Can mutual decisions made by divorcing couples in the distribution of propery and debts acquired during the marriage override community property law?

During 10 years of marriage we have acquired a house with a mortgage in my name, a 2nd mortgage in both of our names, and a few small credit card debts in our respective names. We both own our vehichles, and both have 401K retirement plans. We are both employed full time. I make more money than my husband, and assume full payment for the mortgages on the house,and my expenses, and he takes care of his own, and other household expenses. We have no children. He is a naturalized U.S. citizen, but plans to return to his native country. He wants me to have the house, my possessions, and my 401K.

Asked on May 26, 2009 under Family Law, Wisconsin

Answers:

S.J.H., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

Parties to a divorce can always agree to anything they wish in most cases even though it may be in devitation from the normal laws of the state. This is especially true in the event of property rights etc. However, the key is to make sure that it is specifically made clear in the stipulation that the parties know that this is a deviation and are expressly agreeing to it. It would also be better if both parties had attorneys review the agreement so that the party giving something up cannot say that they were unaware of what they were signing or was coerced. Each state has their own specific rules on vacating a stipualtion but the general rule is that if both parties signed the agreement and knew what they were signing they cannot change their mind and the courts will uphold it unless it offends public policy.

FreeAdvice Contributing Attorney / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

If the parties agree on a property division, and each has had the opportunity to get legal counsel, the courts normally are more than happy to accept the agreement of the parties where there is no fraud and no coercion. Just make sure you have the agreement drawn up by a competent lawyer, and the lawyer will make sure you are covered. The same lawyer should NOT represent both parties.


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