§11.04 Separate Maintenance

• Jurisdiction: Washington

§ 11.04 SEPARATE MAINTENANCE

Washington courts have recognized the remedy of "separate maintenance" since 1897. In Kimball v. Kimball, 17 Wash. 75, 49 P. 216 (1897), the court noted that the parties may choose not to seek a divorce or a legal separation because of principles of conscience, religion, or hope of reconciliation, but nevertheless could entertain an independent action for separate maintenance.

The Washington Supreme Court described the separate maintenance concept as follows:

Separate maintenance is the allowance granted to a wife for the support of herself and children while she is living separate and apart from her husband. The right to separate maintenance is grounded upon the fundamental legal duty of the husband to support his wife during the time that the marriage relation exists. Though a legal separation has been declared, the marital relation still exists.

Cohn v. Cohn, 4 Wn.2d 322, 324, 103 P.2d 366 (1940).

The right to separate maintenance is further supported in the Washington Constitution, which vests in the courts "jurisdiction of all matters of divorce and for such other cases and proceedings as are not otherwise provided for." WASH. CONST. art. IV, § 6.

The remedy for separate maintenance should be distinguished from the remedy of a legal separation. Legal separation is governed by Chapter 26.09 RCW, while separate maintenance is an equitable remedy, intended to provide maintenance to a needy spouse. Prior to the adoption of the 1973 Dissolution of Marriage Act, actions for separate maintenance were commonly used because the granting of a divorce was an infrequent event due to several things.

First, an action for separate maintenance contained no long-term durational residence requirement, which was necessary to obtain a divorce. Washington has had various durational residence requirements for divorce: The Divorce Act of 1963 required a one-year residence. Laws of 1949, Ch. 215 § 3, p. 699 (former...