You might be heading towards marriage with the love of your life and wondering if you should have a prenup, or you could be in the midst of married life already and just curious how a court might divide your property in the future. Regardless of your relationship status, it’s important to understand how Washington divides property during a divorce especially if you didn’t sign a prenuptial agreement before saying “I do.” But how will a Washington court divide my property if my marriage ends? And, how can a prenup protect my assets during a divorce? Read on to get your questions answered and to educate yourself on protecting your finances.
Washington is a community property state
Washington is one of the few community property states in the country (one of nine, actually). That fact alone changes the game when it comes to who keeps which assets in a divorce. In Washington, property division begins with one big question: Was it acquired during marriage? If the answer is yes, it’s almost certainly considered community property. This includes not just shared bank accounts or a jointly owned home, but also wages and passive income earned by either spouse, retirement contributions, cars purchased, and even debts incurred during the marriage.
In Washington, according to Title 64 of the Revised Code of Washington, if property or debt was acquired during the marriage, there’s a presumption that it is community property (WA Rev Code § 64.28.020). The general rule is that if it happened while you were married, it belongs to both spouses equally regardless of who earned more or whose name is on the credit card. That can come as a surprise to people who assume “what’s mine is mine.” In Washington, the reality could be “what was mine, is now ours!”
What’s not included in community property?
Property that’s not included in community property is called separate property. Separate property includes property you owned or acquired prior to marriage, you inherited individually, you received as a personal gift, or income from a personal injury settlement excluding effects to the marital estate (Brown v. Brown (1984)). These assets can remain your separate property throughout marriage and during divorce proceedings, but only if you meticulously keep that property separate. If you consistently and distinctly keep this property independent throughout your marriage, then you’re allowed to manage, lease, sell, convey, encumber or devise it by will without your spouse’s consent.
An added benefit of keeping your separate assets separate, is that this property won’t be included in the divorce settlement. Therefore, once your marriage is dissolved, you will have sole possession of your separate property. But remember that if your grandmother’s inheritance landed in your joint savings account or you used premarital funds to renovate a home you later titled jointly, what was originally your separate money could become part of the marital estate.
A key takeaway? In Washington, how property is treated during the marriage matters just as much as when or how it was acquired. Let’s dig into that concept a bit further.
Just and equitable is Washington’s version of “fair”
Even though Washington is a community property state, that doesn’t mean courts always split marital property 50/50. Instead, they aim for what’s called a “just and equitable” division. And no, “equitable” doesn’t necessarily mean “equal.”
The court considers several factors when deciding what’s fair including how long you were married, each person’s earning potential, contributions to the household (including non-financial contributions like raising kids), the health and age of the parties, and more. A stay-at-home parent might receive a larger share of the assets, or one spouse might take on more of the debt if their income allows for it. Courts make these decisions on a case by case basis.
When couples are married for a long time, courts are more likely to divide marital property evenly. But in shorter marriages or situations where one spouse brought significant assets into the relationship, the division can tilt significantly. There’s no one-size-fits-all formula In Washington state. Judges have a lot of discretion, and the outcome can differ widely depending on the details of your relationship and finances.
What about my home, business, and 401(k)?
Let’s use some examples grounded in real life. Say you bought a house together during your marriage. Since it was purchased during the marriage and you both lived there, the house is likely considered community property even if only one of you is on the mortgage. If the home increases in value, that appreciation is also part of the pool that will be divided upon divorce. In many cases, one spouse might “buy out” the other’s share, or the home may be sold with proceeds split fairly.
Retirement accounts (i.e. 401(k)s, pension plans, IRAs) can be trickier, especially if the accounts were started before marriage. Contributions to these accounts during the marriage are typically community property along with appreciation on these accounts. It’s also important to note that during divorce proceedings, courts often require what’s called a Qualified Domestic Relations Order (QDRO) to divide these accounts without triggering tax penalties. If you have questions regarding your retirement account(s) during a divorce, in addition to talking with your attorney, also talk with your retirement plan administrator. You want to make sure that you and your spouse follow the appropriate steps mandated by the plan.
Let’s not forget about business interests! The effect of entering a marriage without a prenup can be devastating to your business interests. If one spouse owns a business, it can be considered community property, especially if it grew in value during the marriage or was supported by shared finances or labor. Even if the other spouse wasn’t involved in day-to-day operations, they may still be entitled to a share of the value that was built during the marriage. There have been many situations where business owners or a spouse with equity in a company lost a large portion of the shares and even had to sacrifice some control of their company due to division of assets in a divorce (In re Marriage of Wilcox (2024)).
Could a Prenup Have Changed All This?
Yes, a prenup can make a huge difference in how a court distributes property in a divorce settlement! A prenuptial agreement is like a map you and your spouse make together before entering the maze of married life. A prenup can clarify which property will remain separate, who gets what if things don’t work out, and how future earnings or debts should be treated. Without a prenup, the court steps in and uses Washington law to divide things for you. With a prenup, you’re the one deciding the rules in advance. And that’s how it should be!
However, keep in mind that in order for a prenup to protect your assets, it must be valid and enforceable. For a prenup to be upheld in Washington state, it must be in writing, voluntarily signed by both parties, include full and fair disclosure of each party’s financial situation, and must not be severely unfair (WA Rev Code § 26.16.120). That’s not to say a prenup is right for every couple but if you’re entering a marriage with significant assets, debt, or even just a desire for clarity, it’s a powerful tool. And if you’re already married, a postnuptial agreement can offer similar protections.
Do I need a lawyer for a valid prenup in Washington?
Washington law does not require you to hire an attorney for a valid and enforceable prenuptial agreement. However, having legal representation is highly recommended. A lawyer experienced in drafting prenups will be able to make sure your prenup accomplishes your goals while helping ensure that the terms abide by Washington state law. Attempting to draft your prenup without a lawyer could result in drafting errors that might cause your property to be distributed in a way you didn’t intend. A prenup drafted improperly or that doesn’t meet state requirements could be thrown out altogether. Needless to say, having an attorney involved in the drafting process is a wise investment.
How Washington divides property in a nutshell
Washington is a community property state and assets earned or acquired during marriage are presumed to be community property. If you’re hoping that the separate property you owned before marriage will stay your separate property, then you must be conscientious about keeping these assets completely independent of your marriage and your marital estate. This is a tall order! In marriage, couples share almost everything in life. It’s very easy for your separate funds to become commingled, even unintentionally.
The most sure proof way to protect your separate property is to enter into a prenuptial agreement that clarifies which assets and debts will remain separate and what will become part of the marital estate. Talk with your partner about your finances and discuss the advantages of signing a prenup. You two have worked so hard for what you have each earned up to this point. It seems almost reckless to leave your financial future up to an unknown judge in the future!
Janice Killion is a family law attorney licensed in California and Washington, who has created, defended, and challenged prenuptial agreements for 20 years. She maintains current education and knowledge of the law in her states.
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