Sunday, December 9, 2012

International divorces: issues of jurisdiction and service of process

One of the most frequently asked questions in international divorces is “can I get divorced in USA when my spouse is in another country?” In my practice, I had several cases where I had to deal with this concern. Every time when I get a case like this I check first if Washington State has a jurisdiction over the parties.

The best case scenario is when you and your spouses resided in Washington State for several years, you started the divorce procedure right after your spouse moved out of state, your children continue to live with you in WS, and you and your spouse acquired property here. Unfortunately, not all cases present best case scenarios. What to do if your spouse never lived in Washington and you have been here for quite a while?

In In re the Marriage of Tsarbopoulos, 125 Wn. App. 273, 285, 104 P.3d 692 (2004), parties got married in Ohio in 1986. During the 13 years of being together they had 3 children. In 1997, the family moved to Greece where Mr. Tsarbopoulos grew up. In 1999, the mother moved with the children to Washington State to live with Ms. Tsarbopoulos’ parents. In 2000, the mother initiated dissolution of marriage procedure in Washington State.  After several rounds of court actions, the final decree of dissolution was entered and then vacated. The court of appeals was asked to determine validity of the divorce.

Normally, when someone is divorced, the court has decides following issues:

1.       Whether to divorce the parties;

2.       Who receives child custody and how parenting plan should look like;

3.       What child support is owed and to whom;

4.       How parties’ assets and liabilities should be divided.

The appellate court looked at each four issues separately in terms of whether the trial court had jurisdiction to resolve those issues. Here is what the court found in short:

First, the court held that the court has jurisdiction to enter a decree of dissolution if one party is domicile in Washington State and the other party is served by a method authorized by Washington’s court rules and Statutes.

Second, the court found jurisdiction over the child custody on the basis of requirements of chapter 26.27 RCW and UCCJA. The jurisdiction is based on the child’s connection with the state and personal jurisdiction over an affected parent is not a requirement. Due process, however, requires that the affected parent be given notice and the opportunity to be heard.

Third, child support issues and division of assets and liabilities require in personam jurisdiction over the affected person. In personam jurisdiction exists if the affected person has at least minimal contacts with the state of Washington.

In addition RCW4.28.185 states that a person submits to the jurisdiction of a Washington court when living in a marital relationship within the state notwithstanding subsequent departure from the state.

In Tsarbopoulos case the court agreed with trial court’s determination of child custody and finalization of divorce and vacated court order related to child support and division of assets and liabilities.

In conclusion, in cases where one of the spouses resides out of state, it is essential to determine questions of jurisdiction prior to starting the dissolution procedure. It will allow parties to avoid motions on the issue of jurisdiction and to ultimately save money on the legal proceedings.

Thursday, November 15, 2012

Why should a Decree of Dissolution include all assets and liabilities of the parties?

One of the main mistakes people make when they get a divorce without attorneys’ help is failure to disclose all property and debt in the Decree of Dissolution. I think, in the majority of cases people do not want to inform their future-to-be-ex-spouses about wealth that they have due to the fear that their spouses will want to get those assets.  

Unfortunately, judges at ex parte departments of the courts, who finalize agreed upon divorces, generally do not have much time and desire to read an entire Decree. They would approve even a deficient Decree on the assumption that when both parties sign the document, those parties made sure that the document is full and clear. Moreover, neither judges nor commissioners can give legal advice.

As both spouses agreed to the deficient Decree of dissolution, why then it might be a problem? For one very important reason: people change their minds pretty often. The usual scenario is as follows:

Spouses decide to get a divorce. One of them drafts the documents. The other one signs the documents. Neither one consults an attorney. Several months later, one of the spouses finds out that the other one has a lot more property then the first spouse knew or the spouses cannot agree to how exactly the property should be divided (and the Decree is silent, of course). One of them consults an attorney, who recommends a do-over.

This is exactly what happened in an unpublished opinion In Re the Marriage of Petranek and Blatchley. In that case, Petranek and Blatchley did not divide majority of the assets that they had. When time came to become truly financially separate from each other, Petranek, with attorney’s help, filed a motion to vacate decree of dissolution and redo division of assets and liabilities. The trial court agreed. Blatchley appealed.

The court of appeals upheld trial court’s decision on the following grounds (quote from the court order, all citations are omitted to ease reading):

“RCW 26.09.170(1)(b) provides that a property disposition in a dissolution decree “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.

 CR 60(b), which allows the courts to vacate prior judgments, is one such law allowing courts to reopen dissolution decrees. In relevant part it provides:

“On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:


                (11) any other reason justifying relief from the operation of judgment.”

A dissolution decree may be vacated for extraordinary circumstances to overcome a manifest injustice. A trial court should exercise authority liberally and equitably to preserve the parties’ substantial rights.  

The operation of CR 60(b)(11) is confined to situations involving extraordinary circumstances not covered by any other section of the rule. The extraordinary circumstances must relate to irregularities extraneous to the action of the court. Errors of law may not be used to vacate a judgment. Typically, CR 60(b)(11) applies in situations involving reliance on mistaken information.

An ambiguity in a dissolution decree can constitute extraordinary circumstances where there was a manifest injustice the parties did not contemplate at the time of the original decree.

In the present case, the original dissolution decree’s only property disposition was the South Edwards property, but it only awarded “1/3 equity” to Blatchely and “2/3 equity” to Petranek. The court held “this created an ambiguity because this reference to equity does not purport to divide the real property itself or any ownership interest thereof. While the decree awarded some monetary award, it did not award title or ownership.

Further, the decree is silent to any other property, personal or real, and the findings of fact incorrectly state there is no other separate or community property. The decree thus left out the bank accounts, all the personal property, the Hawaii property, and even the South Edwards property title and ownership.

The court held that in these circumstances the trial court’s decision to vacate the original decree was proper. The dissolution decree’s misstatements, ambiguity, and incomplete disposition qualify as an extraordinary circumstance, where the trial court could not equitably divide the property. Although a partition action on each property could be used to determine ownership of each property, the trial court’s decision to vacate the original decree so that it could consider all of the property together and then divide it, for the first time, was reasonable. When the parties drafted the dissolution decree, they obviously did not force these problems. There were “extraordinary circumstances in this case which justified remedial action by the trial court to overcome a manifest injustice which was not contemplated by the parties at the time of the original decree.”

This case demonstrates two things:

1.       If you signed a Decree without disclosing all assets and now regret that decision (because your ex-spouse has significantly more then you though they did), there is a way to fix the problem.

2.       It if more cost effective and efficient and certainly less time consuming and stressful to fill out the paperwork correctly the first time, when you file for divorce. Do-overs are expensive but they are possible.

Saturday, February 18, 2012

Everything Counts in Child Custody Battles

My clients often believe that courts are biased and would make a woman primary custodial parent especially if that woman did not work full time during their marriage. Fortunately, this belief is rapidly changing from reality into a myth, which is proven not only by Washington statutes but also recent court of appeals decisions.

In making custodial arrangements, Washington courts apply factors set out in RCW 26.09.187(3). “Relative strength, nature, and stability of the child’s relationship with each parent” is one of the factors and is given the greatest weight. The courts also look at “each parent's past and potential for future performance of parenting functions as defined in RCW 26.09.004(3), including whether a parent has taken greater responsibility for performing parenting functions relating to the daily needs of the child.” That means that if a husband takes slightly more care of the child then his wife, he can be found to be a primary custodial parent by the court during dissolution of marriage action.

In a recent unpublished opinion In Re the Matter of the Marriage of Irene Bubernak and Thomas Bubernak, the court of appeals upheld trial court’s decision to enter a parenting plan making Thomas the primary residential parent of the couple’s seven year old son.

In response to Irene’s evidence that she did not work full time for the first two years of her son’s life and, at trial, was his primary provider, the court of appeals stated:

“This fact, even if true, does not, however, necessarily mean that application of the “relative strength, nature, and stability of the child’s relationship with each parent” factor must weigh in Irene’s favor.”

The court considered other aspects of parties’ parenting skills. It is hard to tell from the court of appeals summary of evidence, what exactly was presented at trial. It seems that among other evidence the trial judge considered the following:

1. Testimony of Irene and Thomas regarding their parenting functions;

2. Testimony and report of court appointed parenting plan evaluator Jennifer Keilin, who interviewed both parents, conducted parent-child observations with both parents, reviewed an interpretation by Dr. Marsha Hedrick of her psychological testing of the parents, the filed pleadings, parents’ questionnaires completed by the parents and other materials provided by the parents.

3. Testimony of the friends, colleagues, including child’s kindergarten teacher, and a neighbor.

It seems that the trial court just like Keilin found that “the child appeared to have a somewhat stronger, more positive, and more stable relationship with Thomas.” From the summary of evidence provided by court of appeals it seems that in making distinction between parents both courts focused on negative aspects of Irene’s behavior.

For example, they emphasized that Irene had history of depression, difficulties managing time and other details, was a bit rigid, and had a tendency to become overwhelmed.  At time she also had difficulty meeting the child’s emotional needs for consistency and routine.

According to the kindergarten teacher, the child was sometimes late at school when Irene brought him. She also testified that the child seemed more stressed at days when Irene brought him and that it took the child longer to get into the days’ routine on those days than on days when Tom brought him.

Neighbor testified that Tom and the child had a “great relationship” and that as a parent Irene “seemed a bit withdrawn.”

Parenting plan evaluator Keilin stated in the conclusion of her report:

“Both parents love [the child] and put effort into prioritizing his needs. The data supports that, of the two parents, Tom has a better emotional health and has consistently provided [the child] a stable, loving relationship. He also has somewhat stronger parenting skills, including a greater ability to provide structure and routine. Tom’s schedule is more flexible and he has greater availability that Irene. Finally, the child loves both parents, but he has a stronger affinity for and a better relationship with Tom.”

The trial court also considered Irene’s allegations of domestic violence, who claimed that Tom committed acts of physical aggression and exhibited signs of coercive controlling behavior. After hearing testimony of the parties’ joint counselor, a doctor who conducted a domestic violence evolution, and a mental health counselor, who performed risk assessment for Thomas, the trial court found no credible evidence that Thomas was physically violent to Irene or that Irene was ever in reasonable fear of any physical violence.

From my point of view, this case demonstrates not only a shift in man’s desire to share residential custody of the children but also it proves that at trial each and every little thing counts. It is absolutely essential not only to prepare your case for hearings and trials but also while the dissolution is pending to conduct yourselves in a way that would not jeopardize your future ability to request to be a primary residential parent for your children.

In cases where both parents took care of the child, the court will focus on mental health issues, even if they are not substantial. Little details like bringing the child late to school on occasion or acting somewhat irrationally might make a huge difference during a child custody battle.