Tuesday, August 5, 2014

About Petition for Dissolution of Marriage

When preparing a case for filing with the court, I receive many questions from my clients as to whether certain items should be disclosed early on. One of those questionable items is a request for spousal maintenance. I assure everyone that each and every possible claim should be brought up in the initial Petition for Dissolution of marriage. Before I explain why I want to give short background information on the dissolution procedure and significance of the Petition.

In order to start a divorce procedure a petitioner needs to prepare and file with the court Petition for Dissolution of Marriage. The Petition is a formal way to tell a court and spouse what the petitioner wants.

Because it is official it could be and would be used by the opposing party during the divorce proceedings. That means that a party preparing a Petition must take their time when filling it out. It is not easy to change it. Unfortunately, some people take wording of the Petition lightly.

For example, many of my clients, especially those who try to negotiate with their spouses and think they might have an amicable divorce, ask me whether they in fact have to make any allegation about spousal maintenance. In a recent decision Division III of the Washington Court of Appeals answered that question. Full opinion could be found here.

 In the Marriage of Hasan Tahatand Mary Tahat Mary was a Petitioner. She initially stated in her Petition that she did not need spousal maintenance. Later at her deposition when asked whether she needed spousal maintenance she again responded negatively. However, when the trial started she changed her mind about spousal maintenance. That is when she requested to amend her Petition because that was the only way to bring the issue of spousal maintenance up at the trial.

Of course Hasan Tahat, the Respondent, claimed he was not prepared to address the issue of spousal maintenance at trial. As he did not consent to her request to amend, Mary needed court’s permission to do so. The trial court denied Mary’s request to amend the Petition. As a result Mary was not able to bring up spousal maintenance at trial. Mary appealed.

Court of appeals noted that the following rules applied to the situation:

 Superior court rule 15(a) provided that leave to amend should be freely given, “except where prejudice to the opposing party would result.” In previous court opinions, courts explained that “prejudice to the opposing party” include “undue delay, unfair surprise, and jury confusion.” Delay must be accompanied by prejudice to the nonmoving party. In Oliver v. Flow Int’l Corp, court of appeals held that the need for additional discovery was sufficient prejudice to deny a motion for amend.

 After applying above-stated rules to the situation at hand, the court of appeals held:

“We discern valid arguments on both sides as to whether the motion to amend should have been granted. The motion came on the first day of trial. Hasan would have needed to defend against additional claim, for which he had not time to prepare. He forewent questioning Mary Tahat about the claim, during the deposition since she denied seeking spousal maintenance. Since Hasan Tahat raised legitimate concern of prejudice, we conclude the trial court did not abuse its discretion when denying the motion to amend.”

In essence this court opinion demonstrates clear necessity to state all possible claims in the Petition for Dissolution of Marriage. It is easy to abandon a stated claim later on but it might be impossible to bring up a new claim at the trial level.