September 2, 2014 – A common mistake made by individuals and even attorneys is relying on the separate v. community character of property. The source of marital assets has become far less important in Washington than is largely believed.
Generally, community property is everything that either of you earned or acquired during your marriage unless you agree otherwise. For example, money you earned at work, put in a joint checking account, and used to pay household bills is marital property. The car you bought and made payments on with money from that account is also community property. On the other hand, separate property is everything a husband and wife own separately. In most cases, separate property includes anything owned prior to marriage, inherited or received as a gift during the marriage or anything either spouse earned after the date of separation
You may have heard this statement before: “Separate property does not need to be divided between the spouses”. This is a very dangerous assumption. It is no longer necessary to establish exceptional circumstances, as held in earlier court decisions, to award separate property of one spouse to the other spouse. For example, in Larson v. Calhoun, 178 Win App. 133 (2013), the court invaded the separate property of the husband even after awarding the entire community estate to the wife. This case has caused a stir in the family law field and is currently under consideration by the Washington State Supreme Court.
Characterization of property can be very complex. If you are faced with this issue and would like more information on safe-guarding your separate property, I recommend that you consult with an experienced family law attorney to determine the best course of action.