Is Separate Property Off the Table?

Dividing propertyIn dividing property in a divorce, the Washington courts distinguish between separate property and community property. Community property refers to assets acquired by the couple during the marriage. Separate property refers to assets acquired by one of the parties outside of the marriage (prior to marriage or after separation), or by gift or inheritance. This creates a common assumption that only community property will be divided by the court and that each party gets to keep their own property, i.e. that separate property is off the table.

The reality is more complicated than that. While it is true that the courts often will divide the community and award each party their separate property, the court has the ability to award the separate property of one spouse to the other. RCW 26.09.080 states in part that a court shall “make such disposition of the property and the liabilities of the parties, either community or separate, as shall appear just and equitable…”

In making the decision as to what would be “just and equitable”, the court is further directed to consider a non-exclusive list of factors including the community or separate character of the property, how much of it there is, the length of the marriage, and the financial circumstances of the parties. OK, that’s as clear as mud.

In several decisions, the Washington courts have clarified that none of the factors carries more weight than another. Thus the fact that property is separate is not more important than the length of the marriage or the financial circumstances. This really leaves it fairly wide open for a trial court to decide that dividing separate property serves some other end of fairness. In one recent case, some of the separate property of one spouse was awarded to the other in part on the basis that it had been a long term marriage, that the spouse with the separate property had better future prospects, that the other spouse had benefited the couple in other ways ways, and to provide liquidity.

In that decision the court also clarified that dividing separate property does NOT require exceptional circumstances, and did NOT require even a finding that the community property would be inadequate to provide for both spouses.

It still is not clear when dividing separate property is appropriate and when it is not, other than the basic “just and equitable” standard which is so vague as to be essentially useless. I would assume for now that the tendency will continue to be to give each party back their individual property and divide the community, but that dividing all property will be on the table where circumstances seem to warrant it.  This means that there will be plenty of creative arguments made.