If you’re facing divorce, you have multiple things causing you to worry. Those with children will likely be most worried about creating a safe environment and a workable parenting plan for their children. After that initial consideration, many people focus on how property and money will be handled in a divorce.
Most people think that when they get divorced, everything will be split 50/50. However, that isn’t always the case. Most US states use what is called equitable distribution when dividing assets. That means that judges are allowed to distribute the property and cash in a manner they deem fair, whether that is an equal split or not.
The Basics of Property Division
Every divorce requires the division of a couple’s property and debts. Most states allow spouses to keep their separate property. They also are held responsible for their obligations.
Each state has its own rules for property division. For the most part, your state’s rules decide how property is divided. If the state allows it, the specifics of how you handled your finances during your marriage might play a role in the distribution of assets. Sometimes, you and your spouse can agree on a different property division even if you live in a state that requires a 50/50 division of property.
Remember that if you and your spouse create your property division, it doesn’t make it a final division. The judge in your case must review any agreements you make before your divorce is finalized. That includes parenting plans, support agreements, and property division agreements. Typically, judges will sign off on what the two of you have agreed to unless it is blatantly, disproportionately unfair.
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State Rules on Property Division
States generally have two different approaches to property division in divorce cases. Those two approaches are equitable division and community property.
Equitable Division
Most states follow the equitable division style of property division in divorce cases. Equitable, in this case, doesn’t mean equal. Instead, it means fair. Judges consider the divorce’s circumstances and how they have previously handled finances and property to determine a fair way to split their assets and their remaining debts.
Community Property
Nine states in the US, including Washington, are community property states. In those states, the law assumes joint ownership for any property the couple has, obtains, or accumulates while married. That’s unless the specific property qualifies as separate property.
Typically, the spouses will each retain half of the property when they get divorced. Some community property states allow or require judges to determine a fair distribution of assets, even if that means an unequal distribution.
Washington, for example, has requirements for dividing property in a divorce like states following an equitable division method of property division. The divorce judge must consider all relevant factors when determining how to divide the property. Those factors include how long the spouses were married, their economic circumstances, and whether the person who has primary physical custody of the children should retain the family home. After reviewing those factors, the judge determines a fair and equitable method of dividing property and debts.
Two Kinds of Assets
In a divorce, the court is concerned with marital assets. The marital assets are the community property, the property or assets purchased during the marriage. That property or asset is purchased with the couple’s earnings during the marriage.
Washington also acknowledges the existence of separate property assets. Typically, separate property assets are the result of a gift or inheritance. These assets also include property that was owned before the marriage. One thing to note about an inherited property is that if the property was willed to both spouses, for example, “I leave my cabin to Joe and Sally,” the inherited property becomes marital property.
Debts are viewed in much the same way. If the debt was incurred during the marriage, it’s a marital debt. If one partner had the debt before the marriage, that debt is a separate debt and typically becomes that person’s sole responsibility.
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How Division of Property Is Determined
Whether you live in a community property state like Washington or an equitable division state, there are four steps to determining what property belongs to which spouse.
- Identify all the properties. Determine where the property is and whether it’s tangible or intellectual.
- Classify all the properties. When was the property purchased or otherwise acquired? Property status is determined by when you got it—before, during, or after the marriage.
- Value the property. If you can’t value the property yourself, some experts can help value virtually every property. For example, a real estate agent or appraiser would be the person to value real estate or the marital home.
- Distribute the property. The court has tremendous discretion in Washington as to how to distribute property. Sometimes that’s 50/50, but it isn’t always. The determining factor is what is just and equitable, so if someone needs a greater percentage of the assets, the court might determine to do a 60/40 split, for example. It would be hard to have a decision like that overturned on appeal because the court has such a large amount of discretion.
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Factors Contributing to the Determination of Fair Division of Property
Various factors are considered when determining the division of marital property. The court may decide to review all or only some of the following factors:
- The earning power and financial stability of each spouse
- The value of any separate property of each spouse; businesses, business interests, retirement plans, 401k plans, stocks, bonds
- How much each spouse contributed to acquiring marital property
- How much each spouse contributed to the education and subsequent career of the other person
- The future financial liabilities and needs of each person
- The health and age of each spouse
- The liquidity of marital assets
- Prenuptial or premarital agreements
- Spousal maintenance or alimony obligations
After considering these factors, the court will determine the fair division of the couple’s assets.
Justifying an Unequal Property Split
Most states don’t require a 50/50 property split in a divorce. However, judges usually prefer to order an equal or roughly equal property division. Generally, it’s easier to see that the division is fair if each spouse ends up with close to the same amount of assets, not counting debts.
If you want something other than a 50/50 (or close to it) split, you will need to provide evidence to support your claim that what you want would be equitable. You’ll need to show that specific financial circumstances or other circumstances warrant the split being greater for one or the other of you. You will want to consult a divorce lawyer to help you argue for the kind of settlement you think is fair.
If you and your spouse have a property distribution model in mind, your petition will be stronger if you understand what could happen if you and your spouse don’t agree on everything. This understanding requires that you know and understand the rules in your state and the things that judges consider when determining fair and equitable division.
A Word About Debts
Assets and property aren’t the only things to be divided in a divorce proceeding. Another consideration is who is responsible for what debts. Just as there is a community and separate property, there is a community and separate debt.
Community Debt
Debts incurred during the marriage, whether by one spouse or both, are generally considered community debts. Both spouses are responsible for community debts. This is true even if only one spouse incurred the debt because it was incurred during the marriage.
Separate Debt
Separate debt is just that; separate. These debts are incurred outside the marriage. They could have been incurred before the couple got married, or they could have been incurred after the couple separated. Separate debts are typically considered the responsibility of whichever spouse incurred the debt.
Does It Matter Who Paid for the Asset?
The short answer is no. However, nothing in a divorce proceeding is cut and dried. So, it’s essential to understand that any money earned during the marriage is considered community property. It doesn’t matter who made the money.
Suppose you used your paycheck to purchase a car. The car was purchased during the marriage with money earned during the marriage. Therefore, it’s considered community property. The car belongs to you both, which means the judge will include it with all other community property when determining how the assets are divided during the divorce.
However, if you purchased the car before marriage using your paycheck, the car becomes a separate property. This is true even if you both used it during the marriage unless you had it retitled in both of your names at some point.
Consult an Experienced Divorce Attorney
When you’re facing divorce, it can become confusing how property should be divided. The fairest division of property isn’t always a 50/50 split. It’s essential to consult a qualified attorney before agreeing to a property division with your spouse. Contact the lawyers at the Aberdeen Law Firm to help you understand the property division in Washington.
Related Content: The Unique Challenges of a High Net Worth Divorce in Washington
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