Family Law

Property Division

In a divorce or legal separation, the trial court must order a “just and equitable” distribution of the parties’ property and liabilities, whether community or separate.[1]  All property is before the court for distribution.[2]  The pertinent statute addressing property division—RCW 26.09.080—mandates that the court consider the following factors: (1) the nature and extent of the community property, (2) the nature and extent of the separate property, (3) the duration of the marriage, and (4) the economic circumstances of each spouse at the time the property distribution is to become effective.  No one factor is any more important than the others.[3]  And in any event, the statute makes clear that these factors are not exclusive; rather, the court to consider “all relevant factors.”  These may include the spouses’ relative health, age, education, and employability.[4]

Because the ultimate concern is the economic condition of the parties upon the dissolution decree, courts have broad discretion to determine what is just and equitable based on the circumstances of each case.[5]  To that end, the division of property “does not require mathematical precision, but rather fairness, based upon a consideration of all the circumstances of the marriage, both past and present, and an evaluation of the future needs of parties.”[6]  Fairness is attained by considering all circumstances of the marriage “not by utilizing inflexible rules.”[7]  Critical, and equitable division does not equate to an equal division.[8]  In order to effectuate an equitable outcome, there are certain cases in which it is necessary to award one spouse the separate property of the other party.[9]

The interplay between the property division and the duration of the marriage has over the years been inconsistent, but it is now relatively stable.  All marriages fall into one of three categories: short term, medium term, and long term.  These are rough estimations and to an extent in the eye of the beholder.  A short-term marriage is likely less than 5 years in length, and a long-term marriage is probably at least 20-25 years.  The distinctions have historically mattered because short-term marriages tend not to warrant a division of separate property, whereas a longer marriage might call for one’s separate property to be allocated to the other spouse.

It should also be noted that any marital misconduct by one or both spouses—including infidelity or abuse—is not considered in a property division.  In fact, the statute explicitly states that the division will be done “without regard to misconduct.”[10]  The legislature intended to remove the concept of fault from divorce actions to better reflect the realities of modern marriage, something we have written about here.  Courts have said misconduct refers to “immoral or physically abusive conduct within the marital relationship;” however, marital misconduct it does not encompass “gross fiscal improvidence, the squandering of marital assets or . . . the deliberate and unnecessary incurring of tax liabilities.”[11]

To be clear, this is just a broad overview of how courts allocate property and debts.  There is a medley of more complicated issues that can arise—e.g., military retirement and disability benefits, goodwill of a business or profession, railroad retirement pensions, etc.  For more information on these specific assets, call a family law attorney at Lasher Holzapfel Sperry & Ebberson.

[1] RCW 26.09.080.
[2] In re Marriage of Farmer, 259 P.3d 256 (Wash. 2011).
[3] Konzen v. Konzen, 693 P.2d 97, 101 (Wash. 1985).
[4] In re Marriage of Crosetto, 918 P.2d 954 (Wash. Ct. App. 1996).
[5] In re Marriage of Rockwell, 170 P.3d 572 (Wash. Ct. App. 2007).
[6] Crosetto, 918 P.2d at 959.
[7] In re Marriage of Tower, 780 P.2d 863 (Wash. Ct. App. 1989).
[8] In re Marriage of DewBerry, 62 P.3d 525 (Wash. Ct. App. 2003).
[9] In re Marriage of White, 20 P.3d 481 (Wash. Ct. App. 2001).
[10] RCW 26.09.080.
[11] Urbana v. Urbana, 195 P.3d 959, 965 (Wash. Ct. App. 2008).

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