Some states follow principles of community property laws, meaning that the communal property will be split equally between the spouses upon divorce. Non-community property states may have other rules that oversee the distribution of communal property.
Washington, along with Wisconsin, Arizona, Nevada, Louisiana, Texas, California, and New Mexico, observes general community property laws.
What Does Community Property Mean?
In a divorce context, “communal property” refers to property acquired during the couple’s marriage.
It usually does not include property that was obtained:
- Before marriage
- As a present to an individual spouse
- After the divorce proceedings have been started
The term “communal property” is also known as “marital property,” “shared property,” or “community property.”
The distinction between communal and separate property becomes apparent upon divorce when the property must be split between the two parties. If the property is categorized as communal property or community property, each party will own an undivided one-half interest in the property. For example, if the couple’s automobile is considered communal property, it will likely be sold, with each partner acquiring exactly half of the profits.
On the other hand, separate property will be fully allocated to its rightful owner, with no proceeds going to the other spouse. For instance, if one spouse acquired a valuable painting as a gift from a relative, they will be entitled to keep the painting or its proceeds from a sale upon divorce. However, the painting owner must demonstrate that the painting was intended to be given solely to them as a gift and not to both spouses.
The lines dividing communal property and separate property are sometimes challenging to define. This is particularly true if the couple has been married for a long time and can no longer document the origin of the property. Some states also observe quasi-community property principles, which deal with property distributions if the couple has moved from a community property state to a non-community property state, and vice versa.
What Is Quasi-Community Property?
When it comes to marital property law, American states mostly observe one of two schemes: community property or fair and equitable division. These laws decide how property is classified during marriage and how it will be divided through either divorce or after death through probate.
When a couple acquires property in a non-community property state and then moves to a community property state, the court treats all of the property classified as community in the latter as such.
If the property would be community property if they lived in a state that followed that scheme, then the court treats it as such and separate property as separate under the same scheme. This is a legal “fiction” (meaning this is how the court decided) that the courts adopt to separate property acquired out of state in a divorce or probate division.
In this system, all property, including real property, income, and any other earnings acquired during the marriage, is deemed equally owned by each spouse.
When a couple gets a divorce, all of this community marital property is split 50/50. In divorce proceedings, all property deemed quasi-community property is treated as community property for division purposes. So even though the property was acquired out of state, it will still be split 50/50 when the divorce is completed.
Suppose you are getting a divorce in Washington State. Washington is one of a limited number of states (including Arizona, California, and New Mexico) that also acknowledges the category of property called quasi-community property.
Quasi-community property includes all property that is not community property, and that was:
- Property acquired while domiciled elsewhere that would have been community property had that person been living in Washington at the time of the acquisition, i.e., if X was purchased while living in Oregon (non-community property state), that would have been considered community property had it been purchased while living in Washington.
- Property exchanged for the original property that would have been community property had the individual been living in Washington when the original property was obtained, i.e., if Y were exchanged for quasi-community property X, Y would still be deemed quasi-community property.
The rules for dividing quasi-community property after one spouse dies are a little more complicated and do not entirely follow probate distribution rules in a community property jurisdiction.
After a spouse dies, 1/2 of the deceased’s quasi-community property belongs to the surviving spouse and the other half to the deceased spouse (their legal heirs). The same is not true for the surviving spouse. The surviving spouse’s quasi-community property belongs to only the surviving spouse.
The purpose here is to ensure that the deceased spouse cannot give their interest in the surviving spouse’s separate property that would be deemed quasi-community property due to it being acquired in another state.
So, suppose all property (both separate and community) is technically called quasi-community property. That does not mean the heirs (that are not the surviving spouse) get a part of the property that is essentially separate but classified as quasi-community property under the circumstances. This concept is to protect the spouse who acquired the property from having whatever they left behind disposed of against their wishes.
These rules only apply if someone dies without a will, also known as dying intestate. Each state has its own laws dictating how property is divided and distributed. If you have a proper will in place at the time of your death, then this will not apply. You are free to distribute your property however you want.
Can Community Property Become My Separate Property?
Community property can become separate property if given as a gift or sold. In addition, spouses can choose to separate the property by using partitions or exchanges either before or during the marriage.
Can My Separate Property Become Community Property?
Yes, separate property can be converted into community property if there is a precise expression by both spouses or partners that they both plan for the sole property to become community property. Also, as mentioned above, if your separate property blends with the jointly owned community property, or if both spouses can exercise control over the separate property, the judge could classify the property as community property instead of separate property.
Will Our Community Property Automatically Be Divided 50-50?
No. Although a 50-50 divide might be the practice in some states, that’s not how the law is interpreted in Washington. Instead, according to the state code, the division must be “just and equitable.”
The code lists four elements for the courts to consider when determining how to split the assets, which include:
- The nature and extent of the community property;
- The nature and extent of the separate property;
- The duration of the marriage; and
- The economic circumstances of each spouse at the time the division of the 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.” (Revised Code Of Washington 26.09.080).
Do I Need a Washington Lawyer?
As illustrated above, community property law in Washington is quite complicated. Family law is an important area of law that regulates all legal aspects of a person’s family life. Issues involving marriage, separation, and divorce often bring about the most complex legal problems a person will ever face.
If you are undergoing a divorce in Washington State, a knowledgeable Washington family attorney can aid you in classifying your property. If you believe your separate property was incorrectly labeled as community property or quasi-community property, contact an attorney to assure that your property rights are defended under Washington community property state laws.