What factors are considered by the judge in dividing property?
A fair and equitable division of property of divorcing spouses requires the court to consider the spouses’ relative health, age, education, length of marriage, and employability. The ultimate concern is the economic condition of the parties upon dissolution of the marriage. The division must be fair, considering all of the circumstances of the marriage, both past and present, and an evaluation of the future needs of the spouses and their respective earning potential. It is not a matter of mathematical precision. Factors for division of property are found at RCW 26.09.080 Disposition of property and liabilities–Factors, which states as follows:
“In a proceeding for dissolution of the marriage, legal separation, declaration of invalidity, or in a proceeding for disposition of property following dissolution of the marriage by a court which lacked personal jurisdiction over the absent spouse or lacked jurisdiction to dispose of the property, the court shall, without regard to marital misconduct, make such disposition of the property and the liabilities of the parties, either community or separate, as shall appear just and equitable after considering all relevant factors including, but not limited to: (1) The nature and extent of the community property; (2) The nature and extent of the separate property; (3) The duration of the marriage; and (4) The economic circumstances of each spouse at the time the division of property is to become effective, including the desirability of awarding the family home or the right to live therein for reasonable periods to a spouse with whom the children reside the majority of the time.”
How does the length of the marriage make a difference?
Judge Robert W. Winsor, while on the bench of the King County Superior Court, suggested that cases be divided into one of three categories when analyzing the length of the marriage factor:
1. Short Marriage: Those lasting approximately 5 years or less.
2. Long Marriage: Those lasting approximately 25 years or more.
3. Midrange: All the others.
In a short marriage, Judge Winsor suggested that the parties be returned to the same economic condition they enjoyed at the inception of the marriage, after accounting for interest and inflation. Judge Winsor’s rule can be modified in extraordinary circumstances, e.g., if one of the parties gives up a job to accommodate the marriage.
In a long marriage, Judge Winsor suggested that both spouses be placed in roughly equal financial position for the rest of their lives.
In the midrange marriage, Judge Winsor suggested that the extent to which a court looks at the considerations underlying the analyses of both long and short term marriages depends upon the length of the marriage and the necessities of the parties.
Judge Winsor’s suggestions are guidelines, not mandatory rules, and courts have discretion to fashion fair and equitable division that may not mimic Judge Winsor’s suggestions.
Can maintenance be used in a property division?
Yes. The court may utilize maintenance to equalize property division in certain circumstances where their is a lack of marital assets to make an equitable division.
My husband/wife was abusive during our marriage and had numerous affairs, how does this affect property division?
Washington is a “no-fault” state. As such, property division is made without regard for marital misconduct, except for a few exceptions including the depletion of substantial marital assets by one spouse without the consent of the other.
How is custody/visitation determined?
Not so long ago “custody” was usually awarded to the mother with “reasonable” visitation rights granted to the father. This, of course, lead to numerous disputes over what constituted “reasonable” rights of visitation.
In an attempt to significantly reduce conflict between parents, Washington courts no longer award “custody” of the children to one parent with visitation rights granted to the other parent, nor do they award “joint custody.” Instead, all parties seeking a dissolution of marriage where children are involved (or establishment of paternity) must agree to a Parenting Plan or have one imposed by the court.