What happens when a couple gets a divorce? How are the assets that they once acquired together are shared? When a couple separates, the division of assets will depend on the patrimonial regime under which they were married. It is important to emphasize that this does not influence in any way the type of divorce that is being processed.
Separation of Property
In the property separation or unilateral divorce, it is assumed that there is nothing to distribute. Each of the members of the former couple owns the things they have acquired during the marriage.
In a marital partnership, the assets and debts acquired during the life of the marriage are the property of the partnership. The woman is the “owner” of the house, the car, and all the assets – unless some of them have been acquired with the reserved assets of the woman or are assets inherited by the husband or the wife.
A business partnership can be liquidated by mutual agreement or judicially. If both agree, the procedure consists of making an inventory of everything that the company owns. After this, all existing debts must be subtracted. The balance that remains is divided equally between the former spouses.
When There Is A Disagreement
If the parties are unable to agree, an arbitrator judge (a private professional who charges a percentage of what is settled) can be appointed to be in charge of ending the company, calculating the balance and inventory of the assets and liabilities of the company. It is possible to be able to auction off the assets to divide what exists between those involved. As an alternative, it is possible to request the family judge to make the partition (regardless of the arbitrator judge), requiring both parties to agree.
Participation in Profits
To understand the participation in the gains, you can think of different “stages”. This is because while the marriage lasts, each spouse acts as if they were married with separation of property. This means that each one is the owner and/or debtor of what he acquires and, therefore, does not need authorization from the other, for example, to sell something.
However, at the time of liquidating this matrimony, the exercise of analyzing the initial and final situation of each spouse and comparing both situations should be done. The objective is to detect whether, at the end of the marriage, one of the spouses could have increased their worthwhile they were married. If so, the said increase is distributed among the parties in equal amounts. In summary, to liquidate, the gains that each one obtained during the marriage (such as money, assets, or properties that were not part of the “single estate”) must be calculated. The spouse who has more earnings must give the other half of the difference between them.
Do you always have to distribute the assets in a divorce? The answer is no. In a divorce by mutual consent, it is possible to regulate the distribution of assets, as long as both agree and explicitly. In unilateral or fault divorces, only the end of the marriage is discussed in court and whether it is (or not) financial compensation. For the same reason, and although the divorce decree ends the existing marriage, it is necessary to carry out the liquidation of the conjugal partnership or participation in the joint property as a different procedure. This means that after a divorce of this type, you would continue to be co-owners of everything acquired during the marriage.
When you are going through a divorce proceeding, you need a divorce attorney on your side to guide you through the complex process, especially when it is being contested. You may not be able to do this on your own.