Divorce Division of assets

Fabio J. Guzman said:

A divorce in the Dominican Republic won't solve the problem since the division of matrimonial assets is not part of the divorce proceedings in the DR, unless it's by mutual consent which is not the case here. The division of assets comes AFTER the divorce.

The first thing that needs to be addressed is how the prenuptial was signed, in what language and whether it was recorded at the Civil Registry together with the marriage.

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Fabio J. Guzman said:

If you are getting married in the Dominican Republic, the separate property agreement must be prepared by a Dominican Notary BEFORE the marriage (that’s why it’s called a “prenuptial” agreement) and handed over to the Civil Registry Officer (“Oficial de Estado Civil”) at the marriage.
I am assuming that you’ll want the agreement to be enforceable in the Dominican Republic. If you don’t care about this but are only interested in its validity in your home country, then you’ll have to consult an attorney from home.

The prenuptial agreement is as simple or as complicated as the future spouses want it to be. A straight separation agreement is a very simple document. It will state in legal terms that whatever a spouse acquired before or during marriage will belong to him/her exclusively and that assets in a spouse’s name belong to that spouse exclusively.

If the spouses do not sign a prenuptial, their assets are governed by the community-property provisions of the Civil Code (Articles 1400 to 1496). Spouses are 50-50 owners of all matrimonial assets. These assets consist of the following:

1) All moveable properties (in essence, everything but real estate) belonging to either spouse at the time of the marriage or acquired by either of them during marriage, even by inheritance or gift unless the testator or donor has expressed otherwise.

2) All income from properties belonging exclusively for whatever reason to either spouse.

3) All immovable properties (real estate) acquired by either spouse during marriage.

To translate this into simple terms, without a “prenup,” whatever money, stocks, bonds, vehicles, credits, etc. (everything but real estate) you may have on the day of the marriage, is split 50-50 with your spouse when you say “yes, I do”. If your parents leave you $1,000,000 in their will and they do not expressly or implicitly state that this is for you alone, and not for your spouse, then your spouse will get 50%. (Fifteen years ago, I actually dealt with a case like this involving an American couple living in the DR).

You may ask why this is so. The answer is that we are, I believe, the only country in the world still governed by the original provisions of the Napoleonic Code, which dates from 1804, a time when wealth was almost exclusively “immovable”, i.e., real estate, and therefore it was not considered of importance that all “moveables” be part of the matrimonial community. In France, the code was amended a long time ago to include only properties acquired during marriage as community property.

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Fabio J. Guzman said:

It's extremely important to have your attorney examine the documentation for the purchase of the house: Was the Deed of Sale signed and recorded before or after the marriage? If it was before, the court will most probably consider it as community property even if the deal was made and paid for before.

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