Division of Common Property after Divorce: Steps, Criteria and Strategies for Negotiation and Defence

The Romanian Civil Code regulates the regime of the legal community of property and the division of common assets in articles 339–359 and 669–686, while case law has developed nuanced criteria on how to determine each spouse’s contribution and how to value assets and debts at the time of division. For former spouses, understanding these rules is not just a theoretical exercise; it is a concrete tool for protecting their financial interests.

This article explains, in accessible language, what counts as common property and what counts as separate property, how to determine the pool of assets to be divided, what the steps of voluntary and judicial partition are, how the assets are valued, how the shares are determined, and what negotiation and litigation strategies are worth considering.

1. Legal framework: legal community and division after divorce

The basic rule in Romanian law is that, in the absence of a matrimonial agreement, spouses are subject to the legal community of property regime. Article 339 of the Civil Code provides that assets acquired during the legal community regime by either spouse are, from the date of acquisition, common assets held in undivided co-ownership by the spouses. This provision can be consulted, in consolidated form, on portals such as codulcivil.ro and in doctrinal commentaries on the legal community regime on EuroAvocatura.ro.

In parallel, Article 340 of the Civil Code lists the separate property of each spouse (inheritances, gifts, personal belongings, compensation, assets that replace separate assets and so on), which do not fall into the community and therefore are not divided upon partition. A practical summary of the distinction between common and separate assets is available, for example, in the article “Which assets are separate and which are common between spouses?”.

Partition is regulated, in general terms, in Articles 669–686 of the Civil Code as a way of ending co-ownership, regardless of its source (matrimonial community, inheritance, joint purchase, etc.). The action for partition is, in principle, not subject to prescription, which means that former spouses can request the division of common assets at any time after divorce if they have not already done so during or immediately after the divorce. This rule is also explained in accessible materials such as “Partition in the New Civil Code”.

In short, divorce ends the marriage but not the co-ownership. Co-ownership can continue for years until one of the former spouses requests the liquidation of the community and the division of the assets.

2. Common assets and separate assets: what actually goes into the partition

2.1. What counts as common assets

According to Article 339 of the Civil Code, common assets are, as a rule, all assets (movable and immovable) acquired by either spouse between the date of marriage and the date the matrimonial regime ends (usually the date when the divorce claim is filed or the date set by the court/notary), for consideration, unless the law or an agreement provides otherwise. Detailed explanations can be found in analyses of the legal community regime on EuroAvocatura.

Examples of assets which, in practice, are usually treated as common:

• the apartment purchased during the marriage, regardless of which spouse is listed as owner in the land register, where the price was paid from the spouses’ income or by a joint loan;
• the car purchased during the marriage;
• furniture, appliances and valuable items bought during the marriage;
• savings in bank accounts built up from common income;
• business shares or stocks acquired during the marriage, in certain conditions.

Article 343 of the Civil Code establishes an important rule: the status of an asset as common does not have to be proven. There is a presumption that assets acquired during the legal community are common; it is the person alleging that an asset is separate who must prove this, as explained for example in the article by Avocat Pascui.

2.2. What counts as separate assets

Article 340 of the Civil Code lists, in a relatively exhaustive way, the separate assets of each spouse. Among these are:

• assets acquired by one spouse through inheritance, legacy or gift, if the person making the disposition did not expressly provide that the assets are to be common;
• assets for personal use (clothing, personal items, etc.);
• assets used exclusively in the professional activity of one spouse (if they do not form part of a joint business);
• insurance indemnities and compensation for material or moral damages suffered by one spouse;
• assets acquired as replacements for separate assets or in exchange for such assets (subrogation);
• fruits of separate assets (for example rent from an apartment owned before marriage).

These assets do not fall into the community and are not divided in the partition, with one important nuance: if a separate asset has been used to finance a common asset (for example, one spouse’s inheritance is used as a down payment for a jointly owned apartment), this is relevant when determining that spouse’s share and may justify a larger share in that spouse’s favour. Court practice illustrates such situations, for example in cases dealing with loans or sums from parents or separate funds invested in the family home, as analysed in decisions discussed on avocatoriana.ro.

2.3. Frequent “grey areas”

In practice, many disputes arise from the grey area between common and separate property:

• a home purchased before marriage but partially paid for through instalments during the marriage – usually, the building or apartment remains separate property, but the non-owning spouse may claim a receivable or a share in the increased value generated by payments made from common funds;
• major investments in a separate asset of one spouse (renovations, extensions, new buildings) – the other spouse may request compensation for the increased value;
• businesses and shares – the treatment depends on whether common funds were used, whether the non-partner spouse contributed to the business, and other factors.

This shows that defining the divisible pool (the list of common assets) is the first critical step in any partition, whether negotiated or litigated.

3. When and how can partition be requested after divorce?

Under Article 669 of the Civil Code, the action for partition is not subject to prescription, meaning it can be brought at any time, save for specific situations where partition is suspended by law, legal act or court decision. Accessible interpretations of these rules can be found, for example, in legal information articles published on dreptclar.ro or sfat-avocat.ro.

For former spouses, partition may occur at different times:

• during the divorce proceedings, if requested and if the court hears the property claims together with the divorce;
• immediately after the divorce, through voluntary partition before a notary, if there is agreement;
• years after the divorce, by voluntary or judicial partition, if the assets remain in co-ownership.

Former spouses can choose between:

• voluntary (amicable) partition – by agreement, formalised by a notarial deed, based on the substantive law in the Civil Code;
• judicial partition – through a lawsuit, when the spouses cannot agree or when there are disputes as to the divisible pool, valuation of assets or contribution shares.

4. Voluntary partition before a notary: steps and advantages

Voluntary partition is generally quicker and less emotionally costly than litigation. The Civil Code allows co-ownership to be terminated by a partition agreement, and notaries are competent to authenticate such deeds, as discussed for example in the analysis “The New Civil Code: Partition” published on avocati-romania.com.

4.1. Preparation for amicable partition

In practice, the typical steps are:

• identifying all assets acquired during the marriage (immovable property, movable assets, bank accounts, investments);
• gathering documents: title deeds, land register extracts, loan agreements, purchase invoices, bank statements, etc.;
• discussions between former spouses to find an acceptable solution: who keeps the home, who keeps the car, possible compensatory payments (equalisation payments) between them;
• consulting a lawyer to check that the solution is balanced and to understand the risks (especially if there are loans or high-value assets).

4.2. The partition deed before the notary

If agreement is reached, the former spouses attend before a notary, where:

• the divisible pool (common assets) is formally identified, as well as, where relevant, the common debts;
• the shares in each asset or in the global value are specified, as well as any equalisation payments to be made;
• deadlines and methods of payment of any sums owed between former spouses are set;
• if appropriate, the bank’s consent or conditions for maintaining the mortgage in a partition of a mortgaged home purchased by credit are included.

The notary checks the applicable matrimonial regime (typically the legal community regime, if there is no matrimonial agreement) and the legality of the transaction. The authenticated partition agreement may constitute an enforceable title for payment obligations (equalisation payments) and is opposable to third parties once formalities such as registration in the land register are completed.

The advantages of voluntary partition are clear: greater control over the outcome, avoidance of court costs, higher confidentiality, shorter timeframes. The downside is that it presupposes a real agreement – and in many divorces, such agreement is missing.

5. Judicial partition: procedure and stages

When agreement is not possible, partition is carried out in court. According to information materials published by courts and practitioners (for example, “The New Civil Code Explained – Partition”), the procedure follows the rules of the Civil Procedure Code with the particularities given by Articles 669–686 of the Civil Code.

5.1. Statement of claim

One of the former spouses (or both, as plaintiff and defendant in counterclaim) files a claim for partition before the district court (judecătorie) with jurisdiction over the location of the immovable property or, as the case may be, over the defendant’s domicile, in accordance with the rules of territorial competence. The claim should normally contain:

• identification of the former spouses and their status as co-owners;
• a description of the assets claimed to be common, with title deeds attached;
• any assets claimed to be separate that should be excluded from the divisible pool;
• a proposed division (for example, awarding the apartment to one spouse in exchange for an equalisation payment, division of the bank accounts, etc.);
• any ancillary claims (compensation for exclusive use, reimbursement of investments, etc.).

The court fee is typically calculated on the value of the divisible pool, in accordance with Law no. 134/2010 – Civil Procedure Code and Government Emergency Ordinance no. 80/2013 on court fees, so correctly estimating the value of the assets is important.

5.2. Divisible pool, evidence and expert reports

The court first determines the pool of common assets – the list of assets that are to be divided. If there are disputes, evidence is taken: documents, interrogatories, witness statements, and, where necessary, expert reports (real estate valuations, car valuations, accounting reports etc.).

Once the divisible pool has been established, the court will determine the contribution shares of the former spouses and decide on the concrete division: awarding assets to one or the other, ordering sale and division of the proceeds, and adjusting by equalisation payments. Detailed discussions of how courts carry out these operations can be found in case law commentaries on portals such as jurisprudenta.com or LegeAZ.

5.3. The partition judgment

The judgment ordering partition generally has a constitutive effect: it transforms co-ownership into exclusive ownership of the assets awarded to each former spouse; where equalisation payments are ordered, these become clear and enforceable debts that may be collected through enforcement. Analyses on this topic can be found, for example, in the article “Partition: from co-ownership to exclusive ownership”.

6. Valuation of assets and debts in partition

A crucial practical question is “at what value are assets taken into account?” Generally, courts consider the market value at the date of partition (the date of the judgment), not the historic purchase price. This principle is explicitly applied in many partition cases, including disputes over apartments purchased by mortgage, where the current market value of the property is updated and the spouses’ contributions are related to the loan instalments paid during the marriage, as shown, for example, in a case commented on jurisprudenta.com.

For assets purchased by mortgage loan, it is important to distinguish between:

• the value of the immovable property (asset), determined by a property valuer; and
• the outstanding loan balance (liability) at the time of partition.

Practical articles such as “Partition of mortgage loans” or “Law lesson. Partition of mortgage loans” in Jurnalul de Argeș point out that, in most cases, former spouses must divide both the common asset (the dwelling) and the common debt (the loan). The bank must be consulted: under National Bank of Romania rules, a loan cannot be transferred to a single debtor without the bank’s consent, and the mortgage remains in place until full repayment, regardless of the divorce.

In practice, typical solutions include:

• one former spouse keeps the home and takes over the loan (with the bank’s consent), while the other receives an equalisation payment or keeps other assets (such as the car);
• the home is sold, the loan is repaid from the price, and the balance is divided between the former spouses according to their shares;
• co-ownership and joint indebtedness are maintained, with both former spouses continuing to repay the loan, postponing partition to a later date.

Each option has financial and risk implications (credit risk, exposure to enforcement, capacity to take out new loans), which is why it is important to seek both legal and financial advice.

7. Determining the shares: presumption of equal contribution and unequal shares

7.1. The rule in the Civil Code

Article 357 paragraph (2) of the Civil Code provides that, in the liquidation of the community, the share of each spouse is determined based on that spouse’s contribution to both the acquisition of common assets and the fulfilment of common obligations. Until proven otherwise, it is presumed that spouses have contributed equally. The text is explained, among others, in the annotated analysis on codulcivil.ro and in the commentary on LegeAZ.

The practical consequences are:

• if neither former spouse requests a different share and no evidence is submitted, the court will start from 50% – 50% at the global level for the entire mass of common assets;
• the spouse claiming a greater or lesser share than 1/2 bears the burden of proving this difference (higher income, separate capital contribution, exceptional involvement in the family business, etc.).

Case law has often underlined that the simple fact that an asset is common does not automatically mean that it will be divided 50–50 if evidence shows a clearly different contribution, as shown, for example, in the case “Partition of common assets. Exclusive contribution of one spouse” published on LegeAZ.

7.2. What counts as contribution

A spouse’s contribution is not limited to salary income. Both doctrine and case law consistently emphasise that the following must be considered together:

• income from work of each spouse (salaries, income from independent activities, etc.);
• work performed in the household and childcare, even if it does not generate direct income;
• contribution of separate assets or sums received from third parties (parents, relatives) used to acquire common assets;
• involvement in maintaining and increasing the value of assets (running a family business, carrying out renovations, building annexes, etc.).

Article 326 of the Civil Code explicitly provides that the work of any spouse in the household and for the upbringing of children is a contribution to marital expenses. Commentaries on portals such as notari.pro and legislatie.info highlight that this contribution must also be considered when assessing the acquisition of common assets.

Court decisions have repeatedly confirmed this principle, setting equal contributions even where one spouse had no salary but took care of the home and children. One example is the decision discussed in the article “Housewife’s domestic work is valued in money at the time of partition after divorce” published on academiademediere.ro, as well as other decisions analysed on Legal-Land.

7.3. When unequal shares are accepted

Unequal shares are possible but not the rule. Courts grant such requests when evidence shows a clear difference in contribution, for example:

• one spouse has demonstrably brought significant separate funds (inheritances, compensation, proceeds from sale of separate assets) used for common assets;
• one spouse has borne almost all the costs of a business or substantial investments, while the other played a modest role;
• there are clear and consistent differences in income over time, combined with a lack of involvement of the other spouse both financially and in household/childcare duties.

Case studies on unequal shares can be found, for example, in the articles “Assessing spouses’ contribution shares to the acquisition of common assets” (cases from Constanța District Court, Călărași Tribunal, etc.) published on avocat-alina-szilaghi.ro and in the study in Buletinul Notarilor Publici.

8. Negotiation strategies for former spouses

Partition does not necessarily have to be a battlefield. Even after a difficult divorce, former spouses may share an interest in avoiding a long and costly lawsuit. Some useful strategies include:

8.1. Separating the emotional level from the financial one

It is important to separate the personal frustrations associated with the divorce from a cold financial analysis of the assets. The Civil Code does not “punish” the spouse who was at fault for the breakdown of the marriage by awarding a smaller share in the partition; the criterion is patrimonial contribution, not fault for divorce. In practice, arguments like “you behaved badly, you deserve less” have no legal relevance.

8.2. Full and transparent inventory of assets

A joint, complete and honest inventory of assets and debts is the foundation of any negotiation. Hiding assets or moving them fictitiously can lead to additional disputes (actions to establish ownership, actions for nullity, even criminal complaints) and rarely remains undiscovered. Practical guides such as those published on avocatiacob.ro rightly stress the importance of transparency.

8.3. Thinking in terms of a “package”

Not every asset must be split mathematically in half. Often, a balanced solution involves:

• one spouse keeping the home and taking over the loan, while paying an equalisation sum or ceding the car and other valuable assets to the other spouse;
• one spouse keeping the business, with the other receiving financial or other asset-based compensation;
• dividing accounts and savings in a manner that compensates for differences in assets allocated in kind.

What matters is that, at the end, the global value each former spouse receives corresponds to the agreed contribution share (usually 50%-50% if nothing else is proven).

8.4. Using mediation

Mediation is a useful option especially where direct communication is difficult but there is still some willingness to compromise. A mediator experienced in family disputes can help former spouses identify their real interests (children’s housing stability, financial security, preserving the business, etc.) and avoid deadlocks caused by pride. Specialised sites such as Academia de Mediere illustrate how mediation can defuse conflicts that would otherwise end in court.

9. Defence strategies in court

9.1. If you argue for an equal share

If your former spouse claims a higher share (for example, 70%–30%) and you consider that there was equal contribution, it is essential to document:

• income earned during the marriage (employment contracts, pay slips, tax statements, etc.);
• household work and childcare (witnesses, documents on parental leave, certificates, correspondence);
• your participation in economic decisions of the family (signed contracts, discussions with the bank, involvement in purchases, etc.).

Article 326 of the Civil Code and the case law on the economic value of domestic work are key arguments to prevent the court from reducing the contribution of a homemaker or lower-earning spouse, as confirmed in multiple decisions cited on Legal-Land and Academia de Mediere.

9.2. If you argue for a higher share

If you believe you had a significantly higher contribution, you bear the burden of proof and must demonstrate, with documents and witnesses, that:

• you had substantially higher income and covered most acquisition and loan costs;
• you used separate funds (inheritances, compensation, sale of a separate asset) for down payments or investments, proven by notarial deeds, bank payment orders, statements, etc.;
• your former spouse had less involvement both financially and in the household, and the evidence supports this conclusion.

Courts are reluctant to radically alter the shares (e.g. 90%–10%) without solid evidence, but they do accept reasonable adjustments where a different contribution is clearly established, as illustrated by case law summarised in articles on avocat-alina-szilaghi.ro and in Buletinul Notarilor Publici.

9.3. Pay attention to common debts and exclusive use

Beyond dividing assets, the court may also consider:

• common debts (loans, borrowings taken out in the interest of the family) – Article 351 of the Civil Code deals with such obligations, and doctrine shows that, in principle, they are divided proportionally to the contribution share, even if formally the loan is in the name of one spouse;
• exclusive use of the home or other assets after separation – the other spouse may claim compensation for use (equivalent rent) or seek adjustment through the partition.

Partition cases published on portals such as jurisprudenta.com or avocatstoean.ro show how courts handle these issues. Analysing your specific situation together with a lawyer can make the difference between a fair outcome and a profoundly unjust one.

10. Conclusions

The division of common property after divorce is not just a mechanical “split in half”; it is a complex legal operation governed by clear rules, applied with nuance depending on the former spouses’ actual contributions and the particular circumstances of each case. The Civil Code starts from the idea of equal contribution but allows unequal shares to be established, taking into account not only financial input but also the often invisible work performed in the home and for the children.

Former spouses have two main options: voluntary partition before a notary, when discussion and compromise are still possible, and judicial partition when the conflict is too sharp for amicable settlement. In both scenarios, serious preparation (inventory of assets and debts, gathering evidence, consulting a professional) and a realistic strategy (accepting reasonable shares, considering the children’s interests, evaluating financial risks) are essential to achieve a fair outcome.

Ultimately, partition is not only about “who wins more” but about closing, in a legally and financially correct manner, an important chapter in life so that each former spouse can move on without endless litigation and without major financial imbalance.

FAQ – Frequently Asked Questions about Division of Common Property after Divorce