Divorces often involve scenarios where one spouse has been the sole or main “breadwinner” in the family and the other spouse has, by mutual decision, voluntarily left the workforce for the benefit of the children and family.
Once the dissolution occurs, the non-working or lower-income spouse is usually faced with the overwhelmingly difficult task of having to transition to the working world and become financially independent.
Under the authority conferred by RCW § 26.09.080, Washington courts attempt to ease this transition period by requiring disposition of property and liabilities in a just and equitable fashion, after considering all relevant factors, including but not limited to: 1) the nature and extent of the community property; 2) the nature and extent of separate property; 3) the duration of the marriage; and 4) the economic circumstances of each spouse at the time the division of the property is to become effective.
The court has wide discretion in determining that a particular division of property meets the “just and equitable” standard. Disparate awards are not uncommon. In the circumstance where the spouse has traditionally had no or lower income-producing capacity, the courts regularly award more property to that spouse, particularly in marriages of longer duration.
Further, in assessing the economic circumstances of each spouse at dissolution, future earning prospects of the parties are to be considered. While not an asset of the parties, future earning prospects have been described as a “substantial factor” in making a just and equitable distribution of the property.1
Factors that bear on future earning prospects include age, health, work history and vocational training history. When a party has not worked outside of the home for a substantial period of time, the court usually will look at vocational rehabilitation factors (e.g., interests, prior training and experience).
In conjunction with the disposition of property and liabilities, RCW § 26.09.090 provides statutory authority for the award of maintenance to effect a fair financial result, so that any award of spousal maintenance will be viewed in the overall context of the property and/or child support awards. Maintenance often is used to equalize the relative financial positions of divorcing spouses for a certain period of time that the court determines is sufficient for one spouse to obtain vocational training or other necessary skills to become financially self-sufficient.
Of course, the longer the marriage, the more likely the award and duration of maintenance will be increased. Also factored in is the issue of whether it is feasible to expect a mother rearing young children to be simultaneously employed or be in the process of re-training.
Assuming there are sufficient assets to provide a maintenance award, the award may contain a regular maintenance schedule with a reduction clause that provides for full maintenance during the period of child rearing, but decreases the award when children enter school. A similar provision providing full maintenance during the period of training or re-education, then reduced after a set period of time to account for the spouse’s increased employability and income, also is common in property settlements.
Despite these attempts at a just and equitable settlement, the reality is that women who have sacrificed advancement in their own educations or careers in order to advance their husbands’, or in order to raise the children, are left financially handicapped and unable to compete on an equal footing for many years once the maintenance award terminates. Indeed, they may never obtain equal footing. Thus, acquiring education or training is crucial in both obtaining a maintenance award and in transitioning to become financially independent.
Ideally, the attorney should direct their client to obtain a vocational counselor who can take into consideration the person’s age, aptitude, education and interests, and direct the client into something that is economically feasible and realistically obtainable. In general, the spouse should be encouraged to take steps toward training or education as soon as possible. There are several programs that specifically address the divorcing spouse’s circumstances.
Bellevue Community College’s Career Center and The Women’s Center offer comprehensive programs for worker retraining for displaced and unemployed spouses. The worker’s retraining course offers tuition assistance and educational planning for those who are currently unemployed or have exhausted benefits, for displaced homemakers, and for those who were self-employed in a declining industry. The Women’s Center offers comprehensive career planning for those seeking employment.
The University of Washington Women’s Center also offers “Divorce 101,” a course that provides information for those thinking about or going through a divorce. The Center also provides numerous non-work-related support classes for divorcing spouses.
Finally, Washington’s Worksource program offers training and educational programs for unemployed adults and provides excellent resources for those seeking employment. However, none of its programs specifically addresses the needs of divorcing spouses.
Boaz “Bo” Weintraub, J.D., LL.M. concentrates on representing professionals and business owners or their spouses in complex divorce litigation. He may be reached at 425-451-1202, ext. 3012 or by email at bw@weintraub-law.com.
1 In re Marriage of Hall, 103 Wn.2d 236, 248, 692 P.2d 175 (1984).
