Requirements and Interpretations for the District of Columbia
A. Kinds of Divorce
1. No Fault
A “No-fault” divorce is an irretrievable breakdown of the marriage. It is most often associated with an incompatibility of temperament such that the parties can no longer live together and any further attempts at reconciliation are impractical or futile, and not in the best interests of the parties. No-fault divorce has the advantage of sparing the spouses the acrimony of the 'fault' processes, and the disadvantage of closing the eyes of the court to any and all improper spousal behavior. This means that the “fault” of one of the parties in destroying the marriage is not an issue in the divorce. An “uncontested divorce” is simply a no-fault dissolution where the spouses agree on the terms of the divorce (child custody, property division, etc.). If the parties agree to "no-fault" grounds but cannot agree on terms, the divorce is considered "contested".
In the District of Columbia, a No-Fault divorce may be awarded in one of two conditions: 1) mutual voluntary separation without cohabitation for not less than (6) months; or 2) living separate and apart without cohabitation for not less than one (1) year. The Court recognizes "living separate and apart" may be accomplished under the same roof, if the spouses do not share bed or food. [District of Columbia Code Annotated; Title 16, Chapter 9, Sections 904, 905, and 906].
The District of Columbia does not make a requirement to justify a cause for divorce, but instead permits a divorce to be granted on two grounds when the plaintiff has demonstrated either of the following conditions exist: 1) mutual voluntary separation without cohabitation for not less than (6) months; or 2) living separate and apart without cohabitation for a period of not less than one (1) year. [District of Columbia Code Annotated; Title 16, Chapter 9, Sections 904, 905, and 906].
To receive a final decree of divorce in the District of Columbia, it is not necessary to show that either spouse was at fault in the breakdown of the marriage. The only thing that is necessary to prove is that there was a breakdown in the marital relationship and there is no reasonable possibility of reconciliation. However, whether a divorce is contested or not, the judge decides all issues on which the parties cannot agree. Normally the judge will also approve agreements between the parties to make sure they are not fundamentally unfair to one party.
3. Simplified Divorce
There are no legal provisions in the District of Columbia for a simplified (summary) divorce; generally applicable to divorcing couples who generally have no children and minimal property, assets and debts.
B. Residency & Venue Requirements
1. Plaintiff Resident
At least one spouse (Plaintiff) must be a resident of the District of Columbia for not less than six (6) months immediately prior to filing for a divorce within the DC Circuit Court system. Active duty military personnel are considered residents of the District of Columbia if they have been stationed in Washington D.C. for a continuous period of not less than six (6) months. [District of Columbia Code Annotated; Title 16, Chapter 9, Section 902].
"Venue" refers to which type of court and in what locality the case is filed. In the District of Columbia, the proper venue for filing a divorce action is the Superior Court, Family Division: "In the Superior Court of the District of Columbia-Family Division." [District of Columbia Court Rules; Volume 2, Appendix I].
C. Terms & Process
The spouse who files the summons and complaint of action for divorce with the Circuit Court of the county.
The responding spouse who is party to the action for divorce.
- Divorce Process
The legal process of obtaining a divorce begins by filing a complaint or summons with the appropriate Circuit Court of the county of residency. The document initiating the action for divorce is the “Complaint for Divorce”. The title of the action granting the divorce is referred to as the “Final Decree of Divorce”. A decree or judgment annulling or dissolving a marriage, or granting an absolute divorce, shall become effective to dissolve the bonds of matrimony thirty (30) days after the docketing of the decree or judgment unless either party applies for a stay with the Superior Court of the District of Columbia or the District of Columbia Court of Appeals. If the application for a stay is denied, the judgment will become final upon entry of the court's order denying the stay. If the application for a stay is granted, the stay shall continue in effect until the conclusion of the appeal. If the parties desire immediate finality, they may file a joint waiver of the right to appeal, which will make the decree or judgment final upon docketing of the joint waiver. [District of Columbia Code Annotated; Title 16, Chapter 9, Section 920].
4. Mediation or Counseling Requirements
While the court generally looks favorably upon voluntary measures such as mediation, counseling, parenting education, and other alternative dispute resolution techniques; there is no legal provision in the District of Columbia that require either party to engage in such services prior to filing a complaint or receiving a final decree of divorce. However, the court may order either or both spouses to attend parenting classes in those cases in which child custody is an issue. [District of Columbia Code Annotated; Title 16, Chapter 9, Section 911a(2)d].
D. Legal Separation & Remarriage
Legal separation is a court determination of each spouse’s rights and responsibilities based on the circumstances of the marital relationship. While a legal separation often includes a physical separation of households, it is not required; nor does it terminate the marital relationship.
2. Judgment of Separation
In the instance a spouse makes a claim for a breakdown of the marriage against the other based on demonstrated “grounds” or reason, law in the District of Columbia provides that the Court may grant a judgment of legal separation for one or more of the following grounds. [District of Columbia Code Annotated; Title 16, Chapter 9, Section 904].
? Both parties to the marriage have mutually and voluntarily lived separate and apart without cohabitation;
? Both parties to the marriage have lived separate and apart without cohabitation for a period of one year prior to the filing of the action;
? Engagement in conduct that would constitute cruelty toward the other.
To obtain a judgment of legal separation, the parties must meet the same jurisdictional requirements as required by an action for divorce.
3. Separation Agreement
A separation agreement, often referred to as a Pendente Lite Order, is a formal agreement between spouses. It provides for support and other financial conditions until a Final Decree of Divorce is made by the Court. Filing a separation agreement is not a requirement for obtaining a divorce, but serves as a concise agreement to facilitate cooperation between spouses. This can be especially helpful if the divorce decision is expected to take a longer period to accomplish for any variety of reasons. As with any document pertaining to the dissolution of marriage, it is important to file a separation agreement with the Clerk of the Court for signature by the judge to ensure the terms are binding. Considerations important to address in a separation agreement include:
? Child Support: Payment amounts, how often and in what way (payroll deduction, child support office auto deposit, personal cheque, etc.)
? Access Schedule: Days, times, length and transfer location.
? Spousal maintenance (alimony): Payment amounts, frequency, etc. (if any).
? Residence: Which parent will remain, monthly upkeep expenses, sale/division of proceeds and property, etc.
? Household Bills: Which bills and responsibility for payment(s).
? Taxes: IRS filing status, deductions for child(ren), mortgage interest, joint refunds, property tax liability, etc.
In the instance of reconciliation between spouses, a legal separation may be revoked at any time by agreement of the parties. However, an agreed order of revocation must be signed by the judge. Once a legal separation has been revoked by the court, the parties would have to repeat the entire process if it was decided to legally separate again.
Remarriage by the parties to another person is forbidden under law in the District of Columbia until after a Final Decree of Divorce has been entered. In the event an appeal of the Final Decree of Divorce is filed, neither spouse may remarry (except to each other) pending resolution of the appeal. There is no set timeframe by which an appeal must be heard and judgment rendered.
6. Last Name
Upon request, under general common law principles, the birth name or previous name of either spouse may be restored. [District of Columbia Code Annotated; Title 16, Chapter 9, Section 915].
E. Child Custody and Access (Visitation)
1. District Policy
The District of Columbia does not have statutory language that favors joint custody. However, unless the court determines that it is not in the best interest of the child(ren), the Court will usually issue an order that provides for frequent and continuing contact between each parent and the minor child(ren), and for the sharing of responsibilities of child-rearing and encouraging the love, affection, and contact between the minor child(ren) and both parents regardless of marital status.
2. Types of Custody
In the District of Columbia, the Court will generally enter an order for any custody arrangement that is agreed to by both parents unless clear and convincing evidence indicates that the arrangement is not in the best interest of the minor child(ren). The Court may award either sole legal custody, joint legal custody, sole physical custody, joint physical custody, or any other custody arrangement the court may determine is in the best interest of the child(ren).
? "Sole legal custody" means one parent makes all the key decisions such as health, education, general welfare and religion affecting the child(ren), including the right to access the child(ren)'s educational, medical, psychological, dental or other records, and the right to speak with and obtain information regarding the child(ren) from school officials, health care providers, counselors or other persons interacting with the child(ren). This parent awarded custody is referred to as the “custodian” and the other is considered the “non-custodial” parent.
? "Joint legal custody" means both parent equally contribute to making the key decisions such as health, education, general welfare and religion affecting the child(ren). Each parent also has the right to access the child(ren)'s educational, medical, psychological, dental or other records, and the right to speak with and obtain information regarding the child(ren) from school officials, health care providers, counselors or other persons interacting with the child(ren).
? "Sole physical custody" references the child(ren)'s living arrangements, including residency or access (visitation) schedule, meaning that the child(ren) only live with one parent often referred to as the custodial parent. In this instance, parents may share an equal legal custody but not equal physical custody of the child(ren).
? "Joint physical custody", often referred to as shared parenting means both parents share equal legal custody but not necessarily equal physical custody of the child(ren). Both have a dual right and responsibility to make important decisions regarding issues of health, education, general welfare and religion affecting the child(ren). This arrangement does not always work out to be an exact 50/50 split, but is aided by good cooperation between both parents. In a joint custody award, the Court may further “induce” parental cooperation with the expectation it will review compliance and collaborative efforts, reserving authority to change the order to sole custody in favor of the more cooperative parent.
3. Considerations for Custody Award
Under District of Columbia law, custody of any child(ren) of the marriage may be granted jointly or to either parent by court decision (order). Because a rebuttable joint interest is presumed to be in the best interests of the child(ren), the Court will consider joint custody in most every case. Moreover, if both parents request it, joint custody will likely be ordered, unless the Court makes a specific finding as to why it should not be so ordered. To make this determination, the Court exercises certain deliberations to award custody, generally based upon those factors considered to be in the best interest and welfare of the child(ren). There are however some exceptions. One of which is a legal presumption against giving custody to any person who has inflicted abuse, neglect, parental kidnapping or other intra-family violence. In abuse cases, the judge may also be required to consider any history of domestic abuse or whether a parent or spouse has relocated to avoid abuse.
No matter how strongly a person believes they are the better parent and should have custody of the child(ren), the Court may decide otherwise. Each parent should be ready to accept the Court’s decision and move forward to work with their ex-spouse to raise the child(ren) in a way that is best for them. In making a decision for custody, the court will consider many factors, including the following, to determine what is in the best interest of the of the child(ren). [District of Columbia Code Annotated; Title 16, Chapter 9, Sections 911 and 914].
? Safety and well-being of the child evidenced by intra-family abuse, violence or other offense;
? Age, number and gender of child(ren);
? Capacity for parental cooperation and communication to reach shared decisions affecting the welfare of the child(ren);
? Parental preference, willingness and sincerity to share custody of the child(ren);
? Capacity and interest of each parent to provide for the emotional, social, moral, material and educational needs of the child(ren);
? Characteristics of each parent seeking custody, including age, character, stability, mental and physical health;
? Interpersonal relationship between the child(ren), sibling(s), parents, and any other person who may emotionally or psychologically affect the child(ren)’s best interest;
? Preference of each child, if the child is of sufficient age, maturity and capacity;
? Respective home environments and geographic proximity of parents relative to the practical considerations of the child(ren)'s residential schedule;
? Prior involvement of each parent in the child(ren)'s life;
? Effect on the child(ren) of disrupting or continuing an existing social, academic, or custodial status;
? Demands of parental employment and the ability to financially support a joint custody arrangement;
? Potential impact on public welfare and other temporary assistance and benefits programs;
? Any other relevant matter the evidence may disclose and other reasonable available alternatives.
4. Parental Access (Visitation)
Where “custody" refers to which parent will have legal custody of the child(ren), i.e. with whom the child(ren) will live. Access (visitation) addresses the non-custodial parent's rights (when, where, how long, etc.) to spend time with the child(ren). And as in determining custody, judges have broad latitude in providing for access rights as well. The Court also has discretion to provide for access rights, even if both parents had previously agreed to no access (visitation). In determining access (visitation) arrangements in the District of Columbia, if the Court finds that an intra-family offense has occurred, it will only award visitation if it finds that the child(ren) and custodial parent can be adequately protected from harm inflicted by the other party. The party found to have committed an intra-family offense has the burden of proving that access (visitation) will not endanger the child or harm the child(ren)'s emotional development.
It is also within the Court’s discretion to determine whether the parents will follow a specific schedule or allow more general conditions for access outside of direct court intervention programs. Parental cooperation and written parenting agreements are very helpful in guiding the Court in making such decisions. When parents cannot agree on child custody and access issues, the Court may order them to participate in programs offered by the Children’s Rights Council and/or other providers. These programs, such as SPEAK and Safe Haven access centers help them better cooperate and increase parental awareness of the affect negative behaviors may have on their child(ren).
5. Grandparent and “Other” Access (Visitation)
In the District of Columbia, there are no legal provisions for access (visitation) by grandparents. However, such persons may petition the Court for access and may be awarded such privileges under certain considerations if determined within the best interests of the child(ren).
6. Shared Parenting Agreement
The purpose of a shared parenting agreement is to reach an understanding on how to jointly raise and care for the child(ren) with both parents sharing in the responsibilities and maintaining involvement in their day to day life. The agreements require a flexibility and dedication of both parents to act in the best interest of their child(ren). Make every attempt to encourage and respect the relationship of your child and the other parent. Don't assume anything and keep an open mind. It is important to remember that the parents are divorcing one another, not their child(ren). A shared parenting agreement fairly negotiated before a judgment of divorce has a far better likelihood of acceptance by the Court, and will help reduce the trauma to the child(ren) after a divorce is finalized. (Link to sample agreement format).
In the event parents do not voluntarily submit a written parenting plan for custody, the Court may order each parent to submit a detailed parenting plan which shall delineate each parent's position with respect to the scheduling and allocation of rights and responsibilities that will best serve the interest of the minor child or children. [District of Columbia Code Annotated; Title 16, Chapter 9, Sections 911 and 914].
The parenting plan may include, but shall not be limited to, provisions for:
? Residence of the child(ren);
? Financial support based on the needs of the child(ren) and resources of the parent;
? Routine access (visitation), and special access (holidays, birthdays, vacation, etc.);
? Transportation of the child(ren) between the residences;
? Immediate and long-term educational needs;
? Religious training, if any;
? Access to educational, medical, psychiatric, and dental treatment records of the child(ren);
? Responsibility for medical, psychiatric, and dental treatment decisions (except in emergencies);
? Communication methods and times between the child(ren) and the parents; and
? Resolution of conflict, such as a recognized family counseling or mediation service, before application to the Court to resolve a conflict.
7. Court Order
After a decision of custody and access is made, an order is signed by the judge and filed with the Clerk of the Court. Both parents are bound by this order and may be found in contempt of the court for failing to honor any part. If in the instance a parent is denied court-ordered access to any child(ren), that parent may bring the issue back before the court by filing a petition for modification of the order. If in the opinion of the Court it is in the best interest of the child(ren) the judge may decide to modify the access (visitation) order; order makeup visitation for the time missed; order counseling or mediation by one or both parents; or other remedy the court may determine best to ensure compliance. Additional to a motion for a modification or termination of the order by one or both parents, the Court upon it's own determination may make a motion that there has been a substantial and material change in circumstances and that a modification or termination to the award of custody is in the best interest of the child.
8. Parental Relocation
The District of Columbia has not yet addressed the issue of parental relocation by creating a statute with presumption of what is generally in the best interest of the child(ren).
F. Financial Child Support
1. Responsibility and Emancipation
Financial “child support” commonly refers to the money paid by the non-custodial parent to the custodial parent to assist in meeting the continuing needs of the child(ren). It is often the most contentious aspect of divorce and rarely considered equitable by one or both parents without first working hard to understand the nature, purpose and distribution of financial support. It is important to understand that divorce does not end the legal obligation for support. Although the bond of marriage (or other relationship) has been broken, each parent still retains a legal responsibility to provide adequate support for the child(ren). The paying (non-custodial) parent may not agree with how the funds are being used, but that isn't their decision to make. The use of child support funds is at the discretion of the custodial parent. Even if the custodial parent earns more than the non custodial parent, child support payments will likely have to be made until each child is emancipated. Emancipation or “age of majority” means that the child has come of age and capable of self-support as determined under state law. In the District of Columbia, that generally occurs when a child reaches 18 years of age, but shall not affect any common-law or statutory right to child support up to an age of 21. Additional circumstances which may consider a minor emancipated may include military service or marriage. If determined in the best interest of the child, the Court may also make a judicial declaration of emancipation in certain instances if the minor is at least sixteen (16) years old; the minor is living apart from the parents with their consent or acquiescence; the minor is able to manage their own finances and has a legal source of income. [District of Columbia Code Annotated; Title 46, Subtitle 1, Chapter 1, Section 46-101 and Title 16, Chapter 46, Subchapter 1, Section 4701.01].
2. Needs and Considerations
The legal duties of financial child support are based upon the needs of the child in conjunction with the abilities of the parents as dictated by income and assets owned. Joint custody shall not eliminate the responsibility for financial child support in accordance with the applicable District of Columbia child support guideline. The financial goal is to help families achieve self-sufficiency because non-payment of child support is a key factor contributing to the impoverishment of children. Each are an important part of a combined effort to obtain a fair distribution of financial responsibility so the child(ren) may live in a manner similar to that which existed before the divorce. While every situation is unique, the one common denominator all parents must remember is the Court’s direction to provide for "the best interests of the child." [District of Columbia Code Annotated; Title 16, Chapter 9, Section 916.01].
In deliberation of financial child support, the Court will consider many different variables which may include:
? Quality of lifestyle the child(ren) would have most likely experienced had the divorce not occurred;
? Financial resources of each parent and that of the child's;
? Age and health of each parent;
? Present and future income and earning capabilities of each parent;
? Willingness both parents demonstrate to allow visitation;
? Affect on the non-custodial parent to maintain two households.
? Child(ren)'s educational needs, including the potential for higher education;
? Age and health of the child;
? Possibility of the child obtaining employment;
? Tax liabilities of each parent;
? Desire on the part of each parent to have sole or joint custody;
3. Child Support Guidelines
In the District of Columbia, child support is based on the combined net income of the parents and how many children the parents are responsible for supporting. In making a determination of child support, the Court may order either parent to provide for payment during and after a divorce proceeding based on official Child Support Guidelines. While every state has its own version of the Child Support Guidelines to help calculate an appropriate amount of financial support, only the individual set of guidelines adopted by the District of Columbia are presumed by the Court to be correct for use by the District of Columbia Superior Court. [District of Columbia Code Annotated; Title 16, Chapter 9, Section 916.1 and 916.2].
4. Negotiating Financial Child Support
As in the issue of custody, the Court will have the final say in all matters of child support and shall consider application of Child Support Guidelines adopted by the District of Columbia as presumptive of the amount to be paid. However child support, like many other elements in divorce, does not have to be decided only by the judge. In the event an amount may be demonstrated manifestly unjust, inequitable or inappropriate under the guidelines for the particular circumstances of a case, departures may be set forth in a written agreement with reasonable explanation for deviation from the established guidelines. [District of Columbia Code Annotated; Title 16, Chapter 9, Sections 911, 916, 916.01, 916.1, and Title 46, Section 201].
Factors the Superior Court of the District of Columbia will consider to overcome the presumption of established Child Support Guidelines are:
? Needs of the child(ren) are exceptional and require more than average expenditures;
? Gross income of the non-custodial parent is substantially less that of the custodial parent;
? A property settlement provides resources readily available for the support of the child(ren) in an amount equivalent to or greater than the minimum formula calculation;
? Custodial parent provides medical insurance coverage;
? Non-custodial parent supports a dependent other than the child for whom the custodial parent receives credit in the formula calculation, and application of the guideline would result in extraordinary hardship to the non-custodial parent;
? Non-custodial parent needs a temporary period of reduced child support payment to permit the repayment of a debt or rearrangement of financial obligations. The Court may order a temporary reduction in a child support if:
? The debt or obligation is for a necessary expenditure of reasonable cost in light of the non-custodial parent's family responsibilities;
? The time of the reduction does not exceed 12 months; and
? The child support order includes the amount that is to be paid at the end of the reduction period and the date that the higher payments are to commence.
? Any other extraordinary factors.
5. Adjustments to Financial Child Support Guidelines
The best measure to ensure the intentions of both parents are met, and guard against unexpected findings, is to mutually prepare a parenting agreement. It is each parent's responsibility to clearly explain any and all special conditions or unique circumstances to the Court. A written agreement between the parents for a different amount with a reasonable explanation for the deviation from Child Support Guidelines is not uncommon. And an agreement reached prior to trial is often a successful one, because it is the parents who best understand the specific needs and capabilities of the family members, as well as, demonstrating a collaborative effort to ensure the best interests of their child(ren).
If parents ignore the opportunity to present a shared parenting agreement, or are unwilling to iron out a reasonable agreement (with or without the help of other professionals); the Court will typically refer to the standardized DC Child Support Guidelines to determine the amount of financial support. In all instances, the judge will make the final decision on child support, as well as custody. In this way, the Court assumes full responsibility for the order to permanently safeguard the best interests of the child(ren), and guard them against acute or chronic feelings of guilt.
6. Determination of Payment
Child support is one of the few things in divorce that is relatively certain. In making a determination of payment, the Court generally focuses on income after taxes, and support is rarely the sole responsibility of the non-custodial parent, because it is understood that the premiere job of the custodial parent is to provide a sufficient household. For the majority of divorces involving minor children, financial child support is a straightforward application of a formula that is entirely a result of statute. (Refer to DC link).
Child support, which is a percentage of the non-custodial parent’s income paid to assist with the support of child(ren), is calculated based upon a set of Child Support Guidelines adopted by the District of Columbia. It is a statutory requirement that the Court consistently apply all guidelines, whether or not the custodial parent is a recipient of Temporary Assistance for Needy Families (TANF), or the Program on Work, Employment, and Responsibility program. [District of Columbia Code Annotated; Title 16, Chapter 9, Section 916.01(7)].
In general, the non-custodial parent may expect to pay child support until the child(ren) is 21 years old, taking into consideration the following factors to determine the periodic support payment amount:
? Combined gross income of the mother and the father;
? Each parent’s gross income as a percentage of the combined gross income;
? Any pre-existing obligation to pay child support or alimony;
? Number of children under 21;
? Amount paid for work-related child care, subject to some limitations provided by the state Department of Human Resources; and
? Ability of each parent to provide healthcare coverage for the child(ren) and amount paid for health insurance.
? If determined reasonable and prudent, the Court can also set aside a portion of joint or separate assets of the parties in a separate trust or fund for the support and education of the child(ren).
7. Establishing Gross Income
Critical to establishing the financial basis for child support is the appropriate determination of gross income for each parent, from all sources. Because Child Support Guidelines are based on the total gross income, it is important for each parent to ensure they have appropriately accounted for all revenues and contributions toward support of their child(ren). [District of Columbia Code Annotated; Title 16, Chapter 9, Section 916.01(8)(C)(1-22)].
Revenue sources the Court considers a factor of total gross income include:
? Salary or wages, including overtime, tips, income from self-employment, and severance pay;
? Commissions, bonuses or royalties;
? Investment interest or dividends;
? Social Security or veteran's benefits;
? Insurance benefits, pension or annuity;
? Worker's or unemployment compensation;
? Income from life insurance or an endowment contract;
? Income from a trust, or regular income from an interest in an estate, directly or through a trust;
? Any contract that results in regular income;
? Business income after deduction of reasonable and necessary operating expenses, not including depreciation;
? Net rental income after deduction of reasonable and necessary operating costs, but not depreciation;
? Capital gains from a real or personal property transaction, if the capital gains represent a regular source of income;
? A perquisite or in-kind compensation if the perquisite or in-kind compensation is significant and represents a regular source of income or reduces living expenses, such as use of a company car or reimbursed meals;
? Spousal support (alimony) received from any person;
? Prizes, awards, lottery or gambling winnings that are received in a lump sum or in an annuity; and/or
? Taxes paid on a party's income by an employer or, if the income is nontaxable, the amount of taxes that would be paid if the income were taxable.
8. Exception to Child Support Presumption
In the instance shared custody is ordered or agreed to in an approved parenting agreement and the child(ren) spends 40% or more time with each parent during the year, the Court shall not presumptively apply the District of Columbia approved Child Support Guidelines but will accept such guidelines as advisory, and in the discretion of the Court to apply. In situations of shared custody, the Court shall also have the authority to order either parent to pay a portion of certain expenses, which may be in addition to any award of child support. [District of Columbia Code Annotated; Title 16, Chapter 9, Section 916.01(n)].
Examples of additional expenses which may be assessed to either parent in support of child(ren) in a shared custody arrangement include:
? Extracurricular activities and lessons;
? Access (visitation) services;
? Private school tuition or other school fees;
? Day care, summer camp, sporting events; or other academic or social retreats;
? Unreimbursed or uninsured health care expenses, and
? Other such expenses as the Court may determine in the best interest of the child(ren).
9. Modification of Child Support Payment
In the District of Columbia, either parent may request a child support order to be recalculated at any time during and after a divorce proceeding. However, an adjustment will most likely occur if the recalculation results in a net change of not less then ten percent (10%) in the net child support payment. Either parent may also submit a “praecipe” with a certification of waiver and supporting documentation, as prescribed by the Court, to modify the child support amount by agreement of the parties at any time. This agreement shall be treated and reviewed by the Court for issuance of a revised decree in the same manner as an original agreement of the parties is reviewed. [District of Columbia Code Annotated; Title 16, Chapter 9, Section 916.1 and 916.2].
Upon the occurrence of a substantial or material change in circumstances sufficient to warrant the modification of a support obligation pursuant to the Child Support Guideline, the Court may modify any provision of an agreement or settlement relating to child support, without regard to whether the agreement or settlement is entered as a consent order or is incorporated or merged in a court order. In other words, any order requiring payment of an amount of child support, regardless of whether the amount of the child support was the subject of a court order or a voluntary agreement between the parents, may be modified upon a showing that there has been a substantial and material change in the needs of the child or the ability of the responsible person to pay.
This kind of modification usually follows a substantial change in circumstances, such as a significant increase or decrease in either parent’s income; a child reaching the legal age of majority; graduation from high school, or other major change to the familial status. Some of the factors generally considered for modification include:
? Parental incomes and earning capacities;
? Available assets for support;
? Employee benefits of each parent;
? Income of a new spouse or cohabitant;
? New family responsibilities of each parent;
? Increase in the cost of living;
? Special changes in cost of rearing the child(ren); and
? Heath conditions of parents and child(ren).
To initiate a modification of the child support order, the parent (or legal counsel for the parent) must file a Petition to Modify (along with the accompanying filing fees) with the Court. The petition must be accompanied by an affidavit that sets forth sufficient facts and guideline calculations, including proof of service upon the other parent (respondent) that demonstrates evidence of the change in circumstances. Typically, the evidence must be completely new to the court. Issues addressed previously in the child support order are generally insufficient means for modification. If approved, the Family Court of the Superior Court may enter an order to modify the child support payment in accordance with the guidelines unless a party requests a hearing within thirty (30) days of service of the petition for modification.
G. Spousal Support/Alimony
1. Obligation Under Law
It is an obligation established by law based on the premise that both spouses have an absolute obligation to support each other during the marriage (or civil union) unless they are legally separated. After a Complaint for Divorce is filed with the Court to terminate the marriage, either spouse may seek interim (pendente lite) support during the course of the divorce proceedings. When a divorce, or other dissolution of a civil union is granted, either spouse may then ask for post-marital maintenance (also known as alimony or spousal support). It is not an absolute right to receive this kind of monetary support, but may be granted depending on the amount and terms varying with the circumstances.
2. Definition and Intent
Spousal support (sometimes called spousal maintenance or alimony) is money paid by one spouse to the other due to the payee spouse's loss of the benefit of the payor spouse's income due to the divorce. It's designed to provide the lower-income spouse with money for living expenses over and above the money provided by child support in an effort to maintain the standard of living that both parties were accustomed to during the marriage. It can only be ordered by the court, but may be awarded to either spouse. But unlike child support, it is not determined by simple mathematical calculations in an official set of Child Support Guidelines. Instead, judges have enormous discretion when awarding spousal support, if they would at all. This of course, creates a great deal of uncertainty for litigation, encouraging each spouse to negotiate a fair agreement on their own behalf to settle their case instead of taking their chances with the Court. Unless reasons are compelling to the contrary, the Court is generally disposed to accepting an existing agreement between each spouse. However, if the parties cannot agree on the terms of their divorce in a binding written instrument, the Court will make what it considers a fair determination based on the legal argument and the testimony submitted by both parties.
3. Types of Spousal Support/Alimony
The District of Columbia considers two primary forms of spousal support/alimony: indefinite or term-limited (rehabilitative), structured as appropriate to the facts as interpreted by the Court. Rehabilitative support is considered temporary and designed to assist the recipient become financially self-sufficient. Indefinite support is permanent, but it does end when either spouse dies. In some circumstances, spousal support may be awarded as a set lump sum (alimony in gross) or as periodic payments that terminate under certain circumstances.
? Lump Sum: This type of support is made in one payment instead of periodic (usually weekly or monthly) payments. Lump sum alimony is not modifiable in the amount after an award is made and paid. Lump sum alimony, just like all other form of spousal support is taxable as income. It is recommended that a person receiving or making a lump sum should first consult with an experienced tax professional to determine the tax liabilities of this type of payment.
? Permanent: This type of support is awarded usually until the death of the payor or recipeint. Some agreements may include a "cohabitation" clause that states spousal support is terminated if the recipient cohabits with another person in the avoidance of marriage. Permanent alimony, as with the other periodic types of support may be modified by the Court if the party seeking the modification can show a material change in circumstances.
? Temporary: This type of support lasts for a short, specific period of time, usually not more than one (1) to two (2) years. Temporary support may be awarded when the persons involved are on almost equal ground but due to certain circumstances one person may need immediate financial assistance in order to restore their ability to set up a household and return to the workplace.
? Rehabilitative: This type of support is the most commonly awarded alimony, especially after shorter marriages. It is a solution the Court may apply in a situation where the recipient is usually younger or more easily able to enter or return to the workforce and become financially self supporting. Rehabilitative support may also include payments for education if determined necessary to enable the recipient to become self supporting.
4. Considerations for Award
The Court has full discretion to award an allowance for maintenance to either spouse, if the recipient spouse has insufficient resources to provide for their own maintenance. This award may be made out of the property belonging to the other spouse, unless it is separate property (acquired by gift or inheritance, or acquired prior to the marriage) and was never used for the common benefit of the marriage. Again, there is no formula for setting the amount of spousal support, and generally granted only on by a demonstration of need by one party together with the requisite ability to pay by the other. To make this determination, the judge will consider the following factors when deciding how much support to award – if it will be ordered at all. [District of Columbia Code Annotated; Title 16, Chapter 9, Sections 911, 912 and 913].
? Relative Income of the Parties: If the Court should recognize a “right” of the spouses to live “according to the means they have become accustomed”, the judge may attempt to adjust the incomes of each spouse, as best as possible, in a way that approximates their prior lifestyle. This action tends to strongly equalize post-divorce income, however often heavily penalizing the higher-earning spouse.
? Earning Capacities of the Parties: A spouse with the better future earning potential and financial prospect, (including inheritances) is likely to have to pay higher spousal maintenance (if awarded) than one who is not.
? Alternative Sources of Income: Medical, insurance, retirement or other benefits up to 50% may be used for spousal support if accumulated during a marriage of 10 years or more.
? Age of the Parties: At the time of divorce, it is generally accepted more youthful spouses are considered to exercise greater ability to productively progress with their lives, and therefore thought to require shorter periods of spousal support if determined necessary.
? Health of the Parties: Poor health goes towards need, and potentially an inability to support for oneself. The courts do not want to leave one party financial isolated due to illness or injury that may likely leave the person indigent.
? Duration of the Marriage: Generally the longer the marriage lasted the greater the period for spousal support if so ordered. It is not uncommon for the judge to make an award for permanent support if the marriage lasted for over 10 years, especially where one spouse has been economically dependent on the other spouse for most of the marriage.
- Marital Misconduct: If the divorce is awarded based upon the misconduct of the other spouse, the court may consider the circumstances which contributed to the estrangement of the couple in making an award of support, but may not consider the separate property of the spouse in determining the amount. Misconduct of either spouse may also be considered in the determination to deny any financial maintenance.
? Other Factors: In addition to the above, the Court may consider ANY economic circumstances of either party that the judge may determine just or proper including:
- Extent to which a party’s earning power, expense or financial obligations will be affected by serving as the custodian of a minor child(ren);
- Contribution by one party to the education, training or increased earning power of the other party
- Relative education of the parties and the time necessary to acquire sufficient education or training to enable the party seeking alimony to find appropriate employment;
- Property brought into the marriage by either party;
- Relative assets and liabilities of each party;
- Contribution of a spouse as homemaker;
- Tax consequences to either party.
5. Continuation, Modification and Termination of Award
? Continuation: Upon petition, a court may order temporary spousal support (pendente lite) while the divorce is pending. However, upon a Judgment of Divorce it should not be expected that a previous order to continue support will be automatically sustained. Although a continuance for spousal maintenance may be requested (usually for a specific length of time), the arguments for support during and after the marriage may be different and subject to modification or termination.
? Modification: With the exception of a lump sum payment, an award of spousal support may be modified at any future date based on a reasonable demonstration of a change of circumstances by either party upon petition (proper notice to the other party and application to the court).
? Termination: Upon petition to the court, an award of spousal support may be terminated upon the submission of proof to the Court of: emancipation of the last child; death of either spouse; remarriage of the recipient spouse; or if the recipient is openly living with a member of the opposite sex.
6. Financial Considerations
? Child Support: Financial child support is the condition where one parent is required to contribute to the support of child(ren) through the agency of the other parent or guardian. In this manner, regulations under the Internal Revenue Service interpret child support as a normal part of parenting financial responsibilities. Child Support payments are therefore considered a necessity for a parent’s support of their own offspring (after-tax dollars) and not taxable to the person who receives it, nor tax deductible to the person who pays it. (IRS Publication 501, Exemptions, Standard Deduction, and Filing Information)
? Alimony: Again, spousal support is treated very differently and should not be confused with financial child support. With respect to taxation, spousal support (alimony) is a payment to or for a spouse or former spouse under a divorce or separation instrument. It is considered a taxable gross income - treated as income to the receiving spouse, and deducted from the income of the paying spouse (pre-tax dollars). In the event parents have dramatically different incomes, there may be some tax advantages to the non-custodial parent to pay alimony in lieu of child support, even if a judge wouldn't ordinarily award it. It is important to note the IRS does not recognize voluntary spousal payments made under a divorce or separation agreement which has not been approved by the Court. (IRS publication 504, Divorced or Separated Individuals).
? Pendente Lite Maintenance: Like other forms of periodic installments of spousal support, pendente lite maintenance, is taxable to the recipient and deductible by the paying spouse under the rules of the Internal Revenue Service. As a result, a higher earning parent may be financially better off supporting the custodial parent in the form of an alimony payment instead of child support because alimony is paid in pre-tax dollars and child support is paid in after-tax dollars.
? Lump Sum Payment: If an award of spousal support is paid in a lump sum (alimony in gross), there is no tax ramification for either spouse. Instead, this type of payment is considered a distribution of property.
? Retirement Funds: Law in the District of Columbia allows a Court to divide retirement funds in a marriage if the funds were accumulated during the course of the union. The Court may also consider the distribution of retirement funds as part of an award for spousal support.
? Insurable Benefit: Persons that receive spousal support should be aware that this form of financial maintenance will cease upon death of the payor. Because the recipient has an insurable interest in the person being insured (payor), it is permissible for the recipient to purchase an insurance policy (such as life and/or disability) in an amount sufficient to replace the spousal support in the event of accident, illness or death on the part of the payor.
? Bankruptcy: Under the rules of the Federal bankruptcy code, spousal support is a non-dischargable obligation. That is, regardless under which chapter of the code bankruptcy may be filed, a person may not escape their financial requirement to make payments to the Court awarded recipient.
7. Failure to Pay
Under law within the District of Columbia, the Court may enforce an order for child support or spousal maintenance by attachment, garnishment, or imprisonment for disobedience. Enforcement is most often accomplished by withholding an amount for support payments sufficient to satisfy the obligation from earnings or other income, and/or sequestrate property and apply the income thereof to discharge such obligations. Unless the Court finds there is good cause not to impose immediate withholding, or the parties agree in writing to an alternative method of payment, an order for support shall be deemed immediate. [District of Columbia Code Annotated; Title 16, Chapter 9, Sections 911 and 916, and Title 46, Chapter 2, Section 46-207].
H. Property Division
1. Equitable Distribution
There is no statutory provision in the District of Columbia for the presumptive division of property. Under case law, the District of Columbia is considered an "equitable distribution" state. This means the Court has the authority and full discretion to divide all marital property (assets and debts) in a fair and equitable, but not necessarily equal manner. Moreover, the Court's discretion may not be disturbed on appeal without a showing of clear abuse. However the Court may consider extraordinary factors, although it generally may not divide separate property, regardless of whether the separate property was obtained before or after the marriage.
? Marital Property: Generally, marital property encompasses all jointly-owned real and personal property acquired during the marriage. This may include the main residence, vacation or investment property, automobiles, home furnishings and equipment, furs and jewelry, joint checking and savings accounts, mortgages and revolving loans, credit card debt, and other “co-mingled” assets and liabilities that were purchased or obligated during the course of the union. There is no fixed standard to divide marital property, instead the Court will decide and distribute based on the facts and circumstances of each case. Marital fault may also be considered in determining an equitable distribution of property. However, not all property is considered “marital property”.
? Separate Property: Generally, assets (real or personal) acquired before the marriage or by gift or inheritance during the marriage may be excluded from the marital estate if neither the property, nor its income, has been used for the common benefit of the both spouses during the marriage.
2. Factors for Consideration of Equitable Distribution
To decide the division of marital property owned by divorcing couples, and whether any property held by one of the parties should be included in the marital estate, the Court will consider several factors for the purpose of making an equitable distribution. The conduct of the spouses during the marriage is not a factor for consideration. [District of Columbia Code Annotated; Title 16, Chapter 9, Section 910].
Considerations for the distribution of marital property may include but are not limited to:
? Duration of the marriage;
? Age, health, station, income, vocational skills, employability, estates, liabilities and needs of each party;
? Provision for the custody of minor child(ren);
? Value of the property set apart to each party;
? Whether the distribution is in lieu of or in addition to alimony;
? Standard of living the parties established during the marriage;
? Sources of income, including medical, retirement, insurance or other benefits;
? Services of each party as a parent, wage earner and/or homemaker;
? Contribution by one party to the education, training or increased earning power of the other party;
? Opportunity of either party to acquire future income and assets;
? Effects of taxation on the value of the assets subject to distribution;
? Any financial obligations from a prior marriage or for other children;
? Frequency and purpose of use of property
? Each spouse's contribution to the acquisition, preservation, appreciation, dissipation, or depreciation in value of the assets which are subject to distribution, the taxability of these assets and whether the asset was acquired or the debt incurred after separation
? Assets held before the marriage and if that property was kept separate from property acquired during the marriage;
? If income produced by a separate property investment had been “commingled”, or mixed together with other marital property; and
? If property inherited during your marriage was willed exclusively to one person and was not commingled with marital property during the marriage.
I. State Statutes and Related Links
1. Superior Court of DC, Family Court
2. District of Columbia, Child Support Services Division
3.District of Columbia, Child Support Enforcement Division
4.State Legislatures, State Laws and State Regulation