The “Dual-Lens” Advantage: Dividing Brazilian Assets in a New York Divorce

For many Brazilian nationals and dual citizens living in New York or Westchester, a divorce involves more than just a family home in the U.S. Often, there are significant interests abroad: apartments in São Paulo, beachfront property in Rio de Janeiro, or family-owned businesses in Minas Gerais.

The mistake most New York divorce lawyers make is assuming that a New York judge can simply order the sale or transfer of a piece of Brazilian real estate. This is a legal impossibility.

The Conflict of Laws: New York vs. Brazil

In a New York divorce, the court follows the rule of Equitable Distribution. The judge has the authority to divide “marital property” in a way that is fair, regardless of whose name is on the title.

However, under Article 23, III of the Brazilian Code of Civil Procedure, Brazilian courts claim exclusive jurisdiction over real estate located within Brazil. This means:

1. A New York judge cannot legally transfer title to a Brazilian property.
2. Brazilian registrars (Cartórios de Registro de Imóveis) generally will not recognize a foreign divorce decree that purports to change the ownership of land in Brazil.

Understanding the Property Regime: Comunhão Parcial de Bens

In Brazil, most marriages are governed by the Comunhão Parcial de Bens (Partial Community of Property) regime. Under this system, assets acquired during the marriage are shared, while assets owned prior to the marriage remain separate.

When a New York court attempts to divide these assets, it must understand how the Brazilian regime characterizes the property. If you signed a Pacto Antenupcial (Prenuptial Agreement) in Brazil, that document may dictate the division in a way that conflicts with New York’s “fairness” standard. Without a dually licensed attorney to interpret these documents, you risk losing separate property or being forced into an inequitable split.

The Strategic Solution: Using “Offsets”

Since a New York court cannot touch the Brazilian land itself, we utilize a strategic approach known as Offsetting Assets.

Instead of asking a judge to divide the Brazilian apartment, we advocate for a valuation of that property. We then argue that the spouse keeping the Brazilian asset should receive less of the U.S.-based assets (such as equity in a NY home, 401(k) balances, or liquid cash).

Example: If a couple owns a $500,000 home in Queens and a $200,000 condo in Brazil, we may negotiate for the spouse in the U.S. to take a larger share of the Queens home’s equity to “offset” the value of the condo they cannot legally claim in Brazil.

Why You Need a “Dual-Lens” Perspective

Navigating these waters requires more than a translator; it requires an attorney who can bridge two distinct legal worlds. As a dually licensed practitioner in New York and Brazil, I offer my clients a unique advantage:

• Direct Discovery: We can review Brazilian bank statements and property records (Matrículas) in the original Portuguese without the cost of external experts.
• Jurisdictional Strategy: We know how to draft a New York settlement that is actually enforceable and recognizable by the Superior Tribunal de Justiça (STJ) in Brazil.
• Valuation Accuracy: We understand the Brazilian market and tax implications, ensuring your “offset” is based on true value, not an estimate.

Protect Your Global Legacy

If you have a life that spans two countries, your legal representation must do the same. Do not leave your Brazilian assets to a lawyer who only sees half the picture.

Contact The Law Offices of Norka M. Schell, LLC at 212-258-0713 or reach us online to schedule your confidential consultation.