Divorcing couples in Washington should be aware that the state has a somewhat unusual divorce law, in that courts are allowed to divide separate as well as community assets between spouses under certain circumstances. Washington courts distinguish between community property, acquired during the marriage, and separate property, acquired before the marriage, and will mainly divide community property between the spouses. However, what was once separate property may end up in the hands of the other spouse depending on the facts of the case.
In some cases, divorcing couples may reach their own settlement agreement on the division of property. Depending on which county you live in, you may be required to attend a settlement conference to attempt to reach an agreement. If you cannot reach an agreement, you must attend a trial to have a judge determine how the property will be split up.
Property Division Overview
Washington is a community property state, meaning that all property acquired during the marriage is equally owned by both spouses. During divorce proceedings, the court will consider a number of factors to determine how to fairly and equitably divide the property. Courts generally will divide only community property, but if the court finds it equitable to do so based on the circumstances, it may also divide separate property. Assets received as a gift or inheritance are considered separate property, just as all assets owned by one spouse before the marriage are considered separate property. In dividing the property, the court may consider the length of the marriage, the economic circumstances of each spouse and similar factors.
Transmutation and Commingling
Under certain circumstances, what was once separate property may be converted into community property, meaning courts in Washington are more likely to divvy it up between the divorcing spouses. If the spouses use community property, such as a jointly held bank account, to improve a piece of separate property, the separate property may be converted into community property. Similarly, if one spouse commingles his separate property with community property, by depositing money into a jointly held back account, for example, the property may then be considered community property. If it is unclear whether property is separate or community, the spouse claiming a piece of property is separate property has the burden of proving it is a separate asset.
Washington courts may also divide retirement plans, such as 401(k) accounts and pensions, in a manner that is fair and equitable, even if only one spouse earned the benefits. The court may consider whether the spouse contributed to the plan before getting married or if contributions were made solely during the marriage. Washington courts generally only divide the community part of the account and allow the separate portion to remain with the spouse who earned it.