How property is divided in court: what you need to know. Statement of claim for the division of joint property of the spouses Filing an application for the division of property after a divorce
Usually, after the spouses decide to divorce, they immediately begin to share everything that was bought during the marriage. And here they often face problems. They cannot figure out where is personal property, where is joint property, what should be done for division in the first place, and what should not be done under any circumstances, how to draw up a statement of claim, what documents are needed for division. Questions grow like a snowball.
The main factors affecting the division of property
At present, when divorce and division of property have long become commonplace, lawyers have developed certain algorithms for actions in various circumstances that simplify this procedure. The division of jointly acquired property in a divorce depends on a number of factors:
- mutual consent or vice versa, disagreement of one of the spouses for divorce and division;
- conditions of the marriage contract (if any);
- minor children;
- the procedure for acquiring property;
- some other conditions.
The division of joint property can take place both during the divorce proceedings and after it, when the dissolution of the marriage has already occurred. In both cases there are pluses and minuses.
In case of simultaneous divorce and division of property:
- The divorce process can drag on indefinitely - this is a minus.
- Former spouses will not have time to hide or sell part of the joint property in order to hide from the division - this is a plus.
- Both processes take place in parallel, so the costs of lawyers and other legal costs are reduced - this is a plus.
When dividing property after the completion of the divorce proceedings:
- You can safely start collecting documents and preparing for the partition procedure - this is a plus.
- It is important not to miss the statute of limitations - this is a minus.
- Some unscrupulous spouses try (and sometimes they succeed) to sell (sell, donate) part of the joint property in order not to divide it, as a result, the second spouse remains deprived - this is a minus.
How property is divided in a divorce
In accordance with family law, all property acquired by spouses during marriage is considered joint and is subject to division equally. These are the so-called "ideal shares".
But there are a number of circumstances in which the court departs from the equality of shares and determines the share of one of the spouses more than the share of the other. Such an unequal division is possible in cases where:
- minor children remain with one of the spouses, and his financial situation leaves much to be desired, in which case his share may be larger;
- one of the spouses led an immoral lifestyle, spent joint funds to satisfy their unseemly needs (drank or lost money, spent it on drugs), in which case the court may reduce his share.
The legislation defines two main ways of dividing joint property, depending on which legal regime they choose, these are:
- Legal regime for the division of joint property.
- contract mode.
Let's consider each of them.
Legal Partition Mode. It is based on the legislative definition of the equality of the parties, in which all joint property must be divided equally, except for the personal property of each of them.
contract mode. It involves the conclusion of a marriage contract or a voluntary agreement on the division of joint property. Both in the first and in the second document, the spouses can deviate from the equality of the parties and determine what property and to what extent will go after the dissolution of the marriage to one or another spouse.
What property is divisible, what property is not subject to division
Often, when dividing joint property, the spouses do not know what property can be divided and what cannot be divided and make mistakes.
What is shared
If you view judicial practice, it becomes clear that most often they share expensive property:
- real estate;
- vehicles;
- luxury items;
- antiques.
It should be remembered that only joint property is subject to division, that is, only that which is acquired by the spouses in marriage with joint funds.
What can't be shared
The legislation determines that all personal property of the spouses is not subject to division. What can be considered as personal property? It:
- all property acquired by each of the spouses before marriage;
- real estate, vehicles, other types of property purchased during marriage, but at the personal expense of the husband and wife;
- property received by one of the spouses as a gift or inherited;
- personal belongings of each, with the exception of expensive ones, for example, antique jewelry;
- property bought for children, such as a computer bought for a child's practice or an expensive musical instrument bought for a child's practice.
How to start a divorce with the division of property
To begin with, consider when is the best time to start the process of divorce and separation.
When to Start Divorce and Partition
As practice shows, as soon as the spouses realized that living together becomes impossible, it is necessary to start the process of divorce and a parallel division of joint property. The sooner you start the divorce process and division, the more likely you are to save and receive the property that is due to you later.
The more time passes after parting, the less chance you have to prove your case - some documents are lost, receipts and checks are lost, witnesses forget some facts, morally unscrupulous spouses hide or sell jointly acquired property, transfer property to relatives or friends. There are often cases when it is not possible to return the lost.
The second reason why you should not delay the partition is that things, real estate or a vehicle wear out, age, and therefore lose value.
The third reason is the statute of limitations. Of course, the legislation gives a certain time period for filing a claim for division (three years), but situations are different, you can miss this period, then the division will not be possible.
How to start a divorce with a section
The process of divorce and separation begins, of course, with the official dissolution of the marriage. You can get divorced in three ways:
- At the registry office. Divorce is possible if the couple has no children, or they are already adults. The application is submitted to the department where the couple registered the marriage or at the place of residence of any of the spouses.
- In the world court. Divorce is possible if there are no disputes about the place of residence of the children after the divorce, and the disputed property costs no more than fifty thousand rubles.
- In the district court. The court will not only dissolve the marriage, but also decide with which parent the children will remain, and if a parallel lawsuit is filed on the division of joint property, it will also divide the property.
How to start a divorce in court
First you need to collect all the documents and evidence. You will need receipts, checks for goods, contracts of sale. At this stage, the main task is to collect all evidence of your contribution to the acquisition of the disputed property.
There are several nuances associated with the partition procedure:
- All property purchased by a married couple after marriage and before the actual termination of marital relations is considered joint property. If the spouses separated long before the application for divorce was filed, and during this time one of them acquired an expensive property, then he must prove that they did not live together during the period of its acquisition and the purchase was made with personal funds.
- If the wife did not work during the period of marriage, ran the household and took care of the children, she does not lose the right to half of the joint property. An exception to this rule may be evidence that she led an asocial lifestyle, did not take care of children, or spent joint funds on her own needs to the detriment of her family.
- Those things that only one of the spouses used cannot be attributed to joint ownership.
- Gifts that were intended separately for a husband or wife, even those received during the marriage, are considered personal property.
Conclusion of a voluntary agreement
The cost of certifying a voluntary agreement is much lower than the legal costs in the case of division of joint property in court. Depending on the value of the property to be divided, the notary's fee varies from 300 rubles with an agreement amount of up to one million to sixty thousand, if the value of the property to be divided is significantly higher than ten million rubles.
How to file for divorce and division of property
So, to agree on the division did not work and the trial is inevitable. The necessary documents and evidence have been collected, it remains:
- draw up a claim;
- pay the fee;
- file a claim;
- take part in the trial.
Statement of claim
State duty
When filing a statement of claim, the plaintiff is obliged to pay a state fee, the amount of which depends on the value of the claim. The state duty is calculated independently in accordance with Table 1.
Table 1. Calculation of the amount of state duty depending on the price of the claim
| Property value, rub. | Deduction from the amount, rub. | Constant, rub. | State duty (percentage of property value, %) | State duty limit, rub. |
|---|---|---|---|---|
| up to 20,000 | - | - | 4 | At least 400 |
| 20 001-100 000 | 20,000 | 800 | 3 | - |
| 100 001-200 000 | 100,000 | 3,200 | 2 | - |
| 200 001-1 000 000 | 200,000 | 5,200 | 1 | - |
| Over 1,000,000 | 1,000,000 | 13,200 | 0.5 | No more than 60,000 |
How to seize property in a divorce
If the plaintiff has fears that his opponent will dispose of the joint property in his favor even before the division, he may apply to the court for the arrest of the joint property. such a step is necessary for the implementation of an interim measure to preserve the disputed property.
The petition is declared either when filing a statement of claim, or already in the trial. If the court considers the grounds for the seizure of property essential and there are conditions for the seizure, the court will satisfy the request of the plaintiff.
Important. Without a petition from either party, the court is not entitled, on its own initiative, to apply interim measures to preserve the disputed property.
Arbitrage practice
Judicial practice has enough examples of various options for the judicial division of joint property. Below is one such example.
circumstances of the case. Kirill O. bought an apartment before marriage. Immediately after the wedding, his wife Natalya O. decided to renovate the living quarters, purchased the necessary building materials from her own funds and hired a construction team. In addition to personal funds, joint money earned by a married couple during the marriage was also spent on repairs, but the joint contribution was small. Two years later, the couple divorced, and Kmirill issued a donation for an apartment for his brother.
Plaintiff's claims. Since Kirill did not recognize Natalya's right to housing, she was forced to file a lawsuit in court demanding:
- Recognize the premises as jointly acquired. Natalya motivated this demand by the fact that thanks to her efforts the apartment was significantly improved and its price increased.
- Recognize her right to own half of the dwelling.
- To invalidate the donation agreement of the apartment, as it was concluded in order to hide the property from the division.
Natalya attached receipts, checks and budget documents to the claim, as well as bank statements, which confirmed the materiality of her expenses.
Cyril took the opposite position and did not agree with any of Natalia's demands. At the trial, he stated that the dwelling was his personal property, as it was bought before marriage. He also stated that he did not consider the improvement of the apartment to be significant, especially since his funds were also spent on repairs. As for the gift, he has the right to dispose of his property as he wants.
The court appointed an independent examination, which concluded that the cost of the dwelling after the reconstruction was increased, but not significantly.
Kirill could not prove that he spent personal funds on repairs, but Natalya was able to provide all the evidence of her expenses.
The court's decision. Having considered all the materials of the case, the court ruled:
- The property cannot be recognized as jointly acquired, since the defendant acquired it before marriage.
- The court refuses to recognize the plaintiff's ownership of half of the dwelling.
- The court refuses to recognize the donation agreement as invalid.
- The defendant is obliged to reimburse the plaintiff for the funds spent on the repair of the dwelling.
Reading time: 10 minutes
Divorce forces spouses to resolve many issues related not only to the place of residence of common children, their maintenance and upbringing, but also to the division of property acquired in marriage. The legislation of the Russian Federation regulates the procedure by which the division of property in a divorce is carried out. If the husband and wife who are about to end the marriage follow the rules of the law in this matter, the division will occur as quickly and fairly as possible.
Legislation on the division of property in a divorce
What rights do spouses have after a divorce?
When marital relations are broken, every citizen of the Russian Federation has the right to protect his legal rights:
- parental;
- personal non-property;
- property.
Disputes on the protection of these rights are considered in court if the spouses could not reach agreements on them.
Protection of property rights simultaneously with a divorce should be carried out exclusively during the trial. The claim for the division of property must be filed together with the application for divorce.
The division of property takes place taking into account the norms recorded in Art. 38–39 UK or Art. 40-44 of the RF IC (if there is a marriage contract).
It is important to know: if the marriage contract or its individual clauses create a force majeure situation for one of the spouses (leave them without housing or livelihood), they can be canceled in court.
Is it possible to get a divorce without dividing property
According to the Russian family law There is no inextricable link between divorce and division of property. This means that spouses have the right to apply for a division of property without filing a divorce, as well as apply for a divorce without division of property.
It is possible to initiate the dissolution of a marriage without filing a request for the division of jointly acquired assets if:
- The property was divided even before the divorce.
- The couple has nothing to share.
- One of the spouses waives claims to joint property.
- The partners decided to divide the property at the end of the divorce process (Article 38 of the RF IC).
Divorce without consideration of the issue of the division of material values in court can be couples who have entered into a marriage contract or established a shared/separate property ownership regime.
If the couple does not have common young children and property disputes, or their decision by mutual agreement is postponed for the period after the divorce, the marriage can be dissolved through the registry office.
What can be considered joint property
Joint property is property acquired by partners in marriage. At the same time, it does not matter in whose name it is registered, and who exactly contributed the funds.
What can be divided upon dissolution of a marriage
In a divorce, everything that is considered by law to be common joint property is subject to division, unless the conditions of the marriage contract affect its regime. The only exception is personal property. Therefore, it will be necessary to divide all jointly acquired property during the divorce of the spouses:
- wages and other income from labor activity;
- amounts of remuneration for the use of patent, copyright;
- assets and business income;
- real estate;
- shares received under transactions, as a gift or as a result of the actions of one / both spouses, shares in LLC, checks, shares in cooperatives, bonds;
- intangible values and so on.
Protecting the interests of children
If spouses get divorced and share property with children, the presence of minor family members complicates not only the divorce procedure, but also the task of dividing material assets.
As a rule, when a marriage is dissolved, the children remain with their mother, so the court may deviate from the principle of equality of rights to property when determining the size of the shares that will go to each of the spouses.
Evaluation and division of property with a minor child is carried out in court. As a result of the proceedings, the judge may decide to transfer most of the common property of the spouses to the one with whom the children remain.
The RF IC also regulates the right to transfer the property of minor family members to the parent with whom they will live at the end of the divorce proceedings. Children's property includes their personal belongings, toys, furniture, sports equipment, etc.
Cash deposits opened in the name of children are their property, therefore, they are not subject to division.
It is also worth mentioning the legal requirements regarding how to divide property during a divorce if there are adult children. This procedure is no different from dissolution of marriage in the absence of children. According to Russian laws, children over 18 are considered completely independent, their property is separate, and they do not have the right to claim the property of their parents during a divorce.
Divorce agreement
Spouses can amicably agree on the procedure for dividing common joint property acquired during marriage (dividing housing, etc.). An agreement reached in a pre-trial procedure must be legalized by drawing up an agreement.
Only a document registered with Rosreestr and notarized has the force of a court decision.
The document details the shares that will go to each of the spouses after the dissolution of the marriage. The main requirement when drawing up a contract is the mutual consent of the parties to the prescribed conditions, especially if they are not based on the principles of equality of shares.
The procedure for drawing up an agreement on the division of property
The division of property acquired in marriage in a court session is a lengthy and complex process that takes a lot of time and effort from the spouses. In order to confirm the legitimacy and fairness of their claims to the declared part of the divisible common property, it is necessary to bring a sufficient number of arguments, evidence, testimonies and other facts.
However, there is an easier way to divide property in a divorce without a trial. The conclusion of an agreement on the division of property can save spouses from many problems.
Where should the agreement be drawn up?
Spouses who have decided to conclude an agreement on the division of common joint property can visit a legal or notary office. There they will be explained the rules for the division of property in a divorce, warned about the consequences of concluding this agreement and will help to correctly draw up a document.
Although the text of the agreement is drawn up in any form, it must contain the following information:
- personal data of spouses;
- details of marriage and divorce documents;
- list of items to be divided.
The completed agreement must be certified by a notary. 
Preparation of documents
When deciding where to start preparing for the conclusion of an agreement, the first thing to do is to schedule a visit from an independent appraiser. The invited specialist will establish the current value of the property and draw up an appropriate act.
Only after that you can contact the notary's office with a full package of documents:
- identity cards of both spouses;
- 2 copies of the agreement on the division of property;
- documents confirming the specified value of the property;
- receipts or checks containing information about the initial cost of the subject of the section;
- certificates confirming that the property has not been seized, it has not been mortgaged or sold.
Financial costs in the division of property
If the spouses could not reach an agreement on the division of common property, they will have to divide it through the courts. In this case, a state duty must be paid when dividing property during a divorce.
The procedure for calculating and paying the fee is determined by the Civil and Tax (Article 333.19) Codes of the Russian Federation. The claim for the division of common joint property upon dissolution of a marriage is of a property nature, and therefore the amount of the state fee is calculated taking into account the total cost of the claim. 
Thus, it is impossible to accurately answer in advance how much a divorce with the division of property costs. In accordance with the calculation algorithm given in the regulatory act, the state fee when considering joint claims in court (dissolution of marriage and division of property) will vary between 400-60,000 rubles.
Since the plaintiff independently calculates the amount of the state fee before submitting documents to the court, we recommend that you familiarize yourself with how it is calculated.
How long does it take to divide property after divorce?
The RF IC (Article 38) determines that it is possible to file a claim for the division of common property acquired during marriage:
- simultaneously with the divorce proceedings;
- before starting divorce proceedings;
- after the marriage is terminated.
For various reasons, spouses prefer the division of property after marriage and its official dissolution.
In this case, it should be borne in mind that such a trial usually lasts from one and a half to two months. This time interval is set taking into account the possible postponement of court hearings, as well as the high probability of filing counterclaims by the other party. Therefore, it is precisely this term for the division of property after a divorce that seems most likely.
The procedure for dividing an apartment
Property issues almost always cause violent disputes between spouses. They rarely manage to agree out of court on how to dispose of property jointly acquired in marriage without violating the interests of both parties.
Particularly painful is the issue of the division of real estate during a divorce. If there is no marriage contract or agreement on the division of property, the court has to take into account many nuances: whether the apartment is privatized, whether the housing is municipal property, and so on.
Usually, the issue of division of an apartment in court is decided by establishing equal ownership of it. But in a situation where an apartment is divided in the presence of children, the court may not take into account the principle of equality of the shares of former partners in their common property.
Often, the court is ready to increase the share of the spouse with whom the children will remain (clause 2, article 39 of the RF IC).
Another common aspect that worries parting spouses is the division of an apartment during a divorce, if it is not registered in it. It should be noted that registration is not related to the ownership of housing. Consequently, this fact plays a role only in determining the procedure for using a municipal apartment after a divorce, but such housing is not subject to division.
The supplementary article details the factors that significantly affect .
Section of a private house
The division of a house or cottage follows the same principles as the division of an apartment. If the property is joint property, then each of the spouses receives equal shares during the division.
In addition, a physical division of the premises is possible, involving redevelopment and transformation of the house into two separate objects.
How to split a car in a divorce
Difficulties are also raised by the question of the division of the vehicle during the breakup of the family. This is due to the fact that the car, being common property, is subject to division, but at the same time is an indivisible object. It cannot be physically separated without causing irreparable harm.
In this case, you can find a way out, for example, by selling the car to a third party and dividing the funds received between the spouses.
Is it possible to split the business
Entrepreneurial activity, like other common property of a husband and wife acquired during marriage, should be divided equally. There are many ways to actually and legally divide a firm, from selling shares to a third party and sharing cash to doing business together with separation of powers.
The procedure for splitting a mortgage loan
According to the RF IC, the unpaid mortgage debt belongs to the common property of the spouses, therefore, it can also be divided by agreement or in court.
In this situation, the following options are most common:
- re-registration of a loan for one of the spouses;
- sale of collateral with debt repayment and division of the balance between the spouses.
Division of land
A piece of land acquired by spouses during marriage is not easy to divide, because you also have to take into account the norms of the Land Code and other legislative acts.
The complexity of resolving the issue lies in the impossibility of dividing the land in kind, if the area of the site is less than the minimum established for this category of land.
A lot of difficulties are associated with the issue of the division of property acquired with the use of funds that have a specific purpose. Under Russian law, such funds do not belong to common joint property.
Property acquired with funds that are targeted state support for families with children is not divided in the usual manner (in equal shares). This decision was made by the Supreme Court of the Russian Federation on January 26, 2016.
Find out more about who can apply for .
Statute of limitations for property division claims
Sometimes spouses, for various reasons, do not divide the common property either before the divorce procedure or during its process. However, over time, life circumstances may change, resulting in the need to exercise their legal rights. In this case, you need to know how long it takes to divide property after a divorce.
The voluntary division of property between spouses has no time limits.
When partitioning through a court, the statute of limitations for this species requirements is 3 years (Article 38, Clause 7 of the RF IC). If the spouses did not divide the property upon dissolution of the marriage, they have the right to file a claim within the period established in this document.
Some mistakenly believe that the three-year period starts from the date of divorce. But according to Art. 200 of the Civil Code of the Russian Federation, the starting point for the specified period is the moment when one of the parties found out about the violation of their rights.
Summary
Most couples who end their marriage resolve child custody issues and share jointly acquired property at the same time as the divorce process. As a rule, the courts decide on the division of common property based on the principle of equal shares of the wife and husband in it.
Spouses who decide to postpone the financial aspects of the case for later, after a while, begin to figure out how to file for the division of property after a divorce. If the ex-husband and wife are ready to come to an agreement and sign a partition agreement, they can do this at any time. The court will consider the relevant claim only if the plaintiff meets the statute of limitations established by law.
Division of property of spouses by the court according to the new rules: Video
Lawyer. Member of the Chamber of Advocates of St. Petersburg. Experience more than 10 years. Graduated from St. Petersburg State University. I specialize in civil, family, housing, land law.
Most often, the joint property of the former spouses is divided after a divorce. If the couple still maintains normal relations, then the division takes place amicably, in accordance with oral agreements or by voluntary agreement, if the relationship does not allow agreement, then they resort to division through the courts. At the same time, many people have a question: how many years after a divorce can joint property be divided?
What is to be divided
Not everyone knows what property can be divided and what is not divided under any circumstances. All property that a married couple acquired during marriage is subject to division, namely:
- real estate (residential premises, land plots, garages, summer cottages);
- all vehicles;
- joint business, shares, deposits, other monetary assets;
- Appliances;
- furniture;
- antiques, other luxury items.
But in addition to assets, liabilities are also subject to division, the most common of which are credit obligations to banks and other credit institutions.
In cases where the couple no longer lives together, but the dissolution of the marriage has not yet been formalized, all property acquired by the parties during separation is also recognized as joint and subject to division, unless it is proved that the other party did not take part in the acquisition of property.
As well as debt obligations of one of the spouses acquired during marriage, but during the period of separation, unless it is proved that all the funds borrowed were spent by only one of the spouses.
But not all property used by both spouses during the marriage can be divided. The personal property of the spouses is not subject to division, namely:
- acquired by one of the spouses before marriage;
- received as a gift;
- inherited.
Things and property of minor children are not subject to division, even if they have a considerable value. All children's property is transferred to the parent with whom the child-owner remains.
But like every rule, there are some exceptions here too.
For example, if a spouse, after a divorce, but before the division of property, sold an expensive fur coat bought in marriage, but having the status of personal property, then after its sale, the spouse has the right to half of the proceeds from the sale.
Is it possible to file for division of property after a divorce?
In accordance with Russian law, spouses can divide property:
- married;
- in the process of divorce;
- after the official dissolution of the marriage.
Thus, it is not necessary to deal with the division of joint property in parallel with the divorce, especially since the divorce process is much faster than the division of property. but the section should not be too long either, especially since the law has established a statute of limitations - three years.
How long after a divorce can property be divided, application deadlines
Many couples believe that the statute of limitations is set from the date of divorce, and if 3 years have passed since the divorce, then the law prohibits filing a claim for division, but this is far from the case.
The Civil Code of the Russian Federation determines that the limitation period for property claims for the division of property begins from the date when the plaintiff learned about the violation of his property rights.
In other words, ex-spouses may not deal with the division of property at all, as long as they are satisfied with the existing order of things, they can live in a common house for years, use a joint car and not feel disadvantaged.
For example, the spouses Olga and Nikolai R. after the divorce did not begin to share the house that belongs to them in equal shares, but agreed that the ex-husband would live in one half of the house, and ex-wife- in another. Both were satisfied with this procedure for using real estate, until Olga remarried five years later. Her husband began to demand that Nikolai vacate the half of the house he occupied, as he interferes with the young married couple, it came to mutual insults and assault.
Nikolai filed a claim for the division of the house, while he asked the court not to actually divide the house, but to leave it in the ownership of Olga, who in return must pay him half the cost of the house. The court fully satisfied his demands.
Thus, as long as no property rights are violated, there are no grounds for filing a claim for partition, the limitation period does not begin. But as soon as there is a violation of the property rights of one in favor of the second, the injured party has three years to file a claim for partition.
What is considered a violation of the right to joint property
Violation of the right to joint property in accordance with the law is considered:
- obstruction or complete restriction of the use of joint property;
- any disputes regarding the use of joint property;
- sale, donation or other alienation of joint property registered in the name of one of the former spouses;
- the bearing of expenses for the maintenance of joint property by one of the former spouses and the complete disregard of these expenses by the other.
Missing the statute of limitations
It is not uncommon for individuals to miss the statute of limitations. In this case, the injured party is no longer entitled to demand the division of joint property, except in exceptional cases. The law recognizes as such exceptional cases:
- serious illness of the plaintiff;
- his helpless position
- other significant circumstances.
At the same time, the above reasons can be recognized as valid if they occurred within the last six months of the statute of limitations.
It must be borne in mind that there is no clear criterion for determining certain reasons as valid in the law, the decision in this case is made by the court, so you should not delay the claim if the defendant violates your property rights.
The court has the right to restore the missed deadlines for the division of property after a divorce, but for this it needs good reasons, for example:
- Severe long-term illness because of which the plaintiff could not go to court. It is necessary to confirm this disease with a medical certificate.
- Family circumstances. This may be caring for a seriously ill relative, the death of a loved one, the birth of a child, etc.
- Personal circumstances. These include a long business trip, conscription into the army, imprisonment.
- Other reasons. The court may accept as a good reason ignorance of the law, illiteracy, poor command of the Russian language.
It must be remembered that the above circumstances must take place over a long period of the statute of limitations, at least six months before its expiration.
In order to extend the deadline for filing a claim, the plaintiff must file a claim for its restoration, in which it is necessary to indicate:
- when the plaintiff learned about the violation of his property rights;
- Why did he miss the deadline for going to court?
The claim must be accompanied by all documents confirming the reason for the absence specified in the application, these may be:
- birth certificate of the child;
- medical certificate;
- death certificate confirming relationship with the deceased;
- military ID;
- certificate of release from places of detention;
- other documents.
How property is divided after divorce
The RF IC provides for two options for the division of property for couples who have divorced. It:
- Voluntary division.
- Section through the court.
How to divide jointly acquired property after a divorce by agreement
Allows you to avoid a lengthy litigation and apply an individual partition procedure. A prerequisite for the execution of the contract in accordance with the law is its certification in a notary's office. This, firstly, makes it possible to avoid any fraud by one of the signatories, and secondly, it does not allow it to be terminated or changed without the consent of both parties.
To sign the contract, the former spouses must have the following documents with them:
- passports;
- marriage and divorce documents;
- title documents for joint property.
The text of the agreement must contain the following information:
- place and date of signing the agreement;
- personal information about signers;
- information about the dates of marriage and divorce;
- a list of all property that is being divided and information on the procedure and procedure for the division;
- signatures of all parties.
How to divide jointly acquired property after a divorce through the court
If the former spouse is against any division and it is not possible to divide the property peacefully, you will have to file a lawsuit in court. With the help of the court, the procedure is much more complicated and lengthy.
Making a claim
The statement of claim for the division of joint property after a divorce is drawn up on a standard sheet of A4 paper. The text of the document must be written in legally literate language, must not contain grammatical and stylistic errors. The text of the claim must contain:
- plot. There should be information about the dates of the conclusion and dissolution of marriage and the essence of the disagreement.
- Circumstances under which the plaintiff is compelled to sue. These may be descriptions of violations of the plaintiff's rights by the defendant.
- Claim. Here the plaintiff describes how he sees the resolution of the partition problem.
- List of attached documents. It is necessary to list with numbering all the documents that the plaintiff attaches to the claim.
- Signature and date.
The plaintiff must attach a package of documents to the statement of claim, namely:
- Certificate from the registry office on the place and time of marriage between the defendant and the plaintiff. When a marriage is dissolved, the certificate of its conclusion is withdrawn, so such a certificate will confirm that the parties were previously married.
- Divorce document.
- Copies of the passports of the parties to the process.
- Documents confirming the right of joint ownership of the divisible property.
- Receipt for payment of state duty.
- Other required documents.
Procedure for filing a claim
According to the general judicial rule, a statement of claim is filed with the district court at the place of residence of the defendant, but this is only if movable property is subject to division. In situations where real estate is divided, jurisdiction changes, the claim must be filed with the court in whose jurisdiction the house or apartment is located.
State duty
The state duty in cases of division of property must be paid by the plaintiff in the case. During the trial, this amount can be recovered from the defendant, provided that the court satisfies the claim of the applicant.
The amount of the state duty is calculated in accordance with the price of the claim, in turn, the price of the claim is usually half the cost of all property proposed for division.
Table 1. Calculation of the state duty on a claim for the division of joint property
| Property value, rub. | Deduction from the amount, rub. | Constant, rub. | State duty (percentage of property value, %) | State duty limit, rub. |
|---|---|---|---|---|
| up to 20,000 | - | - | 4 | At least 400 |
| 20 001-100 000 | 20,000 | 800 | 3 | - |
| 100 001-200 000 | 100,000 | 3,200 | 2 | - |
| 200 001-1 000 000 | 200,000 | 5,200 | 1 | - |
| Over 1,000,000 | 1,000,000 | 13,200 | 0.5 | No more than 60,000 |
In those cases when the plaintiff reduces the amount of the claim already in the trial, the court recalculates the amount of the state duty and returns the overpaid amount to him, but if the amount of the claim increases, the court will demand to pay the missing amount.
The court may allow the plaintiff to pay the state duty in installments or grant him a deferment in payment if the plaintiff can prove his difficult financial situation, in some particularly difficult financial situations, the court may generally reduce the amount of the state duty.
Moreover, in accordance with the Tax Code of the Russian Federation, some categories of citizens are generally exempted from paying state duty, these are:
- disabled people of the first and second groups;
- combat veterans;
- some other categories.
Arbitrage practice
The courts often consider cases on the division of joint property after a divorce, sometimes more than one year passes from divorce to division of property. And almost always the basis for a claim is a violation of the property rights of one of the former spouses.
For example, after a divorce, the husband left for another city, the wife and child stayed in the apartment. Orally, they agreed that the former spouse would not claim their joint property, and she, in turn, would not demand alimony from him. But five years later, the ex-husband returned and said that things were not going well for him, and he would live in their common apartment.
In such a situation, the three-year statute of limitations began from the moment the ex-husband returned, and the woman has every right to file a claim for the division of joint property, and since the ex-husband does not comply with the agreement, it is also about collecting alimony.
Often the reason for the division a few years after the divorce is the alienation of joint property by one of the former spouses.
For example, Nina and Mikhail P. in marriage bought a three-room apartment, which they registered for their husband. After the divorce, they agreed that Nina and the children would occupy two rooms, and Mikhail would live in the third. They maintained good neighborly relations with each other, Mikhail helped his ex-wife with children.
But ten years later, when the children grew up and moved away, Mikhail secretly sold the apartment from Nina, thereby violating her property rights.
In this case, the statute of limitations begins from the moment Nina learned about the sale of the apartment. She has the right to file a claim for the division of proceeds from the sale of real estate, or a claim for the recognition of the purchase and sale transaction as invalid, if Mikhail does not prove that the property was purchased with his personal funds.
The longer the interval between divorce and division of property, the more difficult the process of dividing common property becomes. In the years that have passed since the separation, the former spouses, instead of the former, joint, have new, already personal property, checks, receipts confirming joint rights to property may be lost. A vehicle bought in marriage could get into an accident, joint property could be overhauled and its value thus significantly increased.
In such cases, only an experienced lawyer will be able to deal with all the nuances, who will be able to separate joint property from personal property, help to competently draw up a statement of claim, restore any lost documents and evidence, find witnesses, if necessary, represent your interests in court.
The division of property through the court is the main reason for the delay in the divorce process if both spouses cannot reach a common agreement.
You can divide property before marriage by drawing up a prenuptial agreement, during marriage by signing a contract or agreement, or after - through the court or independently.
What is to be divided
Any jointly acquired, that is, property acquired in marriage, is subject to division between spouses, no matter what money it was purchased with.
For example, if only the husband worked in the family, and the wife ran the household, then after the divorce, both receive half. The same applies to debts, unless they were personal.
There is no division between husband and wife:
- things that belonged to them before marriage;
- property received as an inheritance or a gift;
- personal items: clothes, shoes, jewelry;
- children's things: they stay with the parent with whom they will live.
However, if family funds or the money of the second spouse were invested in inherited or personal property (for example, an apartment or cottage) (repairs were made, a house was built), which significantly increased their value, you can prove this in court and claim a share.
Arbitrage practice
If the spouses are not able to resolve the issue of property in person, one of them files a claim with the court and becomes the plaintiff.
The other spouse is the defendant in the case. The division of property takes place in court.
The statement states:
- Place of application: the full name of the judicial authority and its address, the cost of the claim (state duty).
- Full passport details of both spouses: full name and address.
- The general text describes the situation: when the marriage was concluded and dissolved, the numbers of the certificates.
- The following are the requirements: what exactly the plaintiff claims. If this is an apartment, you must indicate its address, if the money is in a bank account - its number. If the plaintiff is claiming more than half of the share, it is necessary to substantiate this.
- This is followed by a list of attached documents.
- At the end, a signature and a number are put.
The following documents (copies or, if possible, originals) must be attached to the application:
- Passports of the spouses, certificates of marriage and its dissolution, court decision on the dissolution of marriage.
- Documents confirming the plaintiff's right to property: extracts from the Housing Office, contracts of sale.
- Statements, sales receipts, donation receipts, agreements on opening accounts and deposits.
- Legal documents confirming or denying the right to property, such as a will, which states that the property went to one of the spouses and is not subject to division.
- Receipt for payment of state duty.
Take note: the state fee is paid by the one who submits the application. Its amount can range from 300 to 60 thousand rubles, and it is not always possible to pay it in full.
In this case, he must apply to the judge for a gradual payment of the amount or subsequent full repayment. It is necessary to indicate that due to the difficult financial situation, full payment is not possible, and prove this: provide an extract from work on low wages, a certificate of disability and receipt of benefits.
Also, in a lawsuit, you can ask the court to lay on the defendant all legal costs. They will still have to be paid immediately upon filing the claim, but if the request is granted, the losing party will be obliged to reimburse them.
In some cases, the solution that suits everyone will be the sale of the disputed property and the division of its value.
In this case, its full assessment will be required. You can apply for the division of property at any time, even several years after the divorce itself, if it suddenly seems to the spouse that his rights to ownership are being infringed.
If the plaintiff is claiming more than half, he must substantiate this:
- Confirm disability and disability.
- Indicate that children remain with him.
- Indicate that the defendant did not work for a long time without a good reason or spent family money on his own whims.
Sometimes the court allows the participation of witnesses or testimonies. For example, if repairs were being carried out during the trial, but no written evidence of the costs of repairs can be presented, the court may be satisfied with the testimony of witnesses.
The value of the claim or the value of the state duty is calculated on the basis of the total appraised value of the property claimed by the plaintiff. You can evaluate it yourself or invite independent experts.
The division of property through the court is a long and complicated procedure that does not always end in favor of the plaintiff. If possible, it is better to agree on the division in advance and draw up an agreement. This will allow you to go through the divorce process many times faster.
Watch the following video for advice from lawyers on the division of property through the court:
Division of property of spouses. All possible options for the division of jointly acquired property.
When we enter into a marriage, the last thing we think about is its material side. It seems that the division of property is not about us, everything will be different for us, not like everyone else. However, according to statistics, in the first 9 years of marriage, 2/3 of married couples get divorced, and along with this, problems arise in the division of jointly acquired property. In this situation, it is important to do everything legally correctly.
How to properly divide joint property in marriage, divorce or after the marriage is dissolved; how to do it in the most profitable way, resolving the disputed situation with the least losses.
joint property
The joint property of the spouses includes the property acquired during the official marriage. From the first day of marriage registration, common property appears in the registry office - these are wedding gifts, salaries and other income. Everything that is acquired during the marriage with the common money of the husband and wife belongs to their joint property. Joint property also includes money and bank deposits. It does not matter in whose name the property is registered according to the documents.
The regime of joint ownership of property means that each of the spouses can equally use and dispose of this property. The consent of the second spouse for transactions with property is not required, with the exception of transactions with real estate or requiring registration, notarization. In these cases, it is necessary to obtain a notarized consent of the second spouse for the transaction.
The second spouse has the right to challenge the transactions by applying to the court with a claim for the recognition of the transaction as invalid due to the lack of his consent.
Spouses' personal property
The joint property regime does not apply to the personal property of the spouses. This property belongs to each spouse individually, only he can dispose of it. The other spouse may use such property only with his consent.
Personal property includes property acquired before marriage or received in marriage as a gift, by inheritance, under a gratuitous transaction (for example, the privatization of an apartment). The property of each of the spouses also includes his personal belongings (clothes, accessories), with the exception of jewelry and luxury items.
Personal property may be divided if it is recognized as the joint property of the spouses. Such cases arise when, during the period of marriage, personal property was subjected to a serious improvement, significantly increasing its value at the expense of the common funds of the spouses.
Marriage contract
A prenuptial agreement is an agreement that defines the property rights and obligations of the spouses during the marriage and upon its dissolution. In the marriage contract, you can specify which of the spouses will own specific property, both existing and planned for acquisition in the future.
The marriage contract is drawn up at the notary. It can be concluded before the marriage is registered (in this case it will still come into force after the marriage is registered in the registry office) or at any time during the marriage.
When dividing property in the presence of a marriage contract, the regime of joint property of the spouses is determined precisely by this agreement. A marriage contract can be challenged, it can be changed or terminated by mutual agreement of the spouses or in court: .
Division of property during marriage
The spouses may divide the joint property at any time after the conclusion of the marriage. You can start the section the very next day after the registry office, the main thing is that there would be something to share. The division of property during the marriage can be secured by a written agreement of the spouses or the dispute can be resolved in court.
When dividing property during marriage, only the property that is available is divided. With regard to the fate of property that will be acquired in the future, it is necessary to conclude a marriage contract. Property acquired by the spouses after the division will again be considered their joint property.
An exception is the case when the spouses, without officially dissolving the marriage, actually stopped family relationships. However, if there is a dispute, this circumstance will need to be specifically proven in court.
Division of property upon divorce and after dissolution of marriage
After the dissolution of the marriage, all property acquired by the spouses becomes their personal property. The spouses must decide the fate of the joint property. In this case, it is possible to conclude a written agreement between the spouses or the division of property through the court. You can write .
The law provides that the limitation period for the division of property of spouses is 3 years. Please note that this period does not begin to run from the moment of divorce, but from the moment when the second spouse found out or should have found out about the violation of his right. Thus, if the issue of the fate of some thing was not resolved during the dissolution of the marriage, then the second spouse can make claims on it even after a considerable time. Perhaps with his admission for good reasons.
The procedure for the division of property
For the division of property, it is necessary to determine the composition of the property, its value, the share of each of the spouses, to establish which of the spouses will receive a particular property.
The composition of jointly acquired property is determined by the transfer of this property. The property must exist in kind, there must be a real possibility of dividing this property.
The value of the property is determined at the time of its division. It does not matter at what price these things were purchased, what is their market value. Spouses have the right, having agreed among themselves, to determine absolutely any value of their property. If it is difficult to agree on the value of the property, you can use the services of an independent appraiser or the market value of these things.
As a general rule, it is assumed that the shares of the spouses in the jointly acquired property are equal, ½ share each. The size of the shares does not depend on which of the spouses earned how much. The spouse who was involved in the household has the same rights to property as the spouse who brings income to the family. This rule can be deviated by agreement of the spouses. An obvious condition for changing this rule will be the situation when one of the spouses spent the common property not in the interests of the family (drank, spent on drugs, lost in gambling), or did not receive income for unexcused reasons.
Division of property by agreement of the spouses
The simplest and most obvious option for spouses is to divide the property by agreeing among themselves peacefully. In this case, a written document is drawn up - an agreement on the division of property, which is signed by the spouses. Such an agreement can be certified by a notary.
In the case of real estate, it will be necessary to issue state registration of the transfer of ownership. In the case of vehicles, it is necessary to resolve the issue of removal and registration during re-registration.
Division of property in court
In the absence of agreement on the division of property by peaceful means, disputes are resolved in court. Before applying to the court, it is also necessary to determine the composition of the property to be divided, evaluate it, determine the shares of the spouses, and also to whom what property will be transferred. In the event of a litigation, the plaintiff independently determines all of the listed positions, while it should be borne in mind that the defendant may not agree with the claim, file or write.
When considering the case, the court will take into account the need for property and the interest in its use of each of the spouses, who mainly used the specific property, was the initiator of its acquisition. For example, the car will go to the spouse who has the right to drive. When dividing expensive things that cannot be divided in kind, for example, real estate (apartments, houses), the court will most likely determine the mode of shared ownership of these things.
Division of common debts of spouses
When property is divided, the joint debts of the spouses are also subject to division. The amount of debts will correspond to the size of the shares of the spouses in the division of joint property. If the shares of the spouses are recognized as equal, then all debts are divided in equal parts.
It should be borne in mind that only real, already incurred debts of the spouses are subject to division. If there are joint obligations (loan agreement or loan agreement), they can be divided between spouses only with the consent of the creditor (bank or borrower). If there is no such consent, then the obligations must be fulfilled by the spouse specified in the contract. After paying off the debt, he has the right to recover from the second spouse the share attributable to him.
Division of property in a civil marriage
We examined in detail the issues of division of property of spouses who officially registered the marriage with the registry office. But what about those citizens who simply live together without signing, the so-called cohabitation or civil marriage? In this case, the regime of joint ownership does not occur. Family code RF does not apply to such relations.
In this case, legal relations arise, which are regulated by the provisions of the Civil Code of the Russian Federation on the shared or individual property of several persons. Property becomes the property of the person in whose name and at whose expense it was acquired.
If one of the cohabitants saved money all the time of living together, living on the support of the second “spouse”, and then acquired an expensive thing (for example, a car or an apartment) in his own name, he will be the sole owner of this thing.
To avoid negative consequences, cohabiting citizens can be advised to document all their relationships. Acquisition of all things with joint money should be registered as shared ownership in order to avoid problems later.
