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which is the truth? why law offices have different interpretation? (separation of property)

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Arresto Menor
to the lawyers,

i realized that not all lawyers are the same in terms of interpretations of the law.

situation: a married couple in 2015 without prenuptial agreement likes to separate respective properties (absolute community)

interpretations of different law offices;

lawyer 1: affidavit of waiver of rights to the exclusive property
lawyer 2: voluntary separation of property judicial

what is the correct law on this?

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karl704


Reclusion Temporal
There might be exclusive properties which the spouses respectively own. Just because the property relations of the spouses is absolute community, doesnt mean all their properties are conjugal. So if they want to really divide equally, they can waive all exclusive properties then divide it into two thru a voluntary sepration of property.

But lawyers indeed may have different strategies in dealing with a legal problem. Law is not science.

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Arresto Menor
thanks for the input but maybe if you can help me clear some confusions with my specific situation below;

1. the law says that when husband and wife are married, properties (specific: acquired through own funds during single and title named to their single status names) are considered part of the absolute community regime (no prenuptial upon marriage). is this true?

2. i don't intend to divide the properties, but rather separate the titled properties that are named to husband and wife that they brought in the marriage. my specific question is; does an affidavit of waiver of rights applicable on this scenario? because my interpretation is that there is only one way to separate these specific properties through the "voluntary judicial separation".

3. how about for properties that are ongoing amortization that are also brought inside the marriage? and the payment of the amortization is exclusively done by the husband who is the one working...how can the husband separate this type of property upon completion of the amortization?

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Jadis

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Reclusion Perpetua
1. YES. For marriages after August 3, 1988.

2. NO. Plus, spouses cannot make grants of gratuitous advantage to each other during the marriage except for moderate gifts during times of family rejoicing.

3. TECHNICALLY, the amortizations are being paid out of COMMUNITY PROPERTY. The husband's salary is not HIS alone, it's community property.

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Arresto Menor
hi JAdis...thanks for the clear and concise answers!

going back to #2, i re-emphasized it because a certain paralegal consultant is insisting that the waiver of rights can be used to separate the properties and even claiming that she had previous similar clients.

what will happen if for example the waiver of rights is signed by the spouses, but later when the couple separates, will the law void this waiver of rights?

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Jadis

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Reclusion Perpetua
Just because you can do that does not mean someone will not complain and have that invalidated later on.

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