Is gifted property divided in a divorce?

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The legal regime of joint property of spouses, established by Art. 34 of the RF IC, states that any property acquired by a husband and wife during marriage is their joint property. Upon completion of the marriage relationship, this property will be subject to division in equal shares, unless otherwise established by agreement of the spouses or by a court decision.

The exception is personal property, which includes real estate and other material assets that were gifted to each spouse.

Is gifted property divided in a divorce?

Article 36 of the RF IC establishes restrictions on the division of property that was gifted to each of the spouses.

Moreover, the restriction applies to both those things that were given to one of the spouses before marriage, as well as those that the spouse received after the wedding.

This rule of law gives an unambiguous answer to the question of whether property received under a gift agreement to one of the spouses is subject to division after a divorce. And that answer is no.

IMPORTANT: During marriage, property must be donated to one of the spouses.

If this object is subject to registration, then a corresponding donation agreement must be concluded with a notary, and then the property (real estate, car) must be registered in the name of the donee.

If relatives of spouses chip in for a gift and give something to the family, then such a gift cannot be considered given to one of the spouses. Even if the contributions of relatives on each side were not equal.

How is donated property divided?

When dividing marital assets, real estate, vehicles and things that were given to one of the spouses during marriage will not be divided.

However, in a number of cases and in relation to certain types of material assets, some exceptions are possible.

In addition, the parties, based on an agreement, can themselves determine the fate of the donated property by transferring it to each other as payment for their share in the common property.

Division of donated property by agreement

The Family Code allows the division of property of spouses by agreement, provided that such an agreement must be notarized.

In relation to the procedure for dividing donated property, the following features of the division of donated property by agreement can be highlighted:

• Spouses have the right to divide, on the basis of an agreement, any property belonging to them jointly or separately;
• There is no need to prove that this particular property is jointly acquired - it is enough for the spouses to mutually recognize the property as subject to division;
• The division may include both personal and inherited or gifted property, which spouses, by their will, can transfer to each other to offset part of the joint assets or for other reasons.

Example: Spouses S. Decided to voluntarily divide their property. The husband's personal property was a two-room apartment, given to him by his mother. The common property acquired during the marriage was a joint store. Officially, the store was registered in the name of the spouse; the individual entrepreneur and the building were registered in her name.

The total cost of the store, according to the appraiser's report, was determined to be 3 million rubles. In the agreement, the spouses came to the conclusion that the wife would transfer the store to her husband, and the husband would transfer his personal apartment, valued at 1.5 million rubles, to his wife.

Thus, the personal (gifted) property of one of the spouses was used for an equal division of jointly acquired property.

The agreement on the division of property must indicate:

1. Names of the parties, their passport details, place of birth.
2. Circumstances of division: date of marriage, date of divorce;
3. List of property subject to division;
4. The will of the parties concerning the property.

The agreement is sealed with the signatures of both parties and certified by a notary, who verifies the legal capacity of each spouse.

It is the agreement that is one of the simple and real ways of dividing donated property if the spouses have a chance to reach a minimal agreement among themselves. The judicial division procedure will require lengthy litigation and additional costs.

If the property is improved using common funds

Often a spouse's assets that were given to him or her personally are used within the family and can be improved upon during the marriage. A similar situation most often applies to real estate - residential buildings, apartments, commercial real estate, etc.

If one of the spouses was given an apartment or a house, which was significantly improved during their entire life together using joint funds, then the second spouse will have the right to a portion of the share in the value of such property.

The following actions can be taken as an improvement:

• major repairs;
• modernization or replacement of communications;
• extension of new premises to a residential building;
• real estate reconstruction;
• construction of outbuildings;
• other investments in property that increase its value.

Read more about the division of donated real estate using the example of an apartment in a separate publication.

The following may be used as evidence of joint improvement of real estate gifted to one of the spouses:

• Receipts for the purchase of building materials;
• Work orders for payment of work;
• Account statements about the transfer of funds to the accounts of builders or when purchasing building materials.

The main task in this case will be to prove the date of the improvements, which must be within the boundaries of the marriage. Who was the payer for these invoices does not matter. One spouse could spend money on property, the second could make repairs with his own hands or look after the household at this time.

If the property is given as a wedding gift

Any property given to young spouses as a wedding gift by relatives or friends is considered their joint property.

This property is not given to one of them personally, but to the family as a whole. That is why, in the event of a divorce, the property given to the newlyweds for a wedding will be subject to division according to the general rules specified in the Family Code and will be considered acquired during the marriage. In established practice, spouses share wedding gifts like any other items acquired during marriage.

If the donated property requires registration (apartment, house, car), then lawyers advise registering it as a common shared property of ½ for each of the spouses. This will further eliminate the need to prove the fact of donation and will simplify the division - after all, property in common shared ownership can often be left behind by its owners without re-registration.

Read more about the procedure for dividing joint property here.

How do spouses share gifts with each other?

Gifts and things given by spouses to each other are recognized as their personal property and therefore will not be subject to division.

But only if certain conditions are met:

• This item or property was used exclusively by the spouse to whom it was gifted;
• The gift is not a luxury item or a treasure.

Example: If one husband purchased a mink coat as a gift for his wife, then it will be her personal property, since it will be used by her personally. In addition, part 2 of Art.

36 of the RF IC establishes that clothing and other personal items are also recognized as personal property. Another situation: the wife gives her husband a TV, which will be in the common living room, and the whole family will use it.

Luxury items and jewelry, whether acquired jointly or presented to one of the spouses, according to Part 2 of Art. 36 of the RF IC will not be considered personal property and will be subject to division.

How to prove that property was donated

Proof of receipt of an item as a gift is the main problem in determining the status of the spouses’ property.

With real estate or vehicles, everything is simpler, since the donation transaction in relation to objects subject to registration must be formalized by an appropriate agreement.

With other things (household appliances, furniture, things, etc.), the problem of proving the fact of donation can become a real stumbling block.

For example, evidence supporting a husband's gift of an expensive telephone to his wife could be a check in his name. The husband, being interested in recognizing the telephone as a common thing, is unlikely to present a receipt and thereby admit that his wife is right.

The following may be recognized by the court as evidence of the donation of an item:

• Checks addressed to the donor;
• Postcards, gift and memorial inscriptions on the packaging of donated property;
• Witness's testimonies.

All this evidence is relative in nature and is examined by the court based on the circumstances of each individual situation.

The process of proving the fact of a gift requires extensive legal knowledge in the field of civil and family law. It is highly advisable to consult with an experienced lawyer before initiating property division proceedings, especially if there is a dispute regarding their legal status. Our website’s lawyers are ready to advise you free of charge at any time convenient for you.

• Due to constant changes in legislation, regulations and judicial practice, sometimes we do not have time to update the information on the site
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: Division of donated property during a divorce, is property received under a gift agreement subject to division?

Home » Division of property » Division of donated property during divorce

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During the process of divorce, almost every married couple is faced with the division of property. Among this property there are often gifts presented to one of the spouses by his relatives and friends. The question arises - how to divide these gifts and are they divided in principle during a divorce?

What is considered a gift

According to legal canons, it is considered that the receipt of a gift is considered accomplished when:

• there is a transfer of something considered a gift under a written gift agreement or by oral notification;
• someone receives a prize when participating in a drawing, promotion, contest or competition.

In this case, the fact of transfer of a gift can be:

1. With the preparation of a simple or notarized written agreement. Such a gift is confirmed quite easily; you just need to provide a deed of gift.
2. Through the simple presentation of a gift, both in front of witnesses and without them. Proving the fact of a gift in such circumstances is extremely difficult; here, proof will require the testimony of the donor himself, physical evidence, for example, an engraving on the gift, which will clearly indicate to whom the gift is intended, or other evidence.

Is property received under a gift agreement subject to division?

All property that spouses acquired jointly during marriage must be divided equally between them upon divorce. But is property received under a gift agreement subject to division? If one of the spouses received a car, real estate, or other property as a gift, then this is considered his personal property and is not subject to division.

Some people mistakenly believe that if, for example, an apartment was given to one of the spouses at a wedding and both spouses lived in it and were registered, then such real estate is considered their common property and in the event of a divorce should be divided, like all other property acquired by them . But that's not true. No matter how long the spouses live in this apartment, it will not become their joint property, since one of them received it as a gift.

Another common misconception is that if children were born in a marriage, then the residential premises received as a gift in the event of a divorce should be divided among the children, since they are the heirs of the owner of the apartment. This is not true. Yes, children are heirs, but only after the death of the owner of the residential premises and only if he did not transfer or sell it to a third party before his death.

In what cases can a donated apartment be divided during a divorce?

But, as in other rules, in the situation with donated property there are also exceptions. If during the marriage the second spouse invested significant amounts of money in the donated property in order to improve it, as a result of which the value of the donated property increased, then such property is already considered joint property and will be divided equally.

For example, the groom's parents gave him a garden plot with a small house for his wedding.

During the marriage, the couple completely rebuilt the house, landscaped the land, built a garage and other structures, as a result, the cost of the site with the buildings increased several times.

Improvements to living conditions include:

• redevelopment of residential premises;
• addition to the donated additional premises;
• expensive repairs;
• technical equipment of the apartment.

For example, the apartment was not initially equipped with water supply and sewerage and cost 500 thousand rubles. During the marriage, the couple equipped it with water supply and sewerage, remodeled it, made high-quality repairs, as a result, the value of the property more than doubled to 1 million 200 thousand rubles. In the event of a divorce, such an apartment is subject to division into two equal shares.

Only a court can recognize real estate given to one of the spouses as joint property.

To do this, the spouse interested in such recognition submits a statement of claim to the court, the claim must be accompanied by evidence of investment in real estate for its improvement of joint funds.

It will also be necessary to demonstrate that the value of the property has increased significantly compared to what it was at the time of donation.

Evidence may include:

• contracts for the performance of work by third parties with a mandatory indication of their cost;
• checks and other monetary documents for the purchase of building materials;
• independent assessment of the value of real estate before and after reconstruction or repair;
• witness statements.

How is donated property divided?

There are two types of gifts given during divorce:

• under no circumstances will it be possible to separate;
• can be divided under certain circumstances.

Not subject to division:

• personal items with the exception of luxury items;
• things given before marriage;
• items transferred to one of the spouses for personal ownership that cannot be improved or repaired;
• property already divided as a result of a marriage contract or voluntary agreement.

Under certain circumstances it is possible to divide:

• property gifted to both spouses;
• gifts that have been significantly improved, thereby receiving a higher value;
• winnings or prizes received by one of the spouses, but as a result of joint actions.

For example, a couple bought a car in which the husband won a street race and he received a refrigerator as a prize. This prize will be considered a joint gift, since the competition involved a vehicle purchased with joint funds.

Some nuances of the section

If the court recognizes a gift from one of the spouses as community property, then it can be divided in different shares with a violation of equality. The smaller share will be received by the spouse who:

• did not work and did not have income for no valid reason;
• neglected the common property, which resulted in a deterioration of his condition.

On the contrary, a larger share will go to the spouse who:

• paid general debts from personal funds;
• took upon himself the upbringing of minor children;
• other similar reasons.

Wedding gifts

Often during a divorce, former spouses have a misunderstanding - how are wedding gifts divided? Often during division, disputes arise about who gave which gifts to whom and who will receive this or that property.

Most often, wedding gifts are given to the newlyweds as a family, that is, to both, and not to one of the spouses, and they are joint property, but not always.

For example, the groom's parents gave the newlyweds a car, but the deed of gift was issued only to their son. In this case, the vehicle is considered personal property.

Disputes about the division of gifts

Spouses can solve the problem of division in two ways:

1. By mutual agreement . It is advisable to seal such an agreement with a voluntary agreement with a mandatory visit to the notary’s office.
2. Through litigation . The court decides which property is subject to division, which is personal property, and based on the court verdict, the division occurs. At the same time, often the spouse who wants to remove part of the property from division uses various, sometimes fraudulent, schemes.

For example, husband I.

, in order not to share his beloved car with his wife, he asked his brother to draw up a fake agreement to donate money for the purchase of this vehicle, thus trying to present the car as his personal property. But his wife proved in court that his brother could not give such an expensive gift, since at that time he himself did not work anywhere, doing odd jobs.

The court made a ruling on the division of the vehicle between the spouses, transferring the car to the husband and obliging him to pay monetary compensation to the wife.

Features of the section of various types of gifts

Real estate. Property donated as a gift can become joint property if, during the marriage of the spouses:

• carried out its reconstruction, which led to an increase in the cost of living space;
• carried out a major overhaul that significantly changed the appearance of the property.

Land plot. The donated land plot is subject to division if it has been significantly improved, the spouses have carried out reclamation, planted a garden, or geoplasticized the site, that is, its market value has increased significantly as a result of the work.

Automobile. A car donated as a gift will be considered joint property if, during the marriage of the spouses:

• carried out a major overhaul of the vehicle;
• made tuning of the interior, body, engine or chassis;
• restored the car after an accident if it was due to the fault of the car owner.

The division of joint property is not an easy process. But it becomes much more complicated if this property was initially gifted to one of the spouses, and only later, during the marriage, it became joint property.

Proving that the gift has passed from personal property to joint property falls on the plaintiff; here it is necessary to clearly understand which evidence the court will take into account and which it will consider insignificant.

Only an experienced lawyer will be able to understand all the intricacies of transferring property from personal to joint ownership, will help you competently draw up a statement of claim and, if necessary, will be able to represent your interests in court.

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Is property donated during marriage divided in a divorce?

According to Art. 36 of the RF IC, property received as a gift belongs to the spouse solely and is not subject to division. However, there are a number of exceptions when valuables acquired by gift are recognized as joint property. In such cases, it is important to know how to divide gifts after divorce.

Are gifts divided in a divorce?

A gift is an item received as a result of a gratuitous transaction between two persons. Based on Art. 36 of the RF IC, donated property is recognized as personal property and is not subject to division. But Art. 256 of the Civil Code of the Russian Federation makes an exception and recognizes jewelry and luxury items as common property, divided upon separation, even if one spouse used them in family life.

According to the law, the fact of donation is confirmed by a deed of gift, certified by a notary. If the gift is not accompanied by this document and does not relate to an item of personal use (clothing, shoes, etc.), it is included in the total amount for the division.

If in a marriage a man gives a car to a woman without supporting it with a deed of gift, it will subsequently be divided. Vehicles are not subject to division in kind: they remain the property of one spouse, who pays compensation for part of the cost to the second.

When is donated property not subject to division?

Art. 256 of the Civil Code of the Russian Federation explains that property acquired before marriage registration, received by inheritance or as a result of donation, is not subject to division.

Personal items and other things are not divided:

• cloth;
• shoes;
• jewelry (except for jewelry);
• telephones, PCs, household appliances donated by one spouse to the other under a gift agreement;
• bank accounts opened and replenished before marriage.

It is important to take into account that electronics purchased during marriage using common funds for one of the spouses will be divided during a divorce. Household appliances, computers, tablets, laptops are not considered personal belongings. It is understood that after purchase they will be able to be used by the rest of the family in the absence of a deed of gift. The right to the result of intellectual activity is not subject to division, but the income received from it is considered common.

If the spouse or his relatives had accumulated money before entering into a relationship, but after registering with the registry office they bought property with it, it is considered personal. However, during a divorce, this will have to be proven in court with bank statements.

When is gifted property divided in a divorce?

Based on Art. 256 of the Civil Code of the Russian Federation, personal property received as a gift or acquired before marriage can be recognized as common when, during family life, as a result of joint investments, its value has increased: reconstruction, repairs and other work have been carried out that affect the final price at the time of division.

For example:

Before marriage, a man bought a country house worth 400,000 rubles. After the wedding, a radical reconstruction was carried out, as a result the small house turned into a cottage. The total investment amounted to 5,000,000 rubles.

According to Art.
34 of the RF IC, income received by both spouses or one of them in marriage is recognized as common. Even if a woman did not work, she has the right to reimbursement of half of the funds invested in reconstruction. When calculating, the amount of investments for the purchase of a plot with a house will be deducted, since 4,600,000 rubles are actually divided. Based on Art. 39 of the RF IC, the court has the right to increase the share of one of the parties when a child remains with her or it is proven that in the marriage the second party did not work for unjustified reasons or made large expenses to the detriment of the interests of the family.

Legally, a deed of gift is recognized as confirmation of a gift. If relatives give valuables to spouses for a wedding, they are considered common:

• My husband's parents give him a car directly, without formalizing a deed of gift. Ownership belongs to the man. When dividing, it will be divided in the general manner, since the wife also has the right to it.
• The bride's friends collected a large sum of money and used it to buy jewelry for her as a gift with a total value of 500,000 rubles. Despite the use by one woman and the gift being intended directly for her, the husband, upon division, has the right to claim part of the jewelry or reimbursement of the cost of the share.

The court's testimony is also taken into account, but often even if it is present, the donated item is not excluded from the divisible estate.

Alternative gift section

When spouses want to keep their gifts and avoid court proceedings, they have the right to enter into a division agreement with a notary. This gives a lot of advantages:

• The court hearing takes 2 months. Visit to a notary office – 30 minutes.
• The parties independently determine who will receive what values.

If there are disagreements, the problem can be resolved in court; the notary does not resolve property disputes between spouses.

Step-by-step division of donated property in court

The defendant usually has to prove the donation if the donated item is included in the total estate to be divided. In response, the other party may file a defense to the claim and request that the specific item be excluded from the list. The requirements are supported by evidence.

What the procedure looks like:

1. The initiator of the division files a claim in the district court if the value of the claims exceeds 50,000 rubles. In other cases, the proceedings are handled by magistrates.
2. The defendant receives a copy of the application and a ruling to initiate proceedings, and finds out the date of the hearing.
3. Before the first meeting, a response to the claim is submitted. It is reviewed by the judge, but this is also allowed throughout the entire process until a court decision is made.
4. The judge makes a ruling to satisfy the objection; the plaintiff has the right to file a counter-objection, but if there is evidence of donation on the part of the defendant, it will not be satisfied.
5. Based on the results of the proceedings, a reasoned decision is made.

Challenging interim court rulings is not allowed. Parties may appeal the final decision within 30 days of the decision.

Evidence of donation

The collection of evidence is entrusted to the party requesting the exclusion of gifts from the dividing estate. The following may serve as confirmation of the fact of donation:

• deed of gift;
• testimony of the donor;
• checks and receipts from the donor confirming the expenditure of own funds.

The main document is the gift agreement. Additionally, you may need an appraisal report confirming that there is no increase in the value of the donated property.

Arbitrage practice

Often, courts take the side of citizens who want to divide property acquired not through joint funds, but as a gift. The illegality of such decisions is indicated by Resolution of the Plenum of the Armed Forces of the Russian Federation dated November 5, 1998 No. 15: judicial authorities are obliged to study evidence of donation and make decisions on their basis.

An example from practice on the division of a donated apartment:

The bride's mother, long before registering her marriage, saved up a large sum to buy an apartment. The money was donated under a gift agreement, after which the young wife and her husband bought real estate worth 4,000,000 rubles.

A few years later, the couple decided to separate. The man filed a lawsuit in the district court for the division of the apartment, despite the fact that it was purchased with donated money and there were no joint investments in the purchase. In the claims, he reflected the award of half the share.

This is also important to know: How is the property of an individual entrepreneur divided when spouses divorce?

The defendant did not agree with this, filing an objection and pointing out that the former spouse was entitled to 1/15 of the share in the common shared property, the remaining part should belong to her. The court rejected the objection and satisfied the plaintiff's demands.

The woman decided to appeal the verdict in the regional court, but it also rejected the appeal, leaving the decision unchanged. Then she filed a complaint with the Supreme Court of the Russian Federation, and it did not agree with the lower courts, explaining as follows:

• By law, income, bank accounts and valuables purchased with joint money are considered common property.
• As a rule, property is divided equally. When it is acquired during the marriage with money that belongs to the spouse personally, it is excluded from the regime of community property.

The property was purchased with the wife’s personal money; therefore, it was not purchased with common funds and is not subject to division. By decision of the Supreme Court of the Russian Federation, the case was sent for re-examination; the decisions of the lower courts were overturned.

A lawyer's answers to questions about the division of gifts in a divorce

Free legal consultation We will answer your question in 5 minutes!

Are gifts received for a wedding divided?

Yes, they are considered common property if a gift deed is not executed on them.

The husband gave expensive gifts during marriage: phones, laptops, jewelry. Now he insists on a partial refund. Are gifts subject to division upon divorce?

Household appliances and electronics are not considered personal items, nor are jewelry, so they are divided during a divorce. The spouse may request compensation for the cost or return of valuables equal to his share.

When I was married, my parents gave me a large sum of money. I spent this money to buy a car. Will he be divided in a divorce?

Yes, if a gift agreement has not been drawn up. If you have a deed of gift, it is enough to present it together with bank statements and the purchase and sale agreement to the court, otherwise it will be more difficult to prove the fact of purchasing the car not for general funds.

Conclusion

The division of gifts upon divorce is permitted if there is a deed of gift and other documents confirming the fact that valuable items or real estate were acquired not at the expense of the spouses. Judicial practice is ambiguous, and the procedure takes a lot of time, so it is recommended to obtain the maximum package of evidence of donation.

It is important to know!

• Each case is individual and requires special attention. The information presented on the site is general and does not guarantee a solution to your specific problem.
• We carefully monitor changes in legislation and try to make changes in a timely manner, but this does not always happen quickly.

Therefore, 24-hour legal assistance on any issues is available to you FREE OF CHARGE! Ask your question right now!

Is gifted property divided in a divorce?

When a marriage is dissolved, many are interested in whether gifted property is divided during a divorce . According to Art. 36 of the RF IC, donated property upon dissolution of a marital union is not subject to division. This refers to property that was gifted to the husband and wife separately. However, judicial practice also establishes some exceptions.

So, property given to a person is not subject to division during a divorce. But if both spouses received the gift, then it becomes common and is divided upon dissolution of the marriage.

If a person was given money as a gift, then the property acquired with their help is also personal, as a result of which the second spouse cannot lay claim to it.

The same applies to donated housing. If a husband or wife lived in their spouse’s apartment for many years and were registered there all this time, then after a divorce the owner of the premises has the right to evict his former partner.

Sometimes the courts deal with situations in which the owner of the property - for example, the husband - transfers the apartment to his wife by deed of gift. In this case, according to the law, the woman has the full right to evict the man after the dissolution of the marital union.

It should be borne in mind that upon the death of one of the spouses, the right to the property returns to the donor, unless any other condition is specified in the agreement.

The most common examples of increasing the initial cost of property in domestic legislation include:

• major repairs of property (for example, if the spouses jointly carried out expensive repairs in the acquired apartment after its purchase);
• property reconstruction;
• refurbishment

In order for a spouse to prove the existence of his own contribution to improving the property, he will need to provide the court with documents that confirm this fact: checks, receipts, contracts, account statements, photographs. The duty of the court is to assess the initial and final value of the property, determining the degree of significance of the changes made.

Sometimes spouses divide property that belongs to one of them, agreeing on all the conditions and nuances of the procedure on their own, especially if the couple has lived together for many years.

During a divorce, spouses have the opportunity to draw up an agreement on the division of property. This document will need to specify the conditions under which the personal property of one person will be divided between the former spouses.

The agreement will need to stipulate the following:

• information about the spouses: full name without agreement, citizenship, passport information, residential addresses, date and address of registration of the marital union;
• composition of the property that becomes jointly acquired: residential premises (address of its location, cost), vehicle (make, year of manufacture, registration number, cost), bank deposit (account number, name of the bank, address of its location, deposit amount);
• date and address of application, signature.

Below you can download a sample agreement for writing.

Download a sample property division agreement

The second option is that the owner of the property enters into a gift agreement with the former partner. In this case, it will be almost impossible to challenge the transaction.

Experts do not recommend that interested parties try to challenge the gift agreement by declaring it invalid (for example, the agreement was concluded with an incapacitated person, intimidation and violence were used to draw up the agreement, the document was not registered or was drawn up with certain errors).

In this case, both the owner of the property and his spouse will lose the object transferred as a gift.

If a spouse sold personal property and, together with the husband/wife, purchased more expensive property with the proceeds (for example, instead of a one-room apartment, a three-room apartment), then it becomes joint property.

In the event of a divorce, it will have to be divided according to the norms of domestic legislation.

Practice shows that the process of recognizing part of the property as personal in this case will be significantly difficult. The interested party will need to provide evidence to the court that:

• the original property was received by him on the basis of a deed of gift;
• the original property was not improved through the joint funds of the spouses;
• a specific amount of money received from the sale of the original personal property was used to purchase a new property.

If a spouse owns personal property (for example, an apartment, a vehicle, a business) and wants to protect it in case of divorce, then it is recommended that he draw up a prenuptial agreement. This document establishes a property regime suitable for a particular couple, and also indicates who will receive what property after a divorce.

The marriage contract will need to be certified by an employee of a notary agency, who will check whether the spouses have drawn up the document correctly.

Thus, personal property is not subject to division during divorce proceedings. If its value has increased significantly due to the efforts and material investments of the second spouse, then the latter has the right to count on division of property or financial compensation. Whether the husband/wife really has the right to division is determined by the court when studying the current life circumstances.

If you have any questions, our duty lawyer is ready to advise you free of charge ↓

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.

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.

The Supreme Court clarified how to divide the debts of former spouses

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.

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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.

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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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.

Is gifted real estate divided in a divorce?

• Property received free of charge during marriage (subject to actual documentary evidence) is not jointly acquired, but personal.
• In accordance with the Family Code of the Russian Federation (FC RF), in the event of a divorce, only property acquired jointly by spouses during marriage is subject to division; accordingly, property received as a gift by one of the spouses during the marriage is not subject to division .
• However, there are circumstances in which gifted real estate can be divided during a divorce :

Is gifted property divided between spouses by law?

A gift is a gratuitous transaction, which means that the donor does not receive any material benefit for transferring real estate (or any other object) into the ownership of another person.

As a result of the implementation of the gift agreement , the real estate becomes the property of the donee. This property is personal, not jointly acquired and, according to paragraph 1 of Art.

36 of the RF IC, is not subject to division in the event of a divorce between the recipient and his spouse.

It does not matter whether the property was donated before the state registration of the marriage or after the actual entry into official family relations.

However, there are a number of circumstances under which the division of housing donated during marriage can be carried out.

In what cases is a donated apartment subject to division?

During a state divorce, spouses need to take into account not only general provisions related to the division of property , but also the nuances that lie behind each particular situation. There are circumstances in which real estate given to one of the spouses may be subject to division. These include:

• impossibility of proving the fact of donation;
• increase in the market value of the donated property at the expense of both spouses;
• actual donation of real estate to both spouses;
• other conditions specified in the marriage contract concluded between the spouses.

1. Important
2. If real estate was privatized by one of the spouses before marriage, then it is his personal property and is not divided in the event of divorce.
3. Issues regarding the division of property are resolved in court.

Lack of proof of donation

If real estate was gifted to one of the spouses, then during a divorce it remains the personal property of the person to whom it was gifted. But for this, it is necessary that the owner provide evidence that the property was actually donated only to him, and not as a common shared property.

For your information

The document confirming the fact of donation must clearly indicate that the housing was donated to one of the spouses, and not to the entire family, for example, as a gift for a wedding day.

It is necessary that the gift agreement be drawn up correctly. The important point is that the contract does not stipulate that the giving party receives something in return. Otherwise, the document may be recognized not as a gift agreement, but as a purchase and sale agreement. Then the division of property will be carried out between the spouses in equal shares.

Increase in the cost of an apartment

According to Art. 37 of the RF IC, if the market value of real estate received as a gift by one of the spouses increases during their cohabitation (common funds from the family budget are invested in its repair and reconstruction), then in the event of a divorce, the second spouse can claim compensation.

Attention

If the value of real estate donated to one of the spouses increases due to the investment of common funds, in the event of a divorce, the second spouse may claim not only monetary compensation. A decision may be made in court to recognize such property as joint.

As a result of the fact that funds are allocated from the general family budget, the donee is no longer the sole owner , taking into account the material contribution to increasing the cost of housing by his spouse. Funds can be invested in:

• repair work;
• redevelopment of living space;
• technical improvements, etc.

In order for the spouse of the owner of the gifted home to be able to claim part of the property , the value of which has increased over the years of cohabitation, it is necessary that he provide evidence of the investment of common funds. Such evidence may include:

• contracts with contractors for the provision of repair services;
• cash receipts, receipts and other payment documents confirming the purchase of building materials, technical equipment, furniture;
• assessment of the value of donated housing (before and after repair work);
• witness statements.

Wedding gift for both spouses

Real estate gifted to one of the spouses is his personal property and, in the event of divorce, is not subject to division. However, if both spouses are indicated in the deed of gift , then they equally have the right of ownership in those shares that are specified in the deed of gift.

Provided that the property was given to both husband and wife (for example, as a wedding gift), the housing will be their joint property. In the event of a divorce, such property is subject to division in accordance with the shares allocated in the gift agreement or on a general basis.

Division in the presence of a marriage contract

If the spouses did not enter into a prenuptial agreement, then all property acquired during the marriage is jointly acquired and, in the event of divorce, is subject to division into equal shares.

But if a marriage contract has been concluded, then the division of property is regulated by the rules specified in it (according to the regime prescribed in paragraph 1 of Article 42 of the RF IC).

When concluding a marriage contract, the parties have the right to change the rules for the division of not only jointly acquired common shared real estate, but also personal property.

Thus, property received as a gift by one spouse can be divided, or even become the property of the other, if such conditions are specified in the marriage contract.

If there are minor children in the family, then the division of property occurs only in court. This condition is necessary to respect the property rights of the minor.

When divorcing parents and dividing property, the court must take into account the property rights of their minor children.

When dividing jointly acquired real estate, the court may refuse to divide equal shares of the common property in favor of the parent with whom the children (or child) remain.

Attention

If a child had a share in real estate before the parents’ divorce, then it remains his property and is not subject to division.

According to paragraph 4 of Art. 60 of the RF IC, children cannot claim the property of their parents, and parents cannot claim the property of their children. Thus, if the gifted real estate is the personal property of one of the parents, then the children, like the spouse, do not claim to have a share in their property.

The division of property in a peaceful divorce involves the signing by both spouses of an agreement on the division of property, certified by a notary. In this case, the spouses independently agree among themselves on the redistribution of property rights, without going to court.

If it is not possible to reach an agreement, then you should remember that it is necessary to act within the framework of the norms of the Family Code.

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