Written by Wolfgang R. Anderson
Attorney at Law
Anderson, Fields, Dermody & McIlwain
Before a court can make a division it must characterize the parties assets as either community or separate. Only then can it divide them. (That is because a party may be able to retain a separate asset without offset . . . not the case with community property.)
Separate property is legally defined as property acquired before marriage (and maintained as such), or assets acquired after separation (a permanent separation), or acquired as a result of a gift, inheritance, or devise and kept separate.
Through case law, property acquired during marriage is presumed to be community property. It is one of the strongest and most important presumptions of our community property system. (In layman’s terms, the burden of proving property is reversed, i.e., it is community until you prove differently.)
Funds or property acquired in other states as separate property (by virtue of the law of such states) and brought into Washington and if not commingled with community property, likely will also retain its status and be classified as separate property. An allegation of this type to be considered must be recited in the petition and later be deemed applicable.
Here’s the kicker: While married and not living apart, a person’s earnings, industry, and intelligence is deemed community property (one’s labor belongs to the community). A purchase of property from community income generates community property, i.e., the source of an asset characterizes the asset.
The use of monies from a different source then labor could give rise to what is generally called an equitable lien.
If money from earnings with separate monies (such as a premarital account), the entire sum becomes community especially if the two sources cannot be separately identified. (This commixing is best explained by analogizing the pooling of a Coke and a Sprite. If one cannot identify the source any longer it is commingled.)
The earnings of a spouse after the date of a permanent separation are his/her separate property.
Because of the passage of time it is often difficult to prove a separate property claim. Proof can’t be made by conclusory statements, but by actual records such as bank statements.