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A Primer on Community vs. Separate Property in Washington State

Fall leaves and a road in the wilderness
Posted on October 12, 2022 by Christina Smith

As a divorce lawyer in Washington State, it is common for new clients to come in to our first meeting with the understanding that Washington is a community property state and believing that this means all property and debts are split right down the middle, 50/50.  While this is often a good place to start in conceptualizing a property distribution, this is not what community property means in Washington State.

Generally, community property is defined by statute as property acquired during the marriage. RCW 26.16.030. Separate property is defined as property owned before marriage and property acquired during the marriage by gift, bequest, devise, descent, or inheritance, including any profits arising from that separate property. RCW 26.16.010. However, it is important to know that all assets, community and separate, are before the court for distribution based on the specific facts of your case.  Also, it is possible for separate property to become community property through commingling of assets or by gift. Still, it is a crucial first step to first identify the community and separate property in your divorce.

Another common misunderstanding is that Washington State is a 50/50 state, meaning that all property is split equally in a divorce.  This is not true.  Washington State divides all assets, community and separate, “as shall appear just and equitable after considering all relevant factors.”  RCW 26.09.080. This means that a court has the discretion to order one spouse a disproportionate share of the assets depending on the circumstances. Whether your spouse cheated on you, among other marital misconduct, is not a factor for consideration in dividing assets and debts, although it can give rise to a “marital waste” argument.  If a “just and equitable” distribution sounds murky to you, that’s because it is!  This determination requires a careful analysis of factors such as how much community property you have to divide, how much separate property does each spouse have, how long you were married, and the economic circumstances of each spouse at the time of divorce.

If you are considering a divorce, it is important for you to identify all of the assets and debts owned by either spouse, both separate and community.  If you think you might have a separate property asset, you must identify documents showing that you owned the asset prior to marriage or that it was a gift or inheritance.

The attorneys of Lasher’s Family Law Practice Group stand by ready to assist should you be considering exit strategies in your relationship, including dissolution, collaborative divorce and mediation.