Can a unilateral divorce be divided into property?

1. What is property division?

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.

2. 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. Therefore, 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. done? The resolution of property issues upon divorce depends on the property regime chosen by the couple.[1]

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.

3. 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.[2]

4. 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 can agree to sell the house and split the money in half.

Q&A

Question 1: What is property division in the context of divorce?

Answer 1: Property division in divorce refers to the process of allocating and distributing marital assets and debts between spouses who are ending their marriage. This includes determining who gets ownership of various types of property, such as real estate, vehicles, financial assets, and debts accrued during the marriage.

Question 2: How is property typically classified for division in a divorce?

Answer 2: Property is typically classified into two main categories: marital property and separate property. Marital property includes assets and debts acquired during the marriage, while separate property consists of assets or debts owned by one spouse before the marriage or received by inheritance or gift during the marriage. Marital property is subject to division, while separate property generally remains with the owning spouse.

Question 3: What factors are considered when dividing marital property in a divorce?

Answer 3: When dividing marital property, various factors are considered, including the length of the marriage, each spouse's financial contributions, non-financial contributions (such as homemaking and child-rearing), the economic circumstances of each spouse, and the needs of any dependent children. The goal is to achieve an equitable distribution of assets and debts, which may not necessarily mean a 50/50 split.

Question 4: What methods are used for property division in divorce proceedings?

Answer 4: Property division can be accomplished through negotiation and agreement between the divorcing spouses, often with the assistance of attorneys or mediators. If an agreement cannot be reached, a judge may make the division decision based on state laws and the specific circumstances of the case. Some states follow community property laws, while others follow equitable distribution principles to guide property division.