If you're getting divorced in Washington, you and your spouse will need to decide how to divide your property—or ask a judge to decide for you. Under Washington's laws, spouses jointly own all assets and debts that they acquire during their marriage. But that doesn't necessarily mean that a judge will divide those assets and debts equally when they divorce.
Washington is one of nine states in the U.S. that follow the "community property" model for determining ownership of married couple's assets and debts. (Wash. Rev. Code § 26.16.030 (2022). State law distinguishes between community property—assets and debts that spouses own together—and each spouse's separate property (more below on what both terms mean).
It's a common misconception that community property must be divided equally (50/50) as part of divorce in all community property states. That's true in California and a few other states—but not in Washington.
In a Washington divorce (or "dissolution of marriage"), the judge must divide all of the couple's property and debts in a "just and equitable" way. A fair division is not necessarily an equal division. (Wash. Rev. Code § 26.09.080 (2022).)
Before deciding what would be an equitable property division in any particular divorce, Washington law requires judges to consider all of the relevant circumstances, including:
However, the law specifically says that judge should not consider either spouse's misconduct when deciding on a fair distribution of their property or debts. (Wash. Rev. Code § 26.09.080 (2022).)
Courts in Washington have held that judges may take into account the spouses' age and health when considering what their economic circumstances will be after the divorce. Also, after very long marriages (lasting 25 years or more), the property division should leave the spouses in "roughly equal financial positions for the rest of their lives." (In re Marriage of Rockwell, 170 P.3d 572 (Wash. Ct. App. 2007)
As a general rule in community property states, only community property is divided in divorce, and spouses keep their own separate property. But that rule doesn't apply in Washington. The state's law clearly states that divorce judges must divide the parties' assets and debts, "either community or separate," as long as the distribution is fair. (Wash. Rev. Code § 26.09.080 (2022).)
You might wonder why it's necessary to distinguish between community and separate property in a Washington divorce, since the judge will include both in the property division. The reason goes back to the factors that go into the decision. Because the law requires judges to consider the nature and extent of the spouses' community property and separate property, the process of coming up with a fair property division will begin with two tasks:
The way property is characterized (as separate or community) won't control the outcome of the property division. It's just part of the process of deciding what's fair. For instance, if one spouse has much more valuable separate property than the other spouse, that might impact their relative economic circumstances after the divorce.
Washington law defines separate property as any property that a spouse owned before getting married or acquired afterwards 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).)
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.
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 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 a family business.
Other than the overall goal of fairness, Washington law has no hard-and-fast rules on who will get to keep the family home after divorce. If you and your spouse can't agree among the options for dealing with the house, the judges will make a decision based on the specific circumstances in your case—including whether the primary custodial parent should be allowed to stay in the house with the children, at least for a certain period of time.
If a house is awarded to one spouse, the judge will typically award different assets—such as retirement accounts—to the other spouse to arrive at a fair distribution of all the couple's property. But if the couple doesn't own enough other assets to make for an overall division that's equitable, the judge could order them to sell the house and divide the proceeds. If you don't want a forced sale, you'd be wise to work out an agreement with your spouse (more on that below).
You and your spouse always have the option of agreeing on how you'll split up your property when you get divorced rather than having a judge decide for you. You'll need to submit your signed, written agreement to the court, but the judge will generally approve the agreement unless it appears unfair.
Also, if you and your spouse reach a complete marital settlement agreement before your file your divorce papers—covering all the legal issues involved in ending your marriage—you'll be able to file for an uncontested divorce in Washington. Uncontested divorces are much cheaper, quicker, and easier than traditional contested divorces. Many couples are able to navigate the uncontested divorce process without hiring a lawyer, either entirely DIY or by using an inexpensive online divorce service to streamline the process.
If you're having trouble agreeing with your spouse about how to divide your property, you can try mediation. The cost of divorce mediation varies, but you and your spouse can split the mediator's fee. And a successful mediation will be considerably less expensive than going to trial (with attorneys' fees for both of you).
But if you still aren't able to reach a settlement agreement, even with a mediator's help, you should at least speak with a lawyer. An experienced family attorney can evaluate your case and lay out your options going forward. Having a lawyer on your side is especially critical if you're experiencing domestic violence in your marriage or if you suspect that your spouse is hiding assets.
You should know that the question of whether you need a divorce lawyer isn't always an all-or-nothing choice. Sometimes, you can hire an attorney on an as-needed or consulting basis to handle certain tasks in your divorce, such as drafting or reviewing your settlement agreement, to make sure that you haven't missed anything important or inadvertently given up important rights.