How is property acquired before marriage inherited?

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.

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.

Inheritance of property acquired before marriage

» Advice from a lawyer September 09, 2020

Admin on Mon May 30, 2011 11:24 am

QUESTION: I lived with my husband in a civil marriage for 16 years. Now the marriage has been registered, but the apartment in which we lived was privatized before the marriage to him. There is also a dacha that we bought together, but before the marriage was registered and in my husband’s name. The husband has adult children and grandchildren from his first marriage. The husband does not want to draw up a will or deed of gift. Will I still have a share in property purchased before marriage if he dies? (Nadezhda Petrovna)

ANSWER: You will, of course, have a share in the inherited property on an equal basis with other heirs. The fact of marriage registration guarantees this. However, it would be much more interesting for you to try to determine and recognize your share of ownership in property acquired before marriage, since this determines whether you will share with the heirs all the property or only the part belonging to the husband. In the absence of the husband's goodwill, this can only be done in court. The advantages of a marriage registered before the acquisition of property are that ½ share of this property already belongs to you under the right of common joint ownership before the opening of the inheritance. The other ½ share is divided equally between the heirs of the first stage, who are the spouse, children, parents - Article 1150 of the Civil Code of the Russian Federation (grandchildren are called upon to inherit only if their parents are no longer alive). It is these benefits that you will receive by recognizing what was purchased before marriage as joint property. If you cannot prove joint ownership (50/50 with your husband), the size of your share may be different depending on the funds invested. This can be done both during the husband’s lifetime and after the opening of the inheritance. However, this will require qualified legal assistance, since the ability to prove the investment of joint funds (the size of the investment) depends on the circumstances of the acquisition of property and that it is important to have a joint expression of will to acquire it. Only a lawyer will determine the judicial prospects of filing a claim to recognize your share in the specified property.

QUESTION: The apartment is privatized in my name. It contains a man with whom I have no family relationship. Do he and his relatives have the right of inheritance to the apartment? Can I write him out? (Smirnova L.V.) ANSWER: As stated above, the heirs of the first priority are the spouse, children, and parents of the testator. A person who is not related to you, and especially his relatives, are not your heirs. To answer the second question, you need to know on what basis and when the specified man was registered in your apartment. One thing is clear: to remove it from the registration register it is necessary to go to court.

QUESTION: What do my husband and I need to do so that the two-room apartment, privatized for the two of us, after our death would go only to our joint daughter. My husband in Ukraine has a daughter from his first marriage. (N.M.)

ANSWER: In order to eliminate all concerns, it would be better to dispose of the apartment in favor of the daughter during her lifetime (donation, purchase and sale).

If a will is drawn up, there is always a risk that the daughter from the first marriage may be among the heirs who have an obligatory share in the inheritance, regardless of the presence of a will. In accordance with Art. 1149 of the Civil Code of the Russian Federation, minor or disabled children of the testator have the right to an obligatory share in the inheritance. These persons inherit, regardless of the contents of the will, at least half of the share that would be due to each of them if inherited by law (mandatory share). Incapacity for work means, in particular, disability and (or) reaching retirement age. In addition, you should keep in mind that your husband may change his intentions regarding your daughter and change the will or revoke it altogether. Therefore, make your decision based on the circumstances in your particular case.

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Is property acquired before marriage considered joint property?

Hello! My father lived in a civil marriage with his stepmother for 15 years. I bought a car. 2 years after the purchase, dad registered an official marriage with his stepmother. They have no children together. Some time later, dad dies suddenly and his wife lays claim to the car. Dad has 3 children, all from the same mother, his first wife. When the inheritance case was opened, the notary did not even notice that the car was purchased before marriage (although by law she had to do this). The notary immediately recognized us (the children) as heirs of this property and his wife. At that time, the relationship with my stepmother was developing normally and I decided to give up my share in her favor. My brother was not declared as an heir at all, and the notary did not inform my sister that an inheritance case had been opened, because... as the notary explained, she did not know that there was another daughter. As a result, my stepmother received a certificate of inheritance and has already sold the car. However, from paragraph 44 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated May 29, 2012 No. 9, Moscow it is said that Refusal of inheritance in favor of other persons (directed refusal) can only be made in favor of persons from among the heirs under a will, and also heirs by law of any order who are called to inherit. Please tell me, could his wife (my stepmother) lay claim to my father’s property, which he acquired before marriage? Are the notary’s actions legal in this situation? And is it possible to somehow cancel my refusal of the inheritance due to the fact that I refused the property purchased before marriage by the deceased, whose heir cannot be the wife.

November 17, 2012, 12:22 Elnara, Orel

Lawyers' answers (1)

In accordance with Article 36, property that belonged to each of the spouses before marriage, as well as property received by one of the spouses during marriage as a gift, by inheritance or through other gratuitous transactions (the property of each spouse), is his property.

That is, if the car was purchased by your father before marriage, then it was his personal property.

By virtue of Art. 1142 of the Civil Code of the Russian Federation The heirs of the first priority according to the law are the children, spouse and parents of the testator.

That is, the father’s wife is also a first-degree heir and had the right to accept the inheritance together with you.

Therefore, the actions of the notary are absolutely legal. According to Article 1157 of the Civil Code of the Russian Federation, the heir has the right to refuse the inheritance in favor of other persons (Article 1158) or without specifying the persons in whose favor he refuses the inherited property. The renunciation of inheritance cannot be subsequently changed or taken back.

That is, if YOU renounced the inheritance in favor of your father’s spouse, then you do not have the right to return the inheritance back.

Sincerely, F. Tamara

17 November 2012, 13:09

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Inheritance of property before marriage

Will I still have a share in property purchased before marriage if he dies?

The fact of marriage registration guarantees this. However, it would be much more interesting for you to try to determine and recognize your share of property acquired before marriage, since this determines whether you will share with the heirs all the property or only the part belonging to the husband. In the absence of the husband's goodwill, this can only be done in court.

The advantages of a marriage registered before acquisition are that ½ share of this property already belongs to you under the right of common joint ownership before the opening of the inheritance.

If the apartment was purchased before marriage: divorce and division of property

Of course, if the wife does not work and only the husband provides for the family, it is clear that everything was purchased at the husband’s expense. But from a legal point of view, income is considered common, therefore, everything that was bought with this money is also common. And in the event of a divorce, it will be divided equally.

For example, a husband inherited an apartment from his deceased grandfather. The wife cannot claim it during a divorce. Or, for example, a wife received expensive jewelry as a gift from her mother.

Does a wife have the right to inheritance after her husband’s death if the apartment was purchased by her husband before marriage? wife is not registered

No one is registered in the apartment. — After the death of a husband, his wife is left with an apartment registered in her name. No one is registered in the apartment. Further

1 answer. Moscow Viewed 676 times. Asked 2012-10-23 13:39:27 +0400 in the subject Inheritance law The car was bought before marriage, sold after divorce, I pay alimony, does my ex-wife have the right to income from the sale, thank you - The car was bought before marriage, sold after divorce, I pay alimony, does she have the right to income from the sale ex-wife thank you.

How is inheritance received during marriage divided in case of divorce?

Please note that in the event of a significant improvement in the property of one of the spouses at the expense of the other spouse during the marriage, which ultimately increased significantly in price, the court may recognize this as the common property of the spouses (Article 37 of the RF IC).

Divorce proceedings and the subsequent division of property require the study of many legal norms, not to mention the art of applying them.

Inheritance of property before marriage

1. The testator has the right to cancel or change the will he has drawn up at any time after its execution, without indicating the reasons for its cancellation or change.

2. The testator has the right, through a new will, to cancel the previous will as a whole or to change it by canceling or changing individual testamentary dispositions contained in it.

A subsequent will, which does not contain direct instructions to cancel the previous will or individual testamentary dispositions contained therein, cancels this previous will in whole or in part in which it contradicts the subsequent will.

Inheritance of property by law and by will - Inheritance of property acquired during marriage.

Based on this, depending on the specified circumstances, the following options will be possible:

In accordance with Article 34 of the Family Code of the Russian Federation, property acquired by spouses during marriage is their common property. According to Article 36 of the Family Code of the Russian Federation, property received by one of the spouses as a gift, by inheritance or through other gratuitous transactions is not common property acquired during the marriage.

Inheritance of property acquired jointly during marriage

According to Art. 36 of the Family Code of the Russian Federation, property that belonged to each of them before marriage, and property received by one of the spouses during marriage as a gift, by inheritance, or through other gratuitous (unpaid) transactions will not be the joint property of spouses. Personal and individual items, except for jewelry and luxury items, are also the property of each spouse.

Inheritance. Is property acquired before marriage considered joint?

Unfortunately, you cannot cancel the refusal. I also consider the actions of the notary to be legal. It is possible here if YOUR brother or, better yet, your sister goes to court with a demand to restore the deadline for accepting the inheritance. But here we need evidence of valid reasons for missing the deadline. And you yourself took some thing in memory of your father or paid his bills, that is, you performed actions indicating the actual acceptance of the inheritance (took possession or management of the inherited property

took measures to preserve the inherited property, protect it from encroachments or claims of third parties, incurred expenses for the maintenance of the inherited property at their own expense, paid the debts of the testator at their own expense or received funds due to the testator from third parties).

Division of property after the death of a spouse

How is property divided after the death of a spouse and what property cannot be included in the inheritance mass:

How is property acquired before marriage inherited?

Inheritance issues quite often concern the division of the property of a deceased owner between relatives according to a will or law. Particular attention is paid to acquiring rights for spouses, since they are closest relatives. Most often, spouses inherit by law as first-rank applicants. But there are controversial situations even in the presence of a will. Knowing the basic provisions of spousal inheritance will help you avoid legal mistakes and comply with established legal regulations.

Inheritance of property acquired before marriage

In this situation, Article 36 of the Civil Code of the Russian Federation applies, which regulates the transfer of ownership of the personal property of one of the spouses. Property owned by a citizen before marriage, also donated and inherited by him during marriage, is not joint property of the spouses. According to Article 1142 of the Civil Code of the Russian Federation, the heirs of such property are members of the family of the deceased, namely children, spouse and parents.

This is a fundamental difference from joint ownership, when 50% is first allocated to the surviving spouse, the second half is divided within the family in equal proportions. When dividing the testator's personal property that is not related to the joint marital property, no division will be required, and the testator's rights must be confirmed by state certificates of ownership. For example, a citizen received real estate as a gift while he was married.

After his death, half is not allocated to the wife, and the entire property inherited by the relatives is divided between them in equal shares. At the same time, children from all marriages and unregistered relationships are called to inherit if there is evidence of kinship.

The owner of the property can leave a will and make a disposition at his own discretion. When writing a will, you will need to provide documents for personal ownership or joint ownership with the second spouse.

If property acquired during marriage is registered as joint property during the lifetime of the spouses, then the division will be made when opening an inheritance case. The spouse will automatically receive half, the second, belonging to the testator, will be divided among relatives. When making a will. you should remember about compulsory heirs. These are disabled, minor family members, as well as disabled dependents of the testator.

In this case, dependents may not be related, but live together for more than one year with the deceased and receive maintenance from him. If the dependent is a relative, the residence requirement is removed. Inheriting property before marriage can be extremely difficult if the property has been transformed, altered or expanded. For example, a man had a house before marriage, and after marriage he invested joint funds in improvements for many years.

According to the main provisions, the wife will inherit on equal terms with the other first-degree heirs if there is no will. The woman will have to prove that she has the right to half as joint ownership, since she invested significant funds in a house that does not legally belong to her. Such frequent conflicts are resolved in court, whose verdict on living in an indivisible premises or the share ratio in connection with the invested funds is the only basis for notarial approval of the right.

The division of indivisible property is based on the preemptive right of the citizen who lived with the deceased and ran a joint household. If there is an agreement between the interested parties, the heir who has received the right of residence pays monetary or property compensation to the remaining participants in the case.

Inheritance in a civil marriage

Civil cohabitation, not supported by an official certificate, does not provide grounds for claiming inheritance rights as a spouse. Inheritance of property acquired before a civil marriage can be carried out by will. If a person has the status of a disabled dependent who has lived for more than a year in an unregistered relationship with the testator, then this may serve as the basis for claiming the right.

For example, a common-law spouse is retired for any reason, lived together for more than a year and received care from a deceased person. This is the only legal basis on which a common-law spouse, as the legal heir of the last, eighth stage, can be called upon to receive an inheritance.

When registering rights, family members must pay a fee of 0.3% of the purchase price, other citizens pay 0.6% of the ownership price.

Thus, the common-law spouse, as one who does not have official confirmation of marriage, will have to pay 0.6% of the shared ownership assigned by the notary.

The author of the question is Anonymous

Inheritance. Is property acquired before marriage considered joint?

Hello! My father lived in a civil marriage with his stepmother for 15 years. I bought a car. 2 years after the purchase, dad registered an official marriage with his stepmother. They have no children together. Some time later, dad dies suddenly and his wife lays claim to the car. Dad has 3 children, all from the same mother, his first wife. When the inheritance case was opened, the notary did not even notice that the car was purchased before marriage (although by law she had to do this). The notary immediately recognized us (the children) as heirs of this property and his wife. At that time, the relationship with my stepmother was developing normally and I decided to give up my share in her favor. My brother was not declared as an heir at all, and the notary did not inform my sister that an inheritance case had been opened, because... as the notary explained, she did not know that there was another daughter. As a result, my stepmother received a certificate of inheritance and has already sold the car. However, from paragraph 44 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated May 29, 2012 No. 9, Moscow it is said that Refusal of inheritance in favor of other persons (directed refusal) can only be made in favor of persons from among the heirs under a will, and also heirs by law of any order who are called to inherit. Please tell me, could his wife (my stepmother) lay claim to my father’s property, which he acquired before marriage? Are the notary’s actions legal in this situation? And is it possible to somehow cancel my refusal of the inheritance in view of the fact that I refused the property purchased before marriage by the deceased, whose heir cannot be the wife.

Legal agency "Legal Perspective", LLC (11/14/2012 at 11:03:35)

The actions of the notary are lawful. The heirs of the first priority according to the law are children, parents, and spouses. If the marriage with the stepmother was not dissolved, she is an heir equally with you (the children). To enter into inheritance rights, you need to accept it by contacting a notary within 6 months. After 6 months, the notary issued a certificate to those who applied. Since you renounced the inheritance in favor of your stepmother, and your brothers and sisters did not claim this inheritance at all, the certificate was issued to the stepmother. In this case, to determine the inheritance, it does not matter when the property was acquired (if the car was acquired during marriage, 1/2 of the share would be due to the stepmother, like the marital share, and the other half would be divided among the heirs). The refusal cannot be annulled, but the transaction can be challenged (certificate of right to inheritance). But keep in mind that this requires compelling reasons and, at a minimum, it must be committed within the statute of limitations (less than a year). As I understand it, you have no such grounds.

Anonymous (11/14/2012 at 11:18:04)

What legal provision are you referring to?

Boriskina Natalya Igorevna (11/14/2012 at 11:12:57)

Good afternoon. Your stepmother is the heir in the first place (she was officially married to your father). The date of purchase of the car is important in determining the share of the estate. For example, if a car was purchased during marriage, then only 1/2 of this car would be included in the inheritance estate (shared property of the spouses). The actions of the notary are lawful. I'm afraid it won't be possible to cancel the refusal. The notary cannot know how many heirs the testator has. If your sister did not know about her father’s death (and can prove it), then she has the right to go to court to restore the deadline for filing an application for inheritance. If the court restores the deadline, she can contact the notary who handled the inheritance case. and claim your rights. She will be allocated a part of the share in the inherited property. If the car is sold, she can contact her stepmother and demand monetary compensation.

Nailya Nurgalievna (11/14/2012 at 11:41:38)

Hello! Your stepmother can claim property acquired before marriage, because she is an heiress (Articles 1110, 1112, 1142 of the Civil Code of the Russian Federation. You are probably confusing the order of inheritance with the order of division of property. If property was divided after a divorce, then it would matter when it was acquired. Also, this circumstance would matter, including case if, in addition to your stepmother, other heirs were called in. Unfortunately, you cannot cancel the refusal. I also believe the actions of the notary are legal. Here it is possible if YOUR brother or, even better, your sister, goes to court with a demand to restore the deadline for accepting the inheritance. But here we need evidence of valid reasons for missing the deadline. And you yourself took some thing in memory of your father or paid his bills, that is, you performed actions indicating the actual acceptance of the inheritance (took possession or management of the inherited property, took measures to preserve the inherited property, to protect him from attacks or claims of third parties, incurred at his own expense expenses for the maintenance of the inherited property, paid at his own expense the debts of the testator or received funds due to the testator from third parties). If such a fact took place, you can try to recognize you as having accepted the inheritance.

If you have any questions or need to draw up a document, please contact us individually, I will help!

I would be grateful if you leave your review on your personal page. Thank you!

Sources: slepnevaov.forum2x2.ru, m.pravoved.ru, likvidaciya-ooo-balashiha.ru, alljus.ru, m.yurist-online.net

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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.

An apartment with a mortgage before marriage: how to divide during a divorce

• The first is to pay off your mortgage before getting married. It is clear that most often this option is not feasible, but if you have extra funds, it is better to repay the debt to the creditor in full.

• The second option is a prenuptial agreement. A prenuptial agreement is an agreement between people who are getting married. With its help, the property rights and obligations of spouses during marriage and (or) in the event of its dissolution are determined. This option is the most optimal, since it presupposes a mechanism for dividing property between spouses in the event of divorce. In our country, marriage contracts are rarely practiced, but in some countries they are used in almost every second marriage.

We recommend reading: Caring for a Disabled Person of Group 1 Included in Experience in Belarus

Of course, it is better to come to a mutual agreement. For example, a spouse can allocate a certain amount to his wife and she will agree to a divorce without any claims. The only problem is that not all divorces can be resolved, roughly speaking, amicably. Often spouses feel anger towards each other, so divorce and division of property are possible only through the court.

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.

Be sure to read it! Is it possible to rewrite or cancel a will in 2020?

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 a mortgaged apartment during a divorce

When spouses with children divorce, the mortgage or the real estate itself must be divided in such a way that the property interests of minors are respected.

1. Securing the obligations of both spouses in the event of a divorce, according to which if one of them stops paying his part of the debt or is unable for some reason, then these obligations will be assigned to the other spouse. Thus, the bank provides itself with a guarantee of loan repayment.
2. Opportunities for one of the spouses to become co-borrowers (buying out a share, etc.).

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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.

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.

Grounds for acquiring an inheritance

One of the spouses who survives the other may become the successor of the testator by law or by will.

Inheritance by law

The Civil Code (Articles 1142-1148 of the Civil Code of the Russian Federation) establishes 8 lines of inheritance. The husband or wife, children, parents and grandchildren, by right of representation, are members of the first priority, that is, they have a priority right over other relatives.

According to the law, the inheritance mass is divided between applicants of the same line in equal shares. Successors of other orders can claim the inheritance only in the absence of representatives of the previous order.

Spouses can inherit property in order of priority only if they have a marriage certificate registered in the registry office. In the event of a divorce, the former spouse is deprived of the right to acquire inheritance by law.

Inheritance by will

During his lifetime, the testator has the right to draw up a will, according to which all property acquired will be transferred to the persons indicated in it.

If the property was acquired after marriage, then the testator has the right to bequeath only half, that is, the part that belongs exclusively to him, and if everything was acquired before marriage, then all the valuables can be disposed of in their entirety.

Example. As a result of the divorce, the spouses divided their jointly acquired property, and each became the owner of ½ half of the house. After the death of the testator, the second wife became his direct heir, receiving only part of the real estate belonging to her husband.

When drawing up a document, it is important to take into account that a certain group of persons has the right to an obligatory share in the inheritance (Article 1149 of the Civil Code of the Russian Federation):

• minors, disabled heirs by law;
• disabled parents and spouses, dependents.

They are entitled to at least ½ of the share due by law in the absence of a will. Inheritance of goods under a will, if they were acquired before marriage, does not raise doubts regarding the shares of the heirs, since the document clearly defines the rights and obligations of the applicants.

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! How to evict tenants from a communal apartment in 2020

How is an apartment purchased with a mortgage before marriage divided during a divorce?

So, the problem that accompanies the division of an apartment is the mortgage. Judicial practice today has not developed a unified approach to making decisions. Therefore, different authorities often adopt opposing decisions. The situation is complicated by the fact that the disputes affect the interests of three parties - the husband, wife and credit institution. In many cases, when distributing responsibilities, the rights of any participant are significantly impaired. For example, in practice there are many cases where a former spouse, deprived of an apartment (or part of it) during division, is forced to repay the loan for quite a long time. Banks also often have problems. For example, credit institutions wishing to sell real estate that is in arrears are faced with the fact that, according to a court decision, it is no longer the sole property of the debtor.

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Accordingly, in the first case, you can draw up an agreement with a notary establishing shares in the common property (apartment); in the second, you can determine the shares through the court, in the manner of litigation. At the same time, children do not participate in the division, since they do not have rights to the jointly acquired property of the spouses.

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.

An apartment with a mortgage and how it is divided during a divorce

Here the real estate will be classified as jointly acquired property. Even if the spouse took care of the house and raised children, and the mortgage was repaid from the spouse’s earnings, then such property still belongs to jointly acquired property. When dividing in court, you must prove this fact: with testimony, support the case with checks, receipts, extracts. Less rarely, but sometimes it is possible to prove full property ownership of a mortgaged home purchased before marriage and paid during marriage by presenting significant facts that the second spouse did not work without good reason and was completely supported by the husband or wife.

The presence of joint minor children when dividing an apartment with a mortgage during a divorce obliges to protect the property interests of the children. The law provides that in this case, equal shares are allocated not only to the spouses, but also a share for each minor child, which further complicates the process of dividing property, since in kind it is simply not possible to divide a one-room or even a two-room apartment into shares.

07 Jun 2020 etolaw 287

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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).