DISSOLUTION/ CHILD SUPPORT/ LEGAL SEP./ PP'S/RELOCATION Flashcards
MAINTENANCE & SUPPORT
Know the factors the court uses to determine whether awarding maintenance is appropriate RCW 26.09.090
Maintenance orders for either spouse or either domestic partner — Factors.
In a proceeding for dissolution of marriage or domestic partnership, legal separation, declaration of invalidity, or in a proceeding for maintenance following dissolution of the marriage or domestic partnership by a court which lacked personal jurisdiction over the absent spouse or absent domestic partner,
the court may grant a maintenance order for either spouse or either domestic partner.
The maintenance order shall be in such amounts and for such periods of time as the court deems just, without regard to misconduct, after considering all relevant factors including but not limited to:
(a) The financial resources of the party seeking maintenance,
* including separate or community property apportioned to him or her, and his or her ability to meet his or her needs independently,
* including the extent to which a provision for the support of a child living with the party includes a sum for that party;
(b) The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find employment appropriate to his or her skill, interests, style of life, and other attendant circumstances;
(c) The standard of living established during the marriage or domestic partnership;
(d) The duration of the marriage or domestic partnership;
(e) The age, physical and emotional condition, and financial obligations of the spouse or domestic partner seeking maintenance; and
(f) The ability of the spouse or domestic partner from whom maintenance is sought to meet his or her needs and financial obligations while meeting those of the spouse or domestic partner seeking maintenance.
Know when maintenance is modifiable and the procedure for doing so. RCW 26.09.170
Modification of decree for maintenance or support, property disposition — Termination of maintenance obligation and child support — Grounds.
(1) Except as otherwise provided in RCW 26.09.070(7), the provisions of any decree respecting maintenance or support may be modified:
(a) Only as to installments accruing subsequent to the petition for modification or motion for adjustment except motions to compel court-ordered adjustments, which shall be effective as of the first date specified in the decree for implementing the adjustment; and,
(b) except as otherwise provided in this section, only upon a showing of a substantial change of circumstances. The provisions as to property disposition may not be revoked or modified unless the court finds the existence of conditions that justify the reopening of a judgment under the laws of this state.
(2) Unless otherwise agreed in writing or expressly provided in the decree the obligation to pay future maintenance is terminated upon the death of either party or the remarriage of the party receiving maintenance or registration of a new domestic partnership of the party receiving maintenance.
Know how child support obligations are determined in Washington
A support obligation in excess of 50% of the obligor’s net income may be ordered under appropriate circumstances. In re Marriage of Glass, 67 Wn. App. 378, 835 P.2d 1054 (1992).
Application of the minimum need standard (WAC 388-478-002, but the number changes from time to time) and $25 minimum support obligation under RCW 26.19.065(2) are mandatory unless the court deviates for a reason specified in RCW 26.19.075 and states its reasons in its findings and conclusions.
Child support may be included in the separation contract and shall be reviewed in the subsequent proceeding for compliance with RCW 26.19.020.
Under this statute, separation agreement provisions concerning child support are not binding on the court.
Parents cannot agree to prospectively waive child support. This includes agreements to not impute any income to the recipient. (Goodell). Any such agreements are against public policy and unenforceable, even if contained in a final order agreed upon by the parties and not appealed.
Know what is included in “income” for the purposes of calculating child support.
In short:
Except as specifically excluded in subsection (4) of this section:
monthly gross income shall include income from any source,
- including salaries,
- wages,
- commissions,
- deferred compensation,
- overtime,
- contract-related benefits,
- income from second jobs,
- dividends,
- interest,
- trust income,
- severance pay,
- annuities,
- capital gains,
- pension retirement benefits,
- workers’ compensation,
- unemployment benefits,
- spousal maintenance actually received,
- bonuses,
- social security benefits,
- and disability insurance benefits.
Federal cost of living allowances are income
The trial court must take into consideration wealth acquired through the income of a new spouse (which includes 50% of the community income itself, Scanlon).
ARE SSI, AFDC, food stamps, and other public assistance considered Income?
NO, they must be disclosed, but are not income and are not grounds for deviation.
When imputing income, what will the court look at?
The court should look at:
- the level of employment at which the parent is
capable and qualified, by examining the parent’s
work history, - education,
- health,
- age,
- and other relevant factors.
Imputed income should not exceed the level “at which the parent is capable and qualified.
A court may impute income to someone whose deceptions or concealment have made their true income impossible to determine.
Define Voluntary Unemployment
Voluntary unemployment has been defined as “unemployment that is brought about by one’s own free choice and is intentional rather than accidental…”
Absent a showing of good faith, a voluntary reduction in income will not support a reduction in the support obligation.
When may the court NOT Impute Income?
The court may not impute income to a parent who is gainfully employed full-time unless the court finds that the parent is voluntarily underemployed and is purposefully underemployed to reduce the parent’s child support obligation.
If a parent reduces their work hours without reducing their net income are they considered voluntarily under-employed?
No, A parent who reduces their work hours without reducing their net income is not voluntarily under-employed.
Is a parent who works full-time raising children and considered a homemaker (particularly where the parent has left their job to do so) considered gainfully employed? Should Income be Imputed?
No, A parent who works full-time raising children and as a homemaker (particularly where the parent has left a job to do so) is not “gainfully employed” and therefore imputation of income is mandatory.
Are Residential Credits permissible if the support recipient is receiving TANF?
No, Residential credits are impermissible if the support recipient is receiving TANF (temporary assistance for needy families)
Are Upward deviations supported by the existence of assets or income opportunities?
Yes, Upward deviations may be supported by the existence of assets or income opportunities. Such as a High cost of living (i.e. Alaska) may support a deviation.
Must the trial court take into consideration wealth acquired through income of a new spouse (including 50% of the passive income earned by a new spouse, absent evidence that the income was SP, Scanlon)
Yes, The trial court must take into consideration wealth acquired through the income of a new spouse (including 50% of the passive income earned by the new spouse, absent evidence that the income was separate property, Scanlon) when deciding whether to grant a deviation in child support.
The court may order the majority residential parent to pay support to the minority residential parent where the income of the minority residential parent is insufficient to provide for the basic needs of the child (Casey); however, a mere difference in income, no matter how large, is not sufficient basis for such a deviation
What is a stepparent’s obligation as it applies to stepchildren who are residing with that step-parent?
A stepparent support obligation continues during separation until a decree is entered unless a motion is brought to terminate.
What dollar amount for child support needs to have written findings by the court?
Support exceeding $7k needs to have written findings by the court.
**PLEASE DOUBLE CHECK THIS***
What is pro-rata share for extraordinary health care expenses? RCW 26.09.090(3).
Extraordinary health care expenses shall be shared by the parents in the same proportion as the basic child support obligation.
Can Uninsured medical expenses be apportioned on a different ratio than the ratio of the parties’ income shown on the worksheets? In re Marriage of Wayt, 63 Wn. App. 510, 820 P.2d 519 (199
Yes, Uninsured medical expenses may be apportioned on a different ratio than the ratio of the parties’ incomes shown on the worksheets.
According to RCW 26.19.071, what are the Standards for the determination of income?
(1) Consideration of all income. All income and resources of each parent’s household shall be disclosed and considered by the court when the court determines the child support obligation of each parent.
Only the income of the parents of the children whose support is at issue shall be calculated for purposes of calculating the basic support obligation. Income and resources of any other person shall not be included in calculating the basic support obligation
What documents do the court generally require verifying Income?
2) Verification of income. Tax returns for the preceding two years and current paystubs shall be provided to verify income and deductions. Other sufficient verification shall be required for income and deductions which do not appear on tax returns or paystubs.
What Income sources are included in gross monthly income?
Except as specifically excluded in subsection (4) of this section, monthly gross income shall include income from any source, including:
(a) Salaries; (b) Wages; (c) Commissions; (d) Deferred compensation; (e) Overtime, except as excluded for income in subsection (4)(i) of this section; (f) Contract-related benefits; (g) Income from second jobs, except as excluded for income in subsection (4)(i) of this section; (h) Dividends; (i) Interest; (j) Trust income; (k) Severance pay; (l) Annuities; (m) Capital gains; (n) Pension retirement benefits; (o) Workers' compensation; (p) Unemployment benefits; (q) Maintenance actually received; (r) Bonuses; (s) Social security benefits; (t) Disability insurance benefits; and (u) Income from self-employment, rent, royalties, contracts, proprietorship of a business, or joint ownership of a partnership or closely held corporation.
What Income sources are excluded from gross monthly income.
The following income and resources shall be disclosed but shall not be included in gross income:
(a) Income of a new spouse or new domestic partner or income of other adults in the household; (b) Child support received from other relationships; (c) Gifts and prizes; (d) Temporary assistance for needy families; (e) Supplemental security income; (f) Aged, blind, or disabled assistance benefits; (g) Pregnant women assistance benefits; (h) Food stamps; and (i) Overtime or income from second jobs beyond forty hours per week averaged over a twelve-month period worked to provide for a current family's needs, to retire past relationship debts, or to retire child support debt when the court finds the income will cease when the party has paid off his or her debts.
Receipt of income and resources from temporary assistance for needy families, supplemental security income, aged, blind, or disabled assistance benefits, and food stamps shall not be a reason to deviate from the standard calculation.
How is the Determination of net income made and what are expenses that shall be disclosed and deducted from gross monthly income to calculate net monthly income
(a) Federal and state income taxes;
(b) Federal insurance contributions act deductions;
(c) Mandatory pension plan payments;
(d) Mandatory union or professional dues;
(e) State industrial insurance premiums;
(f) Court-ordered maintenance to the extent actually paid;
(g) 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
(h) Normal business expenses and self-employment taxes for self-employed persons. Justification shall be required for any business expense deduction about which there is disagreement.
Items deducted from gross income under this subsection shall not be a reason to deviate from the standard calculation.
(6) Imputation of income. The court shall impute income to a parent when the parent is voluntarily unemployed or voluntarily underemployed.
How does the Court determine if a party is voluntarily under-employed
The court shall determine whether the parent is voluntarily underemployed or voluntarily unemployed based upon that parent’s work history, education, health, and age, or any other relevant factors.
When shall the court NOT impute income to a parent?
A court shall not impute income to a parent who is gainfully employed on a full-time basis unless the court finds that the parent is voluntarily underemployed and finds that the parent is purposely underemployed to reduce the parent’s child support obligation.
Income shall not be imputed for an unemployable parent. Income shall not be imputed to a parent to the extent the parent is unemployed or significantly underemployed due to the parent’s efforts to comply with court-ordered reunification efforts under chapter 13.34 RCW or under a voluntary placement agreement with an agency supervising the child. In the absence of records of a parent’s actual earnings,
When imputing income: what order does the court look at?
the court shall impute a parent’s income in the following order of priority:
(a) Full-time earnings at the current rate of pay; (b) Full-time earnings at the historical rate of pay based on reliable information, such as employment security department data; (c) Full-time earnings at a past rate of pay where information is incomplete or sporadic; (d) Full-time earnings at minimum wage in the jurisdiction where the parent resides if the parent has a recent history of minimum wage earnings, is recently coming off public assistance, aged, blind, or disabled assistance benefits, pregnant women assistance benefits, essential needs, and housing support, supplemental security income, or disability, has recently been released from incarceration or is a high school student; (e) Median net monthly income of year-round full-time workers as derived from the United States bureau of the census, current population reports, or such replacement report as published by the bureau of census.
Know what types of income and what types of deductions are included in child support calculations, particularly when a party may have some income from self-employment.
See # 3 and # 5 above –
Income from self-employment, rent, royalties, contracts, proprietorship of a business, or joint ownership of a partnership or closely held corporation.
Normal business expenses and self-employment taxes for self-employed persons. Justification shall be required for any business expense deduction about which there is disagreement.
Know when a child support order may be modified and the procedure for doing so
By agreement.
By statute:
Know the circumstances under which a court may find a party in contempt of a child support order
When the person hasn’t paid but had the ability to pay.
Know the procedure for obtaining a contempt order against a party in domestic relations matter
Know the procedure for obtaining a contempt order against a party in domestic relations matter
