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LegalGems, Lawyer
Category: Family Law
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Experience:  Experienced Family Law Attorney
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I live in state. My wife and I have talked about possibly

Customer Question

I live in Washington state. My wife and I have talked about possibly divorce. I have two questions. 1) my house. The mortgage is in my name. My wife has never paid into the house and she is uninterested in keeping it herself. Am I at risk of losing it?
2) we do not wish to pay or pay each other child support. We would have a parenting plan. Would a judge likely agree to our terms if my wife and I are both in agreeance?
Submitted: 1 year ago.
Category: Family Law
Expert:  LegalGems replied 1 year ago.

Hello! I will be reviewing your question and posting a response momentarily; if you have any follow up questions please respond here. Thanks!

Expert:  LegalGems replied 1 year ago.

The courts recognize that a spouse can have separate property; it is essentially comprised of property acquired prior to marriage, by gift/inheritance, or from the proceeds of such.

If one spouse has used their separate property to acquire property, even during the marriage, it remains separate property. Here is the relevant statute:

RCW 26.16.010

Separate property of spouse.

Property and pecuniary rights owned by a spouse before marriage and that acquired by him or her afterwards by gift, bequest, devise, descent, or inheritance, with the rents, issues and profits thereof, shall not be subject to the debts or contracts of his or her spouse, and he or she may manage, lease, sell, convey, encumber or devise by will such property without his or her spouse joining in such management, alienation or encumbrance, as fully, and to the same extent or in the same manner as though he or she were unmarried.

Here is the statute addressing community property:

RCW 26.16.030

Community property defined—Management and control.

Property not acquired or owned, as prescribed in RCW 26.16.010 and 26.16.020, acquired after marriage or after registration of a state registered domestic partnership by either domestic partner or either husband or wife or both, is community property. Either spouse or either domestic partner, acting alone, may manage and control community property, with a like power of disposition as the acting spouse or domestic partner has over his or her separate property, except:

(1) Neither person shall devise or bequeath by will more than one-half of the community property.

(2) Neither person shall give community property without the express or implied consent of the other.

(3) Neither person shall sell, convey, or encumber the community real property without the other spouse or other domestic partner joining in the execution of the deed or other instrument by which the real estate is sold, conveyed, or encumbered, and such deed or other instrument must be acknowledged by both spouses or both domestic partners.

(4) Neither person shall purchase or contract to purchase community real property without the other spouse or other domestic partner joining in the transaction of purchase or in the execution of the contract to purchase.

(5) Neither person shall create a security interest other than a purchase money security interest as defined in *RCW 62A.9-107 in, or sell, community household goods, furnishings, or appliances, or a community mobile home unless the other spouse or other domestic partner joins in executing the security agreement or bill of sale, if any.

(6) Neither person shall acquire, purchase, sell, convey, or encumber the assets, including real estate, or the good will of a business where both spouses or both domestic partners participate in its management without the consent of the other: PROVIDED, That where only one spouse or one domestic partner participates in such management the participating spouse or participating domestic partner may, in the ordinary course of such business, acquire, purchase, sell, convey or encumber the assets, including real estate, or the good will of the business without the consent of the nonparticipating spouse or nonparticipating domestic partner.

The parties are free to make written agreements as to the classification of property:

The court will divide community property in an equitable fashion-this means fair and just, which is often, but not necessarily equal. The court may also divide separate property, but normally separate property is confirmed as the separate property of the spouse that owned it.

RCW 26.09.080

Disposition of property and liabilities—Factors.

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.

As for child support, technically the parents cannot waive child support as that is a right that is afforded to the child; however, if both parents are in agreement, and the child's needs are being met, many judges will "rubberstamp" the wishes of the parents, the idea being that if both parents agree (especially during a divorce, when that is normally when parents do not agree) then it is presumably in the child's interests.

This is a calculator to help estimate what a judge might order should the issue go before him/her.

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Information provided is for educational purposes only. Consultation with a personal attorney is always recommended so your particular facts may be considered. Thank you and take care.

Expert:  LegalGems replied 1 year ago.

Hi- just checking in to see if you needed clarification on any of the above information. If so please post here (there is no additional charge for this) and I will do my best to get you the requested information.

Thank you!