To know how the community property is liquidated in a divorce, it is necessary to first know what the community property is.
For this, we must refer to our Civil Code , specifically to its article 1344.
What is community property?
The article states that the community property regime is an economic system of marriage that consists of making common all the earnings or benefits obtained by the spouses during their relationship.
Therefore, it is born with the celebration of the marriage and is extinguished with its dissolution, provided that "marriage agreements" for the separation of assets have not been previously granted.
Characteristics of the community property
The marital property regime of community property, commonly known as "community property," acts as a community in which the spouses have non-disposable , non-transferable and non-waivable shares ("shares").
This community or society is made up of the assets and rights that the spouses obtain during the marriage, as well as the income that comes from separate property.
Thus, the economic regime of marriage is made up of two types of assets : separate property and community property.
Forming a "community property" (together with the separate property of each spouse), for which both spouses will be responsible , always acting jointly or one with the consent of the other.
When the partnership is dissolved, the assets will be divided in half; this activity being one of the main sources of conflict in divorce.
What is considered private property
Private assets are those held by the spouse before marriage, whether purchased directly or paid in installments once in the marriage relationship.
They are also those obtained free of charge, such as through a donation ( Article 1346 of the Civil Code ).
What is considered marital property
It is presumed that marital property includes assets that come directly or indirectly from the activity of either spouse.
However, our system of law also admits contrary evidence, demonstrating that instead of being marital they are exclusive (article 1361 CC).
- Goods that come directly. They are those that come from the common or individual effort of the spouses.
- Goods that come indirectly. They are those that come from the income or interests of private property of the spouses.
- Assets that, by the express will of the spouse, go from being private to joint property. Either spouse may transform private property into community property by contributing it to the community property. However, from this transfer the spouse who owns it will obtain a credit, which must be disbursed upon the dissolution of the community (article 1335 Civil Code).
Duties of the community property
The community property also has duties or responsibilities such as:
- El family support: food, education and health of spouses and children (jointly or only one of the spouses when they live together in the family home).
- La acquisition, possession and enjoyment of common property; as well as the expenses involved in their administration.
- extracontractual obligations generated by the administration of the company.
- gambling debts.
- La response to debts incurred. We must bear in mind that the community property does not have legal personality, so it cannot incur debts on its own. However, you will be directly liable to the creditor for debts incurred by a spouse, whether due to the administration of the community property or for professional reasons. Therefore, if one of the spouses signs a loan that was used by the community property, said debt may go against the assets that make up the community.
How the community property is liquidated
The dissolution of the community property may occur due to incompatibility with the marital situation (divorce), at the request of a party or judicially.
In other words, the community property regime is extinguished with divorce , with the declaration of nullity of the marriage, with judicial separation, by the will of the spouses if they decide on another matrimonial economic regime and grant prenuptial agreements, or by the death of one of the spouses.
Once the marital property regime is dissolved, it must be liquidated.
In this case, if there are marital assets, they must be distributed in half between the spouses. Therefore, you must:
Take an inventory
Inventory means the detailed list of all the assets that make up the assets and all the debts and charges that make up the liabilities.
- Active: marital property existing at the time of dissolution.
- Liabilities: outstanding debts owed by the company. Once the inventory is completed, the company's debts will be paid first.
Division and allocation of marital assets
Once all debts have been paid, the remaining balance will be considered "assets" of the marital property, which will be divided equally between the spouses or heirs.
It should be noted that each spouse will have the privilege of including in their half their clothes and personal belongings , the economic exploitation they manage and the premises where they have been practicing their profession.
In the event that said assets exceed the assets of the successful spouse, he or she must pay the difference in money.
If you need more information: lawyers specializing in the division of marital property.
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