Liquidation of the community of property: it is important to bear in mind that the divorce sentence in the contentious -judicial- procedure (not by mutual consent), does not entail the liquidation of the community of property of the marriage, which must be carried out in a separate, subsequent procedure.

Through this procedure, which is mandatory, the matrimonial property is liquidated (Liquidation of the community of property), in which there is a common mass for both spouses of assets and rights, corresponding to the community of property.

As an exception, there is the case in which there is only one common asset. In this particular case, it is not necessary to follow the formal inventory, liquidation and attribution procedure, but instead, in the absence of an agreement, the asset is judicially sold.

It is interesting to know that, if the divorce decree dissolving the community property was issued by a foreign court, a Spanish court will be competent if the real estate to be liquidated is located in Spain. For this, previously, the exequatur (recognition of the foreign sentence in Spain) should be obtained.

If, for example, one of the spouses dies, and you want to proceed to the division of the inheritance, first you must proceed to the liquidation of the community of property that the deceased formed with his spouse.

How is the liquidation between the surviving spouse (of the deceased) and their heirs?

In order to be able to divide the inheritance and know what is the patrimony that should be part of the inheritance, first you must request the liquidation of the community of property of the deceased. There is a discrepancy on how to carry out said liquidation of the community property in the event of the demise of one of the spouses:

• Either within the inheritance division procedure, as one more operation, or
• As the procedure of liquidation of assets in the hereditary procedure.

Phases of inventory liquidation

1) Inventory formation phase.

Once this first phase of inventory formation is completed, you can move on to the liquidation phase.

A typical situation of conflict between the spouses is due to the discrepancies when agreeing which assets or debts should be included in the inventory of the community of property.

Once the inventory is complete, either because both parties have done it by mutual agreement before the Lawyer of the Administration of Justice, or through a judgment by judicial procedure started in order to obtain the inventory formation.

Once the inventory has been listed and completed, it can be proceeded judicially to liquidate the inventory (second phase), or spouses can reach an out-of-court liquidation agreement, ending the dispute initiated between both parties.

2) Liquidation phase.

To start the second liquidation phase, the following prerequisites must be met:

• To have concluded the inventory phase (phase 1) by final judgment. The inventory must already be perfectly prepared.
• In the case of divorce, you can only proceed with the liquidation once the divorce decree is final. The same in cases of separation or nullity of marriage through a court ruling.

In the liquidation phase, the assets are quantified and divided in half between the spouses.

The liquidation request can be made by any of the former spouses, after the divorce decree (or separation or marriage annulment).

The request must contain the settlement and adjudication proposal in the form of a partition notebook, and in which the following will be detailed:

• The assets described in the inventory
• The debt list of the company
• The payment of the debts of the company: the alimony first, which will have preference, and other possible contracted,
• Payment to spouses of possible refunds and reimbursements
• Division of the assets of the common mass, assigning to each spouse the half that corresponds to him/her
• The payment of the debt between spouses.

The valuation of the assets must also be carried out in this liquidation phase, with the proposal that is presented, to quantify the assets, and award them in half between the spouses.

What the spouses present is only a proposal, so an appraisal of the property is not necessary. Only in the case of disagreement between the spouses, it will be necessary, later, that experts carry out the appraisal of such assets, and that the counter-partitioner appointed judicially make a distribution proposal.

If you have doubts about the liquidation of your divorce, do not hesitate to consult with the legal department of the firm Pérez Parras Economistas y Abogados, and its lawyers specialized in Family Law.

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