A property settlement is essentially an agreement that is entered into by a married couple who are in the process of divorce. The agreement is what specifies how the divisions of assets occur between the two parties. The settlement of a property can happen on the agreement of the two parties, court order or be approved by the court.
The property in question will have been obtained by the couple prior to getting married or during the marriage. A property settlement will also look at alimony and the custody of the children that they have together. There are two types of property that will be divided in a settlement. They are community property and separate property. Property that has been bought by the couple during their marriage is community property. But property that was bought by one of the spouses before marriage is separate property. Also, any property that does not fall into category one will automatically be separate property.
There are a lot of issues that come up during this time. A lawyer or a law firm that will be practicing property settlement family law will give you solutions for these issues and advise how to avoid conflict during this very trying time. One of the issues that may arise is comingling where separate and community property is combined or when it is dealt together in a bank account. In such an instance, there is no separation between these two types of property. To avoid this, the couple needs to keep separate accounts for the items of property. Then there is also separate property that the couple treats as community property. One example is if both parties have a joint title to the property but only one spouse had paid for it.
The valuation date is also important as it can sometimes decide which party will receive the property. This is based on the change of value in certain assets that can affect fair distribution. Some of the dates that can be applied are the date of separation, divorce date, hearing date etc. When the property whether it is considered community or separate is valued, the couple should divide it between themselves. Once the parties decide on an agreement, the property settlement can be enforced the same way as a contract.
However, if the court decides that the property settlement is unconscionable, it will be deemed invalid. This is when the agreement is unfair to one party while largely benefitting another. The factors of each case should be carefully examined before finding it to be unconscionable. One of the reasons that will tip the decision towards pronouncing it invalid is if there is a lack of disclosure. If one of the spouses has not disclosed the existence of a certain asset or property that is later found out by the other, the disadvantaged spouse can turn to their divorce lawyer to have the settlement questioned. Other reasons to alter a settlement are the discovery of fraud or undue influence.