Property equally acquired is subsequently equally distributed in divorce, in a fair, equitable fashion. In Washington, however, the court may include separate property in the divorce property division. Additionally, a Washington judge will look at your age, physical and mental health, financial obligations, the standard of living you enjoyed during the marriage, and how long the marriage lasted. There are some exceptions regarding separate property. Dividing Property in a Washington Divorce The court can’t distribute property fairly without first determining what assets are community property (belonging to both spouses equally), which are separate (belonging only to one spouse), and the fair market value of the property. So, if you and your spouse now live in separate states and each of you files for divorce in your respective states, the state where the divorce was first filed will likely have jurisdiction over the case. Despite a name on a title, Washington courts presume both spouses contributed to any assets acquired during the marriage, whether true or not. #3243EN. By law, in Washington state, must you divide retirement funds & 401K in divorce settlements? Property earned or acquired after the date of separation is assumed to be that spouse’s separate property (see question 22 below). All separate and community property and liabilities are before the court for distribution to either party. To rebut the community property presumption, the burden of proof is on the party claiming separate property to clearly and convincingly trace the property to a separate property source. Washington has a no fault standard for divorce. The information provided on this site is not legal advice, does not constitute a lawyer referral service, and no attorney-client or confidential relationship is or will be formed by use of the site. Contents The attorney listings on this site are paid attorney advertising. Your use of this website constitutes acceptance of the Terms of Use, Supplemental Terms, Privacy Policy and Cookie Policy. Marriage of White, 105 Wn.App 545 (2001). Usually, the court will rely on information from you and your spouse to characterize and value each asset. Depending on the state you live in, property is divided in two different ways during a divorce: community property or non-community (separate) property. Code § 26-09-090 (2020). Washington Is a “Community Property” State. If you are undergoing a divorce in Washington State, a knowledgeable property attorney can assist you in classifying your property. If you’re planning to file for divorce in Washington, you should expect a judge to divide all marital property equally in your case. Washington’s divorce laws often grant judge’s a great deal of latitude, and property division is no exception. According to the Washington State Legislature, property acquired after the marriage ceremony is considered community property. Also keep in mind that an asset that was originally one spouse’s separate property can become community property through intentional or inadvertent commingling (mixing separate and community property). Separate property, as defined by RCW 26.16.010 is, “property and pecuniary rights owned by … Community property includes each spouse’s paycheck, personal property purchased during the marriage and real estate purchased during the marriage; Washington courts can divide community property during a couple’s divorce. There’s a strong presumption under Washington divorce laws that all assets and debts acquired during a couple’s marriage are community property. Separate property may include vehicles, houses, real property, or bank or retirement accounts that are currently held as separate property of only one spouse. Washington is a community property state, which means that virtually all assets and debt acquired during the duration of a marriage are considered marital property, and are thus divided equally between the spouses in the event of a divorce. This chapter establishes the law of the state respecting the subject to which it relates, and its provisions and all proceedings under it shall be liberally construed with a view to effect its object." In dividing property in a divorce, the Washington courts distinguish between separate property and community property. The court can consider such wastefulness when dividing the property that’s left. Transfers from one spouse or domestic partner to the other that establish or separate community property are not subject to the real estate excise tax. Settling Property Distribution Disputes. In Washington State, all property acquired during the marriage is generally deemed community property and must be divided equally at divorce. In these states, all property of a married person is classified as either community property (owned jointly by both spouses) or the separate property of one spouse. A judge will decide whether that exception applies and how all the property should be distributed after considering the factors discussed below. Washington is a community property state. Separate Property In Washington State. Washington divorce property laws allow spouses to reach their own agreements as long as the agreement isn’t unfairly one-sided. But regardless of what type of state you’re domiciled in, it is important to identify which property is separate, and which property is community. Community assets include income, stocks, royalties, rents, cars, the marital home, bank accounts, 401k accounts, credit card charges, and any other assets or debts accumulated during the couple’s marriage. Most states have enacted equitable distribution laws, but Washington is not one of them. It must be split equally in a divorce. If you mix (“commingle”) separate and community property, separate property can become community property. Posted May 1, 2019. This is because courts usually award each spouse ALL his or her separate property, but only HALF the community property and NONE of the other spouse’s separate property. If you can’t agree on how to divide your property or if there are certain assets in dispute, then you can still get the unequal division you prefer, or close to it, by convincing the court that there is a good and equitable reason for dividing your community property unequally. A judge will divide all community property items equally during a divorce. This includes real estate, spouse’s earnings, pension benefits and 401 (k) contributions. The court will look at how you contributed to the marriage and what your obligations will be after divorce, paying special attention to all of your financial resources—including the property you received at division—your level of education and earning potential, and whether you also care for any children. Many who divorce assume that everything should be … For unmarried individuals, though, all property is considered separate, as there’s no one with whom to have community. The court can’t distribute property fairly without first determining what assets are community property (belonging to both spouses equally), which are separate (belonging only to one spouse), and the fair market value of the property. Spouses can reach settlement agreements on their own or with the help of a mediator. Does it matter if something is separate or community property? Separate Property in Washington Inheritance Law The easiest way to imagine the concept of separate property is to think of it as everything that isn’t community property. Washington is a community property state, which means the general approach to dividing marital assets is splitting them down the middle. See Wash. Rev. This is because in Washington State, all community property in a marriage is subject to equitable division in the event of a divorce, whereas separate property of a spouse is not. Generally, all property (house, other real estate, car) a spouse gets during the marriage is community property. Separate property is exactly what it sounds like: the separate assets owned by each spouse before marriage. Separate property, however, can escape the division process. property to pay maintenance (alimony) and child support. Log in, Parental Relocation & International Moves, Estate Planning: Wills & Probate Glossary, Divorce 101: How to Get the Process Started, How To Handle the Physical Stress of Divorce, Temporary Orders & Motions: What Happens Between Separation & Final Divorce Papers, Everything You Need to Know About Going to Trial in A Divorce, What You Need to Know About Divorce Mediation & Alternative Dispute Resolution, Children & Divorce: Kids Need Time with Dad, What About the Kids: How Courts View Divorce, Child Custody & Parenting Plans, Kids & Divorce: Parenting Plans & Residential Schedules, International Custody & Immigration Issues: An Interview With Shannon Underwood, Divorce & How it Affects Real Estate: An Interview with Heidi Bateman, Money & Finances During Divorce: An Interview with Karen Ramsey, Employment Law & Divorce with Guest Sean Phelan, Case Studies in Family Law, Divorce & Child Custody, Separate property is treated differently than community property. Additionally, separate property and the money you make off of it can’t be reached by your spouse’s creditors. In some states, the information on this website may be considered a lawyer referral service. Knowing who owns what according to the laws of your particular state can be helpful for many purposes, including estate planning, drafting a prenuptial agreement, or if the marriage ends in divorce. RCW 26.09.030; .040; .070(3) Mandatory Form (05/16, rev.4/25/16) FL Divorce 241 Final Divorce/Legal Separation/ Valid/Invalid Marriage Order p. 4 of 9 The personal property listed in Exhibit is given to Petitioner as his/her separate By Washington State Family Law Lawyer Anne B. Bennette. If you don’t want to split the community property equally in your Washington divorce, then you and your spouse can decide what’s fair in a written divorce settlement agreement. In Washington State (and not all states are the same), separate property is recognized and taken into account in divorce proceedings. You might be entitled to spousal maintenance (alimony) if your divorce will make it difficult for you to maintain the standard of living you had during marriage. State law protects separate property from community debt. Especially for high-asset couples, establishing the boundaries between separate and community property can make a difference when it comes to division. The husband appealed the distribution of property. However, in a Washington divorce, alimony may be part of a property award to help bridge one spouse’s financial gap. One spouse’s separate property includes assets or debts that the spouse accumulated before the marriage, acquired by gift or inheritance during the marriage, or is property covered by a prenuptial agreement. In a marriage dissolution, individuals frequently ask what assets and debts are subject to the Court’s orders in a divorce. There are nine community property states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. After the court divides the community property in your Washington divorce, a judge will calculate the amount of spousal maintenance due, if any. Usually, a spouse will need to support his or her separate property claim with financial records or other documents. See Wash. Rev. [Code 1881 § 2417.] There’s a strong presumption under Washington divorce laws that all assets and debts acquired during a couple’s marriage are community property. Getting a Divorce: Dividing Property & Debts Authored By: Northwest Justice Project. For example, one spouse’s premarital bank account can lose its separate status and become community property if the other spouse makes deposits into it. PDF WAC 458-61A-203 Community property, dissolution of marriage or domestic partnership, legal separation, decree of invalidity. For example, if your grandmother leaves you the lake cabin in her will, then you can sell it or rent it or let it sit completely empty without your spouse’s consent. Washington divorce attorneys know, however, that separate property may become community property in certain circumstances. Code § 26-09-080 (2020.). This means all income and property, real or personal, that was acquired by either party during a marriage is equally owned by each partner. Examples of assets generally considered community property under Washington law include: Example 1 – No Date of Separation: In a heated argument, one spouse informs the other he/she wants a divorce, packs up a suitcase, and moves to a hotel. However, it is also clear that property owned by a spouse prior to marriage is presumed to be separate property. It belongs to both spouses, even if only one is on the title. And, while Washington is a “community property” state, in a divorce all property—both community and separate property—is considered and subject to being divided. Related Reading: Dividing the Home in Divorce. This means that all property and debt acquired during … Yes, Washington is among the handful of western states that follows a community property approach to dividing a couple’s property in a divorce. For couples that move from a state that doesn't recognize community property, the property each spouse acquires in that other state is considered separate property in the event of a divorce in Washington. (1) Community property. In some circumstances, Washington divorce courts can award separate property of one spouse to the other spouse, as part of their just and equitable division of property. The state where either you or your spouse first files for divorce generally controls the proceedings. My husband has 30 years ($350,000.00) in his retirement pension fund. Should the matter be decided by the court, the following factors will be taken into consideration: Please reference the Terms of Use and the Supplemental Terms for specific information related to your state. In most cases, inheritance falls into this category. The court has discretion to consider other factors unique to the marriage, but ultimately, any order for maintenance must be just in light of your needs and your spouse’s ability to pay. A Washington appeals court considered whether certain assets were separate or community property in a recent divorce case. A judge will divide a couple’s community property based on the following factors: Although it might devastate you personally if your marriage ended because your spouse had an affair or otherwise behaved badly, the court will not account for this in dividing community property in Washington. Spousal maintenance in Washington is not designed to punish a higher-earning spouse; fault is not considered here, either. If you think your separate property was erroneously labeled as community property or quasi-community property, contact an attorney to assure that your property … It is important for people to understand that separate property can become community property. All property obtained with earnings during the course of the marriage; and All property obtained with community funds. In a no-fault state, it doesn’t matter if your spouse’s affair, drug problem, or other bad acts caused the marriage to fail. The court can use it to pay community debt. Separate property also includes gifts and inheritances even if they are received during the marriage. You can read the actual language of the relevant … The only time a court will evaluate fault in dividing property is where one spouse spent an exorbitant amount of money in support of this misbehavior – by doing something like draining the savings account to support a cocaine or gambling habit. Assuming a 50-50 Property Division Is a Given. Because the type of property ownership system and variances between states can affect how separate property is defined, it is important to speak to an attorney in your state whether you are going through a divorce or want to draft a will. Non-community property states use a “fair instead of equal” approach to property division in which assets are dealt with equitably instead of equally. Copyright ©2021 MH Sub I, LLC dba Nolo ® Self-help services may not be permitted in all states. For example, if the property is acquire… It depends on whether the property is separate or community and where you live -- in an equitable distribution state or a community property state. When people decide to divorce in Federal Way, the next thing they must do is divide their property. Separate property of spouse. Community property refers to assets acquired by the couple during the marriage. The most common types of property divided at divorce are real property like the family home, personal property like your jewelry and clothing, and intangible property like income, dividends, benefits, and credit card debt. Washington is a community property state. We were married 14 years (1994-2006). However, a judge may adjust a community property award if your spouse wasted community assets. Community Property vs. Read this to find out more. Either spouse or either domestic partner, acting alone, may manage and control community property, with a like power of disposition as the acting spouse or domestic partner has over his or her separate property, except: (1) Neither person shall devise or bequeath by will more than one-half of the community property. If you were to rent grandmother’s (now your) cabin, any rent payment you receive is also yours alone. Washington state is a community property state, meaning that property and debts acquired during the marriage shall be split equally unless the parties reach an agreement independent of a court ruling. Do Not Sell My Personal Information, dividing a couple’s property in a divorce, the size of the community property estate, each spouse’s economic reality at the time of the division, either spouse’s contributions to the other spouse’s career and/or education, and. Settlement agreements should resolve all issues and divide all property. What Is Separate Property? 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