Married couples can divide their property without the assistance of a court, but might want to take steps to make their agreement binding
When a married couple separates with the intent to divorce, the spouses often wonder how to divide their property. If they can communicate without violence or undue anger, it is best for spouses to begin making those decisions as soon as they plan to separate.
Nearly everything that either spouse owns, separately or jointly, is subject to division. That includes property brought into the marriage and property acquired during the marriage. It includes financial accounts, stocks, and other investments. Superannuation is also divided.
Start by making a list of all property that needs to be divided. Talk to each other about the things that are important to each of you. If one person is moving out, that person might need to take some furniture and kitchen utensils right away. If you have two cars, decide whether you each keep one.
How certain assets should be divided is sometimes obvious. You will each keep your own clothes. Something of sentimental value to one spouse might be seen as worthless to the other. Make the easy decisions first.
If you cannot come to a full agreement, enlist the help of a family dispute resolution specialist. Often known as mediators, dispute resolution practitioners serve as neutral referees who help spouses understand how a court would probably divide their property. With guidance from a mediator, you may be able to save time and money by resolving your property disputes yourself without involving a court.
The easiest way is to come to an agreement with your spouse. Your latest bank statement will show you the balance of deposit accounts. Shares of stocks and mutual funds can be valued by multiplying current share prices by the number of shares. Online resources will help you assign values to vehicles. Real estate agents will estimate the value of a house you are planning to sell. If you cannot agree about the value of a significant item of property, you may need to hire a property valuer to assess its value. You may need to get professional advice to value your superannuation or a business.
In a short marriage where each spouse primarily keeps property that was brought into the marriage, you may not need to formalise your agreement. When you are dealing with larger amounts of property, including property you acquired together, or when your agreement depends on some future action (such as the sale of a home), you will probably want to put your agreement in writing and make it enforceable.
To make a written agreement binding, you each need to obtain the advice of a separate lawyer. The lawyer will explain what else you need to do to create a binding financial agreement.
You can also attach your written agreement to an application for a consent order. If the judge agrees, the consent order will make your agreement just as binding as if the court had made the property settlement after a contested hearing. Since judges have discretion to reject applications for consent orders if they think the agreement is unfair, you should obtain legal advice before deciding whether a consent order or a binding financial agreement is better in your case.
If you cannot reach an agreement about your property, you can apply to the court for a property order within 12 months after your divorce is granted. If you wait longer than 12 months, the court can refuse to hear your request for a property order.