Divorce and Litigious Separation
What is it?
Separation is a form of dissolution of the conjugal society that extinguishes the cohabitation and fidelity duties inherent to marriage, as well as the property regime. However, the marriage bond between the separated parties is maintained, which prevents them from entering into another marriage.
Divorce is a form of dissolution of the marriage from both parties. It can be done at any time, regardless of meeting deadlines. Only after divorce the spouses are allowed to remarry.
The law 11.441 / 07 made easier for the citizens making the consensual divorce and separation procedures less bureaucratic by allowing these acts to be performed in a notary public office in a quick, simple and safe way.
What are the requirements for a divorce or separation in a notary public office?
The main requirement is the consensus between the couple on the decision to separate or divorce. If there is a dispute between them, the process must necessarily be judicial.
In addition, the couple cannot have minor or disabled children. If the woman is pregnant, a divorce or separation cannot be made. However, if the prior judicial resolution of all issues relating to minor children (custody, visitation and maintenance) is duly proven, divorce or separation at a public notary office may be carried out.
The deed of separation or divorce does not depend on judicial approval and must be registered with the Civil Registry Office to change the civil status of the parties.
In order to transfer the assets to the name of each of the spouses, it is necessary to present the deed for registration at the Real Estate Registry (real estate), at Detran (vehicles), at the Civil Registry Office of Legal Entities or at the Commerce Registry (companies), Banks (bank accounts), etc.
Even if there is an ongoing legal proceeding the interested parties may, at any time, withdraw of the process and opt for the consensual separation or divorce at a public notary office, provided that the legal requirements are met.
What are the documents required to perform a separation or divorce in a notary public office?
For the drawing up of the public deed of the consensual separation or divorce, the following documents and information must be submitted:
- Marriage certificate (updated – maximum deadline of 90 days);
- Official identity document, CPF and information about the profession and address of the couple;
- Deed of the prenuptial pact (if there is any);
- Official identity document, CPF and information about the profession and address of the overage children (if there are any) and marriage certificate (if married).
Required documents to prove ownership of the assets (if any):
a) Urban properties: The updated original copy (30 days) of the negative onus certificate issued by the Real Estate Registry Office, IPTU booklet, certificate of municipal taxes levied on properties, declaration of settlement of condominium debts.
b) Rural properties: the updated original copy (30 days) of the negative certificate of burden issued by the Real Estate Registry, ITR declaration for the last 5 years of Rural Property Debt or the Negative Certificate issued by the Federal Revenue Service, Rural Property Registration Certificate (CCIR) issued by INCRA.
c) Movable assets: Vehicle documents, stock statements, corporate contracts, invoices for goods and jewelry, etc.
d) Description of the sharing of assets.
e) Definition of the resumption of the maiden name or the decision of keeping the married name.
f) Definition of the payment or not payment of alimony.
g) OAB card, information on marital status and address of the lawyer.
In case of sharing of assets, the payment of any taxed due must be provided. The sharing is the split of the couple’s assets, where the patrimony is defined and specified, which will be destined to each of the separates/divorcees.
When there is transfer of an immovable property from one spouse to another, free of charge on the portion exceeding the portion, the ITCMD tax is levied.
Although the law provides the splitting in a future occasion, it is recommended that interested parties resolve property issues in the same act.
Attention: Which public notary office is apt to carry out a divorce or separation?
The law requires the participation of a lawyer as a legal assistant to the parties in the separation and divorce deeds.
The public notary, same as a judge, is a professional of the law that apply for a civil service exam and acts with impartiality in the legal guidance of the parties.
The lawyer, on the other hand, attends the act in the defense of the interests of his/her clients.
The parties may have separate lawyers or a single lawyer for both.
The lawyer must sign the deed together with the parties involved and it is not necessary to present a petition or power of attorney, as this is granted by those interested in the deed of separation or divorce itself.
If one of the spouses is a lawyer, he/she can also act as a legal assistant in the deed.
Is it possible to be represented by an attorney in the deed of separation or divorce?
Spouses can be represented by a public power of attorney, made at a public notary office, which must contain special and express powers for this purpose, with a term of valid until 30 (thirty) days.
How much does it cost?
The price is fixed by law in all registries in this State. To check the values, consult the notary public of your choice.
Source: www.cnbsp.org.br