What is Separate Property and What is Community Property in Spokane?
The issue of labeling for categorizing property, into either community property or separate property, often arises in divorces in Spokane County. This categorization of property can make a substantial difference on how the court will allocate assets and liabilities to the parties who are seeking a final dissolution or a legal separation from their spouse.
The law in Washington states that all property acquired prior to the marriage, and its rents, issues, and profits, is considered separate property. In addition, property that is acquired during my marriage from gifts, inheritance and its rents, issues, and profits will be considered separate property. The issue with this is that often the parties will commingle community property with separate property. Then would be unable to tell which property or asset is completely 100% separate at the time of the divorce. Community property in Spokane is categorized the same way.
If they are able to show that the character of the property never changed (i.e. a bank account that was never touched), then the asset will continue to be separate property. This often causes issues because typically parties will take their savings and invest into a community investment, and thus most likely commingling the funds and rendering the entire investment a community asset.
One defense to commingling is the direct tracing theory. As noted above, if a party can show, with bank statements, testimony, checks, and or other writings, that the funds were never mixed, that party may be able to keep the asset or the value of the asset from distribution.
To make matters worse, in a Spokane County and the entire state Washington, a Superior Court judge has the ability to the label property (community or separate property) and then distribute the assets in a just and equitable manner. Community property in Spokane thus must be categorized by a Superior Court judge, then divided as the judge deems fair and equitable.
This is a fancy way to say that a judge has the ability to distribute separate assets and community assets as they see fit. It is possible, and perfectly legal, in our County to designate separate property by attributing that property to the spouse that did not have that asset to begin with. If the court decides that it is just and equitable to divide property in this fashion, the court has all the power to do so. Of course, the court will try to attribute Separate property to their rightful owner; however, the court has the discretion to divided it as they see fit.
There are other defenses to Community property in Spokane County that are often effective. One of these defenses is, of course, agreements between the parties, for example, prenuptial agreements, postnuptial agreements, gifts among the parties, etc.
It is important to note that the party who wishes to show that the property is separate property bears the burden of proof. This is particularly important in cases where the parties if together for a period of time before they actually got married. In these cases, the court could look at whether or not the parties had a Meretricious Relationship. This means that although the parties may not have been married, the property may still be divided under community property principles. To determine if a Meretricious Relationship exits, Spokane County courts will consider the following factors:
* Continuous cohabitation
* Intent of parties
* Pooling of resources
* Purpose of relationship
If these factors exist, Community property in Spokane County will be divided in a just and equitable manner. If you have questions about your dissolution, or you would like legal advice as to the character you property, please contact the Quiroga Law Office, PLLC at (509) 927-3840.
RCW 30.20 and 30.22
What is Separate Property and What is Community Property in Spokane? | Copyrighted Material of the Quiroga Law Office, PLLC