How Separate Property Can Become Community Property

Posted on November 28, 2022 12:44pm
How Separate Property Can Become Community Property

In a community property state like Washington, any property or other asset acquired during a marriage becomes the equal property of both parties. Each spouse may also have separate property they bring into the marriage.

In a simplified situation, a divorcing couple splits their community property while retaining their separate property. Not all divorces are simple, however.

If separate property is commingled with community property, that once-separate property can be subject to division in a divorce.

Transmutation of Separate Property in Washington State

When two people marry, they often have personal belongings and property. Vintage comic book collections, jewelry, antique china sets, automobiles, and more. As a married couple, they continue to acquire property such as furniture, homes, and boats. They also gain income, retirement accounts, and other assets during the marriage.

When the marriage is thriving, most couples give little thought about what belongs to whom. That laissez-faire attitude typically comes to a screeching halt when the marriage begins going under. Suddenly, who has ownership of specific property becomes extremely important.

Property division is one of the more complicated components of any divorce. Categorizing assets as either separate or community is never as easy as it might seem on the surface. The task becomes particularly challenging when a spouse, sometimes unknowingly, changes the character of property – transmutation – from separate to community.

If one spouse pays for the ongoing maintenance or mortgage of a rental home their partner owned before the marriage, that spouse could make an argument that the separate property was transmuted to community property, at least in part. An inheritance can be transmuted if it is used to purchase something that both spouses use and enjoy, such as a vacation home. An argument for transmutation might also be made if one spouse adds the name of the other onto a bank account they had prior to the marriage.

A strategic and thoughtful divorce attorney can help their client receive any and all property (or its value) to which they are entitled.

Courts Split Community Property Equitably

There is a myth that community property states always split assets 50/50 in a divorce. This is untrue. Judges have the authority to make an unequal split if they believe that is equitable. While separate property is generally not subject to division, a court can take separate property from one and give it to the other in the name of equity.

The court determines these and other factors when dividing property in a divorce:

  • The length of the marriage
  • The overall size of the marital estate
  • Whether a spouse is awarded spousal maintenance
  • The income gap between the spouses
  • The ages of the spouses
  • Whether a spouse has any physical or mental limitations

Not all divorces go to a court where the judge determines the outcome. In many cases, divorces are negotiated with the help of lawyers, and often by using mediation and arbitration. Divorces that are not litigated give spouses more power over the final divorce agreements.

Asset Protection with Prenuptial Agreements

Protecting assets can begin before a couple marries. Prenuptial agreements (postnuptial agreements after the marriage commences) can be used to designate assets as marital or separate.

These agreements establish an understanding between the spouses of what property is “off limits” should the marriage fail. Spousal maintenance can also be addressed in these contracts. Child custody and child support cannot be predetermined in a prenup or postnup.

Experienced Legal Counsel

McKinley Irvin focuses on all aspects of family law and is experienced in both traditional and complex divorce cases. Contact us to schedule a consultation to discuss your case. Reach out online or call 206-397-0399.

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