Divorce is far from a pleasant experience and far from a good memory. The most unpleasant thing is sharing children and property. Give what you at least need yourself, what you spent time and earned money on. They even share gifts.
And, naturally, there are a lot of questions in my head:
- “Should a donated apartment be divided during a divorce?”
- “How is the division of gifts during a divorce?”
- “What property should be divided and how?”
It is best to find answers to these questions together with your spouse or spouses. If there is an opportunity to divide property peacefully, then it is better to take advantage of it. First of all, it is much faster than going through the courts.
Based on the legislative framework, property received as a gift by one of the spouses will remain with him after a divorce. In part 1 of Art. 36 of the RF IC, it is clearly stated that donated or inherited property cannot be divided during a divorce. The same rule applies to other gratuitous transactions.
Features of the gift agreement
Often, instead of a will, a “deed of gift” is drawn up. Especially if the family is large and they want to leave the inheritance to someone alone. After all, such an agreement is harder to challenge than a will. But that's not all the advantages:
- In the event of a divorce, gifted property is not divided between spouses;
- The tax that is paid upon the acquisition of property, in the case of a gift agreement, is not paid (neither to the giver nor to the recipient of the gift).
This is, in essence, a transaction for the transfer of property without payment. The form of registration is a written agreement. The new owner gets the opportunity to dispose of the property immediately after the deed of gift is executed. If the heirs try to challenge the donor’s decision in court, then this is a futile and time-consuming matter. Usually, their claims are denied.
The gift agreement must be executed without errors and in accordance with the laws of the Russian Federation. The signatures of persons can be witnessed by a notary if he is present during the preparation and signing of the deed of gift. The correctness of the registration usually depends on the chosen specialist; if he is really good, then the documents will be error-free.
You can draw up a deed of gift yourself or use the services of a notary. The amount for the gift deed at the notary office is quite large:
- 7 thousand rubles for work;
- 10 thousand – technical issues;
- and another percentage from this transaction.
If the contract is drawn up independently, then you only need to pay for its registration. Approximately, such a fee will be 2 thousand rubles.
An important point is that the donor has 365 days to terminate the contract. In rare cases, you can claim your apartment or car after this period.
But this is a long process in which the hope for a positive response and the return of property to the donor is minimal.
How do you deal with the division of gifts after a divorce?
The division of property during divorce proceedings is quite painful. After all, the spouses share all the property: a house, an apartment, a car, existing capital (cash or money invested in some project), and, of course, everything that is inside the home. And often the little things that are loved and dear to the heart are the hardest to share.
A particularly interesting question is: “How are gifts divided during a divorce? How to determine who gets to keep the set given to them for a wedding, and who gets the coffee maker?” The answer to such questions depends on how you got this service: whether it was given to you personally or to your family.
Gifts can be given in several ways:
| With the preparation of the appropriate gift agreement (can be simple or notarial) | On a non-contractual basis, the gift is given by the donor |
| Accompanied by state registration (apartment, car, shares, bonds, capital). Or registration is not required (all other property). | Things are given as gifts during celebrations, or simply passed from one person to another. |
A contract is a reliable option; it is the main confirmation of ownership of property. Items received as a gift, in the presence of strangers, require more effort to confirm rights. The most difficult thing is to prove that a gift is yours when it was given just like that.
There are situations where you can get confused when dividing gifts. For example, on their wedding anniversary, the parents gave the family a car and announced this to everyone invited to the holiday. And then this car was registered in the name of my beloved son, as its sole owner. Naturally, this fact must be taken into account; the donated car will remain with the person in whose name it is registered.
What gifts can be divided between spouses after a divorce, and which ones cannot be divided?
Depending on the possibility or impracticality of dividing gifts after a divorce, they are usually divided into types:
| Not subject to division regardless of the circumstances | There is a possibility for division (depending on the desires of those divorcing, their agreements with each other) |
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You can divide the property through the court or reach a compromise that will suit both parties. The agreements reached are documented by concluding an agreement on the division of property, which is endorsed by a notary. And if the relationship between the spouses remains good even after the divorce, they can agree on what property will remain for whom and re-register the documents for it.
If the spouses cannot agree on their own, then the division of the house, apartment, car and other family resources takes place in court.
This will only aggravate the negativity between those divorcing, and in this case more time will be spent. Not to mention the hassle and it is not a fact that the court’s decision will suit both spouses. Conclusions and advice
Court proceedings are the final authority in the division of common property. It’s easier to find a compromise with your own husband or wife. Then, the whole process will consist of two parts:
Concluding an agreement on the division of property and its notarization. Re-registration of documentation for divided property.
Do not forget that there are categories of things that are not available for division between spouses. The phrase that we come across so often: “After the divorce I will leave you without underwear” sounds like hysteria and is not true. Personal belongings, gifts given directly to one of the spouses, and property received through a deed of gift will not be affected by the division of property.
Division of property: is a donated apartment divided during a divorce?
When divorcing a spouse and dividing jointly acquired property, it is necessary to take into account that the husband or wife sometimes has personal property that the law will not allow to be divided. This is something that was acquired before legal marriage, given as a gift, privatized or inherited.
In our article we will consider the question of whether a gift apartment belonging to one of the spouses is divided during a divorce.
Apartment as a gift
Sometimes you can get an apartment as a gift. A gift is a gratuitous transaction in which the donor does not receive any remuneration, and the recipient does not owe him anything.
Most often, such gifts are made by close relatives (parents, children, grandparents, siblings, etc.). In this case, neither the donor nor the recipient has to pay tax to the state.
But if housing is not donated by a relative, then he must pay a thirteen percent tax on the value of the gift to the state treasury.
The recipient will have to pay the same tax if he decides to sell the donated apartment earlier than three years after receiving it as a gift.
Housing received by one of the spouses under a gift agreement will be considered only his personal property. It will not be subject to division with the other spouse upon divorce. It doesn’t matter whether it was given before marriage or during family life. Some spouses deliberately resort to such tricks if they are not sure of the honesty and sincerity of their other half.
Property received as a gift is not divided in a divorce. The former spouse can evict the second spouse in court, even if there is registration and the fact of residence for many years.
The gift agreement will be considered legal and valid if it is drawn up and registered in accordance with all the rules. Only then will the donated apartment not be divided during a divorce. There are also exceptions, which we will mention below.
How to properly formalize a donation
A gift agreement is drawn up in writing with the participation of two persons - the donor and the donee, or their legal representatives or representatives by proxy. Both parties to the transaction sign at the end of the document. Mandatory notarization of the contract is not required, but it will never be superfluous.
The following cannot be donors:
- persons recognized by the court as legally incompetent and their legal representatives,
- children under fourteen years of age and their legal representatives.
Donees who will not be able to register rights to a gift if they received it from their clients and their relatives:
- civil servants,
- employees of medical and educational institutions,
- social service workers.
If a common apartment (or part of it) is donated by one of the spouses, then the second must give his written consent to this. The same is required from parents if the gift is made by their minor children. In the case where a parent gives housing to their child, the consent of the second parent is not required, even if their housing is shared.
When a part of an apartment divided into several shares is given as a gift, it is necessary to obtain mandatory consent from the remaining shareholders.
It is not difficult to draw up a gift agreement with a good sample in hand. But it still needs to be registered with Rosreestr, for which it is necessary to collect an impressive package of documents. And this needs to be done immediately. After the death of the donor or other unforeseen situations, it will no longer be possible to register the fact of the gift. In this case, the transaction will no longer be considered completed.
Documents for registration of a gift agreement for an apartment:
- identity passports of the donor and the donee,
- property donation agreement,
- document on ownership of the apartment,
- cadastral passport with apartment plan,
- BTI certificate about the cost of the apartment,
- certificate of persons registered in the apartment,
- notarized consent of the spouse (if the ownership of the apartment is joint, except for donation to children),
- consent of all homeowners (if a share in the apartment is given),
- consent of the legal representative or guardian (if the donee or donor is incapacitated or a minor),
- power of attorney (if the interests of one or the other party are represented by a third party).
Only if all these conditions are met will the gift agreement be considered valid and the question will not arise whether the donated apartment is divided in the event of a divorce.
Similar nuances apply to the division of inheritance during a divorce. Indeed, in this case, general funds were not used for its acquisition either.
Can the gift be shared?
The donated property, including an apartment, will not be the joint property of the legal spouses precisely because no common funds were spent on its acquisition. But they could spend money on repairs, redevelopment, reconstruction.
If these manipulations have significantly improved the appearance of the housing, and its value has increased significantly, then it makes sense to fight to recognize the donated apartment as the common property of the spouses.
But the division of shared property during a divorce is a completely different situation; we advise you to read more about it.
The property of each spouse, which is not subject to division, can still be recognized as joint property. To do this, you need to prove that the second spouse made significant investments in it (labor, finances, etc.), which increased the value of the property.
The decision to recognize or not recognize the donated apartment (or other property) as joint property of the spouses is made by the court. The statement of claim is filed by the spouse who wishes to claim his rights to the donated housing. In court hearings, both sides are heard, the evidence presented is examined, and witnesses are questioned.
If the court takes into account all the arguments and evidence and recognizes the property as joint, then the donated apartment is divided in half between the spouses upon divorce.
How to achieve division of a donated apartment
There are two ways to try to obtain rights to an apartment donated to your spouse: peacefully or through the courts.
When spouses during a divorce enter into an agreement on the division of property, nothing prevents them from dividing the apartment given to one of them. But for the spouse who was not the donee, this is not safe. After all, his other half can always change his mind and want to regain his home, and the law will be on his side.
You can re-register ownership of the donated apartment ahead of time - draw up a gift agreement for your wife (husband) or joint young children. Or sell it and purchase another property, which will be registered as common property.
If the spouses have other housing that will be purchased jointly, then the donated apartment can simply be left to the legal owner with the agreement that their joint apartment will go to the second spouse in full.
By the way, donation can concern not only an apartment, but also a country house and land. We tell you how a land plot is divided during a divorce here - https://divorceinfo.ru/2300-razdel-zemelnogo-uchastka-pri-razvode-suprugov
Otherwise, the issue of division of common property will have to be resolved in court. There is very little chance of getting half of the apartment given to your spouse.
A deed of gift can be challenged in rare cases when it is possible to provide evidence of the donor’s incapacity at the time of signing the document, as well as the fact of physical or moral pressure on him to sign the gift agreement.
You can try to invalidate the gift agreement if you prove that it was not properly drawn up or registered, was concluded with an incapacitated person, etc. Then both you and your spouse are unlikely to see this apartment. There is no point in this.
It would be more correct to try to transfer it to the category of jointly acquired property. To do this, you need to prove that expensive repairs were made to it during the marriage, due to which its value increased significantly. This is not always easy either.
It is unlikely that you will invite an appraiser to determine the cost of the apartment before and after renovation, or collect all the receipts for purchased building materials and payment for the services of the repair team.
Usually, when renovating an apartment, spouses do not even suspect that they will soon have to divorce.
It is quite difficult to prove your involvement of the second spouse in real estate, but in rare cases it may be possible to reclassify living space received by gift as “jointly acquired property” and then divide it in half.
The division of a donated apartment during a divorce is always a troublesome matter. If there is something to fight for, then it makes sense to seek help in accompanying the legal process from good lawyers. First, you need to try to resolve this issue with your still spouse amicably. If this is your only home, and you risk being left on the street after a divorce, you need to try all options.
Divorce gift division - how to divide gifts after divorce?
By the way: Do you know about our “Stress-Free Divorce” service? More details
By the way: Do you know about our “Stress-Free Divorce” service? More details During the dissolution of a marriage, almost every couple faces the issue of dividing jointly acquired property. Among the material goods owned by the family, there are often gifts given to one of the spouses during marriage by his relatives and close friends.
Therefore, the question of whether gifts will be divided during a divorce is more relevant than ever and is asked by almost all spouses who are faced with the problem of equal division of property through the court.
What does the law on gift division say?
The Family Code of the Russian Federation clearly states that any property that a spouse acquired during their life together by gift or gratuitous transaction is exclusively his individual property. This is stated in the provisions of Part 1 of Article 36 of the RF IC.
Thus, the legislator has given an unambiguous answer to the question of whether gifts are subject to division as common property. But how to prove the fact of donation and what to do if the property was given to the family and not to one of the spouses?
According to established practice, property given to spouses for a wedding is recognized as jointly acquired property and is subject to division in the event of divorce. It is understood that the gift was made to the family, and not to one of the spouses, so if one of the spouses does not agree with the recognition of the property donated for the wedding as jointly acquired property, he will have to challenge this fact in court.
In all other cases, the court takes into account absolutely all evidence that can directly or indirectly confirm the fact of donation of property to one of the spouses and the further use of this property both individually and as a whole family.
When donating real estate or vehicles, the lawyers of the Planet of Law company strongly recommend that a gift agreement be drawn up in the name of the spouse to whom the property is given. If there is a gift agreement, the chance of controversial issues arising is minimal - after all, only it confirms with 100% certainty that the property declared for division was donated to a specific person and is the individual property of one of the spouses, and therefore cannot be recognized as common.
With regard to the rest of the property, including luxury items, home furnishings, and household appliances, the procedure for proving its individual ownership becomes somewhat more complicated.
Evidence of donation
To confirm that the property declared by one of the spouses for divorce is a gift to one of them, the following evidence may be presented to the court:
- Testimony of persons who witnessed the fact of donation;
- Testimony of the donor who transferred the gift to the spouse;
- Documents confirming the purchase of the gift by the donor: checks or a contract of purchase and sale of property in his own name, subsequently donated to one of the spouses.
If the subject of the gift was money, with which the spouse later acquired some personal property, this does not cancel the status of the acquired property as a gift, but it makes it much more difficult to prove.
As with all other property, the fact of donating money can be formalized by an appropriate agreement, including indicating in it the intended purpose of the money, for example, to purchase a car. Unfortunately, at the time of donation, only a few people think about the possible consequences for the recipient of the gift in the future, which adds a lot of work for lawyers when dividing property.
Experienced divorce lawyers at ICPI “Planet of Law” will help you protect your interests and protect donated property from division upon divorce. If you don’t want to waste your time on endless visits to the court, the comprehensive program “Divorce without presence” will allow you to get by with just a couple of meetings with our lawyers, entrusting them with the solution of all your problems!
Call + 7 (495) 722-99-33.
How to divide gifts after divorce - division of gifted property during divorce
Home / Division of property / Division of gifts during divorce
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What about gifts? – the divorcing spouses are perplexed. Is a dacha with flower beds and a garden donated by a loving mother really subject to division? Is it really possible that my father’s car, generously and free of charge, was shared? What about wedding gifts - refrigerators, sets, televisions? Is it really possible to share too?
No less often than other questions, divorcing spouses have the question of division of donated property. And the legislation provides a complete and comprehensive answer to this question.
Gifts cannot be divided
The Family Code stipulates which property is common and which is personal. And the law classifies gifts as personal property.
Article 36 of the RF IC determines that property that was received as a gift by one of the spouses during marriage is his property.
Gifts can be presented both by relatives (parents, children), strangers (colleagues, friends), and spouses - to each other. All of them remain the property of the person who received them as a gift.
At first glance this seems quite obvious. However, when it comes to divorce, a spouse's ownership of gifts is often disputed by the other spouse. But it is not always possible to provide significant evidence of the fact of donation.
How to prove that it is a gift?
In order to exclude a gift from the list of common property, the owner must provide conclusive evidence of the fact of the gift.
The fact is that transactions between citizens (and donation is a civil transaction) must be formalized in writing if the transaction amount exceeds 10 thousand rubles. This also applies to gifts - real estate, cars, electronics, luxury items and other property. The fact of donation can be confirmed by a written and notarized donation agreement.
In the absence of a written gift agreement, witness statements are not taken into account.
How to divide gifts of spouses to each other?
If spouses gave each other personal items (for example, clothes and shoes, perfume and jewelry), you will not have to prove ownership. But if expensive items that are not personal items (for example, a telephone, laptop, car) were presented as a gift, the fact of the gift will have to be proven.
As a rule, husband and wife do not enter into gift agreements - gifts are presented generously and received gracefully. Therefore, if during the divorce process the donor spouse declares that the gift is not a gift at all, but joint property, the gifted spouse will have to prove the opposite. And this is very difficult, so it’s worth mentally preparing for the “gift” section.
How to divide wedding gifts?
The newlyweds received a mountain of wedding gifts together and used the donated property together. But during the divorce process, gifts seem less common. “My friend gave the kettle as a gift, which means it stays with me!” “And my employees dumped on the TV, which means it’s mine” - this method of division seems quite fair to the spouses.
However, the division of gifts is based not on whose relatives and friends gave it, but on who they gave it to - both spouses or one of them personally.
As a rule, wedding gifts are presented to both spouses - this follows from wedding traditions. Therefore, they are common property and are divided in half. But if one of the spouses proves that the gift was presented to him personally, ownership rights are retained.
Gift improvement
As an exception, a gift may be recognized as common property and divided. This is possible if, at the expense of common funds or the personal funds of the second spouse, the gift was improved, significantly increasing its value. Expenses to improve the gift must be documented.
For example, my husband received a village house as a gift from his grandparents.
Using common family funds, the house was remodeled, major repairs were made, the second floor with an attic was completed, and the area around the house was landscaped.
The house, which cost a penny, turned into a solid, expensive house. Of course, this house will be recognized as the common property of the spouses, although it was originally the personal property of the husband.
Important! The spouse, whose personal funds (or share of common funds) were used to improve the gift, has the right to demand that not the entire gift be recognized as common, but only a part corresponding to the cost of the improvements made.
To determine which part of the gift belongs to the spouse-owner, and which part belongs to both spouses by right of joint ownership, an expert assessment of the gift is carried out.
The original cost of the gift is subtracted from the amount received, and the remaining amount is divided between the spouses (if they improved the gift with common funds) or transferred to the second spouse (if the improvement was made using his personal funds).
Divorce gifts section
Very often, Pravosfera lawyers answer questions regarding the division of gifts during a divorce. What to do with a donated summer cottage or car? Who should receive wedding gifts? What to do if a spouse claims his wife’s property, which she received as a gift?
All these questions can be answered if you carefully study the current legislation of the country. But is it worth doing this if there are people who have studied for this for more than a year? Moreover, if they have practical experience in solving such problems. Of course not! You just need to call the Pravosfera hotline and consult a specialist.
Are gifts subject to division?
The legislation of our country gives a clear answer: “No, gifts are not shared.”
However, sometimes conflicts arise because of them during a divorce, since it is not always possible to prove that the item was given as a gift. Let's turn to the law.
It says that any gift worth 10 thousand rubles or more must be officially registered. In other words, a gift agreement signed by a notary is required.
The definition of expensive gifts includes:
- luxuries;
- jewelry;
- real estate;
- antiques;
- electronics;
- land;
- cars, etc.
If there is no document, then there is no evidence either, and the testimony of witnesses does not matter. However, there are situations when a gift, properly executed, is subject to division.
This can happen if the gift has been significantly improved, for example, the parents gave the wife a house that was unfit for habitation, and the husband, with his own efforts and at his own expense, put it in order, equipped it and added new premises.
Moreover, he had documents for all expenses.
How are mutual gifts between spouses divided?
During family life, a husband and wife give gifts to each other, regardless of the costs, and this is normal. However, if they decide to get a divorce, then problems may arise here. It’s clear with personal belongings, and it’s unlikely that anyone will lay claim to their spouse’s jacket or fur coat, but as for impersonal items (computer, TV, car, etc.), the fact of donation must be proven.
Example. For his wife's birthday, her husband gave her a pink laptop.
During the divorce, when the wife defined this thing as personal property, the husband stated that he did not give the computer to his wife, but bought it for joint use, and he always liked the pink color.
Since there were no documents proving the donation, the court recognized the spouse’s claims as legitimate and decided to divide the property.
How to divide wedding gifts?
Traditionally, during a wedding, friends and relatives of the newlyweds give them gifts, sometimes very expensive ones. The family takes advantage of these things, and when they decide to divorce, conflicts arise. The husband declares that the car should go to him, since it was a gift from his brother, and the wife wants to take away the refrigerator that her friends gave her.
This is not true, because there are no documents confirming a personal gift, and a statement like: “The gift is mine because it was made by relatives on my part” does not stand up to criticism. If a brother or girlfriend had drawn up a gift agreement when transferring property, then this item would have been considered personal property and not subject to division.
Legal registration of the gift and resolving the issue of its division
To avoid conflicts regarding gifts during a divorce, this action should be documented in a timely manner. Never put this off until later, because in the event of a divorce, gifts that are not formalized in accordance with the law are considered community property and are subject to division.
If you have any problems regarding gifts during the divorce, contact the Pravosfera company. A competent lawyer with many years of experience will be able to resolve your issue by finding the best solution. We always follow the laws, but we have also studied them thoroughly, so we can find a way out of even the most difficult situations!
The courts were explained how to divide gifted property during a divorce
Understanding the correct division of property acquired by the family during a divorce, the Judicial Collegium for Civil Cases made an important clarification. She explained how local courts should deal with property that, on the one hand, was acquired during marriage, and on the other, not with money earned by the spouses.
It's no secret that one of the most pleasant wedding gifts are envelopes with a certain amount of cash, which are given to the newlyweds by relatives, parents, friends or colleagues. Sometimes such gifts are quite substantial, and a young family can buy something significant with them.
True, such gifts in the event of a family breakdown also have a downside - the question of how to divide property not earned by the family during marriage.
As judicial practice has shown, when reviewing such cases, not only the divorcees themselves, but also local courts are confused about the correct resolution of such disputes.
The situation that was examined by the Judicial Collegium for Civil Cases seemed most banal - the family bought an apartment with money that was given to the newlyweds by the bride's mother. After existing for several years, the family broke up, and following the divorce procedure, the procedure for dividing property began. The stumbling block was the apartment.
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After the divorce, the husband decided that the acquired property - the apartment - should be divided equally, since the square meters were acquired during marriage.
Local courts agreed with him. But the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation did not agree with this division and made the opposite conclusion.
The high court explained in what cases movable and immovable property is recognized as the common property of the family, and in what cases the property remains personal, even if it was purchased before the divorce and registered between two people.
In our case, the stumbling block was a new apartment. The plaintiff and defendant, formerly spouses, bought an apartment worth several million rubles a few months after the marriage was registered.
Immediately after the wedding, I was able to move into my own house solely thanks to my wife’s mother, who sold her own apartment and gave the money to her daughter. The bride's mother turned out to be an intelligent and legally literate woman.
She made a monetary gift under a gift agreement.
A month passed after the family bought the apartment, and the couple registered joint ownership of the purchase. But family life was short-lived. The family lasted only four years and broke up. As usual in such cases, the question arose about the division of jointly acquired property.
Deputies did not increase the period for reconciliation in divorce
The spouses were unable to resolve the housing issue peacefully. When registering, they did not enter into the now fashionable prenuptial agreement; they were unable to agree on the division of property and divide the apartment on their own. The ex-husband filed a claim for division in the Ordzhonikidze District Court of Yekaterinburg.
The plaintiff wanted to receive a half share in the disputed property. Simply put, the ex-husband was sure that he was entitled to half of their shared apartment. Moreover, it is recorded for two.
In court, the defendant - the ex-wife - assured that her husband was entitled to only 1/15 of the right of common shared ownership of housing, and the rest - 14/15 - should be awarded to her. Proportional to the money invested when purchasing it.
But the district judges did not agree with the women’s logic of partition and took the side of the ex-husband. In the court of first instance, he received what he wanted - half of the property. The district court considered the apartment to be jointly acquired. Well, if so, then it must be divided in half.
According to the Supreme Court, the courts had to find out with what money - personal or general - the property was purchased
The district court relied on the purchase agreement, which did not contain a word about the distribution of shares. The Sverdlovsk Regional Court supported this division of square meters.
A woman who disagreed with this division had to go to the Supreme Court of the Russian Federation.
After studying the materials of the “family” case, the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation considered that the ex-wife was right, and her ex-husband does not have the right to half of the apartment, even though it was purchased during marriage.
The most qualified judges from the Supreme Court especially emphasized that property purchased jointly by a husband and wife does not mean that it is common. And the court reminded that, according to the law, it refers to property acquired jointly during marriage.
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This is primarily general income, pensions and benefits. Next come the things purchased with this money, regardless of who - husband or wife - paid for the purchase and in whose name it was registered.
But not everything that was acquired during marriage will be divided equally by the law after a divorce.
A special resolution of the Plenum of the Supreme Court (No. 15) “On the application of legislation by courts when considering cases of divorce” was devoted to this painful topic.
It literally says the following: “Property acquired by one of the spouses during marriage through gratuitous civil law transactions (for example, by inheritance, donation, privatization) is not the common property of the spouses. The acquisition of property during marriage, but with funds that belonged to one of the spouses personally, also excludes such property from the regime of common joint property.”
According to the Supreme Court of the Russian Federation, in similar situations, local courts had to find out the main thing. Namely, what money - personal or general - was used to buy property that now one of the parties wants to divide. And also find out what the deal was - paid or gratuitous.
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Specifically, in our case, the apartment was purchased with the wife’s personal funds, which were given to her by her mother. It follows from this that formally the common apartment was not purchased by the family using jointly acquired capital, the Supreme Court concluded.
And here’s another idea expressed by the high authority - the fact that money was contributed to buy an apartment does not in any way change the nature of their personal property. All this is said in the Supreme Court decision. And here is the conclusion of the Judicial Collegium for Civil Cases - the apartment must be divided in proportion to the funds invested by the parties - joint and personal.
As a result of consideration of this dispute, the decisions of the Ural courts were overturned by the Supreme Court. He sent the case back for a new review and said that during a new review it should be decided according to the recommendations made.
How to divide gifts during a divorce, what applies to gifts
During a divorce, there are always enough nuances that complicate an already difficult and unpleasant process for the former spouses.
One of the stumbling blocks is the division between husband and wife of gifts that they received during their life together. According to the general scheme, all things received as a gift do not fall under the section.
However, as often happens in our practical life, there are exceptions.
What items can be classified as “gifts”
From a legal point of view, a thing becomes a gift if a person becomes its owner under one of the following conditions:
- any thing is transferred to the donee in accordance with an agreement or without formalizing the agreement in writing;
- a person receives a prize after participating in a contest, drawing, competition, promotion.
The Family Code of the Russian Federation classifies gifts as personal property, as opposed to general property.
Article 36 of this document states that property donated to a husband or wife in the process of living together belongs to the owner as a property.
The item of gift can be received from relatives, strangers or another spouse, and it becomes the property of the one who accepted it.
Are gifts subject to division?
In this regard, the legislator clearly states that in case of divorce, the division of gifts is not provided for.
Divorcing spouses quite often both express claims against the opposite party, challenging property rights in relation to a particular gift. It can be difficult to prove this with compelling arguments.
How is it proven that an item was received as a gift?
In order for donated property to be excluded from the category of “common” during division, the owner must confirm the fact of its donation by providing conclusive evidence.
The Civil Code of the Russian Federation provides the following. As with any civil transaction, and donation is such, this procedure must be formalized in writing when the total value of the transaction exceeds 10,000 rubles.
- This, accordingly, applies to expensive gifts.
- Thus, by providing a written and notarized gift agreement, you can confirm that the donated property is the personal property of one of the spouses.
- If there is no such written document, it will not be possible to prove that the property is not common, but personal property, since witness testimony is not enough for the court.
How are wedding gifts divided?
Often the biggest controversy is in the wedding gifts section.
During the division procedure, it is not taken into account whose relatives or friends the gift was presented to, but to whom it was intended: for both newlyweds or specifically for one person.
According to wedding traditions, gifts during marriage, as well as on wedding anniversaries, are intended for both halves, so they are usually classified as common property and divided equally.
At the same time, any of the divorcing spouses has the right to prove that this or that thing was given to him personally, retaining ownership of it.
What does improving a gift lead to?
In exceptional cases, a gift can be transferred from personal property to common property when it has been improved, as a result of which its value has increased significantly. In this case, general funds or personal funds belonging to the second spouse were spent.
All expenses spent on such improvements must have documentary evidence.
For example, elderly relatives gave my wife a house in the village. At the expense of general family funds, it was thoroughly renovated, an additional floor was added, an attic was built, and the appearance of the building and the surrounding area was improved.
On the site of an old dilapidated house, a solid cottage arose. Naturally, it must have the status of common property, although previously it was the personal property of the spouse.
- The spouse who has invested personal funds to improve the gift may demand that not all of the donated property be recognized as common, but only the part corresponding to the cost of the improvements made.
- To determine the part of the gift that belongs to one of the owner spouses, as well as the part that belongs to the joint property of both spouses, an expert assessment is carried out.
- The original cost of the gift should be subtracted from the amount obtained after the appraisal, then the remaining amount should be divided in half between the spouses (when common funds were used for improvement) or transferred to the other spouse (when his personal funds were used for improvement).
Is property given during marriage divided in case of divorce? The procedure for dividing marital property received as a gift
The division of property during a divorce gives rise to many disputes and often leads to lengthy proceedings. One of the important questions is whether property received by one of the spouses as a gift is divided.
Article 36 of the Family Code (FC RF) clearly defines that such property is not subject to the regime of joint ownership and, therefore, it is not subject to division during a divorce .
However, there are two conditions that can give things the opposite turn:
- lack of evidence confirming the fact of donation;
- increase in property value during marriage
Lack of evidence confirming the fact of donation
To avoid division of property received as a gift, the court must provide compelling evidence that the “gift” was actually intended for a specific person and not a family, such as gifts for a wedding or anniversary. And, of course, it was not purchased with family funds.
As evidence, you need to provide donation agreements or ensure the appearance of witnesses who can confirm this fact. In the absence of both, the judge will most likely decide to satisfy the demands of the first party.
Increase in property value during marriage
If values received as a gift by one of the spouses have increased in value as a result of the investment of funds from the family budget or the efforts of the second spouse, they are subject to division during a divorce.
To illustrate this situation clearly, we can give an example that is quite common in practice.
Example
The wife received a private house as a gift from her parents. During family life, it underwent expensive repairs and remodeling, as a result of which the price of the house increased significantly. During a divorce, this property will be divided between the parties, since the increase in value occurred due to joint efforts and the investment of common funds.
Nuances
Very often, those divorcing are interested in whether things given by one spouse to the other are considered personal property, and, accordingly, whether there is a need to divide them during a divorce.
Such things become the personal use of one party and are not subject to division. However, there is an exception to this situation - luxury goods. This condition is determined by the same Article 36 of the RF IC. These include:
- works of art;
- products made of precious stones and metals;
- antiques and other expensive objects that are not necessary in everyday life.
What is considered a luxury in each specific case is determined by the court, as a rule, based on the general standard of living and wealth in the family.
Divorce gifts section
Divorce is not the most pleasant procedure even in the absence of property disputes, but the emergence of conflicts over how to divide property can turn a divorce into a series of endless legal proceedings. Gifts received by spouses during their marriage often become the subject of conflict.
Indeed, despite the existence of legislative regulation of the division of property, this issue cannot be classified as simple. In order to find out how to properly divide gifts and protect yourself from unlawful actions of the other party, we recommend seeking help from professionals.
A lawyer specializing in marriage and family relations will help you assess the current situation from a legal point of view and offer an optimal solution to the problem.
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Is donated property subject to division?
So, as a general rule, in the event of a divorce, jointly acquired property is divided equally between the spouses, however, it is in relation to gifts received by the spouses (as well as personal property) that an exception is made: such property is not subject to division. At the same time, gifts that were received by the spouse before marriage, as well as things accepted as gifts during their marriage, will not be shared.
Important! It is precisely the property that was gifted to one of the spouses (and not the family as a whole) that is not subject to division. In relation to property objects subject to registration, in this case a gift agreement must be drawn up.
How to divide gifts received for a wedding?
In a situation where it is necessary to divide real estate, things, etc., donated not personally to one of the spouses, but to the family (including wedding gifts), the provision on the division of jointly acquired property applies (i.e.
such objects are divided equally).
But, as practice shows, one of the spouses can provide evidence that a specific item was given to him, and in this case, any claims of the other party are excluded.
In this case, of course, the process of proof is very difficult (the evidence may include testimony of witnesses, documents on the purchase of an item by the donor, testimony of the donor himself, etc.), but the only indisputable evidence is still only the gift agreement.
Important! In order to protect yourself from claims from your spouse in the event of divorce and division of property, when accepting a valuable item as a gift, it is recommended to draw up a gift agreement. The presence of this document will be an absolute guarantee that in the event of a divorce, the property will remain with its actual owner and will not be classified as joint property.
How are gifts given by spouses to each other divided?
During a divorce, the question of dividing not only those gifts that were received from third parties, but also those that were given by spouses to each other often arises. It should be noted that in such a situation, things that can be classified as personal property will definitely not be subject to division:
- clothing (including fur products);
- shoes;
- accessories;
- perfumes, etc.
However, property that cannot be classified as personal (for example, a car) is included in the category of joint property. Therefore, if a car was given by the husband to his wife for her birthday before the divorce, but the gift agreement was not drawn up, with a high degree of probability it will be subject to division during a divorce.
It is very difficult to prove the opposite in the absence of documentary evidence, especially if the donor spouse refuses to make the gift.
If improvements were made to the gift
The situation when property was gifted to one of the spouses, but improvements were made using common money, is also an exception to the general rule: in most cases, such a gift is divided during a divorce.
What do we mean by improvements? For example, a wife received a small village house as a gift from her parents. But, after it was accepted as a gift, a major overhaul of the building was carried out using funds from the family budget, and the second floor was completed.
As a result, the value of the property increased significantly.
In such a situation, during a divorce, the division of such property between spouses can be carried out, but the determination of shares takes into account the original cost of the property and the costs of improving it. As a rule, the best option is to conduct an independent expert assessment.
Do I need to go to court?
When a dispute arises, going to court is most often inevitable: if the parties cannot agree on their own, a court decision will avoid accusations of unfair division of gifts. To do this, you will need to prepare and submit a statement of claim to the court. Typically, the litigation process consists of the following stages:
- filing a claim and a package of accompanying documentation;
- collection of evidence;
- representing the interests of the parties during court hearings;
- the court's decision on the case;
- execution of a court decision.
At the same time, one cannot fail to take into account that litigation takes a lot of time and is unpleasant from a psychological point of view. Therefore, if there is an opportunity to reach an agreement peacefully, then it should definitely be taken advantage of.
In addition, if the division of gifts occurs on the basis of a settlement agreement, then the parties can independently determine what property is subject to division. Accordingly, there is no need to prove that some thing is a gift, and some is jointly acquired property. We should not forget that such an agreement will have to be certified by a notary.
Thus, as a general rule, gifted property is not subject to division in a divorce, but there are a number of exceptions. A lawyer will help you understand all the nuances of the law in relation to a specific situation.
Qualified legal support is needed both when a dispute arises and if the spouses decide to divide property based on an agreement.
Sources:
Family Code of the Russian Federation dated December 29, 1995 No. 223-FZ
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