When it comes to divorce, one of the most challenging aspects is the division of joint property. How is property acquired together by both partners divided? What are the rules, and what should you be mindful of? In this post, we provide clear and practical explanations.
What is joint property?
Joint property includes everything that spouses or cohabiting partners acquire through work or for compensation during the duration of the marriage or cohabitation. This includes real estate, movable property (cars, artwork, etc.), monetary assets, and even business shares. However, joint property does not include things acquired gratuitously, such as gifts or inheritance.
How does the division of joint property proceed?
The division process takes place in two phases:
1. Determining the scope of joint property – What exactly is considered joint property?
2. Determining shares – What proportion of the property belongs to each partner?
Equal shares or adjusted division?
According to the Family Code, the assumption is that the spouses' shares of joint property are equal (50-50), but one partner can prove that their contribution was greater and thus request a different division (e.g., 60-40, 70-30).
It is important to understand that the contribution is not always linked solely to income. The court will also consider other factors such as childcare, household duties, or assistance in maintaining and increasing the property. So, if one spouse earns more, it doesn’t automatically mean their share will be larger. Sometimes, the spouse who has contributed more through domestic work and childcare may end up with an equal share of the joint property, even if they earned less.
The court will often find that one partner has a larger share if they contributed their separate property to the joint estate, for example, money gifted by parents for purchasing a home. In such cases, the court may assign adjusted shares.
How does the division itself take place?
A spouse who requests the court to determine that a particular asset belongs to joint property will have to assert and prove that the property was acquired during the marriage or cohabitation and that it was acquired through work or compensation. One of the more complicated aspects of the process is determining when the cohabitation or marriage begins and ends. The law states that cohabitation is not only physical living together but also includes economic interdependence, emotional attachment, and intimate connection. Although it is usually difficult to pinpoint the exact moment the partnership begins or ends, the court will take into account all important circumstances and facts, such as shared life, assistance in the household, or financial contributions.
Once the scope of joint property and the spouses' shares are determined, the division process itself follows. This usually takes place in a non-litigation procedure according to the rules for dividing joint property. The joint property of the spouses is divided as a whole, so the court, in deciding which spouse receives specific items from this property, considers the needs of the participants in the process (the divorced spouses) and their legitimate interests in the individual (real and movable) items. Natural division takes precedence (e.g., one partner retains the house, the other keeps other assets), but if this is not possible, a civil division follows – the sale of the property and the division of the proceeds.
Why is a lawyer crucial?
Division procedures are often time-consuming and complicated. A lawyer can help protect your interests, understand your rights, and achieve the best possible outcome. They also increase the likelihood of reaching an agreement without prolonged litigation.
