Seattle Attorneys Blog
Prior to dividing marital property during the dissolution process, a judge must characterize the marital property as community or separate. Even when a judge is not involved (in the case of private settlement or mediation/arbitration), attorneys for both parties will likely want to know what property is held as community, and what is held separately by the parties. Let’s start with a definition of community property. Community property is all property acquired during the marriage that is not separate property. RCW 26.16.030. Separate property is property received prior to (or after) the marriage and/or property received during the marriage by gift, bequest or inheritance (etc.) to one spouse only. RCW 26.16.010. Rents, issues and profits from separate property are also considered separate property, while rents, issues and profits from community property are considered community.
Why does this matter? It matters because of how it affects a spouse’s right to manage property during marriage, as well as potentially affecting how property will be divided upon divorce. Per RCW 26.16.030, separate property may be managed during the marriage as if the party owning the property was unmarried. Community property management is limited in some regards (ex. gifting of property, transferring of real property) by a requirement that both members of the community be involved.
At the time of dissolution, the court considers the character of property (i.e. community or separate) when determining how it is to be awarded. Even after property is characterized as separate, equity may require the court award separate property of one spouse to the other spouse. In other words, just because property is deemed separate property by the court does not mean it cannot be awarded to the other spouse.