A spokane woman trying to divorce her estranged husband two years after he was jailed for beating her has been told by a judge she can't get out of the marriage while she's pregnant...

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SPOKANE — A Spokane woman trying to divorce her estranged husband two years after he was jailed for beating her has been told by a judge she can’t get out of the marriage while she’s pregnant.

The case pits a first-year attorney who argues that state law allows any couple to divorce if neither spouse challenges it against a longtime family-law judge who says the rights of the unborn child in this type of case trump a woman’s right to divorce.

“There’s a lot of case law that says it is important in this state that children not be illegitimized,” Spokane County Superior Court Judge Paul Bastine told The Spokesman-Review newspaper.

Further complicating things, Shawnna Hughes says her husband is not the child’s father.

The judge argued that the paternity of Hughes’ child needs to be determined before a divorce is finalized.

But the bottom line, says Hughes’ attorney, Terri Sloyer, is that there’s nothing in state law that says a woman can’t get a divorce if she’s pregnant.

“We don’t live in 15th-century England,” Sloyer said. “I am absolutely dumbfounded by it.”

Hughes’ husband, Carlos, was convicted in 2002 of beating her. She separated from him after the attack and filed for divorce last April. She later became pregnant, and her baby is due in March.

Her husband never contested the divorce, and Court Commissioner Pro Tem Julia Pelc approved it in late October.

However, the approved divorce papers didn’t note that Hughes was pregnant. Sloyer filed amended papers to correct the omission, and the next day, she spoke with the judge by phone. Bastine said he planned to rescind the divorce, and then did so after a Nov. 4 hearing.

“It’s not the child’s fault that mom got pregnant,” Bastine said. “The answer is, you don’t go around doing that when you’re not divorced.”

Sloyer has appealed.

“This is a very dangerous precedent to set — particularly in this case, with a woman who is a victim of domestic violence,” Sloyer said.

In comments submitted to Bastine, Hughes said: “If this court vacates my divorce and requires me to stay married to a man I have no desire ever to have a relationship with and who has brought significant physical harm to me over the years, I would be emotionally devastated. If the court vacates my divorce and stays it until the birth of my child, it will prevent me from marrying the father of my child prior to her birth.”

The state’s Uniform Parentage Act sets the rules on who cares for children, including those not yet born in cases of divorce. A husband is presumed to be the father of any child born up to 300 days after a divorce.

“One of the problems here was that the child was not made party to the litigation,” Bastine said. “There are statutory provisions that deal with paternity. Those are the statutes that are critical ones that determine the rights of the child.”

Hughes has stated in court records that the father is her boyfriend.

“She has the right to divorce and be free to marry whoever she wants,” Sloyer said. “It’s about the choice, the fundamental right to choose.”

James Hardisty, a professor at the University of Washington School of Law, said he had never heard of a judge rescinding a divorce because of a woman’s pregnancy. But he noted that a 1981 state Supreme Court ruling gives courts the right to put divorces on hold when matters like child custody and division of property still need to be resolved.