AN ACT Relating to marriage and dissolution; amending RCW 26.09.030; adding a new chapter to Title 26 RCW; and declaring an emergency.

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

NEW SECTION. Sec. 1. This act is necessary for the immediate preservation of the public peace, health, morals, and safety, the support of the state government and its existing public institutions, and shall take effect immediately.

NEW SECTION. Sec. 2. The legislature hereby finds that marriage is a fundamental right older than the Constitution and is essential to the well-being of a society. Marriage not only establishes a relationship of commitment and trust between a man and a woman which is in their best interest, but also provides the basic unit for the procreation and upbringing of children in the best interest of the child. A person has the right to marry and to remain married when both parties mutually vow and covenant to do so under the terms of the marital contract. It is the policy of the state of Washington to encourage, nurture, and protect the institution of marriage and to enforce agreements made between the parties entering the marital relationship regarding the continuance of the relationship.

NEW SECTION. Sec. 3. Persons who are considering marriage, or who are already married, in order to clarify and ensure their expectations, may enter into a written marriage contract providing that the marital relationship will not be dissolved except by mutual consent of the parties or upon a showing by a preponderance of the evidence by one party of fault by the other party. If the marriage contract is entered into before a marriage has occurred, it shall become enforceable when, under the provisions of chapter 26.04 RCW, the marriage is lawful and is duly solemnized. If the marriage contract is entered into after a lawful marriage has been duly solemnized, it shall become enforceable upon execution by the parties. A written marriage contract shall not be enforceable in marriages prohibited under RCW 26.04.020.

NEW SECTION. Sec. 4. If a marriage contract is duly executed under this chapter, the civil status of the parties as being lawfully married shall not be abridged, severed, dissolved, or otherwise affected by any court of competent jurisdiction except under the specific provisions contained in this chapter. The parties to a written marriage contract must agree in the contract that (1) the marriage contract contains the exclusive understanding and agreement between the parties regarding the continuance of their legal marital relationship; (2) the parties have been individually represented by independent counsel of their respective choice, or have been advised to obtain independent counsel and have knowingly and wilfully waived such counsel in the preparation of the contract; that their rights and the legal effect of this agreement have been fully explained to them and that they understand their rights and the terms, provisions, and legal effect of this agreement; (3) the civil status of the parties as being lawfully married shall not be dissolved or otherwise affected except by mutual consent of the parties or upon a showing by a preponderance of the evidence by one party of fault by the other party in a court of competent jurisdiction; (4) the court of original jurisdiction shall be a superior court of the state of Washington; (5) the state of Washington shall retain jurisdiction over the matter; and (6) the laws of the state of Washington shall apply to any action brought by either party to dissolve or affect otherwise the marital status of the parties.

If an enforceable marriage contract exists, a dissolution, divorce, legal separation, or declaration concerning the validity of the marriage obtained in another jurisdiction not in conformance with the laws of the state of Washington shall have no force or effect in this state.

NEW SECTION. Sec. 5. As used in this chapter, "fault" means:

(1) When the consent to the marriage of the party filing the petition for dissolution, legal separation, or declaration concerning validity was obtained by force or 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;

(2) When 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;

(3) When 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;

(4) When 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;

(5) When 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;

(6) When 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 such a disease, the other party did not contract the disease from the filing party, or if the other party became infected with such a 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;

(7) When a party is infected with any other fatal disease, any other contagious, infectious, or communicable disease, or with any other 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;

(8) When 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;

(9) When 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;

(10) (a) When 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 such 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) when 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;

(11) When 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;

(12) When a party is continually treating the other party or any minor natural, adopted, step or foster child residing in the home of a party with physical abuse or extreme mental cruelty, or any such 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

(13) When 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.

NEW SECTION. Sec. 6. In all actions brought under this chapter in which a party shall be granted a dissolution, legal separation, or determination concerning validity, except in actions where the petition for such is based upon the mutual consent of the parties, it shall be for cause distinctly stated in the petition, which cause has been found by the trier of fact to have been proven, and shall be based upon findings of fact and conclusions of law entered into the record at the conclusion of the trial. If the trier of fact finds that either party, or both, is entitled to a decree of dissolution, legal separation, or determination concerning validity, judgment shall be entered accordingly, granting a decree to the party in whose favor the trier of fact decides and making disposition of the properties of the parties having regard to the proportion of fault of the respective parties. The trier of fact shall grant full maintenance to a party not at fault. If both parties are at fault the trier of fact shall grant maintenance to the party with the least fault of an amount in proportion to the other party's proportion of fault. The maintenance granted shall continue until the party receiving maintenance remarries, is voluntarily cohabiting with a person as though married to the person, or until the grant is modified under RCW 26.09.070. In making its determinations, the trier of fact shall include in its considerations all elements and factors established by statute relating to property distribution, indebtedness, provision for children, and spousal maintenance, and with respect to all issues shall consider relative fault of the parties. The trier of fact shall also consider and apply equitable principles including, but not limited to, the equitable defenses of condonation and the clean hands doctrine. This section shall apply to marriages entered into or continued pursuant to a written marriage contract and shall be construed in such manner as is most consistent with other statutory provisions relating to property division, distribution of indebtedness, provision for children, and spousal maintenance. To the extent that any other such provisions are inconsistent herewith, the provisions of this section shall control.

NEW SECTION. Sec. 7. There is a rebuttable presumption that it is in the best interest of the child to award custody of the child to the party not at fault. If both parties are at fault there is a rebuttable presumption that it is in the best interest of the child to award custody of the child to the party least at fault. The trier of fact, with regard to the proportion of marital fault of the respective parties, shall require the noncustodial party and the custodial party to provide child support. The support granted shall continue until the child reaches the age of eighteen years or marries, whichever is earlier, or until the grant is modified under RCW 26.09.070. If the custodial party remarries or is voluntarily cohabiting with a person as though married to the person, the person the party remarries or the person cohabiting with the party shall be required to provide child support.

NEW SECTION. Sec. 8. In any proceeding brought under this chapter for dissolution, legal separation, or determination of validity, or in any proceeding for the enforcement or modification of any interlocutory or final decree of the court related to any proceeding brought under this chapter, the prevailing party shall be awarded costs and reasonable attorneys' fees. The prevailing party, if not at fault, shall be awarded costs and reasonable attorneys' fees. If both parties are at fault, the party with the least fault shall be awarded an amount of costs and reasonable attorneys' fees in proportion to the other party's proportion of fault.

Sec. 9. Section 3, chapter 157, Laws of 1973 1st ex. sess. and RCW 26.09.030 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 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, 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 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 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.

(4) 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.

(5) The court shall not grant a decree of dissolution, legal separation, or declaration concerning validity if the parties have a valid written marriage agreement unless there is a finding of fault or otherwise in accordance with chapter 26.-- RCW (sections 1 through 8 of this 1988 act). A party bringing any action for such a decree who has a valid written marriage contract is entitled to a trial by jury to determine fault and damages, but not custody of any child. If such party prevails on the merits, he or she shall be entitled to all general and specific damages, including mental pain and suffering.

NEW SECTION. Sec. 10. Sections 1 through 8 of this act shall constitute a new chapter in Title 26 RCW.