by Samuel K. Darling, Divorce at Family Law Lawyer at Genesis Law Firm
Question: Who will get the house in my divorce? Answer: Though Washington State’s laws make the outcome difficult to predict, there are guidelines judges keep in mind. The following is a non-exhaustive list of the factors our firm believes judges weigh most heavily:
1. Enforceable Agreement. If the parties enter an enforceable agreement regarding the house, the judge almost always adopts it. Enforceable agreements can take many forms. Examples include prenuptial agreements, post-nuptial agreements (a prenuptial agreement signed during the marriage), separation contracts (a contract signed when the parties informally break up), and settlement agreements (agreements made on the court record or signed during the divorce proceeding).
2. One Party’s Separate Property. Courts usually award each spouse his or her separate property and divide community property 50/50. Consequently, if the house is entirely one spouses’ separate property, he or she almost always receives it unless the parties agree otherwise. For readers wanting to know more about characterization of separate and community property, please read our firm’s article on the subject.
3. Partly Separate, Partly Community. Often the house is partly separate property and partly community property. For example, the down payment may have come from one spouse’s separate funds, but the mortgage might be community debt. In that case, the spouse with the separate property interest is more likely to receive the house. However, the outcome is less certain than if the house were completely separate property.
4. Who Can Afford. Courts typically avoid awarding the house to a party who cannot afford it. This is especially true when the mortgage is in both parties’ names, as a default would hurt both peoples’ credit scores. Frequently the lesser-earning spouse receives child support and/or spousal maintenance (alimony), which makes the home affordable for either party. But in dissolutions of short-term marriages, there tend to be neither children nor maintenance. In those cases, the higher earning spouse generally receives the house unless it is the other party’s separate property.
5. Keep Business Running. If one spouse runs a business inextricably linked to the house, he or is more likely to receive both the house and the business. An example would be a spouse who runs an adult-care facility from the family home’s spare bedrooms.
6. Keep Kids in Family Home. If there are dependent children of the marriage, judges try to keep them in the former family home. This is for the children’s comfort. This means the party who receives primary care (custody) is more likely to receive the home as well. Courts specially emphasize this factor when deciding who gets the home during temporary orders.
7. Avoid an Additional Move. Courts also err on the side of minimizing disruptions to the parties. If only one party is currently in the former family home, he or she is more likely to receive it. Doing so prevents an additional relocation.
Additional Notes on Distributing the Former Family Home
1. Courts Rarely Force to Sell. Historically Washington’s courts have been extremely reluctant to force the sale of real estate. This makes intuitive sense. People become emotionally attached to their homes and land. More importantly, selling real estate comes with transactional costs of about 8% of the sale price, excluding federal income tax. Federal income tax applies to the extent the parties did not live in the home for at least two of the previous five years and meet various other conditions. This can sometimes increase the transactional costs to over 35%. Courts can nonetheless order the sale of the home when the parties agree to it or the court believes it is justified because of the limited alternatives for fairly dividing the parties’ net community property. Our firm has a separate article on the basics of property division.
2. Valuing the Home. If the court does not order sale of a significant asset, it should place a value upon it at a contested trial. High standards apply to valuations of real estate in court. Tax assessments and lackluster analyses are inadmissible to prove fair market values for real estate, and comparative market analyses come into evidence only under certain conditions. This might mean automated estimates from websites like Zillow and Redfin are also inadmissible.
The gold standard for valuing a house is a fair market appraisal from a licensed appraiser. Washington courts have allowed parties to testify about their opinions on the value of assets, but those cases appear to have stretched evidence rules regarding the delineations of lay testimony and expert testimony to reach that result. These cases also predate the current, codified version of Washington’s evidence rules and may be of little value now.
3. Temporary Orders Supposed to Be Irrelevant at Trial. Statutory law prohibits temporary orders from prejudicing a party‘s arguments at subsequent court dates. As a result, a trial judge should not consider who is in the former family home if the spouse gained exclusive use of it through a temporary order. This is because temporary orders are issued without many of the procedural safeguards available at trial. Many trial judges are unaware of this law. If you want to bring it to the court’s attention, mention it in your trial brief and closing argument.
For more free legal articles and videos, our firm encourages you to visit our website’s resources tab in the upper right corner of the page. Or call our firm toll free at 866-631-0028 to speak with one of our family law attorneys in Snohomish County or King County, Washington.
Recommended Articles & Videos:
- Property Division in WA Divorces: The Basics
- Divorce in Washington State: An Overview & Guide *START HERE FOR DIVORCE RESEARCH
- Spousal Maintenance (Alimony) in Washington State
- How Much Does a Divorce Cost in Washington State?
- The Difference between Legal Separation & Divorce
- 12 Surprising Divorce Laws in WA
- Will My Spouse Have to Pay My Divorce Attorney’s Fees?
- How Much Does a Divorce Cost in Washington State?
- Tips on Keeping Your Divorce Attorney’s Fees Low
- Representing Yourself with Limited Help from an Attorney
- Calculating Child Support: The Basics
- Win Custody: Positioning & Evidence
- Types & Examples of Parenting Plans
- Community Property in Washington State Divorces
- Disproportionate Award of Assets
- Does It Matter Who Files for Divorce 1st?
- Spouse/Ex Refuses to Work
- How Trial Works
- Family Law Mediation in Washington State: The Basics
Comment below to tell us and other readers about our article(s), how we can improve them, and additional topics you would like our article(s) to address.
OUTSTANDING resource. Thank you so much. I learned a lot and the knowledge gave me some comfort. I’m in a non-Traditional marriage and I (the Dad) stayed home and raised our SIX kids while my wife wanted her career and didn’t want to raise kids. Now she wants a divorce and doesn’t want to give me anything because of my gender. She wants the marriage to be considered a “Traditional” one. And I’m 60 years old but I started working.
Hi Dale, this is Sam, the article’s author. Thanks for the kind words – it’s always nice to get a pat on the back.
If I bought the house in ’99, and have paid every payment and bill related to it before meeting her as well as during/throughout out relationship to the present day (and it is all only in my name), is that what you mean by separate property?
Hi David, Washington’s rules of professional conduct prevent us from offering you legal advice in which we help you apply the law to your specific facts. We’d need to perform a client intake and check for conflicts of interest before offering legal advice of that type. We can, however, write articles or clarify topics generally, and we can point you to other resources. You might try reading our article on community property in Washington. It explains how to determine whether property is separate or community in character. Hope that helps.
Thank you for such informative articles. I owned my home, paid in full, and lived in it for over 6 years before marrying and my husband moving in. We moved to another home after 19 years and when we sold the first home (after two years of renting it out), 100% of the proceeds were used to pay off the mortgage on the second home. Is the value, or current assessed value, of the first home treated as my separate property?
Hi Danielle, unfortunately the rules or professional conduct prevent me from using the comments section to advise people on how the law applies to their unique factual scenarios. I would need to perform a client intake and conflict check before doing that. But I think you can find the answer by reading our article on community property law, especially sections eleven and fifteen. Hope that helps. If our article fails to address an aspect of the law or is unclear, do not hesitate to point it out by writing another comment.
My soon to be ex moved out of our home over a year ago and stopped paying his portion of the mortgage. We had an appraisal the month he moved out and one a year and a half later(he had not contributed anything to the home for that year and a half). I am keeping the home. Is he entitled to equity from appraisal at the time he moved out or the one a year and a half after he walked away from home and mortgage?
I’m not an attorney but I have been going through a divorce for the last few years… so have some knowledge on this …. it would be from the time he moved out.
my wife changed the locks on our home now after i left the home. we are getting divorced but now after a few months she just seems to be trying to make things harder. i never voluntarily left. it was for the best mental health of us all. now she’s claiming she doesnt feel safe. i have been looking at the laws when it comes to this and it all seems to be she is wrong in changing the locks and when i brought it to her attention she just tells me “call the cops” and “ill tell them im scared” and then i will try to get a restraining order. she has no reason for one, but im afraid she will use the system to get punish me just because she doesnt get her way. i have never threatened or done anything to warrant a restraining order. i never go unannounced to the home so there has been no justification for what shes doing. its purely out of spite. what should i do?