Divorce and Family Law Attorneys – International Law – Argentina – Buenos Aires (English desk)
Divorce and Family Law Attorneys – International Law – Argentina – Buenos Aires
The end of a marriage is one of the most difficult experiences. And it is even more complicated, when there are international factors involved (i.e., marriage and/or agreements and/or assets in another country). Thus, it is important to seek the advice of specialized Argentine Divorce and Family Law Attorneys, fluent in your language and familiar with International Law issues, which are usually more complicated than a domestic case.
Some of the key aspects to consider when facing a divorce are:
Courts sitting in the place of the last marital domicile, or the current domicile of the defendant, or in case of a joint petition, the current domicile of any of the parties. If need be, the divorce will later be recorded in another country.
Children are the most complicated aspect to deal with. Argentina Law has two main principles regarding children in this matter: 1) the best interests of the child shall be a primary consideration, and this shall be assessed on a case by case basis; and 2) jurisdiction will depend on the child’s “habitual residence”. Regarding the residence, presumptions are usually applied to say that children up to a certain age must be with their mother.
Applicable law and jurisdiction.
The rules of international jurisdiction applicable to divorce apply in relation to marital property. The applicable law relating to marriage covenants and marital property is governed by the law of first marital residence, and concerns everything that, in matters of real property, is not prohibited by the law of marital property location. That is, the law of the jurisdiction of first marital residence cannot be contrary to the law of the jurisdiction in which the property is located.
Before marriage, the spouses select between two property regimes: community property and separate property. By default, community property applies. The selection can be modified within a year of the marriage.
Regime of community property (régimen ganancial o de comunidad de bienes).
Under the community property regime, all the assets earned during the marriage by any spouse are deemed owned by the two of them in undivided equal shares. This marital property is common, regardless of who holds title over the specific good (although it will be administered by the spouse holding title). The marital estate also comprises all assets under companies' or third parties' names that have been established using marital assets or by cause of the liquidation of marital assets.
As a general rule, creditors of a spouse cannot reach the assets acquired by the other spouse. Each spouse is liable vis-à-vis their creditors with its own assets and its marital property. For the cost of maintenance and repair of shared property, the spouse is also liable for the debts he/she did not incur the debt, but only with his or her shared property.
Section 464 of the Argentine Civil and Commercial Code (CCC) sets forth a list of personal -non marital- assets (bienes propios) including, among others, assets that each spouse owns at the moment marriage was solemnized, assets acquired after marriage either by inheritance, legacy or gift. This is the reason why it is so important to specify in the marital agreements which are the assets that each spouse contributes to marriage.
As a general rule, all assets that are not personal will be common. Section 465 of the CCC establishes a list of shared property, including, among others, assets acquired at random games, proceeds resulting from the profession of each spouse, and assets acquired after marriage whose right has vested prior to divorce.
Each spouse has free management and disposition of (a) his or her own separate property (the property owned by one spouse before the marriage, or the property received by a spouse as a gift and inheritance); and (b) assets acquired by each spouse for good and valuable consideration during the marriage. The exception to this rule is the consent of the other spouse for transferring or taking out mortgages on recorded shared property, shares of stock or businesses.
Upon dissolution of the marital partnership, marital estate is allocated to both spouses in equal shares. These allocations and their respective proportions (which may include compensation for the differences in the value of the property) can be agreed. Otherwise, the judge, upon petition, may order the public selling of the goods, and the 50:50 distribution of the funds obtained through that form of liquidation.
Separate property regime:
Under the separate property regime, each spouse owns their respective assets earned during marriage and each spouse can freely dispose of separate property acquired after marriage, with the exception of the transfer or encumbrance of the family dwelling. Also, creditors of a spouse cannot reach the assets acquired by the other spouse, except for debts incurred by one of the spouses to pay for ordinary household needs, or the maintenance and education of their children (Section 461). Only in these cases the spouses are jointly liable. The regime terminates upon dissolution of marriage or by modifying the regime agreed on between the spouses. Once marriage is dissolved, the undivided property, which could lead to conflict of interests, will be divided in accordance with the provisions regarding inheritances set forth in the CCC.
Provisions common to both regimes:
Notwithstanding the differences between the two regimes, there are several provisions in common, such as: the duty of contribution and support between spouses, household and common children, the need for spousal consent to dispose of the rights related to family housing, mandates between spouses to represent each other, and legal representation when one spouse is absent or unable to express their will.
Moreover, it should be noted that the termination of marriage under either the shared property or the separate property regime, will result from the dissolution of the marriage, or by modifying the regime agreed on between the spouses.
The Civil and Commercial Code (section 446) provides that Conventions may be created for the purpose of: (i) designation and appraisal of the goods that each of the future spouses bring to the marriage, (ii) admission of debts, (iii) donations made between each other and (iv) option chosen taking into account the regimes contemplated in the CCC.
Conventions must be instrumented by a notarial deed. Also, for the said conventions to be effective against third parties, the marriage certificate must include a note specifying the selected regime. In the event that the spouses decide to change the regime (not before a year of the last change), the amendment must also be made by a notarial deed (Section 449). In the event that there are creditors affected by this change, they will have one year to oppose, counting as from the time they became aware of the change.
Effects of the Divorce.
Either spouse or both together can request a divorce at any time, without the need to state a cause. The Court´s role in a divorce proceeding is limited to one of supervision to ensure that property and responsibilities are distributed with the spouses´ consent. However, if the parties fail to agree, upon petition, the court will decide on the unresolved effects of the divorce (either patrimonial or not).
Our Divorce and Family Law practice
We are one of the leading Divorce and Family Law Firms, and we are used to dealing with foreign clients’ needs. Our practice encompasses the following:
Our litigation team is skilled in complex financial and custody matters.
Although it is a last ratio, if there is room for avoiding it, we must always be ready for litigation. Trial court abilities may also help to achieve favorable settlements.
Settlements. Pretrial Mediation and court settlements.
The best way to deal with a family conflict is a negotiated settlement. A controversial divorce is exhausting and expensive. If there are minors involved the parties must deal with each other for many years.
That is why a settlement is always preferable. Besides, it helps al involved parties to move forward. We are focused in achieving a reasonable settlement to resolve issues involving children, property division, while dealing with a complex emotional background. We may count on a team of specially trained interdisciplinary professionals guide and support parties in a problem solving process.
Custody And Visitation
Children are the most precious product of a marriage. Thus, custody and visitation are two of the most exhausting issues to deal with, particularly when one of the parties pretends to move to another state with a child. There are instances, called “Hague Convention” cases, when a child is taken out of Argentina or brought into Argentina by a parent over the objection of the other parent. We are ready to deal with these difficult matters.
Property liquidation and Division
Dividing property can be complicated. Issues may arise, particularly in relation to the categorization as either marital or non-marital. Then, the assets must be appraised and then divided. Dividing property does not necessarily mean an equal division.
We are used to complex patrimonial matters and we are ready to to find, categorize, assess and achieve satisfactory results in divisions of property.
Alimony. Child Support
Alimony, also known as spousal support, consists of payments that one spouse makes to the other person after their divorce is final to maintain the same standard of living after the divorce. Considered separately, child support is payment to help raise young children. The custodial parent who is set to spend more time with the kids generally receives child support because they will spend more money on childcare.
The right to receive child support, as well as the eligibility, opportunity and scope thereof the child support agreement, if any, is governed by the law of marital residence. Alimony and child support payments are regulated by the law of the respondent's domicile. The choice benefits the claimant for alimony and child support by allowing a wide range of alternative courts for the beneficiary to resort to. Parental rights are governed by the law of the place where these rights are exercised. The legal principle of court effectiveness establishes, for example, that visitation rights must be filed before the court of the child's habitual residence to ensure quick and effective jurisdictional protection.
Child support is usually a monthly payment made to the parent with whom children under 18 primarily reside and is intended for their support and maintenance. Argentina law provides guidelines for determining usually a percentage of income that one parent should pay for child support to the parent with whom the child primarily resides. However, courts or parties—with court approval—may set child support above or below the guidelines considering the circumstances of the case.
Economic compensations to the weak party
Under certain circumstances, where one spouse is not self-supporting upon divorce, as a result of the sacrifices or distribution of responsibilities during marriage, while the other spouse may have had the chance to make economic progress, the weak party may claim for a compensation. The amount and duration of this vary depending on a number of factors legally contemplated, to be assessed by the court.
We have both prosecuted and defended many cases in which this was a key issue.
Divorce proceeding (and related matters) in Argentina
Requirements for the petition for Divorce:
Any spouse, or both jointly, can file for divorce.
No minimum duration of marriage or causal is required.
Upon notice to the defendant, if the petition is unilateral, divorce will be declared regardless of the willingness of the counterparty.
Effects of the divorce: together with the filing for divorce, a convention regulating the effects thereof must be filed, covering:
a) Personal care, alimony and children's communication regime
b) Distribution of marital assets
c) Attribution of the family home, and
d) Economic Compensation
Upon divorce, the spouses regain their nuptial fitness.
Updated Marriage Certificate
Birth certificates of the children
Titles of property and registrable property
Name, Address, photocopy ID of spouses.
Divorce is a judicial proceeding (unlike other countries, the only way to become divorced is through the court system, as opposed to an administrative out-of-court system).
Costs of the divorce and related issues:
The costs involved are:
1. Attorney fees: Depending on the jurisdiction and nature of the case and the work involved, and mainly (if applicable) depending on the value of the marital estate, attorneys in Argentina are awarded fees by the court (absent any agreement).
However, the parties may agree otherwise. As explained below, we recommend agreeing on this important matter in advance, according to the economic possibilities of the parties and means available. You can pay us at the beginning or during the process, or upon finalization thereof.
2. Expenses are not significant, if there are no assets involved. Otherwise, expenses range between 1 and 3% of court fee (the main expense, plus other minor expenses) if patrimonial matters are agreed. Failing settlement, expenses will be considerably higher.
THE INTERNATIONAL PERSPECTIVE OF OUR LEGAL FIRM
We specialize in providing legal assistance to international clients having business or personal matters in Argentina.
Our international perspective.
Alejandro Breit, along with most of the firm’s team, has broad international experience and perspective, having studied as much as 6 different languages and dealt with so many diverse cultures. This often proves to be a valuable benefit for clients who have previously experienced some language or cultural barriers when working with foreign attorneys or law-firms.
The firm is fully bilingual and able to communicate and prepare documents with equal ease in Spanish and English. Some professionals are fluent in other languages, including Portuguese, French, Russian and some of them also have working knowledge of German and Arabic.
For further information, please feel free to learn About the Law Firm. For your reference, we provide recommendations from satisfied clients, and expressions of the highest esteem of some of our colleagues (see Testimonials). Also, you will see our credientials (e.g. Chambers & Partners).
For any query, please contact us here (through most of the simplest communication means), and assistance will be provided right away. For immediate contact, our phone number is 54 9 11 6439 8433.
Feel free to contact us any time if you need. We will be happy to provide you with a free, no obligation, proposal within 24 hours.
Accessibility and prompt responses are important both for productivity (we are sure that communication has a great influence in getting better results) and to develop a solid relationship with our clients. Thus, communication with our clients is key to our way of working.
That is why we are always available and reachable through all channels of communication that our clients may prefer, including modern informal mobile apps.
Our clients are always kept apprised of any development concerning their matters.
Free confidential consultation.
We know that it can be daunting to choose a lawyer in Argentina for someone unfamiliar with our country.
Please feel free to contact us with any questions, or to discuss retaining our legal services.
We offer a free initial consultation on your legal matter, with full protection of attorney-client confidentiality.
Give us a call now, or just fill out the Quick Contact Form below, and we will get back to you shortly.
Our Service philosophy.
When we founded the law firm, we were determined to move away from some of the traditional models of how “big law firms” usually work. These law firms still rely on the outdated model based on ‘billable-hours’, which in our view directly discourages efficient or quick results, given its natural predilection for billing the maximum number of hours for every matter, which leads to having a reward even for creating problems.
These new service and value based methods and technologies have considerably increased efficiency and productivity and have also made things easier for clients.
We have confirmed over the years that this maximizes the outcome. As a result, our clients get more of want they expect from a law firm: effective result-oriented work; direct personal attention, with open and easy communication; and –to sum up– attainable concrete solutions.
Billing Policy. Flexibility.
Our billing policy is in perfect harmony with the service philosophy described above. As a result, we are proud to be able to provide a fair and competitive fee proposal.
Our policy is flexible, so as to adapt to the changing particular needs of each of our clients. Thus, we contemplate the following billing alternatives:
* Contingent fee: As the best example of a result-oriented approach, a success fee is an available alternative, either as an exclusive or combined policy. The percentage of the success fee can even be adjusted, depending on the magnitude of the results, thus totally aligning the Firm’s interests with those of the client.
* Monthly lump sum (abono). It is an amount estimated as a monthly average of the professional time spent on the client’s affairs. It is particularly suitable for businesses, allowing optimization of legal fees and foreseeability for budgetary purposes.
* A fixed fee. It is a total sum calculated for a particular work entrusted by the client. This amount can be payable in installments, depending on the duration of the services hired.
* Estimate or Maximum fee. Considering the magnitude of the entrusted work, fees can be calculated by stages.
* Hourly basis. We keep a detailed record of time spent on each matter (Time-sheet).
Our fees are invoiced, at the client’s choice, on a monthly or quarterly basis, or when the work is completed.
Also, depending on the circumstances of the particular case, we can discuss any other alternative that better fits our clients’ needs.
Fair and reasonable determination.
Our Law Firm determines the fees considering:
– The complexity of the matter;
– The time and resources dedicated;
– The seniority of the involved professionals;
– The entrusted responsibilities, in light of the amounts at stake and results;
– The special circumstances of each case, in relation to time constraints and way of implementation.
The expenses incurred in relation to our clients’ matters are reimbursable on a monthly basis, with detailed rendition of accounts.
Expenses are limited to those strictly necessary, and do not include any mark-up or gain of any nature.
Divorce & Family law
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