Posted on December 10, 2020 by James Stensel
In March 2020, the Washington State Legislature passed legislation against “abusive litigation.” Abusive litigation is regularly perpetrated by domestic violence abusers and has been referred to as “legal bullying.” . In addressing this problem, the Legislature recognized that family law cases including dissolutions, legal separations, parenting plan actions, and protection order proceedings are commonplace for abusive litigants. Under RCW 26.51.et. seq., the Legislature summarized that:
[I]ndividuals who abuse their intimate partners often misuse court proceedings in order to control, harass, intimidate, coerce, and/or impoverish the abused partner. Court proceedings can provide a means for an abuser to exert and reestablish power and control over a domestic violence survivor long after a relationship has ended. The legal system unwittingly becomes another avenue that abusers exploit to cause psychological, emotional, and financial devastation. This misuse of the court system by abusers has been referred to as legal bullying, stalking through the courts, paper abuse, and similar terms. The legislature finds that the term “abusive litigation” is the most common term and that it accurately describes this problem.
While having no effect on a person’s constitutional right to access to the courts, the new laws grant the court additional discretion to terminate, mitigate, and address abusive litigation.
Under this new legislation, a victim may assert a claim of abusive litigation if the party filing or advancing the litigation is currently or previously an intimate partner, and has been found to have committed domestic violence against the victim. At the same time, the court must find that the claims, allegations, and other legal contentions are not warranted under the law, or that the factual contentions are not supported by evidence, or that the issue presented was previously filed and disposed of unfavorably to the party advancing the claim.
Under the new law, the courts are now empowered to enter an order restricting abusive litigation, which may be requested by party motion, motion response, petition, answer, or even by the court upon its own motion. Upon request, the court will set a motion hearing to determine whether the litigation meets the definition of abusive litigation. If the court finds by a preponderance of the evidence that a party is engaging in abusive litigation, the action will be denied. In addition, the court will enter an “order restricting abusive litigation,” which will impose all costs and reasonable attorney fees incurred, and will impose a not less than 4- and not more than 6-year pre-filing restriction upon the party found to have engaged in the abusive litigation. The abusive litigator will be required to seek permission from the court before proceeding with future litigation against the other party.
For domestic violence survivors who are continuing to be dragged through the courts by their abusers, this new law provides a much-needed avenue for relief from abusive litigation, effective January 1, 2021.