With the divorce decision there are several key issues that need to be resolved as soon as possible.
Firstly, it should be decided exercise of parental responsibilities of minor children, in particular, with whom the minor will reside, visits arrangements, holidays and festive periods, pension payment and other essential questions of life of minor children. But there are other important issues to decide. Let’s see.
How to share the common property and debts?
It is important that the couple set the list of common assets, debts and other obligations created during the marriage. This list should contain a concrete and detailed description of each asset (real estate, vehicles, bank balances, furniture, etc.) and the value assigned to each of these assets.
In relation to common debts and obligations, the debt value, identification of the creditor (bank, financial institution, etc.) and, if possible, reference of the contract should also be indicated in concrete terms. All this will be essential in order to subsequently make the map of sharing between the ex-spouses. At this point, it is important to note that at the time of division of property, both are equally responsible for fulfilling the obligations, including the payment of benefits and debts. In other words, the lender may require one of the former spouses to pay the entire debt or fulfillment of the obligation; should this former spouse subsequently require the other to perform its part of the debt or obligation. In certain cases, one of the spouses may see his (her, his) salary executed for payment of a common debt. Loans to other persons where the former spouses are guarantors and who, years later, can bring many problems.
Who gets to live in the family home?
The former spouses must decide on the assignment of the family home, that is, decide who will live in the house that was the home of the family.
In the case of divorce by agreement, the assignment of the family home to one of the spouses will have to be defined and written in a document. If it is not possible to obtain the agreement, then it will be necessary to ask the court to decide which of the two will be the property assigned.
In the case of a court decision, the allocation of the family home will be determined according to several criteria, for example the needs of the spouses and the interests of the children. The assignment will, in principle, be made under lease, whose rules – in particular the amount of rent – will be determined by the court.
Can one of the former spouses is required to pay financial board to the other ex-spouse?
The general rule in Portugal is that each former spouse must obtain their own support. However, in certain exceptional cases, one of the spouses may require the other to pay the financial pension.
This means that the financial pension to be paid by a former spouse to the other is exceptional and only temporary, because the aim is to help the former spouse to have secured their basic needs. In the first days after the divorce, the former spouse who receives the financial pension must have a minimum of conditions to adapt to his new life.
Who gets the pet?
Recently, it was established law that governs the situation of the former couple pets, namely, who will get the animal guard taking into account the interests of the animal and the family. The divorce agreement (if it is friendly) or the divorce decree (if it is in dispute) must establish which of the ex-spouses is with the animal, if the animal is in turn with the spouses and what regime and visits, payment of the costs of food, hygiene and veterinary consultations and their treatments.
Throughout this process, it is advisable to have experienced legal support in clarifying and monitoring these matters.
With the divorce or separation of the couple, it is a generalized idea that the spouse who leaves the family home, loses the right to the family home. This idea is totally wrong, as we shall explain.
Divorce always involves several issues to be dealt with between the couple, one of them what to do to the family home. The separation or divorce always has the consequence of the rupture of the life in common between the couple, that is to say, one of them has to leave family house.
The family home is thus destined for one of the spouses to live there, regardless of whether the household belongs to the couple (as common heritage) or belongs exclusively to the other spouse (as a proper property).
It often happens that the family home is owned only by one spouse but stays there to live the other spouse. Weird ? Not so much. We explain.
By a written agreement, the couple can define which of the spouses is living in the family home with payment of income to the other and specific conditions (for example, until the minor children are adults, etc.).
If the couple can not agree, either spouse may apply to the court an interim or final decision for the family home.
If the Court’s decision on this matter is necessary, the spouses should explain to the Court which facts they consider important for the decision, such as specific family reasons, minor children, health or professional reasons that may be relevant to the decision.
Does this mean that the spouse who is no longer living in the family home loses the rights to this property? Not usually.
If the family home is common property of the couple, for example purchased after the wedding celebration, the house will remain the property of both spouses.
In this case, both spouses continue to own and are obliged to pay the bank credit, taxes and condominium expenses, among other expenses. Only housing expenses (eg, electricity charges, water supply, etc.) will be the responsibility of the spouse who continue to reside in the house.
So, what happens if the family home is owned only by one of the spouses?
In this case, the spouse will continue to be the sole owner of the home, even if he or she does not reside there and becomes the other spouse’s home.
The spouse (who does not reside in the family home) will continue to be solely responsible for the payment of the bank credit, taxes and all expenses not related to living in the house. These expenses (electricity, water, gas, etc.) will obviously be the responsibility of the spouse who lives in the house.
So, in any case, the spouse who lives in the family home does not have to pay the other spouse for living in the house? Of course there is. Let’s see.
The spouse who will live in the house after separation from the couple or divorce, becomes the tenant of the house. As a tenant, if the home is the sole property of the other spouse, he must pay a rent to the owner of the house.
If the house is the common property of the couple, then he must pay half of the rent to the other spouse because he owns half of the property.
There is a situation of renting for housing, according to the general rules of the rental for housing, and the court can decide the conditions of the contract and expire the lease, at the request of the landlord, when circumstances warrant.
We can say that the spouse who will reside in the family house will not pay rent in the case of being the exclusive owner of the house.
It is important to note that residing in the house and paying rent does not interfere with the possibility of the house being sold to another person.
All this should be well considered by the spouses and well regulated in the divorce agreement or court decision.
For better clarification of all doubts and questions, the opinion of experienced lawyer is very important.