362 lines
24 KiB
Plaintext
362 lines
24 KiB
Plaintext
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G G
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w _____ ____ 1 222 666 "Holly Near v. Melissa Etheridge" w
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D // | \ 11 2 6 by Yancey Slide D
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* || ____ | || | 1 222 666 *
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G || || \ / | || | 1 2 6 6 issue #126 of "GwD: The American Dream G
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w \\___// \/\/ |____/ 111 222 666 with a Twist -- of Lime" * rel 06/10/03 w
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D D
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[Uhh, this is a decision written for a Conflicts of Law class. It's
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fictional, yo. I think. Fair use, my friends, fair use. Do same-sex couples
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who get married have a divorce remedy in a state that doesn't allow gay
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marriage? Well, do they?!? Hmm... -Ed.]
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I. Procedural History
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Plaintiff appellant Near and defendant appellee Etheridge were joined in
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marriage in a same-sex union in the Commonwealth of Massachusetts in 2003.
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Plaintiff Near brought suit there in 2007, seeking a declaratory judgment that
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the marriage was valid outside the Commonwealth. The judgment was granted,
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and later affirmed by the Massachusetts Supreme Judicial Court. The couple
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moved to Washington in 2009, where they continue to reside. The parties
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separated in 2019, and shortly thereafter Near brought divorce proceedings
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against Etheridge, asking for alimony and equitable distribution of property
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owned by both parties during the relationship.
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The trial court held that the marriage is not valid under Washington law,
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and that there is therefore no divorce remedy for same-sex couples in
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Washington. Plaintiff Near appeals the trial court's dismissal to this Court.
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II. Full Recognition under Full Faith and Credit
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Plaintiff Near contends that Article IV of the United States Constitution
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compels this Court to recognize their marriage, which is presumptively valid
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in the Commonwealth of Massachusetts. The traditional conflicts rule that
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looks to the law where the marriage was created is called into question by a
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federal statute, the Defense of Marriage Act, and Washington's statute
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prohibiting recognition of marriages between persons other than a male and a
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female. See 28 U.S.C. 1738C; see also Wash. Rev. Code 26.04.020.
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The full faith and credit doctrine is necessary under a federal system to
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allow sovereign jurisdictions to fully enforce their own laws. Generally, the
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acts of a sister state are given their full effect so long as those acts are
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valid in the original state. See _In re Marriage of Effert_, 723 P.2d 541,
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544 (Wash. Ct. App. 1986). The federal Defense of Marriage Act purports to
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create an explicit exemption by allowing the sort of explicit rejection of
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foreign same sex marriages in Washington's code. These exceptions seem
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grounded in a sentiment opposed to same sex marriages. In the absence of any
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other justification for creating an exception to the full faith and credit
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requirements of Article IV, the intention seems to be to exempt same sex
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marriages from Article IV as repugnant to public policy. Washington law
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directs courts to look to "constitutional, statutory, or regulatory
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[provisions]" as a source of public policy. _Thompson v. St. Regis Paper
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Co._, 685 P.2d 1081, 1089 (Wash. 1984).
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If construed as public policy exemptions, then the Washington and federal
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statutes must be disregarded by this Court. Courts are not permitted to
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perform public policy analyses on the acts of other states. "A court
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enforcing the judgment of a sister state does not engage in an inquiry as to
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whether the judgment of the sister state contravenes the policy of the
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enforcing state." _Washington v. Bush_, 9 P.3d 219, 225 (Wash. Ct. App.
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2000). See also _Fauntleroy v. Lum_, 210 U.S. 230 (1908). Although the
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Washington law seems to be an explicit statement of public policy, this Court
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is prohibited from using it as such in a choice of laws context.
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An alternate and equally plausible theoretical underpinning for the
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federal and state statutes is a states' rights principle intended to allow
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each state to enact and enforce its own regulations of marriage. Article IV
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grants Congress the power "by general laws [to] prescribe the manner in which
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such acts, records, and proceedings shall be proved, and the effect thereof."
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U.S. Const. art. IV, 1, cl. 2. This has been interpreted as giving Congress
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the power to enact such legislation as it feels necessary to correct
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"confusion or procedural difficulties" proceeding from the operation of the
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Full Faith and Credit Clause. _Yarborough v. Yarborough_, 290 U.S. 202, 215
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(1933), cited in _Williams v. North Carolina_, 317 U.S. 287 (1942). This is
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not, however, the power to completely set aside full faith and credit; some
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pretext must exist that outweighs the constitutional directive.
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The apparent justification under this theory is the argument that
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compelling other states to grant full force to same sex marriages performed in
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Massachusetts would effectively prevent those states from enacting less
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permissive marriage laws. The state with the most open and unrestricted law
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would serve as a gateway to the rest of the country. From the perspective of
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states that would otherwise choose to regulate marriage more strictly, the
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result would be a "race to the bottom," in which the most accommodating law
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would essentially determine the law in every state. Under this theory,
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recognizing the Massachusetts marriage would vitiate Washington's freedom to
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enact its own law, and this would outweigh the otherwise controlling full
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faith and credit provision. Defendant Etheridge's position is that the
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federal and state statutes are constitutional because they preserve
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Washington's interest in preserving its own sovereignty against a solvent
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stream of foreign marriages.
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The inherent flaw in this argument is that there is no showing in the
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facts of this case that there is a legitimate risk of such a flood of same-sex
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marriages. It may be the case that Massachusetts requires a more stringent
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residency requirement than the nominal stay Nevada asked of divorce candidates
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that so troubled the dissent in _Williams v. North Carolina_. _Williams v.
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North Carolina_, 317 U.S. 287 (1942). If so, then it would be inappropriate
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to impose a hardship on lawfully married couples out of proportion to the
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minimal threat they pose to state sovereignty. In such case, marriages such
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as the Near-Etheridge union should be recognized until it can be shown that
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Massachusetts or another state is performing such marriages without a
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stringent residency requirement, and that its interests in its marriage law
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substantially conflict with our own interests in maintaining sovereignty over
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our own policies. In that case, it would be unreasonable to empower such a
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state to override the laws of this Washington, the majority finding in
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_Fauntleroy v. Lum_ notwithstanding. We note that even if Massachusetts
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requires couples to be residents for the purposes of marriage, this Court and
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this state retain jurisdiction to determine whether that residency is
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sufficient to the needs of the interstate system. See _Williams v. North
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Carolina_, 325 U.S. 226 (1944).
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Until an actual showing can be made that giving full faith and credit to
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another state's marriage policy poses a clear and present danger to
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Washington's own sovereignty, the federal and state statutes in question are
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not sufficiently grounded to allow this Court to undermine Massachusetts law,
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which has not been shown to be substantially in conflict with our own. If
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there were no further analysis, then we would remand this case to the trial
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court with instructions to determine the law of Massachusetts and structure
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Washington?s response accordingly. The facts of this case, however, present
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additional, dispositive issues that this Court must also address.
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III. Judicial Recognition under Full Faith and Credit
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Plaintiff Near next argues that the Full Faith and Credit Clause requires
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this Court to recognize the Massachusetts Supreme Judicial Court's declaratory
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judgment affirming the validity of the couple's marriage. Generally, Article
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IV compels this Court to give full faith and credit to a valid foreign
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judgment. "If the foreign court had jurisdiction of the parties and of the
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subject matter, and the foreign judgment is therefore valid where it was
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rendered, a court of this state must give full faith and credit to the foreign
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judgment and regard the issues thereby adjudged to be precluded in a
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Washington proceeding." _In re Wagner_, 748 P.2d 639 (Wash. Ct. App. 1987).
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See also _Williams v. North Carolina_, 325 U.S. 226 (1944). The fact that the
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parties could never obtain such a judgment in this state is irrelevant;
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"enforcement of a valid sister state judgment may not be denied, even if the
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claim upon which the judgment was based could not have been entertained in a
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Washington court." _Lee v. Ferryman_, 945 P.2d 1159, 1163 (Wash. Ct. App.
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1997) citing _Roche v. McDonald_, 275 U.S. 449 (1928). The dispositive issue
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here, then, is the original validity of the judgment. Defendant Etheridge
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must persuade this Court that the Massachusetts ruling is invalid, as this
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Court is powerless to disregard a legitimate foreign judgment.
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This case is unlike _Williams v. North Carolina II_, which turned on
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North Carolina's decision that a Nevada judgment on the domicile of (putative)
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Nevada residents was faulty. The Massachusetts Supreme Judicial Court's
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declaratory judgment presumes to decide not just the law of Massachusetts, but
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also the law of all states, through its interpretation of Article IV. While
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such an interpretation is not inappropriate for a court asked to render its
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opinion on an interstate matter, the practical effect full recognition of that
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judgment would have on Washington would be untenable. Recognition of foreign
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judgments serves as collateral estoppel when parties seek to re-litigate an
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issue in this state. See _Lee v. Ferryman_, 945 P.2d at 1163-64. This is
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essentially the goal of plaintiff Near, who wishes this Court to honor
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Massachusetts' judgment on the validity of her marriage without re-litigation.
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The Massachusetts judgment is not limited to the validity of the
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marriage in Massachusetts; it apparently purports to declare the marriage
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presumptively valid in all states. While this is an understandable and
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natural extension of Massachusetts' domestic policy, full recognition would
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prevent Washington courts from addressing the validity of the Etheridge-Near
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marriage, despite the compellingly close and significant contacts this state
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has with the relationship and its dissolution. "In effect, the Full Faith and
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Credit Clause compels an end to litigation" when foreign judgments are given
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full recognition, and while the law seems clear on this point, it cannot be
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the case that Washington courts are precluded from peering into the validity
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of a marriage within their own state for the purposes of regulating its
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dissolution. See _Lee v. Ferryman_, 945 P.2d at 1163.
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The Massachusetts judgment essentially merely confirmed that
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Massachusetts law applied to Massachusetts residents; once the couple became
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Washington residents, they became subject to our law and our courts, and not
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even the Commonwealth's esteemed judgment can divert our jurisprudence.
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Massachusetts' interests are not great enough to preclude Washington from
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conducting its own analysis and, if necessary, reaching a different result.
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Our own interest in this case, and our contacts with the issue and the
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parties, are overwhelming. This Court rejects the plaintiff's arguments on
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this point; the Full Faith and Credit Clause does not require Washington
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courts to recognize the Massachusetts Supreme Judicial Court's declaratory
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judgment.
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IV. Meretricious Relationship
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Plaintiff Near next asserts that Washington common law provides a remedy
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for these parties even if this Court held their marriage to be invalid in the
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state of Washington. We concur. Even if this Court were to rule that the
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parties' relationship was not a valid marriage, the equitable property
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distribution and alimony remedies sought by plaintiff Near may be available
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through the doctrine of meretricious relationships. Although not legal
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marriages, this Court has found that "income and property acquired during a
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meretricious relationship should be characterized in a similar manner as
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income and property acquired during marriage." _Connell v. Francisco_, 898
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P.2d 831, 836 (Wash. 1994). There have been no cases in Washington, or indeed
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in any state or federal court, deciding whether a meretricious relationship
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creates the right to alimony, but it seems doubtful that the property rights
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of an explicitly non-marriage relationship would extend to alimony support.
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Before the specific remedies available to cohabitants in a meretricious
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relationship can be addressed, however, this Court must attempt to determine
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whether these parties were, in fact, in such a relationship. This Court in
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_Connell v. Francisco_ established a list of relevant factors to such a
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determination: "continuous cohabitation, duration of the relationship, purpose
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of the relationship, pooling of resources and services for joint projects, and
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the intent of the parties." _Connell v. Francisco_, 898 P.2d at 835. Each of
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these factors weighs in favor of a finding of a meretricious relationship
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between the litigants. Their continuous cohabitation endured for
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approximately twenty years, and the fact that the parties held themselves out
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for fifteen years as a married couple (and sought the sanction of a high court
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to do so) speaks volumes as to the purpose of the relationship and the intent
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of the parties. Were this not a same-sex couple, this Court would
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characterize their relationship as meretricious without further analysis.
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The fact that this is a same-sex relationship cannot be disregarded. The
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Washington Second Court of Appeals held in _Vasquez v. Hawthorne_ that
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statutory limitations on who may marry "are relevant in determining whether a
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relationship is sufficiently 'marital-like' to be meretricious," and that
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same-sex couples that cannot marry under Washington law cannot be construed
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as having a meretricious relationship. _Vasquez v. Hawthorne_, 994 P.2d 240,
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243 (Wash. Ct. App. 2000). We vacated the appellate court's decision on other
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grounds without approaching the issue of whether a same sex couple may create
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a meretricious relationship.
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This Court's failure to approach the issue led to Justice Sanders'
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declaration in his concurrence that the majority opinion provided "somewhat
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less satisfaction than can be obtained from kissing one's sister." _Vasquez
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v. Hawthorne_, 33 P.3d 735, 739 (Wash. 2001). Justice Sanders will be pleased
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to know that this Court finds it now necessary to revisit the feasibility of
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same sex meretricious relationships. He will be less pleased to find that
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this Court cannot concur with the Court of Appeals' _Vasquez_ findings or his
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own defense of that ruling. The chief criticism leveled against the judicial
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recognition of homosexual meretricious relationships by both the appellate
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court and Justice Sanders' concurrence is that such a couple could not marry,
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invalidating the "marital-like" standard espoused in _Connell_. _Connell v.
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Francisco_, 898 P.2d at 834. This reasoning cannot apply here, for these
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parties did marry, albeit not under Washington law.
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While such the parties could not have obtained their marriage in this
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state, to deny its existence at the time and place of its formation would be
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presumptuous. At the time of the ceremony, Massachusetts unquestionably had
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the most significant relationship with the parties, and even now, they
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maintain an interest in the enforceability and lawful dissolution of the
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marriage. There is no theory this Court can posit that would justify ignoring
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the six years of marriage within Massachusetts or denying comity to the
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Supreme Judicial Court of Massachusetts' declaratory judgment. While there
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may be valid legal challenges to the validity of the parties' marriage within
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the state of Washington, there is no challenge to its validity in the
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Commonwealth of Massachusetts. Incontestably, the parties here before us were
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married at one point. Since relationships without a formalized marriage can
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fulfill the "marital-like" standard, it would be the height of absurdity for
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this Court not to find that a legal marriage, even of foreign provenance, can
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do the same.
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Justice Sanders will no doubt be disheartened to learn that this Court
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will not take a further position on the ability of same sex couples without a
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foreign marriage to form a meretricious relationship. In the present case,
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however, this Court finds that the parties could, under Washington law, form a
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cognizable meretricious relationship. We do not find that the parties did, in
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fact, have such a relationship. Such a finding is highly fact dependent, and
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should be decided, if necessary, on remand. This Court remanded _Vasquez_ for
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trial on similar grounds, holding that "in a situation where the relationship
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between the parties is both complicated and contested, the determination of
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which equitable theories apply should seldom be decided by the court on
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summary judgment." _Vasquez v. Hawthorne_, 33 P.3d at 739. The procedural
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history of this case is bereft of a factual analysis of the parties'
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relationship; the trial court issued a summary judgment dismissing the
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plaintiff's complaint in a fashion that we have expressly held to be
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insufficient for finding or denying a meretricious relationship. While it
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seems virtually impossible for a factual analysis to determine that such a
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relationship did not exist here, given our ruling that it is possible in these
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circumstances, a remand on this issue is appropriate. We do not currently so
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remand this case, however, as there are dispositive issues yet to be examined.
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V. Limited Recognition of Divorce Remedies
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The plaintiff argues that Washington law does not preclude recognition of
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the marriage for the limited purpose of dissolving it and resolving property
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issues between the parties. We again concur. Wash. Rev. Code 26.04.020
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stipulates, "a marriage between two persons that is recognized as valid in
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another jurisdiction is valid in this state only [when the parties are persons
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other than a male and a female]." The statute clearly rejects the recognition
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of the validity of extant same sex marriages, but does not deny their very
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existence. When the aim of a litigant is to regulate the dissolution of this
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marriage, it would be unreasonable to construe this statute such that the
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state cannot recognize the fact that a marriage occurred and was treated as
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valid by the parties. Such a finding by this Court would severely impair
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Massachusetts? power to enforce its own laws, even within its own borders, and
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do little to advance Washington's interests.
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The Second Restatement of the Conflict of Laws plainly sets out the
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fundamental principles when state interests collide. While these principles
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are intended to be used in the context of making an informed and reasonable
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choice in the application of foreign laws, they are fully applicable here.
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Among the central factors that the 6 of the Restatement directs courts to
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assess are:
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a) The needs of the interstate and international systems,
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b) The relevant policies of the forum,
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c) The relevant policies of other interested states and their
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relative interests,
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d) The protection of justified expectations,
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e) Certainty, predictability and uniformity of result, and
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f) Ease in the determination and application of the law to be
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applied.
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Each of these factors weighs in favor of recognizing the marriage for the
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purposes of dissolving it. The relevant policies of this state and
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Massachusetts are simple to assess; Massachusetts clearly intends to enable
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same sex couples to wed, while Washington does not wish to validate such
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marriages. Washington has no specific rule as to divorce remedies in such
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cases, though. Even more significantly, as discussed above, the policy of
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meretricious relationships already grants divorce-like remedies to unmarried
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parties in Washington, and this avenue is almost certainly open to the
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plaintiff. We cannot therefore construe the interests of this state as
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weighing heavily against the granting of divorce remedies to these parties.
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Massachusetts' interests can be protected by recognizing the marriage for the
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purpose of regulating its dissolution without greatly impinging on
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Washington's policies. This application of the 6 factors shows that insofar
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as there is a conflict between Massachusetts and Washington law, it is a false
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conflict. Granting the requested remedies would do little to vitiate the
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Washington legislature's intent, while refusing to do so would create
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interstate havoc.
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The inevitable result of blinding ourselves to the existence of marriages
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performed in Massachusetts would be interstate chaos and confusion. Parties
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lawfully married in Massachusetts would be unable to dissolve their marriage
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elsewhere, resulting in uneven application of property laws on death or
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divorce, uncertain legitimacy of children, or even unintentional bigamy.
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Justice Douglas? majority opinion in the Williams case called such chaos "part
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of the price of our federal system," but we sympathize with Justice Jackson's
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dissent: the price is steep and unnecessary. _Williams v. North Carolina_,
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325 U.S. 226 (1944). The plaintiff here is asking for very little comity
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in order to forestall a great many problems. Granting comity to the
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Commonwealth sufficient to recognize the marriage in order to dissolve it
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would protect the justified expectations of the parties here, who relied on
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the judgment they obtained from the Supreme Judicial Court of Massachusetts.
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This will also lead to more certain, predictable, and uniform results in the
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arena of divorce judgments. We cannot bring ourselves to deny such comity to
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our sister state when their interests do not conflict with our own in the
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equitable regulation of this relationship's dissolution.
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VI. Conclusion
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If the parties had brought suit at any other time, seeking to determine
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the validity of their marriage under Washington law, the result might have
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been very different. As noted above, it is entirely possible that this Court
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would have validated the marriage under the Full Faith and Credit Clause, but
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only after a review of the law of Massachusetts as written and as applied.
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Similarly, if the plaintiff relied solely on the doctrine of meretricious
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relationships, this Court would have reached a different finding; the dispute
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would have been remanded to the trial level for an equitable finding as to the
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exact nature of their relationship.
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As it is, the parties have brought a dispute as to the applicability of
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divorce remedies to a marriage that was unquestionably valid in Massachusetts.
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Whether it was a lawful marriage as opposed to a meretricious relationship
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during the time that the couple resided in Washington is not at issue before
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this Court. By construing the controversy before us as a question of the
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proper application of divorce remedies to a foreign marriage, rather than as a
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dispute over the validity of same sex marriages, this Court can respect the
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laws and policies of Washington and interested foreign states as well as
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achieve substantive justice for the parties. Accordingly, we find that
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Washington law does not preclude recognition of the Massachusetts marriage for
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the limited purpose of dissolving the marriage and providing normal divorce
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remedies.
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This Court vacates the ruling of the trial court and remands this case
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for a just and equitable division of property consistent with our findings.
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--- -- - -- --- -- - -- --- -- - -- --- -- - -- ---
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Issue#126 of "GwD: The American Dream with a Twist -- of Lime" ISSN 1523-1585
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copyright (c) MMII/MMIII Yancey Slide/GwD Publications /---------------\
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copyright (c) MMIII GwD, Inc. All rights reserved :LIFE KILLS LIFE:
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a production of The GREENY world DOMINATION Task Force, Inc. : GwD :
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Postal: GwD, Inc. - P.O. Box 16038 - Lubbock, Texas 79490 \---------------/
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FYM -+- http://www.GREENY.org/ - editor@GREENY.org - submit@GREENY.org -+- FYM
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