Divorce Basics: The Law

  1. Washington is a no-fault state
  2. Washington is a community property state
  3. The court makes a just and equitable division of all community and separate assets and debts
  4. Washington disfavors long-term maintenance (a.k.a. alimony)
  5. The best interests of the child prevails in parenting plan (custody) decisions
  6. You need a will
  7. Final decrees are final

#1 Washington is a no-fault state

To many people, divorce is all about blame.  But this is not the law in Washington.  All states allow couples to get a no-fault divorce, but Washington is one of about 15 states that allows only no-fault divorce.
No-fault divorce means that a Judge doesn’t care about who slept with whom, who lied about what, etc. – except as these things may relate to raising children and to the financial equities of the marriage.
So a Court won’t punish a husband for having a girlfriend on the side, but will act to compensate the wife if the husband spent thousands of dollars in community funds buying the girlfriend lavish gifts.  So what exactly is this “community?”

#2 Washington is a community property state

In Washington divorce law, there are three types of property: the husband’s separate property, the wife’s separate property, and the Community property.  Likewise, there are three parallel types of debts (his, her, the community’s).

Simply put, all the husband’s property before marriage is generally his separate property, all the wife’s property before marriage is generally her separate property, and all property acquired after marriage is usually community property.  Same with debts.

Are there exceptions to this principle?  Of course.  Three types of assets are typically considered separate property even if acquired during the marriage:

  • Inheritances to one spouse generally remain that spouse’s separate property, regardless of the date of the inheritance.
  • Compensation for pain and suffering as part of a personal injury verdict or settlement (though payments for lost wages or reimbursements for out of pocket expenses are generally community property).  Your pain is your own.
  • Income from assets owned before the marriage (rent from a condo, dividends from shares) are also the separate property of the owner of that asset.

Similarly, if one spouse incurs significant debts without the knowledge of the other spouse (such as credit cards to pay off gambling losses), these debts may well be considered separate debts even if accumulated during the marriage.

Separate property only keeps its separateness if it is not “co-mingled” with Community funds.  Thus a stock portfolio that you built up before you married may be separate funds on the day of the wedding, but if you cashed out stock to pay for a kitchen remodel (on a house you bought while married), these funds likely become Community funds because they are co-mingled with Community property.  Similarly, if you sell a boat owned before marriage and use the proceeds to make a down payment on a house purchased in your joint names, those funds are probably no longer “separate,” but are instead a gift from you to the community.

Because there is no clear rule in many of these situations, it is best to consult an experienced attorney about how the law may apply to your case.

Many people have heard that Washington is a community property state, and so
believe that “separate” property will never be an issue in divorce.  This is just not true.

#3 The court makes a just and equitable division of all community and separate assets and debts

While assets and debts are divided into “separate” and “community” categories, these are simply guideposts for the court.  In fact, all of the separate and community assets and debts are before the court to divide as it believes just and equitable.

Generally the court will first divide the community property in a fair and equitable split, and only touch separate property if there is not enough community property in the pot to do justice to both spouses.  For example, if your community home is in negative equity and you have no community savings or investments, don’t be surprised if the court decides to split up the military retirement you acquired years before your marriage.

In addition to categorizing types of assets and debts, the court will also look at several factors in determining a fair distribution of debts and assets:

  • The length of the marriage
  • The existence (or non-existence) of a pre-nuptial or post-nuptial agreement
  • The lifestyle enjoyed by the couple during the marriage
  • The over all financial position each spouse will have after divorce, including their respective earning potentials, their debts, their abilities to provide for themselves during retirement, etc.

A hypothetical may help to illuminate why the court must look at both separate and community assets: Right after college, Wilhelmina marries Pauly.  Wilhelmina is worth $30 million and Pauly is penniless.  Wilhelmina and Pauly enjoy 25 more or less happy years, and raise four well-adjusted children, before deciding to call it a day.  Because neither Wilhelmina nor Pauly worked, and because of their lifestyle, Wilhelmina’s $30 million is now only $20 million.  Technically, then, there is little community property – in fact Wilhelmina is worth less than the day they graduated from college.  A court, however, would be very unlikely to award Pauly nothing.

And don’t make the mistake of assuming that community property will be split 50-50.  Equity is what the court is after, and that does not necessarily mean equality.  For example, if the court has to fairly and equitably split a community stock portfolio between a software engineer making $90,000 per year and a social worker making less than half of that, the split is unlikely to be straight down the middle.

#4 Washington disfavors long-term mainenance (a.k.a. alimony)

In the bad old days, legend has it that husbands were expected to pay alimony to their ex-wives forever – or at least until the ex-wife found another husband to support her.  In these enlightened times, the word alimony is considered passé – it’s called maintenance (or “spousal support”) now.  Oh, and if the wife is the higher wage-earner, she may well be the one paying maintenance to the ex-husband.

Where alimony traditionally signified a lifetime of payments,
maintenance is now seen as a short-term segue to financial independence for the lower-earning spouse (the law calls this “rehabilitation”).   In marriages of less than five years or so (depending on the facts of the case), maintenance might not be ordered at all, even where one spouse earns significantly more than the other – or perhaps only for a few months to cover interim bills.

Though there are no hard and fast rules, longer marriages generally produce longer periods of maintenance.  More important than sheer income differences and numerical calculations, however, is whether the spouse seeking maintenance has a practical plan for what he will do with the money.  For example, let’s say Andy worked extra shifts as a shoe store manager to put Beatrice through Veterinary school, and eight years later they decide to divorce.  Now Beatrice makes $125,000 a year and Andy makes $40,000 a year – not that much more than he made five years ago.  A court may well award Andy some maintenance, but the court’s attitude to Andy will depend on his plan for using the money to improve his financial position.  That is, if Andy decides to go back to school for two or even three years to finish his degree in accounting, the court may think this is a good plan towards financial independence, and order Beatrice to provide significant help with his college costs.  On the other hand, if Andy’s plan is to quit his shoe store job and build up his comic book collection (or, more commonly, just stay in the same old job and hope that “something will turn up”), the court will be less impressed.

#5 The best interests of the child prevails in parenting plan (custody)  decisions

Washington no longer recognizes the concept of “custody” of children.  Instead, a schedule setting out when the children will be with each parent, and whether both parents or just one will make major decisions about various issues like health care will be contained in a detailed order called a “parenting plan.”
When you are caught up in a difficult conflict over your children, it is easy to feel that the parent who winds up with more residential time or sole decision making is being “rewarded” by the court for good behavior, or that a judge who gives the other parent more residential time during Christmas vacation is “punishing” you unfairly.

The truth is that the courts are not rewarding or punishing either parent.  Being fair to each spouse is important in resolving financial disputes, but not in deciding residence of children.  Instead, the guiding principle for all judicial decisions about children is the best interest of the child.

This is of course an amorphous concept; the best interests of the child – like truth and beauty – are often in the eye of the beholder.  The Parenting Act gives judges a checklist of items to consider when deciding what kind of parenting plan is in a child’s best interests including the nature and quality of the child’s relationship with each parent, the child’s age, and which parent has taken primary responsibility for the child’s day to day care prior to the parents’ split.  The court will try when possible to preserve continuity for children of divorcing parents, so if you have routinely worked 60 hours per week, missed soccer games and pediatricians’ appointments, and not been around for homework time, you will have a hard time convincing a court that your children should now reside primarily with you.

Domestic violence, substance abuse or serious mental health problems (but not a Prozac prescription or weekly sessions with a counselor) will also be considered as part of the “best interests” exercise.  There are few general principles for cases involving these difficult issues, and you will need an experienced attorney to advise you on how such evidence could best be presented to the court.

A parenting evaluator is often appointed by the court to prepare a report about a child whose parents really can’t agree on a parenting plan, in order to help the court decide what exactly is in the child’s best interest.  The evaluator will meet both parents as well as talking to other people who know the family well (teachers, doctors, aunts and uncles). The evaluator will almost always meet the child as well, but the child’s wishes and feelings may not be an important part of the judge’s decision.  Washington courts strongly disfavor involving children directly in these decisions and it is extremely unlikely that any Washington judge would ever let a child (even an older teenager) give evidence at a hearing.

#6 You need a will

If you are going through a divorce, you need a will.
If you are already divorced, you need a will.

Life is uncertain and the world is a dangerous place.  If you die without a will, your estate will be distributed under intestacy rules.  And intestacy rules will almost always give the majority of a married person’s assets to her surviving spouse. This will be the case even if the couple has been separated for 20 years, even if divorce proceedings have been started, and even if the death occurs the day before a bitter divorce trial.  Under intestacy, a spouse is a spouse right up until the divorce decree is final.  So if leaving your estate to your opponent in divorce litigation seems like a good idea to you, don’t bother making a will.  Otherwise, talk to your attorney.

A final divorce decree automatically affects wills made during the marriage, not by invalidating all of the old will but by invalidating any gift to or appointment of (for example appointment as an executor) your former spouse.  This means that while you won’t leave your home and savings to your ex-spouse, you might leave a will with huge holes in it.  If you made a will when you were married, you need a new will now.

#7 Final decrees are final

Whether you think your divorce decree is a travesty of justice or the deal of the century, there is one thing of which you can be sure:  it is not going to change.  The court will make its best decision (or – as happens in about 95% of cases – you will make your best agreement) about your assets, your debts and spousal support, and then both ex-spouses will live with it forever.

The “finality principle” means that divorced spouses can get on with planning and living their separate financial lives knowing where they stand, rather than  wondering if spousal support will go up or down (it won’t) or if they might be able to get a bigger share of the retirement funds (they won’t).  The idea behind this principle is that if such issues were perpetually changeable, no one would take the risk of loaning money to or going into a business partnership with a divorced person.

There are a couple of exceptions to this rule.  If your ex spouse was so extremely dishonest during the divorce proceedings that you and the court were defrauded, and you could not possibly have found out about this at the time (this is even harder to prove than it sounds), you might be able to reopen the litigation.

And if your divorce decree fails to mention some asset (either because it was concealed or because it was just innocently overlooked), that asset will be split 50-50.

The big exception is that there is no such thing as a final order concerning a child.  Parenting plans can be changed, although Washington law deliberately makes major changes difficult to obtain.  Child support can usually be adjusted every 24 months, or at any time that there is a significant change in the financial circumstances of either party.

We make no promises or representations about the accuracy of this information, or how it applies to your particular case. These articles are designed to give you ideas to consider and discuss with an attorney, but are no substitute for legal advice, and must not be used as such.