Divorce in Washington State – Top  5 Myths

The following are five of the most commonly held myths about divorce in Washington State.  It’s important to understand them to better understand what to expect in your family law case.

1. Marriage is a not contract.

In Washington, marriage is, by definition, a civil legally binding contract.

Marriage is a legal status entitling a married partner to numerous federal and state based legal rights including property, immigration, health care, inheritance, taxation, and many others.  Unfortunately, many couples who marry do not understand or have full knowledge of the legal consequences resulting from it, and divorce often exposes the tension between individualism, the marital contract, and family law in general.

2.Parents can agree to the amount of child support. 

In Washington State, Child support is determined by Washington State’s Child Support Schedule and applicable case law.  The child support transfer payment is calculated based on the net incomes of the parties and age of the child, with allowance of downward or upward adjustment depending on the circumstances.  However, parents cannot agree to the amount.

Washington State has an independent interest in requiring parents, rather than taxpayers, to financially support their children.  The legislative intent in using the child support schedule is to guarantee child support will be adequate.

3.Washington is a community property state so all property is divided 50/50.

While property and debts acquired during the marriage are presumed community property, so that each spouse has a 50% interest in it regardless of who acquired or earned it, the legal standard is a “just and equitable” distribution, not an “equal division”.  A “just and equitable” division takes into account other factors aside from community property, such as the length of marriage, existence of separate wealth, economic circumstances, and health and age of the parties.

The legislature’s rationale is that an equal division may, by itself, not produce a fair result in certain circumstances.  A primary concern is making sure, particularly in long marriages when spouses have taken on traditional roles of breadwinner/caretaker, the caretaker spouse can maintain some degree of financial self-sufficiency post-divorce.

4.An account in your name only is your separate property.

Absent a prenuptial, postnuptial agreement, or a separation contract stating otherwise, title or the name under which it is property is held does not control whether property (or debt) is community or separate.  The date of acquisition is the controlling factor.

5.Once my spouse takes the home, I’m free and clear on the mortgage/line of credit.

In most cases, if you are awarded the real property you are also allocated responsibility for paying the mortgage or other debt obligation.   However, if you and your spouse – as is usually the case – are both bound by the mortgage, the divorce settlement will have no effect on your contractual obligations to the lender.  The only way to remove your name from the mortgage is for the spouse awarded the home to refinance the mortgage in her name alone or to sell it.  While legal provisions, such as hold harmless agreements, exist to require reimbursement of collected funds from the non-obligated spouse, a divorce settlement has no legal effect on a lender (or creditor’s) right to enforce contractual agreements between the parties.