A divorce does not automatically terminate all obligations between ex-spouses. When the divorce decree does not settle the liquidation of the matrimonial property regime, a separate procedure is required: a summons for liquidation and partition. This legal procedure definitively distributes joint assets and closes accounts between former spouses. You need to understand this civil procedure to support your customers effectively in this post-divorce phase and optimize your customer relations.

What is a writ of execution for partition after divorce?

A writ of execution is a legal procedure distinct from the divorce itself. It is used when the former spouses are unable to reach an amicable agreement on the distribution of their joint property after the divorce has been granted. Unlike divorce proceedings, which aim to dissolve the marriage, the sole purpose of this procedure is to liquidate the matrimonial property regime.

This writ of summons is used to apply to the appropriate court for an order for the liquidation and division of property. It mainly applies to couples married under a community regime, whether a reduced community of acquests or a universal community. The court then appoints a liquidating notary to draw up a liquidation statement for the matrimonial property regime.

When should a writ of execution be filed?

You can initiate this procedure as soon as the divorce decree becomes final. Under article 815 of the French Civil Code, there is no statute of limitations on the action for partition itself: there is no time limit on your right to request the liquidation of the matrimonial property regime. Please note, however, that certain claims between ex-spouses are time-barred after five years, in accordance with ordinary statute of limitations. It is therefore strongly recommended that you act quickly to avoid the prescription of your ancillary claims and the complications associated with maintaining indivision.

A number of situations justify the use of this summons. The main reason is persistent disagreement between the ex-spouses over the value or distribution of property. The failure of one of the ex-spouses to cooperate in the amicable procedure also makes a writ of summons necessary. Finally, the complexity of the joint assets may require judicial intervention to ensure fair liquidation. Certain urgent situations call for swift action: the risk of dilapidation of assets by the ex-spouse, an urgent need for liquidity, or the need to unblock a paralyzed asset situation.

The absence of liquidation of the matrimonial property regime maintains post-communal indivision, with problematic practical consequences. This situation prevents each ex-spouse from freely disposing of his or her share of the joint property, and blocks any important decision requiring the unanimous agreement of the undivided co-owners. You cannot sell an undivided asset on your own, which can lead to long-lasting conflicts and a real legal risk in the event of persistent disagreement over the management of the joint assets.

The liquidation and partition writ procedure

The procedure, which requires the assistance of a lawyer in accordance with article 1145 of the French Code of Civil Procedure, begins with the drafting of a writ of summons in compliance with the requirements of the Code of Civil Procedure. You must comply with the compulsory requirements and attach the necessary supporting documents. The summons is then served on the other party by a bailiff.

The court with territorial jurisdiction is that of the family’s place of residence, or failing that, of the last marital home, in accordance with the rules of territorial jurisdiction set out in articles 42 et seq. of the French Code of Civil Procedure. This adversarial and contentious procedure follows the classic circuit of civil procedures and documents: orientation hearing, mise en état, then pleading hearing.

During the proceedings, the court may order provisional measures to preserve the rights of each party, such as conservatory measures on certain community assets or the fixing of a contribution to the expenses of the marriage until the final liquidation.

Key stages in the procedure

Once the summons has been served, the defendant has a period of time in which to set up a lawyer and present his defence. The pre-trial judge then organizes the exchange of documents and pleadings between the parties. This phase allows each party to put forward its arguments and produce the necessary supporting documents. Once the investigation is complete and the case has been declared ready for trial, it is referred back to the court for the pleading hearing.

The court issues a judgment ordering the liquidation and division of the matrimonial property regime. The court generally appoints a liquidating notary to draw up the liquidation statement and carry out the partition operations. This notary draws up a draft liquidation statement and submits it to the parties for agreement. If the parties persist in their disagreement on certain points, the notary draws up a procès-verbal de difficultés and refers the matter to the family affairs judge, who settles the disputed points by order.

The contents of a writ of execution for partition

To be admissible, the writ of summons must contain a number of compulsory details. You must precisely identify the parties, mention the divorce decree with its references, and clearly set out the object of the claim. Indication of the competent court and the date of the hearing are also essential.

The demands formulated in the summons must be precise. Generally speaking, you are asking for an order for the liquidation and partition of the matrimonial property regime, the appointment of a liquidating notary and, if necessary, protective measures for certain assets. You can also ask for a provision for liquidation costs, the amount of which can be estimated using appropriate professional tools.

Supporting documents to enclose

You need to enclose several categories of documents to make up a complete file. Civil status documents are the essential foundation: the final divorce decree and the marriage contract, if applicable. Article 1364 of the French Civil Code also requires you to draw up a detailed inventory of joint assets, a central document in any liquidation.

For real estate, enclose title deeds, deeds of purchase, latest property tax notices and any recent appraisals. For valuable personal property (vehicles, furniture, works of art), purchase invoices and appraisal certificates are recommended. Financial accounts require bank statements for recent years, proof of savings and investments.

Don’t forget documents relating to joint debts: loan agreements, repayment schedules and debt statements. If you are unable to produce certain documents, a sworn statement explaining the circumstances may be accepted by the court.

A complete file as soon as the summons is issued significantly speeds up proceedings and limits subsequent requests for documents, which lengthen delays. The French Code of Civil Procedure provides for sanctions in the event of late or incomplete communication of documents.

Time limits and duration of the procedure

The period between service of the summons and the hearing is at least two months in ordinary cases, in accordance with article 755 of the Code of Civil Procedure. This period may be reduced in summary proceedings or in cases of justified urgency, notably when protective measures are required to preserve certain assets of the joint estate. Conversely, the court’s workload may lead to an extension of the initial deadline.

The total duration of the procedure can be broken down into two distinct phases. The judicial phase, which extends from the writ of summons to the judgment ordering the liquidation, generally lasts 12 to 18 months for a simple case. Then there is the notarial phase, required to draw up the liquidation statement and the actual division of assets, which takes a further 6 to 12 months. A complex contentious case with multiple disagreements can therefore take a total of 3 to 5 years. The cooperation of the parties and the complexity of the assets involved have a considerable influence on these procedural timescales.

The number of hearings, the availability of the court-appointed liquidating notary and any procedural incidents are other determining factors. In particular, the notary’s workload can delay the drawing up of the liquidation statement. Good preparation of the file, effective communication with your client, and the possibility of requesting emergency measures to speed up certain critical aspects can optimize these delays.

Optimize the management of your shared liquidation files

Managing a partition liquidation file requires rigorous organization. You need to keep track of procedural deadlines, exchanges with the liquidating notary and communication with your client. The use ofautomatic data entry tools allows you to gain in efficiency and avoid missing any important deadlines.

The right billing software makes it easy to centralize documents, track procedural steps and invoice your services accurately. This organization allows you to devote more time to legal advice and strategy, while ensuring optimal management of your post-divorce settlement files.

Legal representation: a legal obligation

Representation by a lawyer is not an option, but a legal obligation, in the context of a liquidation and partition writ. Indeed, article 1145 of the French Code of Civil Procedure makes representation before the court mandatory for this type of procedure. Each party must appoint his or her own lawyer, even where there is prior agreement on certain points of the division. This requirement is designed to ensure a balanced defense of each party’s interests.

The lawyer plays a decisive role at every stage of the procedure:
– Drafting the summons in compliance with legal requirements
– Representation at the various hearings
– Negotiation with the court-appointed liquidating notary
– Strategic advice on the claims to be made

This obligation to be represented by a lawyer is an essential procedural safeguard. It ensures that each ex-spouse benefits from qualified legal support in the face of the complex procedural rules governing the liquidation of the division. For people of limited means, it should be remembered that legal aid can be applied for in accordance with the applicable means test, enabling access to this procedure regardless of the parties’ financial situation.

The costs of the partition liquidation procedure

The post-divorce liquidation and division procedure generates several types of costs that should be anticipated. These costs can represent a significant financial burden, depending on the size and complexity of the assets to be divided.

The main expense items break down as follows:

• Lawyer’s fees: these vary considerably depending on the complexity of the case. Your legal advisor may propose billing on the basis of time spent (hourly rate), or on a lump-sum basis. For a standard case, expect to pay between €1,500 and €3,000, but this amount can be much higher in the case of large assets or multiple disputes.
• The liquidating notary’s fees: set by decree, they follow a scale proportional to the shared assets. The notary’s fees are calculated on the basis of the value of the assets inventoried, with a decreasing rate according to the value of the assets.
• Legal costs: these include the right of partition, set at 2.5% of the net assets shared (article 746 of the CGI). This fee may be reduced in certain specific situations.

As a general rule, these costs are divided equally between the former spouses, unless the judge decides otherwise, taking into account the disparity between the economic situations or procedural behavior of the parties.
As an example, for a joint estate of €300,000, the total costs of the procedure can easily reach €10,000 to €15,000.

It is important to note that the judge may order the payment of an advance on liquidation costs, particularly when one ex-spouse has significantly greater financial resources than the other. This measure prevents the proceedings from being blocked for financial reasons.

Practical tip: Before starting a liquidation-division procedure, draw up a provisional budget including all these costs. This will enable you to assess the cost/benefit ratio of the procedure, particularly when the assets to be divided are of modest value.