Understanding Marital Assets: Distribution, Allocation, and Legal Considerations

Community assets are those acquired by a couple during marriage. In the marital partnership, the profits and benefits obtained by any of them will be enjoyed jointly, and will later be distributed in equal parts if they decide to dissolve it.

The following are considered marital assets:

  • Those obtained through the work or industry of the spouses.
  • The income or profits generated by the private assets of each person and the community assets.
  • Those acquired through the provision of services by one or both spouses.
  • Those acquired by sale or to replace the private assets of each one.
  • Those acquired by right of withdrawal that belong to one of the spouses.
  • Profits from businesses or companies founded in the marital partnership by either spouse when they are linked to common property.

Adjudication of assets

In the liquidation of the marital partnership of profits at the end of a marriage, each of the spouses will keep 50% of what belongs to that partnership.

Being a community of community property , the dissolution of the community of property involves awarding it to each of the spouses proportionally to their share of participation . It is understood that it is not a transfer of them, but that something that was previously theirs is assigned to them.

Allocation of the family home

The family home has special protection, and this protection is the same in cases of matrimonial property regimes , as in the separation of assets .

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The use of the family home is attributed to the spouse who is deemed to need greater protection. It is not a real right, but a family right, and it does not have to be part of the asset when the inventory is carried out. It is unrelated to the liquidation process.

The Civil Code establishes that the use of the family home and everyday objects corresponds to the couple’s children who are minors and the spouse who guards them, until they reach the age of majority.

In this case, the allocation of the home is made to the non-owning spouse, when it is owned by the other, or when it is part of the couple’s marital assets.

  • If any of these minors has a disability for which they will need to continue using the family home upon reaching the age of majority, Justice will be the one who determines the period of time based on each particular case.
  • When, at the time of separation , the disabled child is already of legal age, but will need the family home, his or her right will be equal to that of minor children. Outside of the previous case, if an adult child needs housing because he or she is not financially independent , it will be resolved by another regulation referring to alimony between relatives.
  • It may also happen that some children stay with one of the parents and others with their spouse . To determine the fate of the family home, it will be the judicial authority who makes that decision.
  • In the case of no children in common , it can be established that the use of these assets is carried out, for a reasonable period, by the spouse who is considered to be the one who needs the greatest protection. The period established will have to do with the need for a certain amount of time to rebuild your work life and stabilize your economy.
  • To use all or part of the family home as mentioned, you must have the consent of both spouses, or court authorization if there is no agreement.
  • When the children in common reach the age of majority and to whom the use of the family home had been attributed, the spouses are on equal terms with respect to this right. From that moment on, a new situation arises that no longer contemplates the preferential right to custody of minor or disabled children, which has ceased, but rather the need for greater protection between both spouses, which can justify and therefore a specific time.
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Evaluation and assessment

It is concluded that for the assessment of the determining aspects for the use and enjoyment of a family home, the following are, in order of priority:

  1. Lack of agreement.
  2. Superior interest protection.
  3. Temporary attribution.

Expenses for the use of family property

The family home must be kept in good condition so that it does not lose its value. Therefore, two types of expenses occur with respect to it.

Usage costs

As a general rule, whoever enjoys the home will bear the expenses caused by its use . These expenses correspond to the occupation of the property and arise from inhabiting it:

  • Supply costs, which refers to the services contracted for water, electricity, gas, telephone, internet connections, etc.
  • Fees or taxes of the community of owners, charges and responsibilities.
  • Repairs due to wear and use.

Property expenses

The owner would be responsible for the following expenses, without considering whether the family home is in use or not, whether it is jointly owned or co-owned in equal parts:

  • Mortgage expenses , which include the fees that the owner must pay if it is a private home. If it is jointly owned, both owners must pay it together, according to the percentage held by each one.
  • Real Estate Tax, which must be paid by the owner as referred to in the previous point, as it is the responsibility of the owner.
  • Home insurance is also paid by owners because it is protection for a property they own.
  • Extraordinary fees of the community of owners.
  • Improvement works that increase the value of the property are paid for by the owners because they will be the ones who benefit from this increase in prices.
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Justice will establish the allocation of family housing to those who are most vulnerable among the members of the family. This is the spirit of the different rules that regulate these situations, in Family Law.

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