I bought our car and most property with my income only. Should the court award them to me?
Divorce proceedings are time consuming and complicated, especially when it comes to division of marital property. In the Washington State, property is distributed and or allotted to spouses in a fair and equitable manner. This implies that divorce courts of Washington do not allocate marital assets in a fifty-fifty manner, rather one spouse can be left with more of marital assets than their ex-spouse. All of this depends on what the court believes justifies their ‘fair and equitable’ principle.
In the same way, (in Washington) it is not necessary the court will grant you the asset (car) even if it was bought from your personal income. The State of Washington is a ‘community property’ state, meaning everything you earn (income) during the marriage is jointly owned between you and your spouse. So, if you bought your car after the commencement of your marriage, it will constitute as community property and the only way to be awarded with the car is if your ex-spouse waives their right to it.
Factors Determining Division of Property in Washington
Going into a divorce, it is essential to distinguish which assets are ‘separate’ and which are ‘jointly owned’. Separate property is any property (tangible or intangible) that a spouse brings during the marriage. Any property attained by a spouse via inheritance or gifts are their own and their spouse has no right over it, unless appropriate evidence is presented to the court.
However, the division of separate property may not at all be different to that of community property. Usually the Washington courts will distribute separate property to its previous owners, there are some factors that the judge will look into before deciding the division of separate property.
Divorce courts of Washington are always looking for the best outcome that will guarantee a sustainable future for both spouses. In most cases, a divorce settlement may lead to one spouse being in a much better economic condition than the other. To circumvent any such situation, the court can order the richer spouse to pay their ex an alimony or may force the sale of separate property to compensate for their struggling ex. Furthermore, if an ex-spouse is successful in proving that they gave up genuine and valuable career opportunities to help their significant other with their career, the judge may be persuaded to balance out this opportunity cost at the expense of their ex-spouse’s separate property. This is the most important factor in determining the division of assets.
One other thing the court will look at is the contribution of each spouse during their marriage, and the responsibilities of both after the marriage has ended. If children are involved, the spouse with the custody will obviously require more resources and benefits than the other and that is something which the courts will make sure is taken of. Educating the kids till they turn 18 and the earning potential of both spouses are accounted for as well before a decision regarding property division is made.
Lastly, the extent and the nature of separate and community property is another contributing factor in determining the final division of assets. The Washington courts will see the importance of each asset to both spouses and then proceed to make a decision. For example, if you use your own car (separate property) to commute to work, the court will probably award the car to you especially if your ex-spouse is a stay-at-home wife or husband.
How Do I Keep My Separate Property “Separate”?
Although Washington divides all property in a just manner, it helps to make sure your separate property is not at the table for discussion when division of assets are required. One of the biggest mistakes clients usually commit is how they make their separate asset into a marital asset.
Through the process of ‘commingling’, any separate asset can be considered a marital asset (or community property in a divorce court. Whenever a spouse mixes their separate property with marital property, commingling has occurred. For example, if you are leasing your car (separate property) before your marriage, but pay the lease during the marriage with your income (a community property), the car will now be viewed as a community property as you file for divorce.
One other way a separate property becomes a marital property is by ‘transmutation’. This happens when a spouse’s name is added to the title (ownership) of the asset (separate property) during marriage at the behest of the original owner of the car. This is a fairly common practice in marriages, but in the event of divorce the original owner can not argue that the asset belongs to him/her.
To avoid such mishaps, some couples opt for a prenuptial agreement before they marry. This agreement typically registers all property belonging to each person (as well as debts) and is signed in order to protect both spouses’ rights in the event of divorce.