Divorced but not liquidated: the post-ganancial community

It is Chapter VI of Title V of Book Two of the Civil Code of 2020, Articles 547 to 554. It governs the limbo: the period between the dissolution of the sociedad de gananciales — by divorce, by death, by judgment — and the day the property is actually divided. In Puerto Rico that limbo often lasts longer than the marriage that created it.

It applies to spouses or ex-spouses whose sociedad de gananciales has been dissolved and whose common patrimony remains undivided, unliquidated.

• That the sociedad de gananciales be dissolved and the common patrimony remain undivided.Verified against the official source
• To rebut the presumption of equality: evidence that the civil and industrial fruits, the products and the increase in value received are due to the unequal or exclusive effort of one or to the investment of privative funds.Verified against the official source
• To demand the credit: that one of the co-owners acquired property for themselves at the cost of common property, fruits or products.Verified against the official source
• For the sale of a share to a third party to extinguish the regime: that the remaining co-owner appear at the agreement to consent to the division and accept that the sale constitutes the final liquidation.Verified against the official source

• Evidence of the common patrimony existing at the moment of the society’s dissolution, which is what the equal share is presumed over.

1. 1

   Step 1: What is born when the society dissolves

   Once the sociedad de gananciales is dissolved, there arises between the spouses or ex-spouses, as the case may be, a community of property and rights over the whole of the elements of the common patrimony that remain undivided. It is neither the continued sociedad de gananciales nor yet the division: it is a figure of its own, with its own rules, lasting until the final liquidation.

2. 2

   Step 2: Half and half, until proven otherwise

   It is presumed that while the ganancial regime is not liquidated, each spouse or ex-spouse has and keeps the same equal share over the undivided patrimony existing at the moment of the society’s dissolution, as well as over the fruits and products and the increase or decrease in value it receives. If the house rose in price in those years, that gain belongs to both by default; if it fell, so does the loss.

3. 3

   Step 3: How that equality is rebutted

   The presumption yields to evidence that the civil and industrial fruits, the products and the increase in value received are due to the unequal or exclusive effort of one of them, or to the investment of privative funds. And it is also rebuttable as to every obligation, decrease in value or deterioration caused by the individual, wilful or negligent action of one of the spouses or ex-spouses over the common patrimony. It works both ways: whoever put in more may claim it, and whoever caused harm may have to answer for it.

4. 4

   Step 4: You need not make it produce, but if you do, you answer

   The spouse or ex-spouse co-owner is not obliged to develop the common patrimony so that it produces fruits or products beyond what it could naturally or necessarily generate. However, if they choose to do so exclusively or without the other co-owner’s concurrence or consent, they answer for the diminution it suffers during the management. That liability is charged to their share, unless they offer another suitable means of compensation.

5. 5

   Step 5: If you buy something with the common money

   If one of the co-owners acquires other property for themselves at the cost of common property, fruits or products, the new acquisition will belong to them exclusively, but the other co-owner may demand a credit in favour of the community for the updated amount of the common funds used. That credit becomes effective at the moment of the liquidation of the regime giving rise to the community. Two details matter: what is bought belongs to the buyer, and the credit is for the updated amount, not the nominal figure of the time.

6. 6

   Step 6: When it ends, and why selling is not enough

   The post-ganancial community is extinguished when the dissolved sociedad de gananciales that gave rise to it is finally liquidated. And here is a frequent trap: the sale of the entire share of either spouse or ex-spouse to a third party does not extinguish the society, unless the one who remains as co-owner appears at the agreement for the purpose of consenting to the division and accepting that the sale constitutes the final liquidation of that matrimonial regime. Selling your half does not close the matter by itself.

7. 7

   Step 7: The tanteo, and which rules fill the gaps

   The spouses or ex-spouses have the same right of tanteo over the common property as is recognized to co-heirs. The Code puts it that way, borrowing the right without restating its terms, and so we publish neither periods nor procedure for that tanteo here: this chapter does not state them. For the rest: the administration and disposal of the post-ganancial community’s property are governed by the Code’s articles regulating the community of property, and the division and liquidation are governed supplementarily by the provisions on the liquidation and partition of an inheritance.

Disputes over the post-ganancial community and its liquidation are heard in the Court of First Instance. The credit for the use of common funds becomes effective on liquidating the regime.

• Believing that after the divorce the property is already divided: the post-ganancial community lasts until the final liquidation.
• Giving up the increase in value of the years after the divorce, when it is presumed equal.
• Developing a common asset without the other’s consent and not reckoning on answering for the diminution.
• Claiming the credit for common funds at nominal value instead of the updated amount.
• Thinking that selling one’s own share to a third party liquidates the regime without the other co-owner appearing.

These are the government pages this guide is based on.

• Poder Judicial de Puerto Rico

  Poder Judicial

  bvirtualogp.pr.gov