Amicable or legal divorce leads to the settling of the matrimonial regime and sharing the property of the couple who is going to separate. The notary helps you settle the pecuniary and property interests of the spouses.
How does the notary settle the matrimonial regime?
The matrimonial property regime is the set of legal rules applicable to financial relations between spouses. Using the information provided by the clients, the notary starts by making an exhaustive quantified inventory of their property and the possible debts, which make up the assets and the liabilities.
This state will allow him to determine the rights and obligations of each spouse, each regime obeying its own rules:
- community regime of property of acquisitions (marriage without marriage contract): each spouse takes back their own property (property owned on the day of the marriage or received by gift or inheritance) and is granted half of the property which was acquired during the wedding (furniture, bank accounts, etc.
- separation of property regime: the spouses recover their respective personal property;
- regime of participating in acquisition: each of the spouses recover their personal property, while the acquired assets made up by the difference between the initial legacy and the final legacy of the couple, shall be shared in half.
If these distribution rules are clear, their implementation is often complex because the spouses often mix their assets (by financing for example the purchase of a common good with personal funds).
Settlement Magistrate, the notary shall clearly explain the situation to each of the spouses, in order to find an agreement on dividing the property.
These settling and sharing operations can be planned before the divorce comes into effect
If the spouses choose to divorce through mutual consent without a judge, the spouses' agreement, established through a deed, with a private signature countersigned by lawyers, must include the settling of the matrimonial property regime. The notary specialist in the matter is able to help you to establish the latter. When the settlement is to do with the property that is subject to publication of landed property transactions, the intervention of the notary is required (art. 229-3 of the civil code).
Since February 26, 2016, in the context of contentious divorces where no amicable solution can be found, the Judge shall be able to rule on both the settlement and the division of the spouses' property. To do so, the spouses are encouraged to justify their points of disagreement either by a joint declaration, according to which they accept that justice rules on a division, or a settlement project, which is established by a notary.
The cost of distribution
If distribution has gone through a written deed (notarized or not), it leads to a payment of a 2.5% right to division, for the benefit of the Treasury, calculated on the value of the goods which are to be distributed, deduction less the debts.
Given these tax rights, it is required, if need be, to add the notary fees. The fees is fixed by decree, in proportion to the value of the distributed goods.
Last but not least, the publication of the deed, with the publication of landed property transactions leads to the payment of a real estate security contribution, which is equal to 0.12% of the real estate value. It is also required to provide the fees for the formalities which are carried out by the notary: request for civil status documents, copy establishments, etc..
Which documents should be given to the notary to prepare the distribution?
The notary shall indicate the documents which need be provided, to the spouses. Each document has its very own importance and shall favor the distribution.
- identity card and family record book •wedding contract.
- title deeds for all the real estate: primary or secondary residence, rental property ... but also the assessment of each property (value notice issued by a real estate professional)
- copy of the vehicle registration certificate and the Argus rating of the vehicle(s) •bank statements or postal accounts, title portfolios, supporting documents for employees, life insurance contracts, etc.
- stock in trade act, of the company, of the liberal cabinet.
- a copy of the last two balance sheets.
- outstanding loans (real estate, consumer loans, etc.) accompanied along with their redemption schedules.
- local and income tax notices.
- co-ownership outlays
For the incentives
The notary must trace the possible movements of funds between the personal property of the spouses and the common or undivided property of the couple. To provide proof for these movements, it is required to provide:
- copies of donation deeds and declarations of manual donations or of succession for the benefit of one of the spouses (if the goods or amounts which were received have been sold or spent, show the corresponding invoices, to see the state of the heritage).
- invoices for work paid by the community on a personal property of a spouse (or vice versa).