How does it go and where to start the division of property in a judicial proceeding. Everything you need to know about the division of property in a divorce. Jurisdiction of the case and the procedure for paperwork Can I apply for the division of property

Any divorce involves the division of property acquired by the spouses during the marriage. This process is simply inevitable. Another question is how the divorcing spouses will approach the division of jointly acquired property after a divorce: will they divide everything equally, honestly, or leave it as it is.

This is for me, this is for you

Before deciding the fate of common property, the spouses need to try to agree and determine who and what will get after the divorce. And for this you need to remember when, in time, under what circumstances, and by which particular spouse the property was acquired. Whether they have debts or credit obligations that arose after marriage.

Article 34 of the Family Code of the Russian Federation states that all property that the spouses acquired during marital relations will be considered their joint property. This includes income from work, and cash deposits, and securities, and shares in a business, as well as all material assets, from apartments and cars to plates and spoons. It does not matter in whose name they are issued, they will be considered general. Even if one of the spouses did not work constantly and did not have his own personal income.

Spouses also need to take into account what property is not subject to division upon divorce, and even if acquired in marriage, according to Article 36 of the Family Law, will remain the property of one of them:

• received under a donation agreement,
• inherited (read more about how Is inheritance divided in divorce? read ),
• items for personal use (clothes, shoes, hygiene products..), excluding jewelry and luxury items,
• the result of individual intellectual labor.

Personal belongings acquired to meet the needs and necessary needs of minor children are given to the parent with whom the children will live.

Everything else (both property and debts) is divided by the spouses voluntarily or involuntarily. With a voluntary division, the spouses themselves decide how to divide the property during a divorce. In most cases, they conclude, in which they indicate which things will remain for which of them. Compulsory division occurs in the case of a property dispute in court. It is the judge who will decide what property after the divorce will go to the wife, and what will go to the husband.

If the marriage bonds of the spouses are no longer tied, then it is rarely necessary to talk about caring for each other, more often each of them tries to act in their own interests and get a larger share after the division.

When dividing jointly acquired property after a divorce, spouses often fall into two tricks:

• remove the disputed property from the "joint ownership regime", proving to the court that they do not have common things, and never had, or they were sold, stolen, bought before marriage,
• they try to reduce the share of common property of one spouse, referring to cohabitation with a child, to common debts that only one pays, underestimate the value of common property and overestimate the price of other things.

Agreement on the division of property

Spouses who managed to agree even before the divorce on who and what from the jointly acquired property can conclude an agreement on the division of property. This document is like a marriage contract. Only the latter is drawn up by the spouses before marriage or during the period of their cohabitation, and the need to conclude an agreement arises when the spouses are about to get divorced, are in the process of divorce or have already dissolved the marriage.

In the agreement, the spouses must indicate what specific things, real estate and money, which of them will get. Sometimes one of the spouses refuses his share in favor of the other or agrees to a smaller part. Do not forget about debt obligations and indicate whether both spouses or one of them will pay off the debt. The agreement can take into account even such difficult moments as section of a mortgage apartment during a divorce - read about this in the article

The main feature of the agreement is that each spouse must agree with the procedure for the division of property upon divorce specified in it.

If the spouse took and disposed of the property without obtaining the consent of the second spouse, then such a transaction can be declared invalid.

An agreement on the division of property is drawn up by the spouses in any form and signed by both.

It is advisable to use the services of competent lawyers when drawing up this document, after all, the issue of division of property during a divorce is very complex and ambiguous.

The agreement will receive exclusive legal force only after it has been certified by a notary.

The judge, having familiarized himself with such a document, which came to him in the process of divorce or when contested by one of the spouses, will necessarily take into account the interests of the parties and common children (if any), and, having discovered any violations, has the right to cancel it.

How is the division of property in a divorce in court

The division of property through the court can be made after the submission of the relevant statement of claim. You can submit it:

• along with the divorce petition,
• during the divorce proceedings,
• after divorce.

It is necessary to take into account when filing an application-claim for the division of property after a divorce, the statute of limitations. After registering the dissolution of marriage, the spouses have only three years, during which they have the opportunity to file a claim for the division of common property. Then the limitation period expires, and the court simply will not accept such a statement from them.

Disputes about the division of property are resolved by a justice of the peace, if the value of the claim is not more than 50,000 rubles. In other cases, it will be considered by a court of general jurisdiction (city or district) at the place of residence of the defendant or the location of the disputed property.

According to the established over the years judicial practice The division of property in a divorce occurs in equal shares between the spouses. A rare judge will go into details of the financial difficulties or needs of the spouses, in most cases, he, according to the law, will divide the jointly acquired property in half. If this is not possible, then the spouse who received a larger share will have to pay compensation to the second.

Do you know that

The right to joint property is not determined by the person to whom the property is registered and acquired. If the spouse (s), for good reasons (housekeeping, childcare, etc.), had no income, then he can also claim joint property.

All the property indicated by the plaintiff and the defendant will be divided, with the exception of what is the personal property of the spouses, which is not subject to division.

The property of the spouse is assessed independently, based on the market value of each item at the time of filing the claim. If this is difficult to do, then you can apply for an independent assessment to the competent authorities.

The duration of the litigation for the division of property depends entirely on the pliability of the spouses: the sooner they agree with the division proposed by the judge, or they can agree on their own, the sooner the lawsuit will end. Question, how to quickly file a divorce and whether it is possible to speed up this process, we tell.

There are times when it drags on for long months, and sometimes it drags on for more than one year. This is not always in the interests of spouses. Although for some of them - at hand. During the protracted process, property can be sold, lost, destroyed. And when there is no subject of division, then there is nothing to divide.

That is why it is advisable to hurry up with the division of jointly acquired property after a divorce or resolve the issue of seizing it in court so that an unscrupulous spouse cannot turn it in his favor before a court order.

Documents for the division of property after a divorce

When considering the issue of division of property, you will need to provide the court with the following documents:

• statement of claim indicating the date of divorce, a list of common property and its value,
• claimant's passport
• certificate of dissolution (conclusion) of marriage,
• common children metrics,
• documents for property that is subject to division (certificate of registration of ownership - for real estate, vehicle passport - for a car, copies of a passbook, account statements - for cash savings, etc.),
• act of valuation of property for division (if any),
• other documents at the discretion of the plaintiff or at the request of the judge.

How is the division of property in a divorce after a court decision

Spouses who agree with the court decision on the division of property can themselves begin to turn it in their favor and draw up documents for it, if necessary.

Some facts

A bad peace is much better than a good quarrel. If "peace talks" are not possible, then only go to court, since legal costs are somewhat higher than the notary fee. may be a few percent of the value of the entire property.

If one of the spouses is not satisfied with the procedure for the division of property established by the court, and he does not comply with his decision, then the intervention of bailiffs will be necessary. They will be able to take actions to alienate the property awarded from the dissenting spouse or to arrest this property, and they will also be able to seize and sell his other property for a similar amount, sell it and turn the proceeds in favor of the plaintiff.

Let it be as it is

The law does not provide for the mandatory division of jointly acquired property after the divorce of the spouses. They may not share or re-register anything. But sooner or later the question will still arise. After all, most divorced spouses start new relationships and remarry, and therefore they have new property rights and obligations. And the limitation period had already expired by that time, and the court would no longer accept the application for the division of property.

Therefore, it is necessary to resolve the issue of the division of property in a timely manner and put all the dots over the “i” in order to avoid problems in the future.

If you have any questions about how to divide property in a divorce, then ask them in the comments.

Divorce and the subsequent division of property is one of the most problematic and controversial cases that lawyers and ordinary citizens have to deal with. Despite the fact that the main provisions regarding the division of property are enshrined in law in article 38 of the Family Code and article 256 of the Civil Code, this does not reduce the number of difficulties.

Dear readers! Our articles talk about typical ways to resolve legal issues, but each case is unique.

If you want to know how to solve exactly your problem - contact the online consultant form on the right or call the numbers below. It's fast and free!

Claim Form

The claim is filed with the court office. There are recommended forms of filing a claim, they can be found at the information stand in the courtroom or requested from the office. You can also entrust the preparation of a court statement to a specialist.

The claim must include:

1. the name of the court;
2. information about the plaintiff and the defendant;
3. information about marital status;
4. data on property, grounds for possession of the disputed property;
5. the price of the claim (the total value of all property);
6. specific requirements.

You can use this sample application for the division of property: Download.

Required documents

The following documents will need to be submitted along with the application:

1. your passport;
2. passport or birth certificate of the child or children;
3. a document certifying marital status - a certificate of marriage or divorce or a court decision or an extract from a court decision, if the certificate has not yet been ordered;
4. information about the composition of the family;
5. valuation of the disputed property (ordered from an independent appraiser);
6. receipt for payment of state duty.

Payment of state duty

The amount of the state duty is established by Article 333 of the Tax Code and depends on the value of the claim. The higher the value of the claim, the higher the amount of state duty. It will need to be paid before filing an application with the court, if desired, it can be included in the claim of a claim for reimbursement of legal costs. If the claim is filed with the mutual consent of the spouses, then they must pay the amount of the state duty in an equal amount.

Conclusion

In order for all the information presented in the article to form a big picture, we recommend that you review it again in this structured form:

This is a kind of cheat sheet on the division of property. Case Studies.

Tens of thousands of marriages are registered in Russia every year. Unfortunately, many couples officially end their relationship through divorce.

Dear readers! The article talks about typical ways to solve legal issues, but each case is individual. If you want to know how solve exactly your problem- contact a consultant:

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In such a situation, it becomes necessary to divide the jointly acquired property. Next, we will consider in more detail how the divorce procedure with the division of property is carried out.

General information

If you need to figure out how to file a divorce with the division of property in 2020, then this procedure is possible, both on the basis of the mutual consent of the spouses, and through litigation at the initiative of one of the members of the couple.

The divorce procedure itself can be carried out in two ways:

• through the registry office;
• through the court.

The first way is possible when the decision to divorce is mutual. In such a situation, the spouses submit a joint application to the registry office, after which they receive a certificate of divorce.

In situations where one of the spouses does not agree to a divorce, the other has the right to apply to the court for recognition of the marriage as invalid.

After receiving a divorce certificate, an agreement is concluded between the people who were married on the division of property.

If the spouses do not know how to properly file a divorce with the division of property, where to start the procedure, then it is best to contact the registry office.

Conclusion of an agreement

Between spouses is possible only in a situation where both parties find a compromise on the procedure for dividing jointly acquired property.

In such a situation, the parties simply agree among themselves on who receives what part of the property, after which the agreement is documented.

An agreement on the division of property is an official document, where:

• a description of all joint property is indicated;
• shares are registered, which become the property of each party.

The agreement is drawn up at the notary, and the spouses put their signatures on it.

It is impossible to challenge this agreement if it does not violate the legitimate rights and interests of one of the parties.

The conclusion of an agreement is the most common form of division of property. In such a situation, there is no need for litigation, and the basis for the division of property is the mutual consent of the parties.

Judicially

When people fail to find a compromise solution on the procedure for dividing joint property, then this issue can be resolved through the courts. Both spouses can file a claim.

The division of joint property may occur along with the divorce procedure. Also, spouses can carry out the division after the dissolution of the marriage.

Required documents

To file a lawsuit, you will need the following documents:

• two samples of the statement of claim;
• certificate confirming the conclusion or dissolution of marriage;
• property rights documents;
• results of expert appraisal of property value;
• document on payment of state duty;
• other documents constituting the evidence base.

The statement of claim, as well as other documents, must be submitted to the court in two copies. The first copy is used by the court to familiarize itself with the case, and the second is sent to the defendant.

Claim Form

The resolution of the dispute in court is possible only in a situation where one of the parties submits a statement of claim with requirements to the other party to the dispute.

This application can be submitted by one of the spouses. It states:

• a detailed list of joint property;
• claims against the defendant, who has the right to file a counterclaim with an indication of his own claims.

Compilation of the statement of claim must be carried out in accordance with strictly established rules.

Unfortunately, some family unions end in divorce, and disputes often occur during the division of joint property between former spouses. Many couples during a divorce cannot agree on what property will go to whom, often people confuse joint and personal property, do not know the procedure and procedure for dividing both joint property in general and its individual types.

Jointly acquired property in a divorce

Under the joint property (joint property) according to the Civil Code and the UK means the property acquired by a married couple during the marriage, regardless of whether both spouses or only one of them earned money for the family budget.

At the same time, it does not matter which of the spouses is registered with this or that property, if the property was acquired (significantly improved) in marriage, it is considered joint.

What is considered common property

Joint ownership includes:

• the income of each of the spouses received by them during the marriage;
• pension, social and other payments, but only those that do not have a designated purpose;
• movable and immovable property acquired by a couple during family life;
• income received as a result of entrepreneurial activity;
• shares in the capital, shares, shares and other securities;
• dividends on shares and interest on bank deposits, but only if these shares or deposits are also joint property.

What property is considered personal

The personal property of each spouse is:

• property acquired before marriage;
• property received by inheritance;
• present;
• things intended for individual use;
• right to intellectual property.

At the same time, expensive items, even if they are used by only one of the spouses, are not considered personal. For example, an expensive antique necklace, if it is not inherited or donated, will be considered joint property in the event of a partition, and not a personal item belonging only to the wife. At the same time simple jewelry, bought with joint money, will be recognized as personal.

Common property rights

Regardless of whether one of the spouses had income during the period of marital relations or did not bring any money to the family “piggy bank”, he still has the right to part of the joint property during the division.

What is shared

Only jointly acquired property can be divided during a divorce, namely:

• real estate acquired during the marriage;
• deposits in banks, securities (except those held by the spouses before marriage);
• other movable and immovable property.

At the same time, it does not matter which of the spouses and how much contributed to the family budget, both have the right to half of the joint property if they decide to divorce and divide it.

What can't be divided

The personal property of the spouses is not subject to division, namely:

• acquired before marriage;
• purchased with the personal funds of one of the spouses;
• received as a gift or inherited;
• personal belongings (except for especially expensive property, such as antiques, antique jewelry, etc.).

There is an exception to this rule: if personal property during the period of marriage has been significantly improved at the expense of joint funds or personal money of the second spouse, it becomes joint and is subject to division.

For example, a spouse had an apartment she bought before marriage. But during the period life together at the expense of the husband's personal funds, the living quarters were overhauled, while its cost doubled. In this case, the property ceases to be personal property and is considered joint.

How property acquired during marriage is divided in divorce

There are three options for the division of joint property:

1. By marriage contract.
2. In accordance with a voluntary agreement.
3. By court.

marriage contract

In the Russian Federation, at present, the conclusion of a marriage contract is a rare occurrence. Mostly successful businessmen resort to it to protect their business in the event of a divorce. The contract can be concluded both before marriage and during the period of marital relations, but until the procedure for dissolution of the marriage has been initiated.

In it, the signatories spell out the procedure for dividing property in the event of a divorce and division, and it is possible to stipulate the procedure for dividing not only existing property, but also property intended to be acquired.

Agreement

The division of joint property is possible both in marriage and after its dissolution, the main thing is that both spouses can find a consensus. The algorithm for concluding an agreement is as follows:

1. Preparation of the project and coordination of the partition procedure.
2. A visit to a notary who checks the document for compliance with Russian law and certifies if it is legitimacy.
3. Signing of the agreement by the parties.

Section options are negotiated by the signatories, it can be:

1. Division in equal or unequal shares.
2. Transfer of property to one with the obligatory payment of monetary compensation to the second spouse.
3. Transfer of various items of property in different variations to each of the signatories.

By court

If agreement on the section cannot be reached, then the third option remains -. The procedure is as follows:

1. Making a claim.
2. Collection of all required documentation for the court.
3. Payment of state duty.
4. Filing a claim.
5. participation in the process.
6. Receiving a court verdict.

Features of the division of different types of joint property

Different kinds and types of property are divided in different ways. The procedure for dividing a vehicle and a land plot or an apartment and a country house cannot be the same, since these types of property are different.

Consider how some of the most common of them are divided.

Apartment

The section of any is affected by its legal status. Housing can be:

• in shared ownership;
• jointly owned;
• in the personal property of one of the spouses.

The easiest way to divide a property located in fractional ownership, everything is simple here: what share you own, that one will get during the division.

If the apartment is in joint ownership, then the shares of its owners are not defined, when dividing, it is first necessary to establish the shares of the husband and wife, and only then proceed to the division.

The most difficult is the option of dividing housing located in personal property.

By law, personal property is not subject to division, it remains entirely with the spouse whose property it is.

But during the period of marriage, housing could be improved: rebuilt, overhauled, while its cost increases significantly, and in the vast majority of cases with the involvement of joint funds. It will be enough for the second spouse to prove that he contributed to the increase in the price of the disputed apartment in order to be entitled to its share.

If there are children

Children cannot claim parental property if they are not its co-owners. In cases where the child has a share in the living quarters, then in the event of a divorce, it passes to the parent, with whom the minor remains.

For example, both spouses and their joint child had shares in a dwelling, each of which is equal to one third. If a minor child remains after a divorce to live with his mother, then two-thirds of the property goes to her, and one-third remains to the husband.

If the apartment is one-room

In fact, it’s impossible for two, cohabitation after a divorce is also unlikely, there are several options for the division:

1. The property is transferred to one spouse, the second in return receives another joint property equal in value to the dwelling. For example, the wife gets an apartment, and the husband gets a car.
2. Sale of residential premises and division of the funds received in accordance with the shares.

Privatized apartment

The section of the apartment bought in marriage and in the same period differ significantly. In the first variant, the legislation does not see a difference - a living space is issued for one spouse or for both, in any case it is divided equally. But if the dwelling was privatized for one spouse, then when the second spouse is divided, he has no right to it.

In such a situation, he may lose any opportunity to even use the residential premises, if, for example, the period of his registration in the residential premises (with temporary registration) has expired.

Mortgage

As a rule, it is issued to one of the spouses (to the one who takes a mortgage loan). Of course, both are involved in paying off the mortgage, so each of the couple has the right to a share in the residential premises, but this is much more difficult to implement.

Most often, former spouses try to reissue a loan for both, but banks are not always willing to go for such a procedure, especially if the second spouse has a low income.

You can simplify the division of such a property if you take care of it in advance. There are two options:

1. Conclude a marriage contract.
2. Sign a special agreement with the bank, where the parties will prescribe the procedure for division and payment under the loan agreement in the event of a divorce and division of property.

Vehicle (TC)

It is considered indivisible property, since in fact it cannot be divided. There are several section options:

• the car is transferred to the ownership of one, the second in return receives monetary compensation in the amount of half the cost of the vehicle;
• similarly, the car is transferred to one spouse, and the second receives other property, at a cost equal to the price of the car;
• The vehicle is for sale, the proceeds are divided;
• the car is transferred to a third party, for example, an adult joint child or another family member.

Shares, other securities, joint ventures

If shares or other securities were acquired during the marriage, then their division takes place in the same manner as the division of other joint property - equally.

If it is actually divided (in the case when the family owns a controlling stake), then both spouses become equity participants and are subsequently forced to conduct all business jointly.

As a rule, during a divorce, rarely one of the former spouses maintains a trusting and benevolent relationship, therefore, it is usually practiced to buy back shares from one of the spouses from the other. Of course, this option does not benefit the enterprise.

It is much easier to divide the securities if the spouses own a small block of shares, they simply divide it in half.

Earth

It is divided in the same way as any other joint property - equally. But there are many nuances in the division of land.

Which plots of land can be divided and which are indivisible

Not all land plots can be divided in kind, there are a number of conditions that must be met during the division, namely:

1. Secondary plots must have the same status as the primary and comply with the standards established for lands of a certain purpose in terms of size.
2. Each newly formed site must have free access.
3. It is not allowed to have disputed objects on a divisible land plot.

If these conditions cannot be met, the plot is recognized as indivisible.

In this case, you can try to divide the land in alternative ways:

1. The allotment remains in the ownership of one spouse, the second receives monetary compensation in the amount of half the value of the land or other equivalent property.
2. Spouses sell the property, the proceeds are divided in half or in unequal shares (by agreement).
3. The land is not divided at all, the ex-husband and wife agree on the use of the site, determining which of them will take what part of the land for use.

Loans

The couple decided to divorce, but there are. What to do in such cases? First you need to decide what the loan was taken for. If in order to purchase property that is planned to be divided during a divorce, then it is advisable to try to renegotiate the loan agreement for both spouses.

Banks are reluctant to undertake such debt restructuring.

If one of the spouses took out a loan to use it for personal purposes, for example, to pay for studies or for a ticket to a sanatorium, then he will repay it himself.

personal property

According to the law, personal property is not subject to division. But there are cases when spouses include very expensive and valuable things, for example, antiques or antique jewelry with precious stones, the cost of which is often determined in the hundreds of thousands or millions.

For example, the husband is a famous violinist and an old instrument of a famous master was bought for him to play. The cost of such violins is huge, the price can reach several million rubles. On the one hand, the husband needs the tool for work, so he considers the tool his personal property, on the other hand, it is a very valuable item, and, therefore, is a joint property. Most likely, the court will decide on the recognition of the violin as joint property subject to division.

How is property divided during a divorce if the wife is the owner

It makes no difference to whom the property purchased in marriage with joint funds was registered, it will still be considered joint. But this rule applies if the property was acquired, and not inherited or donated. In this case, the options are:

1. The property was gifted to the wife. The husband believes that the gift was for the family, and not separately to his wife. In this case, if he proves that the property was not presented personally to his wife, but by the two of them, then it is divided equally. Evidence of one or another variant of donation can be testimonies or deeds of deed.
2. The wife inherited some property. She is the full owner and should not share it with anyone.
3. The property was bought during the period of matrimonial relations, but at the personal expense of the wife. Such property is not divided, but she must prove that her money was used for the purchase, statements from bank accounts opened before marriage, a contract for the sale of her personal property, can help in this.

How is property divided during a divorce if the husband is the owner

The same rule applies as with the owner-wife.

Some husbands, if the wife does not work, but takes care of the house and family, believe that the property bought in such a marriage belongs only to him, since he alone brought income to the family. This opinion is not true, in any case, all property acquired in marriage is joint and should be divided equally.

When dividing any joint property, there are so many nuances and "pitfalls" that it is difficult for an ordinary citizen to understand all the legal intricacies. Competent and experienced lawyers will come to the rescue, who will conduct an initial consultation, suggest an algorithm of actions, help, if necessary, collect the necessary evidence, and, if necessary, represent your interests in court.

How does the division of property occur during a divorce jointly acquired by the spouses, let's consider how to divide property after a divorce without a trial under Art. 38 of the Family Code of the Russian Federation.

(click to open)

Divorce and the subsequent division of property is one of the most problematic and controversial cases that lawyers and ordinary citizens have to deal with. Despite the fact that the main provisions regarding the division of property are enshrined in law in article 38 of the Family Code and article 256 of the Civil Code, this does not reduce the number of difficulties.

General rules

To begin with, lawyers advise you to immediately outline all the things and property that your family has with theses. Follow a simple reminder of what not to share:

• property that the spouse inherited (and did not re-register for you);
• property that the spouse received free of charge as a gift or privatized;
• premarital property.

But all property, real estate, things, and so on, which were acquired when you were married, are equally due to you and your already ex-husband. However, of course, if everything were so simple, then the news would not be shaken every now and then by high-profile divorce proceedings, and there would be no lawyers for them, as a species.

Regulatory regulation

The division of the property of the spouses is possible not only during the registration of a divorce, but also during any period of the marriage (Article 38 of the Family Code of the Russian Federation).

Rules and procedures are defined in the provisions and norms of family law.

Differences between a marriage contract and an agreement on the division of property of spouses

Marriage contract	Agreement on the voluntary division of property
Has an expiration date	Has no expiration date
Made in writing only	Written agreement is not required.
Usually done before marriage.	Can be issued in marriage, in the state of divorce proceedings or after the official receipt of a divorce
The contract includes a description of debts	The issue of debt is not covered by the document.
The property is not specifically described.	When separating, it indicates specifically what property goes to each of the spouses
Must be notarized	Does not require mandatory certification

Should property be divided?

Situations are quite common when a purchase is made out to one of the spouses. If there is peace and harmony in the family, then it does not matter. But when the couple breaks up, the risks of such a design immediately become noticeable.

1. The spouse in whose name the property is registered can sell it. In this case, there will be nothing to share. Theoretically, it is possible to divide the proceeds, but it is much more difficult to collect them if the spouse does not have official income or other property.
2. If the spouse to whom the property is registered has debts, then creditors can recover the debt at the expense of such property.
3. And finally, the one who is recorded as the owner according to the documents, can rent out the thing. In this case, the second spouse will not only lose part of the income, but will also suffer a loss if the leased common property is damaged, worn out, spoiled or lost.
4. The following situation is also possible: in order to sell jointly acquired real estate, it is necessary to obtain a notarized consent of the former spouse for the sale. If many years have passed after the divorce and the former spouses have separated or simply do not communicate, then it will be quite difficult to obtain such consent. The transaction may be delayed or not take place at all.

In order to avoid such situations and not depend on the good or bad will of each other, it is advisable to divide the property. This will bring certainty into property relations and eliminate the need to sort things out in the future or endure property losses.

If there is no agreement on how to divide the property, then it makes sense to turn to experienced practicing lawyers. Often disputes arise and do not fade away due to a misunderstanding of the law and their rights to property. When a lawyer enters into the case, the dispute can be settled amicably, after both spouses are explained their rights and obligations, they will suggest possible acceptable options for dividing property in 2019. If the case went to court, then the participation of a lawyer is already necessary, because after the decision is made, it will not be possible to reapply to the court for the division of property. And if an unfair division happens, then nothing can be changed.

Spouses' rights

When resolving any legal issue, and the division of property is no exception, you should start by studying the documents and understanding your rights in the current situation. The current legislation recognizes the following rights for spouses:

• all property jointly acquired in marriage, as well as debts, are subject to division in equal shares, unless the marriage contract provides for a different ratio of shares.
• the share of one of the spouses can be increased taking into account his interests or the interests of children, for example, if a minor child lives with one of the spouses, if the spouse has a disease, if the other spouse did not have an income for an unexcused reason, etc.
• The non-working spouse's share cannot be reduced if she did not work because she was busy caring for children or housekeeping.
• the spouse has the right to count on monetary compensation if the second spouse has common indivisible property, for example, a car.

Each section of property has its own characteristics, but these basic rules will help you navigate at the initial stage and understand what you can count on if the case goes to court.

Property that is divided and not divided

By general rule everything that was acquired by the spouses during the marriage at the expense of the general income from paid transactions, as well as the income itself, money resources are jointly acquired property.

Such property enters into the common property of the spouses, even if it is recorded in the name of one of them. But it happens that one of the spouses gets a car or an apartment, or a land plot by inheritance or under a donation agreement. This is personal property and cannot be divided. In order to determine what property will be shared and what not, you need to understand:

• under a reimbursable contract, this property came into ownership or free of charge.
• on marital income or on premarital funds.
• purchased with proceeds from the sale of personal property (received as a gift, by inheritance, owned by the spouse before marriage), or with general income.
• purchased for children or not.
• whether it is a luxury item or not.

The property that belonged to each of the spouses before marriage is not divided. Also, property is not divided, which, although acquired in marriage, was bought for children. For example, if the spouses bought a computer for a child to complete school assignments or sports equipment, then this is the property of the child, parents cannot claim such property. Things for individual use are also the personal property of the spouse for whom it was purchased, except for jewelry and luxury items.

Despite such a clear rule, in practice, spouses may encounter situations from which one can find a way out only by knowing the jurisprudence. Not all issues are regulated by the Family Code of the Russian Federation. Courts are still developing approaches to solving problems that are not directly described in the law.

Who should pay for the division of property? PlaintiffRespondent For example, an apartment purchased under a gratuitous contract becomes the personal property of the spouse and is not subject to division. But if such an apartment has been significantly improved at the expense of the joint income of the spouses - repaired, re-planned, reconstructed - then it can be recognized as common property. A land plot provided free of charge by an order or resolution of the municipality also belongs to the joint property of the spouses.

To understand the correct prospects for the division of property, it is necessary to take into account not only general rules but the nuances enshrined in judicial practice. The variety of property disputes has created a variety of options for resolving such disputes.

How to share a car after a divorce

The car is indivisible property, therefore, in most cases, it is transferred to the ownership of one of the spouses. When handing over a car, the court takes into account which of the spouses uses the car more often, who needs it for work, who has a driver's license and who is interested in using the car.

The court awards monetary compensation to the second spouse in proportion to the share in the right to the car. If the shares are recognized as equal, then the compensation will be half the cost of the car. To determine the value of the car, the court appoints an examination, which determines the fair market value of the property.

Inherited property

Property inherited by one of the spouses is the property of that spouse. This rule is enshrined in article 36 of the Family Code. The second spouse is not entitled to claim such property. But just as there are exceptions to any rule, so the inheritance property can be recognized by the court as the common property of the spouses. This is possible if the inheritance received in ownership was improved at the expense of the joint income of the husband and wife, at the expense of the property of each of the spouses or the labor of one of the spouses. For example, a spouse inherited a country house. Both spouses worked and repaired the house for earnings, added a veranda and a second floor to it. The court in this case may recognize the house as the common property of the spouses.

Debts and mortgages of spouses

As mentioned above, when dividing property, you must remember that you will have to share all the debts acquired during the marriage, including real estate taken on a mortgage. The division of debts is always a very painful topic, often one of the spouses may not know anything about the fact that the second spouse has issued a loan. To protect against abuse, the Family Code establishes a rule according to which only those debts that arose with the consent of the second spouse and were spent on the needs of the family are recognized as total debts that are subject to division. Under Russian law, in order to take a consumer loan or a regular loan, the consent of the second spouse is not required; banks require such consent only when concluding a mortgage loan. Therefore, during the divorce process, it may turn out that one of the spouses has collected loans, which will now have to be divided equally.

The division of debts does not mean that each of the spouses will be awarded to pay half the loan. In practice, everything happens differently. If a loan, including a mortgage, was issued to one spouse, then he will continue to pay the loan. After the shares in the property are recognized as equal, the repaying spouse is entitled to recover half of the payments from the other spouse. To do this, you should apply to the court with a requirement to recognize the credit debt as common property. If such a claim is not made, then the opportunity to recover half of the payments from the former spouse will be lost.

To divide marital loans, including mortgages, you need to file a lawsuit to recognize the loan debt as the common property of the spouses and determine the spouses' shares in the debt obligation.

personal property

When it comes to the division of property, it is necessary to immediately establish what property should be excluded from the division. It is considered the personal property of each of the spouses and is not subject to division:

• property owned by each spouse prior to marriage.
• property received by one of the spouses during marriage as a gift, inherited or other gratuitous transactions.
• personal items (clothes, shoes, etc.), but they do not include jewelry and other luxury items, although they were acquired during the marriage at the expense of the spouses' common funds.
• exclusive right to the result of intellectual activity, for example, to a book, painting, scientific work, etc.

It is more difficult to protect your property from division if personal property was sold during the marriage and a new thing was bought with the proceeds. There is a risk of recognizing such a thing as common property. According to the law, the money earned by the spouse from the sale of personal property belongs only to him. This is his personal property. But difficulties arise if it is not possible to distinguish this money from the general family budget.

If personal property is sold during marriage, whether acquired before marriage or received as a gift or inheritance in marriage, then keep the proceeds in a separate account. This will allow in the event of a dispute to distinguish between jointly acquired property and your personal funds.

Business section

When deciding on the division of business, we are talking about the division of real estate and movable property that is used for business purposes, as well as the division of shares and shares in the authorized capital of commercial companies.

When dividing a business, it is necessary to take into account many nuances and develop an individual line of defense in each case. Wherein There are several ways in which you can resolve a property dispute:

• shares in the authorized capital and shares can be divided, like any other property.
• the spouse-participant of the company may withdraw from the company, receive the actual value of his share and divide it by agreement with the second spouse.
• the spouse - the owner of the business can provide the second spouse with compensation in accordance with the share due to him - cash or real estate.
• a share in the authorized capital or shares can be sold and the proceeds divided.

Often, one of the spouses runs the business, so when dividing property, he actively opposes giving up anything related to the business. Such cases are the most complex and require the participation of a lawyer in order to understand the intricacies of property relations and make a fair division.

Divided	Not shared
Movable property (vehicles, etc.)	Received as an inheritance or as a gift
Real estate (house, apartment, room, garage, cottage and other buildings)	Personal belongings and hygiene items. Property necessary for further activities (including cars)
Electronics and home appliances	Rights to the results of activities and creativity
Income, savings and debt obligations	Property acquired before marriage or after its dissolution
Securities, deposits and investment shares	Personal insurance payments
Luxuries ( jewelry, paintings, etc.)	Any property of children

How are children's property divided in a divorce?

Children's property is not subject to division. Whatever the property and for whose funds it would not be acquired, it does not apply to common property. Property owned by a minor child is transferred to the management of the spouse with whom the child remains until the owner becomes legally capable.

They do not share things, even very expensive ones, bought for minors to practice music, dance, drawing, sports, crafts. The same applies to deposits made in the name of the child. They are managed by the parent with whom the child lives, and disposed of by the child himself upon reaching his legal capacity.

Of course, the spouse staying with the child can dispose of the child's property, but only in his interests. For example, sell one property and buy another worth at least or more than the proceeds. Or spend money from the account on the treatment or education of the child. All these manipulations with the property of a minor are carried out with the permission and under the control of the guardianship and guardianship authorities. The parent who has disposed of the child's property must, upon request, submit to the other parent, guardianship and guardianship authorities or the court documents confirming the acquisition of property in the name of the child in exchange for the sold property or confirming that the child has received the services he needs at the expense of funds taken from his bank account.

Voluntarily or through court

Divorce proceedings, accompanied by the division of marital property, are always painful and require patience, time and financial costs for a lawyer.

Each couple decides for themselves how far they can go in the division of property and whether it is worth bringing to court or can be decided at the negotiating table. The law contains rules both in the case of a judicial division of property and in the case of an amicable settlement of the dispute.

Ex-spouses can divide the property as follows:

• conclude an agreement on the division of property and prescribe in it to whom what property is transferred, such an agreement is certified by a notary.
• apply to the court with a claim for the division of jointly acquired property and the determination of shares in this property.
• conclude a marriage contract before the dissolution of the marriage.

No court makes people closer and happier, but it can help to defend property rights quickly, efficiently and fairly. The main condition here is correctly state and substantiate claims and build tactics in court. In the event of a mistake a second time, it will no longer be possible to apply to the court, the decision made and entered into force will be final.

By mutual agreement

Spouses can share common property by written agreement, it is not necessary to bring the case to court. Such an agreement must be certified by a notary. In practice, notaries themselves prepare an agreement on the division of property, it is enough for the spouses to reach agreements and explain to the notary how the property will be divided. To ensure that the division agreement does not violate your rights, contact a practicing lawyer before signing such an agreement. This way you will be sure that you will receive a fair share of the jointly acquired property.

Judicially

In the event of a dispute over who is entitled to what part of the property and what is considered jointly acquired property, and what is personal, the division of property is carried out in a judicial proceeding.

To do this, you need to collect documents on the property, prepare a statement of claim and go to court. More information on how to apply to the court is written below in the next section.

When dividing the common property of the spouses, the court determines what property is to be transferred to each of the spouses, in what shares the property should be divided - in equal shares or deviate from the equality of shares and transfer more than half of the property to one of the spouses. In the event that property is transferred to one of the spouses, the value of which exceeds the share due to him, monetary compensation is awarded to the other spouse.

Often, even before the official dissolution of the marriage, the spouses actually leave and do not maintain relations. If during this period either of the spouses acquire property, the court may recognize such property as personal property and refuse to divide it.

Is a prenuptial agreement a cause for distrust? Yes No Even if the dispute on the division of property is referred to the court, then there are still ways for a peaceful resolution of the issue. Spouses may enter into an agreement on the division of jointly acquired property before a court decision is made. In this case, the agreement will be approved by the court and will have the force of a court decision.

Through a prenuptial agreement

During the period of marriage, spouses may enter into a marriage contract. In this agreement, you can determine any shares in the right to property, transfer property in whole or in part to one of the spouses. A prenuptial agreement can determine which property will be transferred to which of the spouses in the event of a divorce. Such an agreement, as well as an agreement on the division of property, is certified by a notary. Without such a certificate, it has no effect.

A marriage contract can be concluded both in relation to the existing and in relation to the future property of the spouses.

If the need for the division of property arose after the dissolution of the marriage, and the marriage contract was not concluded, then instead of the marriage contract, an agreement is concluded on the division of common property acquired during the marriage.

How a decision is made

The court considers and makes a decision only on the stated requirements. That is, if the plaintiff declares that, for example, a car and an apartment are recognized as common property, but does not indicate in what shares to divide the property and to which spouse to transfer the car, then the court will not determine the shares and decide who to transfer the car to and from whom to recover compensation.

The court does not collect evidence for the plaintiff and the defendant and does not advise the participants in the court, but weighs, considers the voiced arguments and the evidence presented, after which it retires to the deliberation room and makes a decision. That is why it is important, when filing a claim and when considering a case, to clearly and fully formulate all your requirements, to collect exhaustive evidence, otherwise the judicial act will not solve the property problem.

Features of the section in the presence of children

If the family has a minor child or children, this may affect the ratio of the shares of the spouses in the division of property. The parent with whom the child remains to live is forced to bear additional costs for the maintenance and upbringing of the child, the parent and child need more space to live than one person.

If the child has diseases, then there is a need for an increased level of comfort, special nutrition, the parent bears additional costs for the treatment and maintenance of the child. The court may take these circumstances into account and, when dividing, increase the share of the parent with whom the minor child remains to live.

When buying a home with maternity capital, the child will claim a share in the housing itself - an apartment, a house. Such housing will be shared between spouses and children. At the same time, children receive part of the apartment paid for by maternity capital.

How to apply for division of jointly acquired property

If all negotiation possibilities have been exhausted and the division of property is possible only in court, then the most correct thing is to collect all the documents that relate to property, prepare the basic requirements, that is, what you will ask for in court, assess the strengths of your position, work out steps to obtain additional evidence, prepare a statement of claim and go to court.

It would be a delusion to think that for the division of property it is enough to write an application to the court, and then the court itself will figure everything out and decide the case in favor of the plaintiff. The fact is that the court works according to certain procedural rules, which oblige the court to listen to the parties, hear witnesses, study the documents submitted by the spouses, when making petitions from the parties, to consider these petitions and then make a decision.

The court will not determine for you what evidence you need to obtain and how best to state the requirements, as well as what examinations need to be carried out. Therefore, in order to achieve positive result in court, it is a good step to consult with a lawyer before filing a lawsuit. Perhaps for you this is the first trial, and for a lawyer it is the norm of life, so his competent opinion will be useful to you in further proceedings.

Which court to sue

After working out the tactics of conducting a case in court and preparing a claim, it must be submitted to the court. Claims for the division of jointly acquired property in 2019 are filed at the defendant's official place of residence - the so-called "propiska" or "registration". For example, if a spouse applies to the court, then it is necessary to file a lawsuit with the court at the place of registration of the spouse.

Property disputes are considered by district courts and justices of the peace. If the amount of the plaintiff's claims is less than 50,000 rubles, then one should apply to the magistrate of the court district to which the defendant's registration address is assigned. So, if the defendant lives in some area of ​​the city, then you can call any judicial district in this area and ask if this or that address belongs to the jurisdiction of this judicial district. Or you can independently on the website of each of the districts in the section "territorial jurisdiction" to see if the address you are interested in is in the list of addresses.

If the amount of claims exceeds 50,000 rubles, the claim must be filed not with the world court, but with the district court at the place of residence of the defendant.

Claim Form

Summing up all of the above, it is worth noting that the division of jointly acquired property in court is a laborious process that requires careful preliminary preparation, clarification of the history of the receipt of property in common ownership, and determination of the possible shares of spouses in property. Sometimes it is necessary to resolve the issue of recovering funds due to the unauthorized sale of property by one of the spouses or to consider options for challenging the transaction for the sale of common property, returning it to the property of the spouses, followed by division.

The claim for the division of property has, as common to all claims, details, such as the name and address of the court, the plaintiff, the defendant, the subject of the claim - the claim, the basis - the factual circumstances referred to by the plaintiff, the list of evidence, the price of the claim, references to the rules of law, signature , date and list of applications, as well as features related to the specifics of a particular case.

For review, you can download a sample statement of claim for the division of property, but if you have not gone to court before, then before applying, it is advisable to consult a lawyer and, possibly, entrust him with preparing a claim.

Limitation period

This is the period during which you can legally protect your rights and divide jointly acquired property. The limitation period is 3 years. Such a period is calculated not from the date of dissolution of the marriage, but from the day when the spouse found out about the violation of his right. For example, 4 years have passed since the dissolution of the marriage, and at that moment former spouse finds out that the spouse sold the car or apartment bought in marriage. The limitation period will be calculated from the moment when it became known about such a sale.

If the statute of limitations has expired, you can still go to court. The expiration of the statute of limitations does not prevent the filing of a claim and consideration of the case. In this case, there is a risk that the defendant will claim that the statute of limitations has been missed. In this case, at the request of the other party, the court will be obliged to dismiss the claim on the grounds that the limitation period has been missed. But even with a statement about the lapse of the statute of limitations, it is possible to achieve consideration of the case. To do this, it is necessary to file a petition for the restoration of the missed deadline or to prove that the defendant is mistaken and the deadline has not been missed, taking into account the moment when it became known about the violation of the property right.

Required documents

It is necessary to carefully consider the collection of documents for the judicial division of property in a divorce, because the court, when studying the case and making a decision, relies on the documents presented in the case.

The main documents to be submitted to the court:

• receipt for payment of state duty.
• certificate of divorce (if the division of property takes place as part of the divorce proceedings, then a certificate of marriage).
• documents that confirm the right to property (contracts, extracts from Rosreestr for real estate, title to a car, etc.) and / or a petition for the reclamation of title documents, if the plaintiff does not have such documents.
• a loan agreement with a payment schedule and receipts for payment of payments, an account statement showing the balance of the debt, a certificate of the balance of the debt - in case of division of debts.
• certificate or appraiser's report on the market value of the property, the division of which is stated in the claim (appraiser's documents must be attached to the certificate: diploma, insurance policy, certificate of entry into the SRO);
• birth certificate of the child, if the child remains with the plaintiff.

When applying to the court to resolve property issues, it is enough to submit only certificates of the market value of the property, since they are cheaper than an appraisal report, and have the force of a full proof. At least until the defendant puts the amount in the certificate into doubt and file a petition for a forensic examination. During the consideration of the case, a forensic examination may be appointed, but the costs of paying for the examination may be immediately assigned to the defendant.

If, together with the claim, a petition is filed for interim measures in the form of a ban on the alienation of property (a ban on registration actions), then the defendant will not be able to sell the property and avoid its division.

Payment of state duty

For the division of property in court, you must pay a state fee. Its size depends on the price of the claim, in other words, on the amount of money that the plaintiff asks to recover. The higher the amount of claims, the higher the state duty.

Who should pay the state duty? One of the spouses Divide equally The amount of the state duty is defined in Article 333.19 of the Tax Code of the Russian Federation. However, now almost all courts have posted a state duty calculator and details for paying a fee for considering a claim on their websites.

When paying the state duty, it must be taken into account that if the claim contains several claims, then each such claim is subject to the duty. For example, the plaintiff asks to recognize an apartment, a car, a garden plot as jointly acquired property and to recognize the shares in such property as equal. Further, the plaintiff asks the court to transfer the car to the defendant, and to recover half the cost of the car from the defendant. In this case, you need to pay a state duty for claiming compensation based on half the cost of the car, as well as a state duty for claiming the property to be recognized as jointly acquired and determining shares. For such a claim, which does not have a monetary value, it is required to pay 300 rubles. If you are in doubt about how much you need to pay state duties, then pay what you think is right. If the calculation was incorrect, the court will issue a ruling in which it will indicate how much and in what period it is necessary to pay extra.

To reduce the state duty, you can pay a certain amount, usually about 1,000 rubles, and file a petition to defer the payment of the state duty until a court decision is made, referring to a difficult financial situation. Supporting documents must be attached to such a petition in order for the court to accept the claim with a partially paid fee. If the claim is satisfied, the rest of the state duty will be recovered from the defendant.

We tried to tell as fully as possible about what legal approaches exist to resolving property disputes between spouses (former spouses). But each case is individual, because the life of each couple is unique. Therefore, if you are not sure that you can understand all the nuances of the judicial procedure and correctly substantiate your claims in court, then it is better to contact experienced lawyers for advice or to represent your interests in court.

In addition, you will learn some of the intricacies of conducting a lawsuit. Knowing them, you can more effectively defend your own rights.

The right choice of court in the division of property

The dispute on the division of property requires compliance with the rules of jurisdiction. If claims for divorce and property are simultaneously filed, then the statement of claim is presented at the place of residence of the second spouse.

When real estate or land is disputed, the case can be considered in court according to the territory of their location. Such rules are contained in the Code of Civil Procedure. According to which a claim can be filed at the location of the disputed real estate.

Appeal to the Justice of the Peace

At the magistrate, the case is considered much faster. The average processing time is one month. However, it is possible to get a divorce and divide property with a magistrate under two conditions.

The first of these is that there should be no disagreement between husband and wife about children. As for property, its value should not exceed the threshold of 50 thousand rubles.

Receiving monetary compensation

If the property cannot be divided physically, then it is allowed to receive the monetary equivalent of one's share in court.

For example, only a car is disputed by the spouses. It is clear that it cannot be divided into parts.

In this case, one of the spouses may qualify for a decent monetary compensation. Its size will be half of the current value of the car (based on the principle of equal shares).

Emphasis on "professional" things

In some cases, the range of property to be divided also includes that which is necessary for one of the spouses to earn a living. For a musician, these are musical instruments, for an artist, an easel, a workshop and the equipment contained in it.

In such a case, the courts usually leave the property to the party that needs it. The opponent may insist on receiving some compensation in monetary terms.

Achieving a settlement agreement

Its signing is possible on conditions that will suit both spouses. In this case, the property may not be divided in equal shares or replaced by a sum of money.

The amicable agreement shall enter into force from the moment when the district court or justice of the peace approves it by its determination. After that, you can take further steps.

Obtaining the text of the decision and the writ of execution

When the court makes a decision on divorce and division of property, you should not forget to get its text in full. After all, it will be needed for the registry office and other authorities.

If the husband refuses to voluntarily transfer the awarded property, then a writ of execution should be obtained through the court of first instance. It is transferred to the work of bailiffs.

Paperwork after the trial

A court decision on the termination of a marriage and the division of property is not enough. After it, a certificate of divorce should be issued at the registry office. It will cost today 650 rubles (they are paid by each of the spouses).

If the rights to the property inherited by a court decision are subject to registration (an apartment, a car), then you should contact the Rosreestr or the MFC to reissue the documents in your name.

What if the property<потерялось>before section

I want to tell you about the most common trick used by unscrupulous spouses who do not want to part with jointly acquired values. Most often, property can be taken out of the apartment to relatives or friends and it can be very difficult to prove its existence. To prevent this from happening, it is necessary to draw up an inventory of the things that were in the apartment. It is necessary to indicate all the things that were in the living room, their properties and color. Indicate the state of wear and the average market value of the items listed in the inventory.

The contract must indicate the date and place of its preparation. The list must be signed by both spouses.

If one of them evades signing, then you can be asked to certify the property list of disinterested persons - neighbors, colleagues and others. The process of compiling an inventory is best accompanied by a photo or video.

If one of the spouses is not allowed into the premises, then the task becomes a little more complicated. First of all, it is necessary to fix this fact. If the locks have changed in the room, then the second spouse can call a locksmith and remove this obstacle. If the second spouse a good relationship with neighbors, it will not be superfluous to record their testimony on this fact in writing.

I want to tell you in detail about cases of concealment by one of the spouses of joint property. It is not uncommon for acquired real estate or cars to be registered with the next of kin of one of the spouses. Such property can be included in the total mass of jointly acquired valuables, having previously challenged the fictitiousness of the transaction in court.

To do this, you will need to provide the following evidence:

• funds for the acquisition of the disputed property were allocated from the general budget of the spouses;
• the owner of the property does not have the opportunity to acquire it;
• the owner of the disputed property does not have the skills and needs to use it;
• these objects were used and maintained by the family.

While challenging the fictitiousness of such transactions, the proceedings on the division of property are suspended and resumed after the decision of the court decision regarding the disputed objects.

In conclusion, I want to note that the division of property is a rather complicated procedure, especially if the spouses have not come to a general agreement. To represent your interests during the division of property, it is better to use the services of a specialist in family disputes. Thus, a person will be able to make a competent section of joint values ​​and protect himself from possible mistakes.

Dealing with difficult divorce situations

In accordance with the law, the division of property between the former husband and wife is carried out in equal proportions. But, in some cases, exceptions may apply to it. Now I will tell you about them in more detail.

Under certain circumstances, the judge may deviate from the general rule of dividing property in equal proportions. In this case, the principle of increasing or decreasing the share of property is applied.

An increase in the share of property assigned to one of the spouses is possible in the following situations:

• minor children stayed with the spouse;
• the spouse has a degree of incapacity for work or an illness that arose during the marriage;
• payment by one of the spouses of common debt obligations.
• If one of the spouses ran a household, was engaged in raising common children, then he has the right to receive a common marital share.

Reduction of the property share is possible if the following facts are proved:

• one of the spouses did not want to work without good reason;
• the antisocial behavior of one of the spouses led to the emergence of common debt obligations;
• one of the spouses was negligent with the property of the other spouse, which resulted in the loss or damage of the property.

I want to note that in addition to reducing or increasing the marital share, it is possible to divide marital property acquired before marriage.

Let's get acquainted with the most difficult cases of the division of premarital property:

• if one of the spouses had premarital savings, but spent them after the registration of the marriage on joint property, then it can be divided equally between the spouses. To do this, you must provide evidence confirming the movements in the bank account;
• evidence is also required in cases where unequal parts of marital funds were invested in a common purchase;
• if the inheritance property received by one of the spouses has been significantly improved, then the second spouse is entitled to a share in it if he provides evidence confirming his expenses;
• if one of the spouses sold objects of jointly acquired property without the consent of the other spouse, then such a transaction may be challenged in court.

Arbitrage practice

The courts often consider cases on the division of joint property after a divorce, sometimes more than one year passes from divorce to division of property. And almost always the basis for a claim is a violation of the property rights of one of the former spouses.

For example, after a divorce, the husband left for another city, the wife and child stayed in the apartment. Orally, they agreed that the former spouse would not claim their joint property, and she, in turn, would not demand alimony from him. But five years later, the ex-husband returned and stated that things were not going well for him, and he would live in their common apartment. In such a situation, the three-year statute of limitations began from the moment the ex-husband returned and the woman has every right to file a claim for the division of joint property , and since ex-husband does not fulfill the agreement, then also on the recovery of alimony.

Often the reason for the division a few years after the divorce is the alienation of joint property by one of the former spouses.

For example, Nina and Mikhail P. in marriage bought a three-room apartment, which they registered for their husband. After the divorce, they agreed that Nina and the children would occupy two rooms, and Mikhail would live in the third. They maintained good neighborly relations with each other, Mikhail helped ex-wife with kids.

But ten years later, when the children grew up and moved away, Mikhail secretly sold the apartment from Nina, thereby violating her property rights.

In this case, the statute of limitations begins from the moment Nina learned about the sale of the apartment. She has the right to file a claim for the division of proceeds from the sale of real estate, or a claim for the recognition of the purchase and sale transaction as invalid, if Mikhail does not prove that the property was purchased with his personal funds.

The longer the interval between divorce and division of property, the more difficult the process of dividing common property becomes. In the years that have passed since the separation, the former spouses, instead of the former, joint, have new, already personal property, checks, receipts confirming joint rights to property may be lost. A vehicle bought in marriage could get into an accident, joint property could be overhauled and its value thus significantly increased.

In such cases, only an experienced lawyer will be able to deal with all the nuances, who will be able to separate joint property from personal property, help to competently draw up a statement of claim, restore any lost documents and evidence, find witnesses, if necessary, represent your interests in court.

Additional questions

Is it possible to apply for division of property without a divorce?

Despite the fact that the law establishes the rules for recognizing this or that property as personal or common, the priority right for the distribution of family property still belongs to the spouses, who often do not know whether the division of common things is possible without a divorce.

Meanwhile, Article 38 of the IC of the Russian Federation has the right to dispose of property specifically to the owners-spouses, who have the right to determine the legal regime of their property at their own discretion and at any time, and not necessarily after the end of the marital relationship.

That is, a husband and wife of their own free will can share their belongings at any stage of marriage, of course, subject to the rules of the law, which imply:

• equality of the parties;
• taking into account the interests of minors, that is, children that the couple has;
• registration of the agreement, in accordance with the norms of the RF IC, which predetermines the documentary form thereof, and not an oral agreement.

If the husband avoids divorce, what to do

When a husband does not give a divorce, then, of course, a trial will be needed. It may take more than one month. After all, if one of the parties is against a divorce, then the court provides the spouses with additional time for reconciliation, which is three months.

To understand how to achieve a divorce, you need to study not only the Family Code, but also the legislation on civil procedure.

There, in particular, there are rules regarding the rules for filing a statement of claim and its filing. In addition, the Code of Civil Procedure of the Russian Federation prescribes the procedure for considering a case in a court of first and subsequent instances.

Divorce from a husband and division of property may be the subject of one statement of claim together. However, before submitting it, the financial side of the issue should be taken into account.

After all, the requirements in terms of property require a separate payment of state duty. It is calculated based on the value of the disputed items.

If the former spouse refuses to give the property awarded, then enforcement proceedings will have to be initiated. Then the problems with property must be solved with the help of bailiffs.

How are loans divided when dividing property between spouses

Just like property - equally. Or in accordance with the shares awarded to the spouses. This is evidenced by part 3 of article 39 of the Family Code. It doesn't matter in whose name the loan was taken.

Conclusion

In this article, we have described the general rules for the division of property in the event of a divorce. It's good when the spouses manage to agree on everything peacefully.

However, the case often goes to court. In such a situation, one of the options for a positive solution to all problems will be to contact a lawyer.

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