is more permanent than a temporary order"? "A lot of times cases become a war of attrition," says DeVallance. "One side throws in the towel because things aren't going his or her way. A lot has been spent on attorney's fees. The kids have settled into a routine according to the temporary order. So there will be a settlement along the lines of the temporary orders. On the other hand, anything that commissioner [who presided over the temporary order hearing] does is subject to review by a judge provided that motion is filed (for revision) within 10 days. Moreover, by statute temporary orders cannot be used in determining the final parenting plan and it is possible to get temporary orders changed."

Does DeVallance have any ideas for improving the process? "When there are allegations of detrimental harm to the children there should be a requirement for corroborating evidence."

[Authors' note: Due to the fact that the trial will almost certainly be heard by a different person than made a temporary order and due to the fact that trials occur relatively quickly after the filing of a case, Washington State makes the outcome of a temporary order somewhat less critical than do other states.]

Washington State allows a parent to collect child support until a child turns 18 or graduates from high school. Washington State courts also may order a parent to pay for "post-secondary education expenses," i.e., college, until age 23. Child support in Washington State can be extended beyond 18 if the child is still considered dependent, e.g., due to a disability:

“Under RCW 26.09.100(1), a superior court has the authority to order that a parent pay child support for any dependent child although that child has reached majority. Childers v. Childers, 89 Wn.2d 592, 595, 597, 575 P.2d 201 (1978). The child support obligation is based on dependency, not minority.”  Balch v. Balch, 75 Wn. App. 776, 778, 880 P.2d 78 (1994), review denied, 126 Wn.2d 1003 (1995)

The child support statute makes it sound as though the potential profits from child support are potentially unlimited:

 

RCW 26.19.065: "The economic table is presumptive for combined monthly net incomes up to and including twelve thousand dollars. When combined monthly net income exceeds twelve thousand dollars, the court may exceed the presumptive amount of support set for combined monthly net incomes of twelve thousand dollars upon written findings of fact."

However, DeVallance says that "child support is generally capped" and that consumers can reliably calculate a support obligation using the published guidelines (see the "Quick Estimator" linked from https://www.dshs.wa.gov/esa/division-child-support for example)  though "almost all family law attorneys have child support calculation software." Is there still a role for attorneys and litigation? "There may be arguments about how to calculate income or deductions," says DeVallance. "Also there is an opportunity to ask for deviation from standards, which is discretionary with the court." [And this is where it might be possible to get an award of child support above the top of the guidelines.] Can parents agree on a different number and have a judge approve it? "Courts will discourage too much deviation by agreement, especially if downward from the guidelines."

For a single child, the top of the guidelines as of December 2016 is $1,492 per month ($17,904 per year) for a young child and $1844 per month ($22,128 per year) for a child 12 or older. Because the guidelines work from after-tax income, these are the numbers that a parent earning roughly $215,000 per year (pre-tax) would pay. For comparison, that same parent would pay $36,550 per year in New York, $36,296 in Massachusetts, or $20,520 in Texas. The state pays foster parents roughly $6,000 per year to take care of someone else's child.

In addition to the basic child support calculation, a paying parent can be ordered to pay for their share of the child's "special" expenses, such as day care, health care, and extracurricular activities. Note that when one parent has a much higher income than the other, "their share" will be close to 100 percent. DeVallance explains: "I break it down into two sub-parts: the first part is the basic calculation under the guidelines, the second part is their proportional share of additional expenses such as uninsured health care, day care, extracurriculars. This can be included in the child support worksheet and ordered paid to the recipient or paid directly to a provider. If the basic calculation is dad pays $500 per month [note that the example that came to DeVallance's mind was a father paying a mother], the share of day care might also be $500 per month for a total of $1,000 per month." Are there any limits on imposing child care costs on a defendant? "It is supposed to be for work-related child care," says DeVallance, "but I have reached agreements in mediation for child care that was necessary to allow vocational education." What if a parent who is getting child support simply doesn't want to put any effort into child rearing? "I've also seen orders for nannies wealthier families that had nannies prior to the divorce and where the mother doesn't work."

Even with some of these extras, child support in Washington State is not as lucrative as it could be in California, Massachusetts, New Hampshire, and other states where there is no cap. Do children of high-income parents suffer from a lack of material comfort or opportunity as a consequence? "I see a lot of voluntary extra payments by wealthy parents," says DeVallance.

At what age will a child's preferences factor into a parenting time plan? "The parenting evaluator is supposed to use 'desires of children' as one factor but no specific age is stated," says DeVallance. "Just 'appropriate age and maturity level.' Kids never come into courtroom, though I have heard about cases in which the judge talks to children in chambers. I have seen attorneys ask for the judge to talk to the children and their requests always have been denied in the cases in which I have been involved."

What about appeals? "You do have right to appeal," says DeVallance, "but it is very difficult to get a family law case overturned because it has to be an abuse of discretion. As a practical matter there has to be an evidentiary error or error in law for an appeal to have a chance."

State background

The average hourly wage in income-tax free Washington is $24.59 per hour, compared to $21.75 per hour in neighboring Oregon. Incomes for college graduates higher as well. Census 2014 data show that median income for a 22-36-year-old college-educated woman working full-time is $41,804 ($32,936 after taxes). The corresponding man has a median income of $55,000 per year ($41,824 after taxes). Attending Washington State University in Pullman for four years will cost $95,040. Despite the lack of income tax, Washington State collects 9.3 percent of residents' income to run state and local government (compare to a national average of 9.9 percent; source: Tax Foundation).

The average annual cost of child care is $10,920 for an infant and $8,830 for a four-year-old. The total cost of child care from age 0 through 12 is about $56,628 in commercial settings or $45,596 in a family care setting.

The male college graduate will have an after-tax spending power of $490,496 after 14 years of working (14 years of income minus taxes and the cost of college). After adjusting for USDA-estimated costs of caring for a single child, he would enjoy a larger personal spending power by collecting child support of $3,021 per month or more. This is an above-the-guidelines number that would require suing a wealthy defendant then benefitting from judicial discretion. With two children from two different mothers, however, he could have an after-tax spending power larger than from going to college and work if each mother paid $1,885 per month, just slightly over $1,844-per-month number at the top of the guidelines (children age 12-18), corresponding to a defendant's after-tax earnings of $144,000 per year.

The female college graduate will have an after-tax spending power of $366,064 over the same time period. She would be better off collecting child support when that exceeds $2,445 per month. This is an above-guidelines number that would require judicial discretion to obtain. If she is suing two fathers, however, she is financially better off compared to the college/work case when she can get $1,598 per month from each one. This is within the guidelines for a child aged 12-18 and corresponds to each defendant earning at least $118,800 per year after taxes.

Among residents surveyed by the U.S. Census Bureau in March 2014, 95 percent of those collecting child support were women.

The Scenarios

Scenario 1: Professional Wife and Slacker Husband

A 35-year-old female hand surgeon earning $325,000 per year marries a 33-year-old photographer. She sets up her husband with a photo studio and $100,000 of equipment, but he works just a few hours per week. They have a one-year-old child who is cared for by a nanny. The father is often home with the baby and nanny, but he spends most of his at-home time watching TV and surfing the Internet, leaving the child-rearing chores to the nanny. With the mom at work and/or taking care of the baby, the dad begins an affair with a young fashion model. After two years of marriage, the mom sues for divorce, custody, and child support.

"We're a no-fault state so the affair doesn't matter," notes DeVallance. "Assuming no limiting substance abuse or other unfitness he would have substantial residential time with the child because he is available. Washington uses the phrase 'primary residential parent' while the other parent has 'residential time.'" Is there a convention for the kind of schedule that a child might have with the "other parent" (not to say "secondary parent" or "loser parent"!)? "It swings a lot over the years as to what is traditional in a contested case," says DeVallance. "What we do as practitioners is look at number of overnights in 14 nights. It is not uncommon for dad to have 4-5 overnights."

What standard do courts use to decide who gets to be the primary parent and collector of child support? "The court will try to preserve the status quo, which in this case favors the mother but at the same time there is a general notion that if a parent is available the child should be with the parent."

How about legal custody? "When clients ask about custody, they are generally referring to 'decision-making authority.' While there is no statutory presumption of shared decision-making, there are statutory criteria for awarding sole decision-making to a parent" answers DeVallance. "The typical outcome is shared decision-making for two involved parents or upstanding citizens. I have not seen a court order sole decision-making in a case where there were two fit parents able to effectively communicate with one another." What does decision-making include? "It starts with education and non-emergency health care," says DeVallance, "but 'major decision-making' can include whatever parents want to include from extracurricular activities to enlistment in the military."

What's the child support situation going to be, given that the father makes virtually nothing? "Income will be imputed to him according to a table by age and gender," says DeVallance,  [We found the table with a Google search. He will have $2,804 per month imputed until he turns 35, then $3,448 monthly through age 44, then $3,569 per month starting at age 45; for the child support calculations later we used the $3,448 number.] With her net income being approximately $17,700 per month (source: ADP Paycheck calculator, head of household, two exemptions), and the father's imputed income, he would have only about 16.5 percent of the combined income and thus be responsible for transferring to the mother only 16.5 percent of whatever total child support amount is determined plus 16.5 percent of health and child care expenses. The bottom line seems to be that the father, if taking care of the child 36 percent of the time, pays the mother $246 per month until the child turns 12 and then $304 per month through age 18. Given that the child is now 1, this works out to a total of $54,379.

Is there a risk that the high-income mother will have to pay the low-income father? "She starts paying him child support only if dad becomes the primary residential parent," says DeVallance, or if they share the child 50/50 in which case there will a deviation via a residential credit that is discretionary with the judge. In 50/50 residential schedules there may be a transfer payment if one parent earns more than other." At the top of the guidelines she would be paying all but 16.5 percent of $1,492 per month and then $1,844 per month once the child turns 12. This works out to $275,310. Thus the mother will have roughly an extra $329,689 in her pocket if she can keep the "primary parent" designation.

Note that all of the above child support numbers would be larger if a judge were persuaded to go above the top of the guidelines.

How much will it cost to litigate this case? DeVallance charges $335 per hour. "A real-world budget in a highly contested case with a lot of discovery could exceed $150,000 in fees per side through trial," says DeVallance. "I remember that the wife was up to over $200,000 on the other side in a recent case." How is this defendant, given that he has no income, going to pay for a legal defense? "He can request legal fees by statute if there is a disparity in income," says DeVallance, "but it is discretionary with the judge."

Can the photographer get alimony and a property division from the surgeon? "In a short term marriage, support will generally be limited. He could get six months of alimony but it might be zero." In other words, the temporary support through trial could be more valuable than post-trial alimony, thus giving the defendant an incentive to drag the case out. "As far as a property division goes, in a marriage of less than five years the goal is generally to put the parties back where they were prior to the marriage," says DeVallance.

Scenario 2: 14-year marriage of equals

A 22-year-old woman marries her 22-year-old college sweetheart. After 14 years of marriage, they have four children, ages 3, 7, 9, 13. Both parents are public school teachers earning approximately $65,000 per year.  They have shared child care duties roughly equally over the years. Now they can't stand to be in the same room together. He accuses her of having an affair. She accuses him of being verbally and emotionally abusive to her, but not to the kids. After a stormy argument in the kitchen, he moves in with a friend and she files for divorce, requesting sole custody and child support. The father answers the Complaint by requesting sole custody, but no child support. Both parents agree that the marital assets can be split 50/50. Both parents prefer as little post-divorce contact with the other as possible.

Given that both parents are asking for sole custody ("primary parent") can a court impose 50/50 shared parenting? "The court has that power," says DeVallance [unlike in Texas, for example], "and I wouldn't be surprised to see a court order a shared schedule but would tell my client that the court could very easily designate one parent as primary and that the scales generally tip in favor of the mother."

What can a parent gain here by getting the primary parent designation? The "quick estimator" kicks out a number of about $1,328 per month or $15,936 per year. Thus one parent is hosting the children for 35-45 percent of the nights on about $33,000 per year after taxes and the other is doing it with $60,000 per year in after-tax spending power (figuring that the winning parent is able to file federal income taxes as head of household with four dependents).

Could a parent in this case benefit from pre-lawsuit planning, e.g., voluntarily taking on more child care responsibilities while asking the other parent to do more around the house and/or at work? "Absolutely," says DeVallance, "that could help when making a parenting plan determination."

Do Washington State courts use "conflict" as a reason to deny a 50/50 shared parenting arrangement, thus giving a sole custody plaintiff an incentive to create conflict? "Yes," says DeVallance, "but what they typically do is behave passive-aggressively and accuse the other parent of creating the conflict. Another good approach is to say 'I'm afraid of him. He scares me. He yells at me.' That blows up the possibility of a shared schedule in the eyes of the court and how do you rebut that?"

Scenario 3: 10-year marriage with kids 2 and 5

An 18-year-old woman marries a medical resident. She spends the first four years of the marriage as a college undergraduate, earning a bachelor's degree, and then becomes a stay-at-home mother to two children. She files for divorce after 10 years of marriage. The kids are 5 and 2 years old at the time the divorce commences. The plaintiff does not allege any misdeeds on the part of the father, only that they drifted apart in the time that she aged from 18 to 28. The mother has very obviously been the primary caregiver. The father has now completed his medical training and is earning $275,000 per year. The family has home equity of $300,000 and additional savings of $200,000.

"Generally speaking, she would be primary due to (1) history, (2) she is available, and (3) she is not unfit," says DeVallance. "The children would have significant residential time with their father." What kind of schedule exactly? "The trend now is Friday to Monday morning every other weekend or Thursday to Sunday and then during the off-week a single overnight." [Note that this works out to 4 out of 14 nights.]

Rather than lawyers arguing in front of the judge for variations on a primary/secondary schedule, what does DeVallance think of a Texas-style statutory schedule for the child? "It would make litigation a lot easier," he responded.

At the top of the child support guidelines she would receive $2,330 per month or $27,960. Conceivably the numbers could be adjusted slightly if income were imputed to her. Despite the young age of her children and her role as the primary parent, DeVallance says that "she is voluntarily unemployed under Washington State law [and therefore income could be imputed to her]."

How about alimony? "There is no formula for the amount or duration of spousal support in Washington," says DeVallance. "The statute gives some guidance on factors to consider, three of which are primary: (a) length of marriage, (b) need, and (c) ability of the other spouse to pay. Based on experience I advise clients to look at 1 year of alimony for every 3-5 years of marriage." Thus DeVallance expects a maximum of 2-3 years of alimony and in a sufficient amount to enable the plaintiff to enjoy the pre-marital lifestyle. Would she benefit financially by increasing spending during a year prior to filing the lawsuit? "It may," says DeVallance. "Though not if it is just on lavish personal spending. It would need to be things that involved the family."

Are the assets split 50/50? "We're a 'fair and equitable' state," says DeVallance. "It is not a 50/50 state. The property division can be a disproportionate." Does the fact that Washington State is a "community property" jurisdiction mean that assets acquired before the marriage remain with each party? "No," explains DeVallance. "All property is before the court, including separate property, though it is somewhat rare to invade separate property." DeVallance pointed to a November 25, 2013 appeals court decision in the divorce of Julian Calhoun and Christopher Larson (see http://www.courts.wa.gov/opinions/pdf/698338.pdf ). After a marriage that lasted more than 20 years, Calhoun won $139 million as her share of community property and more than $40 million from Larson's separate property (stock in Microsoft acquired prior to the marriage):

According to the trial court, the separate property award served two objectives. First, it recognized Calhoun's intangible contributions to the marital community. The court explained, "This was, after all, a long-term marriage in which the wife made a major contribution to all that the community accomplished, measured in terms of their children, their foster children, their impact in the broad community and their more narrow business interests." ... In other words, while Larson generated the couple's considerable wealth, Calhoun's intangible contributions served equally to benefit the marital community. Second, the award helped ensure Calhoun's short- and long-term financial security. The court found that Calhoun held a college degree in English literature but was not "gainfully employed" during the marriage. Larson, in contrast, obtained significant employment and investment experience during the marriage. The court found he had a "keen business sense" and that, "[i]n recent years, he has stayed busy actively managing his extensive investments and philanthropic endeavors." As between the two, Larson was in a better position to acquire and manage future wealth. … The $40 million separate property award—consisting of Microsoft stock and cash—provided Calhoun with immediate liquidity.

Calhoun's request for attorney's fees for the appeal portion of the lawsuit was unsuccessful, though not on the grounds that someone who has won $180 million in a divorce can afford to pay her own attorney.

Regarding our hypothetical scenario DeVallance says "On the basis that she is the primary parent she can ask for the house and may get it. She would receive a disproportionate share of community assets."

Scenario 4: 1.75-year marriage with 8-month-old child

A 25-year-old woman marries a 40-year-old never-married medical doctor earning $275,000 per year. She had been earning $50,000 per year working as a receptionist in a medical office. She has a child after a year of marriage, quitting her job during the 7th month of pregnancy due to fatigue. She files for divorce when the child is 8 months old (after 1.75 years of marriage), alleging that the father did not participate in the infant's care, e.g., he did not change diapers or get up in the middle of the night to soothe the baby. The mother will allege that the father was verbally demanding and abusive, though there won't be any witnesses to corroborate. The father had savings of $2 million that he accumulated prior to the marriage but there was no significant accumulation of assets during the less-than-two-year marriage. The mother seeks a division of assets as well as alimony.

DeVallance expected a "primary parent" designation for the mother, along with top-of-the-guidelines child support. What would the baby's schedule look like? "There could be some overnights with the father even if the baby is breastfeeding. But it is also common for visits to be limited to daytime-only."

Can she get a portion of the $2 million in light of the Larson/Calhoun decision (above)? "Probably not," says DeVallance. "Because the goal after a short-term marriage is to put the parties back where they would have been. The court would not invade pre-marital savings." Can the mother at least get an upward deviation due to his above-guidelines income, possibly somewhat higher due to the return on the $2 million? "There is case law that discourages extrapolation or deviation purely based on his high income," says DeVallance. "He will pay his proportionate share of day care and she will be expected to go back to work."

Scenario 5: 18 year old free spirit/music lover; no marriage

An 18-year-old woman goes to a music festival and meets a 38-year-old medical doctor earning $275,000 per year. Things get a little crazy and a few months later she calls him up to say "I am going to have a baby." The 18-year-old does not go to college, quits her $12/hour job during the pregnancy, and does not wish to return to work.

"I have some cases like this now," says DeVallance. "In the absence of additional facts, and based on the suggested availability of the parents, I would expect mom to be the primary residential parent and receive top-of-the-guidelines child support."

Could she wait until the child is 17 years and 364 days old and sue for 18 years of back child support, as in some states? "No," says DeVallance. "Child support can go back only five years in Washington State in paternity cases."

The Washington State Department of Social and Health Services, Division of Child Support, offers on its web site to handle a mother's case at taxpayer expense: "DCS provides services to determine the father of a child. The child must be under the age of eighteen. … If the state is trying to establish parentage, a county prosecutor will usually serve legal papers upon the possible father or fathers. Often, the prosecutor or the court will require the mother, possible father(s), and the child to submit to genetic tests. The court will enter an order establishing parentage. … If a man is determined to be the father he may be ordered to pay the costs of genetic tests or other court costs." The DCS Web site explains that, once paternity is established, the workers can establish a child support order administratively, i.e., without going before a judge.

What if she marries a high-income partner? "It can affect her child support because whenever child support is considered for modification all income has to be disclosed including the income of other adults in the household," says DeVallance. "The income of other adults is not used in the basic calculation but it can be used when a parent asks for a deviation. It wouldn't be used if the mother asked the father to pay for day care. But suppose Dad has significant residential time and wants credit for that [i.e., a deviation]. Mom says deny him because that doesn't give me enough. Dad can point out that her household expenses are reduced by the new partner. The drives my clients nuts."

Removal/Relocation

"We call it 'relocation'," says DeVallance. Does the parenting time plan affect the ease of obtaining approval? "There is case law that says a parent can't relocate with the child if the child is in a 50/50 shared parenting arrangement." What if one person has won primary custody? "There is a presumption by statute in favor of relocation by the primary parent. But that presumption is rebuttable by the objecting parent. Although a statute sets forth factors it is essentially pure discretion by the court." What would DeVallance expect in a typical case with two competent parents in which one had been assigned every-other-weekend residential time? "There is a very good chance a court would allow relocation," says DeVallance.

Quirks

Washington State is unusual in that its child support guidelines limits the amount that a parent can pay in total child support: "Neither parent's child support obligation owed for all his or her biological or legal children may exceed 45 percent of net income except for good cause shown." Unlike in New York or Massachusetts, therefore, a high-income defendant cannot be reduced to poverty by two or three child support awards. A lower income defendant has a separate protection in Washington State that "The basic support obligation of the parent making the transfer payment, excluding health care, day care, and special child-rearing expenses, shall not reduce his or her net  income below the self-support reserve of 125% of the federal  poverty level...".

Washington State is also unusual in that the guidelines attempt to ensure that each child of a parent has the same cash value to a potential child support plaintiff: "Each child is entitled to a pro rata share of the income available for support, but the court only applies the pro rata share to the children in the case before the court."

As in most other states, there are financial incentives to have children with multiple co-parents. At the top of the guidelines, for example, three children with one co-parent will yield $3,618 per month in child support ($43,416 per year) compared to three children with three different co-parents where the revenue is a tax-free $5,532 per month ($66,384 per year). This works out to a $413,424 difference over 18 years.

Washington provides superior financial security for child support and alimony plaintiffs than for married people. While a spouse may suffer a financial loss in the event of a partner's death, a successful plaintiff in Washington can get a judge to order that the defendant, in addition to paying child support and alimony, also pay for life insurance so that the plaintiff does not suffer as a result of his or her death. Even in the absence of insurance, DeVallance says that "any outstanding obligation at death could otherwise be pursued against the estate."

Practical Experience

"When trying to mediate or settle a case the first question I ask is 'where do you plan to live?'," says DeVallance, "because while shared parenting is usually best for the children you have to take into consideration the school schedule and involvement in a community. It really doesn't work unless the two parents live in the same school district."

What if a case doesn't settle? "My main concern with the courts is that lack of consistency from judge to judge," says DeVallance. "I have two cases with similar facts. In Case 1 Dad has a shared parenting schedule. In Case 2 Dad has supervised visitation [his children can see him only in a facility run by social workers]. The only difference is the judge that was drawn in each case. I could take the exact same facts and make the exact same argument in front of five judges and get five different rulings. This is such a challenge for family law litigators because clients come to us asking for advice."

[Note that unlike in some other states, a divorce litigant cannot predict case outcome based on a judge's previous rulings in similar cases because the trial judge may be assigned on the same day.]

DeVallance would be in favor of more specific statutes that reduced judicial discretion and therefore provided litigants with more certainty.

Summary

Washington State encourages litigation by regularly granting primary custody to one parent, along with moderate financial rewards to the "primary parent." Washington State encourages pre-lawsuit planning, both for the purposes of ensuring a custody victory and increasing potential alimony rewards. Washington State discourages gainful employment during marriage by providing greater alimony rewards and disproportionate property division to litigants who can show a greater "need" and a lower likelihood of being able to earn money going forward.

By not assigning a trial judge until the day of the trial, Washington State makes it more difficult than many other states to predict the outcome of a case and therefore for the parties to reach a settlement.

As with most other states, the combination of (1) a lack of statutory guidelines regarding custody, (2) the fact that trials are held in front of a single judge without a jury, and (3) the fact that an appeals court will not take a fresh look at the issues that matter most to most parents, means that in most litigated cases the future of two parents and multiple children are entirely up to the whim of a single individual.

As in most other states, success in the domestic abuse prevention arena is likely to yield success in a parallel custody or divorce lawsuit.

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