How the Courts Determine Separate Property in a Divorce Case
Washington recognizes "community property" rights in a divorce, but the state does allow spouses to retain specific “separate” property. Property that is shown to belong to only one spouse is likely to be considered separate property and may not be subject to division. However, the keyword is “shown.” If you and your spouse dispute a piece of property, it will be up to each of you to prove your ownership.
The court is more likely to consider property “separate” if:
- It was acquired before the marriage. If you acquired a piece of property (such as your parents’ vacation home) in your name only before marriage, it might still be considered yours solely. However, it could become community property if your spouse has a significant connection to the property, such as making repairs or helping to pay the taxes.
- The marriage lasted only a few years. If there’s a dispute over the status of certain items, the court will consider the duration of the marriage when ordering a division of property. It's generally more straightforward to divide property after shorter marriages (such as those spanning less than five years) than unions that lasted for decades. In short marriages, the court may try to return both parties to the position they would have been if the marriage had never taken place.
- It was given to you (and only you). The law protects a person’s right to keep gifts and inheritances as separate property. If you are given a substantial inheritance, you must keep a separate bank account and use any income or funds for non-marital purposes. If the funds from a gift or inheritance become commingled, its separate status is compromised.
- You won damages in a lawsuit. Personal injury settlements are considered the separate property of the spouse named in the case. That said, these settlements can become community property if they become mixed into the family finances.
- There’s a binding prenuptial agreement. While property named in premarital contracts could be considered separate or community property by the divorce court, the agreement helps demonstrate what each partner owned before the marriage.
- It consists of personal items of mainly sentimental value. Spouses typically keep their personal property—such as clothing, books, furniture, household items, and family photos—as long as it doesn’t have significant resale value. However, some personal items brought into the marriage by one party can be divided in a divorce, including the value of vehicles, art, or jewelry.
- You have a pet that you acquired before marriage. Most pets will go back to their original owner spouse after separation. However, pets could potentially be awarded to the opposite spouse if the original owner spouse agrees or if the original owner spouse has not been taking proper care of the pet.
- It was kept under your name and control throughout the marriage. One of the best ways to preserve the separate character of specific properties is to hold them under your name and away from your spouse’s control. Resist the urge to use separate funds to pay off shared debts, buy household items, or give gifts to your spouse.
It’s Very Difficult to Modify a Finalized Property Division
Once property division has been finalized in a judgment, it is non-modifiable except in rare cases. At the Law Offices of Molly B. Kenny, we can perform forensic accounting to identify all assets and ensure a division of property that will allow you to move on after divorce with confidence. Call our offices today to arrange a private consultation, or use our online contact form to have us get back to you.