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Marriage with separation of property

When two people bind themselves in marriage, they hope it will be forever. Yet life can be unpredictable; you cannot know where destiny takes you. For this reason, more and more couples are choosing the separation of property formula. Of romance there is very little, but the property regime is also a factor to consider, before the wedding.

The division of property before marriage should not be seen as a non-belief in the couple. Opting for property division simply means choosing to retain sole ownership of property acquired during the marriage. If you would like to continue with this formula, you will benefit from advice on what is the opposite practice to community property.

How to apply for separation of property and what it consists of

Although this is also a bureaucratic practice, the process involved is not as complicated as people think. That of separation of property is an estate regime that must be chosen. If you do not make an explicit request, automatically the community property regime will be applied.

So, it will be up to the bride and groom to choose which formula is right for them, between communal marriage and separation of property. By opting for separation of property, you will have three opportunities to apply for it:

  • before the wedding, through the signing of a notarized deed in the presence of witnesses;
  • at the time the wedding will be celebrated, making an explicit request to the priest or the Registrar once the ceremony is over;
  • separation of property after marriage, again by contacting a notary public who will enter into the agreement by noting it in the margins of the marriage act.

Excluded from this type of agreement are all premarital assets belonging to the individual spouses. All assets acquired after the wedding are, however, involved, including:

  • all property bought after marriage, even if purchased separately by the two spouses, such as houses, land, cars, but an exception is made for personal property;
  • Returns from each spouse’s own assets, such as bank assets;
  • businesses run by both spouses and established after marriage;
  • profits and increases in the profits and increases in the business owned by either of them prior to the marriage, but operated by both of them after the marriage.

So, choosing separation of property as the property regime therefore means that each spouse has sole ownership of property acquired both before and after marriage, even if enjoyed jointly.

Advantages and disadvantages of separation of property

Among the three opportunities to apply for separation of property, there are many couples who decide to resort to a division of property before marriage.

There are several advantages associated with choosing the regime of separation of property. Foremost among these is the one related to the simplification of bureaucracy, as each spouse will be able to manage his or her own assets without the need for dual signatures each time.

In the event of the incurrence of debts by either spouse, moreover, the assets of the other spouse remain completely safe. Another of the benefits concerns the paperwork of divorce. No one gets married thinking of a way to speed up divorce, but separation of assets is a practice that is also closely related.

Since they do not have any assets in common, in fact, there will be no need to go through the lengthy process of reviewing assets held in common, with the obvious result of simplifying the bureaucratic process.

Among the disadvantages, on the other hand, there are no particular situations to mention except that, in divorce, the spouse with fewer assets will not be able to access the other’s assets.

What about in case of death? Again, the topic is somewhat uncomfortable and not very sensitive, but when choosing the estate regime one has to think about just about everything.

In fact,inheritance in separation of property is different from inheritance in community of property. The deceased spouse’s assets will not be divided in the estate by considering them only 50 percent, as the remainder will continue to belong to the survivor. This happens only when there is community property.

In case of separation, the entire estate of the deceased will fall into probate, which will be 100% divisible among the heirs. By choosing to opt for the separation scheme before or immediately after the marriage ceremony, the cost of the practice is zero. Instead, should the couple decide to change their regimen later, they will have to deal with notary fees, taxes, stamps and deed transcription fees.

One of the basic things is to choose what you prefer, without believing that you are putting material goods before love. These are not the decisions that determine whether a couple loves each other more or less. These are simply personal choices, which cannot be commented on by those outside the relationship.


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