How to sue property during a divorce, how to win division

Statement of claim for division of property. Basics! The most important point. Take it seriously.

But, before compiling it, let me give you a few recommendations.

First recommendation: First divorce, and then division of property.

If possible, it is better to separate in time the filing of a claim for divorce and the filing of a claim for division of property.

In simple words, it is better to get a divorce first and then divide the property.

The explanation is simple. If you combine the process of divorce and the process of division of property, this can drag on “for a very long time.”

It is much easier to file for divorce first - it will take 1-2 months. And then, you can calmly deal with the division of property AFTER the divorce.

And, if you buy, for example, a car after the divorce, then it will be your personal property. And, you won’t have to share it with anyone.

Second recommendation: Get help from a lawyer.

Third recommendation: Get the help of a lawyer when drawing up a statement of claim.

List of documents for the division of property:

• statement of claim
• receipt of payment of state duty
• marriage certificate
• divorce certificate (if you are applying for division of property after a divorce)
• children's birth certificates
• documents confirming ownership (movable and immovable property)

If the total value of the property does not exceed 50,000 rubles, then an application for division of property is submitted to the magistrate’s court. If it exceeds 50,000 rubles, then to the district court.

Payment of state duty

To consider your case in court, you must pay a state fee. This payment goes to the state.

At the moment, in 2018, the state duty is the following amount:

• If the claim amount is less than 20 thousand - 4% of the claim price, but not less than 400 rubles;
• from 20 to 100 thousand – 800 rubles. plus 3% of the amount exceeding 20 thousand;
• from 100 to 200 thousand – 3200 rub. plus 2% of the amount exceeding 100 thousand;
• from 200 thousand to 1 million rubles. – 5,200 and 1% of the amount exceeding 200 thousand;
• If the value of the claim is more than 1 million – 13,200 rubles. plus 0.5% of the amount exceeding 1 million, but not more than 60 thousand.

Those. The state duty varies from 400 rubles to 60,000 rubles, depending on the price of the claim.

Time limits for division of property during divorce. “Oh, how long will this last?”

The period for dividing property in court can take from 2 to 6 months.

This depends on many factors:

• from the relationship of the spouses (if they are “at odds”, then the battle is “for a long time”)
• on whether the court needs to make additional inquiries about the availability of this or that property
• from the presence of professional lawyers on both sides
• whether the couple has children or not, etc.

Division of property DURING a divorce or AFTER a divorce. Is there a difference?

Well, division of property AFTER a divorce is, firstly, faster, because... purely property issues are being resolved. And, secondly, you will already be officially free from your previous relationship. And you can both enter into new relationships and buy new property without fear that it will be divided.

We recommend our clients to do just that. Moreover, their participation in court will not be required. Our lawyers will independently conduct the divorce process. And they will independently represent the client’s interests during the division of property.

“How does this actually happen...?” Which side will win in the division of property?

The truth of life is that in court, ex-spouses turn into enemies. This is observed in 9 cases out of 10. There is no need to harbor illusions that “everything will be great for you.” We do not draw this conclusion out of thin air. And we base it on hundreds of cases carried out.

We need to prepare for the trial! The number of gray schemes that ex-spouses use is off the charts. Everything is put into action. And “false” testimony, and fraudulent loans and credits. Moreover, this is used by both husbands and wives.

We often come across situations where one of the spouses tries to “play” the child’s card in court. When, with the help of children, mercantile goals regarding the division of property are resolved.

You need to prepare for the property division court! Work through various options for the development of events. Collect all documents. Send the necessary requests to Rosreestr, banks and other organizations responsible for registering property.

Whoever prepares better will win this process!

How to sue for property during a divorce?

Quite often, during a divorce (or after the termination of a marital relationship), the parties resort to the division of jointly acquired property. However, this procedure has a number of features and nuances that are important to consider. During the division, many spouses have a question: how to sue for property during a divorce? But can this be done and if so, how?

What property is subject to division?

The current legislation of the Russian Federation provides for a list of property that is not subject to division, even if it was acquired during the period of the marital union. This is not subject to division:

• Property that was acquired by a spouse as a result of participation in a gratuitous transaction (inheritance or gift).
• Items purchased to meet the needs of the spouses' children (for example, school and sports supplies, clothing, shoes, musical instruments, books, textbooks, uniforms, etc.).
• Deposits that were opened by spouses in the name of their children, since they, as well as the above items, belong to a specific child, despite the participation of the parents.
• Property acquired before or after marriage.
• Personal items (clothing, shoes, hygiene items, etc.).
• Products of sports or intellectual activity (awards, cups, original works, etc.).

How to divide property?

There are two main ways to divide property:

1. On a voluntary basis - by drawing up an appropriate agreement.
2. Forcibly - through a judicial authority.

So, if the parties managed to reach an agreement on the procedure for dividing property, then they need to draw up an agreement and then have it certified in a notary’s office.

If the spouses were unable to reach a common opinion, then the division is carried out through the court.

Division of property through court

Preparation of a statement of claim

The statement of claim usually contains the following information:

• The name of the court where the documents are submitted (its selection is made in accordance with jurisdiction and jurisdiction).
• Information about the spouse who acts as the plaintiff (in particular, it is required to enter data such as full name, address of actual residence, telephone number for contact).
• Information about the spouse who will be the defendant in the process (full name, residential address, contact telephone number).
• Document's name.
• Information that the parties are (were previously) in a marital relationship with reference to a document that would confirm the above fact (certificate).
• A list of property that citizens acquired during marital relations with a detailed description of it. For example, if we are talking about an apartment, then the address of the location of the property, size (in sq. m.), floor, cost.
• A request for the division of property and the allocation of a larger share (indicating good reasons).
• List of attached documentation.
• Date of filing the claim and signature.

If we talk about additionally attached documentation, then, as a rule, the following is used:

• A copy of the document confirming the identity of the plaintiff.
• A copy of a document with which you can confirm the identity of the plaintiff’s representative, as well as his authority.
• A copy of the document on the conclusion/termination of the marital relationship.
• Copies of documents for the property (both movable and immovable) that is the subject of the dispute.
• Certificates confirming income level.
• The original document confirming payment of the state fee (payment details can be clarified in court).

The above is a non-exhaustive list of documentation - if the plaintiff wishes, it can be supplemented - the law does not impose restrictions in this case.

Submitting a claim to court

Consideration of a claim in court

If the application is accepted for proceedings, the judge makes a ruling and initiates a civil case, and the parties are summoned to the trial.

During the trial, each party tries to defend its position, after which the judge retires to the deliberation room to make a decision.

As a rule, during division, spouses find themselves in an equal position, however, there are exceptions to this rule - and the shares will not always be the same.

Thus, the following points may affect the size of shares:

1. One of the spouses did not work for a long period of time without good reason (pregnancy and child care or illness are considered good reason).
2. The spouse (no matter - husband or wife) did not direct the income received to the family, but used it to purchase alcoholic beverages, drugs, or to participate in gambling.
3. During the marital relationship, citizens had children who, after the divorce, will remain with one of the spouses.

Also, a representative of the judicial authority may decide to allocate a share in property that, by law, is not subject to division. Thus, a share in such property can be allocated if the second spouse has significantly increased the value of the property - for example:

• The wife inherited a plot of land, and the husband built a house on its territory.
• The husband received a private house as a gift, and the wife, using her own funds, hired a team of workers who carried out major repairs on it.

All of the above facts will need to be confirmed (documented or by witness testimony) - otherwise the court will refuse to satisfy the requirements, and its refusal will be completely justified.

If one of the spouses does not agree with the decision, he has the right to prepare and file an appeal before the deadline for appeal expires.

The complaint is also drawn up in writing and submitted to the body that carried out the consideration, but addressed to a higher court.

If the parties did not exercise their right and did not file a complaint, after the deadline for appeal has expired, the decision comes into force and is subject to execution. If one of the parties evades execution of the decision voluntarily, this will be done forcibly.

Division of property in the presence of a marriage contract

Also, the division of property can be made on the basis of a marriage contract, which the couple entered into before entering into a marital union or after the formalization of family relations. A marriage contract may provide for an unequal division of property or the transfer of specific objects to one of the spouses.

In this case, the marriage contract may be declared invalid if there are compelling reasons:

• Failure of one of the spouses to comply with the terms of the contract.
• The financial situation of the family has undergone significant changes and/or the income level of one of the spouses has changed.
• Circumstances have changed so much that the agreement has lost its original meaning.
• The presence in the document of conditions that contradict the norms of current legislation.

To declare a marriage contract invalid, the interested party must file a corresponding claim in court. The claim will be considered in the manner prescribed by current legislation.

If the court considers the demands to be justified, the division will be carried out in accordance with the general procedure.

If a representative of the judicial authority decides to terminate the marriage contract, the parties may try to reach an agreement on the division voluntarily or go to court for these purposes.

Examples from judicial practice on the division of property during divorce

When a marriage is dissolved, the spouses must simultaneously resolve other issues related, for example, to raising children, paying alimony for their maintenance, or dividing their common property. On what basis is property acquired jointly distributed between divorcing spouses?

Key points on property division

The question of what property is recognized as the joint property of a husband and wife and how it is divided is regulated by law. Let's consider the basic principles by which issues related to their common property are regulated.

What is included in the concept of jointly acquired property?

The common joint property of a husband and wife includes all property acquired (purchased or built) by them during marriage. This means only a marriage registered with the registry office.

The income level of each of them and who earned how much does not matter. All this property upon divorce will be divided between them in equal shares. Even if the wife was engaged in housekeeping and raising children, she has the same right to it as a working spouse. Property is divided in the same way if the second spouse did not work for other reasons.

On what principle does the division take place?

Property classified as common joint property of spouses is divided in equal parts upon divorce, regardless of which of them contributed to its acquisition and in whose name it is registered.

Real estate or vehicles are subject to mandatory registration and registration of ownership.

If, for example, a working spouse is indicated as the owner of an apartment and a car, and his wife did not work, then upon division she will also have the right to half of this property.

Only personal belongings of spouses, for example, clothes, are not subject to division, but at the same time, luxury items are divided in half (mink coats or jewelry with diamonds).

Do not forget that upon divorce you will have to divide not only property, but also joint debts.

If the apartment was purchased with loan funds, then the remaining amount of the outstanding loan is subject to division between the husband and wife. Debts are also divided in half.

And after the divorce, each of them will have to repay half of the remaining loan alone due to the court imposing such an obligation on them.

Is inherited property divided?

If, while living in a registered marriage, one of the spouses receives property as a gift or by inheritance, then it is excluded from the list of property subject to division during a divorce. It is the personal property of its owner. Everything that belonged to him before the marriage was registered will also be classified as personal property.

When the case of division of property comes to court due to the fact that the spouses were unable to agree peacefully, then pay attention to the main mistakes that they make. Many spouses believe that if they contributed a significant part of their earnings to the family budget, then when they divide, they should get a large part of it.

At the same time, they are quite sincerely perplexed: why the court divides their property in half, while the second spouse did not earn anything during the marriage and did not make any monetary contribution to its acquisition. The court's actions are based on the provisions of the law, which state that the common joint property of the husband and wife is divided in equal shares, regardless of their contributions.

Despite the principle of dividing joint property in half, in judicial practice cases of deviation from this rule are allowed. If it is reliably proven in court that one of the spouses committed actions to the detriment of the interests of the family, then by a court decision the share of the second spouse may be increased.

For example, if the husband did not work anywhere without good reason, sold property in the house in order to have money to buy alcohol, and caused scandals at home while drunk. But for the court to make such a decision, bring all these circumstances.

As evidence, attach copies of the protocols on bringing the spouse to administrative responsibility, data from the police about the calls of their employees and medical documents about the beatings or the defendant being registered in a drug treatment clinic, testimony of witnesses who could confirm the facts of the sale of household property to them for next to nothing.

Only if there is evidence, the court will be able to deviate in the interests of the second spouse and minor children when dividing property from the principle of equality of shares of divorcing spouses.

There are circumstances when one spouse can claim part of the personal property of the other spouse. For example, a family lives in an apartment inherited by the husband. By law, this is his personal property and he is its sole owner.

While living together, the spouses renovated the apartment using common money, and part of the money was taken from the spouse’s personal savings, which she had before marriage.

As a result of the major renovation, the market value of the apartment increased significantly and it underwent major changes.

The question will be resolved similarly in the next case. Let's say the wife had a car worth 350,000 rubles. After the wedding, the husband invested his own money and renovated it, which doubled its value. In this case, the spouse will receive the right to part of its value if he proves that he invested personal funds (he can claim half of the car).

It is important to clearly know what is meant by the own funds of one of the spouses invested in repairs. This is the money that he had or saved before marriage.

If the husband carries out repairs at the expense of his current salary, then this applies to the common property of the spouses.

When dividing this car, the spouse will also have the right to part of the cost of the car, but his share will be smaller (a quarter of the car).

Another example. One of the spouses had an apartment worth 2 million rubles before registering their marriage. After the wedding, both spouses made major repairs to it and its value rose to 3.5 million rubles. How will this apartment be divided between divorcing spouses?

The second spouse has the right to claim half of the amount by which the cost of the apartment has increased. One and a half million rubles are divided in half between the spouses and each of them receives 750,000 rubles. In general, the shares will be distributed as follows: the first spouse has 2,750,000 rubles, the second – 750,000 rubles.

In this case, the apartment will remain to its title owner, and the court will oblige him to pay the second spouse 750,000 rubles. Be sure to confirm all these circumstances in court with various evidence.

Keep in mind that it will be very difficult to prove that you owned the cash stored in the house.

Property valuation

When dividing property, it is important to know its value. It is used to determine the amount of the state fee that the plaintiff must pay when filing a claim. Usually the estimate issued by the technical inventory bureau is used. Although it is much lower than the market price.

For the court, an accurate assessment of the divisible property is not so important. After all, the court divides it in shares. For example, all property acquired by spouses during marriage will be divided as follows: each of them will receive 1/2 share. How they will use their shares is up to the owners themselves to decide.

An accurate assessment of the property to be divided will be required when determining the cost of its improvements (for example, when renovating an apartment or car, as in the examples above). If there are disagreements in their assessment, an examination will be required.

In this case, you should not rely on the prices indicated in advertisements for the sale of similar property. It is the expert’s conclusion that will form the basis of the court decision. The division of property will be carried out at the value indicated by the expert.

Division of property in a civil marriage

The principle of equal distribution of property applies only to the property that was acquired by the spouses during the registered marriage. Only it is classified as joint property of the spouses.

Remember that a civil marriage does not protect the interests of actual spouses. If they purchased a car and registered it in the name of one of them, then it will be considered only his personal property.

The second spouse, who also participated in its purchase, will have to prove in court that they invested personal funds: submit receipts, contracts, bank account statements).

Even if he manages to do this in court, he will not receive the right to half of the car, but only to that part that will correspond to the share of the funds he contributed.

Examples of court decisions

Example #1

The circumstances of the court case are as follows: along with the divorce issue, the court considered the wife’s claim for division of property.

She asked to divide in half the apartment in which the couple lived, half the cost of a car sold three years ago and half the cost of home furnishings (furniture and household appliances).

The court awarded her half of the furnishings that were in the apartment (furniture and appliances).

The grounds for the court to make such a decision are as follows:

• the apartment was bought by her husband's parents. Legally, ownership of it belongs only to them. The divorcing spouses simply used and owned it. Therefore, it cannot be included in the common property and cannot be divided between spouses;
• the sold car was also registered in the name of the husband's father, who was considered its legal owner. The claim was denied due to the expiration of the statute of limitations. The question of dividing the proceeds from the sale of a car could only be raised within three years after the transaction. By the time the case was considered, more than three years had passed. In addition, it was established that this money was spent in the interests of the family;
• During the marriage, the spouses bought furniture and household appliances with joint money. It was this property that was subject to division. The plaintiff received half of their value.

Example No. 2

At the time of marriage, the husband had a one-room apartment, which he sold after registering the marriage. Having added joint money to the proceeds from its sale, the couple purchased a three-room apartment.

With the consent of the wife, her husband was named as the title owner and the apartment was registered in his name. Two years later, the wife raises the question of divorce and dividing the entire apartment in half. By a court decision, the wife was awarded only a quarter of the cost of the three-room apartment.

The court made this decision based on the following evidence:

• After conducting examinations, it was found that the cost of a three-room apartment was twice as high as the sold one-room apartment. From which the court concluded that the spouses jointly own only half of it;
• the other half belongs to the husband, as he contributed his own funds to purchase a larger apartment. He received this money from the sale of his personal one-room apartment;
• Accordingly, when dividing an apartment, the husband owns 3/4 of the share, and the wife owns a quarter of the cost of the three-room apartment. When considering cases of this category, the court takes into account all documents that can be used to establish the source of funds used to purchase property.

If one of the parties prevents them from being presented to the court, then, at the request of the plaintiff or defendant, the court may request these documents from any authorities or oblige the spouse to show them to the court.

Where can I see examples of court decisions?

By looking at examples from judicial practice, it is easier to understand the principles of division of joint property when spouses divorce.

Where and how can I get acquainted with them? If you have access to the Internet, you can go to the website of any court, including the Supreme Court. There you can see the decisions they make.

Knowing the numbers of specific cases, you can always obtain information about the progress of the case and the results of its resolution.

How much will it cost to divide property through court?

If the spouses during the divorce were unable to agree on the division of their property, then the judicial authorities will deal with this. Prepare a claim and send it to court. Remember that the judicial procedure for resolving cases will require certain costs from the plaintiff or defendant. They consist of the following components:

• state duty. The spouse filing the claim must pay a state fee in the amount established by law. It is determined in accordance with the Tax Code of the Russian Federation depending on the value of the property in the range from 400 rubles to 60,000 rubles;
• payment for the examination. It is required if the spouses fail to reach a compromise when determining the value of the property being divided;
• lawyer's fees. He can help not only in drawing up a statement of claim, but also represent your interests in court hearings. In each case, the amount of payment is set individually.

If the claim is satisfied, these costs of the plaintiff can be reimbursed to him at the expense of the defendant: in full or in proportion to the satisfied claims.

Duration of the trial

When going to court, you can never say with certainty how long your case will be considered. It could be two months, or it could be several years.

It all depends on the nature of the case under consideration, the number of documents and expert reports contained in it. The more witnesses that have to be interviewed, the longer the civil case will take.

Some objective reasons also delay the consideration of the case: the plaintiff or defendant is on a business trip, illness of a participant in the process.

How to sue for property during a divorce

There are situations when spouses cannot reach an agreement in property disputes. It is difficult for them to resolve the problematic issue of division of property through negotiations. In addition, such situations can be dealt with not only during divorce, but also during marriage. Therefore, often, the division of property cannot be accomplished without the use of a legislative mechanism.

There is a joke among lawyers who handle family cases that the winner in property disputes is the one who takes everything out in a boxcar first. As they say, there is some truth in every joke. Therefore, the sooner you take the necessary actions, the greater your chances of getting the property fairly. True, many delay the division of property for a long period.

It is worth noting that knowledge of the legislation of the family and civil procedure field allows you to be well prepared for court proceedings and competently defend your rights. In this article we will reflect on the main points of the division of property and what to pay attention to in controversial situations with personal property.

Before initiating the division of property, it is necessary to understand what is personal property and what is joint property. Clear regulation of this issue is contained in the Family Code. Let's look at each type of property.

1. Joint property

This type of property includes everything that the spouses acquired during the marriage:

• Apartments, vehicles, houses, plots.
• Financial resources (salary, business income, fees, scholarships, pensions and benefits).
• Funds in bank accounts, shares, investments, etc.

All material resources acquired during marriage belong to the spouses in equal rights. In addition, it does not matter at whose expense the property was acquired, by whom it was earned and to whom it was registered.

In other words, if a family is supported by, say, a man, and the wife did not work for a good reason (caring for a child, running a household, etc.), then all the property is still divided into equal shares between the spouses.

2. Personal property

According to family law, personal property includes:

• Personal items (wardrobe, medications, printed publications, cosmetics, personal items). Exceptions include jewelry and luxury items.
• Movable and immovable property acquired before marriage or during the marriage, but with one’s own resources.
• Movable real estate, the ownership rights to which are acquired as a result of donation, inheritance or received by will.
• Copyright and intellectual rights, prizes, awards and orders.

The above property is not subject to division, however, there are exceptional situations that we will consider further.

Controversial nuances of classifying property as personal:

1. If property was acquired for a child, it is neither personal nor jointly acquired property. Whether it is children's clothing, household appliances, real estate or a bank account, this property is inviolable for division between spouses. After the divorce process, the property of the children remains at the disposal of the parent with whom the child will live.
2. If the spouses remain husband and wife purely legally, but do not live together for many years. During such a period, spouses acquire property, which is formally considered joint. In this case, when dividing property, each owner must provide evidence that family life is a thing of the past. Property acquired jointly will be subject to division.
3. The joint exploitation of the personal property of a spouse during the marriage, as well as its improvement through the contribution of common finances, time and labor. As a result of these investments, the property increased in value. The standard situation is a major renovation of an apartment, which is the personal property of the spouse. If you prove in court that you invested a lot of money, did the repairs yourself and spent time on it, there is a possibility of receiving a share of the apartment or compensation from the owner. Evidence may be in the form of appraisal documents, photographs, receipts for the purchase of tools, materials, and testimony from a party not interested in the divorce.
4. When privatizing real estate. A difficult issue that requires careful consideration. If the property was privatized during the marriage, but was registered in the name of only one spouse, it is almost impossible to recoup the share of the privatized property. At best, you can only qualify for living in an apartment.

Thus, despite the list of personal and jointly acquired property being clearly established in legislation, controversial situations requiring legal analysis are not uncommon. Therefore, in order not to be left without resources, it is worth consulting with specialists.

As already mentioned, jointly acquired property is divided equally. However, among the general rules, there are exceptions:

1. Drawing up a marriage contract

A prenuptial agreement is drawn up before marriage or during family relations. The execution of the contract is voluntary and should not infringe on the rights of the spouses. This document stipulates the division of property not in a general manner and not in equal shares. In addition, the contract can specify what exactly and who gets it after a divorce.

Please note that a marriage contract can be invalidated if:

• One of the spouses violated the terms of the agreement.
• The family's financial situation has changed significantly.
• The financial situation of one of the spouses has changed.
• Circumstances have changed so much that the provisions of the agreement have lost their original meaning.
• The provisions of the marriage contract are contrary to regulations.

Important: if the terms of the marriage contract no longer suit you, you can file a lawsuit demanding that it be declared invalid.

If the demands made are justified, the division of property will be carried out according to the general rules.

In addition, if the judge terminates the marriage contract, the spouses can enter into a new agreement or go to court to divide the property.

2. Drawing up an agreement on the division of property

This document is slightly different from a marriage contract. The agreement is concluded only after marriage. In addition, the document regulates property rights in relation to specific, acquired property. Finally, the separation agreement can be executed without notarization, but in writing.

3. The judge’s initiative to deviate from the rules of equal shares

This may be due to the fact that the spouse did not receive income for unjustifiable reasons or spent the family budget to the detriment of the family (lost money at cards, bought drugs or alcohol, pawned valuables, etc.).

Due to such dishonest behavior, the spouse may receive a smaller share of the property. However, this is not about disability, raising children or running a household. It is possible to receive a larger share if a child lives with a spouse after a divorce.

The court may award most of the property in addition to the child's property.

Please note that you must state the claim for increased ownership in the statement of claim. In addition, to take these circumstances into account, it is necessary to document the reasons for increasing the part of the property. Finally, whether or not to take into account changes in the size of shares is the right of the judge, and not a direct responsibility.

Thus, the division of jointly acquired property is carried out on the basis of a concluded marriage contract, agreement and in court. Let's consider the procedure for determining the share in court.

First of all, you need to draw up a statement of claim. Sometimes the division of property is carried out in separate proceedings upon divorce. The claim has clear regulations and rules for drafting. The application consists of the following elements:

The so-called “header” of the application contains:

1. The wording of the court to which the petition is sent.
2. Information about the applicant and respondent - full name, registration, place of residence, date of birth and place, passport details and employment information.
3. Title of the application (statement of claim for divorce or statement of claim for divorce and division of jointly acquired property).
4. The wording of the essence of the application is the date and place of marriage (link to the marriage certificate).
5. Formulation of claims.
6. References to the provisions of the law in accordance with which the claim is filed.
7. List of documentation that is attached to the application. Usually these are photocopies of passport documents, marriage and birth certificates, extracts from house books, income certificates, a list of property, etc.
8. Date of application and signature.

Drawing up a claim is an important point at the entire stage of property division. In order not to miss all the nuances of the problem, seek advice from specialists.

Remember, the more convincingly you argue your position, the stronger your line of defense will be. Therefore, you may have a greater chance of success. Evidence of circumstances can be in different forms - contracts, witness statements, certificates of ownership, photographs and other documents.

In addition, if your spouse filed a statement of claim, then do not waste time and do not delay filing a counterclaim or objection. In it you must state your position, provide evidence and state your demands for the division of property.

It is worth noting that the judge will understand your position faster if you correctly state your requirements and support them with evidence. Unfortunately, not everyone is able to competently draft a claim and repel objections.

Lack of experience, knowledge of legal aspects and nuances of legislation negatively affects the outcome of the legal process for the division of property. Therefore, it is worth enlisting the help of an experienced specialist.

How to sue for property during a divorce?

If a husband and wife during the divorce process cannot resolve a property dispute through an amicable agreement, they cannot do without resorting to the law. And often these disputes drag on for a long time, causing both ex-spouses many problems.

Knowledge of the law will allow you to competently prepare for litigation, prove your case and receive a favorable court opinion. The division of property upon divorce is regulated by Articles 38–39 of the RF IC.

In cases of division of property, many questions usually arise, and it is often impossible to reach an agreement with the spouse, since there are grievances and a desire to do things “out of spite.” It often makes sense to contact a qualified lawyer for an individual analysis of a specific situation. But we will look at typical cases in our article.

Right to property

The following items acquired during marriage are considered joint property of a married couple:

• property, movable and immovable;
• finances (salaries, fees, scholarships, pensions and benefits, business income);
• shares in capital, deposits, securities, cash deposits;
• other purchases.

Note. The husband and wife have equal rights to everything purchased during a registered marriage, regardless of whose money these purchases were made with and in whose name the purchases were registered.

It is not uncommon for a husband to play the role of “breadwinner” in the family, while the wife does housework, takes care of children, studies, cares for elderly parents, or does not work for some other valid reason. In such a situation, the property is also divided exclusively in half.

This rule can be violated only if the marriage contract was drawn up voluntarily and certified by a notary. It can indicate the division of property in any order, indicate the right to separate ownership, or indicate different shares (for example, not 50/50, but 70/30).

Important! The contract should not infringe on the rights of the husband or wife, otherwise it can be challenged in court and with a high degree of probability the claim will be won.

What is personal property?

The Family Code clearly distinguishes between joint and personal property. Neither the wife nor the husband in marriage can lose the right to own, use and solely dispose of their personal property. The law includes in this category:

• personal belongings (medicines, cosmetics, clothing, personal devices, as well as books, tools, with the exception of luxury items);
• property acquired before marriage or during marriage, but with your personal finances (donated or inherited), both movable and immovable;
• donated and inherited property;
• Copyright;
• all kinds of awards and prizes.

Personal property is almost impossible to sue, with rare exceptions.

Controversial issues

There are cases when a couple lives separately, but does not actually dissolve the marriage. This way they can live for a long time before divorce, and during this period acquire various property. According to the law, during a divorce, it must also be subject to division, but if you prove to the court the fact of separation, you can retain your property rights and protect yourself from unfair attacks.

Another controversial case is the improvement of the spouses’ personal property and increasing its value by investing money, effort, and time: for example, completing or renovating a home, car repairs, arranging a personal plot, etc. If in court it is possible to prove the fact that resources were invested, you can demand monetary compensation from the owner or obtain the right to your share.

From a lawyer. Property purchased for children (from clothes and furniture to an apartment and a bank account) cannot be considered either personal or joint property. After a divorce, the right to use remains with the child (children), and the parent can decide with whom the child will live after the divorce.

Is it possible to sue for a larger share?

If one of the couple, for an unjustifiable reason (good reasons listed above), did not have an income or spent family money to the detriment of the interests of the family, an unequal division can be demanded. Also, the parent with whom the children will live until adulthood has the right to a larger share.

Property can be divided in the following ways:

• draw up a marriage contract (before marriage or during marriage);
• enter into a written agreement (while married, in the process of divorce, or after a divorce);
• file a lawsuit.

The first two options are voluntary, the third is the opportunity to sue the right to property if a compromise is impossible. The procedure for dividing property in court is as follows:

• calculating the shares of each of the pair,
• determining property that is and is not subject to division,
• identifying whether there are claims to property from third parties,
• distribution of property and debts between the parties,
• agreeing on compensation in monetary terms.

Sample statement of claim for division of property in court

Documents must be attached to the application; below is a standard list, which may be changed depending on the situation.

1. Passport.
2. Certificate of marriage/divorce.
3. List of disputed property with estimated value.
4. Title documents for property.
5. Receipt for payment of state duty.

Note. If the interests of children are considered in court, then their documents must also be attached.

Division of property: ask a lawyer

Question. Good afternoon. My husband and I are in the process of divorce, it seems we were able to agree on everything, but he does not agree that the money deposited into our son’s account is not being divided. He demands that I return half of the deposit, but the money belongs to the child, even though he is still a minor. Or am I not right?

Answer. Good afternoon. You are absolutely right, the target contribution for the child cannot be divided. When the son reaches 18 years old, he will manage the money himself. At the moment, all the child’s property, including the bank deposit, remains with the parent with whom the son will live.

If you have any questions about the division of property, you can consult with the lawyers of the Pravosfera company around the clock by phone or on the website online.

How to sue for property during a divorce?

According to statistics, almost half of marriages in Russia end in divorce. At the same time, former spouses often cannot agree peacefully on the division of property. If the case goes to court, the winner is usually the party that took care in advance to enlist the support of a competent lawyer.

Get an initial consultation from several companies for free : fill out an application and the system will select suitable companies!

59 companies are connected to this service

Start selection in a few clicks >

What property is subject to division?

According to the Family Code of the Russian Federation, common property includes:

• income from work and commercial activities;
• pensions and benefits;
• real estate;
• movable things;
• securities, deposits, shares, shares in capital.

The list is open. As a general rule, joint property includes all things that were acquired during the marriage, not counting targeted funds (material assistance, compensation for damage). In this case, the benefits will be shared regardless of who and for whose money they were acquired.

Clause 3 of Art. 34 of the RF IC indicates that spouses who did not have independent income but took care of children and household chores also have the right to joint property. The law equalizes all spouses, regardless of their social and financial status.

There is also property that is not subject to division during a divorce. It is listed in Article 36 of the RF IC:

• property acquired before marriage;
• property that was received free of charge;
• items for individual use;
• intellectual property.

A gift, inheritance, or other free transfer of property protects it from subsequent division. Personal items include clothing, personal care products and other items that are used only by the owner. You won't be able to sue a toothbrush or razor.

However, Art. 37 makes it possible to recognize property as jointly acquired. This largely determines how a divorce will affect the property status of each spouse. According to this rule, a thing can be recognized as common if the other spouse made an invaluable contribution to its improvement and significantly increased its value. Examples: overhaul, refurbishment or reconstruction.

The fact of generality does not need to be proven. This is a presumption. Everything acquired during the marriage will initially be considered community property. This rule is confirmed by the Supreme Court of the Russian Federation.

The procedure for dividing property

If the spouses have entered into an agreement on the division of property, then after the divorce the property is distributed in accordance with this document. Otherwise, everything is divided in half (Article 39 of the RF IC).

The court may assign unequal shares to former spouses in the following cases:

• it is necessary to protect the interests of children;
• one of the spouses had no income without good reason;
• one of the spouses spent the family's finances and property irresponsibly.

In other words, the law makes it possible to recover more property from persons who squandered family assets. Alcoholism, drug addiction, and gambling addiction are popular reasons for unequal division of property in court.

General section order:

1. Collection of property information.
2. Preparation of documents.
3. Submitting documents to the court.
4. Trial.
5. Making a decision.

Before going to court, it is better to make a list of the disputed property. It is advisable to evaluate each item to provide the judge with as complete a picture as possible.

The law does not contain an exhaustive list of documents that the applicant needs to prepare. Minimum required:

• statement of claim;
• passport;
• receipt of payment of state duty;
• certificates of registration and divorce;
• property papers (agreements, certificates, checks).

Each circumstance will have to be proven. Separation is proven by a rental agreement, lease agreement or a certificate from the place of residence. If you have real estate, you will need registration papers - extracts from the Unified State Register of Real Estate. The cost of things is confirmed by appraisal documents.

Trial

The court proceedings will play a decisive role in how the divorce will affect the future financial situation of each spouse. Dispute consideration will include the following stages:

1. Determining the property to be divided.
2. Determination of shares.
3. Distribution of shares.
4. Financial compensation.

Property that will not be divided also includes personal belongings of minors, which are transferred to the spouse with whom the children live.

There are situations when one of the spouses gets something that is worth more than the share due. In this case, the court has the right to award compensation to another participant in the process.

Divorce as a legal fact triggers the limitation period. Spouses have 3 years from the date of divorce to sue the property. Those things that are not divided will remain in joint ownership and disposal.

If litigation has already been initiated by the other party, it is better to immediately take care of filing a counterclaim. Only counterclaims will help award a larger share of the property. Passive protection will be much less effective.

Without a professional lawyer, the property division procedure can drag on for many months. We recommend that you enlist the help of a family law expert in advance.