Beginner’s Guide to Washington Divorce Laws
Marriages or domestic partnerships in Washington can end through an annulment, legal separation or a divorce, also known as a dissolution of marriage. Washington is a no-fault state and one spouse or the other only needs to claim that a marriage is “irretrievably broken” to start the divorce process.
Unlike most other states, there are no residency requirements to initiate a divorce on Washington. You only need to reside in Washington when you file a petition with the court. Spouses then have several options on how to proceed with a divorce, either in an uncontested action, or through several possible contested actions ranging from mediation to a divorce by trial.
There are several laws on the books that cover specific parts of the divorce process. The laws that govern marriage in the state are found in Chapter 26.04 of the Revised Code of Washington. Copies of these laws can be found on the Washington Legislature’s website located here.
Here are some of the most common legal questions and major issues that come up during a divorce in the state:
- Assets and Debts (Property Division)
- Spousal Support and Child Support
- Custody and Visitation
- Divorce Process
- Other Divorce Issues
Assets and Debts (Property Division)
Community Property in Washington
Washington is a community property state. This means all income and property, real or personal, that was acquired by either party during a marriage is equally owned by each partner. It must be split equally in a divorce.
There are some exceptions regarding separate property. For example, if the property is acquired during the marriage by way of inheritance or a gift, then the person who was given that property retains sole interest in it. Also, any property that was acquired either before the marriage or after the date of separation of the marriage is considered the sole property of the person who acquired it.
If you want to retain sole possession as the owner, it is important to make sure you do not commingle the property, either by depositing money in a joint bank account, or adding your spouse to the deed on a house, or in other similar instances.
Determining what is community property and what is separate property are a critical parts of determining a fair and equitable division of assets. However, in Washington, a judge has discretion based on the length of a marriage and each spouse’s economic standing at the time of the divorce. This can include how much you may have contributed to your spouse’s career opportunities at the expense of your own, or whether or not you have children and want to remain living in the family home, among others.
Just as it is with assets in a community property state, in Washington any debts acquired by one or the other spouse during a marriage belong equally to both spouses. Debts that are incurred after a marriage or separation, or before a marriage or separation, only belong to the spouse who incurred them.
Courts will also look at the financial condition of each spouse after the divorce and may award more community property or assign less debt if there is an excessive imbalance.
Division of Assets in Washington
In simple terms, Washington is a community property state and as such, all assets acquired during the course of the marriage must be divided equally at the time of a divorce. Assets not only include real property, but financial holdings as well. Bank accounts, stocks, IRAs and 401Ks are treated just like real property.
However, this does not mean that every asset must be divided equally down the middle. Most times, a house is the biggest asset in a divorce and spouses may be able to negotiate a trade-off in exchange for one spouse keeping the house (usually the spouse with custodial care of any children). As long as there is give and take that results in the overall assets being divided in a fair way, then the court will probably approve the asset division plan.
In other instances, both sides may be required to state their cases in front of a judge if they cannot come to an agreement. In all cases, the court will review the proposed agreement and approve what has been set forth.
The other big stumbling block when it comes to dividing assets in Washington is when one spouse or the other claims that an asset is separate property instead of community property. This can lead to complicated disagreements. Separate property is defined as an asset that was acquired before a couple was married or acquired after the date of separation.
There can also be questions and challenges when one spouse receives an inheritance, which is considered separate property, but then proceeds to commingle it with community property assets. For example, if a spouse receives a lump sum of cash as a gift and deposits it into a joint bank account, this could be considered commingling.
In Washington, any assets that were given to one spouse that were considered a gift are considered separate property. For example, if one spouse gives the other expensive jewelry for a birthday present, it can be considered a separate asset. Gifts to either spouse by a third party are generally considered separate property as well.
However, there are other instances that can lead to disagreements when the intent is less clear that the property was actually a gift. If a husband buys a wife a new car for Christmas, but it is intended for both to use as part of their life together, things can become murky as to whether or not it was a gift, or it was community property.
Washington law states that property inherited by one spouse during a marriage is separate and not subject to community property rules. There can be gray areas that pop up if a will states that property you inherit goes to you and your family. Under this scenario, a spouse could make a claim and it would incumbent on the person who inherited the property or assets to prove that the deceased person intended for them to receive the asset for them alone.
Ownership of inherited property can be invalidated if the person who inherited the asset commingles it with marital assets. For example, inherited monetary assets that are placed in a joint bank account could cause the inheritor to lose their sole interest. Also, if you inherit a home but both you and your spouse move into the home, it could be considered community property.
At all times, it is best to keep inherited assets separate in there is a possibility of divorce that looms in the future. One other way to protect an inheritance is to have your spouse sign a postnuptial agreement whereby he or she agrees that the inheritance is yours, no matter how it is used in the marriage.
Pensions, IRAs, 401Ks and Retirement Plans
Pensions, IRAs, 401Ks and retirement plans are probably the biggest assets that a married couple will have if they have been contributing to them consistently and for a long period of time. Just like any other asset in a divorce in Washington, they are considered community property.
This does not necessarily mean that all of these types of assets will be split 50-50. It may be possible to negotiate keeping a larger part of a retirement fund in exchange for one spouse receiving a larger interest in other community assets. This is known as equalization. Sometimes, couples will trade off home ownership in exchange for keeping their pension intact.
Legally splitting pensions and other retirement funds are a multiple step process. First, a divorce decree must order that these assets be divided. Armed with this, your attorney or a qualified firm must create a qualified domestic relations order, more commonly referred to as a QDRO.
The QDRO must be approved by the courts and then it can be submitted to the plan administrator who must also approve it. This establishes that your spouse can be considered an alternate payee, and the retirement vehicle is then divided according to the specifics contained in the QDRO.
If you need to have a QDRO drafted, consider doing so online! We’ve partnered with QDRO Counsel to make sure that you can get a high quality QDRO without the fuss of having your attorney write one.
Washington is a community property state and that means all property and all debt accumulated during the marriage belongs to both spouses. However, any assets acquired before a marriage or after a couple separates, or property that was given to one spouse as a gift, as well as some personal injury settlements, are deemed separate property.
When a divorce takes place, assets that are separate property do not need to be considered among the assets that need to be divided equitably between spouses.
But there are exceptions when it comes to separate property. Inheritance acquired during a marriage is considered separate property but if the assets of the inheritance are commingled (i.e. in a bank account, or if both people live in an inherited residence), then it may be possible to claim that the inherited assets have become community property. In cases where a home was bought before two people married, if both people live in the home during the marriage and both contribute to mortgage payments, then the case can be made that the house is no longer separate property, but community property instead.
Spousal Support and Support
Spousal Support in Washington
There are many factors that determine if, how much and how long one person will need to pay in spousal support to the other in a divorce.
The key issues that are taken into consideration when determining spousal support include:
- The length of the marriage.
- The earning capacity of each spouse
- The needs and standard of living of each spouse
- Age and health of both spouses
- Existing debts and assets
- Child custody arrangements and whether or not the primary care spouse can hold a job while taking care of the children
- Did one spouse help the other with education, career training or other ways to assist them in advancing their career
In addition, the court will also consider the value of each spouse’s property after a division of assets has taken place. Although Washington is a community property state which means that each spouse will receive half of the marital assets, there are instances where overall assets are uneven after a divorce. This can happen if one spouse has a large amount of separate property that was either owned before the marriage or given as a gift or inheritance during the marriage.
Spousal support can be a fixed term, open ended (especially in marriages of long duration) or can be modified or terminated in cases of remarriage or death.
Child Support in Washington
In Washington, child support orders may be ordered for both parents, but it is the non-custodial parent who will actually end up paying support. This is because it is assumed that the custodial parent spends the required amount of support directly on the child.
The state provides worksheets and a child support schedule that indicates how much the basic amount of child support should be based on several factors. Each parent’s wages, benefits, investments and other sources of income are included as part of the calculations. In addition, the amount of parenting time spent by each parent is also an important factor as well. Part of the reason that child support is one of the more confrontational issues is that one or both of the parents may not accurately release their current financial information.
Along with the basic childcare amount, both parents will also need to cover other expenses such as childcare, education, visitation travel costs and possibly medical care. The court will review the proposed amount and has the leeway to adjust it either up or down depending on the best interests of the child.
In some cases, a parent may fall behind on child support payments, or they may completely disregard what the law says and what the court has put in place. If this happens, the Washington State Department of Social & Health Services Division of Child Support will step in to assist in collecting payments. Collection methods may include income withholding, intercepting income tax refunds, property liens or seizures, revoking professional licenses or driver’s licenses, and in serious cases, filing contempt of court charges which could result in jail time.
Custody and Visitation
Child Custody in Washington
Washington calls the court orders regarding children in a divorce “parenting plans” or “residential schedules.” The terms custody and visitation are not used.
Either parent can petition the court to enter a parenting plan. It will cover a custody and visitation schedule, how parents will work out major disagreements and how major, but non-emergency decisions will be made about the child.
Parents may be able to come up with a parenting plan on their own, or come to terms through mediation or some form of assisted negotiations. If they cannot come up with something that is agreeable to both sides, the court will decide the parenting plan after a hearing or a trial.
In all instances, the court will consider the best interests of a child when deciding to approve a parenting plan. Some of the factors a court will consider may include the age and health of a children, emotional ties to each parent, personal preferences of the child, childcare and after school care arrangements, religious, social and school activities the child may be involved in, and medical care, as well as other factors.
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Courts will also want to know if there are any negative factors in a child’s life, such as if a parent has a substance abuse problem or there are any instances of domestic violence in the marriage. If there are no negative circumstances surrounding one or the other parent, courts will want an arrangement where both parents are active and positive participants in their children’s lives.
A parenting plan must be filed in the county where the child lives. If the child no longer lives in Washington, then a parenting plan should be filed in the county where the other parent lives. If a parenting plan has already been filed in another state, or if the child has not lived in Washington for a long time, then a parent may not be able to file a plan in the state.
Although Washington is a no-fault state and you must only cite irreconcilable differences to move forward with a divorce, if substance abuse is present in a marriage, it can have an impact. If it can be proved that one spouse has a drug or alcohol problem, then it will have a negative impact on a parent’s ability to retain custody and visitation rights if children are present. At all times, the courts will take the best interests of any children into consideration in a divorce as the primary factor when deciding these issues.
Another way substance abuse may impact a divorce is if it can be shown that one spouse spent considerable community asset resources to feed their habit. This will influence the courts regarding a division of assets and possibly on spousal support as well.
Before it can be introduced as a factor, a substance abuse problem must be documented and proven. This can be done by testing, the testimony of other family members, representatives from social services agencies or other parties who have an interest in the outcome of the divorce and can provide additional insights.
Bifurcation of Martial Status
Bifurcation means that both parties in a divorce can legally declared as a single person while the other issues in their divorce are still being worked out. It does not affect things such as child custody, visitation, child support, alimony or other contentious issues that may have stalled or become major sticking points that are keeping the divorce from being finalized.
The state of Washington strongly discourages bifurcation of a divorce unless circumstances are extremely hostile, and the divorce cannot proceed unless there is an immediate termination. Some judges will allow bifurcation, and some will not, but overall, bifurcation is a rare occurrence in the state.
The spouse requesting the bifurcation must ask the court for a separate trial that will deal only with the issue of marital status. A judge will not grant a bifurcation trial if the minimum waiting time for divorce has not passed since initial divorce papers were served.
If you are granted a bifurcation, and you took the last name of your spouse, you can legally restore your name to your maiden name. Another thing to be aware of is that if a spouse maintains health insurance for the other, then he or she must continue to provide coverage, when possible.
As part of the divorce process in Washington, each spouse must disclose to the other the amount and type of assets they have. This is required so that there can be an equitable division of those assets as part of the final divorce decree. Each spouse must submit a series of documents under the penalty of perjury. This means that each spouse is swearing under oath that the information is complete and true.
If a spouse lies on a financial affidavit, then they may be liable for both criminal and civil penalties. The amount of those penalties will depend on the extent and severity of the falsified information.
If you submit a disclosure but later determine that you inadvertently left out an asset, you can file an amended disclosure. Doing this before a court judgment regarding assets is determined is much easier than attempting to do it after a judgment is rendered.
Spouse’s Default in Washington
When one partner in a marriage files a petition for divorce, the other party must file a response with the court. This must happen within 20 days if a respondent lives in Washington. If the person lives outside of Washing, then the deadline is 60 days.
When the respondent does not meet the deadline to respond, the petitioner can file a motion for default to the court. The motion lets the court know that the respondent failed to file a response and asks that relief be granted as it was requested in the petition.
The petitioner can ask for various types of relief, including a division of property and assets, approval of a parenting plan or child support and alimony payment. The judge can decide to grant some or all of the different types of relief but can’t grant any kind of relief that was not part of the original request. After the motion for default has been granted, the filing party must still wait the required 90-day waiting period before the judge enters the final divorce decree.
Even after all of these actions are taken, a spouse may still appear in court and ask for a relief from default judgment. Acceptable reasons for this are excusable neglect, making a mistake and being surprised by the default action.
Other Divorce Issues
Domestic violence can be a particularly ugly part of a divorce proceeding, and as such, law enforcement officials have strong safeguards in place when the appearance of domestic violence is present. Studies show that domestic violence is the largest single cause of injury to women in the United States, with an act of battery on a woman taking place every 9 seconds.
Domestic violence can include any kind of physical abuse, emotional abuse, stalking, or any other kind of harassment including those made through phone calls, mail, or social media inflicted on one spouse by the other.
In Washington, when you are in an abusive relationship, your primary goal is to think about your safety and the safety of your children if you have any. The first thing you must do is take your children and leave the residence where you and the abuser are living. If you are in immediate danger, call the police.
You should document any injuries you or your children have sustained, and then seek a temporary restraining order from a family law court. Temporary restraining orders are granted on an emergency basis and take effect immediately. They are short in duration and are put in place until a hearing can take place to determine if a permanent restraining order should be granted.
Once put in place, this legal action will prevent the alleged abuser from taking any actions, such as assault, stalking or making any threats against you. It will also remove the alleged abuser from the residence, prevent them from buying a firearm and require them to pay for any abuse-related medical bills, lost wages, and possibly child and spousal support.
In Washington, when domestic violence is present in a divorce, it definitely has an impact on issues such as child custody and visitation, support and other related issues.
When you get a divorce in Washington and you are covered under a spouse’s healthcare plan, you will no longer be considered a dependent and you will need to seek healthcare coverage from somewhere else. If you have health insurance coverage through your employer, you may need to switch over to coverage through them.
You can also apply for COBRA benefits, which is a law that protects people from losing health coverage during major life transitions. It allows you to continue with your spouse’s current coverage for up to three years as long as you pay the premiums.
You can also ask for health insurance coverage as part of your divorce settlement or you can buy a new individual health insurance plan. If you need time to set up a health insurance plan, then you may want to explore legal separation as part of a transition.
If children are involved, then any child support will need to include health insurance coverage for children, either by one or both of the parents’ contributions, as long as that coverage is available at no cost or at a reasonable cost to the parent.
Infidelity and Adultery
Infidelity and adultery, more commonly known as “cheating” takes place when one married person has voluntary sexual intercourse with someone who is other than their spouse.
However, Washington is a “no-fault” state. This means that the person filing for divorce does not need to prove that the other party did anything wrong. They only need to cite the “irretrievable breakdown” of the marriage as the grounds without going into any further details. An irretrievable breakdown means that the marriage cannot be repaired or salvaged. Only one spouse needs to cite this as a reason to move forward with a divorce.
This simplifies the process versus those states that have fault-based divorces, where one spouse can claim adultery, cruelty, desertion or other reasons for seeking a divorce. In a fault state, the reason for the divorce may impact how marital property or alimony issues are handled.
Military Divorces in Washington
You or your spouse must be a resident of Washington or a member of the military who is stationed in Washington. Much like regular divorces in the state, there is no minimum residency requirement and either spouse can file in the county where they live or are stationed. The only exception is that any Washington resident or military member can file in Lincoln County whether they live there or not.
Once forms have been filed to begin the divorce, copies must be served on the spouse to give him or her a chance to respond. When one spouse is in the military, they have certain protections afforded to them by the Servicemembers Civil Relief Act that allow them to postpone the divorce while they are overseas or otherwise not able to adequately respond to the petition due to military service commitments. The Servicemembers Civil Relief Act eases many legal and financial burdens of military personnel and their families who face the added challenges of active duty.
The grounds for divorce are the same for military and non-military divorces in Washington. One spouse only needs to cite that the marriage is “irretrievably broken” for the divorce to proceed. Community property laws are also the same, which states that all property acquired during the marriage is owned equally among the spouses. Military pensions can be divided in a divorce, but military disability pay cannot be divided.
Child support is determined by the Washington State Support Schedule, but a court can deviate from that schedule if circumstances warrant.
Federal law dictates that child and spousal support awards may not exceed 60% of a servicemember’s pay and allowances if they are single. That amount drops to 50% if the soldier remarries and has a new family that they must support.
Looking for more advice about divorce? Here are a few of our favorite resources:
- 101 Financial Pitfalls of Divorce
- What is a Certified Divorce Financial Analyst? (and why you need one)
- How to Protect and Rebuild Your Credit in a Divorce
- How to Value the House and Split Home Equity in a Divorce