Washington is a Community Property state and generally, the rule is that if you earned it during the marriage it is owned as an undivided whole by both parties. However, the courts are given discretion in dividing property in a “fair and equitable” manner. This division of assets and liabilities needs to be done thoughtfully so as to take advantage of any financial planning strategies and in conjunction with the remaining issues in the case. For example, it may be better to take an unequal division of marital assets in exchange for lower spousal support payments.
1) How does the court decide how marital property is divided?
Washington is a so-called “equitable distribution” state. This means that the division of property and debts between the divorcing parties should be fair and equitable, but not necessarily equal. The court has wide discretion in an equitably distributing property.
Washington has a no-fault standard for divorce. 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. Even if one party caused the divorce by bad behavior, such as an affair, the court will not consider this in dividing the property unless the party also wasted community assets. The only time a court will evaluate fault in dividing property is where one spouse spent an exorbitant amount of money in support of the misbehavior, such as wasting shared savings on a casino binge. The court can consider such wastefulness when dividing the property that’s left.
The court divides the community property and perhaps the separate property, too, based on the amounts of each type of property, the length of the marriage, and each spouse’s economic reality at the time of the division. If for instance, you gave up career opportunities to help your spouse start their own business, then the court might be persuaded to balance out the difference in your earnings by giving you a larger share of the community assets. Also, you have a better chance of keeping the family home, or at least the right to live in it, if you keep custody of you mutual children that live there as well.
2) Is the “separate property” of one spouse subject to being divided up?
The question here is whether property “belonging to” one of the parties should be included in the marital estate for purposes of an equitable division. Generally, separate property acquired before the marriage or by gift or inheritance during the marriage may be excluded from the marital estate if neither the property nor its income has been used for the common benefit of the parties during their marriage.
3) What if the parties occasionally use an item of separate property for the benefit of both parties?
The property may be subject to division. Where the parties regularly use property acquired by one party before marriage for the common benefit of the parties, it is more likely to be available for consideration in dividing property. The frequency of use may be considered by the court in making the decision.
Phillip L. Weinberg
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