civil-law family-law divorce washington
*Buecking* holding finds that cooling-off days for decrees of transitory legal separation do not count for in rem decrees of divorce
<p>The <em>Buecking</em> holding unambiguously finds that cooling off days for transitory decrees of legal separation do not count for cooling off days in rem decrees of divorce.</p>
<p>The Dissolution Act of 1973 regarding RCW §26.09.030 supports the conclusion that the 90 day waiting period applies to legal separations: [WASHINGTON LAW REVIEW Volume 49 Number 2 Symposium: Recent Washington Legislation 2-1-1974 The Dissolution Act of 1973: From Status to Contract?  Luvern v. Rieke University of Washington School of Law page 390]   “It should be noted that <strong>legal separation cannot be decreed until the end of the 90 day cooling-off period required by the Act</strong>.   Immediate needs may of course, be met by temporary orders pursuant to § 26.09.060. There is no more reason for a hasty entry of a coerced decree of legal separation than there is for a decree of dissolution.&quot;
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<a href="https://digitalcommons.law.uw.edu/cgi/viewcontent.cgi?article=2028&amp;context=wlr" rel="nofollow noreferrer">https://digitalcommons.law.uw.edu/cgi/viewcontent.cgi?article=2028&amp;context=wlr</a></p>
<p>There was never any finding that the original legislative intent was unconstitutional.</p>
<p>The decision in Buecking was for a case where there was <em>both</em> a petition for legal separation and petition for dissolution.  Legal separation is in personam/transitory, Dissolution however is in rem; basically legal separation cooling-off days don’t add up for divorce decree cooling off days, and that’s why the day counts are separate.  Buecking never says there is no wait period for a decree of legal separation, it’s just that wait days for DLS do not count for the tolling to a divorce decree.<br />
“Decrees of legal separation are in personam and may be thought of as transitory actions.  When more than a persona order is sought – when status is to be changed – the action  acquires an in rem quality and different jurisdictional requisites are involved.15   <a href="https://digitalcommons.law.uw.edu/cgi/viewcontent.cgi?article=2028&amp;context=wlr" rel="nofollow noreferrer">https://digitalcommons.law.uw.edu/cgi/viewcontent.cgi?article=2028&amp;context=wlr</a></p>
<p>THE PROBLEM IS that this particular case (Buecking) is important because it [[[wrongfully]]] up-ended (in some WA counties, not all) SPECIFIC written legislative intent for a 90 day cooling-off period to be applied to legal separations as well as divorces (Washington 1973 Dissolution Act).<br />
<strong>A first-glance reading of the holding without reading the full the context of the <em>two types of actions</em> misrepresents the decision.</strong></p>
<p>RCW 26.09.030(a) refers to &quot;the decree&quot; when it is a dissolution, and (d) refers to &quot;the decree&quot; when it is a legal separation; the other parameters <em>remain the same</em>.</p>
<p>Amy Buecking's &quot;cooling off&quot; post petition for legal separation did not sum into the entirely different &quot;cooling off&quot; post petition for her divorce.</p>
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<li><p>Further, after Amy properly filed for legal separation day 1 (12/12/08), she should have, if the court has SMJ, long before day 476 (4/2/10) have been granted a decree of legal separation (DLS).  Why wasn't the petition signed?</p>
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<li><p>The appellate brief says that on day 476 (4/2/10) Amy filed &quot;an amended petition for dissolution, replacing the petition for legal separation she filed more than a year earlier.&quot;   [[[Amy would have long ago had a DECREE for legal separation by day 90 or April 2, 2010, then per RCW 26.09.150 because it had been far more than 6 months (180 days) since filing for said legal separation.  By 6 months plus 90 days or 270 days since, on 9/8/09, Amy could have easily gotten an immediate conversion of the decree of legal separation to a decree of dissolution:  &quot;RCW 26.09.150(2)(a) No earlier than six months after entry of a decree of legal separation, on motion of either party, the court shall convert the decree of legal separation to a decree of dissolution...&quot;]]]</p>
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<li><p>The case goes on to say that on day 558 a judge entered a decree of divorce &quot;on the amended petition.&quot;  [[[The judge should have been abe to enter a decree of divorce on the decree of legal separation per RCW 26.09.150(2)(a) immediately after motion to convert on 4/2/10.]]]</p>
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<li><p>Then on day 707 Tim's motion to vacate the DD because it was issued before the end of a 90 day wait period (day 82) was denied so Tim filed an appeal.  [[[But per RCW 26.09.150 there would have been no wait at all on top of the 6 months had the petition for legal separation been signed.]]]</p>
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<li><p>Then in September of 2011 the Appellate Court ruled that there is NO applicability of the wait period for legal separation petitions to the wait period for divorce petitions.</p>
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<li><p>The appellate briefs do not ever call out the missing the decree of legal separation, in fact the term &quot;decree of legal separation&quot; is totally missing.</p>
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<p>The fact that the divorce decree was signed on day 82 did not impinge on the subject matter jurisdiction, so Tim lost on this point.</p>
<p>It's obvious that a 90 day cooling-off period for legal separations alone, is irrelevant to this case.  It makes no sense to remove it against the will of the legislature's Dissolution Act of 1973.  If you have any thoughts I'd appreciate them, thank  you.</p>

<p>The matter was unambiguously resolved for the whole state by the Washington Supreme Court in <a href="https://casetext.com/case/buecking-v-buecking" rel="noreferrer">Buecking v. Buecking</a>, 179 Wn. 2d 438. The trial court erroneously granted the divorce 82 days after the petition for dissolution was files, contrary to state law. Mr. Buecking did not object, and only later argued that the trial court lacked subject matter jurisdiction before 90 days had passed. The Court of Appeals held that if the trial court erred by entering a decree of dissolution before 90 days had passed, it was a legal error that did not involve the court's subject matter jurisdiction.</p>
<p>The Supreme Court reaffirms the interpretation of the law – 90 days since the filing of <em>the</em> petition for dissolution, not 90 days since the filing of <em>some</em> petition (separation) that ultimately leads to dissolution.  Buecking claims that the 90 day period is intended to limit the court's subject matter jurisdiction. The Supreme Court instead finds that &quot;if a court can hear a particular class of case, then it has subject matter jurisdiction&quot;. So the lower court error was a legal error, and not a lack of subject matter jurisdiction.</p>
<p>Bruening lost because he failed to make the correct legal objection to the trial court, and the 90 day rule is valid state-wide.</p>
