When a separation or the dissolution of a marriage starts, a multitude of doubts arise before us about how a joint life can be divided between two people. On some occasions, thanks to the foresight on the part of the couple, the division is previously established in a contract or it has been determined that each one maintains a separation of the assets they have.
However, it is not always that simple, it is very common that deconstructing a life as a couple can become complicated and that reaching an agreement is a cloudy process. In these cases, distributing, for example, a property becomes a real dilemma in which justice must mediate for a satisfactory resolution.
When making the decision to divorce or separate, the reasons that have led each couple to the situation may be very different. This means that, not in all cases, a marriage can be terminated amicably. In Spain there are two different types of divorce and in each of them, the separation of assets is carried out in a different way.
In the event that the separation is by mutual agreement, the two parties of the couple have made a decision to dissolve their marriage, so it can be agreed what happens with the assets, what responsibility they will have with respect to the children and any other aspect finance that caters to both parties.
On the contrary, if we are talking about a contentious divorce, there will be no agreement between the parties, then a divorce claim will have to be filed in court and a judge will make the necessary decisions. Both for the distribution of assets and for the distribution of parental responsibilities.
In the case of this second type of divorce, the fact that one of the spouses has been identified as the legitimate owner of the apartment does not mean that they are allowed to live in it or that they can sell it immediately. In a contentious divorce, the court can grant the right to inhabit the house for a certain period, even though it is not owned by you. In these cases, both dependent children and situations of helplessness or illness are taken into account.
Children in a divorce greatly complicate the division of property. In these cases, the house usually stays with the person who is going to have custody of the children, regardless of who owns the house.
We must bear in mind that in a case of divorce who must be protected are those who are most helpless, in this case minors. That is why a judge can understand that the family interest lies in the protection of the offspring. In this way, the house can be used by the person responsible for them, even if she is not the legal owner of the property.
Of course, the situation of a separation changes radically if we are facing a marriage in community property or separation of property.
If we talk about community property, the Civil Code establishes that all earnings, benefits and assets that the spouses have acquired, bought or inherited, before or during the marriage, belong to both. In case of dissolution of the marriage, the assets will be divided 50% for each of the parties.
On the contrary, if the form chosen for the marriage in the separation of assets, each spouse will keep the assets that they have in their name, so that in the event of the termination of the union, each one will take their part, with the proviso that otherwise agreed by an agreement between them.
If the spouses reached an agreement prior to the divorce, they could sell the home before completing the procedures that put an end to the marriage. In order to carry out this operation, the intervention of an appraiser who stipulates the value of the property will be necessary.
In the case of community property, the amount received will be divided equally between both, while if we are talking about a case of separation of property, the money will go to the person to whom the home belongs.
