Podział majątku po ogłoszeniu upadłości niedopuszczalny

„Prowadzę duży biznes, który od pewnego czasu przynosi same straty. Obawiam się najgorszego, czyli ogłoszenia upadłości. Jak fakt ten wpłynie na sytuację majątkową mojej żony? Jesteśmy po ślubie 20 lat, nie mamy intercyzy, wszystko jest wspólne. Czy powinniśmy jak najszybciej dokonać podziału majątku?”.

Zgodnie z prawem, z dniem ogłoszenia upadłości jednego z małżonków powstaje między małżonkami rozdzielność majątkowa – z mocy prawa! Jeżeli małżonkowie pozostawali w ustroju wspólności majątkowej, majątek wspólny małżonków wchodzi do MASY UPADŁOŚCI, a jego podział jest niedopuszczalny.

Według ogólnie przyjętych zasad, po ustaniu wspólności ustawowej małżonków niezależnie od przyczyn (np. w wyniku rozwodu czy zawarcia intercyzy) możliwy jest podział majątku wspólnego małżonków.

Z jednym wyjątkiem: podział majątku po ogłoszeniu upadłości jednego z małżonków jest niedopuszczalny!

Majątek wspólny W CAŁOŚCI wchodzi do masy upadłości i podlega podziałowi według przepisów prawa upadłościowego i naprawczego. Małżonek upadłego MOŻE za to dochodzić w postępowaniu upadłościowym należności z tytułu udziału w majątku wspólnym. Udział ten stanowi wierzytelność pieniężną, którą należy zgłosić sędziemu-komisarzowi. Przedmiotowa wierzytelność podlega zaspokojeniu w trzeciej kategorii.

W prawie istnieje domniemanie, że majątek wspólny powstały W OKRESIE prowadzenia przedsiębiorstwa przez upadłego został nabyty ze środków pochodzących z dochodów tego przedsiębiorstwa.

Do masy upadłości NIE WCHODZĄ natomiast przedmioty służące wyłącznie małżonkowi upadłego do prowadzenia działalności gospodarczej lub zawodowej, choćby były objęte majątkową wspólnością małżeńską, z wyjątkiem przedmiotów majątkowych nabytych do majątku wspólnego w ciągu dwóch lat przed dniem złożenia wniosku o ogłoszenie upadłości.

Co więcej, ustanowienie rozdzielności majątkowej na podstawie orzeczenia sądu w ciągu roku przed dniem złożenia wniosku o ogłoszenie upadłości jest BEZSKUTECZNE w stosunku do masy upadłości, chyba że pozew o ustanowienie rozdzielności majątkowej został złożony co najmniej na dwa lata przed dniem złożenia wniosku o ogłoszenie upadłości. To samo dotyczy sytuacji, gdy rozdzielność majątkowa powstała z mocy prawa w ciągu roku przed dniem złożenia wniosku o ogłoszenie upadłości w wyniku rozwodu, separacji albo ubezwłasnowolnienia jednego z małżonków, chyba że pozew lub wniosek w sprawie został złożony co najmniej dwa lata przed dniem złożenia wniosku o ogłoszenie upadłości.

Ustanowienie rozdzielności majątkowej UMOWĄ MAJĄTKOWĄ jest skuteczne w stosunku do masy upadłości tylko wtedy, gdy UMOWA zawarta została co najmniej dwa lata przed dniem złożenia wniosku o ogłoszenie upadłości.

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