Modern Divorce - The Do-Over For A Better You

Unmarried Partner traps: The Surprising Rules That Can Cost You When You Break Up

May 19, 2021 Attorney Billie Tarascio Season 2
Modern Divorce - The Do-Over For A Better You
Unmarried Partner traps: The Surprising Rules That Can Cost You When You Break Up
Show Notes Transcript

Moving in together seems simple, right? Until someone moves out,  that someone claims the rights that belong to "cohabitating partners" in that state.

In this episode, Modern Divorce's Billie Tarascio and Washington Family Law Attorney Michelle Dellino compare the high impact differences between splitting up in one state versus another.

Prepare to hear some critical traps and "gotchas" in this episode that make this a must-listen to anyone who is living with their partner without a marriage license.  In fact, the idea that "we don't need a piece of paper" to make a relationship is exactly right - because the state you live in will make the rules for you, and it may not be pretty. And it's probably going to cost one of you waaaaay more than the other, unless you both decide for yourselves what the rules should be beforehand.

If you're in Washington, check out Michelle Dellino at Dellino Law in the Seattle metro area, and you can find Billie Tarascio at MyModernLaw.com.


Rights of Cohabiting Couples

Billie Tarascio: [00:00:00] Hi there. This is Billie Tarascio with the modern divorce podcast back again for a really fun episode today, I am talking to um, a Washington state attorney, , Michelle Dillino and we are going  to talk about. Who has the rights of cohabitating couples, which is totally different in Washington than it is in Arizona.

And it's absolutely fascinating. Michelle, welcome to the show. How are you doing? 

Michelle Dillino: [00:01:08] Great. Thanks for having me. This is, this is awesome to be here and excited to talk about it so different than arizona. 

Billie Tarascio: [00:01:13] Really is. Now, before we get. You started. Can you tell everyone about what it is that you do and your firm and your practice up in Seattle?

Michelle Dillino: [00:01:21] Absolutely.  I'm managing attorney of family law firm in Seattle. We have six family law attorneys and we handle all kinds of stuff. So we handle basically all your, what people would call regular divorces, uncontested divorces, but we handle a lot of messy cases. So if you have a messy family law case, something high conflict, when stuff gets dirty, people come to us.

So that's what we do. 

Billie Tarascio: [00:01:43] Fantastic. And how long have you been doing that?  

Michelle Dillino: [00:01:46] Our firm started in 2013, so we are now I think going into our actual in our eighth year or the middle of our eighth year. So that's really exciting.  And we've grown exponentially since then. I've been practicing family law since 2009.

So it's kind of what I know and what we like to do. 

Billie Tarascio: [00:02:01] That's fantastic. It's great to have you on. And I want to talk about what are the rights of cohabitating couples. 

Michelle Dillino: [00:02:11] Yes. Great question. So totally different than probably what you're used to. 

Billie Tarascio: [00:02:15] Right. 

So I had somebody called the other day who said, you know, we've been together 23 years.

We've both been paying the mortgage, his name's on the house. We have three children, what are my rights? And so if that was, if I were asking you that, and the situation was in Washington, what would you say? 

Michelle Dillino: [00:02:36] I would say 23 years, you have what? In Washington, when you get in marriages, when you get around 25 years, it's a long-term relationship marriage.

So I would say, wow, 23 years been together a long time. I'd want to know when they started living together. That would be a big thing because a lot of people say, Oh, we've been together this long, but turns out we only lived together for two years. So assuming they've been together and lived together the whole 23 years and they've got kids and this is the whole thing.

And there they are, what we would call.  A couple that would likely be eligible to have the relationship dissolved as a committed, intimate relationship. And I would tell that person, Hey, you have property rights, everything, you basically get everything that a married couple would get aside from two things.

And we'll talk about that in a minute, but you have a right. To a community property interest in anything that was acquired during the marriage. Sorry, the relationship, not the marriage. So let's say in those last 23 years, one party has the house name on title. Other part, that party has a bunch of retirement accounts, brokerage accounts, things that were earned during the long relationship.

The other party, the financially disadvantaged party has an interest in that, even though they never married. So. And proving that can be difficult  in some cases, but in a 23 year relationship where they've got kids, it's probably not going to be that difficult and they're going to be entitled to  just an equitable share of the community property, which is probably going to be a lot.

Billie Tarascio: [00:03:56] Okay. So it is crazy to me that, that you would be speaking this way because we're our community property state as well. The community is the marriage. Yeah, there is no community property. If there's no marriage. No. Unfortunately I have to tell those clients, like you have no rights, your rights are subject to subject to real estate law.

 You know, if you had some sort of breach of contract claim, you know, maybe we could do something there, but there is no community. So how do you have community property rights? 

Michelle Dillino: [00:04:28] Right and totally different for us because we call it's community, like, but we're quasi community. So that's the, what we, what we term it.

But basically we determine when did that begin and when does it end? I mean, obviously you've got a date of separation, like you would have in a marriage, but in Washington, It's interesting because these relationships used to be called meretricious relationships. Then they evolve to a friendlier term committed intimate relationships.

But what really happens is there is a, there was a 1995 case where, and there were other cases before that, but in 1995   Washington court, the case is called Como vs Francisco in case anybody cares, but they essentially evaluated a number of factors and found a committed, intimate relationship and found that property could be divided under these factors.

So the court will look at things like, and when you're working on a settlement, I would ask people things like to determine what the deal is. How long did you continuously live together? What was the purpose? Because if you're just roommates like that doesn't count, it has to be an actual, like relationship, intimate relationship.

Was it relationship stable or were you breaking up all the time?  What was the  purpose? Was it to raise a family? Was it for a mutual love and support? So we want to know what the purpose is. And then we would ask things like  Did either of you put one another on insurance benefits, did you pool resources?

That's a big one. So both people put money into a joint account, but even if you didn't have a joint account, you could still have a committed, intimate relationship, which blows people's minds even more. But you know, we ask things to kind of determine what was the relationship like, and if it was a marriage, like relationship, the courts in Washington, specifically look for stable marriage like relationships, and then the courts have the right to divide property.

So it's mind blowing to people in other community property States.

Billie Tarascio: [00:06:13] I mean, it really is because, you know, you have a couple who did not get married. They did not opt for a purpose, you know? Yes. They intentionally and they knowingly are not married, but I guess it is a little bit like. The concept of a common law marriage.

And usually when people call me and they say, I've been, you know, we've been living together for 23 years. We have kids don't I have a common law marriage. And so maybe we should talk about that for a minute.  I'm assuming that Washington does not have common law marriage. 

Michelle Dillino: [00:06:43] No, we don't. And people call that and ask all the time.

And then we can say, no, we don't have common law marriage. Cause I think very few States actually really have that anymore. I'm not sure how many, but we'll say no, we don't have that, but we do have committed intimate relationships. So let's break it down and talk about what's going on with your relationship and what that might've been like.

And then some people don't. Yeah. Usually you get two different people looking at that. You get the people that want to say, Hey, I have a common law marriage, or now I have a committed, intimate relationship. Those are the people that want to divide the property. Then there's the other party. That's like, I didn't marry him or her on purpose.

We didn't, we, there was a reason we didn't do that and I don't want to have to give them any money. So, yeah. But everybody says that everyone says don't I have a common law marriage. No, the answer is no, but you might have a committed, intimate relationship. So it's really interesting also, it's it's we look at it, people looking backwards and thinking, Hey, how do we divide this property?

And then we look at it with people looking forwards and trying to plan for living with someone and how we can help them avoid that happening, or at least planning for what it's going to look like if it does happen. 

Billie Tarascio: [00:07:46] Yes. So it seems to me that people are probably entering committed, intimate partner relationships.

Unknowingly. 

Michelle Dillino: [00:07:54] They have no idea. Yeah. 

Billie Tarascio: [00:07:56] All the time. 

Yeah, because yeah, marriage, you had to hold out as marriage. You had to say you had to act married and that does happen. I mean, I do know couples, especially those receiving spousal maintenance. Who go and don't get married, but hold out as if they're married, because they'd like to be married, but they want to still get their spousal maintenance.

And in some ways that seems a little bit more like legitimately fair to say, we're going to treat you like you're married because you acted like you were married and you claimed you here. But in this case, it's just such a gotcha. And so, and I imagine there's massive litigation about. What happened during marriage or during the relationship.

Michelle Dillino: [00:08:37] Yes, totally. Fact-specific, I've tried committed intimate relationship cases and it's, it is completely a testimony, heavy case where people are coming in and saying, Oh, well, some people live in say, I thought they were married. They were together so long. I didn't really know. Or some people will say  you know, I proposed a big thing that comes up too, is like, did other party proposing the other party said, no, if that happened, why did they say no?

Was it because they were thinking, because it wasn't a stable relationship or was it because they really just made this decision together? So there's a lot of testimony about what happened during the relationship and really, as we get ready to settle these cases, cause they don't all go to trial.

There's a lot of discussion about  you know, what can be proved. Well, were you on bank accounts together? If not. Why not, did you one party give money to the other party and that party paid all the household bills? Like what was really going on is  really something we have to take a deep dive into to figure out who's got the stronger case. So it's interesting that  also too, I had a case maybe like five years ago where the parties were together barely over two years, and yet one party moved from Hawaii. I think to Seattle, to live with him, they had a child right away. And then  and the other party bought a house during that time.

The end of the case, even though it was barely over a two year relationship. The person who moved there, got the house, the other party bought. And  it was a committed, it was committed, intimate relationship. So stuff like that can happen. I mean, it was a hot, second relationship, but a lot of stuff happened in those two years.

So there you go. 

Billie Tarascio: [00:10:14] Gosh, that is just frightening to me as a divorced person who would not want to end up like so accidentally opting into something.  It really does make the case for the prenup postnup cohab. 

Michelle Dillino: [00:10:32] Yeah, cohab.. 

Billie Tarascio: [00:10:35] Yes. We don't have cohabitation agreements in Arizona nearly as often. Although if you have a couple that is cohabitating and they intend to provide something for one another, let's say somebody doesn't want to get married.

And the other person says, I feel uncertain about my future. I'm not going to continue living with you unless I know what happens if we break up, that would be a completely, perfectly legitimate adult conversation that could result in a cohabitation agreement. 

Michelle Dillino: [00:11:05] Ah, interesting. And that's different than how I would look at it.

Cohabitation agreement. Yours is like, we want to provide, even though we don't have to, to give the other party security, sometimes we'll have that, but more often than not it's we want to define what our property rights are if this ends, because if we don't, the court can. And so that's a whole other thing.

And I think it's notable too, that in Washington, the court has said that if one party dies, you don't inherit the same way in a committed, intimate relationship to the way the a spouse would. So you don't get those rights. A lot of people want to know like, Oh, what are the differences? Well, you don't get the rights of  you know, like the social security benefits, because that's a federal thing you don't inherit under Washington law. So that's a thing, but a lot of the time people will drop these cohabitation agreements and they'll either want to include  property rights after death, or they'll want to include additional things or they'll want to just make it very clear that that's not happening.

So it's kind of probably different than the people that would come to you and say, Oh, I want to provide for so-and-so because I want to give them security to live with me and not marry me. And in our situation, we're mostly saying we want to make sure everybody's stuff is not  becoming quasi community.

Billie Tarascio: [00:12:14] Absolutely. And the reason is that the risk is totally shifted. So in Arizona the risk is completely on the non owning non-earning or lesser, lesser earning all of those things, spouse, a person versus in Washington where the risk is really on the person who has more income and more resources. 

Michelle Dillino: [00:12:40] Yeah. And we're seeing that more and more with younger people because they have no idea how would they know, why would they know?

But then we have a lot of people you know, who even in their twenties might go to work somewhere like Amazon or Microsoft, and they're cohabitating with someone and in the middle of that cohabitation they might get a massive stock grant. And what they don't realize is, Oh, Hey, I got all these restricted stock units that are going to vest stay living with my boyfriend or girlfriend for five years.

And then, and that person may be, you know, it doesn't work at Amazon or Microsoft and then the relationship ends. And I realized those hundreds of thousands of dollars in stocks that are vesting they were granted during the relationship so they're quasi community potentially. And that person, like you said, has all the risks.

So it's a lot of times when someone hears, Oh, geez, I'm living with someone. I might have risks. Then they say, what's going on with cohabitation agreement. Can I do that? And then you have to have the delicate conversation with the other party  explaining why you're doing that or how it works. But I try to tell people it's actually a time saver and a stress saver for both parties because to litigate one of these cases is expensive. And another major difference in Washington is that in Washington, we have the ability to seek attorney's fees under a need and ability to pay standard. So if somebody really needs fees and the other party really has the ability to pay. In a marriage, you can do that in a committed, intimate relationship you can't. So you're each equally responsible for your own attorney fees. So if that financially disadvantaged person wants to say, Hey, I have a claim to all that. You have to have the money to fund your own litigation. So I tell people by doing a cohab agreement, you can be really clear about what what's going to happen.

You don't have to wonder what's going to happen. Maybe you never need the agreement . But at least you now, 

Billie Tarascio: [00:14:19] wow absolutely crazy. Okay. Now the other question I want to ask is, so in Arizona you know, our presumptions are different, but the presumption is if you're married, whatever you create together, any, any work you do is on behalf of the community and this community property.

Now, many, many times people will take title to a house

in one name..And in Arizona, the presumption is if it was, if it was acquired during the marriage as community, however, if somebody signs a disclaimer, deed, that's also evidence of an intent to gift away your interest. So the gifting analysis becomes very important and, and  let's see. I don't know that I remember legally what's a gift from law school.

I think I do. Do you remember what are the elements of a gift? 

Michelle Dillino: [00:15:13] Oh, gosh, no, 

Billie Tarascio: [00:15:15] that's a good question too. We'll just talk out loud. I think it's you had the property and it was all yours, right? If you give it to someone and then you no longer have any control or claim over it. You give it to them. So there can't be any strings.

Michelle Dillino: [00:15:28] Yeah, exactly. There can't be any conditions, it has to be an unconditional gift. 

Billie Tarascio: [00:15:32] Can't be like, you know, you get to stay in this house until you're done and 

Michelle Dillino: [00:15:35] then I can pull it back. Yeah. 

Billie Tarascio: [00:15:37] That's not a gift. And then the other thing is you don't have to intend to give 

Michelle Dillino: [00:15:41] The intent is everything, that's what I remember. Yeah. It's what you intended. Yes, exactly.

And, and that's, I think that would be interesting, especially where you don't have committed intimate relationships. If I gave you something, that's basically dispositive of what it is. There's no question about it. And we have a lot more to weed through because people might not hold something entitled, but that doesn't mean anything.

Billie Tarascio: [00:16:06] Well in Arizona, it could mean something lawyers to say, well, why did this happen? Like what, what made you sign this disclaimer, do you even give up your interest? You know, did you know what you were signing? Did you know what the, what the result would be at that point? And, you know, Arizona is very, like, if you, if you, as an adult, you know, made a decision, you've got to live with the consequences now.

Yeah. So in an intimate partnership, I wouldn't think there's a ton of evidence of intent. 

Michelle Dillino: [00:16:37] Ton. And that's really the main, that's really the main thing, because everybody wants to know what was the intent of the parties and what was the purpose of the relationship. And those two things really go hand in hand.

Like, what did you, what did you intend to do? And a lot of the time too, maybe one party will be on title for the house. And then you have to look at well, why wasn't the other person not on title where they not on title.  Just because number one, they're not married. So there's not a re there's not a requirement to sign a quit claim deed, or were they not entitled because credit was an issue that comes up a lot, comes up in marriages too.

Sometimes when people will sign a quick claim deed to disclaim their interest, but they only did it because it was for financing. So then you get into talking about that. So, yeah, intent is huge.  I recently had a case. I think it was, it was actually last year ended last year and the parties lived together continuously for 10 years, and then they got married, but they were, when they got divorced, they were only married for nine months.

So one party is like, Oh, this is a nine months short-term marriage. This is nothing. The other party's like, yeah, this is 11 years. And so that creates like a huge difference. So then there was a lot and the case went to trial. So there was a lot of deep diving into those 10 years prior about what were they intending to do?

What was their plan? How were they planning? And these people were like, Kind of planning together for retirement. So even though they didn't marry until the end and it really wasn't decided that they would marry until the end, everybody wanted to talk about what they intended to do, including the parties.

So, yeah. 

Billie Tarascio: [00:17:59] Wow okay. Can we talk for a minute about spousal maintenance?   Because spousal maintenance is another area that's just so, so usually different. And so  how does spousal maintenance work in Washington? 

Unknown Speaker: [00:18:11] Great question. So, first of all, you don't get it in committed, intimate relationships- off the table.

Now you think that you don't get, you don't get spousal maintenance and you don't get attorney fees. So if somebody says, Oh, like that 20, if you were talking about that couple of those together, 23 years, Yeah, I would say, Hey, you're going to have our interest in the property rights, whatever is in the community like pot, but you're not going to get spousal maintenance.

And I tell them that right away. And then they send it. They always say, well, what about alimony? And I'm like, well, it's spousal maintenance is the Washington term Brown. He, so you're not getting either. It's the same thing, but in Washington  we don't have, like, we don't have a. We don't have a statutory formula.

It's very discretionary and the court looks at maintenance as a tool. It can use to put the parties and essentially what they think are adjust an equitable position. So if you're in a short-term marriage where you're married, maybe five or six years or less, The court wants to look backwards and say, Hey, we want people back where they started.

Nobody should really be profiting off this marriage. Yeah, you're going to divide the community, but maintenance is usually on a four to one formula. So four years of marriage, one year a maintenance that's typically how it works. And only if there's really a big discrepancy  between how the parties are exiting the marriage, as far as income.

Otherwise maintenance has to happen. And midterm marriages in Washington is where most of the maintenances probably like Arizona, people that are, you know, five, six, seven years, all the way up to, you know, 20 plus years, that's a midterm marriage. And the idea is to. Rehabilitate people and give people support to get back on their feet and then get off of maintenance.

So, and it can be flexible either somewhere from three years to four years to one year of maintenance to one year of marriage. So, I mean, you could have a 20 year marriage and if you were on like a three to one ratio, You're probably looking at like seven years of maintenance, you know, and then maybe it starts out equalizing the parties with income and then it tiers down because that other person's supposed to be getting rehabilitated.

And then in a long-term marriage, up around 25 years, the parties were supposed to be equalized indefinitely for life. So that means looking at their social security benefits and, you know, figuring out where people are going to sit post retirement. What about Arizona? I don't actually know. Is it similar?

Billie Tarascio: [00:20:19] No. 

 As you might guess, Arizona awards are, I mean, they're structured differently. And generally speaking philosophically  Arizona doesn't is not as generous with those spousal awards. So it's so interesting to watch the culture of the state, which is not that far apart. Yeah, I feel so differently about these concepts, these concepts of support and responsibility and all of these things.

So, you know, in Arizona, it's not easy to get.  You have to qualify first, first of all, the maintenance and there's five factors that you can qualify under all those days. And you can probably get beyond the qualification rung. I mean, not everyone, actually. You have to qualify, you qualify either by being unable to meet your own reasonable needs or by making significant contributions to the other party, to the detriment of your own.

Those are essentially the ways 

Michelle Dillino: [00:21:13] like staying home to take care of kids, that kind of a thing. Would that qualify you? 

Billie Tarascio: [00:21:17] Yeah. You got to even do better than that. You, I mean, you have to really. Really like, let's say you, because first of all, that person would have to be working now. Otherwise they get in under, under, I can't meet my own reasonable needs.

Let's say that this person is a nurse now and they stayed home for 20 years, but now they're a nurse and now they're making $60,000 or $70,000. They may have a hard time qualifying because they can meet their own reasonable needs. So now they have to, now we have to look at, did you make a significant financial contribution to your spouse's income?

 And that's not, that's not automatic. Like we have to actually, we have to like, okay, well, I guess it depends on what that spouse is doing. Let's say he's a teacher and he was always a teacher. And like, they're making about the same. Like, it doesn't matter that you stayed home for 20 years. You're not going to qualify.

Unknown Speaker: [00:22:05] Yeah. 

Billie Tarascio: [00:22:06] So once you qualify, then there's 13 factors, you know, that are all the, all the things like lifestyle and ability to pay and all of those things. And did you waste any money. To figure out the amount and duration, but so it's, it's really a two-part analysis, but they don't have this concept of short-term medium long-term.

And then I used to practice in Oregon and Oregon had these three separate  pieces of spousal maintenance. You could have   rehabilitative compensatory or permanent. 

Michelle Dillino: [00:22:39] Compensatory, Whoa, 

Billie Tarascio: [00:22:40] Compensatory which, and those, those three concepts are, are kind of what spousal maintenance is really all about rehabilitative.

Like we get you on your feet. Compensatory. We pay you for what you did, your contributions or permanent. We don't, you know, you've been married a long, long time and you're doing it forever. So  it's, it's a very different construct. You know, all three States are very 

different, right? 

Michelle Dillino: [00:23:08] I think you're right too,just the social attitudes as the different States kind of shape a lot of that .Washington is extremely liberal with maintenance, extremely liberal with property  obviously is extending to unmarried couples. So uh, you know, and it's deeply rooted. And Arizona. I'm not, I'm actually not. I'm surprised about the maintenance being so hard to get. I didn't realize that it's not a given, like in, in Washington, you can basically make an argument that you have a need and you could get temporary maintenance awarded to you in two weeks.

So, and then you could get that maintenance award and then you could ride it out for a year until your case goes to trial. So, I mean, that happens a lot in different cases. It's not that hard to get it and it's completely discretionary. So it sounds like in Arizona, the barriers to entry are a lot, a lot different.

Billie Tarascio: [00:23:53] A lot different, a lot different. I mean, there is no doubt in my mind that in Arizona, the higher earning spouse will almost always walk away. And, you know, continue their life in a much, much better position than, than the lower earning spouse, the lower educated spouse. And so it's it, it's, it's a different version ofBuyer Beware, like, if you are in a traditional marriage and you are depending on this person  and you're not, you know, kind of investing in yourself and your own resources and your own ability to take care of yourself, like you are at a huge risk in Arizona.

Michelle Dillino: [00:24:32] Wow. That's really . I mean, I would still want to tell anybody, Hey, you're in a risky position because it's going to be hard for you to rebuild your life. But I actually tell clients the less moneyed spouse is ironically the spouse with I'd much rather go to mediation with that spouse. We have all the power.

We know the other party is going to pay. It's just a question of how much I always found that you went through your whole marriage feeling like you didn't have any power and you've got no options you do now. So, and the other party that has the money and has the career is usually going, Ooh, how do I mitigate my damages?

So it's a little role reversal because that person who didn't have money and might not have an education, they have all the power now because they can say, okay, this is what I'm gonna need. This is what it's going to take for me to get on my feet. This is, these were totally like this, and you need to bring us like this.

So it's completely the opposite because you're saying, Hey, that person  who's. You know, making the higher income is going to leave the marriage in a better spot. And most of the time in Washington, the person who makes less than has less is going to leave the marriage 

Billie Tarascio: [00:25:34] just crazy. 

Michelle Dillino: [00:25:36] In Washington, the court would say the more moneyed spouse is gonna, they're gonna be able to recover financially from the divorce.

So get to it, make your money and recover. You already can. The other person, Nope. They're going to say, you're going to take a big disproportionate cut of the community. If you've been married quite a while. You might get 60, 40, and you get maintenance. So you're going to leave, taken a bunch of the property and you're going to get maintenance  to get back.

I mean, then you still have to figure out how to take care of yourself after that, but you're going to leave the marriage at least immediately in a way better spot. 

Wow. Crazy. 

Billie Tarascio: [00:26:09] And you know, what would be interesting would be to wonder, does that impact divorce rates at all? 

Michelle Dillino: [00:26:18] I think so. I do well. I D I know, and I, okay.

Nationwide. I don't know. I do know that there are people I have had clients, myself and talk to other attorneys who will say, you know, they put off getting divorced because they knew they were going to have to pay and, or maybe they come for a consultation and I'm like, yeah, you're going to be paying this much.

This is, what's going to look like for you. Cause I don't want to just tell you what you want to hear. And then they're like, Oh, I'll try to make it work. And then they come back a year later yet didn't work. I mean, I think people are hesitant inherently, especially if you have amassed a certain amount of, you know, investments or whatever, realizing that it's basically going to you're, it's going to get gutted.

So you, and you're going to be paying. So a lot of the time, I think. I've experienced. There's more of an effort to make things work. Not that it matters most of the time. Cause if you're already thinking about it, it's probably not going to work.  I also think too, the inequity in, in relationships like that contributes to it, maybe just as much, if not more than, you know, someone feeling like I don't want to write a check every month, but yeah.

Billie Tarascio: [00:27:20] Well we know that that is for sure. True. Where women out are in men. Yes. The divorce rates for women who are in men or for marriages where the man is chronically unemployed. That's almost certainly going to end in divorce at least statistically.  And so it's a, it's a really interesting philosophical question of, you know, does the legal system matter at all or is it just about relationships?

Do you know, break down when they break down and it doesn't really matter what the state does. It. I don't know. 

Michelle Dillino: [00:27:58] That's a really good point when you put it that way, because like I can say, Oh, Hey, I think they're putting it off because they don't want to pay, but it's going to break down eventually. So it does create that total philosophical question of do relationships, just fail because they fail.

Does it matter where you are? I mean, it's definitely more advantageous to be certain places, depending on what situation you're in. But a lot of the time, like sometimes I'll tell people we have a lot of people that moved from California and they'll be like, Oh, They're unmarried and I'll say, yeah, you should have broke up while you were in California.

Cause there's no rights like this there, but the relationship was going to end and he's and somebody might say, Oh, we were going to break up before we moved here. I wish we had, I don't know, but they still broke up. So it didn't really matter where it was. It just changed. Is there outcome drastically?

Billie Tarascio: [00:28:40] Right? Right. Well, and it certainly makes our jobs interesting. We have to work within the construct that the state gives to us. And then we do what we do.  But, you know, the moral of the story here for anyone listening to this very interesting podcast is prenuptial agreements. Postnuptial agreements and cohabitation agreements are your friend, no matter where you're located, you can either by virtue of where you're living.

You are opted into a system that you didn't design for yourself that may not reflect your values. And that may not be good to you or your partner. Or you can design a construct for yourself. That is fair. And I just think, you know, 10 times out of 10, you're better off designing your own construct.

Unknown Speaker: [00:29:28] Absolutely. Because if you don't, if you don't design your own construct and say, these are the terms we want, not whatever our state is, is going to decide. You're going to fight about it later. And when you're not in your, when you're in an emotional space where you're basically angry or desperate or something.

And so you're going to have to try and negotiate that at some point  before. And it's either just going to be before. The laws of the state are applied for you in a trial setting, or you're going to try to negotiate it in mediation later. So it's much better to do it up front when no one's angry too.

And everyone says, Hey, you know, let's get this, let's determine our own construct for what our relationship should look like. If it fails, not leaving it up to someone else and not spending tens of thousands of dollars fighting about it whenever that may happen. Yeah. That's 

Billie Tarascio: [00:30:13] totally true. And it's, it's also like the concept of when you're in negotiating in advance, you don't know if you're going to be the one leaving.

Michelle Dillino: [00:30:21] Right. 

Billie Tarascio: [00:30:21] Or staying. And so it's almost like when your mom would say, you know, take the candy bar and one person cuts it in half. And the other person picks because you don't know which side of the equation you're going to end up on. So you really want to be there. You really want to be looking out for both sides, but instead, you know, the Washington construct will push for the lower income partner to be.

You know, emboldened and emblazoned and walk away with as much as he or she can. And the Arizona construct really sets up the higher earning spouse to simply like wait out and outspend and outmaneuver the lower earning spouse. 

It's just the way it is. 

Michelle Dillino: [00:31:04] Wow. That's crazy. Well, let me ask you really quickly about attorney fees.

So if the lower earning spouse doesn't have, like doesn't have access to the community money, they don't have a joint account or they've been, they're not on it. How do they, can they seek attorney fees? Like the way we could in Washington? 

Billie Tarascio: [00:31:20] Yes. Although temporary or temporary attorney's fees are not awarded all that often. You're, almost better off. I mean, attorney's fees are, are, are more often awarded at the end, which is not helpful if you don't have any on your divorce. But the other thing that you can do is when you've got a liquid fund or any sort of funds, you can ask to split it  in anticipation, which is usually the stronger argument 

Michelle Dillino: [00:31:47] That's good. Wow. And that's totally, again, that's totally different than Washington where we might have, it's a given that you're going to be able to go to temporary order, get a temporary order for attorney fees. Then we could go back and say, Hey, we need more. This is the stuff we need to do.

And they'll have to, the higher earning spouse will have to pay it, but. That makes a lot of sense. If there's something like, when you could say, Hey, let's tap this. 

Billie Tarascio: [00:32:09] It's community property, it should be divided. Why should one spouse control it all? Now

Michelle Dillino: [00:32:16] it's harder to get fees then, like you said, so somebody would actually have to fund their case kind of all the way until the end in some, in some cases where there's not a liquid. Wow. Yeah, that's crazy. 

Billie Tarascio: [00:32:27] Yeah. It really is.  Yeah. Yeah. I think the Arizona construct does encourage settlement, especially like we haven't talked about the kiddos stuff.

But in Arizona, there's a presumption for equal parenting. There's a presumption for joint decision making, and it's not technically a presumption, but it's a personal and  that so tends to really encourage settlement unless we're dealing with something like a relocation where you can't, you can't settle that there is no 50, 50 our relocation, but if we're dealing with two parents that are local, who are good parents, and there's no abuse, there's really no reason to litigate that.

Now is that the same in Washington? 

 Michelle Dillino: [00:33:03] Not exactly.  We have a presumption for joint decision-making we have a presumption, we have physical and legal custody. So we have a presumption that there's going to be joint legal, custody, physical custody. It's not there's no, it movement some in some counties like in Seattle, we're moving more towards seeing more 50, 50 plans, unless there's a reason not to, but that's relatively new and not, and that's not a given.

And then. Really in general up until very recently, it was still like one parent has every other weekend and maybe a mid-week visit.  And even now in some areas it's, it's still, so there's not really a presumption for equal parenting. There is, it's essentially looking at. What is the situation. And, you know, I think more than ever, if we could move towards a 50 50, there would be less re presumption.

There'd be a less reason to litigate as much as there is, because there are some people that will still like die on the sword for every other weekend, even though that's kind of something most places are saying, we're not doing that anymore. Right. 

Billie Tarascio: [00:34:02] Right. So interesting. Thank you so much for your time today.

It's been absolutely fascinating and we will make sure to link in the comments to your website so that if people are in Seattle and they need a family law attorney, they can come see you. 

Michelle Dillino: [00:34:15] Great, this was fun. Thanks a lot. It was very educational. 

Billie Tarascio: [00:34:19] Thank you. 

Alright, take care. Bye.