“Abusive litigation” means a legal action taken in court or related to a court case that is intended to harass or intimidate you, or to continue to have contact with you.¹ Abusive litigation can be any kind of legal action, including:

• filing or serving a summons, complaint, demand, or petition;
• filing or serving a motion, notice of court date, note for motion docket, or order to appear; or
• filing or serving a subpoena, subpoena duces tecum, request for interrogatories, request for production, notice of deposition, or another discovery request.² 

Washington law recognizes that abusers often misuse court proceedings in order to control, harass, intimidate, or coerce their partner or to force them to spend money on litigation.³ If you are facing abusive litigation, you may be able to ask the court to restrict the ability of the abuser to continue to file new cases or motions.

¹ R.C.W. § 26.51.020(1)
² R.C.W. § 26.51.020(3)
³ R.C.W. § 26.51.010

There are certain circumstances that will create what is called a “rebuttable presumption” that the court case against you is, in fact, abusive litigation. This means that if you can show one of the following situations has happened, the judge will assume the litigation is abusive and the abuser would then bear the burden of proving otherwise:

1. The same or substantially similar issues have been litigated in any court between you and the abuser within the past five years;
2. The same or substantially similar issues have been raised or pled in a court case in the past five years and the judge heard the evidence and made a decision (decided on the merits) or it was dismissed “with prejudice,” which means it cannot be re-filed;
3. The abuser has been punished (sanctioned) in the past ten years under Superior Court Civil Rule 11 or a similar rule or law in another state because s/he filed one or more cases against you that were found to be without a legal basis (frivolous), harassing (vexatious), “intransigent,” or in bad faith; or
4. The abuser has been found by a court in another judicial district to have engaged in abusive litigation or similar acts and that court placed pre-filing restrictions on him/her.¹

¹ R.C.W. § 26.51.050

For you to be able to request an order, all of the following must be true:

1. The person engaging in abusive litigation is your current or former intimate partner, which is defined as:
   
   1. your current or former spouse or domestic partner;
   2. someone you have a child with, unless the child was conceived through sexual assault; or
   3. someone you are currently dating or have dated, as long as you both were at least 13 years old;¹
2. The person engaging in abusive litigation has been found to have committed domestic violence against you by:
   
   1. a domestic violence protection order, stalking protection order, civil anti-harassment order, sexual assault protection order, vulnerable adult protection order, extreme risk protection order, or a protection order entered under former chapter 26.50 of the law;
   2. a parenting plan with restrictions based on a history of domestic violence, or an assault or sexual assault that caused:
      
      1. serious bodily injury;
      2. fear of serious bodily injury; or
      3. a pregnancy; or
   3. a restraining order entered under Chapters 26.09, 26.26A, or 26.26B of the law, as long as the judge made a specific finding that the order was necessary due to domestic violence;² and
3. The litigation is intended to harass or intimidate you, or to keep contact with you.²

You will also have to show that one of the following factors applies in your case:

1. the legal claims against you are not based on:
   
   1. any existing law;
   2. a reasonable argument that the current law should be changed; or
   3. a reasonable argument for passing a new law;
2. there is no evidence for the factual allegations against you; or
3. one or more of the issues that the abuser is using as the basis of the current case against you have already been filed in another court, and the abuser lost in that other court after the issues were litigated.³ 

¹ R.C.W. § 7.105.010(20)
² R.C.W. § 26.51.020(1)(a)
³ R.C.W. § 26.51.020(1)(b)

There is no filing fee to request an order restricting abusive litigation.¹

¹ R.C.W. § 26.51.030(4)

If after you present all of your evidence, the judge decides that the litigation against you is not abusive, the judge is required to issue a written order explaining why. The case that the abuser has brought against you will then proceed normally and you will be expected to participate in it.¹

You can read more about appealing an order if you believe the judge made an error, and you can look for a lawyer if you need advice on your options at this stage. If you are hoping to prevent the abuser from contacting you outside of court, you may also want to read about Protection Orders to see if you qualify.

¹ R.C.W. § 26.51.060(3)