Tracing Property

When it comes to the property issues in divorce, it becomes important to determine if either person has "separate" property, which normally includes property you brought into the marriage, or that you inherited during the marriage.

Title is not significant unless there is something more than just a signature on the title to show that a gift of property (either from the separate property to the marital "community" property, or the other way around).  For example, both spouses signing on the title to refinance the separate property home, without more, does not show that the spouse who owned the home meant to make the house into community property. 

The important question is the "source of funds" used to make purchases of property at issue in the divorce.  That is why you want to be able to "trace" the money you brought into the marriage, and where it went.  These matters all become pretty complex pretty fast -- for example, if the community funds were used to put a new roof on the separate property home, the community might have a "lien" against the separate property for those funds.  If the community made the house payments, but the house payment was equal or less than reasonable rent, then the separate property is unlikely to owe the community for the community paying down the mortgage. And so on.

Craig Mason of Mason Law in Spokane, WA, is accustomed to addressing these issues.  Contact him at 509-443-3681 or www.spokaneinjuryanddivorcelaw.com

"I will never get married again!"

That is the phrase you might often hear from people who had a rough divorce.

Unfortunately, they later learn that the property they accumulated in their next relationship, even though it was an unmarried relationship, is also subject to court division of the property accumulated during this time, under a "committed, intimate, relationship action" (CIR)  in which a court divides "community-like" property. (These court actions used to be called "meretricious relationship" actions, and may also be called an "equity relationship" action in today's courts.)

The ONLY way to avoid creating "community-like" property is to have a separate property agreement that completely spells out your property, and your partner's property, and who owns what in future accumulations from the labor of each of you.   These agreements also must meet certain standards of fairness when you draft and sign them or they might be subject to later attack in court, potentially putting you right back where you started.

Community Property/Separate Property

There are nine community property states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. In these states, all property of a married person is classified as either community property (owned jointly by both spouses) or the separate property of one spouse.

In some of those states, once the property is "characterized" as separate property, the court loses the power to give it to the other spouse. Other states are like Washington in that the court must characterize the property before making a "just and equitable distribution," but that "just and equitable distribution" can include giving separate property to the other spouse.

These cases can get very complex in the determination of whether property is separate or community, and during the course of those cases clients often learn that they should have (or should not have) gotten a prenuptial agreement, or a property agreement, or they learn many other aspects of the law that lead them to wish they had better prepared for a possible divorce.

At Mason Law, Craig Mason has years of experience with these matters in Spokane County and other Eastern Washington counties. Call Mason Law at 509-443-3681.  And for further reading see In re Marriage of Kile & Kendall, 186 Wash. App. 864, 347 P.3d 894 (2015), a case in which a Mr. Mason's appeal reversed the legal errors of a very smart judge -- community property law is simply that tricky to understand.

“But It’s in My Name”

In community property states, of which Washington is one, the marriage owns all the labor of both persons during the life of the marriage, and everything purchased by the proceeds of this labor belongs to the marriage, unless otherwise gifted or contracted away.

And when the court turns to “characterizing” property as separate or community property, the court looks to the “source of funds” with which the property was purchased.  In short, if you cannot “trace” a separate property source for the purchase, then the purchase is presumed to be made with community funds, and the asset is presumed to be community property. “Title” (whose name it is in) does not matter.

Of course, there are exceptions and complexities, for example, if you can claim that when something was titled in your name it was meant to be separate property as a gift, or part of an enforceable property agreement between you and your spouse, then title is evidence of that agreement.  Or if an inherited house, that would normally be separate property, is titled in both spouses’ names, that can be evidence that the intention was to gift the property to the community, by the deceased or by the inheriting spouse.

This little sample is not legal advice.  It is simply a reminder to seek legal counsel in the face of very complex legal rules.  For help understanding these complexities in the laws of Washington State, call Mason Law in Spokane at (509) 443-3681.

Just and Equitable Distribution

If you are considering a divorce in the state of Washington, there are three basic things to consider.  These basics apply both to the dissolution of marriages, and to the dissolution of domestic partnerships that are registered with the Evergreen state.

Here are the three:

1.  Washington is a “no fault” state…the courts do not care who was “at fault.” (Infidelity does not matter at all. Please do not try discuss it with the court.)

2.  It is also a community property state. Property gained during the marriage will be characterized as belonging to the marriage…even if one person sat eating bon-bons while the other worked, all labor done during the marriage belongs to the community.

3.  Washington is a “just and equitable” state which means property will be dispersed in a “just and equitable” way, which is not necessarily a 50/50. 

Also, Washington is among the community property states in which even separate property can be given to the other spouse, if the court determines that it is “just and equitable” to do so.

You need help in these complicated court proceedings.  Craig Mason and his team at Mason Law can help you as they have helped many others over the years.  From their office located at West 1707 Broadway in Spokane they will help present your idea of the “just and equitable” resolution to your divorce.  Give Mason Law a call today at (509) 443-3681.