How to protect your assets after the STJ decision

Summary
The STJ decided that debts contracted for the benefit of the family during the marriage can affect the spouse, depending on the property regime adopted, emphasizing the importance of planning and financial transparency in marriage.

The recent decision of the Superior Court of Justice has attracted the attention of families across the country: now the debtor’s spouse can be included in enforcement actions even without having signed the contract, provided that the obligation was incurred during the marriage and for the benefit of the family.

The agreement, reported by Minister Nancy Andrighi, reinforces the fact that the property regime defines not only the division of assets, but also the extent of liability for debts.

The case has reignited the debate about legal vulnerabilities within married life. For Patrícia Maia, partner at Barbosa Maia Advogados, a firm specializing in asset recovery in the receivables market, the biggest risk is the lack of information.

“The worst situation is to discover a debt when the blockade has already been made. Information and transparency in the relationship are fundamental. And, from a legal point of view, the best ally is planning. It prevents an individual problem from turning into a family loss,” he says.

Property regime influences liability for debts

The choice of matrimonial regime determines whether the spouse may have property affected by the obligations assumed by the partner. Here is the impact on each model:

• Partial community of goods – Property acquired after marriage is common, as are debts. This is the regime most affected by the decision, since the STJ presumes a common effort at the origin of the obligations.

• Universal community of goods – All previous and subsequent collections are shared. Debts incurred by someone can reach the total assets.

• Final participation in questions – Sharing only occurs at the end of the marriage, but debts contracted during the union can give rise to discussions and affect the property accumulated jointly.

• Total separation of assets – It is the largest individual protection regime. Assets remain segregated, as do debts, except in cases of fraud or proven direct benefit.

And who was unaware of the debt?

When the spouse was not aware of the debt, this does not prevent it from being included in the execution if the property regime allows property communication. Patricia notes that, in these cases, it is still possible to mitigate the legal effects. One strategy is to demonstrate that the debt brought no benefit to the family, thereby removing the presumption of joint effort contemplated by the STJ.

It is also viable to file embargoes against third parties when individual assets are unduly affected, in addition to proving patrimonial autonomy in union with a clear division of accounts and properties. The organization of documents is also decisive in facilitating defense and avoiding wider blockages.

How to apply protective measures on a daily basis

For Patrícia, prevention must be part of the couple’s routine, especially when one of the partners carries out a commercial, financial or professional activity exposed to risks. Recommended precautions include maintaining transparency and clarity regarding individual and family finances, formalizing wealth agreements where necessary, avoiding amendments or taking on obligations without prior legal analysis, separating personal accounts from professional accounts and periodically reviewing wealth planning, particularly during periods of professional change or business expansion.

The STJ’s decision reinforces the fact that marriage, in addition to the emotional bond, is also a legal company and that companies require clear rules. For the lawyer, estate planning remains the most effective tool to avoid unpleasant surprises and prevent an individual problem from turning into a family loss.