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September 2015 Archives

Decree of Validity for a Marriage Occurring Prior to Divorce in Another Marriage

  • This Blog discusses the law and procedure to obtain a court order declaring the validity of a marriage that was mistakenly entered into prior to the termination of another marriage. A Decree of Validity of Marriage may resolve immigration issues that could arise in a deportation proceeding.

  • The Statute: RCW 26.09.040

  • RCW 26.09.040 provides "(2) If the validity of a marriage...is denied or questioned at any time, either or both parties to the marriage ...may petition the court for a judicial determination of the validity of such marriage.... ...(4) After hearing the evidence concerning the validity of a marriage..., if both parties to the alleged marriage...are still living the court: (a) If it finds the marriage...to be valid, shall enter a decree of validity; (b) If it finds that: (i) The marriage...should not have been contracted because of ...a prior undissolved marriage of one or both of the parties...that has not been terminated or dissolved....shall declare the marriage...invalid as of the date it was purportedly contracted; (ii) The marriage...should not have been contracted because of any reason other than those above, shall upon motion of a party, order any action which may be appropriate to complete or to correct the record and enter a decree declaring such marriage...to be valid for all purposes from the date upon which it was purportedly contracted...."
  • What Happens if Two People Get Married Before One of Them Gets Divorced?

    What happens if two people mistakenly go through a marriage ceremony under the mistaken belief that a divorce for one of the parties has become final, when it has not? If that person's divorce occurs later than the second wedding ceremony, can they ask the court to declare the second marriage valid? In most cases, the answer is yes; a Decree of Validity should be granted pursuant to RCW 26.09.040 (4)(b)(ii). RCW 26.09.040(4)(b)(i) does not apply if the first marriage was subsequently "terminated and dissolved." RCW 26.09.040 (4)(a)(ii) does apply, and a decree of validity should be granted, because the reasons for invalidity listed in RCW 26.09.040(4)(i) do not include a prior marriage which was terminated after the second marriage. The Court should enter a decree of validity declaring the second marriage to be valid.
  • When and How Can the Petition Be Heard?

    The State of Washington has a governmental interest in validating the marital status of its citizens. See, eg, H. Clark, The Law of Domestic Relations in the United States, sections 3.1 and 3.2 (second ed. 1987). A proceeding under RCW 26.09.040 may be filed even if only one of the spouses is a Washington resident. See RCW 26.09.040(1); Cf. Sasse v. Sasse, 41 Wn.2d 363, 249 P.2d 380 (1952). The other spouse can file a Joinder to the Petition. "A 90 day cooling off period is not applicable to a proceeding concerning the validity of a marriage." See L. Rieke, "The Dissolution Act of 1973: From Status to Contact?", 49 Wash. L. Rev. 375, 392 (1974); Saville v. Saville, 44 Wn.2d 793, 793-94, 271 P.2d 432, 433 (1954); see also State v. Denton, 97 Wn. App. 267, 271, 983 P.2d 693 (1999), quoting Feehley v. Feehley, 129 Md. 565, 99 A. 663 (1916). For that reason, it would appear that the parties can have the Ex Parte department hear their joint Motion for Decree of Validity immediately after filing the Petition.
  • How is the Hearing Conducted?

    Since RCW 26.09.040(4) indicates that the Court should entered its order "After hearing the evidence concerning the validity of a marriage...," the Court should take brief testimony from the parties. The hearing on this issue is subject to the normal rules of evidence. ER 1101 provides that the rules of evidence apply to virtually all civil proceedings, including the validity of a marriage.
  • What Evidence Is Needed?

    The strong public policy in favor of marriage raises a presumption in favor of validity. See, e.g., Davis v. Davis, 3 Wn.2d 448, 453-55, 101 P.2d 313, 315-16 (1940). To support this strong public policy, the Court must utilize all available presumptions in favor of validity. Thomas v. Thomas, 53 Wash. 297, 101 P. 865 (1909); Goldwater v. Burnside, 22 Wash. 215, 60 P. 409 (1900). These presumptions make it possible to validate a marriage, even when witnesses are unavailable and documents have been misplaced. See H. Clark, supra, section 3.7 (second edition 1987); and Potter v. Potter, 45 Wash. 401, 404, 88 P. 625, 626 (1907). The solemnization of a marriage (evidenced by the Marriage Certificate and the Marriage License) gives rise to a presumption that all legal requisites for the marriage existed. See, e.g., In re Slone's Estate, 50 Wash. 86, 89, 96 P. 684, 685 (1908).
  • Disclaimer

    Please keep in mind that although my Blogs are often informative, they are no substitute for legal advice from an attorney you have retained for consultation or representation. There are always exceptions to the general rules.
  • Relocation: Relocating with the Children

    1. Summary:

      This Legal Guide summarizes Washington State's Relocation Act (RCW 26.09.430 through 26.09.480). If the custodial parent plans to move, that person has to give prior notice of the move to the noncustodial parent (or anyone else with custodial or visitation rights). If there is no objection within 30 days, the move will be allowed. If an objection is filed with the court, the court will schedule an evidentiary hearing to decide if the move will be allowed.
    2. Notice of a move outside school district:

      If the move is outside the child's school district, the custodial parent must give notice to the noncustodial parent by personal service or by mail requiring a return receipt. This notice must be at least 60 days before the intended move. If the custodial parent could not have known about the move in time to give 60 days' notice, that person must give notice within 5 days after learning of the move. The notice must contain the information required in RCW 26.09.440 [use the blank form DRPSCU 07.0500, Notice of Intended Relocation of a Child].
    3. Notice of a move within school district:

      If the move is within the same school district, the custodial parent must provide actual notice by any reasonable means. The noncustodial parent in that event may not object to the move, but may ask for modification under RCW 26.09.260.
    4. Delay of notice to avoid harm:

      Notice may be delayed for 21 days if the custodial parent is entering a domestic violence shelter, or is moving to avoid a clear, immediate and unreasonable risk to health and safety. If information is protected under a court order, or the address confidentiality program, it may be withheld from the notice. In addition, the custodial parent may ask the court to waive any notice requirements that may endanger the health and safety of a person or a child.
    5. Punishment for failure to give notice of a move:

      Failure of the custodial parent to give the required notice before relocating with a child may be grounds for the court to impose a fine or other sanctions, including contempt. There are many details in the statute, so it is best to have an attorney help with the notice so that the move is not later successfully attacked in court. If proper notice is not given, the court may order that the child (and thus the relocating parent) must return to the original county before the move until a trial with testimony can be held.
    6. Relocation Is Normally Allowed:

      If the noncustodial parent does not file an objection within 30 days after service of the notice, the relocation will be permitted, and the custodial parent's proposal for a revised parenting plan will be adopted. If an objection is timely filed, a hearing will be scheduled to take testimony on the proposed move and objections to it. The statute and cases say that the move will be allowed if the custodial parent meets the criteria for the 11 statutory factors considered by the court (see Bruce Clement's AVVO Legal Guide on "Relocation With the Children - The 11 Statutory Factors"). Reasons which are often found to be sufficient include: A new job or employment opportunity; an important college course; sick parents who need care; a spouse who has to move due to a job change or military reassignment. Reasons which are often not found to be sufficient include: moving to stay with a boyfriend/girlfriend; attempts to cut off visitation; better grade school; nicer house.
    7. How to object to relocation:

      A person entitled to court ordered visitation can file an objection to the child's relocation whether or not he or she received proper notice. This objection may be filed by using the mandatory form WPF DRPSCU 07.0700, (Objection to Relocation/Petition for Modification of Parenting Plan/Residential Schedule). The objection must be filed in court, and served, within 30 days on all persons entitled to time with the child. There are many details to the statute, so it is best to consult with an attorney to make sure your objections are properly made.
    8. When relocation is prohibited:

      Relocation can be prohibited by court order. In addition, the custodial parent cannot move the child during the time for objection unless: (a) the delayed notice provisions apply; or (b) a court order allows the move. If the objecting person schedules a hearing for a date within 15 days of timely service of the objection, the custodial parent cannot move the child before the hearing unless there is a clear, immediate and unreasonable risk to the health or safety of a person or child.
    9. Disclaimer

      DISCLAIMER: (C) Bruce Clement This Blog is provided for general educational purposes only. By using or participating in this site you agree and understand that there is no attorney client relationship between you and the attorney author. The law changes frequently, and varies from jurisdiction to jurisdiction. The information provided in this Blog is general in nature and may not apply to the factual circumstances in your situation. The applicable law may be different in the State or States where the relevant facts occurred. For a definitive solution to your situation you should seek legal advice from an attorney who (1) is licensed to practice in the state which has jurisdiction; (2) has experience in the area of law you are asking about, and (3) has been retained as your attorney for representation or consultation.

    Additional resources provided by the author

    RCW 26.09.430 through 26.09.480.
    Bruce Clement's Blog on "Relocation With the Children - The 11 Statutory Factors"

    Stalking as a Form of Domestic Violence in Washington State

    Domestic violence is defined in Washington State to include any form of violence, words or actions that convey a threat, blocking, stalking and cyberstalking. This Legal Guide discusses the concept of stalking as a form of domestic violence. Other forms of DV are discussed in other Legal Guides.

    There is No Right to a Jury Trial in Termination of Parental Rights Cases

  • The Constitutional Right to a Jury Trial Does Not Apply to All Cases

    Most people know that there is a federal constitutional right to a jury trial. This right universally applies to all criminal cases, and most civil cases like personal injury, contract disputes, and so forth. However, the appellate courts (including the US Supreme Court) have ruled that the general federal right to a trial by one's peers was not intended by the founders to apply to certain cases. Even in ancient English common law, from which our legal system derived, there were many types of cases where the right to a jury trial did not exist.
  • Termination Cases Are an Exception to the General Rule

    Among the modern exceptions to the general rule requiring juries are cases involving the termination of parental rights by the state due to abuse or neglect of a child. There are some states where a right to trial by jury in termination cases is granted by state statute or a state constitutional provision. But the US Supreme Court has held that there is no federal constitutional right to a jury trial in cases brought by the state to terminate parental rights due to abuse or neglect. In Washington State and most other states, there is no right to a jury trial when the state files a case to terminatte parental rights due to abuse or neglect of a child.
  • There is No Right to a Jury Trial in Termination Cases

    There is a good Wikipedia article online captioned "Jury Trial". In that article the following quote appears: "In most US states, there is no right to a jury trial in family law actions not involving a termination of parental rights, such as divorce and custody modifications." Like it or not, that's the law in most states.
  • The Seventh Amendment: Federal Right to Jury Trial

    The 7th Amendment to the US Constitution provides: "In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law." "The Constitution of the United States of America". Gpoaccess.gov. http://www.gpoaccess.gov/constitution/html/ amdt7.html. "[The 7th Amendment] is a most important and valuable amendment; and places upon the high ground of constitutional right the inestimable privilege of a trial by jury in civil cases, a privilege scarcely inferior to that in criminal cases, which is conceded by all to be essential to political and civil liberty." Joseph Story, Commentaries on the Constitution of the United States.
  • The Right to a Jury Trial is Not Guaranteed in All Cases in the US

    The 7th Amendment does not guarantee the right to a jury trial in all cases. Instead, it attempts to preserve the right to jury trial which existed in 1791 in England at common law. In England in 1791, civil actions were divided into actions "at law" (which had a right to a jury trial) and actions in equity (which did not). Federal Rules of Civil Procedure Rule 2 says "[t]here is one form of action - the civil action[,]" which abolishes the at-law/equity distinction. Nevertheless it still remains true in America that in cases which would have been "at law" in 1791, there is a right to a jury; in cases that would have been "in equity" in 1791, there is no right to a jury.
  • Which Cases are "At Law", and which are "Cases in Equity"?

    To determine whether any given case will be considered "at law" or in equity in America today, one must first determine whether such an action was considered "legal" or "equitable" in England in 1791. English suits for monetary damages were purely a legal remedy, and thus entitled to a jury. Non-monetary remedies such as injunctions, mandamus, rescission, and specific performance were all equitable remedies, and thus tried by a judge, not a jury. In Beacon Theaters v. Westover, 359 U.S. 500 (1959), the U.S. Supreme Court discussed the right to a jury, holding that when both equitable and legal claims are brought, the right to a jury trial still exists for the legal claim.
  • Which State Cases Are Tried to Juries?

    Although there is no United States constitutional right under the 7th Amendment to a jury trial in state courts, every state except Louisiana permits jury trials in civil cases in state court on the same basis as allowed in federal court under the 7th Amendment. The federal constitutional right to a jury trial in state civil cases does extend to parties when a state court is enforcing a federally created right, of which the right to trial by jury is a substantial part. "CRS/LII Annotated Constitution Seventh Amendment". Law.cornell.edu.http://www.law.cornell.edu/anncon/html/ amdt7frag1_user.html. But as a general rule, equity cases in the US are tried to judges, not juries.
  • Disclaimer

    This Blog is provided for general educational purposes only. By using or participating in this site you agree and understand that there is no attorney client relationship between you and the attorney who wrote this Blog, and no attorney-client confidentiality. The law changes frequently, and varies from jurisdiction to jurisdiction. The information provided in this Guide is general in nature and may not apply to the factual circumstances described in your question. The applicable law and the appropriate advice may be different in the State or States where the relevant facts occurred. For definitive legal advice you should independently consult an attorney who (1) is licensed to practice in the state which has jurisdiction; (2) has experience in the area of law you are asking about, and (3) has been retained as your attorney for representation or consultation. Your comment to this Legal Guide may be used for promotional or educational purposes.(C) Bruce Clement