S-1980

AN ACT Relating to written marriage contracts; amending RCW 26.09.010 and 26.09.030; reenacting and amending RCW 26.09.020 and 26.09.150; and adding new sections to chapter 26.09 RCW.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION. Sec. 1. (1) At the time of their application for a marriage license, two persons of the opposite sex shall elect whether to enter into a written marriage contract providing that the marital relationship will not be dissolved except upon a showing by a preponderance of the evidence by one party of the fault of the other party which constitutes grounds for dissolution of the marriage, as specified in the marriage contract. At any time during the marriage, the spouses may enter into a written marriage contract pursuant to the guidelines set forth in section 2 of this act. If requirements for enforceability as defined in section 2 of this act are met, the marriage contract shall be enforced by a court of competent jurisdiction and the marriage of the parties shall not be dissolved or modified except under the terms of the marriage contract. A party to the marriage who believes that the marriage contract has been violated and that the grounds specified in the contract exist for termination of the marriage may institute a legal proceeding to dissolve the marriage, and if the grounds as specified in the contract are proven, that party shall be awarded a decree of dissolution of marriage.

NEW SECTION. Sec. 2. The written marriage contract, to be enforceable, must contain the following agreements between the parties:

(1) The written marriage contract contains the exclusive understanding and agreement between the parties regarding the terms of continuance of their legal marital relationship;

(2)(a) The marriage of the parties shall not be dissolved or otherwise modified except by mutual consent of the parties or upon a showing by a preponderance of the evidence of fault of the other party in a court of competent jurisdiction. Those acts which constitute fault must be set out in the marriage contract and must not be contrary to public policy in order to justify dissolution of the marriage of the parties.

(b) As used in this chapter, "fault" means:

(i) If the consent to the marriage of the party filing the petition for dissolution, legal separation, or declaration concerning validity was obtained by force, duress, or fraud of the other party and the petition is filed (A) within two years after the marriage is solemnized if the force or duress has ceased or (B) within two years after the party filing the petition has knowledge of the fraud. If a petition for declaration of validity is filed, the filing party must not have ratified the marriage by voluntarily cohabiting with the other party after the force or duress has ceased or having knowledge of the fraud;

(ii) If the party filing the petition for dissolution, legal separation, or declaration concerning validity was incapable of consenting to the marriage because of physical or mental incompetence and the petition is filed (A) within two years after the marriage is solemnized if the person filing the petition is still incapable or (B) within two years after the party filing the petition has become competent. If a petition for declaration of validity is filed, the filing party must not have ratified the marriage by voluntarily cohabiting with the other party after becoming competent;

(iii) If the party filing the petition for dissolution, legal separation, or declaration concerning validity was under the age of seventeen years at the time the marriage was solemnized and the petition is filed (A) within two years after the marriage is solemnized or (B) within two years after the party filing the petition reaches the age of seventeen years. If a petition for declaration of validity is filed, the filing party must not have ratified the marriage by voluntarily cohabiting with the other party after reaching the age of seventeen years;

(iv) If a party commits adultery and the petition for dissolution or legal separation is filed within two years after the party filing the petition has knowledge of an act of adultery by the other party;

(v) If a party is impotent, the party filing the petition for dissolution or legal separation did not know at the time of marriage that the other party was or was likely to become impotent, and the petition is filed within two years after the party filing the petition has knowledge of the impotence of the other party;

(vi) If a party is infected with a sexually transmitted disease, including acquired immune deficiency syndrome (AIDS), syphilis, gonorrhea, herpes II, chancroid, and other venereal diseases, the party filing the petition for dissolution or legal separation did not know at the time of marriage that the other party was infected with a disease, the other party did not contract the disease from the filing party, or if the other party became infected with the disease after the marriage, the other party did not contract the disease from the filing party, and the petition is filed within two years after the party filing the petition has knowledge of the infection of the other party;

(vii) If a party is infected with another fatal disease, another contagious, infectious, or communicable disease, or with another disease specifically named in chapters 248-100 and 248-101 WAC, the party filing the petition for dissolution or legal separation did not know at the time of marriage that the other party was infected with such a disease, the other party did not contract the disease from the filing party and the petition is filed within two years after the party filing the petition has knowledge of the infection of the other party;

(viii) If a party has abandoned the relationship or has disappeared for one or more years at the time the party who has been abandoned or left alone files the petition for dissolution or legal separation;

(ix) If a party has an habitual and ongoing addiction to alcohol or drugs and the petition for dissolution or legal separation is filed within two years after the party filing the petition had knowledge of the addiction of the other party;

(x)(A) If the parties have specifically determined in the contract the proportionate share of responsibility for provision of the family and a party is continually neglecting or refusing to make the provision and at the time the injured party files the petition for dissolution or legal separation there is no reasonable expectation that the neglect or refusal will cease, or (B) if the husband is continually neglecting or refusing to make reasonable provision for the basic needs of his family and at the time the wife files the petition for dissolution or legal separation there is no reasonable expectation that the neglect or refusal will cease;

(xi) If a party has been imprisoned in a state, federal or foreign prison for two or more years at the time the petition for dissolution or legal separation is filed and the party filing the petition does so during the term of imprisonment of the other party;

(xii) If a party is continually treating the other party or a minor natural, adopted, step or foster child residing in the home of a party with physical abuse or extreme mental cruelty, or a child with sexual abuse, and at the time the other party files the petition for dissolution or legal separation there is no reasonable expectation that the abuse or cruelty will cease; and

(xiii) If a party is determined to be legally insane and the petition for dissolution or legal separation is filed within two years after the party filing the petition had knowledge of the legal insanity of the other party.

(3) A legal proceeding involving the marriage contract shall be brought in a superior court in the state of Washington. The practice in civil actions in the state of Washington shall govern all proceedings. The state of Washington shall retain jurisdiction over all actions involving the marriage contract and the laws of the state of Washington shall apply. A dissolution of marriage, divorce, legal separation, or declaration concerning validity of the marriage which is not in conformance with the marriage contract and the laws of the state of Washington shall have no force or effect in the state of Washington.

(4) The parties must acknowledge that each recognizes that, in the absence of a written marriage contract, either party to a marriage may petition the court for dissolution of the marriage on the grounds that the marriage is irretrievably broken, and the petition shall be granted as provided in RCW 26.09.030. The parties must state in the written marriage contract that each, by executing the document, gives up that right and agrees to be bound solely by the terms of the written marriage contract to determine the grounds which will enable a party to successfully petition for dissolution of the marriage.

A marriage contract which contains a provision substantially in the following form shall satisfy the requirements of this subsection:

"I understand that a married person in the state of Washington may obtain a dissolution of his or her marriage by filing a petition in superior court claiming that the marriage is "irretrievably broken," and that no grounds for the dissolution of marriage must be proven nor must the fault of either party be shown. This is the meaning of the term "no-fault" dissolution of marriage. By signing this written marriage contract, I voluntarily give up the right to be awarded a dissolution of marriage without proof of grounds, and agree to be bound only by the terms of this written marriage contract. I understand that my marriage may be dissolved only if either my spouse or I commit one of the acts of fault specified in this contract, which will constitute a breach of this contract, or if we both agree to a dissolution of our marriage."

NEW SECTION. Sec. 3. If the jury finds that a violation of the written marriage contract has occurred, the court shall enter a decree of dissolution of marriage. The court shall determine issues of fault, property division, child custody, child visitation, and maintenance requests by either party without submission of those items to the jury.

NEW SECTION. Sec. 4. Sections 1 through 3 of this act are each added to chapter 26.09 RCW.

Sec. 5. RCW 26.09.010 and 1989 c 375 s 1 are each amended to read as follows:

(1) Except as otherwise specifically provided herein, the practice in civil action shall govern all proceedings under this chapter, except that trial by jury is dispensed with in all proceedings other than those in which a violation of a written marriage contract is alleged.

(2) A proceeding for dissolution of marriage, legal separation or a declaration concerning the validity of a marriage shall be entitled "In re the marriage of .......... and ..........." Such proceeding may be filed in the superior court of the county where the petitioner resides.

(3) In cases where there has been no prior proceeding in this state involving the marital status of the parties or support obligations for a minor child, a separate parenting and support proceeding between the parents shall be entitled "In re the parenting and support of ..........."

(4) The initial pleading in all proceedings under this chapter shall be denominated a petition. A responsive pleading shall be denominated a response. Other pleadings, and all pleadings in other matters under this chapter shall be denominated as provided in the civil rules for superior court.

(5) In this chapter, "decree" includes "judgment".

(6) A decree of dissolution, of legal separation, or a declaration concerning the validity of a marriage shall not be awarded to one of the parties, but shall provide that it affects the status previously existing between the parties in the manner decreed.

Sec. 6. RCW 26.09.020 and 1989 1st ex.s. c 9 s 204 and 1989 c 375 s 3 are each reenacted and amended to read as follows:

(1) A petition in a proceeding for dissolution of marriage, legal separation, or for a declaration concerning the validity of a marriage, shall allege the following:

(a) The last known residence of each party;

(b) The date and place of the marriage;

(d) The names, ages, and addresses of any child dependent upon either or both spouses and whether the wife is pregnant;

(e) Any arrangements as to the residential schedule of, decision making for, dispute resolution for, and support of the children and the maintenance of a spouse;

(f) A statement specifying whether there is community or separate property owned by the parties to be disposed of;

(g) The relief sought((.));

(h) The grounds for dissolution of the marriage, if a written marriage contract was executed in accordance with section 1 of this act.

(2) Either or both parties to the marriage may initiate the proceeding.

(3) The petitioner shall complete and file with the petition a certificate under RCW 70.58.200 on the form provided by the department of health.

Sec. 7. RCW 26.09.030 and 1973 1st ex.s. c 157 s 3 are each amended to read as follows:

When a party who is a resident of this state or who is a member of the armed forces and is stationed in this state, petitions for a dissolution of marriage, and alleges that the marriage is irretrievably broken or that the terms of the written marriage contract have been violated, and when ninety days have elapsed since the petition was filed and from the date when service of summons was made upon the respondent or the first publication of summons was made, the court shall proceed as follows:

(1) If the other party joins in the petition ((or)), does not deny that the marriage is irretrievably broken, or in cases involving a written marriage contract, does not deny the alleged fault has occurred, the court shall enter a decree of dissolution.

(2) If the other party alleges that the petitioner was induced to file the petition by fraud, or coercion, the court shall make a finding as to that allegation and, if it so finds shall dismiss the petition.

(3) If the other party denies that the marriage is irretrievably broken or that the written marriage contract was violated the court shall consider all relevant factors, including the circumstances that gave rise to the filing of the petition ((~~and~~)), the prospects for reconciliation, and the written marriage contract between the parties if one was executed, and shall:

(a) Make a finding that the marriage is irretrievably broken and enter a decree of dissolution of the marriage; or

(b) At the request of either party or on its own motion, transfer the cause to the family court, refer them to another counseling service of their choice, and request a report back from the counseling service within sixty days, or continue the matter for not more than sixty days for hearing. If the cause is returned from the family court or at the adjourned hearing, the court shall:

(i) Find that the parties have agreed to reconciliation and dismiss the petition; or

(ii) Find that the parties have not been reconciled, and that either party continues to allege that the marriage is irretrievably broken. When such facts are found, the court shall enter a decree of dissolution of the marriage unless the entry of such a decree is contrary to the written marriage contract.

(4) When violation of a written marriage contract is alleged and the responding party contests the petition or denies the allegation of fault, the court shall submit the issue of whether the marriage contract has been violated to a jury at the request of either party. If the jury finds that a violation of the written marriage contract has occurred, the court shall enter a decree of dissolution of marriage. The court shall determine issues of property division, child custody, child visitation, and maintenance requests by either party without submission of those issues to the jury.

(5) If the petitioner requests the court to decree legal separation in lieu of dissolution, the court shall enter the decree in that form unless the other party objects and petitions for a decree of dissolution or declaration of invalidity or unless the grounds are not established as required by the terms of the written marriage contract.

Sec. 8. RCW 26.09.150 and 1989 1st ex.s. c 9 s 205 and 1989 c 375 s 30 are each reenacted and amended to read as follows:

A decree of dissolution of marriage, legal separation, or declaration of invalidity is final when entered, subject to the right of appeal. An appeal which does not challenge the finding that the marriage is irretrievably broken ((or)), was invalid, or that fault as defined in the written marriage contract was proven, does not delay the finality of the dissolution or declaration of invalidity and either party may remarry pending such an appeal.

No earlier than six months after entry of a decree of legal separation, on motion of either party, the court shall convert the decree of legal separation to a decree of dissolution of marriage. The clerk of court shall complete the certificate as provided for in RCW 70.58.200 on the form provided by the department of health. On or before the tenth day of each month, the clerk of the court shall forward to the state registrar of vital statistics the certificate of each decree of divorce, dissolution of marriage, annulment, or separate maintenance granted during the preceding month.

Upon request of a party whose marriage is dissolved or declared invalid, the court shall order a former name restored or the court may, in its discretion, order a change to another name.

NEW SECTION. Sec. 9. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.