Divorce in Washington, D.C.
Generally, there are two types of divorces, contested or uncontested. If you and your spouse have resolved all issues through a settlement agreement, to include areas concerning the distribution of marital property, division of accounts, alimony, and child custody and support, your divorce may proceed uncontested. Otherwise, if there are outstanding issues you can’t settle, your divorce will proceed in a D.C. court.
Requirements for Filing for Divorce
There are three requirements to file for divorce in the District of Columbia: 1) residency in D.C., 2) proof of a valid marriage, and 3) adequate divorce grounds. These three requirements must be fulfilled at the time that a complaint for divorce is filed. If either you or your spouse has lived in the District continuously for at least six months before the filing of the complaint, the residency requirement is satisfied.
As for proof of marriage, the most common way to satisfy this requirement is to produce an original or certified copy of one’s marriage certificate. Particularly if you and your former spouse were married in D.C., you may request a copy of the certificate from the District of Columbia Marriage License Bureau, located in the H. Carl Moultrie Courthouse at 500 Indiana Avenue, NW #690, Washington, DC 20001. If you were married outside the District, you would need to contact the Court in which your marriage license was filed with the Court Clerk.
Regarding adequate grounds for divorce, the District of Columbia is a “no-fault” jurisdiction, which means that there are only two applicable grounds, regardless of the circumstances that led to the marriage’s dissolution: 1) mutual and voluntary separation, in which the parties have lived separate and apart for at least six months before the filing of a complaint for divorce, and 2) involuntary separation, wherein the parties have not agreed to separate but have lived separate and apart for at least one year before the filing of a complaint.
Living “separate and apart” in the same residence
A situation in which someone cannot remove themselves from a shared residence with their spouse may be more common than one might think. Washington, D.C. is consistently ranked in the ten most expensive rental housing markets in America. Whether the motivation is financial or otherwise, it may not be feasible to immediately move out of a home, whether rented or purchased. While the duration of separation noted above is an absolute prerequisite to receiving a divorce decree, it is still possible to live “separate and apart” while inhabiting the same home or apartment as one’s spouse. More specifically, the Court is looking for verification that the two parties are no longer living as a married couple, and have, for all intents and purposes, dissolved their marital relationship. The most common means to establish a life “separate and apart” from one’s spouse while living under the same roof is to demonstrate that the parties are no longer living and sleeping in the same bed and room.
In some cases, after six months of being separated, parties will seek a decree for legal separation when they wish to live apart and determine temporary custody, child support and spousal support, and division of some property issues without getting formally divorced. This is most often used for religious, financial, or other reasons unique to a family. The decree can later be converted to a divorce if the parties were separated for over a year and there has been no reconciliation.
Issues Determined in Divorce
Marital property is divided during the divorce process. Marital property includes assets and debts that were acquired during the marriage. This can include the marital home and other real estates, monetary assets like bank accounts, retirement benefits, and personal property such as furniture and cars. It doesn’t matter how property is titled, only that it was acquired during the marriage. Separate property is property owned by either spouse that cannot be divided in a divorce. Typical examples are gifts, inheritances, and property owned before the marriage.
Child custody is determined during the divorce process if the divorcing couple has children. District of Columbia law provides that there are two types of custody, legal custody, and physical custody. “Legal custody” means legal responsibility for a child. The term “legal custody” includes the right to make decisions regarding that child’s health, education, and general welfare, the right to access the child’s educational, medical, psychological, dental, or other records, and the right to speak with and obtain information regarding the child from school officials, health care providers, counselors, or other persons interacting with the child. “Physical custody” means a child’s living arrangements. The term “physical custody” includes a child’s residency or visitation schedule. Thus, the two main components to any child custody case in the District of Columbia will often be the parents or the Court deciding whether one or both of the parents have legal custody of a child and what the physical custody schedule of time with the child will be.
Child Support will also be determined in the divorce process for families with children. Under D.C. law, a court may order, either temporary or permanent support be paid by one parent to the other. D.C. courts may also order that health insurance coverage and medical expenses be paid by a parent on behalf of their child. Along with 42 other states, Washington, D.C. follows the Income Shares model of calculating child support pursuant to guidelines. This model guideline is founded upon the principle that a child should receive a support amount as if the parents in fact, lived together and their incomes remained combined and allocated towards the care of their children. In general, the guideline parameters seek to ensure each parent’s legal responsibility to provide support, taking into consideration the “subsistence needs of each parent,” the “child’s basic needs,” and even the capacity to “provide additional child support above the basic needs level.” The calculated guideline amount is presumed to be correct, which means that in most cases, support will be paid as dictated by the guidelines.
Alimony, also called spousal support, is financial support paid by one spouse to the other after a divorce or legal separation. Either spouse may request alimony, which may be awarded on a temporary or indefinite basis. While ideally former spouses will form an agreement to establish their respective alimony obligations, D.C. courts can also order either of the parties to pay any one of three separate types of alimony: temporary or “pendente lite” alimony, short-term or rehabilitative alimony, or permanent alimony. Each type of alimony is reserved for certain circumstances and conditions or may be based upon the status of the parties within their court case.
Marital settlement agreements can be signed at any time before a divorce is final. Usually, these agreements come after the parties have resolved all issues incident to their marriage, including:
- Child custody
- Spousal support and child support
- Division of marital property and debts
- Health insurance for the family
- The sale or one spouse purchasing the other’s interest in the marital home
- Division of retirement plans and pensions
- Tax filings and debts
- How to handle future disputes and proceedings
Once an agreement is signed, the parties need only finalize their divorce formally and do not have to litigate the issues decided by the agreement.
Divorce from a Common Law Marriage
For any party that wishes to dissolve a common-law marriage, they will likely need to coordinate for witnesses who can provide personal testimony confirming the existence and nature of the marital relationship. Any documents possessed by the former spouses that corroborate the existence of the marital relationship will be important, and particularly those that hold the couple out to the world as a married couple.
Same-Sex Marriage and Divorce
The U.S. Supreme Court has decided that same-sex couples have the same right to marry. They, therefore, have the same right to avail themselves of the divorce process as well. In the District of Columbia, same-sex couples married can also come back to have their divorce decided there if they were initially married in the District, and their home state does not recognize same-sex marriage.
Child Custody Cases in Washington, D.C.
Child custody cases in Washington, D.C. can involve both married and unmarried parents who have one or more children. District of Columbia law provides two types of custody, legal custody and physical custody. “Legal custody” means legal responsibility for a child. The term “legal custody” includes the right to make decisions regarding that child’s health, education, and general welfare, the right to access the child’s educational, medical, psychological, dental, or other records, and the right to speak with and obtain information regarding the child from school officials, health care providers, counselors, or other persons interacting with the child. “Physical custody” means a child’s living arrangements. The term “physical custody” includes a child’s residency or visitation schedule.
Thus, the two main components to any child custody case in the District of Columbia will often be the parents or the Court deciding whether one or both of the parents have legal custody of a child and what the physical custody schedule of time with the child will be.
Most commonly, legal and physical custody will be determined through the context of a divorce proceeding or a separate custody legal action, wherein the Court will analyze the parties’ circumstances, and any relevant information, under the legal framework used to determine custody found at D.C. Code § 16-914. That statute states that if ever the issue of child custody is raised within a court proceeding, the Court will examine the best interests of the child under the lens of seventeen specific factors; therefore, it is important for any parent’s petition or pleading in the D.C. Courts to take due consideration of these factors, to properly analyze them, and to know what information to include to substantiate their allegations.
Two other essential points bear mention: first, in D.C., there is a rebuttable presumption that joint custody is in the best interest of the child or children, except in instances where there has been domestic violence, child abuse, or neglect. Second, the Court may request each parent to submit a detailed parenting plan that sets forth each party’s ability to provide for the children their capacities for childcare.
There is little distinction made in the District of Columbia between children born to a married couple instead of those born to an unmarried couple, so your case will proceed the same either way.
At times, parents can arrange that each party feels comfortable with the party, thus saving time, court costs, and stress. By law, the D.C. courts will honor any custody agreement that is consented to by both parties unless clear and convincing evidence is brought forth that the agreement is not in the child’s best interests.
No matter how an order is arrived at, parents will have to abide by the custody arrangement or order. Failing to follow the terms of the custody order, like ignoring the schedule or denying the other parent visitation with the child, can result in legal consequences.
Modifying Child Custody in Washington, D.C.
After a prior child custody order or arrangement has been entered by the Court, any party applying for a modification to that arrangement will carry the burden to demonstrate that “a substantial and material change in circumstances” has occurred and that the proposed “modification or termination” of the prior child custody arrangement “is in the best interest of the child.” The party moving for a modification of child custody must prove that such a change has occurred by a preponderance of the evidence, meaning that the evidence tips the scales in favor of the allegations being more accurate than false. However, to demonstrate that a “substantial and material” change has taken place, a party moving for modification must present specific evidence with an awareness of the types of the changes the Court generally considers sufficient to modify the parents’ arrangements. As 18 is the age of majority in the District of Columbia, no custody will be awarded to a child that has reached the age of majority unless unemancipated.
After that, it will be the party applying for modification of any prior child custody arrangement or order that will carry the burden of demonstrating that a sufficient change has occurred to justify a rewriting of the party’s legal and physical child custody arrangements.
Child & Spousal Support in Washington, D.C.
In Washington, D.C., as in other jurisdictions, all children have a right to receive financial support from both parents. Under D.C. law, a court may order either temporary or permanent child support to be paid by one parent to the other “for the support of each such needy spouse or domestic partner and of the children.” D.C. courts may also order that health insurance coverage and medical expenses be paid by a parent on behalf of their child.
Washington D.C.’s child support system is overseen by the Attorney General’s Office for the District of Columbia’s Child Support Services Division (CSSD). Before child support can issue, a parent must establish parentage/paternity of the other party, they must locate the other parent, and they must establish a child support obligation via court order; only then can they begin to receive child support.
In the District of Columbia, you may file for child support at any time after the fourth month of pregnancy and until a child turns 21 years old, if unemancipated. The District of Columbia courts most commonly adjudicate child support cases when the paying parent lives in the District. Still, they may review child support cases when the parent who owes child support does not live within the District in certain circumstances, to include: when the child was conceived in D.C., lived with the non-custodial parent in D.C., or the non-custodial parent paid prenatal expenses or other support for the child while living in D.C. Notably, if a non-custodial parent caused the child to live in D.C. by any event or their actions, or if the non-custodial parent was served with formal court notice in D.C. or consents to proceeding in the District of Columbia, the matter may be heard in the District courts.
Along with 42 other states, Washington, D.C. follows the Income Shares model of calculating child support according to guidelines. This model guideline is founded upon the principle that a child should receive a support amount as if the parents in fact, lived together and their incomes remained combined and allocated towards the care of their children. In general, the guideline parameters seek to ensure each parent’s legal responsibility to provide support, taking into consideration the “subsistence needs of each parent,” the “child’s basic needs,” and even the capacity to “provide additional child support above the basic needs level.” The calculated guideline amount is presumed to be correct, which means that in most cases, support will be paid as dictated by the guidelines.
If a child is in the care of a third party, both natural parents may be ordered to pay child support to the caregiving third party.
How Washington, D.C. Courts Determine Income
In the District of Columbia, income is considered to one’s paycheck primarily. However, other sources of income are considered. The child support guideline calculation takes into account other resources such as commissions, royalties, bonuses, interests or dividends, social security or veteran’s benefits, worker’s compensation, pensions, annuities, trust proceeds, life insurance distributions, regular receipt of capital gains from real property transactions, or even employer contributions to a party’s tax obligations, should the income be non-taxable.
While this list may seem daunting, D.C. law provides several offsetting clarifications, exemptions, and deductions. For example, if a non-custodial parent is subject to a self-employment tax, 1/2 of each of any Social Security and Medicare taxes due on current income will be deducted from their gross income for the purposes of the child support guideline calculation. Similarly, if either parent is paying alimony to the other, whether Court ordered or pursuant to an agreement, that amount will be deducted from the payor’s gross income—just as any alimony amount received by either party shall be added to the gross income of the receiving party. If a support order is already being paid, that amount will be deducted from the paying parent’s gross income before calculation. Additionally, the guideline does not consider benefits received according to means-tested public assistance programs as gross income for a child support calculation.
Importantly, if the judge deciding a child support case believes either parent has quit his/her job or voluntarily taken a lower-paying job to avoid paying child support, the Court will likely “impute” income to the parent acting in bad faith to an amount greater than what they claim to have earned. However, income will not be imputed if a parent is physically or mentally unable to work or merely receiving additional means-tested public assistance benefits. The judge will look to financial records, such as tax returns, pay stubs, affidavits of the parties and their employers, and any oral testimony under oath to determine each party’s gross income.
In D.C., the minimum payment for child support by the non-custodial parent is $75.00 per month,
You can determine likely child support yourself using the Child Support Guideline Calculator: http://csgc.oag.dc.gov/application/main/intro.aspx
Modifying Child Support
Either parent can file a motion to modify child support, whether they seek the Court to increase, decrease, or eliminate the prior child support obligation. Whether a change is awarded depends on if there has been a “substantial and material change” in circumstances since the prior child support amount was calculated and ordered.
Minor or voluntary changes in circumstances are typically not sufficient to warrant a recalculation according to the guideline. Significant changes, such as new custody arrangements, new health issues of the parents or their child, involuntary loss of employment, a drastic change in income received by the parent or child, or the child’s emancipation, will often result in a modification of child support.
Alimony, also called spousal support, is financial support paid by one spouse to the other after a divorce or legal separation. Either spouse may request alimony, which may be awarded on a temporary or indefinite basis. While ideally, former spouses will form an agreement to establish their respective alimony obligations, D.C. courts can also order either of the parties to pay any one of three separate types of alimony: temporary or “pendente lite” alimony, short-term or “rehabilitative” alimony, or permanent alimony. Each type of alimony is reserved for certain circumstances and conditions or may be based upon the parties’ status within their court case.
Temporary or “pendente lite” alimony provides financial support to a spouse during the pendency of the parties’ divorce proceeding. This type of alimony obligation will often cease upon the entry of a final decree of divorce. At that time, a new financial support obligation may be entered by the Court or upon the parties’ agreement.
Short-term or rehabilitative alimony allows for a spouse whose relative income is lower to seek new training, education, or professional abilities to increase their long-term earning capacity. This type of alimony continues for a specified amount of time following the parties’ separation or divorce. The exact timeframe will usually depend upon the length of time necessary to allow the lesser-earning spouse to become self-sufficient or until the occurrence of another event, such as their remarriage.
Permanent alimony is where the paying spouse is obligated to pay alimony for an indefinite duration. Though it is known as “permanent” alimony, it isn’t necessarily forever. Alimony that is established as permanent in most cases, can be modified or terminated.
How Alimony is Determined
While child support is calculated using a legal guideline, the District of Columbia does not utilize a guideline to calculate alimony. Instead, the Court determines if alimony is “just and proper” under each family’s circumstances. Further, D.C. courts will look to nine factors found in the alimony statute relating to each party’s financial needs and available resources. Specifically, the Court will consider information such as each party’s ability to self-support, each spouse’s earning capacity, the additional time or training necessary to ensure that each former spouse may be able to exist and subsist independently, the duration of the marriage, the standard of living established during the marriage, each spouse’s age and health, and the cause of the marriage’s dissolution. Regardless of the parties’ relative positions, it is essential to formally request alimony within the context of the divorce proceeding or alimony is waived. Parties can agree to alimony privately, or the spouse seeking alimony can request the judge to grant alimony as part of the divorce or separation.
Once alimony is requested from the Court, both sides will have to complete an income and expense statement to chronicle and demonstrate their formal budget. The Court will then review to make its alimony determination. Thus, each side needs to know how to calculate the various expenses and figures and what to include and ensure the diligent collection of supporting documentation to substantiate the numbers listed on the income and expense statement.
Most commonly, alimony will be paid via automatic income withdrawal, whereby an allocation of the payor spouse’s paycheck will be re-routed to the payee spouse. This process can save time and hassle but can also cause a startling change to the monthly bottom line. However, the parties may agree that alimony payments will be made through check, cash, or electronic bank transfer if preferred. Yet should alimony payments being made via a method other than automatic income withdrawal become late or delinquent, a court may order all future alimony payments to be made via income withdrawal. This provides certainty of payment, enhanced ability to trace the timing and number of transactions, and a solidified payment record.
Either former spouse can request that the parties’ respective alimony obligation and award be modified, but only upon a showing that a substantial and material change in circumstances has occurred, such that it has caused a change in either the payor’s ability to pay or the payee’s need for financial resources. It will be the party’s burden and responsibility seeking the change in alimony to demonstrate that such a change has occurred, to the extent that a modification to the parties’ alimony obligation is warranted. The D.C. Courts will then determine if the apparent difference in the parties’ positions rises to the requisite level of a substantial and material change since the entry of the prior alimony order.
An alimony agreement between the parties will usually note a specific duration of the payor spouse’s alimony obligation. It may include a list of events or conditions that would trigger a modification or termination of the obligation. Such events often include the spouse’s remarriage or cohabitation, reaching a certain income level, or the payor spouse’s retirement. The precise listing and inclusion of conditions or triggering events is one reason why reaching an agreement between the parties can be very useful; ensuring that the agreement’s triggering events are tailored to the parties’ interests, and incorporate consideration of the parties’ complete positions and resources, represents a critical undertaking. At times, a payor spouse may feel that an event has occurred that should lessen or terminate their alimony obligation. Yet, if the parties’ agreement specifically disclaims such an event from consideration, they may face a barrier.
If a Court orders permanent alimony, there is no specific date certain upon which the alimony obligation will terminate. If no other condition is met such that would terminate the obligation, a payor may continue to pay alimony throughout the parties’ lives.
Domestic Violence and Protective Orders in Washington, D.C.
If you have been abused, harassed, threatened, or hurt by someone, whether by a family member or a stranger, and you remain fearful that such actions may take place again, a restraining order or protective order may be able to help by providing a legal barrier to an aggressor’s future attempts to repeat the same harmful actions. However, the District of Columbia’s filing systems and names operate a bit differently than in other jurisdictions. Hence, it is important to know what you are looking to file, what the process is, and what ability you have to ensure that the resulting order will protect you against the particular risks you face.
In the District of Columbia, restraining orders may also be referred to as a “civil protection order,” depending on the parties’ relationship with each other. If someone seeks a protection order against someone with whom they share an “intrafamily relationship,” such as a family member, a spouse, a romantic or sexual partner, a roommate, or someone with whom the filing party has been previously romantically involved, they will file for a “Civil Protection Order.”
If no such “intrafamily” relationship exists between the filing party and the subject of the protection order then the ultimate order is still called a “restraining order.”
In such instances, a party will commonly begin by filing a “temporary restraining order” as part of a civil matter, which generally lasts 14 days. Afterward, a judge will schedule a hearing date within 21 days of the TRO Motion’s filing, with mediation also a possibility. If the TRO did not include a no-contact clause, you might be responsible for notifying the other party of the upcoming hearing. If granted, a temporary restraining order, or “TRO,” can order an individual to stay away or avoid all contact with the filing party, to not go near specific locations, or to refrain from abusive, harassing, or unwanted behavior. A judge may also order the harassing party to submit to drug treatment or counseling.
Additionally, in certain instances, it may be appropriate to file for an Extreme Risk Protection Order to remove firearms, ammunition, firearm registration certificates, concealed carry permits, or a firearm dealer’s license from the subject of a protection order.
To file either a civil protection order or a restraining order in the District, go to the District of Columbia Superior Courthouse, and specifically the Domestic Violence Intake Center, at either one of the following locations:
- 500 Indiana Avenue, NW, Suite 4550
Washington, DC 20001
- 1328 Southern Ave, SE, Suite 311
Washington, DC 20032 (this location is ONLY for civil protection orders between intrafamily).
You can file up to two years after a particular incident giving rise to the restraining order has occurred. Still, delays may make more difficult any attempts to get a protection or restraining order, as the immediate perceived risk may have dissipated or the evidence to demonstrate what has taken place may be less available.
It is also important to remember that a petitioner of protection or restraining order should make sure to tailor the requests within their motion to their situation, as resulting orders may include modifications to child support, temporary custody of children, and reimbursement for damages.
Adoption in Washington, D.C.
Generally, a child can either be adopted via a licensed adoption agency or through direct placement with a family. When adoption occurs through a licensed agency, the agency will often arrange for the child’s biological parents to sign a form relinquishing their parental rights, thus clearing the child for adoption. Many reputable adoption agencies serve the District of Columbia that facilitate adoptions while providing comprehensive education to adopting families. If an adoption is not being orchestrated by a licensed adoption agency, then the adoption may be coordinated by the District of Columbia Child and Family Services Agency (CFSA), which is responsible for overseeing the recruitment of families seeking to adopt a child, as well as placing children with foster families.
After initial phases of the adoption process are completed, such as the adoption home studies, questionnaires and other matching processes, and communications with the CFSA or an adoption agency, parents-to-be will still need to formalize the adoption process through the District of Columbia court system. At this point, you will likely need an attorney to help you finalize your adoption.
Under Code of the District of Columbia § 16-305, a prospective adopting parent will file a Petition for Adoption, under oath or affirmation of the petitioning, that includes several pieces of information relating to the prospective adopted child, the natural parents, and the petitioners. Complying with these requirements is critical, as any failure to provide necessary information may delay the Court’s process and its entry of the final judgment of adoption. Among other assurances, the Court will either need to know the whereabouts of the natural parents or the adoption must be proceeding with the blessing of a licensed child-placing agency or the Mayor of the District of Columbia.
A biological parent can opt to revoke their decision to relinquish their parental rights. This decision must be completed within 14 days of the execution or any such relinquishment. However, in instances where one or more biological parents to the child to be adopted cannot be located, a D.C. court may allow the adoption process to continue if sufficient effort has been made to locate either parent.
There are two primary forms of adoptions: open adoptions, which require open adoption agreements to be signed by the biological parents and adoptive parents, and closed adoptions. The main difference is that in open adoptions, the biological parents and the adopting parents enter a legally enforceable agreement to allow the adopted child to contact their biological parents, and vice versa, after the adoption has been finalized. While an open adoption agreement is enforceable in the District of Columbia courts, a Court will not revoke an order of adoption and remove a child from their adoptive parents for violations of the open adoption agreement.
Family Law Mediation in Washington, D.C.
At WhitbeckBennett, we believe that many Washington, D.C. divorces and family law disputes can and should be resolved without expensive and stressful litigation. Mediation provides parties with the option to discuss, cooperate, and resolve any disputed issues in an informal setting collaboratively and peacefully. By using the services of a trained and experienced mediator, spouses and co-parents exert far more control and input on the outcome of a family law matter than may be available in litigation.
The Advantages of Mediation
- Less risk of a bad outcome because in mediation, you are in control of your settlement. If you choose to litigate your case in Court, the judge controls the outcome, not you.
- You are preserving the relationship between ex-spouses or partners, mainly when children are involved. Mediation is a way for you to resolve your dispute without the damage done with high conflict litigation.
- Save the costs of litigation using mediation is a significant advantage. Though the precise cost of a mediation session will depend upon the private or court-operated status of the mediator and their level of expertise and experience, it will often equate to far cheaper than a normal trial process.
- Move your settlement faster. Mediation can resolve your case faster than the Court in almost every instance. Courts move slowly; mediation moves at your own pace.
- Confidentiality of your situation. By law, mediation discussions cannot be used against you in Court, and mediation is not a public record like a court hearing.
How Mediation Works
To start, our mediator will interview each party to learn their perspectives and goals and explain the mediation process in detail. After both sides agree to settle their case with mediation, we will send you an agreement to sign and schedule your first appointment.
The mediator will also have you provide documents showing your assets, liabilities, and any other documents needed for issues unique to your case.
The mediator will then conduct multiple sessions, either with both parties together or separately as appropriate. Mediation sessions are private, which means a mediator cannot be called to testify in Court except in extreme circumstances. This means you can speak freely and do everything you can to settle your case in a safe environment.
Mediation is likely to result in a settlement in most cases, and once one is reached, the mediator will send you a draft settlement agreement to review. Even if you don’t settle every issue, you can undoubtedly settle as much as you can in mediation and have the Court decide any remaining issues.
Mediation generally resolves the following family issues:
- Divorce grounds
- Division of the parties’ assets and debts
- Child custody and visitation
- Spousal support
- Child support
- Any other issues unique to your family
Once your case is settled and an agreement is signed, we can help you figure out finalizing your case formally in Court as well.