Table of Contents
Divorce is often regarded as one of the most challenging life situations. However, there are instances where the divorce proceedings are resolved successfully, swiftly, and without disputes, but the division of property becomes the source of significant misunderstandings and difficulties. How is property divided and when can it be done? Do children have a share in it? We answer the most frequently asked questions!
Every marriage possesses a joint property, which is established by law upon entering into marriage. An exception is a situation where a prenuptial agreement is signed before the marriage. The joint property includes, among others:
salaries and income from the professional activities of the spouses,
income from joint and personal property of the spouses,
funds accumulated in an open or employee pension fund,
household items used by the spouses.
Additionally, each spouse has personal property, which is not subject to division after divorce. Personal property includes assets acquired before the establishment of statutory community, acquired by inheritance (regardless of whether the inheritance was received before or during the marriage), bequest, or donation, unless otherwise stipulated in the agreement. Personal property also includes items serving individual needs, copyrights, and non-transferable rights (e.g., personal servitude).
The division of joint property can occur by agreement or through court proceedings. The first scenario occurs when the spouses agree on the division and decide to enter into an agreement that results in a complete or partial division. Generally, the joint property is divided equally; however, if one spouse has contributed more time or financial resources and seeks a larger share, they must substantiate their claims. It is important to attach all evidence of ownership, such as receipts, invoices, contracts, or bills. The value of the property is determined on the day of division, and its composition on the day the community property ceases. The division can occur in kind—this means, for example, dividing a plot into two smaller ones. Another solution is to grant exclusive ownership of a specific item to one spouse with the obligation to compensate the other spouse. Another possibility is selling the item and dividing the proceeds from the sale.
As mentioned, spouses can reach an agreement regarding the division of joint property. The conclusion of a marital property agreement, i.e., property division before divorce, should be executed by notarial deed if the property includes real estate. As a result, separate property is established. It is worth noting that it is not possible for the property division case to proceed in the same proceedings as the establishment of separation. The date of cessation of community property is crucial, as from that day, any item purchased by a spouse or earned amount will not be part of the joint property and, consequently, will not be subject to division in the event of divorce.
It is important to be aware that the division of joint property can only occur upon the cessation of community property between spouses. It is significant that a divorce, whether uncontested or with a finding of fault, does not affect the court's decision regarding property division. When can property division occur after divorce? Does it have to be done immediately after the process concludes? No, because claims for the division of joint property do not become time-barred. How long can property division after divorce take? These are usually complex cases, and if the parties do not find common ground, they can also be prolonged.
The joint property established upon marriage belongs exclusively to the spouses—children have no rights to it. According to legal provisions, the issue of child custody after divorce does not affect property division in favor of that parent. In such cases, the court considers (similarly to the issue of parental authority) only the welfare of the children. Therefore, when both parties to the proceedings seek rights to real estate, in the interest of the child, the court may favor the request of the parent who will exercise parental authority. In practice, this means that having custody of the children does not inherently lead to unequal shares in the joint property, but it may influence the method of division (the court may award the house or apartment but simultaneously order the spouse to compensate the other). What if a minor child possesses significant assets? Custody is entrusted to the parent with parental authority. However, it is important to remember that this is not part of the spouses' joint property. How is property divided after divorce when adult children have significantly contributed to the creation or increase of the joint property's value? They cannot claim a share in it, as they are not parties to the proceedings, and the joint property still pertains exclusively to the spouses.
A spouse who has been betrayed may feel that not only should fault be acknowledged, but the property division should also be in their favor. However, neither in the first nor in the second case is there a connection. Infidelity and property division—what is the relationship? According to the Family and Guardianship Code, infidelity has no impact on the court's decision regarding property division, as spouses have equal shares in the joint property. The court's final decision is based on arguments and their justification. Consequently, it may turn out that the party guilty of infidelity is found innocent if they successfully prove that the marriage breakdown occurred before the infidelity. Similarly, in property division, it may happen that the party found guilty of the marriage breakdown proves that they significantly contributed to acquiring the joint property and demonstrates substantial disparities in the spouse's contribution. In such cases, they may be awarded a larger share of the joint property. Therefore, despite certain issues that may seem obvious at first glance, it is advisable to seek the advice of an experienced lawyer to prepare for any eventuality (especially if there is no agreement with the spouse).
In the absence of an agreement, spouses may file an application for property division with the competent court. The document should be submitted to the appropriate district or regional court if filed simultaneously with a divorce petition. It is important to remember to pay the court fee for its submission, which amounts to 1000 PLN. If the document contains an agreed division plan, the fee is 300 PLN. The application should list all property components, indicate their value, and present evidence of ownership rights.
The lawyer's fee depends on the value of the joint property. If spouses wish to resolve the matter quickly and inexpensively, the best option is to agree on a property division agreement. The costs associated with court property division include the aforementioned court fee and:
the expert's fee for assessing the value of the joint property (these costs can be significant if multiple experts need to be appointed due to a dispute between the spouses),
an appeal if a party decides to file one due to an unfavorable judgment.
If professional legal support is used during the process, the lawyer's fee should also be considered. How much does property division cost with a lawyer? The minimum rates for legal services are regulated by the Minister of Justice's ordinance and depend on the property's value. According to the provisions, the minimum rates are:
up to 500 PLN – 90 PLN;
over 500 PLN to 1500 PLN – 270 PLN;
over 1500 PLN to 5000 PLN – 900 PLN;
over 5000 PLN to 10,000 PLN – 1800 PLN;
over 10,000 PLN to 50,000 PLN – 3600 PLN;
over 50,000 PLN to 200,000 PLN – 5400 PLN;
over 200,000 PLN to 2,000,000 PLN – 10,800 PLN;
over 2,000,000 PLN to 5,000,000 PLN – 15,000 PLN;
over 5,000,000 PLN – 25,000 PLN.
When approaching property division, it is important to be aware of your claims to avoid losing the entitled property due to divorce (especially when there is no agreement with the spouse on this matter). You must be aware that in such cases, the other party may be better prepared for the process, aiming to prove their greater contribution to the creation of the joint property. It is necessary to conduct a thorough analysis of each component of both the joint and personal property. Although, in principle, upon the cessation of community property, spouses become owners of exactly half of the joint property, there are exceptions to this rule. It is essential to focus on these exceptions if you are considering how to succeed in property division. Each spouse has the right to request a determination of unequal shares and then prove their contribution to the creation and increase of the joint property. It is not about the amount of each spouse's earnings, but about how those earnings were utilized to increase the property's value. Equally important is the contribution of personal work, such as participation in raising children, building a house, or maintaining real estate. It is worth analyzing whether there are grounds for inconsistency with the principles of social coexistence, based on which the court could award a larger share of the joint property to one party. This includes, for example, squandering property due to addiction or engaging in risky financial operations. It is difficult to list all situations that may be considered by the court as inconsistent with the principles of social coexistence, which is why it is advisable to seek professional legal support.
To thoroughly prepare for divorce and property division, it is necessary to carefully analyze all factors that could influence the court's judgment and, consequently, your future life. We understand that an average person, not regularly dealing with legal matters, may face difficulties during divorce and property division. Professional support may be necessary in particularly challenging cases where there is no agreement with the spouse.
Related articles:
Lorem ipsum dolor sit amet, consectetur adipisicing elit, sed do eiusmod tempor incididunt ut labore et dolore magna aliqua.
I highly recommend the Haber&Haber Law Firm and collaboration with Counsel Błażej Haber. Professionalism, diligence, and high personal culture assured me that I was in the right place. I wish to express my heartfelt gratitude for the empathy and humane approach to the client. In a word, a wonderful person.
I highly recommend 100%! This is undoubtedly one of the best attorneys. He addressed my issue immediately despite the limited time before the proceedings. The time of day for consultations was irrelevant. The case was concluded in the manner we had agreed upon. I advise others not to hesitate to call and discuss their situation.
