If you are going through the unfortunate situation of divorce, then you’re probably wondering how all of the things that you and your spouse acquired since you were married are going to be divided. It’s the rare case when one partner says, “He or she can have it all, I don’t care.” Luckily, there are Bellevue Divorce Lawyers here to help you navigate these muddy waters. The Aberdeen Law Firm experts from Washington State will help you and your ex-partner figure out the way to divide your property in a fair manner that is as amicable as possible.
Washington is one of the last remaining states that honors community property. This means that if you are divorcing in Bellevue, Seattle, Tacoma, or any other part of Washington, all the property that was acquired in your marriage will typically be split right down the middle (as far as value goes)… but that isn’t always easy to do. To understand how this happens, we will define what community property is and the basic laws surrounding it in Washington, and then go into how a court will decide which partner gets what upon dissolving the relationship.
First, let’s determine exactly what is meant by this term. Community property is that which is not acquired or owned, or that has been acquired after two people have become married or declared a domestic partnership. While the couple is alive and together, either person is allowed to manage and control this property, just as they would their own personal property that they had before the relationship. For example, if a couple each had their own recliners before getting married and they then bought a couch together, one of them could choose to reupholster all the furniture because the new community property (the couch) can be treated just as the individual property.
However, in a will, community property cannot be bequeathed by more than one-half. To continue the above example, the wife could not say in her will that all the home property goes to her children from her first marriage and not allow any of it to be in her husband’s will. Community property can also not be given away by one person unless there is express or implied consent from the other partner.
Legally, neither partner is allowed to sell, encumber, or convey their shared community property without the agreement of the other person. Both parties have to be on the deed that sells the real estate or have another official document or instrument that shows they are both in agreement. Purchasing property must be done in conjunction, as well, and both parties need to be aware of and in support of the transaction or the contract that will purchase new property. This goes for large purchases such as real estate and mobile homes all the way down to appliances and household goods.
When it comes to a business as community property, both partners have a responsibility to uphold the business’s goodwill, as well. The business should be managed and overseen together. However, when only one of the partners is involved in the management of the property, that person may sell, purchase, convey or encumber the assets, real estate, or goodwill of the business without consent since the partner does not actively participate.
Community property usually includes the incomes of both spouses, including investment interests, capital gains, disability and/or retirement benefits, and other miscellaneous assets. Any property that was attained with these incomes is included in the lot, as well as any property purchased with other community funds. The couple doesn’t necessarily have to have joint banking accounts for these incomes to be considered community property. So if a husband is the only one with a salaried income, and he controls all the money, pays the bills, and gives the wife an “allowance,” but she stays home and cares for the house and children, then all of his salary and everything bought with it is still legally sharable during the marriage and upon divorce.
In the event that a couple moved around during their relationship, the situation can get even trickier. For example, if a couple originally lived in New Jersey, which doesn’t honor community property, anything that each partner bought on their own there would still be considered individual property, even if they have lived in Washington for years and are currently divorcing there.
Individual property, also known as separate property, can include gifts to individuals from those outside the partnership, such as an art piece given as a birthday gift solely to the wife from her father, anything purchased before the documentation of the marriage or partnership, and inheritance amounts. However, if some of these things were commingled together, they might become community property if it is too difficult or impossible to separate upon the divorce. For example, if the husband used his inheritance payout to purchase stocks, but that money was invested in a portfolio along with other money from the wife’s salary and work benefits, then it could be commingled together as community property.
Community property doesn’t just mean tangible things, either. Debt is also considered shared by partners upon divorce, unfortunately. This means that if one person takes out a credit card or a car loan during a marriage, that debt can technically be the responsibility of both parties upon divorce.
If the person assigned certain debts doesn’t pay them, then you might still be responsible. The lender has every right to come after the other person on the deed or contract. If this happens, the person who was not responsible for paying the debt according to the court decisions has every right to sue their ex-partner. Then the court can order the defaulting person to pay the money back, or their wages could be garnished.
Although Washington is a community property state, and the law states that one spouse cannot claim rights to more than half of that property, things aren’t always divided straight down the middle. Your Bellevue divorce lawyer will look at several factors to determine who gets what.
One of those is the type of property and its fair market value. For example, a couple’s home is usually the most valuable thing that they own together. However, you can’t simply say that one person gets the top floor and the other the bottom. So, the home will usually go to the person who will have the majority custody of the children, if there are any. This means that other valuable property, such as cars, boats, or stocks, could go to the other parent/partner. The courts will determine the value of everything by meeting with both partners and discussing the individual situation.
There are also exceptions to the division of property if the marriage was extremely short. If the divorcing couple had been married for less than five years, then a judge will often order them to return their financial situations to what they were before they were married. However, if one person is much wealthier or has many more assets than the other, it is always smart to sign a prenuptial agreement so that things don’t get messy if it doesn’t work out.
The court will also look at where both partners are financially after the divorce will take place. For example, most judges wouldn’t award so many things to one partner so that they end up very wealthy or have every material that has great financial value, such as the home or cars, and the other spouse gets left with nothing of true value or potential, like the television or furniture. If one partner became disabled during the marriage, or one never had the chance to work outside the home because they were raising children or supporting the other’s career, then that will also be taken into consideration and more of the community property would go to that partner.
Some couples will decide that they don’t want to have a judge determine where the fair dividing line is, so they can draw up a divorce settlement agreement on their own. This agreement should make sure that all conflicts are resolved, and that all property is divided in a way that is acceptable to both parties. As long as the agreement isn’t obviously tilted toward one spouse (which could happen if one is coercing the other into an unfair agreement), then a judge will typically take this as a fair settlement and the divorce can happen much more smoothly. If there is an understandable reason why the agreement more heavily gives assets to one of the couples, however, a judge will consider both parties’ assets. A couple could also choose to use a mediator to help get the agreement situated but still not have to have it all be decided on by a court.
If this all sounds a bit confusing, that’s because most laypeople don’t need to worry about the ins and outs of community property at all! However, at Aberdeen Law Firm, we can help you figure out what to do when community property needs to be divided. We have offices in Bellevue, Seattle, and Tacoma, and can serve all major parts of Washington State.
Laws are often changing, too, so even if when reading this it sounded like you and your partner could have a handle on how to divide things, you might be surprised at the hurdles or changes that come up. It’s always best to have a professional on your side.