Division of property after divorce. Why is court a last resort?
After a divorce, spouses must divide their joint property. If they cannot agree on this, they may request that the property be divided by the court. However, this is a long-term process and it can be conservatively assumed that it will take several years. The division can be made much faster at a notary, but the condition is the consent of the spouses on what the division should look like.
At the moment of marriage, community of property is established between the partners, i.e. a state in which objects and money acquired during the marriage are common. Not all of them, because the Family and Guardianship Code specifies which revenues concern only the spouse who obtained them (this is the case, for example, with awards for sports and cultural achievements – they constitute personal property), but the most common ones, i.e. remuneration, go to a common pool and it cannot be said that they belong only to the wife or only to the husband.
If the spouses do not want to have joint property, they can conclude a property agreement with a notary, which is popularly known as a prenuptial agreement.
When a divorce is granted, the community of property disappears and from that moment on, each partner earns only “for themselves”. Property that was previously shared must be divided.
How can property be divided?
The division of property can be carried out in several ways. In the case of a divorce decreed by the court, it is the court that decides on the division of property based on the claims submitted by the parties. In practice, however, courts are not willing to rule on the division of property in divorce proceedings because it prolongs the proceedings, so they reject such a request.
So, in most cases, the division of property is made after the divorce has been granted.
The division of property can be carried out either through court proceedings or in an agreement concluded by the spouses. These are two completely equivalent ways of dividing property – write the lawyers of the Lipiński Mierzwicka law firm on their blog.
Court division of property can take years
They point out that most often, judicial division of property takes place in the event of a dispute between spouses, but this is not always the case. “In some cases, the division of property by the court may be less expensive than the conclusion of an appropriate agreement by the spouses. You cannot force anyone to enter into an agreement on the division of property. If the contract was concluded under duress, the person under duress may avoid the legal consequences of the action. In the event of a dispute between the spouses, court proceedings may be initiated by either spouse. The judicial division of property should cover all common property, i.e. all its elements. The contractual division of property may cover the entire property or be limited to part of it,” they explain.
However, this will take time: court proceedings for the division of joint property are extremely complicated and often last many years. The court must determine the composition of the joint property, then determine the value of the individual components, and finally choose the method of division, taking into account the interests of both parties, which are often contradictory. The value of individual components of joint property is most often estimated by a court expert.
The agreement on the division of property does not require any special form, unless the joint property includes real estate. In such a case, division of property by a notary will be the only solution, say lawyers from the Lipiński Mierzwicka law firm.
