Can divorcing spouses decide on the property division terms?

Property division brings multiple issues up for discussion and decisions. Usually, it is the courts that determine the outcome of these matters. However, parties may seek opportunities for collaboration and control over the decision-making process of the distribution. Is it possible?

When divorce parties have control

Divorcing spouses can decide on the terms of their property division by themselves. They can do so in two ways: by establishing a marital settlement agreement and by enforcing an existing prenuptial (prenup) or postnuptial (postnup) agreement.

The difference between the two approaches is that marital settlement often happens after the parties have decided to get a divorce, while prenups and postnups are ones a couple establishes prior or during the marriage, respectively.

With both methods, parties can discuss and negotiate the terms of dividing their assets and debts outside of court. The agreement can cover various assets such as real estate, retirement accounts, personal property and more.

Subject to the court’s review and approval

While spouses can control the division of properties if they decide to end the union, whatever agreement they may have is still subject to the court’s review. This ensures that the agreement is fair and equitable to both parties while complying with the applicable laws governing property division and those contracts. Only if the agreement meets the legal requirements will the court approve and enforce its terms.

Learning rights and limitations

Separating spouses can play an active role in many aspects of their divorce, including determining the terms of property division. Nonetheless, this freedom has its limitations, noncompliance of which can lead to a more complicated situation and consequences.

Hence, it is advisable for individuals going through a divorce to consult with a family law attorney to understand their property division options and continuously protect their rights.


FindLaw Network