Blog, Divorce

Civil Law, Article 839-2 (Claim for Division of Property)

• • • One of the parties who have been divorced by agreement, may claim a division of property against the other party.

• • • If no agreement is made for a division of property as referred to in paragraph (1), or if it is impossible to reach an agreement, the Family Court shall, upon a request of the parties, determine the amount and method of division, considering the amount of property acquired by cooperation of both parties and other circumstances.

When a couple gets divorced, either by mutual agreement or by the decision of the court, it is necessary to divide the property they accumulated throughout the marriage. Sometimes this can be simple; for instance, when the marriage is very short, or there is no property (not even debts) to divide, or the couple reaches an amicable agreement about property division. But if they can’t reach an agreement, this should be resolved in the Family Court.

What to Divide: the subject of division

When one of the spouses files for a property division, the court will order both parties to submit a detailed list of their property, then proceed to decide which of those lists would be the subject of division. Because not all properties are the subject of division. Let us explain a few rules, and exceptions for those rules.

Rule 1. Only the property of the spouses themselves would be the subject of division.

Other people’s properties are not the subject of division, even if they are close families. For instance, if the husband has very little property, while his parents are wealthy, only the husband’s property (not his parents’ property) would be the subject of division.

This rule can sometimes lead to a very unfair result. If a spouse puts their own property in someone else’s name, then that property would be excluded from the division because it isn’t technically theirs. To prevent this, the Supreme Court made an exception: even if the property is in someone else’s name, it can still be the subject of division if it is trusted by one of the spouses or it is actually controlled by one of the spouses. (96Me1434 delivered on April 10, 1998)

Let us introduce SLG’s recent success related to this subject. Our client was a wife claiming a property division. The husband was very wealthy, but he had only little property under his name because he transferred most of his fortune to his mother’s name. Our lawyers managed to prove that the husband’s mother’s properties actually belonged to the husband and were controlled by him. The court acknowledged that those properties should be included as a subject of division.

Rule 2. Only the property acquired together by both spouses during the marriage is subject to division.

The property acquired alone by one of the spouses are called “peculiar property” and excluded from the division, such as these:

• Property that one of the spouses already owned before their marriage
• Property that one of the spouses inherited or received as a gift from others
• Property that one of the spouses acquired after the marriage ended

Of course, there is an exception to this rule too. According to the Supreme Court, even if the property is a “peculiar property” of one of the spouses, it can be subject of division if the other spouse actively contributed to its increase or contributed to preventing its decrease (92Me501 delivered on May 25, 1993). For instance, even if a wife inherited an old house from her parents, it can still be a subject of division if her husband actively contributed to maintaining that house for decades.

Let us introduce SLG’s another success. Again, our client was a wife claiming a property division. The husband claimed that money on his certain back account should be excluded from the division, because that money was already on his account before he got married, which makes that money his “peculiar property.” But our lawyers proved that the husband didn’t pay any living expenses during the marriage, while the wife paid it all. The court acknowledged that the wife “actively contributed” to prevent the decrease of the money, because he would’ve had no other choice to use that money in his bank account if his wife didn’t pay for his living expenses. So the money was included as a subject of division.

Rule 3. The subject of division is evaluated based on the date of divorce.

For instance, if it is an apartment, the value of the apartment should be assessed based on the date of the divorce.

This can be a problem when one of the spouses has a property that has not yet been realized at the time of divorce, such as pension or insurance. These properties still get evaluated on the date of the divorce. For instance, if it is a pension, its value gets assessed on a premise that “How much can he/she get paid if he/she quits his/her job on the date of divorce?” If it is insurance, its value gets assessed on a premise that “How much can he/she get paid if he/she cancels the insurance on the date of divorce?”

Debts can also be subject of division, as long as it is related to marital life, such as a debt to purchase a house to move in together, or a debt to use for living expenses. Debts get included in property division by deducting the amount of debt from the property based on the date of divorce.

How to Divide: the ratio of division

In general, the ratio of division is 5:5 if both spouses are working, and 6:4 to 7:3 if only one of the spouses is working and the other stays at home. But this is only a general case and may vary depending on specific circumstances.

Factors that increase or decrease the ratio of property division include:

• Amount of income. The ratio increases for more income, because it means the spouse made more contribution to increasing the property.
• Participation in housework. The ratio increases if a spouse did more housework themselves, decreases if they didn’t.
• Participation in childcare. The ratio increases if a spouse gets more involved in taking care of the children, decreases if they didn’t.
• Financial investment. The ratio increases if a spouse contributed to increasing the property by making wise investments.
• Squandering. The ratio decreases if a spouse decreased the property by wasting it, such as gambling or extravagant hobby.