The purpose of this chapter is to provide a straightforward procedure so that marriages may be ended in the most harmonious way possible.
This chapter deals with issues related to the spouses during a divorce. Chapters 21.03, Child Support and 21.05, Child Custody deal with issues related to the children during and following divorce. The well-being of children has long been of utmost importance to the Port Gamble S’Klallam Tribe. In divorces involving children, the policies stated in sections 31.03.01 and 21.05.01 shall guide the interpretation of this chapter.
This chapter may be used to divide the property and debts of unmarried couples. The restraining order provisions may be used to protect an unmarried party.
(Res. 04 A 034, 3/9/2004)
(a) 
Subject Matter Jurisdiction. The Community Court shall have jurisdiction over the subject matter of this chapter when:
(i) 
One of the parties or children is an enrolled member of the Port Gamble S’Klallam Tribe; or
(ii) 
One of the parties is a resident of the Port Gamble S’Klallam reservation.
(b) 
Personal Jurisdiction. When the Court does not have personal jurisdiction over a respondent and the respondent does not submit voluntarily to the Court’s jurisdiction, a decree of Divorce, Invalidity of Marriage or Legal Separation may be issued if:
(i) 
The respondent was given notice as provided in section 21.04.09 and was given a reasonable opportunity to respond;
(ii) 
The petition satisfies the requirements of this chapter; and
(iii) 
The status of marriage is the only issue adjudicated by the Court under this chapter.
(Res. 04 A 034, 3/9/2004)
[1]
Note: This section is intended for clarification, not to restrict the scope of jurisdiction set forth in Section 1.02.01, Jurisdiction. The personal jurisdiction subsection adopts a rule similar to Washington State law. Cross Reference: Section 21.05.02 Child Custody and Visitation – Personal Jurisdiction.
A petition for divorce, invalidity of marriage or legal separation shall be prepared on a form approved by the Court Administrator. It may be filed as a separate proceeding or it may be filed in connection with:
(a) 
A petition for paternity establishment or disestablishment under chapter 21.02;
(b) 
A petition for child custody under chapter 21.05;
(c) 
A petition for child support under chapter 21.03;
(d) 
A domestic violence protection order under chapter 16.06; or
(e) 
A vulnerable adult protection plan under chapter 16.07.
(Res. 04 A 034, 3/9/2004)
A petition for divorce, invalidity of a marriage or legal separation shall contain:
(a) 
The name, date and place of birth, social security number, tribal affiliation and last known address of each party;
(b) 
The date of and location where the marriage occurred;
(c) 
If the parties are separated, the date of separation, and whether there is a written separation agreement;
(d) 
Petitioner’s recommendation for division of property and debts, on a form approved by the Court Administrator. The recommendation for division of property and debts may be filed later, as provided in section 21.04.22;
(e) 
A petition for divorce or legal separation shall state that the marriage is irretrievably broken. A petition for invalidity of marriage shall state briefly the reason for the request for invalidity;
(f) 
Whether any of the following proceedings involving the parties or the child are pending or have taken place in any court:
(i) 
Child custody proceeding;
(ii) 
Child support proceeding;
(iii) 
A request for a domestic violence protective order or vulnerable adult protection plan; or
(iv) 
A request for a restraining order involving the child or a party.
(g) 
A statement as to whether or not the woman is pregnant;
(h) 
A statement as to whether or not the respondent is in the military, or a statement that the petitioner does not know; and
(i) 
If there are children dependent on either spouse:
(i) 
The name, date and place of birth, age, address, social security number, and tribal affiliation of all children dependent on either or both of the spouses; and
(ii) 
A completed Parenting Plan, on a form approved by the Court Administrator, containing the proposed arrangements for the custody, visitation and support of the dependent children. The Parenting Plan may be filed later, as provided in section 21.05.14 (c).
(Res. 04 A 034, 3/9/2004)
[1]
Note: The Soldiers’ and Sailors’ Civil Relief Act, 50 U.S.C. App. 501 et seq. does not, by its terms, apply to tribal courts (50 U.S.C. App. 511). A tribal court is therefore not required to appoint an attorney for a defaulting military respondent. The Court may choose to stay proceedings for absent military defendants as a matter of fairness. Cross Reference: Section 21.05.14.Parenting Plan.
When the Court receives a petition, it shall set a hearing date which shall not be more than thirty five (35) calendar days after the petition was filed, or not more than seventy five (75) calendar days if service is by publication, unless continued for good cause. The date, time and place of the hearing shall be contained in the summons.
(Res. 04 A 034, 3/9/2004)
The hearing that is set at the time the divorce petition is filed will be either:
(i) 
A full hearing on the divorce, invalidity of marriage or legal separation if the parties have no minor children or if they agree on custody; or
(ii) 
A child custody preliminary hearing under section 21.05.20.
During a preliminary child custody hearing, the Court may also hear motions under this chapter for temporary orders, as provided in sections 21.04.13 – 21.04.17 and proposed agreed orders, as provided in section 21.04.19.(b).
(Res. 04 A 034, 3/9/2004)
[1]
Cross Reference: Section 21.05.20 Child Custody Preliminary Hearing.
After a petition is filed, the petitioner shall cause the respondent to be served with a copy of the petition, summons and notice of the first hearing. The petition, summons and notice of the hearing shall be served in sufficient time before the hearing to give the respondent twenty (20) calendar days to respond, or sixty (60) calendar days when service is by publication, and then ten (10) calendar days for the petitioner to consider the response. If either party does not receive this amount of time before the hearing, a continuance may be granted upon request.
The petition, summons and notice shall be served as provided in section 21.01.11.
The parties may sign a joint petition and by doing so, waive the requirements of service of the petition and summons.
(Res. 04 A 034, 3/9/2004)
The summons, prepared on a form approved by the Court Administrator, shall notify the respondent that if he or she does not appear or respond to the petition within twenty (20) calendar days from the date of service or within sixty (60) calendar days of the date of publication, if service is by publication, the Court may proceed without the respondent and a default judgment may be entered without his or her participation.
(Res. 04 A 034, 3/9/2004)
The person serving the summons and petition shall file with the Court certification that he or she has served the respondent, including the date and place of service. If service was made on a person other than the respondent, the certification shall state the name of the person served, the date and place of service, and the instructions given.
In case of service by certified mail, the return receipt shall be filed with the Court and shall constitute the proof of service. In case of service by publication, an affidavit signed by the person causing the notice to be published and a copy of the summons as published shall constitute the proof of service.
(Res. 04 A 034, 3/9/2004)
Unless the parties have filed a joint petition, the respondent shall file his or her response within twenty (20) calendar days after the respondent is served with a copy of the petition, or within sixty (60) calendar days if service was by publication. The response shall include a recommendation for division of property and debts on a form approved by the Court Administrator, unless the respondent chooses to file the recommendation later, as provided in section 21.04.23.
(Res. 04 A 034, 3/9/2004)
There are three types of orders in a divorce, invalidity of marriage or legal separation case: emergency, temporary and final.
An emergency order can be issued immediately, without notice or a hearing and it only lasts until the first hearing.
A temporary order is issued after notice and a hearing and it lasts until the final order (also called the “decree”). A temporary order can follow an emergency order and cover the same things or a temporary order can be the only order before the final order.
Some parties may only need a final order (“decree”).
(Res. 04 A 034, 3/9/2004)
A party may request, by motion and affidavit, an emergency order or a temporary order during the time before the final decree. The affidavit shall be signed in front of a notary and it shall set forth the factual basis for the motion. Emergency or temporary orders may include, but are not limited to, the following provisions:
(a) 
Children. Custody, parenting or visitation of a dependent child, as provided in sections 21.05.16;
(b) 
Property or Money.
(i) 
Restraining a person from transferring, encumbering, concealing or disposing of any individually or jointly owned property of the parties;
(ii) 
Restraining a party from incurring debt except in the usual course of business or for the necessities of life; or
(iii) 
Requiring a party to pay certain debts;
(c) 
Other. Emergency or temporary orders:
(i) 
Restraining a party from entering the home or workplace of the other party;
(ii) 
Restraining a party from going within a certain distance of the other party;
(iii) 
Restraining a party from threatening or harassing the other party; or
(iv) 
Any other restraint or requirement designed to protect a party or the party’s child or property from injury by the other party.
Emergency and temporary restraining orders shall contain a notice warning the party restrained that violation of the restraint provisions of the order is grounds for contempt of court and for arrest and that he or she will be arrested even if the person who obtained the order invites or allows him or her to violate the order’s prohibitions.
(d) 
Domestic Violence Protection Orders. These orders are issued under the procedures of Title 16.06. A party may request a domestic violence protection order in connection with a divorce, invalidity of marriage or legal separation proceeding. Domestic violence protection orders differ from restraining orders in that they are entitled to immediate enforcement off the reservation.
(Res. 04 A 034, 3/9/2004)
[1]
Cross Reference: Section 1.06 Contempt of Court; Section 5.04.10 Violating Restraint Provisions of a Restraining Order or Domestic Violence Protection Order.
The Court may issue an emergency order, pending a hearing on a temporary or final order, without notice to the other party if:
(a) 
The moving party demonstrates to the Court by written affidavit that immediate and irreparable damage, injury or loss will occur unless restrained by the Court; and
(b) 
The moving party provides written reasons why notice should not be required and written certification of his or her efforts, if any, to notify the other party.
A judge or judicial officer shall have authority to issue emergency orders.
The emergency order shall contain a statement of the injury, why it would be irreparable if not restrained, why the order was granted without notice, and the expiration date which shall not be later than the first hearing.
A hearing on a temporary or final order shall be scheduled within thirty-five (35) days.
The emergency order shall be served upon the other party. It may be modified, vacated, or set aside by motion of either party upon notice and opportunity for hearing.
(Res. 04 A 034, 3/9/2004)
A motion for a temporary order shall be accompanied by an affidavit signed in front of a notary and setting forth the factual basis for the motion and the temporary relief requested. The motion may also be made in open court.
Notice of a hearing for the motion shall be given as provided in section 21.01.16.
(Res. 04 A 034, 3/9/2004)
(a) 
Purpose. There may be circumstances when parties do not wish to divorce but need to have their separation be recognized so that they are not liable for each others’ future debts and so that they do not jointly own property. These circumstances may include parties who are prohibited by their church from divorcing or victims of domestic violence who need separation while their partner gets help and who may want to reunite if the partner reforms.
(b) 
Procedure and Grounds. The procedure and grounds for obtaining a decree of legal separation is the same as for obtaining a decree of divorce.
(c) 
Effect. Legal separation terminates the parties’ rights and duties as spouses except that it does not affect inheritance or life insurance, health insurance or other status-related benefits.
(Res. 04 A 034, 3/9/2004)
(a) 
Closed Hearings. Only those persons the Court finds to have a legitimate interest in the proceedings may attend hearings under this chapter.
(b) 
Joint Petitions and Proposed Agreed Orders. The parties to proceedings under this chapter may file a joint petition or agree to a proposed order that resolves some or all of the issues of the case. Before approving any joint petition or agreed order, the Court shall review it to determine that:
(i) 
No party’s consent to the proposed order is the result of coercion, threat, duress, fraud, over-reaching, or improper promise on the part of any person; and
(ii) 
No aspect of the agreement is likely to put a victim of domestic violence at increased risk.
The judge may hold an in-chambers, ex-parte discussion with any party.
If the Court finds that consent was not truly voluntary the joint petition or agreed order shall not be entered and the case shall proceed to a full hearing.
If the joint petition or proposed agreed order resolves all the issues before the Court, the Court may enter the proposed agreed order as the final order without a full hearing.
(c) 
Referral to Counseling. If one party denies that the marriage is irretrievably broken or on the Court’s own motion if reconciliation appears to be possible, the Court may refer the parties to counseling and continue the case for a reasonable time established by the Court. Spouses with a history of domestic violence shall not be sent to reconciliation counseling.
(d) 
If there is not a joint petition or agreed order, the Court shall review the documents filed in the case, hear the testimony of each party, and consider any other evidence presented.
(Res. 04 A 034, 3/9/2004)
[1]
Cross Reference: Section 21.03.20 (a) Child Support Hearing Conduct – Who May Attend.
The only basis for divorce is that the marriage is irretrievably broken. Other reasons shall not be considered relevant by the Court.
The Court shall enter a decree of divorce or legal separation if:
(a) 
The Court has considered and made provision for the parenting and support of any dependent child of the marriage, and the division of property and debts; and
(b) 
The Court finds that the marriage is irretrievably broken.
(Res. 04 A 034, 3/9/2004)
The Court shall enter a declaration of invalidity of the marriage as of the date it took place if:
(a) 
The Court has considered and made provision for the parenting and support of any dependent child of the marriage, and the division of property and debts; and
(b) 
One of the following circumstances holds true:
(i) 
One party lacked capacity to consent to the marriage and that party is the one petitioning for invalidity;
(ii) 
There is a prior undissolved marriage of one of the parties;
(iii) 
One party entered the marriage because of force, duress or fraud and that party is the one petitioning for invalidity; or
(iv) 
The marriage was void in the jurisdiction where it took place.
(Res. 04 A 034, 3/9/2004)
A party must file his or her recommended division of property and debts and cause it to be served on the other party within ten (10) calendar days before the hearing unless it has been filed with the petition or response.
If there are children of the marriage, property and debts shall be divided with the children’s well-being as the primary objective.
If the parties have agreed to the division of property and debts, the agreement shall be reviewed according to the Proposed Agreed Order provisions of section 21.04.19 (b).
If the parties have not agreed to the division of property and debts, the Court may order the parties to attempt to reach agreement, except in cases where the parties have a history of domestic violence. In the absence of agreement by the parties, the Court shall divide the parties’ property and debts. In making the division, the Court shall be guided by the following factors:
(a) 
Property shall be divided with the minor children’s well-being as the first and foremost consideration;
(b) 
Property and debts acquired during the marriage belong equally to the spouses unless the spouses have agreed that certain property or debts are separate. The Court may be guided by, but is not bound by, the principles of community property law;
(c) 
Neither inherited property nor property held in trust by the U.S. for the individual is subject to property division by the Court;
(d) 
If a party owns or is purchasing a home on land assigned on the Port Gamble S’Klallam Reservation, a copy of the purchase or ownership agreement and a copy of the lot assignment certificate shall be submitted to the Court before the final division of property.
Lot assignment, ownership and occupancy are three different issues. Lot assignment and lot occupancy are within the exclusive authority of the Tribal Council. Decisions regarding home ownership may be within the jurisdiction of the Court if the home can be separated from the lot.
The Court may stay the proceedings under this chapter while the Tribal Council makes a decision regarding lot assignment and/or occupancy so that the Court can take the Tribal Council’s decision into account in dividing the rest of the couple’s property and debts.
(e) 
In cases where the parties have a history of domestic violence common ownership of property should be avoided and the Court may use property division to help promote the independence of the abused spouse.
(Res. 04 A 034, 3/9/2004)
[1]
Cross Reference: Sections 10.01.20 – 10.01.24 Disposition of Assignment on Divorce.
Before the final division of debts, the Court shall notify the parties of the following:
“Even if the Court assigns a debt to your spouse, credit collectors can still attempt to collect from you. For example, if the Court assigns to your spouse the repayment of a credit card bill and the credit card was in your name or in your name and your spouse’s name, jointly, the credit card company will still hold you responsible for the debt if your spouse does not pay the bill. Each of you should notify all your creditors in writing that you are separated or divorced and will not be liable for the future debts of your ex-spouse.”
(Res. 04 A 034, 3/9/2004)
When the respondent fails to appear or otherwise defend, the petitioner may request a default divorce, invalidity of marriage or legal separation decree. The Court may enter a default decree of divorce, invalidity of marriage, or legal separation, including the provisions of the proposed division of property and debts, upon finding the following:
(a) 
The Court has jurisdiction over the subject matter of the case;
(b) 
The respondent was given proper service of the petition and summons and proper notice of the hearing; and
(c) 
The petition satisfies the requirements of this chapter.
Notice of the default decree shall be served on the respondent.
(Res. 04 A 034, 3/9/2004)
(1) 
After the hearing or upon approval of a joint petition or agreed order, the Court shall enter two court orders: 1.) “findings of fact, conclusions of law and order on property and debts” and 2.) a separate “decree” of divorce, invalidity of marriage or legal separation. The findings of fact and conclusions of law shall include:
(a) 
The basis for the Court’s jurisdiction over the case;
(b) 
The address of each party;
(c) 
The date the marriage occurred;
(d) 
A statement indicating when the petition was filed and when and how the respondent was served;
(e) 
A statement as to whether or not the respondent is in the military;
(f) 
A statement as to whether or not the woman is pregnant;
(g) 
A statement as to whether the parties entered into a written separation agreement, the date of any agreement and a finding as to whether the agreement was fair or unfair;
(h) 
A statement that the marriage of the parties is irretrievably broken; or the basis for the invalidity of the marriage; and
(i) 
A statement regarding any name change that is applicable;
(2) 
The order on property and debt shall include:
(a) 
A statement describing any property that should be awarded to each party, free from claim of interest of the other party; and
(b) 
A statement describing any debts that should be paid by each party.
(Res. 04 A 034, 3/9/2004)
The decree of divorce, invalidity of marriage or legal separation shall include:
(a) 
A statement that the Court has jurisdiction over the case;
(b) 
The date the marriage occurred;
(c) 
Any name change that is applicable;
(d) 
A statement that the marriage is dissolved or invalidated or that the parties are legally separated; and
(e) 
A statement that property and debts shall be divided as provided in the order on property and debts.
(Res. 04 A 034, 3/9/2004)
If the parties with a legal separation decree reconcile, they may request, by written affidavit, that the legal separation decree be vacated (terminated). Upon motion by both parties, the Court shall vacate the legal separation decree.
Six months after entry of a legal separation decree, one party may request, by written affidavit, that the decree be converted to a divorce decree. Upon motion by a party, the Court shall convert the legal separation decree to a divorce decree.
(Res. 04 A 034, 3/9/2004)