In the first place, it is important to make a distinction between marital and patrimonial partnership, since the former arises automatically with the celebration of the marriage, while the latter applies only to de facto marital unions and does not arise only with the formation of the same, if the permanence of the partners is not required to be greater than two years and that they have no legal impediment to marry or, if they have, they have dissolved the marital partnership that they had previously constituted.
Additionally, there is an important difference between liquidation and dissolution. In the conjugal partnership there is no term to liquidate, in the patrimonial partnership there is, because when this is dissolved for any of the reasons, the permanent partners have one year to liquidate and in case of not doing so, the assets remain in the name of their owner.
Now, in the case of the conjugal partnership, article 1781 of the civil code states that the following are part of the partnership
- Fruits, pensions, interest and profits, whether they come from corporate or personal assets.
- Monies contributed to the marriage or acquired by one of the spouses at the expense of the partnership must be returned.
- The real estate or fungible things that are contributed or acquired.
- Assets acquired for valuable consideration.
- Own real estate assets that are contributed with a charge to be returned to restitution to the company in cash.
Also, the rule indicates which are the excluded assets
- Inheritances and donations.
- Property that was duly subrogated to another property belonging to one of the spouses.
- The things purchased with own values of one of the spouses, established in the capitulations.
- All material increases that accrue to any species of one of the spouses, forming the same body with her, by alluvium, building, planting or any cause.
- The species that one of the spouses possessed in title of lord of it, even if the prescription or transaction with which he/she has made them truly his/hers is completed or verified during it.
- Interest accrued by one of the spouses before the marriage and paid thereafter.
- Assets previously held under a title of title vicious but whose vice has been purged during the conjugal partnership by ratification or other legal remedy.
- Assets that revert to one of the spouses due to the nullity or termination of a contract or the revocation of a donation.
- The right of usufruct that is consolidated with the property belonging to the same spouse, the fruits will only belong to the partnership.
- What is paid to either spouse for credit capital constituted before marriage, shall belong to the creditor spouse.
- Litigated property and that during the partnership one of the spouses has acquired peaceful possession.
As a result, the marital partnership is liquidated as follows
- Conforming the gross marital assets. That is to say, to add the social assets, the compensations (in favor) that are owed to the conjugal society at the expense of the spouses.
- Conforming marital liabilities. For this purpose, the external liabilities (debts owed to third parties at the time of dissolution) are added to the internal liabilities (offsets against the marital partnership).
- Gross marital asset write-offs. liquid marital assets. (subtract marital liabilities from gross marital assets)
Dividing marital assets
between the spouses.
- Equity adjustments in the account of each of the spouses. (community property plus compensation owed to the partnership) minus compensation owed to the partnership
- Determination of the manner in which the external liabilities are to be paid.
- Conformation of the branches. Determination of the assets to be given to each spouse.
Finally, the cost of the liquidation of the marital or patrimonial partnership will have a cost according to the value of the partnership to be liquidated, plus the cost of the attorney’s fees. On the other hand, if the liquidation is litigated, the costs will be, mainly, the fees agreed with the lawyer who will handle the process before the Family Judge.