FAQ: Property Division
Is Washington a community property state?
Washington is a community property state. Generally, anything acquired during the marriage is considered community property. This includes the earning of income from employment, the accumulation of retirement benefits during the marriage, and the purchase of assets with community income. However, not all property is community property. Some examples of separate property are gifts, inheritances, and accumulated interest or equity in property acquired prior to the marriage.
Is it important whether I keep my property separate from, not commingled with, our community property?
Yes, if you keep that separate property segregated from your earnings and other assets you acquire after marriage, that asset is likely to remain your separate property. The income earned off a separate property investment is also separate property. Determining whether an asset is separate property or community property or a combination of separate and community property can be complex and is best discussed with an attorney.
Can separate property be converted to community property?
Yes, there are numerous ways to convert separate property to community property. One of the most frequent methods is by the co-mingling of funds. This means that a separate asset such as a gift or inheritance is placed in a joint account from which both parties withdraw funds and into which both parties deposit community funds. Once the parties are unable to clearly establish which funds are community and which are separate, all funds may be considered community.
Another method to convert the nature of property is the execution of a deed transferring real property from one spouse's separate estate to the community's estate.
One last example is the execution of a Community Property Agreement. Although generally executed for estate planning purposes, some Community Property Agreements can be effective immediately. Before executing a Community Property Agreement, it is wise to speak with an attorney to determine what effect such an agreement would have.
What if I cannot recall when I bought an asset?
A party claiming an asset to be separate property has the duty to provide documentation or testimony to establish the asset as separate property. If the party cannot do so adequately, the court will presume the asset is community property.
Can the court award my separate property to my spouse?
Yes, all property (both separate and community) is before the court for division. However, the courts generally only award separate property of one spouse to another in limited circumstances. These circumstances may include a long marriage where the community assets are very limited but one party's separate assets are substantial. In this instance, the court will look at the overall economic circumstances of each spouse at the time the division of property is to become effective and may award one spouse's separate property to the other to achieve a more equitable division of assets.
What factors are considered by the judge in dividing property?
A fair and equitable division of property of divorcing spouses requires the court to consider the spouses' relative health, age, education, length of marriage, and employability. The ultimate concern is the economic condition of the parties upon dissolution of the marriage. The division must be fair, considering all of the circumstances of the marriage, both past and present, and an evaluation of the future needs of the spouses and their respective earning potential. It is not a matter of mathematical precision. Factors for division of property are found at RCW 26.09.080 Disposition of property and liabilities--Factors, which states as follows:
"In a proceeding for dissolution of the marriage, legal separation, declaration of invalidity, or in a proceeding for disposition of property following dissolution of the marriage by a court which lacked personal jurisdiction over the absent spouse or lacked jurisdiction to dispose of the property, the court shall, without regard to marital misconduct, make such disposition of the property and the liabilities of the parties, either community or separate, as shall appear just and equitable after considering all relevant factors including, but not limited to:
(1) The nature and extent of the community property;
(2) The nature and extent of the separate property;
(3) The duration of the marriage; and
(4) The economic circumstances of each spouse at the time the division of property is to become effective, including the desirability of awarding the family home or the right to live therein for reasonable periods to a spouse with whom the children reside the majority of the time."
How does the length of the marriage make a difference?
Judge Robert W. Winsor, while on the bench of the King County Superior Court, suggested that cases be divided into one of three categories when analyzing the length of the marriage factor:
1. Short Marriage: Those lasting approximately 5 years or less.
2. Long Marriage: Those lasting approximately 25 years or more.
3. Midrange: All the others.
In a short marriage, Judge Winsor suggested that the parties be returned to the same economic condition they enjoyed at the inception of the marriage, after accounting for interest and inflation. Judge Winsor's rule can be modified in extraordinary circumstances, e.g., if one of the parties gives up a job to accommodate the marriage.
In a long marriage, Judge Winsor suggested that both spouses be placed in roughly equal financial position for the rest of their lives.
In the midrange marriage, Judge Winsor suggested that the extent to which a court looks at the considerations underlying the analyses of both long and short term marriages depends upon the length of the marriage and the necessities of the parties.
Judge Winsor's suggestions are guidelines, not mandatory rules, and courts have discretion to fashion fair and equitable division that may not mimic Judge Winsor's suggestions.
Can maintenance be used in a property division?
Yes. The court may utilize maintenance to equalize property division in certain circumstances where their is a lack of marital assets to make an equitable division.
My husband/wife was abusive during our marriage and had numerous affairs, how does this affect property division?
Washington is a "no-fault" state. As such, property division is made without regard for marital misconduct, except for a few exceptions including the depletion of substantial marital assets by one spouse without the consent of the other.
