How property is divided during a divorce: we determine the state fee + what documents are needed + which court to apply to + 3 special cases that need to be considered in detail.
It’s worth starting with the fact that jointly acquired property is considered to be what was acquired by a husband and wife at the time they were in legal ties.
Joint property may mean:
- any type of real estate;
- stock;
- Bank deposit;
- business;
- auto.
If you are faced with such an unpleasant situation as a divorce, you should know what rules will apply to the division of all assets.
Details on how property is divided during divorce
It is not always possible to immediately divide property acquired together. Especially if the divorce process goes through the registry office.
According to the law of the Russian Federation, Article 34 of the Family Code of Russia (http://stskrf.ru/34), property can be divided between ex-husband and wife in court within 3 years.
This process is complex and involves a number of additional conditions, the need to collect a package of documents and prove your right to certain things. We strongly recommend that you seek professional help if you are faced with the need to share property with a former partner.
But for general information, let’s look at the main details of the case right now!
Cost of state duty
The amount of state duty is calculated as a percentage of the disputed value of the property; former spouses pay it separately. In case of divorce, the state fee is paid in court immediately before filing the claim, and a receipt for its payment is presented along with the claim package of documents.
Let's look at the rules for calculating state fees during a divorce:
| up to 20 thousand rubles. | 4 00 rub. |
| From 20 to 100 thousand rubles. | RUB 8,00+ 3% of the cost of the shared item |
| From 100 to 200 thousand rubles. | RUB 3,200 + 2% of property |
| From 20 to a million rubles. | 5,200 rub. + 1% of property |
| More than a million rubles. | 13,200 rub. + 0.5% of shared |
Required documents
First of all, the most important and first document will be a claim for dissolution of the union. This is an appeal to the court in which it is necessary to provide detailed information about the case.
Let's look at an example of a claim:
The following must also be included in the package of documents attached to the claim:
- Marriage certificate.
- Birth certificates of children.
- Certificates of income if we are talking about alimony.
- Receipt for paid state duty.
- Written consent of the second spouse for divorce, certified by a notary.
What property cannot be divided?
It is important to consider not only how property is divided during a divorce, but also what things can be divided in general. It is a mistake to believe that when a union is dissolved, everything can be divided.
Firstly, personal property that is not divided during a divorce is considered to be what was acquired or received before the union was registered. It is also worth mentioning intellectual property and payments for its sale.
Exceptions are items of this type of property for which both have copyright. For example, the general authorship of the book and the royalties received for its sale.
Let us summarize the information in a small table that clearly demonstrates what types of property are not divided during a divorce:
| Personal items, clothes, shoes, cosmetics. | With the exception of luxury items, especially if there is a receipt as a fact of acquisition of the object of donation. |
| Payment for intellectual property. | Royalties for written books, music, films, etc. |
| Indivisible things that are vital for one of the couple. | For example, a car, if one of the spouses proves that it is a source of income. In this case, it is considered a vital thing, as a result of the loss of which a person will lose his means of subsistence. |
| Insurance payments. | The insurance payment in the name of one of the spouses remains with him in full. |
| Children's real estate. | Any property registered or purchased in the name of children. |
Where will the divorce take place?
When there is a property claim during a divorce, you must get a divorce in court; you have no other options. Only if the couple does not have children under 18 years of age or property claims against each other, a divorce can be obtained through the registry office.
There you can get a divorce unilaterally if:
- one of the spouses is incapacitated;
- is in prison;
- considered missing.
Choice of court
It is important to understand which judicial authority to contact:
- to the district or city (at the place of registration);
- in the world.
If the spouses are able to resolve all the nuances of the divorce (namely, the division of property and the issue of custody of children, if any) independently, by mutual agreement, they can go to the magistrate’s court. The magistrate considers all claims whose value does not exceed 50 thousand rubles.
If the amount of the claim is higher, then you need to contact the district or city. The choice depends on the type of municipal government.
The address of the court you need can be found on the official website https://sudrf.ru/
How is division carried out if there are minor children?
In the absence of offspring, the court always tries to divide the property shares equally, but if there is a baby, priority is given to him, as a minor and less protected citizen.
The division between spouses is made on a two-thirds basis, where the majority is given to the parent who takes custody of the child. The fact of payment of child support by the second parent is not canceled.
Division of property in the presence of adult children
Adult offspring do not participate in the division of property upon the dissolution of their parents' marriage. This is indicated by Article 60 of the Family Code of the Russian Federation (http://skodeksrf.ru/rzd-4/gl-11/st-60-sk-rf)
If children are dependent on their parents, are disabled or incompetent, then their rights are also taken into account during division. In this case, the disabled child owns a separate share of what his parents acquired, even if he has reached 18 years of age.
The share allocated to such children is given to the custodial parent.
Special cases of division of property during divorce
1) Debts
Situations of particular importance in the question of how property is divided during a divorce include the issue of debts. If one of the spouses had unpaid debts before entering into the union, they do not apply to the second spouse. However, when property is divided, a debt share may be taken from what is received.
2) Civil marriage
The second special fact should be mentioned cohabitation and consider how property is divided in this case.
The answer is simple - no way. The court does not consider this type of relationship to be a legal marriage, therefore all marital rights and obligations are removed from the couple who wishes to dissolve the relationship. Each of the representatives remains with his own, the property is not divided, not counting the fact of donation confirmed by a notary.
The case when people do not live together, but are still in a legal relationship, is no less important, especially when one of the spouses has purchased real estate.
After all, the letter of the law states that all square meters purchased during marriage will be common. This means that they will share regardless of the fact that in fact the relationship could have ended long before the purchase.
In this case, you will need to prove to the court the fact of separation (read more in Article 38 of the Family Code of the Russian Federation - http://stskrf.ru/38) You will also need to present neighbors as witnesses who can confirm the fact of separation.
Situations arise when, after the 3 years allotted for resolving the issue of property division, the joint property is not divided in any way. What to do in this case?
In order for the claim to be satisfied, it is recommended to get a lawyer who will give the necessary instructions or, if necessary, resolve the issue in a judicial body for his ward. After all, we are talking about the statute of limitations for the division of property.
You can figure out the question of how property is divided during a divorce on your own. But to solve the problem in practice, it is recommended to use the services of a lawyer, especially if the jointly acquired property is valued at a tidy sum or there are minor children in the marriage.
It is also important to remember that during divorce proceedings you will have to pay a state fee and the process will take no more than 3 years.
How is property divided during divorce? How are loans divided in a divorce?
through divorce proceedings are interested in how property is divided during a divorce. how property is divided during a divorce if you familiarize yourself with the norms of domestic legislation regulating family relations.
How is property divided after divorce?
Many spouses who have decided to divorce are interested in how property is divided during a divorce . The legislator describes the procedure for dividing common property acquired during the period of marriage in Art. 38 RF IC.
The law indicates that the division of common property is carried out while persons are married or after its dissolution. The basis for the division of property objects may be:
- application from either spouse;
- claim of a creditor who has rights to a share of the property of one of the spouses.
The question of how loans are divided during a divorce is of interest to divorcing citizens who have unpaid loan obligations.
According to Part 3 of Article 39 of the RF IC, all common debts must be divided according to the principle of proportionality of shares received by citizens after the division of the total property mass.
Difficulties in dividing the loan
According to Part 2 of Article 45 of the RF IC, debt collection is applied to common property, provided that the judicial authorities find sufficient evidence to the fact that what was received was spent on the needs of the family. So, if a citizen took out a loan not for general family purposes, but to satisfy his own needs, then he will be the only debtor on the loan.
Banks have a negative attitude towards transferring debt to another debtor; this process significantly increases their risks and can cause losses.
Civil Code of the Russian Federation in Part 2 of Art. 391 regulates the imperative according to which the assignment of a debt to another debtor cannot be recognized as legal without the consent of the creditor.
- Thus, if the banking organization that issued the loan funds to the borrower does not give its consent to transfer part of the debt to the name of the debtor’s spouse, then such an operation will be impossible to carry out.
- To avoid such incidents, spouses are advised to take care of this issue while applying for a loan.
- Some banks make concessions and indicate the spouses of the debtors as co-borrowers or guarantors in the loan agreement.
- A number of credit institutions require candidate borrowers to provide written consent from their spouse to receive loan funds.
Mortgage apartment section
One of the difficulties regarding the division of property during a divorce is the division of an apartment taken on a mortgage, since it is not very clear who should get it.
As a rule, in this case, a new agreement is drawn up with the bank - not for one of the spouses, but for both at once. Usually banks agree to this, but sometimes disputes arise in which the division of property after a divorce must be carried out in court with the participation of both spouses and a representative of the bank where the mortgage was taken out.
The division of a mortgaged apartment during a divorce will be much easier if you conclude in advance:
- a marriage contract between spouses (it is useful not only for dividing an apartment during a divorce , but also for resolving other property issues;
- a special mortgage agreement in which the bank and the borrower will indicate how the apartment and loan payments will be divided during a divorce.
Joint property during divorce
As stated in the RF IC, the regime of joint ownership applies to the property of a wife and husband. It applies to any type of property acquired by each spouse during the marriage.
Common property
Thus, Part 2 of Article 34 of the Insurance Code includes the following as common property:
- Income of participants in marital relations received as a result of the performance of labor duties.
- Income transferred to a citizen after carrying out business activities.
- Benefits derived from the implementation of intellectual activity.
- Amounts of pensions, social benefits and other government payments received by the spouse that do not have a designated purpose. The legislator includes financial assistance received due to loss of ability to work as such payments.
- Property acquired through the investment of joint capital of spouses.
- Securities, shares in capital, shares and deposits.
- Other property acquired during marriage, regardless of the name of its actual owner or acquirer. Since property is common, even things registered in the name of one of the spouses will be jointly acquired.
Rights to common property
Any spouse has rights to property acquired during marriage. If one of the spouses did not have his own income during the marriage, then this circumstance does not deprive the citizen of the opportunity to claim his rights to common property.
If one of the married citizens wishes to make any transaction with the common property, then he must first of all find out whether the second spouse agrees to carry out such transactions. This means that the disposal of the common property mass of the spouses occurs by mutual consent of the husband and wife.
How is property recognized as common?
To recognize property as jointly acquired, the spouse will need to prove that the value of this property has increased as a result of investments made in it through:
- Common property of husband and wife.
- The property of each spouse.
- Labor of one of the spouses.
An increase in the price of a specific property may be a consequence of such actions as repairs, re-equipment or reconstruction of the property.
Operations for the disposal of common property
If the spouse who disposed of the property performed these actions without the consent of the second spouse, then the transaction may be declared invalid. In order for the transaction to be cancelled, the citizen will need to report the illegal actions of his spouse related to the disposal of joint property to the judicial authorities.
In cases where, in order to dispose of an item that is part of the jointly acquired property, a spouse needs to go through the procedure of notarization of the transaction, he will need the written consent of the second spouse, which must have notarial confirmation. If such official consent has not been obtained, then the citizen has the right to petition the court to declare the transaction invalid.
The term of the right to claim is limited to 1 year. This period begins to be calculated from the moment the second spouse discovers the fact of a transaction without his consent.
What property is not included in the common property?
The following types of citizen property cannot be classified as common property:
- Property acquired before marriage.
- Donated items.
- Inherited things.
- Property received as a result of other gratuitous transactions.
- Personal items, which usually include clothing and shoes, but do not include jewelry and other luxury items. Jewelry and other precious things are the property of the citizen who used them, regardless of who purchased them and with what money they were purchased.
- The right to the results of intellectual activity.
Division of land between former spouses
If the husband and wife owned a plot, it can also be divided during a divorce. The division of land during divorce is carried out in the following ways:
- determination of shares in property;
- transfer of the plot into ownership of one of the spouses with payment of compensation to the other.
After determining the size of the shares, the plot can either remain in shared ownership or be divided in kind into 2 new ones.
Who is responsible for dividing marital property?
As a general rule, the division of jointly acquired property is carried out in accordance with an agreement on the division of property concluded by the spouses. They have the right to notarize the document drawn up, but this legal procedure is not mandatory.
The judicial authorities take part in the division of property between spouses only if they have unresolved disputes, and the division of the common property of the spouses by common consent has not taken place.
Sample agreement between spouses on division of property
After a divorce, spouses have the right to voluntarily divide everything they previously acquired. To do this, they must enter into an appropriate agreement.
a sample agreement on the division of marital property both on our website and on any other legal resource. In addition, it can be prepared by a notary: although certification of such a document is not necessary, many, not without reason, prefer to play it safe.
How can ex-spouses file for division of property?
Former spouses wonder how to file for division of property after a divorce an agreement on the division of jointly acquired property could not be concluded.
However, judicial division can be carried out both immediately during a divorce, if it is done through the court (for example, if there are children), and after that. The division is carried out according to the rules of claim proceedings: one of the spouses files a claim in court, in which the second acts as a defendant.
Statute of limitations for judicial division
Judicial division of what was acquired by the spouses can only be carried out within a certain time - that is, within the statute of limitations for the division of property after a judicial divorce.
The general limitation period for cases of division of property does not exceed 3 years.
Rules for dividing common property in court
The powers of the court to divide property during a divorce include actions to determine the shares of each spouse or divorced citizen.
If these shares turn out to be disproportionate, that is, the total value of the property of one citizen significantly exceeds the price of the share of another person, then the citizen who received a smaller share has the right to receive compensation.
Compensation for the value of the lesser share may be paid in the form of a sum of money or in another form.
The property that was acquired by citizens during their separation may be excluded from the list of common property.
Kids' things
Items purchased for a common child under 18 years of age are the property of the citizen with whom the minor lives.
The law includes such items as property necessary to meet the child's needs, such as school supplies, clothing, shoes, books or musical instruments.
The listed properties are not subject to division between spouses. A similar fate awaits cash deposits invested in the name of a child under 18 years of age from the common property of the spouses.
Division of property before divorce
If the common property mass is divided before the divorce (for example, by concluding an agreement on the division of property of the spouses ), then the part of the undivided property and the part that was acquired after the division in the future is recognized as jointly acquired property.
Procedure for calculating shares
A prenuptial agreement concluded between spouses may contain a condition according to which, after a divorce, the spouses must receive equal shares of the common property.
Judicial bodies considering a case on the division of common property may not be guided by the principles of equality of shares. They are primarily based on the interests of:
- Children under 18 years of age.
- Spouses who have good reasons for receiving a larger share. Among such reasons, the law points to the citizen’s failure to receive income or the second spouse’s spending of funds, which caused significant damage to family interests.
Thus, the most important role in the division of property is played by its nature and the purposes for which it was acquired by the spouses or one of the married citizens. According to the law, a number of objects of the property complex cannot be common property.
After registration of the legal procedure for dissolution of marriage relations, such property passes to its owner in full.
Division of property during divorce - how to do it correctly?
Often, as a lawyer, my clients ask me about what is the right thing to do regarding the division of property acquired during the marriage. And very often people are interested in the question related to the moment of going to court regarding a property dispute, namely, should a division be made during a divorce or after?
- If you read on the Internet and google legal forums on family matters, you can come across completely different points of view on this issue.
- Some people believe that it is not necessary to rush into dividing property and that it is sufficient to initially resolve the dispute over marriage and child support in court.
- Someone, on the contrary, believes that the division of property should be started simultaneously with filing a claim for divorce, and if this is not done immediately, then you will have to work hard in the future in order to receive your share of the goods acquired during the marriage in full.
- In this article I will express my opinion as a lawyer on this issue, based on my own judicial experience and the real life situations of my clients.
Simultaneous division of property during divorce
So, life together did not work out and the couple decided to end it. In a marriage there are children, property and unresolved issues regarding all of this. As a rule, in such a situation, it is the spouse who applies to the court with a statement of claim for divorce and collection of alimony for child support.
In order to immediately make a division of property in this legal process, the spouse herself can include in her claim claims for her share of the apartment, car, deposit and other jointly acquired property.
That is, to solve everything at once during a divorce trial.
Also, such an initiative can come from the spouse if, in response to a claim for divorce and alimony filed against him, he files his own counterclaim, but this time a property claim for division.
Distinctive features of combining claims for divorce and division of property are the following significant points:
- Such a case, when several claims are combined, will be heard not in the magistrate’s court, as in the case of a simple divorce, but in the district (city) court.
- The period for consideration of such a claim can last three, six months, or even more than a year, since the court will have to establish the value of the divisible property, including with the involvement of an expert.
- The division of spouses' property during a divorce entails an increase in the state duty from 600 rubles to several thousand or even tens of thousands of rubles, since the state duty on property claims is calculated from the price of the claim.
What are the benefits of dividing property immediately during a divorce?
The couple had just lived together, but a quarrel separated their destinies and a lawsuit was filed in court for divorce. Since the life together of the defendant and the plaintiff is interrupted only in court, naturally, in this case, each of the spouses is well aware of the existence of jointly acquired goods: apartments, houses, cars, loans, deposits, furniture, etc.
Therefore, the most important advantage of property division in hot pursuit during divorce is awareness of the composition, cost and location of all property of both parties to the process.
In my legal practice, there have been cases when clients divorced, years passed, and then one of them was ready to make a division of their acquired property. But, since years have passed, there is no longer any information about the safety and location of the things to be divided.
It is necessary to establish the location of the car, check the availability and safety of the cash deposit, the safety of the furniture, and perform other additional actions for which the client has to pay.
In addition, it also happens that suddenly after a divorce it suddenly turns out that the joint car, equipment, furniture were sold by the other party to someone at a ridiculous price. In this case, it is necessary to appoint examinations to determine the real market value of the items sold, which will also be very burdensome for the client.
In my legal practice, there have been cases when, when initiating a lawsuit on the division of jointly acquired property after a divorce, it suddenly turned out that the other party during the marriage had received receipts for the return of money allegedly borrowed from friends and relatives.
And yes, there have even been cases when the opposite party managed to independently sell, mortgage, or donate a joint house, apartment, or land plot without the consent of the ex-spouse.
What is interesting is that in these cases, such illegal actions of the outgoing party were facilitated by the long time gap between the termination of family relationships, divorce and subsequent division of jointly acquired property.
And here, without delving yet into the intricacies of the belated division of property, I can immediately give advice. If you have such an opportunity and have the money to pay a significant state fee, always make a division of property immediately when the spouses divorce in court. Dividing everything at once during a divorce will save you from subsequent problems and unnecessary expenses on lawyers!
Division of property after divorce after years
So, the marriage was dissolved, the family broke up, the former spouses went to different apartments, cities, or even countries, but when the marriage was dissolved, they did not share everything that they had acquired during the marriage. What lies ahead for them?
First, let's look at the statute of limitations for this category of cases.
It is 3 years, but is calculated not from the date of divorce, as many mistakenly believe, but from the day one of the spouses became aware that his property rights were violated, that is, for example, from the moment the ex-spouse sold the car, withdrew money from the deposit or committed other unilateral actions.
What difficulties await a citizen if he files a claim in court for the division of property after a long period of time after a divorce:
- It is difficult to establish in what condition the property has been preserved and where it is located.
- It is necessary to prove that the item was sold at a reduced price if one of the spouses disposed of it after a divorce without agreeing on the sale price with the other party.
- The ex-spouse can sell off all the property they have acquired together and spend the proceeds, becoming bankrupt. In this case, it will, of course, be unrealistic to obtain property or cash by court decision from such a poor fellow.
- If the only home is divided, then after a while it is much more difficult to agree with the other party on the sale of an apartment or house in order to pay monetary compensation for their share. But in hot pursuit, when the spouses still live in such an apartment or have lived in it recently, such negotiations are more successful, including in court during a divorce.
- If a joint business, for example, a share in an LLC, falls under the section, then over time the second party can significantly reduce the real market value of such a joint share by introducing affiliates, for example, relatives, into the founders of the legal entity.
- It is better to divide credit debts immediately during a divorce, since over time such debts, as a rule, accrue additional penalties in the form of penalties and penalties, and the interest on them also increases. The reason lies in the fact that usually the loan is issued to one of the spouses, and when the marriage breaks up, such a person often stops repaying it on time.
In general, summing up the legal topic raised, we can state that the joint property of the spouses, with the right approach to the legal process, is completely divided both during a divorce and years after the dissolution of the marriage. It’s just that in the first case it’s easier, simpler and cheaper to do it!
What is divided between spouses during a divorce - inheritance, according to the law, what property
Divorce is often accompanied by conflict situations, which can only be resolved in the courts. At the same time, the judge is not concerned with the question of who cooked the borscht, but who earned the capital.
All real estate and movable property will be divided “according to conscience,” according to law and justice. Of course, most of the property mass will go to the “half” who took on the responsibilities of raising children.
How is disputed property divided according to law?
What is divided between spouses during a divorce is decided in court. To initiate a civil case, you need to contact the justice of the peace district at your place of residence.
Attention! Magistrates are contacted if the price of joint property is less than 50 thousand rubles.
When the amount exceeds this amount, you should appear in the district court at the plaintiff’s registration, the defendant’s registration or the place of registration of real and movable property.
In many regions, the rule of “exclusive jurisdiction” applies - the application is accepted in the place where most of the disputed real estate is located.
One of the spouses, who is also an interested party, draws up a statement of claim. It clearly lists the issues at issue.
An example of such a claim:
An official marriage was concluded between me (full name, date of birth, passport data) and the defendant (full name, date of birth, passport data) in the period from __ to ___. The marriage registration was carried out in the civil registry office of the __district of the city__, as evidenced by the document (stamp number, deed record).
__(date), (month), (year) our couple divorced, the marriage was dissolved on the basis of (decision of the registry office or decision of the magistrate).
The division of jointly acquired property has not previously been carried out. I tried to conclude a settlement agreement, but all my attempts to resolve controversial issues were unsuccessful. Unfortunately, a marriage contract was not signed between us, not before marriage, not during the marital relationship.
During the marriage, we acquired movable and immovable property consisting of:
- Apartment, area, purchase and sale agreement.
- Women's fur coat, size 48, sales and cash receipt dated (date, year).
- Car, model, brand, purchase and sale agreement, vehicle registration certificate.
- Camera, model, sales receipt and cash receipt.
In accordance with Article 39 of the Family Code, the property of former spouses acquired during marriage is divided in equal shares, unless another division is provided for in the marriage contract or settlement agreement.
I believe that the following objects and things should remain in my property:
for compelling reasons:______________indicate why the plaintiff needs these items.
Article 38 of the Family Code allows for the division of property both after divorce and during marriage. The court decides on a fair division. If one of the former spouses is given a larger share, then the other is paid compensation in cash equivalent.
I believe that I am guaranteed compensation for transferring the car into the ownership of my ex-husband. Remuneration calculation:____________________
Based on the Code of Civil Procedure, I ask:
- Divide everything equally.
- Recognize my ownership of__.
- Pay me compensation for (item of property)__in the amount of__(figure in rubles).
- Appendix: (list of documentation attached to the statement of claim)
- Date of filing the claim__
- Signature___
When and how to file a claim?
The application can be submitted at any time.
The judge will make a fair decision in each case:
- After the divorce has taken place in the registry office, the so-called dissolution of marriage by mutual consent.
- Before divorce, together with a claim for divorce.
How to apply for alimony after a divorce if the husband does not work? Find it at the link.
Attention! The period for appealing to judges is limited by the three-year limitation period. It is allowed to submit several applications or one. Sharing is allowed from “forks and beds” to yachts and joint businesses.
The three-year period is calculated from the moment one of the spouses realizes that his rights have been violated.
Example situations:
- Immediately after the divorce or a little later, the husband took the car that was purchased during the marriage. He began to use it alone, without taking into account the needs of his ex-wife. By the way, she also has a driver's license and drives her children in a vehicle. In this case, the countdown is carried out immediately from the date of the “theft” of the wife.
- The dacha was listed as jointly acquired property. For a long time (6 years), all family members (after a divorce) went to the site: ex-spouses and their children. And then the wife decided to sell the house. The ex-husband cannot ignore this fact: the statement of claim is drawn up immediately after the conclusion of the purchase and sale agreement.
Algorithm for submitting a written expression of will:
- Determine the composition of the property that one of the spouses wishes to claim.
- Try to sign a settlement agreement with your spouse.
- Determine the authority that will resolve the problematic issue.
- Pay the state fee.
- Hire a lawyer or attend all scheduled court hearings yourself.
What is taken into account in court during a divorce?
Truth is born in dispute. The court listens to both the wife's point of view and the husband's.
In this case, the fundamental circumstances are considered:
- Who offered to buy the “controversial” item?
- Who used the facility the most?
- Who took care of the item?
- Who bore most of the maintenance costs?
About property belonging to children
The divorce process cannot be painless if there are children together. The procedure itself is transferred to court, where emotions can only get in the way. Points of disagreement prevent us from finding the “golden mean.”
The best option for parties to the conflict is not to come to the courtroom. But for this you need the help of a consultant-lawyer. He will insist that part of the property that is already registered in the children’s name is not divided between the parents.
The right to dispose of it remains with the parent who will be directly involved in raising children.
What is shared between spouses during a divorce and what is not shared?
So, the “indivisible” property includes the property of children. If they turn 18 years old, they have the right to dispose of their objects for their intended purpose, donate or sell.
By that time, no one asks the opinion of elderly parents.
Other circumstances when one of the family members cannot claim “hard earned money”:
- According to Article 57 of the Family Code, private property is not divided. It is understood that if a spouse purchased a car, a house, a dacha before marriage, then this is his personal “economy” forever and ever.
- Property acquired by her or him during marriage, but at the expense of personal funds. This, of course, is very difficult to prove in court, but you can try.
- Housing that was privatized during the marriage.
- Land plots acquired under the privatization program.
- Personal items, including expensive jewelry, even if they were accepted as a gift at the expense of the husband. Such property is divided simply: a gold men's watch - to the husband, gold women's earrings - to the wife. Accordingly, it is impossible for a former spouse to seize a size 46 fur coat from his wife unless he provides evidence that it was purchased in the men's sheepskin coat department and for him personally.
- Prizes and awards received for personal merit also cannot be divided.
- The family member who was a defendant (plaintiff) in the case has the right to receive all penalties in criminal cases and insurance damages. All transfers are withdrawn only to his account before and after the divorce.
It happens that a family exists peacefully for several years, and then disagreements arise. As a result, the negligent husband leaves the common home. He lives for several years in another place and during this time becomes the owner of new property.
Is it possible to protect an expensive purchase from the claims of my wife? It turns out that it is possible.
To do this, you need to find witnesses who will tell at the court hearing that two people who were close until recently do not live together, do not run a common household, do not rejoice in each other’s successes and generally do not know about the latest important acquisitions.
If the judge believes the arguments of neighbors, friends, acquaintances, colleagues and other sources of evidence (video surveillance camera footage from entrances, places of work), then the movable and immovable property will be classified as the property of the plaintiff, not the defendant.
Is the inheritance divided?
Paragraph one of Article 36 of the Family Code clearly states that property that was received by inheritance or given as a gift remains with the spouse who was indicated in the certificate of inheritance or in the gift agreement.
The divorce or marriage of this person does not affect these circumstances in any way.
When initiating the property division procedure, the plaintiff must remember that not only income will be divided, but also debts. Very often, court hearings end with one of the former spouses being forced to sell a share in the property in order to repay the loans.
Division of property in divorce: complex cases
Let's say the spouses have already divorced, but the property has not yet been divided. They have three years to do this. To file a claim in court, you must obtain extracts from the Unified State Register of Real Estate (USRN) for all real estate properties. This document is issued to any person through the MFC.
In order to order an extract, you must have a passport with you, indicate the address of the property and bring a paid receipt of the state duty (in the amount of 400 rubles). If you do not have other documents for the property (for example, a purchase and sale agreement), then the court will accept the claim only with an extract from the Unified State Register.
This extract contains information about the cadastral value, with which you can calculate the amount of state duty.
Also, to file a claim, you need a divorce certificate, a court decision on divorce and some minor documents (extract from the house register, technical passport for the apartment, etc.)
Marriage, divorce and your real estate
The court is already considering the issue of divorce and division of property at the request of one of the spouses. How to build protection to preserve your property?
One of the spouses filed a lawsuit against the other demanding a divorce and division of property. As a rule, such claims are preceded by some kind of conflict, so the claim may contain clearly unfair proposals for division.
When thinking over your line of defense in court, you should decide which property you are willing to part with (with the condition that you receive monetary compensation), and which is worth fighting for. The defendant has the right to object in court and file a counterclaim in which he will offer his vision of how to divide the property.
As part of the process, you will need to present to the court the missing documents regarding the joint property. However, the defendant must remember that some documents in court may well harm him.
One or both spouses have personal premarital property. who can claim what?
If you have real estate purchased before marriage (it does not matter whether you lived together before marriage or not), then such real estate is not subject to division between spouses after divorce. The exception is mortgage housing, but this will be discussed below.
There is real estate received during marriage through inheritance, privatization, donation and other gratuitous transactions. Can it be divided?
Real estate received through gratuitous transactions is the personal property of a spouse. It does not matter whether the person was married at the time of taking ownership or not. Free transactions are those transactions that do not require joint investment of marital money to purchase real estate.
Examples of receiving real estate free of charge: inheritance, donation (including to a spouse), privatization, exchange of a pre-marital apartment for a new apartment during marriage (only additional payment is subject to division). Exceptions are apartments received at the place of service, work, apartments under a lifelong annuity agreement with a dependent.
Dividing a mortgage is crazy complicated, right?
The division of mortgage housing inspires such fear in many couples that sometimes people do not get divorced for years just because of this. Yes, splitting a mortgage is not easy, but it is quite possible.
As a rule, the mortgage loan is registered in the name of both spouses as co-borrowers, and the property is registered in half for each. A mortgage can only be divided through the court and nothing else.
The third party is always the relevant bank.
Who has the right to a mortgage apartment after divorce?
Is an apartment purchased with a military mortgage subject to division?
In court, the parties determine the format for dividing the apartment:
- transfer the loan and property to one spouse with compensation for the other;
- give up property and credit and receive monetary compensation;
- make a division of the loan in case of registration of a mortgage and property for only one spouse, etc.
During court proceedings, pay the mortgage, even if one of the spouses refuses to pay (then you will recover half of the amounts paid from him).
If an apartment was purchased with a mortgage before marriage, and the loan was paid for it already during the marriage, then, depending on the amount, you can either allocate a share to the second spouse or recover monetary compensation in the appropriate amount.
You can also sell a mortgaged apartment (and the bank’s consent is not necessary for this).
How to divide an apartment, the cost of which was partially paid with maternity capital?
If the mortgage is partially paid with the help of maternity capital, then this apartment is subject to division between children and parents in equal shares (for example, ¼ each). The corresponding demands must be presented to the court.
How to divide a house that was built by spouses jointly, but on the personal land plot of one of the spouses?
The case when a joint house was built during marriage on the personal land plot of one of the spouses is not the easiest, but it can be solved. True, even in this case you will have to go to court.
A spouse who is not the owner of the land, but has the right to half of the house, can establish in court a limited right to use the land (easement). Or buy part of the land from your ex-spouse.
In the latter case, you can become the owner of the house, in all others - not.
What to do if one of the spouses borrowed money during marriage to buy real estate, and returned the money to the lender from the sale of their own premarital property?
Real estate purchased during marriage with borrowed funds is joint property. There is only one exception to the general rule: one of the spouses has repaid the debt to the lender or bank from the sale of their own premarital or personal property.
In this case, when dividing in court, it is necessary to present evidence and a causal relationship between the payment of the debt and the sale of the property. It is best to make payments through a bank, but cash transfers can also be confirmed.
The main thing is to think over the right strategy, and a lawyer will help you with this.
How to divide property if former spouses live in different cities?
Let’s say that former spouses live in different cities, and division of property is required in one or more regions. In this case, jurisdiction is determined by the plaintiff at the location of any of the existing real estate, disputes regarding all objects are considered in one court. The documents needed for the court are the same as those described in the first case.
How is property divided during divorce? How are loans divided in a divorce?
through divorce proceedings are interested in how property is divided during a divorce. how property is divided during a divorce if you familiarize yourself with the norms of domestic legislation regulating family relations.
Many spouses who have decided to divorce are interested in how property is divided during a divorce .
The legislator describes the procedure for dividing common property acquired during the period of marriage in Art. 38 RF IC.
The law indicates that the division of common property is carried out while persons are married or after its dissolution. The basis for the division of property objects may be:
- application from either spouse;
- claim of a creditor who has rights to a share of the property of one of the spouses.
The question of how loans are divided during a divorce is of interest to divorcing citizens who have unpaid loan obligations.
According to Part 3 of Article 39 of the RF IC, all common debts must be divided according to the principle of proportionality of shares received by citizens after the division of the total property mass.
According to Part 2 of Article 45 of the RF IC, debt collection is applied to common property, provided that the judicial authorities find sufficient evidence to the fact that what was received was spent on the needs of the family. So, if a citizen took out a loan not for general family purposes, but to satisfy his own needs, then he will be the only debtor on the loan.
Banks have a negative attitude towards transferring debt to another debtor; this process significantly increases their risks and can cause losses.
Civil Code of the Russian Federation in Part 2 of Art.
391 regulates the imperative according to which the assignment of a debt to another debtor cannot be recognized as legal without the consent of the creditor. Thus, if the banking organization that issued the loan funds to the borrower does not give its consent to transfer part of the debt to the name of the debtor’s spouse, then such an operation will be impossible to carry out.
To avoid such incidents, spouses are advised to take care of this issue while applying for a loan. Some banks make concessions and indicate the spouses of the debtors as co-borrowers or guarantors in the loan agreement.
A number of credit institutions require candidate borrowers to provide written consent from their spouse to receive loan funds.
One of the difficulties regarding the division of property during a divorce is the division of an apartment taken on a mortgage, since it is not very clear who should get it.
As a rule, in this case, a new agreement is drawn up with the bank - not for one of the spouses, but for both at once.
Usually banks agree to this, but sometimes disputes arise in which the division of property after a divorce must be carried out in court with the participation of both spouses and a representative of the bank where the mortgage was taken out.
The division of a mortgaged apartment during a divorce will be much easier if you conclude in advance:
- a marriage contract between spouses (it is useful not only for dividing an apartment during a divorce , but also for resolving other property issues;
- a special mortgage agreement in which the bank and the borrower will indicate how the apartment and loan payments will be divided during a divorce.
As stated in the RF IC, the regime of joint ownership applies to the property of a wife and husband. It applies to any type of property acquired by each spouse during the marriage.
Thus, Part 2 of Article 34 of the Insurance Code includes the following as common property:
- Income of participants in marital relations received as a result of the performance of labor duties.
- Income transferred to a citizen after carrying out business activities.
- Benefits derived from the implementation of intellectual activity.
- Amounts of pensions, social benefits and other government payments received by the spouse that do not have a designated purpose. The legislator includes financial assistance received due to loss of ability to work as such payments.
- Property acquired through the investment of joint capital of spouses.
- Securities, shares in capital, shares and deposits.
- Other property acquired during marriage, regardless of the name of its actual owner or acquirer. Since property is common, even things registered in the name of one of the spouses will be jointly acquired.
Any spouse has rights to property acquired during marriage. If one of the spouses did not have his own income during the marriage, then this circumstance does not deprive the citizen of the opportunity to claim his rights to common property.
If one of the married citizens wishes to make any transaction with the common property, then he must first of all find out whether the second spouse agrees to carry out such transactions.
This means that the disposal of the common property mass of the spouses occurs by mutual consent of the husband and wife.
To recognize property as jointly acquired, the spouse will need to prove that the value of this property has increased as a result of investments made in it through:
- Common property of husband and wife.
- The property of each spouse.
- Labor of one of the spouses.
An increase in the price of a specific property may be a consequence of such actions as repairs, re-equipment or reconstruction of the property.
If the spouse who disposed of the property performed these actions without the consent of the second spouse, then the transaction may be declared invalid.
In order for the transaction to be cancelled, the citizen will need to report the illegal actions of his spouse related to the disposal of joint property to the judicial authorities. In cases where, in order to dispose of an item that is part of the jointly acquired property, a spouse needs to go through the procedure of notarization of the transaction, he will need the written consent of the second spouse, which must have notarial confirmation. If such official consent has not been obtained, then the citizen has the right to petition the court to declare the transaction invalid.
The term of the right to claim is limited to 1 year. This period begins to be calculated from the moment the second spouse discovers the fact of a transaction without his consent.
The following types of citizen property cannot be classified as common property:
- Property acquired before marriage.
- Donated items.
- Inherited things.
- Property received as a result of other gratuitous transactions.
- Personal items, which usually include clothing and shoes, but do not include jewelry and other luxury items. Jewelry and other precious things are the property of the citizen who used them, regardless of who purchased them and with what money they were purchased.
- The right to the results of intellectual activity.
If the husband and wife owned a plot, it can also be divided during a divorce. The division of land during divorce is carried out in the following ways:
- determination of shares in property;
- transfer of the plot into ownership of one of the spouses with payment of compensation to the other.
After determining the size of the shares, the plot can either remain in shared ownership or be divided in kind into 2 new ones.
As a general rule, the division of jointly acquired property is carried out in accordance with an agreement on the division of property concluded by the spouses.
They have the right to notarize the document drawn up, but this legal procedure is not mandatory.
The judicial authorities take part in the division of property between spouses only if they have unresolved disputes, and the division of the common property of the spouses by common consent has not taken place.
After a divorce, spouses have the right to voluntarily divide everything they previously acquired. To do this, they must enter into an appropriate agreement.
a sample agreement on the division of marital property both on our website and on any other legal resource.
In addition, it can be prepared by a notary: although certification of such a document is not necessary, many, not without reason, prefer to play it safe.
Former spouses wonder how to file for division of property after a divorce an agreement on the division of jointly acquired property could not be concluded.
However, judicial division can be carried out both immediately during a divorce, if it is done through the court (for example, if there are children), and after that.
The division is carried out according to the rules of claim proceedings: one of the spouses files a claim in court, in which the second acts as a defendant.
Judicial division of what was acquired by the spouses can only be carried out within a certain time - that is, within the statute of limitations for the division of property after a judicial divorce.
The general limitation period for cases of division of property does not exceed 3 years.
The powers of the court to divide property during a divorce include actions to determine the shares of each spouse or divorced citizen. If these shares turn out to be disproportionate, that is, the total value of the property of one citizen significantly exceeds the price of the share of another person, then the citizen who received a smaller share has the right to receive compensation.
Compensation for the value of the lesser share may be paid in the form of a sum of money or in another form.
The property that was acquired by citizens during their separation may be excluded from the list of common property.
Items purchased for a common child under 18 years of age are the property of the citizen with whom the minor lives.
The law includes such items as property necessary to meet the child's needs, such as school supplies, clothing, shoes, books or musical instruments.
The listed properties are not subject to division between spouses. A similar fate awaits cash deposits invested in the name of a child under 18 years of age from the common property of the spouses.
If the common property mass is divided before the divorce (for example, by concluding an agreement on the division of property of the spouses ), then the part of the undivided property and the part that was acquired after the division in the future is recognized as jointly acquired property.
A prenuptial agreement concluded between spouses may contain a condition according to which, after a divorce, the spouses must receive equal shares of the common property.
Judicial bodies considering a case on the division of common property may not be guided by the principles of equality of shares. They are primarily based on the interests of:
Children under 18 years of age.
Spouses who have good reasons for receiving a larger share. Among such reasons, the law points to the citizen’s failure to receive income or the second spouse’s spending of funds, which caused significant damage to family interests.
Thus, the most important role in the division of property is played by its nature and the purposes for which it was acquired by the spouses or one of the married citizens. According to the law, a number of objects of the property complex cannot be common property. After registration of the legal procedure for dissolution of marriage relations, such property passes to its owner in full.
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