Sharing of Assets
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Sharing of Assets
The sharing of assets in divorce refers to the legal distribution of common property accumulated during the marriage between the spouses.
This process is crucial to ensuring a fair and equitable separation of assets, providing a smooth financial transition for both spouses.
What is the division of assets in divorce?
The division of assets in divorce is a legal process that occurs when a marriage is dissolved, whether divorce by mutual consent or divorce without consent, where the assets accumulated during the union are distributed between the spouses. This distribution may be mutually agreed between the spouses or, in the absence of agreement, decided by a court. The division of assets may include real estate, bank accounts, debts, investments, and other assets and liabilities that were acquired during the marriage.
Why is the division of assets a crucial aspect of the divorce process?
Property sharing is a crucial aspect of the divorce process for several reasons:
- Equity and Justice: Property sharing aims to ensure a fair and equitable distribution of assets and liabilities accumulated during the marriage. This is especially important in situations where one of the spouses may have contributed more financially to the joint estate.
- Financial Transition: Divorce can be a challenging financial transition. A well-executed property division can help ensure that both spouses have the resources they need to begin rebuilding their lives financially.
- Dispute Resolution: Sharing assets can help resolve financial disputes between spouses, providing closure and avoiding future litigation.
- Legal Clarity: Asset sharing provides legal clarity about ownership of assets and responsibility for debts, which is crucial to avoiding future legal complications.
- Compliance with the Law: In Portugal, the law requires the sharing of assets in divorce, and the process must be conducted in accordance with established legal rules and regulations.
- Future Planning: With a clear and fair division of assets, spouses can plan their financial future with a clear understanding of the assets and liabilities they own.
Types of Property Regimes
In Portugal, there are three main property regimes that can be chosen by spouses at the time of marriage.
The choice of property regime has a significant impact on how assets will be shared in the event of divorce. The asset regimes are:
Communion of Acquired
In this regime, all assets acquired after marriage are considered common assets and will be shared equally between the spouses in the event of divorce. The assets that each spouse owned before the marriage remain their own assets and are not subject to sharing.
Separation of Assets
In this regime, each spouse maintains individual ownership of the assets they owned before the marriage and the assets acquired during the marriage. In the event of a divorce, each spouse retains ownership of their assets, and there is no division of assets unless there is a specific agreement to do so.
General Community of Goods
In this regime, all assets, regardless of whether they were acquired before or during the marriage, are considered common assets. In the event of a divorce, all assets are shared equally between the spouses.
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Initial Procedures for Sharing Assets
The initial procedures for sharing assets include identifying and evaluating common assets, as well as gathering the necessary documentation. This initial process is essential to establish a solid foundation for the fair and equitable sharing of assets between spouses.
What are the first steps to start the property sharing process?
Starting the property sharing process in a divorce involves several initial steps and the preparation of a series of documents. Here are the steps and required documentation:
- Consult a Lawyer: It is advisable to consult an attorney experienced in family law to understand the laws and regulations regarding property division in divorce.
- Identify and Evaluate Assets: Make a complete list of all joint and individual assets, including property, bank accounts, investments, vehicles, and other assets. It is also important to assess the current value of these assets.
- Identify and Assess Debts: Likewise, list and evaluate all common and individual debts.
- Collect Documentation: Gather all necessary documents that prove ownership and value of assets and debts.
- Try to reach an agreement: If possible, try to reach an agreement with the other spouse about the division of assets and debts. A mutual agreement can simplify the process and reduce legal costs.
- Prepare the Partition Petition: If an agreement is not possible, prepare a property sharing petition to be presented to the court or registry office.
What type of documentation is needed to start the asset sharing process?
Careful preparation and organization of the necessary documents are crucial to ensuring an efficient and fair asset sharing process.
- Registration Certificates: Ownership registration certificates for real estate, vehicles, and other assets.
- Bank and Investment Statements: Recent bank account statements, investments, and other financial assets.
- Tax Declarations: Recent tax returns that can help assess each spouse's financial situation.
- Contracts and Prenuptial Agreements: Any contract or prenuptial agreement that may have been made, including the choice of property regime.
- Property Valuations: Professional appraisals of properties and other assets of significant value.
- Debt Documentation: Documentation relating to mortgages, loans, credit cards, and other debts.
- Proof of Performance: Proof of income, such as pay stubs, employment contracts, or financial statements from your own business.
- Other Relevant Documents: Any other document that may be relevant to the sharing of assets, such as insurance, inheritances, or donations.
Costs Associated with Sharing Assets
The costs associated with the division of assets in divorce include legal fees, registration costs and possible additional costs related to the evaluation of assets, as well as fees for the respective team of lawyers. It is important to be aware of these costs to properly plan the property sharing process.
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Division of Assets and Debts
The division of common assets is done according to the property regime chosen by the spouses, while debts are generally divided equally. This process can be complex, and it is advisable to seek legal guidance to ensure a fair and legally compliant division.
How are common assets divided between spouses?
The division of community property and the treatment of debts during the property sharing process in a divorce may vary depending on the case.
- Mutual Agreement: If the spouses are able to reach an agreement on the division of common property, this division can be formalized through a property sharing agreement. This is the ideal scenario as it can save time and legal costs.
- Assessment: Common property is appraised to determine its fair market value. This may include real estate, vehicles, joint bank accounts, investments, among others.
- Equitable Division: In general, community property is divided equally between spouses unless a different agreement exists. Equitable division aims to ensure that each spouse receives a fair share of the assets accumulated during the marriage.
- Sale of Goods: In some cases, community property may be sold and the proceeds divided between the spouses, especially if there is no agreement on who should get which assets.
What are each spouse's rights over the family home?
Rights to the family home may vary, but priority is often given to the spouse who has custody of the children.
Is it possible to change the division of assets after the divorce has been finalized?
Changing the division of assets after divorce is complex and requires new legal action, and is only possible under specific circumstances.
Why is a lawyer important in cases of property division in divorce?
The assistance of a lawyer is crucial in cases of division of assets in divorce for several reasons:
- Legal Knowledge: Lawyers have in-depth knowledge of the laws and regulations governing the division of assets in divorce. They can provide accurate guidance about each spouse's rights and obligations, helping you navigate the complex legal system.
- Representation in Court: In cases where the division of assets is contested, a lawyer can represent a spouse's interests in court, arguing for a fair and equitable division of assets.
- Negotiation and Mediation: Lawyers can facilitate negotiation and mediation between spouses, helping to reach an amicable agreement on the division of assets, which can save time and resources.
- Documentation Preparation: The proper preparation and presentation of legal documents is crucial to the property sharing process. Lawyers ensure that all necessary documents are prepared correctly and submitted in accordance with legal deadlines.
- Asset Valuation: Lawyers can coordinate the professional valuation of assets, ensuring a fair and accurate valuation that reflects the true value of the assets to be divided.
- Protection of Rights: A lawyer can protect a spouse's rights and interests by ensuring that the division of assets is done fairly and in accordance with the law.
- Impartial Advice: In an emotionally charged time, such as a divorce, a lawyer can provide impartial, objective advice, helping spouses make informed decisions.
- Clarification of Doubts: Lawyers can answer questions and provide clear information about the property sharing process, helping spouses understand what to expect at each stage of the process.
- Time Saving and Stress Reduction: With a lawyer managing the legal aspects of property division, spouses can save time and reduce the stress associated with the divorce process.
- Prevention of Future Legal Conflicts: A well-executed division of assets with the assistance of a lawyer can prevent future legal disputes, providing a clear and legal closure to the marriage.
The division of assets in divorce is a complex legal process, and the guidance of an experienced lawyer is invaluable in ensuring that the process is conducted fairly, efficiently and in accordance with the law.
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