§32.02 Statutory Factors

JurisdictionWashington

§ 32.02 STATUTORY FACTORS

The statute provides that the court shall, without regard to misconduct, dispose of the properties and liabilities of the parties, whether community or separate, as shall appear just and equitable.

[1] Just and Equitable

In a proceeding for dissolution of the marriage or domestic partnership, legal separation, declaration of invalidity, or in a proceeding for disposition of property following dissolution of the marriage or the domestic partnership by a court which lacked personal jurisdiction over the absent spouse or absent domestic partner or lacked jurisdiction to dispose of the property, the court shall, without regard to misconduct, make such disposition of the property and the liabilities of the parties, either community or separate, as shall appear just and equitable after considering all relevant factors including, but not limited to:
(1) The nature and extent of the community property;
(2) The nature and extent of the separate property;
(3) The duration of the marriage or domestic partnership; and
(4) The economic circumstances of each spouse or domestic partner at the time the division of property is to become effective, including the desirability of awarding the family home or the right to live therein for reasonable periods to a spouse or domestic partner with whom the children reside the majority of the time.

RCW 26.09.080. These factors are not exclusive. Id. No single factor is dispositive. In re Marriage of Harrington, 85 Wn. App. 613, 633, 935 P.2d 1357 (1997) (Div. I). "Just and equitable" gives the court broad discretion. Id. at 769. It does not necessarily mean equal. In re Marriage of Dewberry, 115 Wn. App. 351, 366, 62 P.3d 525 (2003) (Div. I); In re Marriage of Nicholson, 17 Wn. App. 110, 117, 561 P.2d 1116 (1977). Mathematical precision is not required. In re Marriage of Tower, 55 Wn. App. 697, 700, 780 P.2d 863 (1989) (Div. I).

A just and equitable distribution may result in one party's getting considerably more property than the other. For example, it was not an abuse of discretion to award $32,241.45 of the community property to the wife and only half that amount—$15,971.13—to the husband, when she had less earning capacity than the husband, had custody of the minor child, and neither party had any separate property. In re Marriage of Rink, 18 Wn. App. 549, 554, 571 P.2d 210 (1977) (Div. II).

Likewise, a 60/40, wife/husband property division was equitable when the wife had been absent from the workforce for 16 or 17 years, the husband earned $250,000-$322,000 per year, and the wife would only be earning $60,000-$70,000 in her fellowship. In re Marriage of Kim, 179 Wn. App. 232, 253-54, 317 P.3d 555 (2014) (Div. III).

On the other hand, the Court of Appeals, in In re Marriage of Tower, 55 Wn. App. 697, 698, 780 P.2d 863 (1989) (Div. I), affirmed an award of 63 percent of the property to the husband, even though he had significantly greater earning capacity than the wife and the wife had multiple sclerosis. The disparate allocation of property was within the trial court's discretion because the property award was balanced by long-term maintenance from the husband to the wife.

Comment: The evolution of "just and equitable." The legislature has tweaked the language around "as shall appear just and equitable" multiple times since it passed the first divorce statute in 1854. However, the essential phrase has never changed. The three most significant iterations of the statute regarding disposition of property are as follows:
An Act Regulating Divorces
In granting a divorce, the court shall also make such disposition of the property of the parties as shall appear just and equitable, having regard to the respective merits of the parties, and to the condition in which they will be left by such divorce, and to the party through whom the property was acquired, and to the burdens imposed upon it for the benefit of the children, and shall make provision for the guardianship, custody, and support and education of the minor children of such marriage.

Statutes of the Territory of Washington, § 8 at 405 (1854).

Divorce Act of 1949
If the Court determines that either party, or both, is entitled to a divorce or annulment, judgment shall be entered accordingly, granting the party in whose favor the Court decides a decree of full and complete divorce or annulment, and making such disposition of the property of the parties, either community or separate, as shall appear just and equitable, having regard to the respective merits of the parties, to the condition in which they will be left by such divorce or annulment, to the party through whom the property was acquired, and to the burdens imposed upon it for the benefit of the children.

RCW 26.08.120.

Dissolution Act of 1973

See RCW 26.09.080, quoted above.

[2] Community and Separate Property Defined

Community property is defined in the statute as anything that is not separate property. RCW 26.16.030. Property acquired during marriage is presumptively community property. In re Marriage of Kile, 186 Wn. App. 864, 876, 347 P.3d 894 (2015). A party may rebut this presumption by offering clear and convincing evidence that the property was acquired with separate funds. In re Marriage of Schwarz, 192 Wn. App. 180, 189, 368 P.3d 173 (2016). Community property is also defined as wages and other property acquired through the toil, talent, or other productive faculty of either spouse, but not compensation for personal injury. Brown v. Brown, 100 Wn.2d 729, 737, 675 P.2d 1207 (1984).

Separate property is defined in the statute as any property acquired before marriage or during the marriage as a gift or inheritance. RCW 26.16.010. It...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT