Statement of claim for division of property: how to draw up, sample

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The division of a land plot and the home ownership located on it between spouses may be required when they are planning to get a divorce or even have already divorced, but have not yet managed to divide the joint property. The easiest way to solve this problem is through an agreement, but this requires the consent of both parties, which is extremely rare between divorcing spouses.

How to correctly fill out a statement of claim for the division of a house and land between spouses

Any statement of claim is drawn up taking into account the provisions of Article 131 of the Code of Civil Procedure of the Russian Federation. A claim for division of a house and land between spouses is no exception in this case. However, dividing a plot of land can be somewhat problematic, depending on its size. More on this below.

Main elements of the statement of claim

The name of the judicial authorities to which the plaintiff files the application.
Details of the plaintiff and defendant. You need to write your full name, residence/registration address, contact and passport information.
Cost of the claim. It is calculated as the value of the share of property claimed by the plaintiff. Important for determining the amount of state duty.
Description of the current situation, why the division of property is required and why this was not done earlier.
Evidence that the plaintiff tried to solve the problem without resorting to court services. In this case, this is not a mandatory requirement, but it can be a plus. It is very important to provide evidence. For example, recording a conversation.
Description of the land plot and home ownership. Maximum detailed and accurate.
List of articles of law referred to by the plaintiff.
List of documents referred to by the plaintiff.
Date and signature.

Important Features

The statement of claim must be either typed on a computer or written by hand. But not both at the same time. Otherwise, the document may not be taken into account in court.
It is not recommended to present any information or accusations in the text of the claim that you cannot prove.
It is recommended that when indicating any fact in the claim, provide a link to a document that confirms this. For example, like this: “Were married from ... to ..., which is confirmed by Divorce Certificate No. ... from ....”
There is no need to prove what is already obvious or well known.
All attached documents must be copied, 1 copy for each party. At the same time, the original documents should be at hand.
In the text of the statement of claim, you should use only clear and specific phrases that cannot have double interpretation and real requirements that the court can agree with.

Articles of the law

When drawing up a statement of claim, it is necessary to indicate the articles of law on the basis of which the plaintiff puts forward his demands:

Article 38 of the RF IC (clause 1). Describes the possibility of dividing the common property of spouses both during marriage and after its dissolution.
Article 34 of the RF IC (clause 2). Explains that the common property of spouses means any property acquired during marriage, regardless of whose name it was registered in.
Article 39 of the RF IC (clause 1). Determines the ratio of each spouse's share. By default, the shares are equal, regardless of how much each spouse earned.

Features of the division of land

When dividing a land plot, one should, among other things, take into account the requirements of Article 11.9 of the Land Code of the Russian Federation. In particular, those points that indicate the minimum possible size of the plot. In different regions of the country, the requirements for the minimum sizes of different plots differ, so they should be clarified separately.

Example : In the Chelyabinsk region, the minimum plot size for building a summer cottage is 0.06 hectares, for creating a vegetable garden - 0.03 hectares, and for gardening - 0.04 hectares. In the Moscow region, these parameters are: 0.06, 0.04 and 0.06 hectares, respectively. Thus, it is impossible to divide into a plot of up to 0.12 hectares for the construction of a country house, since each of the plots obtained as a result of division cannot be less than 0.06 hectares.

Thus, if the plot cannot be divided, the court leaves it to one of the spouses, forcing the second to pay monetary compensation for his share.

Statement of claim for division of property in a civil marriage between cohabitants

If the marriage is not officially registered, the man and woman are not officially considered spouses. Such relationships do not in themselves create any rights and obligations. The state does not recognize such relationships as marriage, no matter how many years they have lived together and whether they have children together. In legal language, such relationships are called cohabitation. Sometimes, in everyday life, such relationships are called civil marriage.

The problem with such relationships is that at first you don’t want to go to the registry office, register the relationship, and then, when a man and a woman fully consider themselves one family and treat each other as husband and wife, it is difficult for them to understand why they cannot divide property , receive an inheritance or claim housing rights.

In terms of division of property, the main difference is that, according to Article 3334 of the Family Code of the Russian Federation, the legal regime for the property of spouses is joint property. All property that is acquired by either spouse during marriage immediately acquires the status of joint property. The regime of joint ownership of all property is implied, and the opposite must be proven in court. Cohabitants do not have a regime of common ownership of the acquired property; they must prove in court that the property was acquired as shared ownership.

The main difference between the division of property in a civil marriage is that you first need to prove the regime of common ownership of the property.

It is very difficult to prove the regime of common property in claims for division of property of cohabitants. We need written contracts and agreements between cohabitants stating that the disputed property was acquired as common property. you need to prove who contributed the money and in what parts. Usually people do not think about such questions and acquire property seemingly together, without determining who contributed how much.

When drawing up a statement of claim for the division of property in a civil marriage, describe what property you consider to be common property, how this property arose, from whose funds it was paid, who used it and considered it their property.

Claims for the division of property in a civil marriage should be formulated through a requirement for recognition of the right of shared ownership and division, allocation of a share, and payment of compensation. In this case, do not refer to the Family Code of the Russian Federation; it is not applicable to such relationships. Chapter 16 of the Civil Code of the Russian Federation applies.

Attached documents

The following package of documents must be attached to the application:

Document confirming payment of state duty. If you paid for court services electronically, you will have to print the receipt first.
The applicant's passport or any other identity document. If possible, a similar document from the defendant should be provided.
Technical passport, cadastral plan, certificate of ownership of real estate and any other documents describing the status of the disputed property at the moment.

The list provided above is incomplete. Depending on the situation, other documents may be required.

State duty

A dispute over the division of property of this type relates to property disputes and therefore the amount of the state duty is calculated taking into account subparagraph 1 of paragraph 1 of Article 333.19 of the Tax Code of the Russian Federation. It should be borne in mind that you need to pay the fee only based on the part of the real estate that you plan to receive as personal property.

Calculation example : Let’s assume that married couples purchased a country house and the land on which it is located. The appraisal report states that its value is 9 million rubles. In this case, we apply the last paragraph of paragraph 1 of paragraph 1 of Article 333.19 of the Tax Code of the Russian Federation. Thus, the state duty is determined as 0.5% of 8 million of the price (minus 1 million) and 13,200 rubles of a fixed payment are added to the resulting figure. Total: 40000+13200=53200 rubles. But this is only provided that the plaintiff claims the entire house. If the claim is made only for half, then 3.5 million rubles are taken into account (4.5 the price of half the house is 1 million according to the law). In this case, the amount of the state duty will be 20,000 + 13,200 (the fixed amount does not change) = 33,200 rubles.

You will have to pay separately for the services of appraisers. In the case of a house and land, the cost of assessment can vary between 4-8 thousand rubles, depending on the region. In addition, it should be taken into account that the state duty cannot exceed 60 thousand. Regardless of the amount of excess, the plaintiff will still have to contribute only 60 thousand.

If the plaintiff wins the case in court, he can demand compensation from the defendant for fees. This requirement does not have to be stated immediately in the claim, but can be added at any time.

Yulia Dymova, director of the Est-a-Tet secondary real estate sales office, answers:

Claims for division of property are filed at the location of the property itself. Today it is possible to file claims through the Electronic Justice portal, which will significantly facilitate the process at the initial stage.

Marriage, divorce and your real estate

Division of property in divorce: complex cases

Deadlines

Current or former spouses can file a claim at any time. If it is filed during a marriage, a request for divorce and division of the remaining joint property is usually immediately filed along with it. If the application is sent after the divorce, the statute of limitations must be taken into account. It is three years from the moment the right of either party was violated (or from the moment that party should have become aware of the violation of its right). This is a very important feature, since in some cases they mistakenly begin to count the statute of limitations from the moment of divorce, which is incorrect.

Example : The couple divorced. The house and land remained with the wife, but the couple did not officially divide the property. It is understood that the ex-spouse can show up at any time and demand to be allowed to live in the property, which also belongs to him. 5 years later. The ex-husband really makes such a demand to his wife. She, quite logically, refuses him. This is considered a violation of the rights of the ex-spouse, and only from this moment does the statute of limitations begin to count, since previously the ex-wife did not refute the rights of the spouse in any way. As a result, he now has three years to sue her and demand the division of property.

Application for division of marital property

The application must describe the current controversial situation and indicate the circumstances that are subject to proof. The final decision on the list of circumstances to be proven is established by the court at a preliminary hearing.

The application is drawn up according to the rules of Art. 131-135 of the Code of Civil Procedure of the Russian Federation, taking into account the norms of chapters 7, 8 of the RF IC.

The division of jointly acquired property in marriage can be carried out through the court. Are you interested in the law on the division of property in a civil marriage? See here.

Joint property

Jointly acquired property is subject to division, regardless of whether the spouses are married, divorced or already divorced. Either spouse has the right to go to court with a demand for division.

Creditors of one of the spouses or both spouses can also apply to the court with a demand for the allocation of a share and foreclosure, with subsequent registration to pay off the accumulated debt.

In case of divorce

The division of property during a divorce will only take place if a petition for this has been filed in court.

In court, a divorce is granted if the husband and wife have common minor children, for whom the court must determine:

place of residence;
amount of alimony.

Such issues can be combined in a statement of claim with property claims.

If the division of property is complex, then the court has the right to separate such an issue into separate proceedings.

After divorce

The division of property after divorce is limited by the statute of limitations. It lasts 3 years from the date of registration of the divorce in the registry office.

At the request of the party, the missed deadline may be restored, but only if it was missed for a valid reason.

Rules for filing a claim

When submitting an application, you must act strictly according to the rules, performing one step after another:

Try to conclude an agreement on the division of the house and land with your significant other. If it didn’t work out and a refusal followed, record it on record or document it.
Have your property appraised by a licensed appraisal company. It is recommended to check the company's documents, since the appraisal report may not be valid if the company does not have the right to appraise such objects. In theory, you can do it on your own, but only if the other party is guaranteed not to challenge the value of the property determined by the plaintiff, and the court also agrees with the specified figure. In practice, to speed up the process of considering a case, it is easier to immediately contact an appraisal company.
Draw up a statement of claim based on the sample and rules presented above.
Apply to the court.
Pay the state fee.
Wait for the decision and act in strict accordance with the points specified in it.

Almost always, a court decision comes into force strictly after 1 month. This time is given to the parties to file an appeal if they are not satisfied with something. After the period has passed, if one of the parties refuses to comply with the court decision, the other party can contact the enforcement service and force the court decision to be complied with.

How to correctly file a claim for division of property after divorce

Structure of the claim

A claim for the division of joint property after a divorce must have a clear structure.

The so-called “header” of the document should contain:

name and details of the judicial authority;
personal data of the parties to the case;
claim price.

The following is the heading (Statement of Claim for Division of Joint Property).

Then there should be a statement of the circumstances of the case . Here the plaintiff must indicate:

When and where the marriage was concluded, the marriage was subsequently dissolved. In this case, a link to documents confirming the facts of marriage and divorce is required.
If there are minor children in the family, information about each of them (last name and initials, date of birth and which parent the child currently lives with).
Information about all jointly acquired property. In this paragraph, it is necessary not only to list all joint property, but also to provide a detailed description of it: date of purchase, ownership, cost (with links to title documents). If this is a vehicle, then you must indicate the name, make, model, license plate number, if the property is a postal address, area, etc.
Information about attempts at pre-trial settlement, if any. The plaintiff must indicate whether a division agreement was concluded or whether part of the property was divided according to any oral agreements.

The next point will be the motivation for the method and order of the section , namely:

equality or inequality of shares;
what property should be transferred to which of the parties;
the amount of monetary compensation if it is impossible to actually divide the property;
procedure for sharing property (if necessary),

as well as links to specific articles of the Insurance Code and the Civil Code of the Russian Federation that justify this division procedure.

Further, after the word “please” there should be claims .

In the last paragraph of the claim, the applicant places a numbered list of all documents attached to the document.

This is followed by the date and signature of the plaintiff .

If there is a marriage contract

Before going to court, you need to remember whether you signed a marriage contract and what clauses were in it. This document may include provisions that clearly state the rights and obligations of the parties, including those related to the division of property during a divorce. They may contradict basic legal requirements. Changes to such a document can only be made with the mutual consent of the spouses, which is almost impossible to achieve when the situation comes to a divorce. As a result, the statement of claim must be drawn up taking into account what is written in the marriage contract.

Settlement agreement

If during the trial the parties find common ground and can still give in to each other, they have every right to enter into a settlement agreement. It immediately terminates the proceedings. Once such a settlement agreement is entered into, there is no appeal and it takes effect immediately (or when the parties so specify).

The amount of the state duty in this case remains unchanged.

Any division of property between spouses during a divorce or after it is a very complex process in which both parties have their own ways of proving the case and interests that are fundamentally different from the requirements of the other half. In such a situation, it is recommended that you first consult with an experienced lawyer for free and only then begin to act. We are also ready to represent your interests in court in order to achieve the most profitable and convenient solution.

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