What is property division
Husband and wife divide the assets that they built up together through property division
Property division (財産分与 or "zaisan-bunyo") involves the husband and wife dividing the assets that they built up together at the time of divorce.
Therefore, at the center of property division is the settlement of property held by the husband and wife in co-ownership. After getting married, the husband and wife work together to buildup savings and purchase homes and cars, which assets must be settled at the time of divorce.
Assets accumulated together are held in co-ownership by the husband and wife
In most cases, these assets are held in the name of one of the spouses.
For example, where one spouse stays home to take care of the house as well as the children while the other spouse works, and where the working spouse purchases these assets using the wages that he or she earns through his or her employment, the law considers these assets to be created and maintained through the help of the spouse who was maintaining the home and taking care of the children. Therefore, even if the assets are held in the name of the purchasing spouse, these assets will be considered assets owned by the husband and wife in co-ownership and will be the subject of property division.
As such, assets that are the subject of property division are those assets that were created and maintained through the cooperation of the husband and wife, regardless of whose name the assets are held in.
Additionally, property owned by the parties before marriage as well as property obtained by the parties after marriage through means such as inheritance are considered separate property and will not be subject to the property division.
What to be careful of #1: Does your spouse have hidden assets?
We frequently see cases where the other spouse has hidden assets.
Hidden cash savings as well as bank accounts that your spouse has not told you about are the most common examples.
We investigate for and have experience in discovering many hidden assets.
What to be careful of #2: Have you accounted for all assets?
Where the husband and wife decide on property division, usually they are good at accounting for existing assets. However, we frequently see cases where future assets have not been accounted for. At Verybest, we try to account for all future assets to ensure a fair property division.
Even the spouse causing the divorce can demand property division
Property division will be allowed even if both spouse are working, and even the spouse that caused the divorce can demand property division.
As a side note, in addition to the division of property held in co-ownership (清算的財産分与 or "seisanteki zaisan bunyo"), there is also property division that involves compensation for emotional distress (慰謝料的財産分与 or "isharyoteki zaisan bunyo") and property division to provide for the living expenses of a spouse (扶養的財産分与 "fuyoteki zaisan bunyo"). Property division for emotional distress and for living expenses is not limited to property held in co-ownership.
If property division is not demanded within 2 years after the divorce, it will be subject to the statute of limitations
Although it is not required that property division occur before the divorce, if 2 years pass from the date of the divorce, because the statute of limitations will apply, you will no longer be able to demand a property division.
Therefore, it is highly recommended that you decide on property division prior to getting divorced.
How and at what proportion property will be divided
Property is divided equally
Currently, in the vast majority of cases, both lawyers and the court believe that an equal division is appropriate. Therefore, even if only one spouse employed, the property will be divided equally.
When we are consulted, clients frequently express the following wishes:
- I was the one working and earning money, so I do not want my spouse to receive any of my money.
- I and my spouse were both working, but I was the only one maintaining the house and doing house chores. Therefore, I should receive more.
Because of the difficulty in actually calculating each spouse’s “contribution to the creation of the property,” the general rule is to divide property equally (this is often called the 1/2 rule).
Depending upon your negotiating skills, you may be able to receive more than the 1/2 rule
The property will likely be divided equally if the divorce is decided by a court judgment.
If it is through negotiations or through conciliation, the parties are free to divide the property at any proportion.
Where one spouse is worried about their financial ability after the divorce, there is property division to provide for the living expenses of a spouse, and if one spouse is suffering from emotional distress, then there is property division that involves compensation for emotional distress, both of which will involve more property being given to the spouse with these issues.
As such, depending upon your negotiating skills, you may be able to receive more than the 1/2 rule.
Advice from our lawyers
Where only cash is involved, it will be easy to divide the property. However, where your property involves houses, cars, household items, corporate securities (such as shares of stock or bonds), matters become much more complicated.
Legal knowledge and negotiating skills are especially necessary where complicated property is involved.
We have extensive knowledge and experience in handling property division.
The following are just some of our achievements involving property division:
- We negotiated to have the other spouse pay for the mortgage loan while our client continues to live in the house.
- The other spouse was initially offering our client 4,000,000 yen, but after negotiations, we were able to increase our client’s property division to more than 20,000,000 yen, which is roughly five times the amount that was originally offered.
We frequently assist and advise on cases similar to these. If you have any questions or concerns involving property division or your divorce, please feel free to contact us for your free first consultation.