Yes, Washington is among the handful of western states that follows a community property approach to dividing a couple’s property in a divorce. Most states have enacted equitable distribution laws, but Washington is not one of them. If you’re planning to file for divorce in Washington, you should expect a judge to divide all marital property equally in your case.
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.
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. Usually, the court will rely on information from you and your spouse to characterize and value each asset.
There’s a strong presumption under Washington divorce laws that all assets and debts acquired during a couple’s marriage are community property. A judge will divide all community property items equally during a divorce. 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.
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. Settlement agreements should resolve all issues and divide all property. Washington divorce property laws allow spouses to reach their own agreements as long as the agreement isn’t unfairly one-sided. Spouses can reach settlement agreements on their own or with the help of a mediator.
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.
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. 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. Usually, a spouse will need to support his or her separate property claim with financial records or other documents.
In Washington, however, the court may include separate property in the divorce property division. A judge will decide whether that exception applies and how all the property should be distributed after considering the factors discussed below. 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). 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.
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. However, a judge may adjust a community property award if your spouse 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 or gambling habit. The court can consider such wastefulness when dividing the property that’s left. See Wash. Rev. Code § 26-09-080 (2020.)
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. Spousal maintenance in Washington is not designed to punish a higher-earning spouse; fault is not considered here, either. However, in a Washington divorce, alimony may be part of a property award to help bridge one spouse’s financial gap. See Wash. Rev. Code § 26-09-090 (2020).
After the court divides the community property in your Washington divorce, a judge 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, 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. 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.