How is property divided when spouses divorce?

Property division

Property acquired during family life is considered community property and upon divorce is subject to division by spouses in equal shares. Whether the wife works or not does not matter. Even if she did not bring income to the family, she was involved in housekeeping and raising minor children (if any).

The court may take the husband's side if it is proven that the wife used common funds to the detriment of the family, skipping them, drinking, etc.

If the spouses have entered into a marriage contract, which stipulates property issues in the event of divorce. If the agreement states that the owner of property acquired during marriage with funds earned by the husband is himself, the wife will not be able to lay claim to such property.

How is property divided during divorce?

The division of property can be made at any time during the marriage, in parallel with the divorce or some time after the dissolution of the marriage.

During marriage . It makes no difference why the spouses decided to divide joint property while they are legally married; in any case, all divided property ceases to be joint property and becomes personal property. But, if after the division the husband and wife acquired some other property, it will have the status of common property.

An important nuance. Often, spouses have already stopped running a household together, that is, they have actually separated, but for some reason they are in no hurry to formalize a divorce. If during the period after the separation, but before the divorce process, one of the spouses acquired property (any), then unless he can prove that he bought it with personal funds, it will be subject to division.

Simultaneously with the divorce procedure . In such cases, the plaintiff, along with the claim for divorce, files a claim for division of property. It is possible to file one statement of claim with several claims, for example, for divorce, determination of the place of residence of children and division of joint property.

After divorce . Usually, when filing a claim for divorce and simultaneous division of property, the legal process is delayed, therefore, often, former spouses first get divorced and then proceed to the division of joint property.

The law allows such a division procedure, but it is necessary to remember the statute of limitations and not delay filing a claim for division for a long period of time.

According to the law, all property acquired during marriage using joint funds is community property and is subject to equal division upon divorce. But there are a number of circumstances in which the court deviates from the principle of “ideal shares” and transfers to one of the spouses a share that is larger than the other. In what cases does this happen:

1. If the family has minor children who, after a divorce, remain with their mother or father. In this case, the court can determine the share of the spouse with whom the children remain in a larger amount than his opponent.
2. If a mother's certificate was used when purchasing a residential property. In this case, if the children remain with the mother, then in addition to the fact that the court can transfer to the mother a large share of the house or apartment due to the fact that minors remain living with her, a priori that share of the real estate that was purchased using the MK will be transferred to the wife , as the target recipient of money under the certificate.

The legislation defines two ways of dividing joint property: by law and by contract.

Legal regime for the division of joint property . With this method of division, the procedure occurs in strict accordance with the law and is based on the fact that each spouse has equal rights to joint property.

Negotiable . In the contractual regime, it is possible to use two division options: by drawing up a marriage contract and using a voluntary division agreement. In both cases, the spouses themselves agree on what property and in what shares they intend to divide.

The difference between a marriage contract and a voluntary agreement is that a marriage contract can be concluded both before marriage and during any period of marriage, while a voluntary agreement, on the contrary, can be drawn up both during the marriage and after its dissolution. Before marriage, it is impossible to conclude a voluntary separation agreement (there is nothing to divide), and after divorce it is impossible to draw up a marriage contract (the marriage no longer exists).

Nuances of property division

For example , a citizen decided to sell a “pre-marital” apartment, of which he is the owner, and purchase a new one. Moreover, the purchase and sale transaction is carried out already at the time of marriage. It seems that the money received after the sale is considered his, and the living space purchased for it is also his.

According to the law, as soon as the owner completes the sale of the “premarital” home and purchases a new one, it will automatically be considered jointly acquired. Accordingly, when citizens decide to disperse, the living space will be divided 50/50 . If the former owner cannot prove to the court that the other party did not invest in any way in the acquisition and further improvement of the housing.

Children

The rights of minors are zealously protected by the guardianship service. During divorce proceedings, the court will decide with whom the minors will live. The other parent will be required to pay child support. The parties can come to an agreement peacefully without making show scenes. It doesn’t matter who the child ends up with, the other half (even the mother) will be obliged to help.

Who worked

When two people come together, they run a household together. According to the law, their rights are the same. It doesn’t matter who invested more material wealth and earned more money. This is fair, because after the birth of a child, a woman has to spend several years on maternity leave. Some spouses themselves ask their wives to stay at home, maintaining the “hearth.”

Therefore, the claims of the participants regarding the duration of work, the amount of income and the level of investments are considered insignificant when dividing property. Even a wife who never works has the right to receive half of the property acquired jointly.

When personal property becomes common property

Property acquired by a citizen before marriage will be joint if it was changed/updated/modified/repaired using common funds before the divorce.

For example, a residential building was renovated: a second floor was built, the first was expanded by adding a couple of rooms, and the roof was updated. Or the car’s engine and chassis were replaced, wheels were purchased, and it was painted.

Any large-scale changes will transform personal property into common property.

Legal disputes regarding this aspect can be lengthy. The judge needs to identify the line that determines the degree of change in the subject. When it is considered significant, requiring large expenses. And which side made more investments. Documents will help here. If the owner keeps checks, receipts, and invoices, this will help him confirm the significance of the expenses incurred. In addition, the court may initiate an appraisal examination.

How can property be divided?

There are 3 options for dividing property:

1. Through an oral agreement, if the husband and wife have no claims or questions regarding the composition, division and order of use of things.
2. The parties entered into a marriage contract before marriage or during marriage, in which they determined the procedure for disposing of movable and immovable property.
3. The parties signed the separation agreement and certified it by a notary.
4. One of the spouses filed a claim in court (if the value of the claim is up to 50,000 rubles - in the world court; if more - in the district court).

There is another option for dividing property, but it is of a forced nature - at the request of creditors to foreclose on the property for the debts of the husband/wife.

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;
• intellectual property right.

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

What is shared

During a divorce, only jointly acquired property can be divided, namely:

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

In this case, it does not matter which spouse contributed and how much to the family budget; both have the rights to half of the joint property if they decide to divorce and divide it.

What cannot be divided

Personal property of 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 particularly expensive property, such as antiques, ancient jewelry, etc.).

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

For example, a spouse had an apartment that she bought before marriage. But during the period of their marriage, at the expense of the husband’s personal funds, the living space was overhauled, and its value doubled. In this case, the property ceases to be personal property and is considered joint property.

How is property divided?

Division of property is a procedure in which each spouse claims their rights to certain material benefits. If a husband and wife decide to divorce, it is important to submit a corresponding application, along with which an application for division of property is submitted. The judge may review the documents at one time. Once a decision is made on the division of property, the spouses can dispose of it at their own discretion: sell, donate, exchange, etc. It is important that the division process takes place in a timely manner.

In accordance with paragraph 2 of Art. 38 of the Family Code of the Russian Federation, common property is divided if both parties agree to the conditions. The document-agreement on the division is certified by a notary. If spouses have any objections or controversial opinions, they must be resolved in court. In order to divide the acquired wealth, one spouse must submit an application to determine the share of each.

If the husband and wife do not submit a divorce petition on time, the three-year limitation period applies to claims for division of property. In some cases, it happens that the claim period is extended. This happens when one of the spouses hides the fact of ownership. The three-year period in this situation is calculated from the moment when one spouse became aware of the property of the other.

Sometimes the division of jointly acquired estates takes place while the husband and wife are still married. This decision is very rational and reasonable. In this case, those possessions that were acquired during marriage are subject to division; they are common property and are subject to division. It also happens that spouses live separately even during marriage and acquire property separately. In such a situation, material wealth can be divided or assigned as property to one person.

Section order

In accordance with the IC, spouses can divide joint property in two ways:

• by concluding a voluntary separation agreement;
• judicially.

If the ex-husband and wife are able to solve the problem of division peacefully, then they can draw up a voluntary agreement. They can sign such a document both during any period of marriage and after its dissolution.

Marriage contract

In the Russian Federation, concluding a marriage contract is currently a rare occurrence. Mostly successful businessmen resort to it to protect their business in case of divorce. The contract can be concluded both before marriage and during the marital relationship, but until the divorce procedure has begun.

In it, the signatories stipulate the procedure for dividing property in the event of divorce and partition, and the procedure for dividing can be stipulated not only for existing property, but also for property intended for acquisition.

A conflict-free solution - an amicable agreement between the spouses

If both parties agree to an out-of-court settlement of the issue and there is no conflict between them, then they enter into a corresponding written document (a settlement agreement on the division of property), in which they indicate the shares of each party and notarize it. If the agreement is left in simple written form, it will not have legal force. Such a document will not work anywhere, including in court. Since December 29, 2015, Federal Law No. 391-FZ has established that it must be notarized.

Through the court

If, however, the former spouses cannot independently agree on who takes what things, then the matter comes to court. When resolving a conflict in court, the court initially determines the composition of the property suitable for division, and then allocates a part of each spouse.

But if one of the parties receives property, the price of which significantly exceeds its legal share, then the court may oblige this party to pay the former spouse material compensation (compensation) in cash or other form.

Example : At the time of marriage, the husband bought a rare painting by a famous artist, which cost more than 1,500,000 rubles. The wife was not against the transfer of this property to her ex-husband, provided that the court ordered him to pay compensation to his ex-wife in the amount of 200,000 rubles.

Required documents

In order for the court to accept the claim for consideration, the applicant must provide the court with a certain package of documents, namely:

1. Statement of claim in several copies. The number of copies depends on the number of parties to the process.
2. Certificate of marriage and its dissolution, if a divorce has already occurred.
3. Title documents for all property proposed for division.
4. If there are minor children, a birth certificate for each child.
5. Receipt for payment of state duty.

All documents, except the receipt, are submitted in copies; the plaintiff must bring the originals to the trial for the court’s review.

Statement of claim

In the statement of claim, the plaintiff provides the following information:

1. The name and address of the court to which he is applying.
2. Data on all sides of the process.
3. The price of the claim.
4. A list of all items expected to be included in the section with a detailed description of each of them.
5. List of articles and laws to which the plaintiff refers in his claims.
6. Requirements for the division of joint property.
7. A numbered list of all attached documents.

Division of furniture during divorce

Division of spouses' furniture during divorce

DURING MARRIAGE, a husband and wife can purchase not only apartments, houses and cars, but also expensive furniture, household appliances and other household items. As a general rule, this property is the joint property of the spouses. However, if spouses divorce, internal conflicts and dissatisfaction with each other make the process of dividing furniture and equipment an extremely difficult task.

Methods for dividing property: furniture, equipment and other things

The division of furniture during a divorce can be done in several ways:

1. By concluding an agreement. The agreement can be concluded both during marriage and after its dissolution. This document must indicate specific property, as well as the shares due to each spouse. Property that appears after the conclusion of the agreement does not fall under the scope of this document; therefore, it becomes the joint property of the spouses. A husband and wife can enter into as many new agreements as they like. The main condition is that the agreement must be certified by a notary.
2. By concluding a marriage contract. A marriage contract can be concluded both before the registration of marriage and family relations, and at any time during marriage. This document defines the legal regime of property acquired in a marriage union. For example, spouses can stipulate that property acquired with the spouse’s money will belong solely to him. A marriage contract may affect both existing and future property of citizens. The document is subject to mandatory notarization.
3. By going to court. If the parties cannot reach a compromise, then they have only one choice: turn to the justice authorities. As a rule, the process of divorce is accompanied by the division of property, but spouses can divide their property after the fact. If the cost of the furniture does not exceed 50 thousand rubles, the claim is filed in the magistrate’s court; if it exceeds, then in the district court.

Spouses can divide virtually any property located in the apartment, from sofas, wardrobes and tables, to curtains and dinnerware.

However, the following are not subject to division:

• items that one of the spouses acquired before marriage;
• donated and inherited property;
• items designed to meet the needs of children (for example, a desk, a children's bed, bookshelves).

In addition, the personal belongings of spouses during the division of property remain inviolable.

SINCE THE ACTUAL DIVISION OF THINGS DURING DIVORCE is impossible in most cases, the parties can, for example, distribute the items among themselves in proportion to their value (the difference is compensated by money). Another option is possible: one of the spouses receives furniture, and the other receives compensation in the amount of half its cost.

Is it necessary to order an independent assessment of its value to divide furniture during a divorce? If the property is relatively new, and the spouses have receipts and checks confirming the price, then citizens can determine the value themselves. In other cases, it is recommended to contact a company engaged in an independent assessment of the value of the property. The final report of the specialist can be used as evidence in court.

If you are afraid that your spouse is capable of hiding property, then along with the claim, you can file an application with the court to seize the items until a final decision is made. If the justice body makes a positive decision, the writ of execution is presented to the FSSP, whose employees must describe the disputed property. The application is considered by the judge on the day it is received, and the court's ruling to secure the claim is executed immediately.

Unfortunately, the process of dividing furniture and equipment is often complicated by various circumstances. Lack of documents for property and its concealment by the second spouse are perhaps the most common problems. However, if experienced specialists take on the matter, the chances of a successful outcome of the case increase.

Let's give an example from our practice:

The Trustee approached us with a request to help divide the furniture and household appliances that were acquired during the marriage.

It turned out that the woman divorced her husband 2 years ago, after which she moved out of her ex-husband’s apartment. She did not have any documents for the property.

Our specialists prepared a claim in court, as well as an application for seizure, in which they indicated a list of the disputed property.

The defendant actively objected to the claim, arguing that he purchased the furniture and equipment on his own before marriage. With the help of witnesses, joint photographs of the plaintiff and defendant, as well as documents for items received at the request of the court, lawyers were able to prove that the property was acquired during the period of the marriage.

The court upheld the claim and ordered the ex-husband to pay the woman half the cost of the furniture and equipment, and thanks to a timely application for interim measures, the defendant was unable to hide the property.

And another example:

We were approached by a Principal who had already initiated divorce proceedings. Due to the lack of documents for furniture and other household items, as well as the defendant’s reluctance to divide the property in the manner proposed by the plaintiff, the process was delayed, and court hearings were constantly postponed.

Through negotiations, our specialists were able to find an option that suited both parties: as a result, a settlement agreement on the division of furniture was signed.

Should I contact a lawyer?

DIVISION OF PROPERTY IN GENERAL AND FURNITURE IN PARTICULAR is always a rather complex and time-consuming process. It is rare that spouses are ready to make mutual concessions and sign agreements: most often the dispute has to be resolved in court. In such conditions, citizens may have a wide variety of questions, ranging from which court to go to and what the amount of state duty is, ending with questions of judicial practice that goes against the law.

If you do not want to waste time clarifying all these and many other procedural nuances, contact the specialists of our Legal Center.

Why is cooperation with us reliable?

1. Our lawyers regularly resolve issues related to the division of furniture and other items, therefore, we have extensive experience in this area. We do not need time to “immerse” in the topic, study legislation and judicial practice: we begin work immediately after concluding the contract.
2. We are able to work with complex cases, for example, when the Principal does not have any documents for the property, and the property itself is in the possession of the second spouse.
3. Lawyers of the Legal Center are ready to take on all the work regarding the division of furniture, from preparing the evidence base to participating in court proceedings. This is especially true for citizens who, due to personal hostility, are not ready to communicate with their ex-spouse.
4. Lawyers always speak honestly and openly about the prospects of a case. For example, if we find out that the furniture was given to the spouse by his parents, we inform the Principal that it is pointless to fight in court for this property.

If you doubt whether you have the right to certain items, and whether it is worth fighting for them, come for a consultation with the specialists of our Legal Center. We will answer any questions you may have and offer solutions to the problem.

Features of the division of different types of joint property

Different types and types of property are divided differently. 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.

Let's look at how some of the most common ones are divided.

How is maternity capital divided?

The husband has no right to maternity capital funds; these are targeted payments that belong only to the wife.

But if the spouses invested MK in the purchase of residential premises, then there are several nuances during the division, namely:

1. If only MK funds were invested in the purchase of housing, then during a divorce it is transferred to the wife, since the husband has nothing to do with the maternal certificate.
2. If the spouses used the MK to pay off the mortgage, or as a first payment for the mortgage, but at the time of the divorce the loan had already been repaid, then when dividing, the amount of the invested MK and the share of the apartment (or house) attributable to This amount is entirely transferred to the wife. The remainder of the property is divided equally. As a result, the husband receives a share of the apartment, which is worth less than the wife by the amount of MK.
3. The capital was invested as a down payment on a mortgage that was not paid off at the time of the divorce. This is the most difficult version of the section. In any case, that part of the living space that corresponds in value to the amount of MK has already been paid, it is completely transferred to the wife and children. Next, a complex calculation is made. The part of the apartment for which the mortgage has already been repaid is divided equally, leaving a share corresponding in value to the unpaid mortgage. Here the court proceeds as follows: part of the property, corresponding in value to the outstanding part of the loan, is transferred to the spouse who will repay the balance of the mortgage.

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For example, a married couple bought a two-room apartment worth two million 400 thousand rubles. Of this, they invested 400 thousand from MK funds, and took out a mortgage loan for the rest. A few years later, the couple divorced. At the time of the divorce, only half of the loan was repaid.

The division took place as follows: a share corresponding to 400 tr. was transferred to the wife, a share equal to the repaid amount of one million rubles was divided equally between the spouses, and a part corresponding in value to the million rubles outstanding on the mortgage was transferred to the husband, in whose name the mortgage was issued.

As a result, the wife received a share equal to (450 rubles + 500 rubles) 900,000 rubles, and the husband received a share of residential premises equal to (500 rubles + 1 million rubles) one and a half million rubles.

How are loans divided?

All loan obligations can be divided into personal (loan funds were used for personal purposes and repaid from personal funds) and joint. The second option is the most common. The division of the outstanding loan depends on many factors, such as:

1. The husband became the guarantor for the wife’s loan (or vice versa), and the loan was used for general needs. Such a loan is divided equally, that is, both husband and wife are equally responsible for its repayment.
2. The husband (or wife) is the owner of the credit card on which there is debt. The second spouse does not bear any responsibility for servicing the card and paying off the debt.
3. One of the spouses took out a consumer loan for personal needs, for example, to buy a telephone. The obligation to repay the loan does not apply to the second spouse.

Thus, only those loans that were issued for the purchase of joint property are subject to division, and if this property is transferred to one of the spouses, then the second is released from the obligation to service the loan. Moreover, he may demand half of the funds already spent on repaying the loan.

Before the procedure for dividing joint property and loan obligations, it is advisable to find out a few more important points:

1. Clarify the terms of the loan agreement. Pay special attention to those points where the borrower and guarantor are indicated and how the bank intends to solve problems with delays in loan payments. If, for example, the husband is listed as a guarantor for his wife’s loan, then in cases where she is unable to service the debt for some reason, the husband will have to pay it as the guarantor.
2. It is also necessary to clarify for which purchase the loan agreement was drawn up. If borrowed funds were spent on acquiring joint property, then the spouses will have to repay it jointly. If the money was used to purchase personal property, then the balance of the loan will be repaid by the spouse for whom the borrowed funds were intended.

If the apartment is one-room

In fact, it is impossible to divide a one-room apartment into two; living together after a divorce is also unlikely; several division options remain:

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

Privatized apartment

The division of an apartment purchased during marriage and one privatized during the same period are significantly different. In the first option, the legislation does not see any difference - the living space is registered for one spouse or for both; in any case, it is divided equally. But if the residential premises were privatized for one spouse, then during the division the second has no right to it.

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

Mortgage

As a rule, a mortgage on an apartment is issued in the name of one of the spouses (the one who takes out the mortgage loan). Of course, both participate in repaying the mortgage, so each of the married couple has the right to a share in the residential premises, but this is much more difficult to realize.

Most often, ex-spouses try to re-issue a loan for both of them, but banks are not always willing to undertake 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 payments under the loan agreement in the event of divorce and division of property.

Vehicle (VV)

A car is considered indivisible property, since it is actually impossible to divide it. There are several section options:

• the car is transferred into 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, the value of which is equal to the price of the car;
• The vehicle is sold, the proceeds are divided;
• the car is transferred to a third party, for example, an adult joint child or another family member.

Earth

The land plot is divided in the same way as any other joint property - equally. But there are many nuances when dividing land.

How to divide indivisible things

It often happens that common property includes things that spouses want to keep for themselves. In such situations, the court acts in the following order:

• Former spouses are invited to determine for themselves who will get this item. Further: the parties determine the value by mutual agreement or on the basis of the appraiser’s conclusion (if there is no agreement);
• the court, based on the price, assigns monetary compensation to the spouse left without the property from the funds of the other spouse.

For example , spouses cannot share a car. The court found that the ex-wife does not have a driver's license and for health reasons cannot drive a vehicle. While the other spouse works in a remote place from residence. The judge is more likely to leave the property to the husband.

Division of property through court

If there is no other way, and the division of common property is possible only through the court, then each party must carefully prepare for the meeting - provide receipts for the purchase of furnishings, if any, a certificate of income, and give arguments in their favor. The court may reduce the share of one of the spouses legally if convincing evidence is provided that he did not participate in the acquisition of property:

• did not work without good reason;
• abused alcohol or drugs;
• caused obvious damage to property.

As in the case of any other property, no court when considering a case will be able to divide the furnishings of an apartment upon divorce if it was acquired by the husband/wife before the wedding or transferred by inheritance or as a gift. But if the newlyweds received a set of furniture on the wedding day, then it already becomes the jointly acquired property of the spouses and is subject to division.

A convenient way to divide property is a compromise - one of the spouses will keep the furniture, and the other will take household appliances of equal value. This solution is especially relevant when it comes to built-in furniture and the apartment remains with one of the parties. You can only share such furniture out of spite - you can sell it for pennies, and it is unlikely to be useful in another home, since it was made for a specific layout.

How to divide common furniture during a divorce, and whether it is necessary to do so - each couple decides for themselves. Some follow the principle and share everything down to the last chair to spite the other half and often to the detriment of their own interests. The latter act more wisely and in a civilized manner - they look for an option for dividing property that suits both parties - if there are two cars in the family, the wife is left with sofas, tables, armchairs and other furnishings. The husband takes a more expensive car, or the parties resort to another compromise solution.

Section cost

Of course, the division of joint property will require certain material costs, and these costs will differ significantly for different methods of division.

Voluntary separation agreement . The most cost-effective partition option. When drawing up an agreement, the parties will need to pay a notary fee, which, depending on the amount of the agreement, can cost from three hundred rubles (if the price of the property being divided is up to one million rubles) to an amount exceeding 32 thousand rubles (if the value of the property exceeds 10 million rubles).

Division through court . With this option for dividing joint property, costs can become significantly higher. Few ordinary citizens will be able to independently draw up a legally competent statement of claim, so they will have to resort to the services of a lawyer. The cost of such services depends on the region, for example, in Moscow

• an oral consultation with a lawyer will cost from 1,000 rubles;
• for a written consultation you will have to pay from 3,000 rubles;
• drawing up a statement of claim and assistance in collecting documents will cost from five thousand rubles;
• the cost of complete case management will cost 35 – 40 tr.

In addition, the plaintiff will have to pay a state fee, the amount of which depends on the price of the claim. You can calculate the amount of duty using the table.

Table for calculating state fees when filing a claim for division of joint property

So, you are facing a divorce from your wife and division of jointly acquired property. Trying to negotiate should be your first step. This will allow you to maintain normal relations after a divorce, save a lot of money and speed up the separation process.

If a voluntary agreement on separation is impossible and the court remains, then the very first step should be to find a competent lawyer. Yes, this will slightly increase the cost of dividing property, but it will help avoid even greater financial losses in the event of improper management of the case.

Marriage contract

A voluntary division of property will also help to make a marriage contract.

The following important points should be remembered: a prenuptial agreement can only be concluded while you are married, and it is also subject to notarization.

That is, after a divorce, it is no longer possible to conclude a marriage contract. A marriage contract has no significant advantage over an agreement on the division of property, since both of these documents have sufficient legal force.

The following property is not subject to division:

• gifted and inherited property of one of the spouses;
• personal items (including jewelry), as well as gifts;
• children's things, as well as deposits and property recorded in the name of a minor child.

You may also be interested in an article about how a mortgaged apartment is divided during a divorce. Read a useful article about how a business is divided during a divorce here.

Terms of division of property of spouses

As a general rule, the statute of limitations in cases regarding the division of property between former spouses is 3 years (clause 7 of Article 38 of the RF IC). However, many do not know from what moment this period begins.

The Plenum of the Supreme Court of the Russian Federation in its Resolution No. 15 of November 5, 1998, in Article 19, indicated that it is necessary to calculate the limitation period not from the very moment of divorce (entry into force of a legal court decision or registration of an entry in the book of dissolution of marriage unions in the registry office) , but from the moment when the person should have become or became aware of the fact of a violation of his right. This provision is also indicated in paragraph 1 of Art. 200 Civil Code of the Russian Federation.

Example: 5 years after the end of the marriage, the husband learned about real estate that was purchased at the time of his cohabitation with his ex-wife, but this building was not indicated in the list of common property.

The spouse, whose rights were not respected, is obliged to prove the fact of evasion from the division of jointly acquired property, but it is sometimes extremely difficult to justify such circumstances.

To restore the missed deadline, the spouse must file a claim for renewal of the missed deadline with the judicial authorities.

Division of property in court

Division of property through the court is inevitable if those divorcing are unable to independently agree on the procedure for dividing joint property. A claim is filed in court and the volume and composition of the divisible property is established in court, its assessment is made, and then, in the civil court process, the share of each of the spouses is allocated, compensation is assigned if necessary.

When dividing property, the court takes into account the interests of each spouse and their children and is guided by the principle of equal division of common property, the principle of decreasing or increasing the share while respecting the rights of children and the validity of decisions made.

Division of property during divorce if there are children

The property of adult children, namely: an apartment, a car, a summer house or shares, is not subject to division. They must remain the personal property of the child.

If a family that wants to divorce has minor children, then the divorce process occurs only through the court. This action is used to ensure the personal property rights of children.

In the event of a divorce, adult and minor children, at the time of division of the spouses' property acquired jointly during marriage, do not have the right to it, just as parents do not have rights to the children's things purchased for their needs. These include:

• clothes, shoes
• Sports Equipment
• school supplies
• furniture, books
• instruments for music practice
• as well as material deposits issued for children.

The listed items are transferred to the parent with whom the children will remain. Another person does not have the right to count on appropriate monetary compensation, even if it becomes known that the children’s property was sold.

Sometimes the fact that the child needs these things is disputed:

Example 1: A computer that was purchased more than 4 years ago was purchased for general use, and not just to meet the needs of a child. Here the issue is controversial and the court may rule in favor of one side or the other. Because the computer can hardly be attributed exclusively to children's use.

Example 2: A claim is made for a piano. The ex-husband stated that the purpose of this tool is not intended only for children. However, the wife presented evidence that their child is studying piano at a music school and this musical instrument was bought for him. Such a piano will not be subject to division.

If real estate that is the property of a minor child or his place of residence is alienated, then a representative of the guardianship and trusteeship authority must be present at the court hearing. The consent of the authority to allocate the child’s share is mandatory.

Be sure to read it! What to do if your ex-husband pays small alimony

Division of property during divorce if a married couple has a child

Not all married couples enter into a prenuptial agreement. If there is none, you should know that jointly acquired benefits are divided in half, with some exceptions, which were stated above.

In case of divorce, common debts are also distributed between husband and wife. It is important to remember that a minor child has every right to own real estate, a car, cash, securities and other material assets.

If the child is under 14 years old, transactions are made with his consent, but by the parent, and from 14 to 18 years old, the child can make them independently, but with the consent of the parents.

The Family Code of the Russian Federation provides that parents do not have the right to take away part of their property from a child, and a child cannot have ownership rights to the parents’ property (without their consent).

The property of a minor child cannot be divided between spouses under any circumstances. In order to draw up documents for the division of property during a divorce, you must go to the court at your place of residence.

The judicial authorities may be located at the same address as the property. First of all, you will need to submit a statement of claim, a copy of the marriage certificate and a copy of the divorce document.

It is important that the papers are certified by a notary; technical passports, certificates of ownership, and copies of documents that prove that the property was acquired during the marriage will also be required.

Division of property if the wife did not work

Once upon a time there lived Tatyana and Mikhail.

An ordinary family, 2 children. Mortgage. Pay for another 4 years. Over the past 6 years, Tatyana has not worked a single day.

First one child was born, then the second. Mikhail worked alone. I worked hard from morning to night, the salary was good, we bought an apartment with a mortgage.

A wife on maternity leave is not a job. This is relaxation and doing nothing.

This is precisely the opinion that Mikhail formed. Tatyana finally went to work - to take a break from maternity leave. Mikhail announced a divorce. If you go to work, you can pay the bank yourself.

According to the documents, the owner of the apartment is Mikhail. And he decided this: since his wife and children remain in the apartment, she must continue to repay the loan herself. He paid half, now let his wife pay. My wife didn’t work and didn’t invest a penny.

With such an offer, he remains the sole owner. And then, someday, he will re-register the apartment for the children.

His opinion: since his wife has not invested a penny yet, then the apartment is completely his.

Tatyana’s horror: I’m ready to repay the loan myself, but where is the guarantee that he won’t cheat in the future?

The most interesting thing: each of them does not know their rights.

Whose apartment, if only the husband had income? Were his personal funds invested?

What rights does the wife have to the apartment? After all, she had no income.

Is Mikhail right: since his wife didn’t work, then the apartment is all his?

What will happen if Tatyana pays off the loan herself?

The rights of spouses to an apartment in such a situation are equal.

My husband bought an apartment, but he was married. The salary of one spouse is the family income, not his personal funds. And it doesn’t matter who worked and who ran the house, looked after children, or didn’t work because they were disabled.

Division of property, if the wife did not work, according to the general rules - in half (Article 34 of the Family Code)

Mikhail is wrong: despite the fact that according to the documents he is the owner of the apartment, Tatyana has the right to ½ part of everything.

There are 3 important facts here:

— the apartment was purchased during marriage;

- not given as a gift, not received as an inheritance, i.e. acquired through a compensated transaction;

- personal funds of the spouse were not invested, for example, received as a gift from the mother, or by inheritance, or from the sale of personal real estate, a car.

The spouse's salary, pensions, benefits, and other income received during marriage are not personal funds.

It does not matter which spouse the apartment is registered to, unless, of course, there is a prenuptial agreement. Whatever the spouses write in the contract, so it will be. But in this situation there is no prenuptial agreement.

The court can deviate from equality of shares only if the spouse did not work, did not receive income for unjustified reasons (did not want to, was a drunkard, drug addict) or spent family money to the detriment of the family (gambling, for example) (Article 39 of the Family Code) .

After the termination of the marriage relationship, the one who paid the debt has the right to demand half compensation from the second ex-spouse.

For example, Tatyana will be able to demand reimbursement of half the amount of the loan she paid if she pays herself after the end of their life together.

If their life together continues and the spouses do not divorce, then neither the husband nor the wife will be able to receive reimbursement for expenses from the other spouse.

Can a non-working wife count on alimony after a divorce?

If a woman needs additional financial support after a divorce, then whether she worked during marriage or was completely financially dependent on her husband does not matter. According to family law, if there are grounds for this, the husband must pay alimony to his ex-wife.

Grounds for collecting alimony from an ex-husband for his wife:

• a woman is pregnant by her ex-husband;
• the wife is raising a child under three years of age;
• the wife is raising a disabled child and simply cannot work;
• the woman is disabled.

There are nuances here. According to the law, a woman will be able to count on alimony for disability only when she has been married to her ex-husband for more than five calendar years. The court has the right to refuse a woman’s claim for alimony if it is proven that her inability to work is the cause of her immoral acts (as a result of alcohol or drug abuse).

Payment of alimony for the maintenance of the ex-wife stops when the grounds for it disappear.

Section order

If the spouses, while married, actually ended their family relationship or lived in different cities, then the property purchased during this period can be divided by the court at its discretion. According to Article 39 of the Criminal Code, the court proceeds from the principle of equality of parties, therefore the property is divided in half.

The judicial authority may deviate from the rule and change the size of the share in the following situations:

• a common minor child remains to live with one of the spouses;
• one of the spouses has valid reasons: advanced age, incapacity, disability, etc.;
• the second spouse did not receive profit for unjustified reasons or squandered property to the detriment of his family;
• other circumstances.

Debt obligations are distributed between spouses in accordance with the shares awarded to them . It does not matter which spouse acquired the debt.

If an indivisible item, for example, a car, goes to one of the spouses, and the value of the share turns out to be higher than that of the other spouse, the court awards proportionate monetary compensation.

The court determines who will get a particular thing based on considerations of fairness and necessity. For example, a wife needs a dressing table, and a husband needs a set of construction tools.

Children's items are not included in this section. All things, including real estate and deposits, become the property of the child himself. The spouse with whom the minor remains to live is not obliged to reimburse the other parent for the costs of purchasing things for the child.

Find out the procedure for dissolving a marriage in court, as well as the package of documents required for this.

You can learn how to deprive a father of parental rights from this publication.

Tips: how to properly divide property

If the spouses decide to get a divorce, then it is necessary to take into account several rules that will help them get through the divorce process faster.

• To avoid unnecessary expenses, it is best to correctly draw up an agreement on the division of property and not go to the courts at all. This document should contain all necessary information. But notarization is sometimes quite an expensive process.
• If the case comes to court consideration, then do not forget to file a claim for the division of property and documents for the deduction of alimony (for the spouse with whom minor children remain living). The presence of minor children is also a basis for increasing the share of joint property.
• After the divorce process is completed, save all documents related to the marriage, as they may be needed in the future. (If the spouse finds out about the undivided property and wants to claim it).

Advantages of an out-of-court agreement

The main advantages of a peace agreement on the division of property are:

• saving time;
• rational saving of money;
• the risk of unequal division of property is significantly reduced.

A court case regarding the division of property lasts approximately 2 months, after which, within 1 month, a spouse dissatisfied with the decision can file an appeal. Thus, the trial lasts for three months and may not end there.

A voluntary agreement on the division of property is a popular practice throughout the civilized world, and demonstrates the wisdom and respect for each other of the former husband and wife.

Watch the video in which a specialist explains in detail the features of the division of property during a divorce without trial: