Dividing property in a divorce action can be straightforward, or complex. Property can be sold and the proceeds divided, but more commonly property is awarded in a way that provides each party a fair share of the total assets. For example, one party may be awarded the house and the other the retirement accounts, or one party may be awarded more property but also more debt.
Retirement accounts can be given to one spouse in full, or divided easily in any necessary proportion (such as 50-50, 60-40, etc.). When retirement accounts are divided, the receiving spouse usually gets a new account with the retirement company in their name and their share of the retirement moves tax-free into their new and private account. Withdrawals from the new account are governed by either the rules applicable to their age, or sometimes according to the age of the other party.
Generally speaking, all property and debts acquired during a marriage are considered community property, although there are important exceptions. Inheritances and gifts which are kept separate and not hopelessly mixed with community property are generally separate property.
When dividing property, the court will generally go through four steps. First, all property must be identified. Even if the property is clearly separate property it needs to be identified. (Separate property will generally be awarded to the person owning it, but it is important to identify it in the final divorce decree so there are no disputes later about the ownership of that property.) Second, property should be valued. Vehicles can be valued on Kelley Blue Book (kbb.com) or on NADA Guides. Substantial items of personal property can often be valued on Craig’s list or Ebay. Real estate can be valued by a realtor or on Zillow.com. Talk to your lawyer about how to value other items. Smaller items and household items can be valued but often they are not. Third, the court determines the character of the property, whether it is community, separate, or mixed. Fourth, the parties (or the court if necessary) determine how to divide the property.
Washington courts generally divide property 50-50, but that is not required. The only requirement is that property be divided in a fair and equitable manner. Washington courts may also consider separate property in making an award, and even award one party’s separate property to the other party although that is not very common.
Property will be divided according to the party’s wishes, if they can reach an agreement before trial. If not, then a judge will determine who gets what. Most cases in Clallam County resolve before trial at the mandated settlement conference. An important issue for getting a property award that you want is to prepare before you start negotiating and determine what is most important to and your future. Failure to adequately prepare can cause the case to go to trial. Often, to get the best settlement for any individual client, all of the factors in the divorce need to be carefully considered in the larger picture of an overall settlement.