Merriam-Webster defines “defunct” as “no longer living, existing, or functioning.” In Washington, a “defunct marriage” is a term for spouses who have given up any hope of salvaging the relationship, and yet for whatever reason have not filed for divorce.[1] This blog explains why defunct marriages are relevant for purposes of a divorce.

It is a bedrock principle in Washington State that property acquired during the marriage is presumed to be “community” property, and everything owned or acquired by a spouse after the date of separation is deemed “separate” property.[2] For the most part, identifying the date of separation is often an easy inquiry marked by when someone moved out of the home or when someone filed for divorce, etc. Things get more complicated when, even though neither spouse has filed for divorce, they have for all intents and purposes have acquiesced in the fact that the marriage was over. Suppose, for example, two spouses ceased attending couple’s therapy and live in separate apartments for several months (or even years) before filing for divorce. Also suppose that, despite living apart, they have continued funding a joint account and one spouse just received an end of year bonus. Does that affect the question of what property is considered community or separate in nature?

The answer is yes: showing that property was acquired after the marriage became defunct is enough to overcome the presumption that during the marriage property acquired is community. If both spouses agree that they threw in the towel and the marriage was defunct, then for all intents and purposes there is not much to argue over because the property acquired after a defunct marriage is separate property. Questions arise when Spouse A claims that the marriage became defunct at a certain date—which, if true, means Spouse A’s property acquired after that date is considered separate property—only for Spouse B to claim the marriage is either not defunct or not defunct on the date asserted by Spouse A—setting the stage for Spouse B to argue that Spouse A’s property is, in actuality, community in nature. The burden is on Spouse A to show that the marriage is defunct.

This may sound abstract. Look back to the example above. Spouse A would likely argue that the marriage was defunct, meaning that his or her end of year bonus would not be characterized as community property. And although it is true that all property is subject to division in a divorce regardless of whether it is community or separate property,[3] courts generally try to refrain from invading one spouse’s separate property unless it is necessary to achieve an equitable outcome: “the right of spouses in their separate property is as sacred as is the right in their community property.”[4] Spouse A would have to demonstrate that the conduct of both parties evinced some action or acquiescence to the marriage being over.[5] And, for Spouse A in our example, who wants to protect their bonus, this could be a worthwhile argument because “[w]hen spouses or domestic partners are living separate and apart, their respective earnings and accumulations shall be the separate property of each.”[6]

Determining the date in which a marriage because defunct a pivotal part of this analysis, and one that differs from case to case. One compelling action evidencing a defunct marriage is physical separation, though even this standing alone may not be enough.[7] The case of Nuss v. Nuss[8] serves as a helpful guidepost in determining the effect of marital counseling on an allegedly defunct marriage. In Nuss the trial court erroneously found that the parties’ marriage was defunct because the “dated each other, attended counseling together, and attempted to reconcile,” which they trial court viewed “as indications that they ‘we’re not together.’” The Appellate Court reversed, holding that “it is just such facts—especially the attempted reconciliation—that should lead to the conclusion that the marriage was not yet defunct; the parties continued to demonstrate a will to union.” Put differently, the parties neither intended nor took any actions to permanently end the marriage, but rather conveyed the opposite sentiment with their efforts to try and save it.

[1]Peters v. Skalman, 27 Wn. App. 247, 252 (1980); MacKenzie v. Sellner, 58 Wn.2d 101, 104 (1961).

[2] RCW 26.16.030; RCW 26.16.010.

[3] RCW 26.09.080.

[4] In re Estate of Borghi, 167 Wn.2d 480, 484 (2009).

[5] Seizer v. Sessions, 132 Wn.2d 642, 657 (1997).

[6] RCW 26.16.140.

[7] Oil Heat Co. v. Sweeney, 26 Wn. App. 351, 354 (1980).

[8] 65 Wash. App. 334, 828 P.2d 627 (Div. I, 1992),