The law establishes that the default marital regime is the community of acquisitions.
The community of acquisitions regime essentially seeks to prevent injustices in the distribution of the couple's assets, as it is characterized by the possibility of both common assets and separate assets for each spouse. This contrasts with, for example, the community property regime, which generally determines that all assets, whether acquired before or during the marriage, are common.
According to the community of acquisitions regime, each spouse owns:
Solely and exclusively the assets they owned before entering into the marriage,
Assets acquired after the marriage, but through a gratuitous title (such as inheritance or donation),
Assets acquired due to prior personal rights, which, because they do not result from the joint effort of the couple, are considered separate.
On the other hand, the common property of the couple consists of assets acquired during the marriage, as a result of both spouses’ joint activities or due to one spouse’s support, encouragement, and assistance to the initiative, effort, and capacity of the other.
Therefore, the division corresponds to the allocation of common assets according to the share (50% for each), which refers to the set of common assets assigned to each of the parties involved.
It is essentially a process aimed at distributing the "marital society's" assets due to its dissolution (divorce).
For this, when submitting a divorce petition, among other documents, a list of common assets and their respective values should be presented.
WHAT ARE THE TAX IMPLICATIONS?
From a tax perspective, the sale of real estate could potentially generate capital gains, which are classified as Category G income, since it involves a paid transfer of real rights over real property. Therefore, if capital gains are realized, they must be declared in 50% by each ex-spouse, in their respective Annex G, when submitting their income tax return (Model 3).
On the other hand, if one spouse wishes to retain the real estate property, they will pay a share to the ex-spouse, a kind of compensation, known as “tornas.”
The capital gain resulting from the transfer of real rights over real property is calculated as follows:
CG = SR – (CA x Depreciation Coeff. x Appreciation Expenses) where:
SR – Sale Price
CA – Acquisition Price
Depreciation Coeff. – Monetary Depreciation Coefficient
AE – Appreciation Expenses
SA – Expenses related to the sale and acquisition
The sale price will be the consideration received, meaning the value assigned to the real estate in the sharing agreement or contract, or the final VPT (Taxable Property Value) based on the assessment carried out under the Municipal Property Tax Code.
IS IMT PAYABLE?
Since January 1, 2009, there is no requirement to pay this tax when the excess share results from a division due to the dissolution of a marriage not governed by the separation of property regime. This applies in cases of divorce, judicial separation of property, or judicial separation of persons and property.
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