Settlement of community property after a divorce

Court settlement

Most couples still marry in community of property. In case of a divorce, the parties would need to settle the community property. Both parties are lawfully entitled to receive half of the property. A problem arises when an agreement cannot be reached or in case of a reluctant party. The intervention by the Court in First Instance of Aruba may be requested to determine a settlement and force the unwilling party to cooperate therewith or be replaced completely.

The benefits of a court settlement

a. A time frame is established for the settlement proceeding

An non-cooperative party could frustrate and delay a property settlement indefinitely. A court settlement establishes a time frame and a time limit to the litigation and guarantees a conclusion thereof within a reasonable period of time.

b. The reluctant party is forced to actively participate in the settlement proceeding

The unwilling party is compelled to defend his or her stance on the settlement requested by the other party or risk confirmation thereof by the Court.

c. The Court ultimately determines the division

The Court would order a hearing to gather the opinions and views of both parties and make a reconciliation attempt before passing judgment on the settlement.

d. Settlement of outstanding claims and buyout

A court settlement is particularly useful for the collection of outstanding claims from an ex-spouse, for instance for unpaid child support or outstanding rent (verbruiksvergoeding) among others. The marital dwelling would have to be sold unless there is a buyout which is discussed hereinafter. The amount of the outstanding claim(s) is deducted from the share of the one party in the sale proceeds and granted to the other party.

A party could furthermore buy the other party out of community real estate, provided he or she disposes over sufficient funds to do so, by requesting the Court to grant sole ownership to him (or her) under compensation of half of the property's (market) value to the other party.

Out-of-court settlement, power of attorney

If both parties wish to work together toward an amicable settlement, a settlement agreement (echtscheidingsconvenant) may be concluded which is subsequently attached to the Court's decree of divorce, therewith becoming an integral part thereof and enforceable by law. The settlement agreement should include a power of attorney that grants to parties the right to act as each other's attorney-in-fact, should a party become non-cooperative after having signed the agreement.