Washington Divorce FAQ’s – Property Division

This is about property division in divorce in Washington, including the general rule for Washington property division, what effect the length of marriage and conduct of the parties has on property division after divorce in Washington, how separate property works in Washington, and treatment of the marital home and retirement plans in divorce in Washington.

This information is from Jennifer C. Rydberg, the DivorceInfo Network Lawyer for Washington.

What’s the general rule of property division (equitable distribution, community property, or legal title)?

All of the property and debts the husband and wife own, including separate and community property and debts, are before the court and are subject to division between them. The property division must be “fair and equitable”, and will not be changed by an appellate court unless there is a clear showing that the trial court abused its discretion.

What effect does the conduct of the parties have on property division?

The property division must be made without regard to any marital misconduct. However, if one party has wasted a major community asset, for example by gambling, that may be considered by the court in dividing the remaining property.

What effect does the length of the marriage have on property division?

The goal in a short-term marriage is to put the parties back to where they would have been economically had there been no marriage, while dividing the community property equally. The goal in a long-term marriage is to financially equalize the future of the parties, which may require giving more than 50% of the property to one spouse. A medium-length marriage combines these goals, and may include balancing the financial needs of children and a spouse who has been unemployed or underemployed while the children have been minors.

Is there such a thing as separate property? What does it take?

Community property is all property acquired during the marriage, except for property received by inheritance, gift, or as a result of property owned before the marriage. These exceptions are separate property. The party claiming that he/she has separate property must be able to demonstrate that the property was initially separate, and remained separate at all times, by clear, cogent, and convincing evidence. Otherwise, the separate property becomes community property.

Judges may award the separate property of one spouse to the other spouse, but this is usually limited to exceptional circumstances.

Any special rules for the marital home?


How do retirement plans get divided?

There are two types of retirement plans for most people – Defined Benefit Plans (like a pension) and Defined Contribution Plans (like a 401(k), IRA, or other form of savings.

There are basically two ways to divide retirement plans – cash out now, or divide them at the time of retirement.

Information can be obtained from the Plan Administrator of each retirement you or your spouse have. From this information, an expert witness called an “ACTUARY” can calculate what a future pension in a Defined Benefit Plan is worth today. Defined Contribution Plans, like 401(k)s and IRAs are easy, because they are worth their present cash value. Each type of retirement has a different method, but basically all of them can be divided with special provisions in your Decree of Dissolution or a Qualified Domestic Relations Order. The rules are very complicated, and you should consult with an attorney for guidance. When the rules are properly followed, the division of retirement assets is done without any present income tax or penalty.

The part of the retirement benefit that is usually divided is the amount that was accumulated between the time you and your spouse began living together or were married, whichever was first, and the time you began living separately. Retirement benefits earned after you begin to live separately are the separate property of the spouse earning the benefit.

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