by Virginia Amis, Attorney at Law, McKinley Irvin PLLC

You are thinking about getting a divorce and you wonder how the property you have will be divided between you and your spouse. Your best friend told you that Washington is a community property state. He says that means that you will divide your property 50/50 with your spouse. Right? Not necessarily.

It is true that Washington is a community property state. That means that all the property you and your spouse acquire during your marriage is presumed to be community property, or property of both spouses. It is distinguished from separate property, which is property that you acquire before marriage, after the date of separation (usually) or during the marriage through gift or inheritance (from a separate source). The way title is held is not a determining factor as to the character of the property. A vehicle may be in one spouse's name only, but if it was purchased during the marriage, the presumption is that it is community property.

In Washington, the court determines when the community (the formerly married parties) stopped acting as a community and, therefore, stopped acquiring community property. It may be the date they physically separate (begin living apart without reconciling), the date one party files a dissolution or legal separation petition, or another date that indicates they are no longer a couple (like the date of trial, for instance). Even when you stop acquiring new community property the court can determine that increases to community property that continue to occur through the trial or settlement date are community property (such as investment accounts that continue to increase due to market factors). Likewise, a drop in the value of an asset after the date of separation would affect the community value.

So how does the court divide community property? It uses a "fair and equitable" standard. That standard is subjective. The court has to determine what is fair and equitable on a case-by-case basis. It may indeed happen that an equal division is an "equitable" division in some cases.

But, what if one spouse has delayed a career to care for children while the other spouse earns the family's living? The wage-earning spouse will continue to earn a living after the dissolution, but the non wage-earning spouse may need to start over in a career or job earning a lower income than that spouse would have earned if he or she had worked outside the home during the marriage. Or, what if one spouse simply earns much more than the other does? Is it "fair and equitable" in these situations to divide the property evenly or should the non wage-earning or lower income spouse get a disproportionate (higher) amount of the property? Each case is determined on its own facts, but it is not unusual for the non-working or lower wage-earning spouse to receive more property than the other spouse. The presumption in these instances is that the non-working or lower wage earning spouse is not able to readily replace what he or she has lost in the division, while the working spouse has a better ability to do so.

If you are considering a divorce there are things you can do to protect your interest in property. For example, do not sign any documents that transfer your interest to your spouse (by signing a Quit Claim Deed or transferring title to a vehicle to the other spouse) or agree to incur additional debt (refinance) without first talking to a lawyer who can explain the serious consequences of these actions. It is wise to be fully informed about your options before taking steps such as these, which may have significant long-term consequences.