Appeals Court Upholds the Right to Divorce During Pregnancy

The Washington Court of Appeals today held that it is improper to deny a divorce to a woman solely on the basis of pregnancy.  The Court ruled that the state cannot deny a pregnant woman the right to file for divorce because the state’s Equal Rights Amendment “absolutely prohibits discrimination on the basis of sex.”  At the same time, the court sent the case back to the trial court for further proceedings on other procedural questions.

The ACLU-WA filed a friend-of-the-court brief with the Washington Court of Appeals in March 2005, backing a woman's right to end her marriage regardless of whether she is pregnant. The case involved a petition for divorce filed by a Spokane resident, Shawnna Hughes.

“The court’s ruling reaffirms a woman’s right to make her own decision about when to seek a divorce, regardless of her child-bearing status,” said Kathleen Taylor, executive director of the ACLU of Washington. While the appeal in the case was pending, the state Legislature acted quickly to address the problem the case brought to light.  A bill that codifies the right of a pregnant woman to get a divorce was approved by the Legislature and signed by Governor Christine Gregoire earlier this spring.

Shawnna Hughes is married to Carlos Hughes, and they have two minor children. Mr. Hughes became abusive, and he was ultimately imprisoned for crimes of domestic violence. Concerned that Mr. Hughes would soon be released from prison and fearing renewed violence, Ms. Hughes filed a Petition for Dissolution in April 2004 and several weeks later obtained a default order entitling her to obtain a divorce. Mr. Hughes did not object to the divorce petition.

During the summer of 2004, Ms. Hughes became pregnant through her relationship with another man. In October, a court commissioner signed the final orders to implement the divorce. Spokane County Superior Court Judge Paul Bastine revoked the dissolution decree, after learning from the County Prosecutor's Office that Ms. Hughes was pregnant. In his oral ruling, the judge said that pregnant women could not divorce their husbands until after giving birth. The judge believed he was acting to protect the interest of the future child by insuring that he or she would not be born out of wedlock. The Spokane County Prosecutor's Office, acting on behalf of the state, agreed with the judge. State officials asserted that granting the divorce would leave the state unable to pursue the father for financial support.

The judge's statement reflected an archaic view of illegitimacy. By law, a child born to parents who are not married to each other has the same rights as a child whose parents are married. Further, the state's Parentage Act provides that any questions about parentage can be resolved by a paternity test, and the man determined to be the father will have financial responsibility regardless of marital status.

The friend-of-the-court brief was written by ACLU-WA board member Trilby Robinson-Dorn, Northwest Women's Law Center cooperating attorney Kristin Boraas, and Law Center staff attorney Nancy Sapiro. Several organizations advocating for women's rights joined the brief, including the Refugee and Immigrant Forum; the Washington State Coalition against Domestic Violence; NARAL Pro-Choice Washington; the National Coalition against Domestic Violence; Washington NOW; the Washington Coalition of Sexual Assault Programs; Stop Family Violence; and the Family Violence Prevention Fund.