Dividing Property In A Washington Divorce

by ECL Writer
Filing for Adverse Possession in DC

Dividing Property In A Washington Divorce – Dividing property during a divorce can be a complex and emotionally charged process, and this holds true in the state of Washington. With its unique laws and regulations, understanding how property division works in a Washington divorce is crucial for couples navigating the dissolution of their marriage.

From community property principles to equitable distribution factors, this Eastcoastlaws.com article provides an overview of the key considerations involved in dividing property in a Washington divorce, helping individuals make informed decisions and navigate this challenging aspect of their separation.

Is Washington A Community Property State?

Nine states in the United States, including Washington, use the “community property” concept to determine who is responsible for paying off a married couple’s debts and assets. (Washington Revised Code 26.16.030 (2022)). State law distinguishes between each spouse’s separate property and community property, which refers to the assets and liabilities that couples jointly hold (see below for more on what each phrase means).

How Is Community Property Divided In A Washington Divorce?

It makes no difference how much money each spouse made during the marriage in a state where divorce is 50/50. Unless the property is deemed to be separate, all income, assets, obligations, and property accumulated during the marriage are regarded as community property and are subject to distribution. Separate property includes any possessions acquired before the marriage, as well as inheritances given to just one spouse. However, if distinct property has been combined with shared land, it may be very challenging to divide. Your shared property may be divided by the court or by negotiation in a method akin to the following.

  • Each asset, property, and debt will first be characterized as either community or separate.
  • Second, a value will be assigned to each asset and property. This can be done by either selling it or having an expert appraise it. 
  • Lastly, assets, property, and debts are divided between the parties.

The type and amount of separate and marital property, the length of the marriage, and the financial situation of each spouse at the time of the division are additional factors that could have an impact on the divide. The state will not take into account undesirable actions like having an affair when considering how property is divided unless a spouse wasted community property prior to the divorce becoming final.

How Do Judges Decide What’s Fair When Dividing Property?

According to Washington state law, judges must take into account all relevant factors, such as the following, before determining what would be an equitable property division in a specific divorce:

  • the nature and extent of the couple’s community property
  • the nature and extent of each spouse’s separate property
  • how long the marriage lasted, and
  • each spouse’s economic circumstances once the divorce is final, including whether it’s desirable to award the family home to one spouse or to allow the primary custodial parent (with whom the children live most of the time) to live in the home for “reasonable periods of time.”

However, the law expressly states that the judge must not take into account either spouse’s dishonesty when determining a just division of their assets or debts. (Washington Revised Code 26.09.080 (2022))

Washington courts have ruled that judges may consider the couples’ age and health when determining how they will fare financially following the divorce. Additionally, the property divide following extremely lengthy marriages (lasting 25 years or more) should place the partners in “roughly equal financial positions for the rest of their lives.” (In re Marriage of Rockwell, 170 P.3d 572 (Wash. Ct. App. 2007)

Do You Get to Keep Your Separate Property in a Washington Divorce?

In states with community property laws, spouses often preserve their individual assets and only share the common property during a divorce. But in Washington, this rule is not applicable. According to state law, divorce judges must fairly distribute the parties’ assets and obligations, “either community or separate,” after the divorce is finalized.

(Wash. Rev. Code § 26.09.080 (2022).)

Characterizing And Valuing Community And Separate Property

Since the judge will divide the property equally, you might be wondering why it’s important to distinguish between community and separate property in a Washington divorce. The explanation is related to the decision-making criteria. Because the law compels judges to take into account the kind and quantity of the spouses’ separate and communal property, there are two tasks that must be completed before a fair property distribution can be determined:

  • characterizing the couple’s property and debts as either separate or community, and
  • assigning a value to all of the assets and debts.

Property division results are independent of how it is classified (as separate or community). It is merely a step in the process of determining what is just. For instance, if one spouse possesses significantly more valuable separate property than the other spouse, that may have an effect on their respective financial situations following the divorce.

What Is Considered Separate Property in Washington?

Washington law defines separate property as any property that a spouse owned before getting married or acquired afterward as a gift or inheritance. Debts that either spouse took on before marriage are separate. Separate property also includes each spouse’s earnings (and accumulations like interest) after the couple has separated, even though they aren’t yet divorced. (Wash. Rev. Code §§ 26.16.010, 26.16.140, 26.16.200 (2022).)

What Is Considered Community Property in Washington?

Community property is defined in Washington as all property that doesn’t fall under the definition of separate property and that either or both spouses acquire during the marriage. (Wash. Rev. Code § 16.16.030 (2022).)

Note that sometimes, spouses may change separate property into community property, and vice versa (in a process sometimes called “transmutation“). They might do this accidentally—for instance, by mixing up separate and community funds in a joint account to the point where it’s impossible to trace them. Or they might do it on purpose—for instance, by transferring the title of a house.

How Is Property Valued?

When you have any financial issues at stake (including property division), you and your spouse must exchange complete information about your income, expenses, assets, and debts after you file for divorce in Washington.

Typically, you and your spouse will assign a value to all of your property—preferably as part of the process of preparing your financial information before the divorce. But if the two of you disagree on the value of any particular asset, the judge may have to decide for you, based on the evidence you both provide.

You’ll probably need the help of financial experts—such as appraisers or actuaries—to set a value on certain types of property, including your house, retirement accounts, or family business.

50/50 Vs. Equitable Distribution

Most other states follow laws governing equitable distribution when dividing property. Divorcing spouses divide property, debts, and assets gained during a marriage fairly yet unequally. The division that the court finds to be fair may very well be 50/50, 40/60, 25/75, or any other division that is fair but unequal. The specifics of the spouses’ case will determine this.

Do Assets Have To Be Divided 50/50 In Washington?

It is required by the state’s community property laws that assets be divided equally among spouses, although this is not a requirement. Couples are exempt from having to divide community property equally in the following circumstances:

  • A prenuptial or postnuptial agreement ensures certain assets remain separate in the event of a divorce.
  • The couple reaches an agreement on splitting assets (as long as it doesn’t leave one spouse completely broke). 

Couples may try to determine how to divide their marital property on their own because applying community property concepts to the division of assets and property may seem unfair. If they are unable to reach an agreement regarding the division of their property, a Washington court will make the final determination, which will eventually be subject to the state’s community property laws.

Who Gets The Family House In A Washington Divorce?

There are no definite guidelines under Washington law regarding who gets to keep the family home following a divorce, except the general objective of justice. The judges will decide whether the primary custodial parent should be permitted to live in the home with the children, at least for a specific period of time, based on the specific facts of your case if you and your spouse are unable to come to an agreement regarding how to handle the house.

To achieve an equitable allocation of the couple’s assets, the court will generally award the other spouse with different assets—such as retirement accounts—if the judge grants one spouse the home. However, the judge can force the couple to sell the house and divide the money if they don’t have enough other assets to allow for a fair distribution overall. Work out an agreement with your spouse (more on that below) if you don’t want to be forced to sell your home.

Can Washington Couples Decide For Themselves How To Divide Their Property?

You and your spouse can always determine how to divide your assets yourself rather than letting a judge make that decision for you when you get divorced. The judge will typically approve the arrangement unless it seems unfair, but you must submit your signed, written agreement to the court.

Additionally, you will be able to file for an uncontested divorce in Washington if you and your spouse come to a comprehensive marital settlement agreement before you submit your divorce papers, covering all the legal concerns involved in ending your marriage. Traditional contentious divorces are far more expensive, drawn-out, and difficult than uncontested divorces. Many couples can handle an uncontested divorce without a lawyer, either by doing everything themselves or by employing a low-cost online divorce service to speed things up.

Factors Influencing Property Division In Washington Divorces

In Washington state, property division in divorces is primarily governed by the principle of “community property.” However, the court has the discretion to make an equitable distribution of assets and liabilities based on various factors. Several key factors influence property division in Washington divorces.

Firstly, the duration of the marriage is a crucial consideration. Longer marriages tend to result in a more equal division of property, as spouses are presumed to have made equal contributions throughout the relationship. On the other hand, in shorter marriages, the court may focus on restoring each spouse to their pre-marital financial state.

Secondly, the nature and extent of the community property and separate property play a significant role. Community property generally includes assets and debts acquired during the marriage, while separate property consists of assets owned before marriage or acquired through inheritance or gifts. The court typically divides community property equally, but it can deviate from this principle if there are compelling reasons.

Thirdly, the financial circumstances of the parties are considered. Factors such as earning capacity, income, and potential for future acquisition of assets may influence the distribution. If one spouse has a significantly higher income or earning potential, the court may award a larger share of the community property to the lower-earning spouse to achieve a fair outcome.

Moreover, the court examines the contributions of each spouse to the marriage, both financial and non-financial. Monetary contributions, such as income and investment, are assessed alongside non-financial contributions, such as homemaking or child-rearing. The court acknowledges these contributions and may adjust the property division accordingly.

Other factors impacting property division include the age and health of the parties, their employability, their standard of living during the marriage, and any prenuptial or postnuptial agreements in place.

It’s essential to note that property division in Washington divorces aims for an equitable outcome rather than strict equality. Each case is unique, and the court considers these factors, along with any other relevant circumstances, to ensure a fair distribution of assets and debts between the divorcing spouses.

FAQ About Dividing Property In A Washington Divorce

What is the property division process in a Washington divorce?

The property division process in Washington is based on the principle of “equitable distribution.” This means that the court will strive to divide marital property fairly, but not necessarily equally, between the spouses. Both community property (acquired during the marriage) and separate property (acquired before the marriage or through specific means) are considered.

How does the court determine what is fair and equitable?

The court considers several factors when dividing property, including the length of the marriage, the financial contributions of each spouse, the earning capacity and future financial prospects of each spouse, the age and health of the parties involved, and any existing prenuptial or postnuptial agreements.

What is considered community property?

Community property includes assets and debts acquired by either spouse during the marriage. This can include real estate, vehicles, bank accounts, retirement savings, investments, and even debts like mortgages and credit card balances.

What is separate property?

Separate property refers to assets or debts acquired by a spouse before the marriage or received as a gift or inheritance during the marriage. In general, separate property remains with the spouse who owns it and is not subject to division during a divorce.

Can community property become separate property?

Under certain circumstances, community property can be transformed into separate property. For example, if one spouse receives an inheritance and keeps it separate from the marital assets, it may remain separate property.

How does the court divide property in Washington?

The court has broad discretion in dividing property. It can order an equal division, but it can also consider factors that justify an unequal division to achieve fairness. The court may allocate specific assets to each spouse or order the sale of property and distribution of proceeds.

What if we already have a prenuptial or postnuptial agreement?

If you have a valid prenuptial or postnuptial agreement in place, it will generally govern how your property is divided, as long as it meets certain legal requirements. However, the court still has the authority to review and potentially modify the agreement if it deems it unfair or unconscionable.

How can we reach a property settlement outside of court?

Spouses can negotiate a property settlement agreement through mediation or with the assistance of their attorneys. This allows them to have more control over the outcome and can save time and money compared to going to court.

What if we cannot agree on property division?

If spouses cannot agree on property division, the court will make the decision for them. Each spouse will present their case, and the court will consider the relevant factors to determine a fair and equitable distribution of assets and debts.

Can property division be modified after the divorce is finalized?

In general, property division orders are final and cannot be modified. However, under exceptional circumstances, such as fraud or a significant change in circumstances, a court may consider modifying a property division order.

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