Divorces and Community Property

Separate and Community Property

There are two systems by which married people own property. In almost all states, married people own property under a system called separate property. A minority of states subscribe to the community property system. Washington State is one of those states.

In separate property states, each spouse owns, in his or her own name, all property acquired by them before or during their marriage. In these states, each spouse can control their own property in whatever way they choose.

However, just because each spouse owns separate property doesn’t mean that upon divorce the property is distributed along the lines of who owns what. Courts essentially apply the reasoning to the distribution of assets in both separate and community property states; the court must determine a fair and equitable distribution of all marital property.

The concept of community property is in effect in Washington State. In community property states, each spouse owns a one-half interest in all of the marital community property. Community property is defined as all property acquired during marriage that was not received as a result of inheritance or gift. This includes all wages earned and all property purchased (such as a house, stocks, boats, etc.) during the marriage.

The philosophy behind the community property concept is that a marriage is like a partnership; both parties bring various skills to the partnership, so each should benefit equally from the benefits of the marital partnership. Likewise, each party will be held responsible for any debts of the partnership.

Although every state has its own laws, the general method for determining what is an equitable distribution of the marital property is to apply the following types of factors:

  • The duration of the marriage
  • Antenuptial (Prenuptial) agreements of the parties
  • The age, health and employability of each spouse
  • The lifestyle enjoyed by the parties during marriage
  • All sources of income of each spouse
  • The opportunity for future acquisition of assets by each party
  • The economic circumstances of each spouse at the time that the property distribution is to become effective.

Based upon the above statutory factors, courts must consider all of the marital assets and divide the assets in what it determines to be a fair and equitable way. Oftentimes, a non-working spouse is awarded a greater percentage of the assets because the court determines that the working spouse is better equipped to acquire assets in the future than the non-working spouse.

In addition, the courts look to the lifestyle enjoyed by the parties during marriage and distribute the property in a way that best allows the parties to maintain their standard of living. In many cases, this means that the lower wage-earning spouse receives a larger portion of the marital assets in order to make up for the parties’ unequal earning capacity.

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