Can My Spouse and I Divide Our Assets Prior to Filing for Divorce?

I often receive questions regarding dividing property prior to filing for divorce.

Here’s a recent one:

Question:

My Spouse and I are planning to file a divorce. I’ve agreed to buyout my spouse’s portion of our home and transfer the house title through a Inter-Spousal transfer deed. I’m planning to draft a buyout settlement agreement. The buyout will involve the exchange of cash and other assets. Can we start filing the Inter-Spousal Transfer deed prior to filing the divorce or during the divorce ?

Answer:

Yes, you can prepare, execute before a notary,and then record your deed with the county’s recorder’s office anytime.

The more complicated issue is how and when are you going to draft your written agreement dividing your assets?

Here’s a link to a post that explains the process of divorce in detail, identifies all the forms you need and the sequence of events.

The best approach is to:

1. File your summons, petition and response (Forms FL-110,  FL-100,  and FL-12o).
2. Exchange your preliminary declarations of disclosure (which are forms FL-150, 140, FL-142) and then file your declaration of preliminary disclosure (Form FL-141). Then, execute a marital settlement agreement which describes the division of all your assets and debts including the division of the house. For an explanation of marital settlement agreements see section 5 of this post.
3. You could execute an agreement regarding only the house transfer and the consideration of cash and other assets prior to taking the steps above if the timing of the house transfer were important. In which case you would acknowledge the agreement regarding the house in your marital settlement agreement.