DIVORCE IN BRAZIL - It can be easy or a horror story

The unfortunate plight of a friend of mine, who will remain unnamed here, has prompted me to put together some information to help our members to get through the process with as little blood letting as possible.

Like the title says, here in Brazil getting a divorce can be easy or you can find yourself being trapped inside of a Horror Movie that seems like it's never going to end. The secret to surviving the process, or at least coming out of it relatively intact depends on knowing your rights, gathering up all the documentation and evidence you possibly can, and trying to remain calm even in the face of extreme provocation or crushing bureaucracy.

Cartório Divorce
First of all let's quickly try and understand the two very different kinds of divorce processes in Brazil. The most recent, quickest and simplest type of divorce in Brazil is a Cartório Divorce. This is geared to those who wish to register a consentual divorce, or at the very least one that will involve the minimum of negotiating between the parties; divorces where all the issues such as the divorce itself, division of the marital assets, child custody and visitation (where applicable), and alimony and child support (pensão alimentícia) can be agreed upon prior to entering into the process at the Cartório.

The process is relatively inexpensive, Cartório fees should be generally in the range of R$500 or less, and if the parties can agree on everything mutually, then only one lawyer is really necessary in order to proceed with the divorce. Both parties can, of course, retain their own lawyers if they feel more comfortable with that, but why incur the additional lawyer's fees if you don't have to. If both parties are in agreement the whole process including the fees of one lawyer shouldn't run much more than a couple of thousand Reais.

For those who have been separated (de facto) less than one year, the first step in the Cartório would be a process of "Separação de Corpo e Partilha de Bens", a Cartório separation, which would later in another simple process be converted to a full divorce after one year of separation. For those who have already been separated (de facto) for one year or more, then you can go to Direct Divorce in the Cartório. In this case the Writ of Divorce (Escritura de Divorcio) is issued the same day, and if it takes place in the same Cartório where the couple were married, then the divorce takes full effect 30 days from that date and the parties would be free to re-marry should one or the other so choose. Note: If the Cartório Divorce takes place in any Cartório other than that in which the parties actually married, or registered a foreign marriage the "Escritura de Divorcio" MUST also be registered in the Cartório where they married.

Judicial or Litigious Divorce
This is a divorce in the traditional court system. It is often very time consuming and extremely nerve wracking, as well as absurdly expensive. It also involves both parties being represented by their own lawyers. This kind of divorce should be avoided wherever possible, since the only winners will be the lawyers. A prolonged battle that is made necessary by one of the parties refusing to cooperate with the divorce and negotiate the issues in good faith will only drive up the legal fees and in the end it is quite likely that will eat up all of the assets leaving both parties with very little, or nothing other than the divorce. This kind of divorce is generally necessitated by one of the parties who simply wants to destroy the other at all costs, that party is not at all interested in anything else but vengeance for some perceived wrong, and isn't even likely to see their own potential for incurring great financial losses even when explained carefully and calmly to them. They're simply too blinded by rage and will often sacrifice everything in order to exact revenge. Only in the end do they realize they've lost everything that they stood to gain, and guess who they blame for that?

Like a Cartório Divorce for those separated less than one year, in most cases, would require to go through "Separação de Corpo e Partilha de Bens" and then later divorce. There are however, many situations where the Courts will allow the parties to go directly to divorce regardless of the length of separation.

Expats should be aware, despite what judges or lawyers may say to the contrary, there is a clear favoritism in Judicial Divorce matters for the Brazilian spouse, especially if it is a woman. Courts here will often give much greater latitude to the Brazilian spouse in terms of what would be considered acceptable 'evidence' in divorce matters; and they will often impose more restrictions on the expat spouse and/or award the Brazilian spouse a greater percentage of the assets or higher/longer alimony and child support than they would otherwise where both parties are Brazilians.

Divorce without a previous division of assets (partilha de bens) - While the courts will allow this NEVER NEVER NEVER agree to a divorce under these circumstances. Doing so is like cutting your own throat. What you are doing is just handing over complete control to the spouse who is unwilling to negotiate any of the issues surrounding division of assets. You put that spouse in the driver's seat and you can guarantee that you're going to be left holding the bag, and be unable to access your share of the marital assets for years, if ever. Also if there is no division of assets in the divorce, that would prevent the spouses from future marriages since it would prejudice the "Regime de Comunhão de Bens" in a subsequent marriage.

Know your rights and the pitfalls to avoid

You have the right to a divorce, neither party can prevent the other from applying for a Judicial Divorce, so if you're smart then get your act together, put aside any childishness and negotiate a Cartório Divorce. Doing anything else is shooting yourself in the foot.

Both parties have and equal obligation to support themselves, and an equal right to receive alimony if their circumstances warrant it. Yes, women in this country get ordered to pay alimony to their ex-husbands quite often when circumstances merit.

Both spouses have an equal right to custody and visitation to children of the marriage, unless the courts impose any restrictions for the wellbeing of the children. Shared custody is becoming much more popular and is almost the rule of thumb in divorces nowadays. Both spouses also have an equal responsibility to support the children of the marriage. In cases where the non-custodial parent is a woman, she will certainly be required to pay child support to the custodial parent and no distinction will be made in that respect. Obviously child support payments would tend to be lower since women in Brazil are paid less than men doing the same job.

Division of Assets "Partilha de Bens"
The division of assets in Brazil depends on the "Regime de Comunhão de Bens" under which you married. In the vast majority of cases the marriages take place under the "Comunhão Parcial de Bens", which is what we all know. It provides that all assets held by each party before the marriage remain their sole assets, and any assets acquired following marriage are joint assets and are divided 50/50.
"Comunhão Universal de Bens" is rarely ever seen, but it is where each of the spouses have an equal share in all assets of the other, regardless of being acquired before or after the marriage.
"Separação Total de Bens" this is where all assets of both parties, whether acquired before or after marriage, remain the sole property of that spouse. It is required that those wishing to marry under this 'Regime" they must appear at the Cartório and register a Pre-Nuptial Agreement. NOTE: "Separação Total de Bens" is mandatory for marriages where one or both spouses is over the age of 70, or under 16.

Pitfalls - The vast majority of lawyers in Brazil really don't know what the hell they're doing. They'd never be called to the Bar in most developed countries. They are also really more interested in your money than in your case and it will sometimes look like your lawyer is colaborating with your spouses lawyer to stir the pot, create dissention in order to drive up the fees with a prolonged battle.

Brazilian spouses, will traditionally refuse to negotiate on division of the assets. They are all of the misguided opinion that they will end up with everything if they hold out, refuse to negotiate and keep you from accessing your assets until they bankrupt you and maybe even force you to return to your homeland. Lawyers here often pepetuate that attitude too.

Never accept a divorce without division of assets, especially if you are currently living in the matrimonial home jointly. You will find yourself out in the street on your butt, no matter what anyone might tell you to the contrary. Trust me on this one please!!!

A (usually) Brazilian spouse will often refuse to permit sale of the matrimonial home and will insist on sole occupancy of it, to the detriment of the other spouse. Don't just take this lying down, you need to take immediate legal action. There is jurisprudence that states in such cases the spouse who occupies the home and resists negotiation on division of assets, must pay fair market rent to the other spouse. Insist that your lawyer goes after that.

Tribunal da Justiça do Rio Grande do Sul
when one partner is in possession of joint assets and does not want to share amicably, preventing the other has access to monetary value. Whether or not the property is also used to house the children. If the opposition is proven, the other must pay a monthly amount corresponding to a market rent. (Precident: TJRS 70046238671). Until the situation of improper occupation of asset is resolved, the value is called compensatory support and has no relation to the income of each. It also applies to any business or vehicles and they have in common.

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The spouse who enjoys sole use of the assets that have not been divided (i.e. matrimonial home) has a duty to the other to account and pay an amount by way of rent, for the exclusive use of the common asset, under penalty of being characterized unjustified enrichment.

Except in the case, that the spouse and children receive support (pensão alimentícia)  from the other spouse and parent, because in this case, it can be construed that the exclusive use of the property as support "in kind", not necessitating the requirement to pay a rent.
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O cônjuge que usufruir sozinho dos bens que ainda não foram partilhados tem o dever perante o outro de prestar contas e pagar uma quantia a título de aluguel, pelo uso exclusivo de bem comum, sob pena de ficar caracterizado o enriquecimento injustificado.

Salvo na hipótese, desse cônjuge e dos filhos receberem alimentos do outro cônjuge e genitor(a), pois, nesse caso, configurará o uso exclusivo do imóvel como alimentos “in natura”, não cabendo a exigência do pagamento de um aluguel.
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Cheers,
James
expat.com Experts Team