How Should We Divide Marital Property?
No matter how your divorce is resolved, in a settlement, through a form alternative dispute resolution like mediation or arbitration, or at trial, you and your spouse will end up dividing all your shared property—from your house to your bank and investment accounts to your toaster, clothes, and other personal belongings.
Reaching a distribution of all that property between the two of you that you can both live with takes a lot of work, and it starts with an exhaustive inventory of what both of you own individually versus what you own separately. Washington is a “community property” state, which means that anything that either of you acquired during your marriage is shared. The only things that are not equally owned are pieces of “separate property.” These include things you already owned before your marriage and gifts or inheritances you received while you were married. Any profits, proceeds, or rents generated by these pieces of property during the marriage are also separate property.
If your divorce goes to trial, the parties will not necessarily keep all of their separate property, however. Both community and separate property are subject to division in a way the court decides are fair and equitable, based on evidence of the following factors:
- The nature and extent of the community property. This means that the higher the proportion of the total marital property at issue that is equally owned, the closer the final distribution will probably be to a 50/50 split.
- The nature and extent of the separate property. Again, separate property can be allotted to the other spouse in a divorce, but the more separate property a party holds, the higher the total share they are likely to be allotted.
- The duration of the marriage. The longer a couple is married, the more likely a court is to put them in a relatively similar financial position following the divorce. If a couple was married for only a short time, the court is more likely to attempt to put them in the financial position they were in before the marriage.
- The economic circumstances of each spouse after the division of property takes effect, including the desirability of awarding the family home or the right to live there to the spouse whom the children will live the majority of the time. If the couple owns its home, the court will likely attempt to award the family home to whomever the children will live with and to make sure that party can afford to continue living in it.
A solid understanding of how a court is likely to divide your assets will help you and your spouse be realistic about the terms if you are attempting to negotiate amongst yourselves or with the help of a family law attorney. If you can come to an agreement without a court’s intervention that approximates what the court would have done anyway, you’ll both be better off.
Make sure your family and personal assets are secure and call Crouse Erickson today.