For many divorcing couples, deciding who gets what can be the most difficult aspect of a divorce. To ensure that you are treated fairly in a divorce proceeding – and that you get what is rightfully yours – you should be advised and represented by a Washington divorce attorney.
A divorce entails making a number of choices. For example, who gets the house? How do you prepare for the division of marital property and assets in a divorce? Is Washington an “equitable distribution” state or a “community property” state, and what difference will that make?
If you keep reading this brief discussion of “equitable distribution” and “community property,” you will find some answers, but if you are actually divorcing, you will also need the personalized advice and effective legal representation that a Washington State divorce lawyer can provide.
How Are Marital Assets Categorized and Divided in Community Property States?
In equitable distribution states, marital assets in a divorce are divided according to what the court determines to be “equitable” and “fair.” Washington State, however, is one of nine “community property” states. In these states, couples must split equally all assets acquired during a marriage.
In community property states, assets obtained by either partner during the marriage become community property owned by both partners. Assets that a spouse may have owned before the marriage are retained individually by that spouse and are not a part of the community property.
However, if you “commingle” your personal property with the community property owned by both partners, and if it cannot be identified as your personal property and has become, for all practical purposes, community property, your spouse will have a right to half of it.
Inheritances and gifts that have been given to only one spouse are an exception to community property and remain that spouse’s personal property.
Can Divorcing Spouses Prepare Their Own Property Division Agreement?
If you do not want a judge to decide how your property is divided, you and your spouse can prepare your own written settlement agreement that divides the property and settles any related issues. Reaching agreements with your spouse will make your divorce quicker and less costly.
Provided that your voluntary property division agreement is not unfair to either spouse, a Washington State court will “sign off” on the agreement. Many divorcing couples in Washington negotiate their property division agreements out-of-court with the assistance of a mediator.
When spouses cannot agree on how to divide their property and assets, a court will divide the community property according to Washington State law, which in most cases will mean a “fifty-fifty” split. But what will be considered community property?
What Will a Court Take Into Account?
If your community property is divided by a court in Washington State, the judge will take these factors into account when it distinguishes community property from personal property:
- the estate’s size and complexity
- the number of years the couple has been married
- each partner’s separate, personal assets, properties, income, and debts
- each partner’s current personal financial situation
- either partner’s contribution to the other’s education and/or career
- the child custody arrangement (as it relates to who retains the marital home)
It may not sound difficult, but identifying and distinguishing personal property from community property can rapidly become quite complicated, especially if a couple’s properties and assets are complex and extensive.
Will a Spouse’s Behavior Be a Consideration?
It does not matter if your spouse had an affair, a drug addiction, or other behavior that caused the marriage to fail. The only behavior that will be considered in the division of community property is if one spouse spent exorbitantly to support an affair, an addiction, or other bad behavior.
Unless spouses have reached their own voluntary agreement or have a prenuptial or postnuptial agreement in place, a court will divide the community property, and a spouse’s wasteful spending is the only reason a Washington State court may divide community property unevenly.
Is Your Spouse Hiding Assets?
A failure to disclose fully your assets, debts, properties, and income could lead to legal penalties. If one partner is hiding assets, a divorce attorney can often find those assets, although an investigation of hidden assets inevitably increases the expense and slows the divorce proceeding.
In a high net worth divorce, a Washington divorce attorney may consult a forensic accountant – someone with experience uncovering hidden assets. The indications of hidden assets may include but are not limited to suddenly closed financial accounts and abruptly transferred assets.
If you believe that your spouse is trying to hide assets in order to keep those assets from being divided as community property, compile whatever evidence is making you suspect your spouse, and express your concerns to your divorce attorney at once.
Has a Prenuptial or Postnuptial Agreement Been Prepared?
In most divorces in Washington State, if the couple has a postnuptial agreement or a prenuptial agreement, that document will spell out how community property is to be divided and distributed.
If the agreement is contested by either of the spouses, a Washington court will ask:
- Was fraud or duress involved when the document was signed?
- Were assets, properties, and debts fully disclosed by both partners?
- Do any of the agreement’s terms violate Washington State law?
If fraud or duress was involved, if assets and debts were not fully disclosed by either spouse, or if the agreement fails in any way to comply with state law, a Washington court may toss out the prenuptial or postnuptial agreement on the grounds that it is an unenforceable contract.
What Else Should Divorcing Spouses Know?
Complete financial disclosures make it easier for the court to divide community property by giving the court a clear picture of each spouse’s financial situation. You should have your attorney’s help with the financial disclosure forms.
Honesty between spouses is essential to a quick, smooth, and less costly divorce. Not disclosing income, hiding assets, or any type of dishonesty simply makes a divorce more difficult.
If you are properly prepared for your divorce, and if you are advised and represented by a reliable Washington State divorce lawyer, you should move through a divorce proceeding and into the future constructively, positively, and with all of your personal assets and properties.
Of course, dividing community property is only one part of your divorce. You should be advised by an attorney who has considerable experience in every aspect of the divorce process. Divorce is not easy, so make sure from the start that you have the advice and representation you need.