Property Division in Washington:
In Washington State, property division in a divorce follows the principle of equitable distribution, which means that marital property is divided fairly but not necessarily equally. Marital property includes assets and debts acquired by either spouse during the marriage, regardless of whose name is on the title. Separate property, such as assets owned before the marriage or received as gifts or inheritance during the marriage, generally remains with the original owner. However, they are still taken into account when dividing the property fairly and we have seen Courts divide community and separate property 50/50 with disproportionate community assets awarded to the client without separate property. There is caselaw (past Appellate Court and Supreme Court decisions) against this but sometimes trial courts will do so.
When dividing marital property, the court considers various factors, including the duration of the marriage, each spouse’s financial circumstances and contributions to the marriage, any agreements between the parties, and the economic misconduct of either spouse, among others. The goal is to achieve a fair and just division of assets and debts based on the specific circumstances of the case.
It’s important to note that Washington is a community property state but it is different than other community property states where marital property is split down the middle. Washington’s equitable distribution approach allows for more flexibility in property division to ensure fairness in each individual case. Parties may also negotiate a property settlement agreement outside of court, which the court will generally approve if it meets legal requirements and is fair to both parties.
Division of a House (Real Property)
In Washington State, dividing real property, such as a house or land, during a divorce follows the principle of equitable distribution. Here’s an overview of how real property division works:
- Identification of Marital Property: Real property acquired during the marriage is generally considered marital property, regardless of whose name is on the title. This includes the marital home and any other real estate purchased or acquired during the marriage.
- Valuation: The next step is to determine the value of the real property. This involves obtaining appraisals for the home or placing it on the market for a sale.
- Consideration of Factors: When dividing real property, the court considers various factors to determine a fair and equitable distribution. These factors may include the duration of the marriage, whether a spouse contributed separate funds for a down payment, equity built in the home from one spouse before the parties were married, remodeling the home from separate funds, the economic circumstances of each spouse, and any agreements between the parties.
- Options for Division: There are several options for dividing real property. (A) Sell the Property: The property can be sold, and the proceeds divided between the spouses according to the court’s determination of equitable distribution. (B) Buyout: One spouse may buy out the other spouse’s share of the property, allowing the retaining spouse to keep the property. (C) Co-ownership: The spouses may agree to retain joint ownership of the property, either as co-owners or through a co-tenancy arrangement.
- Court Intervention: If the spouses cannot agree on how to divide the real property, the court may intervene and make a decision based on the factors mentioned above.
- Drafting Legal Documents: Once a decision is reached, legal documents such as a property settlement agreement or a court order are drafted to formalize the division of real property.
Attempts to Defraud a Party of Property or Destroy Property
If one spouse gives marital property to someone else, the court can step in. It might divide up the rest of the property between the spouses and compensate for the value of the defrauded marital property. Or it could order the spouse who made the wrongful transfer to make up for it.
The court can also consider a spouse’s attempt to destroy property or being careless with property so that it diminishes the property value. This is called waste. It typically has to be a substantial value in property and due to either being reckless with property or spending money frivolously on vices. These are rare exceptions and hard to argue without good legal knowledge. Here are some cases addressing such:
“In shaping a fair and equitable apportionment of the parties’ liabilities, the trial court was entitled to consider whose ‘negatively productive conduct’ resulted in the tax liabilities at issue. (n8) We note, however, that this is not to say that a court may not consider abuse by one spouse against another where that abuse has affected the economic circumstances of the abused spouse.” In re Marriage of Steadman, 63 Wn. App. 523, 528, 821 P.2d 59 (1991)
“It is apparent from the record that the testimony relating to Mr. Clark’s profligate life style was admitted and considered by the court not for the purpose of establishing ‘fault,’ but for the purpose of determining whose labor or negatively productive conduct was responsible for creating or dissipating certain marital assets. This was not error.” In re Marriage of Clark, 13 Wn. App. 805, 808, 538 P.2d 145, review denied, 85 Wn.2d 1001 (1975).
Gambling does not necessarily constitute a wasting of assets. In re Marriage of Williams, 84 Wn. App. 263, 927 P.2d 679 (1996), review denied, 131 Wn.2d 1025 (1997).
If waste is happening and you as a spouse do not take action, it can result in the Court deciding that you allowed the waste to happen. If the Court decides such you will likely not be able to recoup the wasted value of the property.
