Picture of Couple Dividing Property After Divorcing

How Is Property Divided in a Divorce? | Washington State

by Samuel K. Darling, Genesis Divorce Lawyer

This article explains the basics of how Washington courts typically divide property (assets) and liabilities (debts) in a divorce. For readers wanting more in-depth information, we encourage you visit the ‘resources’ tab in the upper right of any page on our website. There you will find numerous free articles and videos on topics this article only briefly touches upon. If you are unfamiliar with the rules of property division, we recommend reviewing this article and its accompanying video first. Then review our other articles and videos on other property-related subjects if you need to. And if you get bored reading about these laws, watch our video(s)!

Table of Contents:
1. How Does the Court Usually Divide Property?
2. What Does a 50/50 Division of Community Property Look Like?
3. What Is the Difference Between Community Property & Separate Property?
4. Will a Court Sometimes Award More than Half the Community Property?

 

I. How Does the Court Usually Divide Property?

A court in Washington State will usually a) award each party his or her own separate property and b) divide the net value of the parties’ community property 50/50. This means the husband keeps what he brought to the marriage, the wife keeps what she brought, and the rest gets split between them equally.

However, the property division can be drastically different from this norm. Washington’s divorce laws often grant judge’s a great deal of latitude, and property division is no exception. All separate and community property and liabilities are before the court for distribution to either party. You can read the actual language of the relevant statute at RCW 26.09.080, but that is not necessary. Put simply, a court can award one spouse the separate property of the other, and can award one party more than half the community property. This may be one reason parties notoriously engage in ‘character assassination’ during divorce proceedings. A party might get a more property by making the other side look underhanded.

Picture of person unsure of how the court will divide property in a divorce.
The court usually awards each party about half the community property, but the result is not always predictable.

II. What Does an 50/50 Division of Community Property Look Like?

Often would-be-divorcees mistakenly believe the court awards each party half of each item of community property. For instance, they think the court will force the parties to sell their house and other belongs so each can have half the proceeds.

Though courts occasionally force the sale of a home, that outcome is rare. In fact, judges usually accomplish a 50/50 division of community property without selling anything. Instead, courts tend to award whole items to each party, and then divide cash and stock accounts in whatever percentage is necessary to equalize.

For illustrative purposes it helps to look at a simple hypothetical example. Assume the parties’ community property consists of the following:

  • A house worth $100,000
  • A mortgage of $60,000
  • The husband’s car worth $5,000
  • A $5,000 loan on the husband’s car
  • The wife’s car worth $10,000
  • A $10,000 loan on the wife’s car
  • A 401k retirement account with a balance of $60,000

In total, the divorcing couple has $175,000 in assets (the house, cars, and 401k) minus $75,000 of debt (the mortgage and car loans), for a net community value of $100,000 ($175,000 – $75,000 = $100,000). Normally the judge would want each party to receive half this net value, namely $50,000 net each.

The court could distribute the property in any way that leaves each party with $50,000 net. So the court might award the husband the house (worth $100,000), the mortgage (a debt of $60,000), his car (worth $5,000), his car loan (a debt of $5,000), and $10,000 from the 401k—which would leave the husband with a net of $50,000 in community assets and liabilities. The wife would in turn receive $50,000 from the 401k, her car (worth $10,000), and her car loan (a debt of $10,000)–which would leave the wife with a net of $50,000 as well. The parties’ positions would be equal in the court’s eyes, with each having half the net value of the community property.

The court will usually award different kinds of community property to each party, but the net value typically ends up being equal.

Notably, judges usually keep at least four rules in mind when deciding how to apportion a 50/50 division of community assets and debts:

  1. Apportion debts in ways the parties can afford. This means a judge will usually order the higher-earning spouse to pay the majority of the community debts. In our example, this means the higher-earning spouse–traditionally the husband–is required to pay the mortgage.
  2. Keep liens with the assets they encumber. Our example was in concert with this rule as well. The largest lien (the mortgage) and the asset it encumbered (the house) both went to the same person (the husband). Similarly the wife’s car and car loan both went to the wife. By keeping liens with their encumbered assets, it decreases the likelihood of default on the debts. The husband will pay on the mortgage for fear of losing the roof over his head, and the wife will pay on the car loan for fear of losing her transportation.
  3. If there are minor children, try to keep them in the former family home. In other words, award the former family home to the custodial parent (called the ‘primary care parent’ in Washington State) if she can afford the mortgage. There are no children in our example, so this rule does not apply.
  4. Award items to the spouse who wants them, primarily uses them, or in whose name they are in, in that order of priority. In our example, each spouse received the car he or she customarily drove.
Picture of each party getting his or her car.
Each party usually gets the car he or she customarily drives.

III. What Is the Difference Between Separate Property & Community Property?

Separate property is what a spouse either acquired prior to the marriage or after the parties’ separation. Community property is what the either party acquired during the marriage. The key factor is the date of acquisition.

Essentially the same definition applies to liabilities (debts). Liabilities are separate if acquired prior to marriage, community if acquired during marriage, and separate if acquired after the parties’ separation.

These definitions are generalities, however, and Washington law contains many exceptions to them.The following are some of the exceptions:

  • Inheritances are the separate property of whoever received them, unless left to both parties.
  • Gifts are the separate property of whoever received them, unless given to both parties.
  • Items acquired prior to marriage may be treated as community property if, at the time, the parties shared their finances and otherwise acted as a marital community.
  • Items take on the character of the property from which they derived. If community property earnings are used to purchase an item after separation, that item is community property as well, and visa versa. This is called the ‘tracing rule’.
  • If community property and separate property are commingled to the extent the court cannot trace them, they become community property. This is called ‘commingling’.

Bear in mind, even these exceptions contain exceptions. Characterization of separate and community property can be a highly nuanced debate in court. Our firm has published a more detailed article on how courts define community property in Washington divorces.

Picture of parties exiting after being married.
Community property is usually defined as what the parties acquired during the marriage, but there are many exceptions.

IV. Will a Court Sometimes Award More Than Half the Community Property?

Yes, courts will sometimes divide community property in ways other than 50/50. And as mentioned above, a court may also award one party’s separate property to the other party. When this happens, it is called a ‘disproportionate award’. Disproportionate awards are rare, especially with respect to short marriages. They are somewhat more common with long marriages, but still an exception.

That’s it! We hope this was helpful. Our firm believes in making quality legal information available for free online. From everyone here at Genesis, we wish you the best with your family law matter!

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10 thoughts on “How Is Property Divided in a Divorce? | Washington State”

  1. Cherilyn Fisher

    If the husband and wife are named on a deed of trust before rhe grandfather passed away but the mother was left that property upon his death and then gifted it to her son the husband and is still living and wrote a statement that she gifted the house to her son with the intent it stay in the family would that property then be considered the husband’s separate property?

    1. Hi Cherilyn, the state rules of professional conduct arguably prohibit us from using the comments section of an article to advise on how the law applies to a person’s specific factual scenario. We would need to perform a client intake and conflict check before providing legal advice of that kind. We can, however, answer hypothetical questions of potential interest to the general reading audience. If you would like, you can try rephrasing a part of your question as a general hypothetical on a certain aspect of the law. Alternatively you could ask us to write more on a topic or to clarify an aspect of the article. Sorry for not being of more help.

  2. Two questions;
    Are Tribal non taxable, individual, general welfare funds included as separate, or community income in divorce?
    Are tribal, individual, one time, home down payment assistance funds considered community, or separate in divorce.

  3. brian casebolt

    If the man had a property and the woman,
    the mans property a rental, and paid for. the wifes still paying. before mariage. the man gets a large inheritance. and buys a house with it. and fixes it during the marriage. dose the man keep the 3rd house and his previous rental? if she contributes only twards payibg her own homes bills? and the man works on everything. as well uses his inherited $ s to fix her home? which was rented after a year. and the inherited home becomes there primary residence? she leaves and kicks her temants out. after 2 years of working below her pay grade? then remodles her home , with her families help.
    asking that the man pay for her high end and unafordable upgrades? as well as 1/2 the house he bought with his inheritance? also as soon as petition is filed? the woman goes back to her good paying job. leaving the man in financial distress. because he has nerve damage. and has had 3 surgerys. now posibly needing another? now credit cards are maxed. the man is hurting and will he survive? the wife stayed at another mans home. a whole night before leaving three days later..

  4. Hypothetically, person A & B are dating.

    Person A owns a 400k home with 200k mortgage.
    Person B rents a home.

    Person A owns all cars and recreational vehicles outright and has no credit card debt, and 100k in savings.

    Person B has 40k vehicle loan, 15k in other debts, and $0 savings.

    Person A enters contract to buy another home, using equity from current home as down payment, then places current home on market and gets contract. Person A is the only buyer on contract and the only person on the new loan application.

    Person A and Person B marry 10 days before simultaneous closing of Person A’s home(s)

    Person B stays in first home for 5 days, then moves in with Person A when they close on new home.

    Person B signs notarized “non-borrower affidavit” releasing B from all financial responsibility to mortgage etc. (they are not on the loan)

    Person B is added to the deed, as it is a community property state.

    Person A pays off Person B’s small debts (not vehicle) totaling over 15k, and pays 8.5k in legal fees for Person B custody case that arises.

    Person B has affair, beginning BEFORE marriage to A was ever proposed, it is not discovered until months into marriage.

    Person B asks person A for quit claim deed 9 months into marriage, signs quit claim in front of notary, moves out next day.

    Person B files for divorce, now claims they were illegally kicked out of home, tricked into signing quit claim and want 50% equity. Person B also claims 50% equity in Person A’s original, separate property home which was sold to purchase current home.

    Length of entire marriage = 10 months from marriage to filing for divorce (by Person B)

    Person C (Person B affair partner) claims they were told 2 weeks after A&B married, the relationship between B & C was permissible, as Person B claimed their marriage to person A was a “business arrangement” (Person A was unaware of this arrangement)

    Person A paid for everything during short marriage, can trace all funds.

    Person B contributed 7 months of payroll to joint accounts.

    Both A&B maintained separate accounts for duration of marriage, and when A would make mortgage payments, they would withdraw funds from separate account containing funds from before marriage, deposit to joint account for automatic north withdrawals.

    Overall, Person A went from 100K to 20k in reserves during 10 month marriage.

    Person B went from 50k in debt to 0 in debt during marriage.

    Person B now claims 50% equity in all household goods and home equity.

    Riddle me this… 😉

  5. In a default divorce where spouse has abandoned the home with the children and whereabouts unknown. Court orders for child custody and visitation not acknowledged…if court grants default divorce can the petitioner who has remained in the community property home sell after default divorce granted? What is needed to sell and clear title?

  6. In a default divorce where spouse has abandoned the home with the children and whereabouts unknown. Court orders for child custody and visitation not acknowledged…if court grants default divorce can the petitioner who has remained in the community property home sell after default divorce granted? What is needed to sell and clear title?

  7. If both husband and wife are on a mortgage for a house and one moves out prior to the house sale, would the person that has left still be responsible for there half of the mortgage?

  8. if the husband owns a house in another state 7yrs before the marriage and paid all expenses/mortgage for said house would it be considered community property?

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