–by Sam Darling, Genesis Law Firm
In Washington divorce proceedings, each spouse usually receives about half the net value of the parties’ community property and all his or her separate assets. But this is not always the outcome. Under Washington State law, all the parties’ assets and liabilities, including each party’s separate assets and liabilities, are before the court for distribution as the judge deems fair. When one party receives more than his or her normally allotted share, it is called a ‘disproportionate award’. This article explains the reasoning behind disproportionate awards, so you can better determine whether one might apply in your case. The article also provides examples for illustrative purposes.
Reason #1: In Lieu of Alimony. Courts sometimes order disproportionate awards in lieu of alimony (alimony is called ‘spousal maintenance’ in Washington). For instance, a judge might want a husband to pay his soon-to-be-ex-wife alimony of $1,000 per month. But what if the husband recently went to jail for domestically abusing his wife and, as a result, has no income from which to pay her $1,000 per month? Rather than order unpayable alimony, the judge might award a disproportionate amount of property.
These types of property awards can be distilled down to this general rule:
A judge might order a disproportionate award if a) alimony is appropriate and b) the intended payor lacks sufficient earnings to pay alimony while still paying his or her own expenses.
Normally alimony would NOT be appropriate if the would-be-payor lacks the ability to pay. However, the court can DEEM a party to have income he or she does not have. Deeming a party to have income is called ‘imputation’. The following are situations in which a judge might impute income for purposes of calculating alimony and a disproportionate award in lieu:
- The intended payor intentionally decreases his or her income in an attempt to avoid alimony or child support;
- The intended payor inadvertently decreases his income by doing something particularly bad (see the domestic violence example above);
- The intended payor intentionally decreases his or her income after becoming romantically involved with a well-to-do 3rd party; or
- The intended payor retires after inheriting separate property.
This bullet-point list is in order from most likely to least likely. That is, a judge is likely to impute a party who decreases his income to avoid child support or alimony, and less likely to impute a payor who has retired.
Moreover, the longer the marriage, the more likely a disproportionate award in lieu becomes. This is because claims for alimony strengthen with the length of the marriage.
Reason #2: Equalization. Disproportionate awards can be a means of equalizing parties’ economic positions after very long marriages (25+ year marriages). Judges often want longtime spouses to enjoy roughly equal lifestyles based on the assumption one spouse sacrificed his or her career to handle the domestic matters for the other spouse. A disproportionate award can be the best tool to accomplish equalization where:
- One spouse has a large amount of separate property;
- The economically disadvantaged spouse cannot support his or her lifestyle with his or her earnings and half the community property; and
- The economically advantaged spouse lacks sufficient income to pay meaningful alimony.
For example, a judge might award a disproportionate award of this type to a housewife if:
- The husband received a large inheritance (separate property);
- The parties saved very little during the marriage (not much community property); and
- The husband has retired (inability to pay alimony).
Reason #3: Dissipation of Assets. Courts can also use disproportionate awards to compensate for dissipation of assets (sometimes called ‘waste’) or hiding of assets. For instance, a spouse might have spent $100,000 on extramarital affairs, or secretly stashed money to avoid paying it to the opposing party. The court can award the innocent spouse sufficient assets to offset the immoral spouse’s financial wrongdoing.
Notably, simply squandering money does not usually constitute dissipation. Frivolous expenditures only rise to the level of dissipation if a) they were for a patently immoral purpose, b) the innocent spouse did not expressly or tacitly approve the expenditures, and c) the expenditures were not for the benefit of the marital community. In other words, running up the credit cards on clothes or electronics will not result in a disproportionate award.
Other Reasons. The above reasons for a disproportionate award are the most common, but there may be others. The relevant statutory law, RCW 26.09.080, allows judges to distribute property and liabilities in almost any way they see fit. This is contrary to certain other areas of the law, such as child support, which are highly detailed and constrain judges’ discretion. Property division is a notoriously gray area of the law, as is alimony.
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