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Washington Divorce Raises Important State Constitutional Question

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December 14, 2007 — The last week or so has brought us some interesting decisions by state Supreme Courts on the issue of divorce.

Total Divorce has detailed the Rhode Island lesbian divorce case on several occasions, including last week's decision by the state Supreme Court to reject the lesbian divorce based on Rhode Island's definition of marriage as being a union between a man and a woman.

While this Rhode Island gay divorce denial garnered much disappointment, especially from the lesbian couple involved, another precedent-setting divorce decision was being made in the state of Washington.

Last week, the Washington Supreme Court rejected a woman's claim that she had a constitutional right to a state-appointed divorce attorney at the public's expense during her divorce case.

The Right to a Washington Divorce Attorney: The Details behind the Argument

Brenda King lost custody of her three childen during her divorce from husband Michael in Snohomish County last year.

King could not afford a Washington divorce lawyer during her case; on the contrary, her husband did have a divorce attorney in his corner. The end result was hardly surprising, especially when considering the developments during the couple's five-day divorce trial.

Brenda King had no idea how to represent herself during the divorce case. A story in The Seattle Times detailed that King did not call any witnesses and failed to present evidence against her husband, including reports that were made about him by Child Protective Services.

She also did not know how to show the court that she was a good mother, especially following claims from her husband's Washington divorce lawyer that their children occasionally showed up to school hungry.

After losing the case, Brenda King's world was turned upside-down. Ten years as a stay-at-home mom had now been replaced by seeing her kids every other weekend. King was also ordered to foot her husband's legal bills, which totaled $7,500.

The State-Appointed Divorce Attorney Debate: Arguments For and Against

Brenda King's loss of custody garnered much legal attention. Eight separate groups filed briefs supporting her right to a state-appointed divorce attorney and a new divorce trial, and a Seattle law firm took her case pro bono.

Here are just some of the things that were noted in favor of King getting a state-appointed attorney on the public's dime and a new divorce trial:

• King was broke;

• King originally hired a divorce lawyer with her rent money, but that attorney dropped out once she ran out of money; and

• King tried to find pro bono help prior to her divorce case, but had those overtures rejected by state and county legal services.

Michael King's Washington divorce attorney responded that granting a state-appointed attorney at the public's expense in a divorce case did not meet the constitutional magnitude of doing so in a criminal or child-welfare case. Michael King's divorce attorney also said that such a decision for divorce cases would cost the state a lot of money.

State-Appointed Divorce Attorney & New Trial Debate: The Supreme Court Ruling

Ultimately, the Washington Supreme Court agreed that the constitutional right to an attorney in criminal and child welfare cases does not extend to divorce cases when someone like Brenda King can't afford a divorce lawyer.

With that said, various members of the seven-justice majority indicated that a change needs to be made.

Writing for the majority, Justice Charles W. Johnson suggested that it would be "wise public policy" for the state Legislature to extend this constitutional right to divorce cases when a divorce lawyer can not be afforded.

Dissenting from the majority opinion, Justice Barbara Madsen said that the odds were stacked against Brenda King, and noted how the court's ruling failed to realize this fact and adequately assess the losses that she faced: most importantly, losing custody of her children.

While the Washington Supreme Court's decision indicates that change could and maybe even should happen, it fails to address the question of fairness when someone in Brenda King's position does not have the money to hire a lawyer. Furthermore, the ruling does nothing for Brenda King.

Brenda King's divorce attorney detailed that while King may ask for her custody plan to be modified, doing so would be very tough.

King declined an interview with the Times following the state Supreme Court's decision.


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