Sharing of Property in Divorce
After the divorce, it is an important problem how to share the property acquired in the marriage union. Spouses usually do not make any property regime agreement before marriage. Therefore, they are subject to the legal property regime.
The division of property in divorce is based on the principle of equal distribution of the property acquired by the spouses during the marriage union, after the marriage is terminated by a court decision. The property division case in divorce cannot be filed together with the divorce case. If the property division case is filed at the same time as the divorce case, but as a separate case; The court makes the finalization of the divorce case a holding issue for the property division case. In other words, the divorce case trial is made first, and after the divorce decision is finalized, the property division case begins.
Division of Property in Divorce
case of division of property in divorce; It is about the liquidation of the property regime between spouses that ended in divorce. We have stated above that the property division case in divorce cannot be filed together with the divorce case, but can be filed as separate cases. The first issue to be determined in the case of property regime in divorce is which property regime is effective between the spouses. If no other property regime has been determined between the spouses, liquidation is carried out according to the legal property regime, that is, the regime of participation in the acquired property, in the division of property in divorce.
With this lawsuit, the spouses can request both cash and the return of the remaining assets of the other spouse. The case of division of property in divorce should be filed as a case of indefinite debt.
The following values that arise between the spouses during the liquidation phase of the property regime are requested in the case of property division in divorce:
• Spouses will receive participation,
• Value increase receivable,
• Contribution receivable
How to Share Property in Divorce?
The basic rule in the division of property in divorce is to share the acquired property in half while the marriage union continues. However, the personal property of the spouses is excluded from this scope. Personal property continues to remain with the person after the divorce. The personal property owned by the spouses may be due to the law or the contract between the spouses. Personal goods arising from the law are listed in Article 220 of the TMK as follows:
• Items for personal use of one of the spouses,
• Assets that belonged to one of the spouses at the beginning of the property regime or that a spouse subsequently acquired through inheritance or any other way of gratuitous acquisition,
• Non-pecuniary compensation receivables,
• Values in lieu of personal property.
The law also gave the spouses the opportunity to decide that the property values obtained from the practice of a profession or the operation of the enterprise, which should be included in the acquired property, will be considered personal property. Spouses can also agree that the income of personal property will be included in personal property, not acquired property.
What Assets Are Not Shared in a Divorce?
We said that the goods obtained during the marriage will be shared in half with whomever is registered. At this point, it is necessary to answer the question of which goods are not shared in divorce. First of all, the premarital property of the spouses is not included in the sharing. In addition, other goods within the scope of personal goods are not included in the sharing. Personal goods can be listed as follows;
• The non-pecuniary compensation that the parties will receive from different persons is one of the answers to the question of which property cannot be shared in divorce.
• In addition to this, the property bought by bartering or selling the property belonging to one of the spouses before marriage is also among the personal properties that cannot be shared.
• Finally, property division cannot be made in divorce for properties that are suitable for the personal use of only one of the spouses.
To make another reminder at this point; Although personal property itself cannot be evaluated within the division of property in divorce, rent and similar incomes obtained through personal property are included in property division.
Competent and Competent Court
The court in charge of the property division case in divorce, also known as the property regime case, is the Family Court. As for the competent court, since the property regime will end due to divorce, the court that is authorized for divorce pursuant to Article 214 of the TMK is also authorized in the case of division of property in divorce.
Time to File a Case for Sharing of Property in Divorce (Timeout)
In the case of property division in divorce, TMK has not determined a separate statute of limitations. However, since this lawsuit is about the spouses’ participation receivable, value increase receivable and contribution fee, it is essentially a receivable case. Pursuant to TMK Article 146; Unless otherwise regulated by law, all receivables are subject to a 10-year statute of limitations. For this reason, we can say that this case is subject to a 10-year statute of limitations. The beginning of the 10-year period is the date on which the divorce case is finalized.
How long does the case of division of property in divorce take?
It is not possible to give a definite answer to the question of how long the divorce case will take. While property division cases after uncontested divorces can be completed in a single hearing, the process often takes longer in contentious divorces. In addition, factors such as the density of the court, the number of hearings, the need for experts and discovery must also be taken into account.
Is Sharing of Property Different in Contested and Uncontested Divorces?
In a contested and uncontested divorce, the division of property is naturally different. Because it is possible for the parties to agree on which goods will be considered personal property before filing a lawsuit for division of property in divorce. In such cases of property division, the property can be divided as the spouses wish, as long as there is no illegality.
Sharing of Assets in an Uncontested Divorce
In the uncontested divorce procedure, the spouses must have agreed on certain issues. One of them is the liquidation of the property regime, but it has not been accepted as a mandatory element. In other words, spouses may want to leave the division of property for later in divorce. The fact that they do not agree on the liquidation of the property regime will not make the uncontested divorce contested. Spouses can file a lawsuit for division of property in divorce within the 10-year statute of limitations from the finalization of the divorce case.
However, if it is stated in the contractual divorce protocol that no claims or rights are claimed in the division of property, it will not be possible to open this case after the divorce decision is finalized. In the case of divorce opened in this way, the case for division of property is rejected by the court.
Sharing of Property in Divorce Due to Adultery and Intention to Life
If the property division lawsuit in divorce is filed in case of divorce due to adultery and intent on life, the court may reduce or even eliminate the ratio of the defective spouse in the residual value in accordance with equity. However, this situation does not remove the right of claim of the defective spouse for other receivables. In order for the participation claim to be reduced or completely removed in accordance with equity, the basic condition is that the regime of participation in the goods acquired between the spouses is valid.
