Property Division Upon Divorce: Understanding the Process and Legal Considerations

1. Property Division Upon Divorce: Understanding the Process and Legal Considerations

During marriage, husband and wife can combine their separate property into common property and can also divide common property.
And if there is a divorce, the property is divided, which means the end of common property between the former spouses. This is property sharing.
There is also property division in the case of inheritance, but here we will only focus on divorce.
Who decides how to divide assets during divorce? According to the 2014 Law on Marriage and Family, property division is carried out according to the principle of voluntary agreement. Thus, the husband and wife are the decision makers. If they cannot reach an agreement, they have the right to request the Court to regulate the division of common property according to the provisions of Article 59 of the 2014 Law on Marriage and Family.
You may be interested in: Property division after divorce in Vietnam and what you need to know

2. How is sharing done?

The resolution of property issues upon divorce depends on the property regime chosen by the couple.

If they choose the property regime according to the agreement (in writing and notarized), the regulations on property division after divorce must be in accordance with the agreement. Therefore they can negotiate with each other on all issues. After that, if it is not clear or incomplete, the court applies the corresponding provisions of the property regime according to the provisions of law.
If they choose the property regime according to the provisions of law, they first agree on the principles of property division. But in case of disagreement, the Court will divide the request. And to do this, the judge will consider a number of factors such as family situation, children and spouses, contributions of spouses, income, each party's fault in violating rights, marital obligations, etc.
The liquidation declaration must be written and signed by both ex-spouses. As for real estate, the declaration must be notarized.
What assets cannot be divided? According to Article 11 of Decree No. 126/2014/ND-CP, some assets will not be divided because they are considered separate property. For example: assets to which spouses establish ownership rights, intellectual property rights, assets acquired before marriage, assets inherited separately, etc.

3. And the house?

Until divorce, spouses are still jointly responsible for paying rent. After divorce, husband and wife can come to an agreement, then the house will be divided according to their agreement.

If they cannot reach an agreement on the division, two scenarios are possible:

House is private/private property so it is not subject to sharing. The house is jointly owned: Dividing assets does not necessarily mean sharing material things. Instead, the court may award each spouse a percentage of the total value of the assets. For example, in a 50/50 split, one person gets 70% of the value of the joint assets but must pay the other person an amount equivalent to 20% to make up the difference. On the other hand, they could agree to sell the house and then share the money.

4. Why should professionals use ACC Law Firm's Division Upon Divorce service ?

• Expert Legal Guidance: ACC Law Firm specializes in divorce and family law, providing professionals with access to experienced attorneys who possess in-depth knowledge of divorce proceedings and property division. This expertise ensures that clients receive sound legal advice throughout the process.

• Fair and Equitable Outcomes: ACC Law Firm is committed to achieving fair and equitable outcomes in property division matters. They take into account various factors such as the value of assets, financial contributions of each spouse, and specific circumstances to ensure a just distribution of property.

• Customized Strategies: Each divorce case is unique, and ACC Law Firm tailors their strategies to the specific needs and goals of their clients. Whether it involves negotiation, mediation, or litigation, they work closely with professionals to develop a personalized approach.

• Asset Protection: Protecting assets is a top priority in divorce, and ACC Law Firm can provide guidance on how to safeguard assets, including separate property and investments. They also advise on the validity and enforcement of prenuptial or postnuptial agreements.

Q&A

Question 1: What factors do courts typically consider when Division Upon Divorce?

Answer 1: Courts consider various factors when dividing marital property, including the duration of the marriage, each spouse's financial contributions, non-financial contributions (such as homemaking or childcare), the value of assets and debts, and each spouse's future financial needs.

Question 2: Is property acquired before marriage subject to division in a divorce?

Answer 2: In many jurisdictions, property acquired before marriage is typically considered separate property and may not be subject to division in a divorce. However, if separate property has been commingled with marital property or used for the benefit of the marriage, it may be subject to division.

Question 3: What are the different methods of property division in a divorce?

Answer 3: There are various methods of property division in divorce, including:

1. Equal Division: Some jurisdictions follow a community property system where marital property is divided equally between spouses.
2. Equitable Distribution: In other jurisdictions, marital property is divided fairly but not necessarily equally, taking into account various factors.
3. Property Settlement Agreements: Spouses can negotiate their own property division terms and submit them to the court for approval.
4. Mediation or Arbitration: Couples may opt for alternative dispute resolution methods to reach a property division agreement outside of court.

Question 4: Can prenuptial agreements affect property division in a divorce?

Answer 4: Yes, prenuptial agreements can significantly affect property division in a divorce. These agreements allow couples to specify how property should be divided in the event of divorce, often overriding default state laws. However, for a prenuptial agreement to be valid, it must meet certain legal requirements, such as full financial disclosure and fairness at the time of signing. Courts generally uphold valid prenuptial agreements when determining property division.