Divorce in Washington State With Separate Assets

By Elizabeth Rayne

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.

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.

Settlement Agreements

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.

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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.

Retirement Funds

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.

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References

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Washington State Divorce Laws for the Division of Community Property

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.

Virginia Laws on Willed Property in Divorce

Getting a divorce in Virginia brings up a lot of issues surrounding wills and estates, particularly if one spouse passes away while the divorce is pending. Generally, assets a spouse inherited under a will are not impacted by a divorce. However, Virginia law provides that spouses must receive a certain portion of the deceased spouse's estate, even if the marriage is headed for divorce.

What Are the Treatments for Jointly Held Assets in Divorce?

The longer a couple remains married, the more jointly-owned assets they’re likely to acquire. Their lives become so financially intertwined that even their separate property – normally immune from distribution in a divorce -- becomes an issue. Different states use different laws to decide how much property each spouse receives. However, the methods used to assign items of property to each spouse are largely the same.

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