Marriage Defenders

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Washington State Objection to Initial Service of Divorce 1999 Case N

Opening Challenge

The following three statutes are unconstitutional:

I. Statutory Authority

1. Washington law provides that a court of record within its respective jurisdiction has the power to declare rights, status and other relations whether or not further relief is or could be claimed. An action or proceeding shall not be open to objection on the ground that a declaratory judgment or decree is prayed for. the declaration may be either affirmative or negative in form and effect; and such declaration shall have the force and effect of a final judgment or decree. RCWA ' 7.24.010 (West 1992).

2. The Respondent is a person whose rights, status or other legal relation is affected by the following statutes to be examined. The Respondent is asking the Court to determine her rights and status under certain statutes to be examined in turn. RCWA ' 7.24.020 (West 1992).

3. The Respondent will be asking the Court to declare that certain statutes are unconstitutional. Therefore, since the proceeding will involve the validity of a statute alleged to be unconstitutional, the Respondent will serve the Attorney General and will be entitled to be heard in the matter. RCWA ' 7.24.110 (West 1992).

4. The Respondent asks the Court to hold a hearing on the following matters, and issue a declaration in the form of a final, appealable judgment or decree to the requests for declaratory judgment enumerated below. II. Rule 4.1, Washington Rules of Civil Procedure, Is Unconstitutional

5. The Respondent asks the Court to declare that Rule 4.1 of the Washington Rules of Civil Procedure is unconstitutional for the following reasons:

6. Background: Rule 4.1 is the rule for process in domestic relations actions. The rule defines the summons, and gives the content and form of the summons. The rule applies only to actions authorized by RCW 26.09, Dissolution of Marriage -- Legal Separation. The rule was adopted effective September 1, 1978, and amended twice, in 1980 and 1989.

7. Rule 4.1 differs significantly from Rule 4. Process. Rule 4 states that the summons will be in a certain form. That form labels the responding party as the Defendant, implying that a person who is being sued will be expected to DEFEND against the suit. The Defendant is informed that a lawsuit has been started against you. The summons also states, A[I]n order to defend against this lawsuit, you must respond to the complaint by stating your defense in writing. There is no suggestion that the parties sign a joint petition. In other words, the purpose of the summons is to inform the Defendant that he is being sued and he must present his defenses or suffer a default judgment against him.

8. In contrast, Rule 4.1 suggests that the parties can agree to a divorce and no summons would be necessary. CR 4.1(a)

9. In addition, the notice is to the Respondent, not the Defendant, implying that there is nothing to defend and that nothing is threatened by the lawsuit. The first paragraph of the text states that the petitioner has started an action, not a lawsuit. The action is not against you, but is simply a request to the court to dissolve your marriage.

10. The second paragraph does not provide information regarding methods to defend against the lawsuit. Instead, the second paragraph states that a response must be made within a certain time. The Respondent is never informed that a response to the petition could contain Ayour defense as the Defendant is informed in the summons under Rule 4.

11. The strong implication is that the Respondent is not a Defendant, that the action is not a lawsuit, and that the Respondent cannot defend against the action. A. Rule 4.1 Violates Equal Protection

12. . Marriage is a civil contract which may be entered into by (certain) persons. RWCA ' 26.04.010 (West 1992). The contract requires the consent of the parties. Petition of Peterson, E.D. Wash. 1940, 33 F. Supp. 615. As a contract, it is susceptible to termination upon statutory grounds. Maynard v. Hill, 125 U.S. 190, 8 S. Ct. 723, 31 L.Ed. 654 (1888). Marriage is a social relation subject to the state's police power. Loving v. Virginia, 87 S. Ct. 1817, 1821 (1967). State governments possess only limited power to regulate marriage and must do so in light of the commands of the Fourteenth Amendment. Id. The equal protection clause requires the consideration of whether the classifications drawn by any statute constitute an arbitrary and invidious discrimination. Id., at 1823.

14. Marriage is one of the Abasic civil rights or man, fundamental to our very existence and survival. Id., at 1824, citing Skinner v. State of Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1110, 1113, 86 L.Ed. 1655 (1942). The right to marry is a Afundamental right, and a classification which significantly interferes with the exercise of that right is subject to the Astrict scrutiny analysis under the Equal Protection Clause. Zablocki v. Redhail, 98 S.Ct. 673, 679. To justify a law which significantly interferes with the right to marry, the government must provide sufficiently important state interests in the law and the law must be closely tailored to effectuate only those interests. Id., at 682. In this case a rule of civil procedure is being examined.

15. Rules of law and procedure define the various rights and duties of members of society, enabling them to govern their affairs and definitely settle their differences in an orderly, predictable manner. Boddie v. Connecticut, 91 S.Ct. 780, 784 (1971). AAmerican society, of course, bottoms its systematic definition of individual rights and duties, as well as its machinery for dispute settlement. Id. The state has a monopoly over techniques for dispute resolution. id. There is no private method to resolve disputes involving marriage. Id. Private citizens may not covenant for or dissolve marriages without state approval. Id. No two consenting adults may divorce and mutually liberate themselves from the contracts of the legal obligations that go with marriage, and more fundamentally the prohibition against remarriage, without invoking the State's judicial machinery. Id.

16. In this case the Petitioner must comply with the procedures put in place by the state government in order to obtain a divorce. The Petitioner is provided with a special set of procedural rules which must be used. The Respondent, likewise, is trapped with a set of rules which limit her ability to defend herself. The question before the Court is whether Rule 4.1 provides equal protection of the law to the Respondent.

17. We must assume that the government will argue that the central premise of Rule 4.1 is that there is no defense to a no-fault divorce. The government must say if there is no defense to a no-fault divorce, the Respondent should not be lulled into thinking that she could do anything to defend her marriage. Therefore, the rules must reflect reality and provide the Petitioner with an advantage to enable him to obtain his divorce without bothering with any defenses the Respondent may interpose.

18. There is no reason for the government to provide such an advantage to the Petitioner. In this case the state government has taken sides, and chosen the winner in advance, and given him a rule of procedure which tilts the playing field in his favor from the very beginning. The summons may as well say, Abandon hope, all who enter this legal action. You cannot win. You will be divorced.

19. All other civil defendants are apprised of their right to defend themselves in court. There is no reason why a civil litigant defending her marriage should not be informed of her right to defend her marriage in the courtroom. Rule 4.1 prevents the Respondent from entertaining any hope that she is able to defend her marriage, and the rule therefore violates equal protection of the law. B. Rule 4.1 Violates Due Process of Law

20. The fundamental rule of due process of law is that Apersons forced to settle their claims of right and duty through the judicial process must be given a meaningful opportunity to be heard. Early in our jurisprudence, this Court voiced the doctrine that >[w]herever one is assailed in his person or his property, there he may defend.' Boddie v. Connecticut, 91 S.Ct. 780, 785 (1971). ADue process of law signifies a right to be heard in one's defense. Id., at 786. AThere can be no doubt that at a minimum (the abstract word of the due process clause) require that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case. Id. An individual must be given a hearing before he is deprived of any significant property interest. Id. A state must afford to all individuals a meaningful opportunity to be heard if it is to fulfill the promise of the Due Process Clause. Id., at 787.

21. The right to a meaningful opportunity to be heard must be protected against denial by particular laws that operate to jeopardize it for particular individuals. Id. The state owes to each individual the process which, in light of the values of a free society, can be characterized as due. Id. A state law which had the practical effect of refusing to admit people who wanted a divorce from obtaining one was the equivalent of denying them an opportunity to be heard upon their claimed right to a dissolution of their marriages, and was a denial of due process. Id. The persons seeking a divorce had to prove their contention that their marriages were untenable, but it was a denial of due process to have a fee which was beyond their financial means. Id., at 788. The operation of the statute operated to cut off entirely access to the courts by the appellants. Id., at n. 9.

22. Rule 4.1 operates to cut off the Respondent's right to defend against the allegations of the Petitioner. Other litigants are informed that they must defend themselves against the lawsuit. The Respondent is simply informed that an action has been started to dissolve her marriage. The minimum due process requires is notice and an opportunity to be heard. Notice in this case is false, in that the notice states an Aaction has been started. The truth is that the Aaction is a Alawsuit, designed to terminate the marriage. The opportunity to be heard is not offered at all, and the Respondent is not advised to prepare a defense. It is assumed that a defense is not possible. The constitution requires the availability of a defense; therefore, that assumption is false as well. C. Rule 4.1 Violates Established Case Law of Marriage

23. Rule 4.1(a) states, ANo summons is necessary if both spouses sign a joint petition or if the respondent files a written joinder in the proceeding. This simply states that the parties can agree to a divorce. This proposition is false as a matter of law, and the rule of procedure cannot stand.

24. Marriage creates a relation between the parties which they cannot change. Maynard v. Hill, 125 U.S. 190, 210 (1888). In other words, once a marriage is begun, the parties to the marriage cannot decide among themselves when the marriage ends. It is a relation for life, and the parties cannot terminate it at any shorter period by virtue of any contract they may make. Id., at 211. Marriage is not like a mere contract which can be dissolved by the mutual consent of the contracting parties. but it might be abrogated by the sovereign will whenever the public good, or justice to both parties, or either of the parties, would thereby be subserved. Id. The lifetime character of marriage was a public policy for the benefit of the community. id.

25. As a matter of law, the parties to a marriage cannot agree to divorce. Therefore, Rule 4.1(a) which implies that a joint petition is valid and enables the parties to divorce by agreement is void as against public policy. D. Conclusion

26. As to Rule 4.1, Respondent asserts that it unconstitutionally denies her equal protection of the law, due process of law, and violates the prohibition against consensual divorce, and must be declared void. E. Relief Requested

27. Respondent asks the Court to declare Rule 4.1 unconstitutional, and issue an injunction forbidding the Petitioner to rely upon Rule 4.1 as the formula for the summons issued upon the Respondent in this divorce case. III. Statutes 26.09.006 and 26.18.220 are Unconstitutional A. The Laws in Question

28. Statute 26.09.006 states: (1) Effective January 1, 1992, a party shall not file any pleading with the clerk of the court in an action commenced under this chapter unless on forms approved by the administrator for the courts. (2) The parties shall comply with requirements for submission to the court of forms as provided in RCW 26.18.220. RCWA ' 26.09.006 (West 1997). Statute 26.18.220 states:

29. (1) The administrator for the courts shall develop not later than July 1, 1991, standard court forms and format rules for mandatory use by litigants in all actions commenced under chapters 26.09, 26.10, and 26.26 RCW effective January 1, 1992. The administrator for the courts shall develop mandatory forms for financial affidavits for integration into the worksheets. The forms shall be developed and approved not later than September 1, 1992. the parties shall use the mandatory form for financial affidavits for actions commenced on or after September 1, 1992. The administrator for the courts has continuing responsibility to develop and revise mandatory forms and format rules as appropriate.

(2) A party may delete unnecessary portions of the forms according to the rules established by the administrator for the courts. A party may supplement the mandatory forms with additional material.

(3) A party's failure to use the mandatory forms or follow the format rules shall not be a reason to dismiss a case, refuse a filing, or strike a pleading. However, the court may require the party to submit a corrected pleading and may impose terms payable to the opposing party or payable to the court, or both.

(4) The administrator for the courts shall distribute a master copy of the forms to all county court clerks. The administrator for the courts and county clerks shall distribute the mandatory forms to the public upon request and may charge for the cost of production and distribution of the forms. Private vendors may distribute the mandatory forms. Distribution may be printed or electronic form. RCWA 26.18.220 (West 1997).

B. Statutes Violate Equal Protection of the Law

30. The Respondent has no other choice but to defend her marriage in this court. Rules of Procedure give shape to the process which protects her rights. These statutes are an attempt to circumvent the Rules of Procedure protect every other litigant before this court. The sole reason these statutes exist is to limit what the Respondent can do in her defense, an obvious denial of her right to equal treatment before the law.

31. The statutes in question are not rational. It is not rational to suppose that the administrator of the courts has the competence to accurately foresee every possible response that the Respondent may make to the divorce petition, and provide her with a legal form to accomodate that response. It is not rational to limit the types of responses she can give. It is not rational to believe that lawyers respond accurately in all other cases, but must be forced to use only court prescribed forms in divorce cases. A law which does not have a rational purpose, and which treats equally situated classes of people differently, cannot survive an equal protection challenge. C. The Statutes Violate Due Process of Law

32. The forms actually promulgated by the court adminstrator violate due process of law. As stated above, where the respondent is attacked, there she can defend. The AResponse promulgated in this case, and passed out ot the Respondent to respond to this divorce petition, is deficient in the following areas:

33. The AResponse has room for specific admissions, denials or Alacks information for 13 specific allegations. However, the Petition itself has 14 specific allegations, including number 14 with is for AOther. The form must be responsive to all allegations if it is to treat the Petitioner and the Respondent equally.

34. The AResponse form has section II called, ARequest for Relief. These options are: Enter a decree Provide reasonable maintenance for the [] husband [] wife. Approve my parenting plan of the dependent children. Determine support for the dependent children pursuant to the Washington State Support Schedule. Approve the separation agreement. Dispose of property and liabilities. Change name of wife to: ______________. Change name of husband to: __________________ Enter a continuing restraining order. Order payment of day care expenses for the children. Award the tax exemption for the dependent children as follows: Order payment of attorney's fees, other professional fees and costs. Other

35. This section may as well be called, ASurrender! Your Marriage is Dead in Washington State! Any self-respecting Respondent who does not want to be divorced will search in vain for the response entitled, ADeny the divorce as the relief requested. Any other litigant in the State of Washington in entitled to DEFEND and demand that the Petitioner's Cause of Action be defeated on its merits. Not so with these court promulgated forms. The Respondent is required by law -- subject to punishment by the court for modifying these forms -- to surrender her marriage to her husband's demand for a divorce.

36. The section entitled ARequest for Relief does not provide the relief allowed by statute, and is therefore insufficient as a matter of law to provide the Respondent with due process of law. The statute authorizing the court to grant divorces has several options which are not included on the form, and according to the statute, cannot be placed on the form by the Respondent. Statute 26.09.030(2) states, AIf the other party alleges that the petitioner was induced to file the petition by frand, or coercion, the court shall make a finding as to that allegation and, if it so finds shall dismiss the petition. This is affirmative relief available to the Respondent BY LAW which the administrator of the courts did not believe was important enough to include on his form. The Respondent cannot be expected to know the law well enough to add this request for relief, and she faces fines and other costs if she voluntarily adds the request for the court to inquire into fraud or coercion. The statute which forbids her from responding as any other litigant denies her due process.

37. Statute 26.09.030(3) states, AIf 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 borken 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. RWCA 26.09.030(3 a-b)(West 1997).

38. These following options, as set forth in the statute cited above, are absent from the court administrator's form: 1. The respondent's denial that the divorce is irretrievably broken. 2, The request that the court inquire into the circumstances that gave rise to the filing of the petition. 3. The request that the court inquire into the prospects for reconciliation. 4. A request for referral to counseling. 5. A delay of 60 days to allow for counseling or reconcilation. 6.

39. It is not rational for the court administrator's form to delete any reference to relief available to the Respondent by Washington state law. It is a denial of due process to require the Respondent to use the court administrator's forms when they deliberately deny her relief available to her by law.

40. The court administrator's form does not provide the Respondent with a method to defend herself in court that any other litigant is provided. The Washington Rules of Civil Procedure have several powerful tools which allow a defendant (respondent) to adequately defend herself, Those tools include Rule 8(b) which provides for defenses to be asserted in short and plain terms; Rule 8(c) which allows affirmative defenses to be asserted, including fraud; Rule 9 (b) which requires the defense of fraud to be state with particularity; Rule 12 (b) which requires every defense to be asserted in the responsive pleading; Rule 12 (e) which allows the Respondent to demand a more definite statement or suffer denial of the relief requested; Rule 12 (f) Motion to Strike which allows the Respondent to move the court to strike any material; and Rule 13 which provides for counterclaims.

41. One of the court administrator's forms contains a form called Joinder, in which the Respondent agrees that the marriage is over, and submits the issue to the court. As stated above, divorce by agreement is not allowed under the Supreme Court's ruling of marriage found in Maynard v. Hill, and the form is unconstitutional as a matter of law.

D. Conclusion

42. Respondent asserts that Statutes 26.09.006 and 26.18.220 are unconstitutional in that they deny her equal protection of the law, due process of law, and violate the prohibition against consensual divorce, and must be declared void.

E. Relief Requested

43. Respondent asks the Court to declare Statutes 26.09.006 and 26.18.220 unconstitutional, and issue an injunction forbidding the Petitioner to rely upon them as the formula for the Respondent's responsive pleadings in this case. MOTION FOR MORE DEFINITE STATEMENT

44. The Petitioner's allegation that the marriage is irretrievably broken is so vague and ambiguous that the Respondent cannot reasonably be required to frame a responsive pleading. Therefore, the Respondent moves for a more definite statement before interposing his responsive pleading. See Rule 12(e). RESPONDENT'S ORIGINAL ANSWER

45. Notwithstanding the provisions of Statutes 26.09.006 and 26.18.220, the Respondent makes the following Original Answer.

46. The Respondent specifically denies that the marriage is irretrieavably broken. II. REQUEST FOR AFFIRMATIVE RELIEF

(47. is private information not necessary for our educational purposes)

48. As allowed by Statute 26.09.030(2), the Respondent alleges that she is being coerced into this divorce, and she asks the court to make a finding regarding that allegation and deny the divorce.

49. As allowed by Statute 26.09.030(3), the Respondent denies that the marriage is irretrievably broken and asks the court to order counseling.

III. AFFIRMATIVE DEFENSES

50. Respondent interposes the affirmative defense of _____________________.

51. Respondent interposes the affirmative defense of recrimination.

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