Is a Divorce the First Course?

Split Decision: Is a Divorce the First Course?

May 2011 Bar Bulletin
By Kim Schnuelle and Lisa DuFour

A potential divorce client comes to you in tears. Four years ago she got married in New Zealand during a whirlwind vacation with her new boyfriend, Stan. Once they returned to Seattle, however, they quickly realized their deep incompatibility and separated with much acrimony.

She thought he went to Memphis and started a country music career. Since the day he left, however, she has done very well for herself financially. She recently purchased a waterfront home on Lake Sam­mam­ish and, through several shrewd investments last year, has amassed a half-million-dollar stock portfolio.

Two days ago, she received an email from Stan reminding her that they never divorced and asking for half of her net worth as “Washington is a community property state.” She is distraught and in your office asking you what she can do to protect her assets.

At divorce, the determination of when a marriage begins and ends can have dramatic effects on the distribution of a couple’s property. In Washington, community property law is triggered during a valid marriage and ends on the date the parties begin living “separate and apart.”

To best serve your potential client, and before immediately filing her divorce, you need to assess the following: 1) whether her marriage was valid to begin with; 2) whether it is possible to annul the marriage; and 3) whether the couple’s physical separation already ended any community claim to property accumulated after the separation.

Is the Marriage Valid at All?

For most people, the moment when they become married is etched into their memories forever. For one couple, it may be the moment they said “I do” at the church altar. For another couple, it may be when Elvis announced them husband and wife. For a third couple, it may be when both parties signed the marriage certificate in the courthouse or they formalized their union within their religion.

As different as the relationships of these couples may be, their marriages are all made valid by the same legal requirements. Although the law in Washington is intentionally left flexible and with strong presumptions in favor of marriage, it does require that certain criteria are met in order for a couple’s marriage to be considered valid under the law.1

Under Washington law, a valid marriage begins when both spouses comply fully with the statutory requirements. These include obtaining and filing a marriage license and solemnizing the marriage before a person with the authority to solemnize marriages.2 Marriages that do not meet all of the statutory requirements may be void (incapable of ratification) or voidable (capable of being ratified).

Marriages are void if they are expressly prohibited by Washington law. Reasons a marriage may be void include: the marriage is bigamous,3 the marriage is incestuous,4 or the parties are under the required statutory age to marry.5

A voidable marriage remains valid unless it is challenged in court and the court determines the marriage is invalid.6 An example of a voidable marriage is one where the spouses filed a false application for marriage.7 In general, if a marriage was validly contracted abroad or in another state, it will be recognized as valid in Washington.8

Accordingly, the prudent attorney would inquire as to the specific facts surrounding the client’s New Zealand ceremony and compare these facts with New Zealand law to determine whether the ceremony resulted in a valid marriage. It should be noted, however, that if a marriage is void under Washington law or contrary to public policy (for example, the marriage is bigamous or incestuous), the marriage will not be recognized as valid in Washington.9

If the party claiming the existence of a marital relationship can show that the parties were cohabitating and held themselves out to the community as husband and wife, there is a presumption that the marriage is valid.10 This presumption is strengthened if there is proof of a formal ceremony.11 Thus Stan could use photos from the couple’s Maori ceremony in Rarotonga to buttress his claim that the marriage was valid.

The presumption may be overcome by “other evidence aided by other counter-presumptions.”12 A counter presumption would be if Stan was still legally married to his first wife.

Even if the parties were not validly married, the court may consider the equitable doctrine of the putative spouse. A putative spouse is one who in good faith believes that the parties are legally married.13 If the court does not find a putative spouse, then depending on the facts, either party could bring a meretricious-relationship petition.14

Can the Marriage Be Annulled?

If your client did get legally married, can she ask for an annulment?15 In Washington, a party seeking to invalidate or annul a marriage must file a petition with the court for a declaration concerning validity. There are many reasons why a person might want to have their marriage declared invalid. For example, some religions restrict one’s ability to remarry after divorce, but allow remarriage if the first marriage was never valid.

It is very difficult to prove that a marriage should be annulled because of the presumption of a valid marriage.16 In addition, Washington requires that a marriage license be obtained and marriage licenses are not available in bars or through the Internet.17 The following are reasons that a person could request that their marriage be declared invalid:

  • One of the parties was not of age or the parties have not ratified their marriage by voluntarily cohabitating after attaining the age of consent;
  • The absence of required parental or court approval and the parties have not ratified their marriage by voluntarily cohabitating after attaining the age of consent;
  • A party’s prior undissolved marriage or registered domestic partnership;
  • Consanguinity;
  • A party lacked capacity to consent to the marriage and the parties have not ratified their marriage by voluntarily cohabitating after attaining capacity to consent;
  • Mental incapacity or the influence of alcohol or other incapacitating substances, and the parties have not ratified their marriage by voluntarily cohabitating after attaining capacity to consent;
  • A party was induced to enter into the marriage by force or duress, or by fraud involving the essentials of marriage, and the parties have not ratified their marriage by voluntarily cohabitating after cessation of the force or duress or discovery of the fraud; or
  • The marriage was entered into some place other than Washington and was void or voidable under the law of the place where the marriage was contracted, and the marriage has not been subsequently validated by the laws of the place of contract or a subsequent domicile of the parties.18

To start a court action to annul a marriage, you must file the Washington pattern form for a petition for declaration concerning validity.19 This action can be started by either spouse, a guardian of an incompetent spouse, or in some cases the child of a spouse, or the legal spouse or domestic partner of one of the parties.20

When Did the Marriage End? The Defunct Marriage Doctrine

If the marriage is valid, it cannot be annulled; and if the parties no longer want to be married, they have to figure out how to end their legal relationship. Valid marriages in Washington can end in only one of three ways: divorce, annulment (declaration of invalidity) or death.21

However, accumulation of community property may end before the marriage itself has ended. Under RCW 26.16.140, the earnings and accumulations of spouses or domestic partners living separate and apart are the separate property of the acquiring spouse. This requires a determination of the date that the parties separated with the intent to end their marriage.

The date of legal separation is a legal conclusion and may be hard to determine, especially if only one spouse wants the divorce and the other hopes for reconciliation. Therefore, if they are living separate and apart, but attending marriage counseling, they are still acquiring community assets.22

Washington courts have held that the statute concerning what would be community property turning into separate property (such as salaries and earnings) applies to marriages that have become “defunct.”23 Under the defunct marriage doctrine, the marital community ends when the spouses have permanently separated. Permanent separation occurs when both spouses have exhibited conduct that allows the trier of fact to determine that neither spouse has “the will to continue the marital relationship” or that the deserted spouse has accepted the “futility of hope for restoration of a normal marital relationship, or just acquiesces in separation.”24

Simply living separately is not sufficient to establish that the marriage is defunct.25 In order to establish that the marriage is defunct, both spouses must display “acquiescence” in the separation.26 Either spouse could file for the divorce at any time, so it is not enough that one spouse wants the marriage to end but does not act on it. A further complication can be added if there is significant economic disparity in their situation, or mental illness, such that one spouse does not have the ability to start the divorce process.27

The effect of a defunct marriage is the end of the marital community and the application of RCW 26.16.140. As a result, once a marriage is defunct, all earnings and accumulations of either spouse are the acquiring spouse’s separate property.28 “It is the fact of community that gives rise to the community property statute. As a result, when there is no ‘community,’ there can be no community property.”29 If you can show that your client’s marriage to Stan was defunct, then any assets she accumulated after the day the marriage ended in this manner will be considered her separate property.

However, if Stan went on a national tour with his country band, told his disappointed groupies that he had a wife, flew to Seattle to see your client in between gigs and stated on his Facebook page that he was married, the actual date of separation might be much harder to determine.

As with many issues in the legal profession, the specific facts of a case are crucial in determining the ultimate result. The prudent family law practitioner thus should have a full grasp of all of the facts and events of a given “divorce” case before jumping in and quickly filing a summons and petition for dissolution of the marriage.

1 See Donofrio v. Donofrio, 167 Wash. 80, 83-84, 8 P.2d 966 (1932).

2 See RCW ch. 26.04 et seq.

3 Prohibited by RCW 26.04.020.

4 Prohibited by RCW 26.04.020.

5 Prohibited by RCW 26.04.010.

6 See In re Estate of Romano, 40 Wn.2d 796, 246 P.2d 501 (1952).

7 See Cushman v. Cushman, 80 Wash. 615, 142 P. 26 (1914).

8 See Tostado v. Tostado, 137 Wn. App. 136, 151 P.3d 1060 (2007) (recognizing a marriage and subsequent divorce obtained in Mexico); see also Kenneth W. Weber, “Validity of Marriages Contracted Elsewhere,” 19 Wash. Prac., Fam. and Community Prop. L. 4.17.

9 Johnson v. Johnson, 57 Wash. 89, 106 P. 500 (1910) (holding marriage between Washington resident first cousins in British Columbia invalid).

10 See Douglas Northwest, Inc. v. Bill O’Brien & Sons Const., Inc., 64 Wn. App. 661, 828 P.2d 565 (1992).

11 See In re Sloan’s Estate, 50 Wash. 86, 96 P. 684 (1908).

12 See In re Grauel, 70 Wn.2d 870, 425 P.2d 644 (1967) (holding that presumption of validity of second marriage was overcome where evidence established that the husband had not obtained a divorce from his first wife).

13 See Poole v. Schrichte, 39 Wn.2d 558, 569, 236 P.2d 1044 (1951) (holding that an “innocent party may be awarded such proportion of the property accumulated as would under all the circumstances be just and equitable”).

14 Meretricious relationships are defined by factors in Pennington v. Pennington, 142 Wn.2d 592, 601, 14 P.3d 764 (2000); Connell v. Francisco, 127 Wn.2d 339, 346, 898 P.2d 831 (1995). This article concerns whether the couple has married, not whether they have a meretricious relationship, so we will not go into that fact situation here.

15 RCW 26.09.040.

16 See Donofrio, 167 Wash. at 83-84.

17 RCW 26.09.040.

18 Id.; see Washington Pattern Form WPF DR 01.0120.

19 Washington Pattern Form WPF DR 01.0120.

20 RCW 26.09.020, .040.

21 Legal separation does not end a marriage, so it is not discussed in this article.

22 Nuss v. Nuss, 65 Wn. App. 334, 344-45, 828 P.2d 627 (1992).

23 RCW 26.16.140.

24 In re Marriage of Short, 125 Wn.2d 865, 871, 890 P.2d 12 (1995).

25 See Seizer v. Sessions, 82 Wn. App. 87, 915 P.2d 553 (1996).

26 See id. (holding that mentally ill wife’s silence was not sufficient to establish that her marriage had become defunct, even though she and her spouse had been separated for 25 years); Togliatti v Robertson, 29 Wn.2d 844, 852, 190 P.2d 575 (1948) (holding marriage defunct when wife obtained an interlocutory decree of divorce, although she never finalized the decree; the spouses lived separate and apart and managed their own financial and business affairs; neither contributed to the support of the other; and the wife had remarried).

27 See Seizer, 82 Wn. App. 87.

28 See Aetna Life Ins. Co. v. Bunt, 110 Wn.2d 368, 372, 754 P.2d 993 (1988).

29 Id. (citing Harry Cross, “The Community Property Law in Washington,” 61 Wash. L. Rev. 13, 33 (1986)).

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