§11.02 De Facto Separation

• Jurisdiction: Washington

§ 11.02 DE FACTO SEPARATION

This section discusses the rights and responsibilities of parties who are separated but who have not initiated an action for dissolution, legal separation, or declaration of invalidity, nor entered into any written agreement to control the status of their relationship or provide for the ownership or control of property or debts.

[1] De Facto Separation Defined

RCW 26.16.140 states in relevant part: "When spouses or domestic partners are living separate and apart, their respective earnings and accumulations shall be the separate property of each."

This statute has been interpreted to require mutuality of intent to separate for property acquired after the separation to be considered the separate property of the acquirer. In other words, for a de facto separation to exist, the parties must evidence a mutual intent to abandon their marital relationship. Parrish v. Jones, 44 Wn. App. 449, 722 P.2d 878 (1986) (intent is a factual matter to be determined by the court). If the parties physically separate, with no intent to resume the marital relationship, they will be considered separated, and their rights and responsibilities will be governed pursuant to the statutes and case law described in § 11.03, below.

Seizer v. Sessions, 132 Wn.2d 642, 940 P.2d 261 (1997), presents an interesting fact pattern, illustrating the need to establish mutuality of intent to separate to prove the existence of a defunct marriage. Elmer and Rosalie Sessions married in 1941. In 1954, while the parties were living in New York with their daughter, Bonnie, Rosalie became mentally ill. Thereafter, Elmer moved Bonnie and Rosalie to Houston to live with Rosalie's parents. Elmer then moved back to New York. He visited his wife and daughter in Houston occasionally but never moved with them. Neither Rosalie nor Bonnie had any direct communication with Elmer after 1957, and neither sought any support from him and the parties never divorced. Elmer eventually moved to Vancouver, Washington. Bonnie was named guardian of her incompetent mother in 1987 in Texas. Elmer established a subsequent common-law marriage with his second partner, Mary, whom he "divorced" in 1982. He then allegedly married his third wife, Barbara, in 1984 in Mexico.

In 1989, while temporarily living in Arizona, Barbara and Elmer purchased a winning $2 million lottery ticket.

In 1992, Bonnie, Elmer's daughter, filed an action in Clark County, Washington, on behalf of her mother Rosalie, seeking Rosalie's community property share of the lottery winnings, claiming that the parties were never divorced, and the marriage was not defunct. The trial court dismissed her complaint, ruling that under RCW 26.16.140 the marriage was defunct, and Rosalie was entitled to none of the lottery proceeds.

The Court of Appeals reversed the trial court, holding that there was a conflicts of law issue as to which state's law should apply (Washington or Texas). The court ruled that Texas law should apply and remanded the case back to the trial court to determine factual issues regarding the purchase of the ticket. The significance of Texas versus Washington law was that Texas has no defunct marriage statute. Under Texas law, a marriage can only be terminated by divorce or...