Fideicomiso and Divorce

[tristan1749]

I really need some legal help and lawyers don't seem to be any help. My wife and I have a home with a fideicomiso. We are both foreigners, of course, and the divorce is friendly, but we can't find a lawyer who seems to know the laws involving fideicomisos. One told us it doesn't go in the divorce because it isn't a "bien", it's a trust. The other said it does go in the divorce but he doesn't know if the sale can be forced by one of the parties. In fact, he didn't really know anything about it. They say it isn't treated the way "property" is treated. Anyone have any experience at this? Or, does anyone know a lawyer who is experienced at this? English not necessary.

[gabesz]

See if you can contact Carmen Bianca from this site who is a real estate agent in Cancun. She can refer you to the right people to help out. She looks at this site on occasion or search her name.

[V]

Where were you married? Where did the two of you consider to be your home, during the marriage? Was the property, the subject of the fideicomiso, acquired during the marriage; and, if so, did the documents which created the fideicomiso show you both as buyers?

Where do each of you live, now? And, finally, where are you getting the divorce?

These are the kinds of things that can shed light on how the trust, and the property of the trust, might be dealt with at this point.

...he doesn't know if the sale can be forced by one of the parties.

It sounds from your post as if the two of you may not have yet have actually reached agreement on what is to be done with it, hence your post and, if that's the case, the answers to the questions, above, will largely determine the options available, it seems to me.
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[tristan1749]

Originally Posted by V

Where were you married? Where did the two of you consider to be your home, during the marriage? Was the property, the subject of the fideicomiso, acquired during the marriage; and, if so, did the documents which created the fideicomiso show you both as buyers?

Where do each of you live, now? And, finally, where are you getting the divorce?

These are the kinds of things that can shed light on how the trust, and the property of the trust, might be dealt with at this point.

It sounds from your post as if the two of you may not have yet have actually reached agreement on what is to be done with it, hence your post and, if that's the case, the answers to the questions, above, will largely determine the options available, it seems to me.
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We HAVE reached agreement to sell, but, without a divorce decree ordering it, she could change her mind up until we go sign the papers. I want to avoid that. I tried contacting the bank's legal department but HSBC doesn't handle that locally, anymore, so I have to cut through legal red tape in Mexico City, I guess. That'll be a lot of fun.

According to the lawyers nothing about our marriage matters because it's not a "real estate". It can't even be inherited by our heirs. It goes according to who the fideicomisarios and substitutes are that are listed in the document.

I was hoping someone here had already been through something similar.

[V]

Not answering any of the questions I asked leaves the whole matter in limboland. For example, it's not even possible to state with certainty that it's marital property, though from what you've said it appears you believe it is. You're leaving the reader to guess at practically everything that matters; but, that's ok, because it's your business, after all.

[gabesz]

Originally Posted by tristan1749

According to the lawyers nothing about our marriage matters because it's not a "real estate". It can't even be inherited by our heirs. It goes according to who the fideicomisarios and substitutes are that are listed in the document.

Actually your property can be inherited by your heirs since the first person entitled to it is the person you named when you purchased the property will get first crack but that can be disputed in your last will and testament. And if you singed for it joinly and decide to get a divorce it is treated the same as your primary home. An asset that you must either divide or sell and take the proceeds from that sale and distribute according to your divorce agreement. Though I would tell you the paperwork and the transfer of the property will probably cost you closing fees all over again. This is something only lawyers can work out for you no matter how you have to get rid of the property or change the names of owners on it. Trust me its not simple and will take some time and money to work it out but it can be worked out.

[V]

According to the lawyers nothing about our marriage matters because it's not a "real estate".

This is ludicrous on its face, and contradicts this next statement that you also made in your post.

We HAVE reached agreement to sell, but, without a divorce decree ordering it, she could change her mind up until we go sign the papers.

In a divorce, all marital property is divided, not just "real estate", and the division is performed according to the law that governs the case- that's why the answers to the questions I asked are important.

Your next comment, quoted above, makes it clear that the divorce can deal with the property. As for your comment that your wife could change her mind prior to the signing of the order, that's true on most anything that requires written agreement to be enforceable and would be your option, too; so, play nice, and you may yet get your way....