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Washington Property Division
Property Distribution Laws in Washington

In Washington the courts generally accept a fair and reasonable property division the parties agree to, but if the parties cannot agree, the Family Court divides the property within the Judgment of Divorce.

Factors in Community Property Distribution

A community property state, Washington divides all property and debt acquired from the date of marriage until the marital cut-off date.

The court does not consider marital misconduct.

Based on Revised Code of Washington - Title 26 - Chapters: 26.09.080, 26.16.010, 26.16.020, 26.16.030, 26.16.220, the court divides the assets and the liabilities of the spouses, either marital or separate, in a way that seems fair. In doing so, it considers all relevant factors including, but not limited to:

  • the nature and extent of the community property;
  • the nature and extent of the separate property;
  • the duration of the marriage; and
  • the economic circumstances of each spouse at the time the division of property is to become effective. This includes the desirability of awarding the family home or the right to live there for reasonable periods to a parent with whom the children reside the majority of the time.

In a short-term marriage, the courts try to restore the spouses economically to where each was before the marriage. In a long-term marriage, the courts try to make equal the economics of each spouse, which may require an unequal division to one spouse. In a medium-length marriage the court balances both goals, balancing the financial needs of the economically vulnerable parties.

Marital Property vs. Separate Property

All of the assets and liabilities the husband and wife own are subject to division. The property division must be fair and equitable. When one spouse dissipates a major community asset - say the husband gambles away the marital home - the court may consider that in the division of property and compensate the wife. Except for property received by inheritance, gift, or property owned before the marriage, all property acquired during the marriage is community property. These exceptions are separate property, which is also called immune property. Unless the spouse who argues that he or she has separate property can prove that it was separate and remained separate at all times, by clear, cogent, and convincing evidence, separate property becomes community property. Under exceptional circumstances, the court awards the separate property of one spouse to the other spouse.

Valuing and Dividing Property

First, the court classifies assets and liabilities, property and debt, as marital or separate. Then it assigns a monetary value to the marital property and debt. Finally, it distributes the marital assets between the two parties in fair and reasonable manner.

The Marital Home

In Washington, as in many jurisdictions, the equity of the marital home is often one of the biggest assets of the marriage. The equity is the market value of the house, less any debts or liens against it. Once the spouses agree to a market value, liabilities associated with the property are deducted. This means mortgage, taxes, and home equity loans. Normally, making this calculation requires a paid real estate appraisal.

From there, couples choose one of three options to divide the equity:

  • The spouses sell the home and divide the proceeds.
  • One of the parties may refinance the home and buy out the other party.
  • One spouse (usually the custodial parent) remains in the home with the exclusive use and possession for a certain period of time (for example, until the youngest child graduates from high school), then either buys out the other spouse or sells the home and divides the proceeds.

Pensions and Retirement Accounts

In Washington vested pensions are marital property. A pension vests when all the requirements to receive the pension have been met. Unvested pensions are also marital property. Until the pension has vested, the person under whom the pension is maintained has only an expectancy of interest in the pension.

Several different methods of valuation are used in determining how much a marital asset is worth. Courts generally accept the value when the spouses mutually agree on a value of a particular asset. Experts may be retained by the parties or by the courts to determine the value of marital assets if the parties cannot agree. These experts may include accountants, real estate or business appraisers, or pension valuators. The use of experts adds to the cost of the divorce.

In Washington the court may include the retirement benefits and plans earned by both spouses as marital assets available for division. Retirement benefits vary greatly but can generally be divided into two groups:

  • Defined Contribution Plans: A defined amount of money belonging to the employee. The employee and/or the employer make defined contributions. The balance of the plan is constantly changing, but its value is definable at any given point. 401(k)', 403(b)'s and profit sharing plans fall into this category.
  • Defined Benefit Plans: A retirement benefit where an employer promises to pay a benefit to an employee sometime in the future, based upon some type of formula. Normally, this formula is based on the employee's salary near the end of his or her career and the number of years he or she worked for the employer before retirement. Defined benefit plans are much more complicated to value and often require the professional evaluation of an actuary to determine exact values.

In Washington if spouses share in each other's retirement or pension plan, a Qualified Domestic Relations Order must be completed. A QDRO is a written set of instructions that explains to a plan administrator that two parties are dividing pension benefits. The instructions set forth the terms and conditions of the distribution - how much of the benefits are to be paid to each party, when such benefits can be paid, how such benefits should be paid, etc.

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