Couples in same-sex and opposite-sex couples are often equally unsure of
what legal rights and responsibilities are involved in marriage. The Revised
Code of Washington (RCW) is where Washington’s statutes are provided.
Specifically, Chapter 26 contains the portions related to marriage, dissolution,
Provided below are some of the laws that relate specifically to the expansion
of the definition of marriage to include same-sex couples, and some of
the statutes that provide information on some of the most important rights
and responsibilities connected to marriage.
RCW 26.04.010. Marriage contract — Void marriages — Construction of gender
specific terms — Recognition of solemnization of marriage not required
This statute was modified to provide that marriage is between two people,
instead of requiring a man and a woman. RCW 26.04.010 also requires that
statutes relating to the rights and responsibilities of spouses including
gender specific terms must be read as gender neutral.
This statute also provides that if a religious official declines to marry
a couple or if a religious organization does not want to allow same-sex
couples to use their services, facilities, etc., they will not be penalized.
This statute describes marriages that are prohibited in Washington. This
includes marriages where either party is married or in a registered domestic
partnership with another person. However, the law provides that a person
may choose to marry their domestic partner. If you are considering marriage,
it is important that you ensure that any prior marriage or domestic partnership
with anyone else has been legally terminated.
RCW 26.04.260. Recognition of a legal union
Washington will recognize the legal relationship established in another
state, whether marriage, domestic partnership, or civil union if it provides
substantially the same rights, benefits, and responsibilities as Washington marriage.
However, subsection (b) of this statute requires that if parties to a civil
union or domestic partnership become permanent residents of Washington,
they must enter into marriage within one year of becoming permanent residents
to preserve their recognition and treatment under the law.
This is concerning because many couples assume that their domestic partnership
or civil union is automatically recognized as a marriage, and may not
go through the additional step of getting married when they move to Washington.
It is unclear how this provision will be interpreted by the courts, but
it could have an impact on the ability of divorcing couples to divide
property and be awarded maintenance if they divorce more than a year after
moving to Washington and never got married in Washington.
RCW 26.16. Rights and Liabilities — Community Property
Chapter 26.16 provides numerous statutes relating to how property may be
used, held, and transferred during marriage, as well as how it should
be divided upon dissolution. The rules are the same for same-sex and opposite-sex
couples. For more information, see our guide on the
division of property.
Property owned before marriage will be characterized as separate property,
unless it is “comingled” with community property. Comingling
of property occurs when the separate property can no longer be clearly
traced by to its separate source, such as when money accumulated before
marriage is deposited into a joint account along with community funds
and thereafter community expenses are paid from the account.
Property acquired during the marriage is presumed to be community property.
“Property” includes more than just money or tangibles; it
includes wages, retirement accounts, and more.
There are some types of property that will be characterized as separate
no matter when it is acquired. This includes property received as a gift,
inheritance or bequest. The way a piece of property is characterized does
not always determine whom it will be awarded to upon dissolution of the marriage.
RCW 26.26. Uniform Parentage Act
Chapter 26.26 provides some of the rights and responsibilities of parents.
It is important to note that these provisions now apply to both same-sex
and opposite-sex relationships.
RCW 26.26.116 provides that children born or a State Registered Domestic
Partnership or marriage are presumed to be the child of both parents.
RCW 26.26.116(1). In addition to the marital presumption, RCW 26.26.116
provides that an individual is presumed to be the parent of a child if,
for the first two years of the child's life, the person resided in
the same household with the child and openly held out the child as his
or her own. RCW 26.26.116(2).
These presumptions may be rebutted. If you are a non-biological/non-adoptive
parent concerned about protecting your relationship with your children,
it is important that you speak with a family law attorney about the best
way to protect your right to parent your child.
RCW 26.09.187. Criteria for establishing permanent parenting plan
For residential time, the statute outlines the following:
(3) RESIDENTIAL PROVISIONS.
The court shall make residential provisions for each child which encourage
each parent to maintain a loving, stable, and nurturing relationship with
the child, consistent with the child’s developmental level and the
family’s social and economic circumstances. The child’s residential
schedule shall be consistent with RCW
26.09.191. Where the limitations of RCW
26.09.191 are not dispositive of the child’s residential schedule, the court
shall consider the following factors:
- The relative strength, nature, and stability of the child’s relationship
with each parent;
- The agreements of the parties, provided they were entered into knowingly
Each parent’s past and potential for future performance of parenting
functions as defined in *RCW
26.09.004(3), including whether a parent has taken greater responsibility for performing
parenting functions relating to the daily needs of the child;
- The emotional needs and developmental level of the child;
- The child’s relationship with siblings and with other significant
adults, as well as the child’s involvement with his or her physical
surroundings, school, or other significant activities;
- The wishes of the parents and the wishes of a child who is sufficiently
mature to express reasoned and independent preferences as to his or her
residential schedule; and
- Each parent’s employment schedule, and shall make accommodations
consistent with those schedules.
Factor (i) shall be given the greatest weight.
Establishing parenting plans between same-sex couples is the same as that
for opposite-sex couples. Courts cannot consider sexual orientation or
gender identity as a factor in determining residential time with children.
There are two court cases that address these specific issues:
In re Marriage of Cabalquinto, 100 Wn.2d 325, 669 P.2d 886 (1983) (Homosexuality is not a valid factor
in parenting plans,)
In re Marriage of Magnuson, 141 Wash.App. 347, 170 P.3d 65 (2007) (Transgender identity is not a
valid factor in the context of residential placement/parenting plans.)
Together, these court cases make it clear that sexual orientation and gender
identity cannot be used as factors for limiting residential time with
a child. Residential time will be based on the best interest of the child
after considering the factors outlined above.