Property Division (Asset Liquidation) Lawsuit after Divorce
The Property Division (Asset Liquidation) Lawsuit After Divorce is based on the principle of equal distribution of assets acquired during marriage after the dissolution of the marriage by court decision. In our legal system, there are various types of property regimes such as the Participation in Acquired Property Regime, Separation of Property Regime, Shared Separation of Property Regime, and Joint Property Regime. The current civil code, which contains provisions related to family law, came into effect after January 1, 2002, and adopted the Participation in Acquired Property Regime as the legal property regime, based on the principle of equal division of assets. In other words, the assets acquired by spouses during marriage will be shared equally between them as a rule. However, assets acquired before the marriage date will not be included in the property division between spouses. That is, the assets acquired by spouses before marriage will be considered their personal property and will not be included in the Property Division After Divorce.
How Can the Legal Property Regime be Changed?
Unless the parties decide otherwise upon marriage, they will mandatorily accept the “Participation in Acquired Property Regime” as the current property regime. The selection, modification, and termination of one of the other property regimes listed in the law is generally done through a “property regime agreement”. This agreement can be made at a notary public in the form of “arrangement” or “approval” and is subject to very strict limitations. Property Division After Divorce (Asset Liquidation) Lawsuit: If the parties wish, they can notify the marriage registry office which property regime they have chosen during the marriage application.
What are the Assets Acquired within the Marriage Union and Subject to Division in the Legal Property Regime?
The acquired properties of a spouse particularly include:
- Earnings from work,
- Payments made by social security or social assistance institutions or funds and similar entities established to assist personnel,
- Compensation paid for loss of work capacity,
- Income from personal property,
- Values replacing acquired property.
What are the Personal Assets not Subject to Division in the Legal Property Regime?
Although the main rule in the property division lawsuit to be heard between the parties after the divorce decision becomes final is the equal division of assets acquired within the marriage union, there are exceptions to this situation. The following are considered personal property by law:
- Items for the exclusive personal use of one of the spouses,
- Assets belonging to one of the spouses at the beginning of the property regime or acquired later through inheritance or any form of gratuitous acquisition,
- Moral compensation claims,
- Values replacing personal property. However, the point to be noted here is that if one of the spouses claims that any property is their personal property, they are obliged to prove this claim. Because assets acquired during marriage are considered acquired property by default and are subject to property division.
A situation we often encounter in practice is when personal property and acquired property of the parties get mixed. For example, if one party bought a house with their personal savings before marriage and sold this house due to marriage and bought a new house with the money from the sold house after the marriage date, if this newly purchased house is considered acquired property because it was bought after the marriage date, one party would suffer a loss of rights. In such cases, equalization is done to prevent the loss of rights.
Which Court Has Jurisdiction and Authority for the Property Division (Asset Liquidation) Lawsuit?
The court authorized to handle the Property Division After Divorce lawsuit is the Family Court, as per the Law No. 4787 on the Establishment, Duties, and Judicial Procedures of Family Courts. The competent court is: if the property regime has ended due to the death of one of the spouses, the court of the last domicile of the deceased spouse; if the marriage has ended by court decision, the court that was competent to handle the divorce case; and finally, if it has ended in any other way, the family court of the defendant spouse’s domicile.
What Can be Requested from the Court in a Property Division Lawsuit?
Parties can make three requests in a property division lawsuit:
- Participation Claim: Each spouse has a right to claim half the value of the other spouse’s “acquired property” during the marriage.
- Contribution Claim: This is the compensation for contributions made during periods when the separation of property regime was in effect between spouses.
- Value Increase Share Claim: This is when one spouse contributes to the acquisition, improvement, or preservation of a property value belonging to another property section with their personal property or partnership property, without receiving any or appropriate compensation.
How Does Property Division Work in Divorce?
As a rule, for marriages after January 1, 2002, unless otherwise agreed, the court is requested to divide the assets equally after the divorce case becomes final. As an exception, in case of divorce due to adultery or attempted murder, the judge may decide to reduce or eliminate the participation claim, i.e., the share ratio in the residual value, of the faulty spouse in accordance with equity (CC Art. 236/2). For the application of these provisions, the divorce decision must be based on either adultery or attempted murder.
The reduction or elimination of the participation claim of the spouse who committed adultery or attempted murder as a result of a divorce decision is only possible in the participation in acquired property regime (CC Art. 218-241). In other property regimes, for example, in the separation of property regime, adultery or attempted murder has no effect on the contribution claim.
It is not possible to reduce or eliminate the contribution share or value increase share due to adultery (infidelity) or attempted murder in any property regime. This right only applies to the “claim for participation in the residual value (CC Art. 236)” and in the participation in acquired property regime.
Finally, the point to be noted is the statute of limitations. Claims related to property division in divorce are subject to a 10-year statute of limitations from the date the divorce decision becomes final. If the statute of limitations expires, the parties will not be able to claim property division.
This blog post has been written to provide general information, and you can contact us for more detailed information about property division in divorce.
