Washington, along with several other states, is a community property state. That means when a couple divorces, most of the property acquired during the marriage may be divided equally between the spouses. However, courts do not always divide community property in a precisely equal manner. A judge may weigh a variety of factors when deciding how community property should be divided. Separate property – that is, property obtained by either spouse before marriage, as well as gifts and inheritances received during the marriage – is generally not subject to division, unless those assets were converted into community property.
Statutes and Case Law
Washington's statutes define the meaning of community property, but courts look to a number of factors when deciding how to divide property between divorcing spouses. Because not all of these factors can be addressed in statutes, courts apply standards and findings from prior cases, called precedents, to determine how marital property should be split. Factors that courts consider when dividing marital property include the length of the marriage, the education and earning potential of each spouse and the amount of property the couple jointly owns.
One of the most important decisions that a Washington court must make concerns the marital home, which is often a couple's largest asset. Generally, if the couple has children, the custodial parent may continue to live in the home. This is because courts try to avoid uprooting children, especially if they have formed neighborhood friendships, are settled in school and live close to extended family. If the marital home is awarded to the custodial parent, and depending on each spouse's financial situation, the court may award the non-custodial parent other equally valuable marital property in the interest of equity and fairness.
Money held in retirement accounts that was earned from employment during the marriage may be subject to division upon divorce. Generally, when a couple accumulates retirement funds during marriage, those funds are treated as community property and may be divided 50/50 or split in some other manner, depending on what the court deems fair. For example, if a couple has a sizable amount of community property in retirement funds, but one spouse is awarded the marital home, the court may not split the retirement funds evenly.
When a married couple owned and built a business together, Washington courts must consider a variety of factors to arrive at an equitable division of the business. For example, if one spouse ran the business on a day-to-day basis, the business may be awarded to that individual. On the other hand, if both spouses spent an equal amount of time running the business, the court will have to decide which spouse should keep the business and how to compensate the other spouse equitably.
- Washington State Legislature: RCW 26.16.030 - Community Property Defined - Management and Control
- Washington State Legislature: RCW 26.16.010 - Separate Property of Spouse
- Washington Courts: Family Law Handbook
- The Modern Woman's Divorce Guide: Community Property Explained
- Washington Divorce Online: Divorce Issues: Division of Property and Debts
- Law Offices of Molly B. Kenny: The Marital Home - Who Gets the House in Washington Divorce?