Property Agreements

• A property settlement is designed to divide the assets and debts owned by either spouse upon divorce. To accurately assess what the spouses own, each spouse has to complete a property assessment or appraisal and include it as part of the divorce. This assessment details all the property each person owns, even if that property is solely owned by one spouse or the other. All property and debts must be accounted for before the property settlement is entered.
  
  

Court Orders

• The spouses can agree to the terms of a property agreement themselves and then have the court make it a part of the divorce. However, the court will impose a property settlement upon the spouses if they are unable to reach an agreement. Unlike agreements made between spouses, the court must determine property settlements based on the state laws of distribution, which can dictate that the court separates the property equally or equitably. An equal distribution is a 50-50 split of property, while an equitable distribution is one the court considers fair and is not necessarily equal.
  
  

Factors

• When a couple agrees to separate property between them, they can use any factors or considerations they wish. The court, on the other hand, must consider specific factors as dictated by state law. For example, Kansas Statutes Annotated section 60-1610(b)(1) requires a court to take into consideration factors such as: the age of the parties, each spouse's present and future earning capacities, the manner in which property was acquired and any factor the court deems necessary to make a fair and just determination.
  
  

Antenuptial Agreements

• Some couples use prenuptial agreements, also called antenuptial agreements or marital agreements, to set out the terms of property settlements prior to getting married or divorced. For example, Minnesota couples can use an antenuptial agreement prior to getting married. However, any such agreement can only be made if each spouse fully and fairly discloses their earnings and property and allows one another the chance to talk to a lawyer before entering into the agreement, according to Minnesota Statutes section 519.11.