Prenuptial Agreements Can Assist in Property Division in a Divorce

By Gerald A. Maggio, Esq.

Top divorce mediators Orange County; California Divorce MediatorsOne of the most difficult issues to deal with in any divorce proceeding is the division of martial property. Typically the biggest question is what is to happen with the house, a question that may trigger sparring matches between the divorcing couple.

Further complicating a sale may be the presence of a third party in the marriage break-up, which destroys what trust the divorcing couple may have had. The spouse who was cheated on may wish to make things difficult for the cheater. They may make it harder to show the property or withhold disclosure on any issues the house may have – such as structural or water issues. Even if a spouse has children and they want to retain the home, they may not be able to afford to maintain it.

Another point of contention may be overpricing the home in order to attain financial security and thus delaying a potential sale until the price of the property has been adjusted downwards.

In California, if the house is owned jointly, both signatures are required to sell the home. However, only one spouse needs to sign a listing agreement to put the house on the market. In a number of cases, the individual wanting a divorce wishes to get the property listed for sale quickly, to move on with their life or even buy another, smaller home. The person who did not want the divorce may be conflicted about selling, wishing to keep the home for the sake of any children involved. With two different points-of-view in play, things can get difficult and make it harder to get any offer accepted.

Couples with an existing prenuptial are likely to have an easier time with property division and the sale of the home, as most include instructions on how property is to be allocated, should the marriage dissolve. Nonetheless, one partner or the other may not wish to honor such an agreement because they are angry. In such cases, even a valid prenuptial may end up being challenged. However, if it is a solid document, the issue may be resolved according to the fact of the case.

To learn more about the divorce process in California and how mediation can help, please visit our page, “What is Divorce Mediation.”