Can spouses decide property division?

Occasionally, divorcing spouses are in agreement about the dissolution of their marriage. While it isn’t extremely common, some couples can even agree on custody, spousal support and property division. Many times financially related issues like spousal support and custody are based on specific income information and a percentage which may allow them to be decided on early in the divorce process. Property division, on the other hand, has no equation, and what you and your soon-to-be ex believe to be fair may not be what the family court judge has in mind. It is important for divorcing spouses to understand that the process of property division is not over until the judge says it is.

When impending divorce has spouses living separate lives, it is quite common for both spouses to divvy up property when living in separate residences. While this arrangement may have spouses assuming ownership over specific property, marital property remains marital property until it is awarded to either spouse by the family court judge.

Depending on how long a couple has been separated, spouses may be interested in selling, giving away or trading in certain items. Upgrading or giving away marital property may have serious consequences in family court. In the event the agreed upon division of property is seen as unfair in the family court’s eyes, a judge may demand that any items that were sold or given away are brought back to the estate or replaced.

Generally speaking, a fair and equitable property division will be accepted by the family court, but to avoid any issue, it may be best to wait until it is accepted by the judge before looking to upgrade. Spouses looking to separate marital property may benefit by working with an attorney. Although ownership is not actually awarded until the judge says it is, an attorney may be able to help draft a division of property that is more likely to be approved by the family court.