Divorce

Q    Do both parties have to be residents of Washington, D.C. to file for divorce in the District?
A    No, as long as one party has been a resident of Washington, D.C. for at least six months (assuming the parties have lived apart mutually and voluntarily), a petition can be filed in the District. If the petitioner is not a resident of Washington, D.C., he or she has to be able to prove that the spouse is a resident of Washington, D.C.

Q    My spouse and I are getting divorced, but I cannot afford to get my own place to live yet. Can I still proceed with the divorce?
A    Perhaps you can proceed with the divorce. You must have lived “separate and apart” from your spouse for at least six months if the separation is mutual and voluntary and for a year if it is not mutual and voluntary. Even though you live in the same house, you can meet the “separate and apart” criteria if, for the applicable period of time, you either pursued separate lives, sharing neither bed nor board, or have obtained a court order for the separation.

Q    My spouse and I just do not want to be married to each other any more. Do I have to find some bad conduct by my spouse to file for divorce?
A    No, Washington, D.C. is a no-fault divorce jurisdiction. As long as you meet the applicable six-month or one-year time period for living “separate and apart,” you do not have to show any “bad acts” by your spouse.

Q    My spouse and I agree on every possible issue arising out of our divorce. Can we get a simplified divorce proceeding?
A    You can gather together all of the necessary paperwork and obtain a hearing for an uncontested divorce. The only issue the court would decide is whether there are grounds for issuing the divorce. You will need to have all of your agreements reduced to certain writings for the court.

Q    My spouse and I recently separated, but we have not lived separate and apart for long enough to file for divorce. Is there anything that I can do to gain an order for custody of our children while we wait for the time period for the divorce to pass?
A    Yes, you can file for a legal separation. If you and your spouse currently live separate and apart, if there has been adultery, or if one spouse has been “cruel” to the other spouse, the grounds for a legal separation may exist. The court could issue a child custody order under the legal separation.

Q    In a legal separation, how will the court decide issues of child custody or property distribution?
A    The court would use “fairness to the parties” as its standard for determining child custody, support, or property distribution issues.

Q    Does a legal separation somehow turn into a final divorce?
A    No, but you can enlarge the legal separation into a divorce once the applicable time periods for living separate and apart have taken place. Among other things, an affidavit would have to be filed with the court showing that no reconciliation has taken place.

Q    My spouse and I are getting a divorce, but we cannot agree on any of the distribution of property. How will those property rights be decided?
A    For property that was acquired by a party before the marriage or during the marriage by inheritance, the court distributes that property to the spouse who acquired it. For all other property that was acquired during the marriage, the court distributes the property in a manner that is just, reasonable, and equitable. Factors that the court must consider in making that determination include, among other things, the duration of the marriage; prior marriages; age, health, occupation, amount and source of income; and vocational skills.

Q    Can I take back my maiden name in the divorce action?
A    Yes, your final order can include a name change.

Child Support

Q    Can I obtain child support while I am waiting for a divorce action to be finalized?
A    Yes, temporary child support is available upon filing for it, which will require preparation of a financial statement.

Q    How is the amount of child support determined in Washington, D.C.?
A    Washington, D.C. uses a support guideline based on the income of the parent who is paying the child support. A financial statement frequently must be furnished to the court.

Q    My child support order is old and was based on circumstances that were much different than my or my former spouse’s current circumstances. Can the support order be changed?
A    Yes, the child support order can be modified if there are material and substantial changes since the matter was last before the court. If the support order was a private agreement that was adopted by a court order, the changes must have been unforeseeable at the time of the agreement. Emancipation of a child is a material and substantial change that will justify modifying a child support order. In Washington, D.C., emancipation may not occur until the child turns 21.

Q    Even though I am not a resident of Washington, D.C., can I get a support order for my child’s parent who does live in Washington, D.C.?
A    Yes, Washington, D.C. does have jurisdiction to establish a support order if the individual seeking the support resides in another state and the person from whom support is sought resides in the District.

Q    Is there a simple way that my child’s other parent can be made to pay support when we live in different jurisdictions?
A    Frequently, interstate wage withholding can be arranged if you know the employer of the person who was ordered to pay or from whom support payments will be sought.

Q    Should I try to obtain one support order to cover all of my children, or should I get an order that establishes a certain amount of support for each child?
A    An order that covers more than one child is a unitary award. It is not reduced automatically at emancipation of a child. An order that covers each of your children is a per-child award. It is reduced automatically at the child’s emancipation. Which type of support you seek depends on your circumstances and what your child’s other parent may be willing to accept as an agreement. 

Q    My child’s father and I were never married, and he has always refused to pay any child support. Is there any way that I can get support money, after paternity is established, that he should have been paying all along?
A    For children born out of wedlock, there is a presumption in Washington, D.C. that retroactive child support can be awarded back to the date of the child’s birth. The petitioner must provide proof of reasonable expenses that will be compensated by the retroactive payments. Establishing paternity is the key to gaining the retroactive support payments.

Child Custody

Q    Can I obtain sole custody of my children as part of my divorce action?
A    The standard that the court follows in determining all child custody matters in Washington, D.C. is the best interest of the child. The D.C. statutes create a rebuttable presumption that joint custody is in the best interest of the child and should be awarded in a divorce.

Q    Is there any way to overcome the presumption in Washington, D.C. that joint custody of a child should be awarded to both parents?
A    Yes, the presumption in favor of joint child custody can be overcome in cases in which the following have occurred: domestic violence, child abuse or neglect, or parental kidnapping. Other factors might also help to overcome the presumption in favor of joint child custody, but no single factor will overcome the presumption on its own. In cases where the presumption in favor of joint child custody is overcome, the court may award sole legal custody to one parent.

Q    My child’s other parent and I were never married—can I have sole child custody myself?
A    It appears that the presumption in favor of joint child custody would be applied to non-married parents in child custody disputes just as it would be applied to married parents. As discussed above, the presumption in favor of joint child custody could be overcome.

Q    How will the court in Washington, D.C. determine what the best interest of a child will be in a child custody dispute?
A    The relevant factors for assessing the best interest of the child include matters such as the following: the wishes of the child; the wishes of the child’s parents; interaction of the child with parents, siblings, and other individuals with whom the child has an emotional or psychological connection; the child’s adjustment to home, school, and community; the mental and physical health of all individuals involved in the custody matter; capacity of the parents to communicate and reach shared decisions regarding the child’s welfare; willingness of the parents to share the child’s custody; and prior involvement of the parent in the child’s life. Other factors will also be considered, but no one factor on its own will determine the best interest of the child in a child custody proceeding.

Q    If I cannot agree with my child’s other parent on any matter in connection with child custody, is there some way that an unbiased assessment of my child’s best interest will be furnished to the court?
A    In Washington, D.C., a guardian ad litem could be appointed by the court to represent the child’s interests, and the parties would have to pay for the guardian ad litem. The guardian ad litem’s only mission would be to see that the best interest of the child is achieved in the child custody order.

Q    Can a child custody order ever be changed?
A    The standard that the court follows in Washington, D.C is whether there has been a substantial and material change in circumstances and that such change is in the best interest of the child. If that standard is met, the court may issue a modified child custody order.

Q    Can a child custody order be obtained quickly in an emergency?
A    Yes, an emergency child custody order can be obtained if there is an imminent threat that an adverse party will flee from Washington, D.C. with the child. Notice to the other party or the party’s attorney must be provided unless the notice either cannot be given in time to prevent the act or would defeat the purpose of the emergency order. A hearing on the petition for the emergency order will be held on the day that the petition is filed. If the child custody order has merit, it will be granted on that same day.

Q    I agreed to allow someone else to assume child custody of my child several years ago—are my rights as a parent cut off forever?
A    No, in cases in which a non-parent is granted custody of a child, the parents’ legal rights are not terminated. You could try to regain child custody by showing that circumstances have undergone a material and substantial change, and that the change of child custody is in the best interest of the child.

Paternity

Q    How can I establish that the father of my child really is the father?
A    A paternity suit can be filed in the Family Court in Washington, D.C. to establish conclusively that a particular male is the biological father of a child. After paternity is established, child support from the father may be sought.

Q    When can I file a suit in Washington, D.C. to establish paternity on behalf of my child?
A    The suit may be filed any time from the fourth month of the mother’s pregnancy to the day that the child turns 21 years old.

Q    My child’s father says that he does not think that he is the father, but he is willing to be tested—how can I get an acceptable test done?
A    The alleged father may consent to genetic testing by a qualified laboratory. Once the laboratory provides its test results, the results could be entered in the paternity case.

Q    My child’s father refuses to undergo a paternity test. Is there any way that I can get one done on him?
A    If the alleged father does not consent to testing, the court may order such testing upon motion of the complainant. Sufficient evidence would have to persuade the court that the testing is necessary on the alleged father.

Q    My child’s father and I were never married, and he has always refused to pay any child support. Is there any way that I can get support money, after paternity is established, that he should have been paying all along?
A    For children born out of wedlock, there is a presumption in Washington, D.C. that retroactive child support can be awarded going back to the date of the child’s birth. The petitioner must provide proof of reasonable expenses that will be compensated by the retroactive payments. Establishing paternity is the key to gaining the retroactive support payments.

Domestic Violence

Q    I need to get a restraint order against a person with whom I am living. Can I do it?
A    Often a restraint order, called a Civil Protection Order (CPO) in Washington, D.C., can be issued against a person with whom you are not married or with whom you are married. Issuance of the CPO is based on a blood relationship, marriage, legal custody of a child, having a child in common, sharing a residence currently or at any time in the past, or maintaining or having maintained a romantic relationship.

Q    What will I have to show the court in Washington, D.C. to get a CPO?
A    You will have to show that an intrafamily offense occurred. An intrafamily offense is conduct that would be a criminal offense in Washington, D.C. or under federal statutes. Emotional abuse alone is not sufficient to be regarded as an intrafamily offense. Typically, the offense is assault or battery. The petitioner must prove that he or she has an intrafamily relationship with the respondent (that is, one of the relationships described above), and that there is good cause to believe that the respondent committed or threatened to commit an intrafamily offense.

Q    What good will a CPO do me if I do get one?
A    Under a CPO, the respondent may be ordered not to assault, threaten, harass, stalk, or physically abuse the petitioner or the petitioner’s children. The respondent may also be prohibited from contacting the petitioner in any manner, even through a third party. The respondent may be ordered to stay away from the petitioner, the persons in the petitioner’s household, the petitioner’s home, school or workplace, or other places frequented by the petitioner. For those persons who are living with the person against whom the CPO is issued, the respondent can be ordered to vacate the home of the petitioner if the home is marital property, jointly owned leased or rented by the parties, owned leased or rented by the petitioner individually, or jointly owned, leased, or rented by the petitioner and a third person.

Q    Can I get protection in connection with my children under a Washington, D.C. restraint order?
A    Yes, a petitioner can obtain temporary child custody, child support, spousal support, and a visitation order under a CPO in Washington, D.C.

Q    How long will a CPO be in effect in Washington, D.C.?
A    CPOs are in effect for a year.

Q    Can a CPO be changed after it is issued?
A    Yes, modifications of a CPO can be obtained. Upon written motion of any party to the original proceeding, the court may extend, rescind, or modify a CPO for good cause shown. To execute any of these actions, the Court must consider the entire history of the relationship and conduct of the parties.

Q    Can I get immediate protection under a CPO?
A    Immediate protection can be obtained through an emergency Temporary Protection Order (TPO). The petitioner must demonstrate that the “safety or welfare of a family member is immediately endangered.” Once the TPO is granted, protective orders are issued. A hearing is scheduled within 14 days to determine whether a CPO will be issued.

Q    What fee do I have to pay the court to obtain a CPO?
A    No filing fee is required for a petition for a CPO.

Attorney Fees

Q    Can attorney fees that will be paid by the opposing party be awarded in family law cases?
A    Attorney fees generally can be awarded in Washington, D.C. in certain domestic relations cases. Those cases include divorce, annulment, alimony or child support arrearages, actions to obtain spousal or child support, paternity actions that include a claim for support, and actions in which a person seeks to enforce a wage withholding order against an employer who has not withheld as ordered. 

Q    What will the court consider in determining whether to award attorney fees?
A    Matters that the Court will consider in determining whether to award fees to the prevailing party include the earning capacity of both spouses, the spouse’s ability to pay, the difficulty of the case, and the quality and nature of the services performed. 

Q    How much of my attorney fees will the court allow me to recover?
A    In determining the amount to be awarded, the court in Washington, D.C. considers whether the amount of recovery bears a reasonable relationship to the amount in controversy. It will require a detailed statement of services and hours spent on those services.

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