If you are facing divorce in Washington and wondering what property you get to keep, the first thing you should know is that Washington is a community property state. This means that all income earned and property acquired by either spouse during the marriage is community property. It belongs to both spouses equally, so it must be split equally between the spouses as divorce. Likewise, all debts incurred during the marriage are considered community debts and belong to both spouses equally. If you don’t want to split the community property equally – and you can get your spouse to work with you – then the two of you can decide what’s fair in a written separation agreement. If you can’t agree 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 doing so.
Separate Property May be Part of Division
The court can’t distribute property fairly without knowing which property is community property (belonging to both spouses equally), which is separate (belonging only to one spouse), and how much there is of each. 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 even your credit card debt. Usually, the court will rely on information from you and your spouse to characterize and value each asset.
Generally, property owned before marriage is separate property. Even during marriage, gifts given just to your or inheritances can remain yours alone. You can treat this separate property as if you weren’t married. 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. If you were to rent grandmother’s (now your) cabin, any rent payment you receive is also yours alone. Additionally, separate property and the money you make off of it can’t be reached by your spouse’s creditors.
The general rule is that all of the community property must be divided between the spouses at divorce, but separate property remains entirely with the spouse to whom it originally belonged. In Washington, however, the court may include separate property in the property division. The court decides whether that exception applies and how all the property should be distributed after considering the factors below.
Factors for Division of Property
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 you gave up career opportunities to help your spouse become a successful lawyer, for instance, 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 and your spouse have children and they stay with you most of the time.
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 your property unless your spouse also wasted community assets. 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. 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 habit. The court can consider such wastefulness when dividing the property that’s left.
You might be entitled to spousal maintenance (alimony) if the divorce will make it difficult for you to maintain the standard of living you had during marriage. Spousal maintenance is not designed to punish a higher-earning spouse; fault is not considered here, either. It can help bridge at least part of the financial gap if you contributed more of the unpaid work during marriage, or even if you brought monetary resources to the marriage and your age, health, or some other factor leaves you unfairly disadvantaged at divorce.
After the court divides the property between you and your spouse, it will calculate the amount of spousal maintenance due, if any. 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. Additionally, it will look at your age, health, financial obligations, the standard of living you enjoyed during the marriage, and how long the marriage lasted. 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.