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Can the court divide the property?

Yes. The husband and the wife are free to negotiate a property settlement and create a "Marital Settlement Agreement." If they do, the judge will usually approve the agreement after a short hearing. In some states, a hearing may not even be necessary, as long as there is no further dispute. The judge will look at the property that is presented in an itemized format in the "Marital Settlement Agreement" and make sure that it is relatively fair and equitable. The judge will still be conscious to look out for the interest of both parties before granting the wishes stated in the agreement.

If the husband and the wife cannot agree on a division of property, the judge will hold a trial to resolve any disputes and decide any contested issues.

It is always recommended to reconcile out of court. Obviously, the more property to divide the more difficult the process becomes. It is very common for intense negotiation to occur before you and your spouse will reach a property settlement. A settlement can be reached by talking it out on your own, working with attorneys, and/or working with a family mediator. If you do decide to leave it up to the court, you are introducing the element of surprise.