Getting a divorce: Dividing property and debts

Find out what it means for your Washington divorce that this is a "community property" state. #3243EN

Please Note:

  • This is a complicated area of law. You should always try to talk to a lawyer about your situation. Contact info below.

Frequently Asked Questions (FAQ)

Generally, all property (house, real estate, car) either spouse gets during the marriage is community property. It belongs to both spouses, even if only one is on the title. Both spouses' earnings during the marriage are community property.

Separate property is generally property you got before your marriage, through inheritance or as a gift (either before or during the marriage), or after separation. It belongs to only one spouse. However, if you lived together before your marriage, it might be a little more complicated. Property and earnings you had or got during that time might be community property.

Generally, all debts either spouse incurred during the marriage are community debts. Both spouses are equally responsible for them.

Debts you incur before the marriage or after separation are separate debts. You are not responsible for your spouse's separate debts or vice versa.

It depends. The court can make any division that is just and equitable. What is just and equitable in your situation will depend.

If you have children, the court will look at who will get custody. That parent will probably get to keep living in the family home, if financially possible. The court may award that parent more property and fewer debts, especially if the other spouse cannot pay much child support.

The court will also consider, especially if there are no children, what type of financial condition the property and debt division will leave you in after the divorce. The court generally does not want one spouse very wealthy and the other poor. It will consider your age, health, education, and work prospects in making a decision.

Example 1:  You were married a long time. You did not work much outside the home. The court may award you more community property or long-term spousal support (called maintenance in Washington State) so you do not end up much poorer than your spouse is.

Example 2:  You have a disability. You cannot work. The court may award you more community property.

Example 3:  You have a lot of debt from your marriage. One of you has a lot more income than the other. The court may consider which spouse can afford to pay the debts when deciding who must pay them.

The court will usually award each spouse their separate property and order each to pay their separate debts. It rarely awards one the other's separate property and debts.

It does not matter whose paycheck you used. It is community property because you bought it with money earned during the marriage. The judge will divide the property according to what the judge decides is just.

It depends. The house might have remained your spouse's separate property after you married.

Or the court might decide that your spouse gave the house to the two of you together as a married unit. For example, if you refinanced the house in both names during your marriage, you may be entitled to an interest in any increase in the house's value from improvements you made to the house during the marriage, such as a remodel or new deck, plus the community payments on the mortgage.

Or the court could subtract the house's rental value from your community interest because you had the benefit of living there during the marriage. It might rule you have no community interest in the house because of the value you got from living there. 

Look at its value, what you still owe on it, and your incomes now. Can one of you pay the mortgage on just your income? If not, awarding one of you the home may lead to foreclosure and bad credit.  It might be safer to sell it. Or you could refinance the property in one spouse's name at or near the time of the divorce.

Try not to create a situation where the title is in one name, the debt in another. Example: The divorce awards you title to the home. Your spouse's name stays on the mortgage. Your spouse gets behind on mortgage payments. It will be very hard at that point to get a modification of the mortgage with your spouse's name still on it. 

Yes. The court will likely do that it if needed to divide the property fairly, or if you are behind on payments.

Maybe.

  • Retirement and pension benefits, including 401(k) plans earned during the marriage, are community property. You have a legal interest in them.
  • The portion of pension earned during the marriage, and the increase in value of that portion, is also community property. 
  • Disability benefits that substitute for pension benefits might be community property.

If you believe your spouse has any of the above, talk with a lawyer. You could get a court to order the pension plan to pay you benefits directly after your spouse retires. Read I'm getting divorced: What is a qualified domestic relations order and why should I care? by the Pension Rights Center, to learn more.

Pay the debt and sue your spouse to pay you back. Even if the court orders your spouse to pay a debt, the creditor (person owed) may still try to collect from you. Telling the creditor the debt is your ex-spouse's responsibility will not stop the creditor.

If you think this might happen, check the "hold harmless" box in the Final Divorce Order form. It is the second box in section 12. If you must sue your ex to force them to pay you back for debts you paid, they must also pay your attorney fees and costs.

Maybe. Read Divorce and Bankruptcy to learn more about what you can do.

Get Legal Help

Visit Northwest Justice Project to find out how to get legal help. 

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Last Review and Update: Oct 06, 2023
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