Washington is a community property state. Generally speaking, assets acquired prior to marriage and after separation will be deemed sole and separate, and confirmed to the spouse who received them. The same is true for assets gifted to, or received as inheritance by, one of the parties during the marriage. The exception is that, if sole and separate assets are commingled (mixed) with community assets, the court will presume that all of the commingled sole and separate assets have been transmuted into community property. This presumption can be rebutted if the sole and separate funds can be traced (clearly shown to remain present in the account). Debts acquired prior to marriage or after separation are generally allocated to the spouse who incurred them.
By contrast, assets acquired by either party after the marriage and prior to separation – including earnings as well as pensions and other retirement assets – will be deemed community property
Division of Property
The court is charged with dividing property (assets and debts) equitably (or, in plain English, fairly). When the parties are leaving the marriage with equal financial prospects, the court will typically divide community property down the middle (or very close thereto). However, the less equal the financial prospects of the spouses, the more likely the court will deviate from an equal division. If the financial circumstances of the parties are far more favorable to one party, the court may even raid his/her sole and separate assets and award a portion to the other.
The court will consider the nature and extent of community property; the nature and extent of separate property; the duration of the marriage; and the economic circumstances of each spouse at the time the division of property is to become effective, including the desirability of awarding the family home or the right to live in the home for a reasonable period to a spouse with whom the children reside most of the time.
As with so many issues pertaining to domestic relations, the judge retains tremendous discretion. In addition to taking into account the financial needs of the parties, the court may also consider any abnormal expenditures or “economic misconduct” (sometimes referred to as “wasting of marital assets”). However, other forms of marital misconduct that have not affected the marital assets and debts will not be taken into consideration.
In addition to accounting for differences in financial status through the division of assets, the court also has discretion to award spousal maintenance (referred to in some jurisdictions as alimony). In determining the extent of spousal maintenance, if any, to be awarded, the court will consider all relevant factors including (but not limited to) the financial resources and assets of the party seeking maintenance; the time necessary to acquire sufficient education or training to enable the party seeking maintenance to find employment appropriate to his or her skill, interests, style of life, and other attendant circumstances; the standard of living established while married; the length of the marriage; the age, physical and emotional condition, and financial obligations of the spouse seeking maintenance; and the ability of the spouse from whom maintenance is sought to meet his or her needs and financial obligations while meeting those of the spouse seeking maintenance. (I’ve paraphrased the relevant statute. Maintenance orders for either spouse or either domestic partner RCW 6.09.090 sets forth the precise language of the factors to be considered by the court, though the award of spousal maintenance remains exceedingly discretionary.)
As with the division of property, marital misconduct (other than economic misconduct) will not be considered. However, there is interplay between the division of marital property and any award of spousal maintenance.
The length of a spousal maintenance award is also discretionary. It can be for a specified length of time, as is likely when its purpose is deemed rehabilitative (for example, to provide the lower income spouse time and opportunity to enhance his or her earning ability). However, it can also be of indefinite duration, which becomes more likely the longer the marriage and the closer the wealthier spouse is to retirement when the less affluent spouse is deemed to have little chance of becoming self sufficient prior to his or her receipt of an appropriate share of retirement income.
Complexity of Discretionary Process
As it probably all too clear at this point, these issues can be extremely complex. To adequately explore asset and debt division as well as the possibility of spousal maintenance in your case, consult with a competent attorney who practices domestic relations law.
Achieving The Right Results
Please keep in mind that financial issues must be properly addressed during your divorce. If you enter into an agreement that does not protect your interests, or if the court is not presented with adequate information to protect them on your behalf, it will likely be impossible to revisit these issues later. Therefore, it is crucial that sufficient resources be invested to achieve a high-quality resolution.
The Importance of Consulting An Attorney
Attorneys are expensive. However, when considering assets, debts and spousal maintenance, one must consider how much money is potentially at stake in determining whether it makes sense to retain counsel. This is best done as part of an initial consultation with a competent attorney whose practice is focused on domestic relations law. I recommend you invest in a legal consultation with such an attorney prior to making any decision that might impact you or your children.