EVERYTHING YOU NEED TO KNOW ABOUT DIVORCE
We know that a breakup can be a very difficult time for a person. When the couple who are separating have children, it can get even more complicated. We bring together the experience of a family lawyer who has already performed dozens of divorces in Brazil to answer the main questions that may arise in this matter. At the end, we have some tips so that you can make a divorce cheaper and less traumatic for everyone involved.
Quick guide:
“My good” or “My good”? How is the ex-couple's assets?
When the relationship is in its infancy, no one thinks much about organizing the assets in case of an eventual separation. In the beginning, it's “sweetheart, my love” for all sides. When the passion ends, the first fight we see is “my possessions, your possessions”.
Well, for those who took precautions at the beginning and made a prenuptial agreement, there should be exactly how the ideal division of the assets takes place in a moment of separation, so it will not be a surprise to the division of assets if the relationship comes to an end.
However, in the vast majority of cases in Brazil, marriages are carried out under the partial community property regime (you can check the marriage certificate, click here to learn more about the marriage certificate). In this type of regime, the spouses divide the assets acquired during the marriage equally, that is, half and half .
But beware! Even under this regime, some assets may be excluded from the marriage , in the following situations:
Goods purchased before the couple's union, by only one of the spouses;
Goods purchased after separation - even without formalizing the divorce;
Property purchased during marriage by a single spouse, but exclusively with the sale value of a private property acquired before marriage;
Goods received by inheritance or donation, for a single spouse, at any time, even during marriage.
Personal goods (mobile phones, notebooks, etc.) and professional instruments (eg a doctor's instrument bag)
Okay, but what about debts? Do you also follow this same rule? The answer is: YES! Debts are equally shared in the situations described above. And a lot of people don't know that. So, be careful, when asking for the division of property in the marriage, it is also possible to ask for the division of debts, even if they were made in the name of only one of the spouses, if it was constituted at the same time as the rest of the property.
Another point that usually gives a lot of headaches is the property or car being financed . Many feel that continuing to pay the mortgage installments by mutual agreement is the best option. But by doing that, it's possible to get headaches up ahead. The best thing to do most of the time is to sell the property and share the profit, if the loan is paid off, or the loss, if there is still a debit balance with the bank.
Children: And me with this?
If divorce is already difficult for the spouses, imagine for the couple's young children? How to minimize the impact of a separation on the little ones? A responsible lawyer will know how to recommend a good psychologist, if he does not already have one in partnership.
But what really worries the couple is who the child will stay with and then the legal terms start to come together: Guard, Visits, Coexistence… Will I have shared, unilateral or alternate custody? Can I visit my children whenever I want? And the Home of Reference? Ufa! There are so many things that it is easy to see an article on the internet making a mess.
The first myth we hear around is that shared custody is mandatory. In fact, shared custody is the preferred model of Brazilian legislation and of judges in the family area. Also the most recommended model by the traditional line of militant psychologists in the area of family, parents and children. However, shared custody is not mandatory in all situations !
There are cases where the couple can opt for unilateral custody. It can even be established by the judge when there is a risk for the child to keep it under the responsibility of a parent. It is a common case when a parent is involved with drugs, for example.
It is important to say that, in any situation, the term visit is falling into disuse to apply to parents, since visits are carried out by the most distant family members, while the parents live with the child. Therefore, establishing a coexistence schedule is important in any type of custody, and the free coexistence regime is highly inadvisable. Leaving a child without an agenda can cause confusion and disrupt the child's routine and healthy development.
One thing parents are concerned about when deciding on the famous joint custody is regarding the division of time with the child. In fact, Brazilian law suggests that the division of time is shared in a reasonable way, without being an extreme mathematical division. Even with this division, for most of the judges, it is important to establish a reference home for this child , that is, a place where he can feel safe and say “this is where I really live”.
With this information, we break another myth, about food not being charged when you have shared custody. Even in this custody model, one of the parents still holds the “reference home”, causing expenses to be borne unequally between them, even though there is a close-to-ideal division of coexistence.
Lately, the judges have allowed the interaction online , through communication applications such as WhatsApp and even videoconferences through Zoom, Google Meet and Skype. If it's useful for your reality, it's worth working on this point!
Alimony? It depends!
When we have a divorce, spouses must remember that after the separation, each will have to bear their own cost of living. Now, there will be two houses, two rentals, two different purchases for the month. How can the ex-couple adjust to this new financial reality?
First, we must remember that every time one of the spouses leaves a great job or career to embrace a family life project, we may be faced with a case of child support among the ex-spouses. But this is not the rule. The courts have long ruled out child support between spouses, leaving it only for exceptional cases. And even so, fixation in these rare cases is usually temporary, until the spouse can re-establish himself in the labor market.
But perhaps what worries divorced couples the most is child support for underage children . This yes, it is mandatory and must respect at the same time three important factors:
The average of fixed and variable expenses of minors.
The average pay of both parents
The proportion that each one earns (will influence the division of responsibilities)
It is a very frequent mistake when the lawyer guides the child's guardian with the reference home, sums up all the expenses and concludes that the other parent must pay up to 30% (thirty percent) of their remuneration . This percentage is not provided for in the legislation and the calculation often ends up ignoring the remuneration that the guardian parent earns per month, as he is also responsible for the expenses, although his obligation is not to pay child support, as the expenses already are being diluted in everyday life.
Child support is a very serious matter and can make a divorce much more difficult than it would be without the payment of this legal obligation.
How much does this “joke” of getting divorced?
You've already realized that due to the complexity of each situation, a divorce can be a fortune! Some joke that when they go to court to divorce, many get back together because the costs are so expensive that it's more worthwhile to continue putting up with the spouse! But joking aside, divorce doesn't always have to be a biggie! There are things that can be done to make the procedures cheaper than usual. And we're not talking about anything illegal, okay?
A good way to reduce the costs of a divorce is to make a good deal ! If they do not have children under age or with an illness that makes them incapable, the couple has the possibility of filing a divorce at a notary's office, reducing the costs of time, money and patience close to what would be a legal process.
Even in the case of minor children, consensual divorce is still the best way out of justice , especially when the lawyer is the same for both spouses. This makes the cost of fees lower and the judgment out much more quickly than it would with a property dispute, custody or any other matter in the divorce.
Some couples, when they divorce in a consensual mode, decide to leave a portion of their assets, a house or a specific car with one of the spouses. It seems like a noble act on the part of those who give up, but what they often forget to guide the couple is that they can have more expenses with the taxes incident to this sharing! The law understands that in an unequal sharing, there would be a kind of donation, with the contribution of the donation and death tax, the ITCD/ITCMD , whose rate varies according to each State.
The third tip for saving money on a divorce is to keep litigation from splintering . Like this? In the most intense cases, a divorce process can be fragmented into several other processes that dispute custody, coexistence regulations, emergency guardianships, travel authorizations, review and enforcement of alimony, among several other disputes that can arise when the separation escapes the control of the lawyer.
Invest in a professional who will give you comfort and security in the strategies adopted so that a process does not turn into two, three, four… Always collect references, the best offices are usually well evaluated by Google's search engine. These little tips will keep you from hiring a lawyer to solve a problem and leaving the office with other headaches to solve.
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