Originally Posted by
lizatola 
I keep going through the financials and scenarios that would happen should my marriage actually end soon. My AH has said that he wants to keep his 401K and that I can have the house and the savings. Number wise, these things are almost equally valued, unless you count the fact that the 401K is retirement funds and that he can't touch them for another 15 years or so.
We live in a community property state and my understanding of things is that everything gets split 50/50. What I'm wondering is: can the couple arrange to split things amicably outside the court system and have it approved if they both agree to it? Or, does the court system rule and you have to do what they tell you to, even if the spouses wanted something different?
We also live in a no fault divorce state
I'm in CA, also a no-fault state and also a community property state. Yes, you can do your own amicable split. We are doing what is called "collaborative divorce" and are using a mediator. This provides the couple with a lot of control and keeps the decisions out of the court. What this means is that we each have retained our own collaborative divorce attorney who provides individual consult and also vets the various settlements (assets, custody, support) we come up with in mediation. The mediator is an attorney that we chose/hired together and a neutral party.
If collaboration or mediation fail (due to refusal of one or both partners to be collaborative), then you move to traditional divorce in court. There is lot of incentive to stay in the collaborative path because you have to sign an agreement to this effect. If collaboration fails, you have to start all over with a new attorney -- ouch. So it's important that both parties are behind the collaboration/mediation path.
In my experience, all the assets have been documented (appraised value of real estate, current estimated value of stocks and retirement) and we are doing some "horse trading" with them. We've got real estate, cash, stocks and IRAs and we're making all the decisions on division of these assets. I'm keeping the more expensive primary residence, and he's getting more of the stocks, IRA, etc. Where you get into selling your house is when you can't make the other person whole via an asset swap or buy them out straight.
Google "collaborative divorce" in your county and there should be some attorneys with websites where you can read up on it. If your AH is amenable to this, I highly suggest this route if you two think you can make it work. It can be less expensive and make for a less damaged relationship post-divorce which is important since you have a child. My AH and I have remained relatively amicable through the whole thing (emphasis on relative, LOL...)
MTA: Not sure if this is an option in AZ, but we're doing a legal separation for the sole reason that I can remain on AH's health insurance. LS is basically the same as divorce in CA, except that you are still married on paper. Down the road, when I have work and health insurance, we will go ahead and divorce legally.