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Tuesday, Nov. 13, 2012

LIFELINES

Splitting up: 50-50 is default when dividing assets at divorce


By MIKIKO OTANI

'Kathy' writes: "My husband and I have a property in Japan, which is under his name. Unfortunately we are filing a divorce now. We have a 5-year-old son, who I am fighting for the custody of. My husband doesn't have a job, and he has been cheating on me for a while, and I have been supporting my child for a long time now.

"My question is, I have the copy of the deed of the property, but can I make a copy of it, as proof that he does have assets under his name, so I can file for alimony for my child? Is copying of his property deed a crime? Your answer will be a big help to me."

First of all, making a copy of the deed is not a crime. However, to prove that he has assets under his name, an official copy of registry of a property is generally required as evidence. This document is called a tōkibo-tōhon in Japanese and can be obtained for a small fee by anybody for any property from the Legal Affairs Bureau (hōmukyoku) where the property is located.

You write that you are intending to claim that your husband should pay child support because he owns a property despite not having an income. That is one possible argument. As a matter of fact, a parent who has no income may well be ordered by the court to pay child support if he/she is not working despite being able to.

However, more importantly in your case, you may be able to claim part of the property owned under his name if it is a "matrimonial asset." Assuming that Japanese law governs your case, if the property came into your husband's possession after your marriage, it is considered a matrimonial asset even if it is owned under just his name, and you can request your portion of that asset upon divorce.

Japanese law does not provide clear rules for this division, but general practice in family court is that matrimonial assets are divided equally between couples. If there are still mortgage payments to be made on the property, the total amount left after deduction of the balance due on the mortgage from the property's market value at the time of divorce/separation (depending on the case) is considered the matrimonial asset to be divided upon divorce.

You may want to request to receive your portion in cash, and then make an additional claim for child support payments from his portion of the asset. Or you could consider asking for the transfer of ownership of the property to you, if you need to continue living in that property.

I don't have sufficient information about your case to suggest specific ways to divide the property, but you may present your proposal in court and negotiate with your husband based on factors such as the value of the property, the status of the house loan, and to what extent either you or your husband need to stay in the property.

Mikiko Otani is an attorney with the Section of Legal Assistance for Foreigners at Tokyo Public Law Office, which handles a wide range of cases involving foreigners in the Tokyo area. TPLO lawyers address readers' legal concerns on the second Tuesday of the month. Website: www. t-pblo.jp/slaf. Phone: (03) 5979-2880. Send questions to lifelines@japantimes.co.jp .


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