1. What is the Date of Separation and why is it important in a property division?
The date of separation is when at least one spouse expresses his/her intent to end the marriage and there are not subsequent attempts to reconcile or continue ongoing marital relations. It does not require the spouse to move away and obtain a new residence.
The date of separation is important because the “community” ends on that date. Property earned or acquired after the date of separation is assumed to be that spouse’s separate property (see question 22 below).
- Example 1 – No Date of Separation:
- In a heated argument, one spouse informs the other he/she wants a divorce, packs up a suitcase, and moves to a hotel. One week later, the spouse returns and the couple attempt marital therapy.
- Example 2 – No Date of Separation:
- Same as above, but the spouse returns occasionally to engage in romantic relations. This is evidence of an attempt to reconcile.
- Example 3 – Date of Separation Exists:
- Same as above, but the spouse stays at the hotel indefinitely, refuses to engage in marital therapy, and files for divorce.
- Example 4 – Date of Separation Exists:
- The spouse informs the other spouse he/she wants a divorce, moves to a separate room within the same residence, living separate lives and engaging in minimal or no communication with no intent to reconcile or engage in marital relations.
Note: As suggested above, a spouse may file for divorce even if the date of separation has not occurred. In other words, a divorce may be filed while reconciliation is still attempted.
2. What is community property and debt?
Community property is ALL property that either the husband or wife acquires during the marriage, except for inheritance or gifts (i.e., gifts between spouses or from third parties that not intended for both husband and wife). Similarly, community debt is all debt acquired by either the husband or wife during marriage.
Generally, each spouse has a 50% ownership interest in community property, and a 50% obligation to pay community debt, regardless of who earned or acquired it.
ALL property means ALL property – including real property, personal property, bank accounts, retirement, employee benefits, business interests, etc. This is true regardless of title of ownership or the name of the owner.
- Example 1 – My bank account/retirement/car is in my name. Is it community property?
- Answer: Yes.
- Example 2 – My bank account is in my mother’s name. Is it community property?
- Answer: Yes.
3. What is separate property and debts?
Separate property is all property acquired before the marriage or after the date of separation. It is also inheritance or gifts to one spouse acquired during the marriage. A spouse has a 100% interest in separate property. Similarly, separate debts are debts incurred prior to marriage or after date of separation.
4. Do I have to disclose all my property and debts for a property division?
Yes. Parties must disclose to the court all property and debts, separate and community.
5. Will the court divide all of our property and debts equally?
Not necessarily. The court divides property and debts in a way that is “just and equitable.” This does not always mean equally, or 50/50.
A judge has the freedom to decide (“discretion”) what a “just and equitable” division is after taking into account all relevant factors including the following:
- The nature and extent of the community property;
- The nature and extent of the separate property;
- The length of marriage.
- Each party’s economic circumstances at the time the division of property is to become effective. This is the most important factor.
6. Will the court consider my spouse’s misconduct in dividing property and debts?
No. Washington is a no-fault state. A spouse’s misconduct, e.g., infidelity, verbal abuse, unwillingness to engage in sexual relations, etc. is not a relevant factor in misconduct is not a relevant factor in deciding a “just and equitable” division.
- Exception – Dissipation of Assets
- However, a spouse may seek reimbursement of community assets spent on certain actions that do not benefit the community, such as money spent on an extra-marital affair or gambling, and illegal activities such as prostitution or drug use, is allowed.