§ 32.04 FACTORS BORN FROM CASE LAW

• Jurisdiction: Washington

§ 32.04 FACTORS BORN FROM CASE LAW

In addition to maintenance, attorney fees, and the factors enumerated in the statute, the court shall consider all other relevant factors. RCW 26.09.080. Many of those factors have been established by case law, including those enumerated in the previous section. Additional factors not previously mentioned include (1) fairness, (2) imminent change to value of asset, future earning capacity, and (3) professional degree earned during the community.

Caveat: The relative merits of the parties. The list of relevant factors enumerated in the previous section on maintenance is drawn from cases published before the legislature repealed the previous property division provision codified at RCW 26.08.110 and replaced it with the current provision codified at RCW 26.09.080. Although the current statute and the previous statute both retain the same standard—"just and equitable"—that term has been used since Washington became a state, and the factors regarding how, exactly, to get to "just and equitable" are not all the same.

The most important change was fault. Although the old provision required the court to consider the "relative merits of the parties," Browning v. Browning, 46 Wn.2d 538, 543, 283 P.2d 125 (1955), the new provision specifically directs the court to make the division "without regard to misconduct." RCW 26.09.080. Thus, any factor not relating to fault is probably still good law. Any factor based on fault is definitely not good law.

[1] Fairness

In addition to "just and equitable," the division of property must be "fair." "Fair" does not appear in the current, or any previous, version of the statute. Nonetheless, it is repeated like a mantra throughout the case law, usually in the same sentence as "just and equitable." For example, in a case from 2019, the court asserted that "the trial court must ensure that the final division of the property is 'fair, just and equitable under all the circumstances[,]' " In re Marriage of Groves, 10 Wn. App. 2d 249, 254, 447 P.3d 643 (2019) (citing In re Marriage of Olivares, 69 Wn. App. 324, 329, 848 P.2d 1281 (1993) (quoting In re Marriage of Hadley, 88 Wn.2d 649, 656, 565 P.2d 790 (1977)).

Additional case law provides:

A just and equitable division "does not require mathematical precision, but rather fairness, based upon a consideration of all the circumstances of the marriage, both past and present, and an evaluation of the future needs of parties. . . . Fairness is attained by considering all circumstances of the marriage and by exercising discretion, not by utilizing inflexible rules."

In re Marriage of Larson, 178 Wn. App. 133, 138, 313 P.3d 1228 (2013) (quoting In re Marriage of Crosetto, 82 Wn. App. 545, 556, 918 P.2d 954 (1996), and In re Marriage ofTower, 55 Wn. App. 697, 700, 780 P.2d 863 (1989)).

Comment: What does "fair" mean and where did it come from? This author has always wondered how "fair" entered the case law and whether it is at all helpful or meaningful. The answer to the first question is easy. The first reference to "fair" in the family law case law was in 1908, when the Supreme Court referred to a statute from Kansas that used the term. That statute (KAN. CODE CIV. PROC. § 643) required that, "in all judicial separations of persons who have lived together as husband and wife, a fair and equitable division of their property should be had." Buckley v. Buckley, 50 Wash. 213, 218, 96 P. 1079 (1908).
About a decade later, the court heard a case in which it found it could not make a "fair and just" distribution of the real estate and personalty, given the state of the record, and remanded with certain instructions. Thompson v. Thompson, 100 Wash. 671, 673, 171 P. 1005 (1918). Since then, "fair" and "fairness" have become almost as ubiquitous as "just and equitable."
The answer to the second question is probably unknowable. This author thinks the term "fair"

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