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

Joint property during divorce

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

In this case, it does not matter which spouse is the owner of this or that property, if the property was acquired (significantly improved) during marriage, it is considered joint.

What is considered common property

Joint ownership includes:

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

What property is considered personal?

The personal property of each spouse is:

• property acquired before marriage;
• property received by inheritance;
• present;
• things intended for individual use;
• 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 simple jewelry purchased with joint money will be recognized as personal.

Common property rights

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

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 property acquired during marriage is divided during a divorce

There are three options for dividing joint property:

1. According to the marriage contract.
2. In accordance with the voluntary agreement.
3. According to the court.

Marriage contract

In the Russian Federation there is currently a conclusion marriage contract- a rare event. 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 period marital relations, 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.

Agreement

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

1. Preparation of the project and agreement on the division procedure.
2. A visit to a notary who checks the document for compliance with Russian legislation and certifies it if it is legitimate.
3. Signing of the agreement by the parties.

Options for the section are specified by the signatories, it could be:

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

By court

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

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

Features of the division of different types of joint property

Different 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.

Apartment

Any division is affected by its legal status. Housing can be:

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

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

If the apartment is located in joint ownership, then the shares of its owners are not determined; during division, it is first necessary to establish the shares of the husband and wife and only then proceed with the division.

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

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

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

If there are children

Children cannot claim the property of their parents if they are not co-owners. In cases where a child has a share in a living space, during a divorce it goes to the parent with whom the minor remains.

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

If the apartment is one-room

In fact, it is impossible for two people to live together after a divorce is also unlikely, leaving several options for division:

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 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, it is issued to one of the spouses (to 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.

More often ex-spouses they are trying to re-issue a loan for both, 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)

It 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 receives in return 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.

Shares, other securities, joint business

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

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

As a rule, during a divorce, rarely does either of the former spouses maintain a trusting and benevolent relationship, so it is usually practiced to buy shares from one of the spouses from the other. Of course, this option is not good for the company.

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

Earth

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

Which plots of land can be divided and which are indivisible?

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

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

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

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

1. The plot remains the property of one spouse, the second receives monetary compensation in the amount of half the value of the land or other property of equal value.
2. The spouses sell the property and divide the proceeds in half or in unequal shares (by agreement).
3. The land is not divided at all; the former husband and wife agree on the use of the plot, determining which of them will occupy what part of the land for use.

Loans

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

Banks are reluctant to undertake such debt restructuring.

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

Personal property

According to the law, personal property is not subject to division. But there are cases when spouses include very expensive and valuable things as their personal property, for example, antiques or ancient jewelry with precious stones, the cost of which is often determined at several hundred thousand or millions.

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

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

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

1. The property was gifted to his wife. The husband believes that the gift was for the family, and not separately for the wife. In this case, if he proves that the property was donated not to the wife personally, but to the two of them, then it is divided equally. Evidence of one or another type of donation can be testimony or a deed of gift.
2. The wife inherited some property. She is the rightful owner and should not share it with anyone.
3. The property was purchased during the marital relationship, but with the wife’s personal funds. Such property is not divided, but she must prove that her money was used for the purchase; statements from bank accounts opened before marriage, and a purchase and sale agreement for her personal property can help with this.

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

The same rule applies as with the owner-wife.

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

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

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So that the section is not a section

I am a lawyer, and like any lawyer, I constantly advise people I know. One of the most painful topics is the division of property during divorce. If a person is just about to get married, he wonders what will happen to his apartment in Bibirevo. When a person is already on the verge of divorce, he is worried about how to divide a jointly owned house in the Moscow region. And everyone is worried about the diamonds they inherited from their grandmother: will they have to be sold during the divorce?

Daria Kulinich

In this article I will tell you how everything is.

General rule:

Doesn't share

property inherited by one of the spouses;

property acquired during marriage.

Doesn't share

property received through gratuitous transactions by one of the spouses (donation, privatization);

Doesn't share

premarital property of husband and wife.

But it's not that simple.

Apartment purchased with premarital funds

Roman moved from Voronezh to Moscow, where he met Dasha. After the wedding, the question of real estate arose, so Roma sold his pre-marital Voronezh two-room apartment and bought a one-room apartment in Zvenigorod, near Moscow. Formally, the apartment was purchased during marriage, although it was purchased with money from the sale of the husband’s property. Therefore, the apartment became common property. Dasha announced this during the divorce, claiming half of the one-room apartment.

What to do? Keep evidence that you bought the apartment with money from the sale of premarital property. Bank account statements are suitable.

The court divides only the property that you acquired into your total income. If you can prove that you acquired the property yourself without the help of your spouse, then the court may recognize this property only as yours and refuse division.

Unequal investments

Alla and Maxim decided to buy a common house 40 km from Mkada for 15 million. Alla invested 10 million in the house, Maxim added 5 million. In case of divorce, the court will by default divide the house in half and this bastard will receive an additional two and a half million from the marriage.

What to do? As in the previous case: keep evidence of who invested how much.

If you can prove that you have invested more than the second spouse in the property, the court will divide the property not in half, but in proportion to the investment.

My wife hasn't worked a day

Evgeniy worked as a top manager at Euroset and earned good money. Antonina raised their children. The family did not need anything: in 15 years of marriage, Tonya did not work a single day. It was this argument that Evgeniy used during the divorce in court, not wanting to divide the property in half. To his surprise, the court did not accept the argument and divided the property in equal shares. Because caring for children and home is also work that contributes to family well-being.

What to do? Conclude marriage contract, which outlines the contribution of each spouse to the well-being of the family, no matter how unpleasant it may be to do “on the shore.”

If one of the spouses plans to work, and the other plans to look after the children, you need to divide the property “on paper” even before it appears. At the same time, you will learn about the appetites of the other half: what if a person wants ⅔ of the property in exchange for babysitting?

Registered property in the name of a relative

Alexander sensed something was wrong immediately after his wedding with Lola and decided to play it safe. Alexander registered the apartment in Altufyevo and two cars, purchased with personal funds, in his brother’s name. Now, during a divorce, he did not risk anything: after all, formally the property does not belong to him.

But his brother ran a risky business and owed a lot. As a result, Alexander’s property, the formal owner of which was his brother, was sold under the hammer in favor of his brother’s creditors. Alexander and Lola were left without an apartment and cars.

What to do? Avoid fake owners. Maintain evidence that the property was purchased with your own funds.

If you confirm that the property was acquired with personal income, the court will recognize it as your property and will not divide it. The former spouse will not be able to claim this property.

Significant improvements

Marina inherited from her grandmother a large, but destroyed three-ruble note in Strogino. Her husband Nikita withdrew all the money from his account that he had saved for his own real estate since his youth, and invested it in a major renovation of the apartment. During the divorce, the court found that thanks to the renovation, the market value of the apartment increased significantly, and allocated Nikita a share in the property.

What to do? As a general rule, the inheritance becomes the personal property of the spouse. Personal property cannot be divided. But if the second spouse has made “substantial improvements” to the property, thereby increasing its value, he can claim a share in this property. It is necessary to retain evidence - for example, receipts for construction materials.

Selling a share

Anzhelika and Leonid are the owners of a one-room apartment in Tver. During the divorce, the court divided it equally between them. However, they still live together because they cannot agree on how to divide everything fairly and go their separate ways. Leonid does not sell his share to Angelica because the proceeds are not enough for another home. And he doesn’t buy Angelica’s share because there is no money.

What to do? Negotiate possible exchange options when you are in good relations. Conclude a marriage contract under which the apartment is completely assigned to one of the spouses, and the second receives compensation for his share. Take out a loan if there is no money for compensation.

Sale of common property without the consent of the wife

Before the divorce, Vladimir secretly sold the family Toyota so as not to divide it. Alina challenged this deal in court because she did not give consent to it. Now Vladimir must pay Alina half of the cost of the car.

What to do? When selling common property, obtain the written consent of the spouse. If your spouse sold property without your consent, protest the transaction through the court.

For the sale of real estate, the law requires the notarized consent of the second spouse. With a car everything is more complicated. The traffic police do not check whether the second spouse agrees to the deal, and without any problems register the car to the new owner.

If the transaction has not yet taken place, you need to warn the buyer in writing that you do not consent to the transaction, and the court may declare the transaction invalid. The buyer will return the car to the spouse, and the spouse will return the money to the buyer.

If you find out about the sale of the car after the transaction is concluded, file a claim in court for division of property. The property must include a car. During the proceedings, the court will determine that the second spouse sold the car without the right to do so and will oblige the spouse to pay half the cost or compensate with other property.

General loans

Igor and Natasha decided to revive their marriage and went on vacation to Cyprus. This did not help the relationship, the couple divorced. They did not have jointly acquired property, but they discovered a jointly acquired debt - a cash loan for a trip to the sea, which Natasha took out for herself.

The common obligations of the spouses are also divided upon divorce. But in court it is necessary to prove that the money was spent on the general needs of the family and the second spouse knew about the loan. But even if there is a court decision, the bank may not recognize the second spouse as a debtor.

What to do? It is worth discussing with the bank the issue of recognizing your ex-spouse as a co-borrower. Involve the bank to participate in the court hearing as a third party.

Mortgage section

Every time Irina thinks about divorcing Sergei, she remembers that they still have 12 years to pay off their mortgage. Maybe in 12 years he will improve? Instead, Irina should figure out how their mortgage is structured and what the divorce threatens her with.

A joint mortgage is taken out according to one of two schemes: either spouses are co-borrowers, or one is a borrower and the other is a guarantor.

If spouses are co-borrowers, then when dividing property they will in any case continue to pay the debt. You can easily get a divorce.

If one of the spouses is a guarantor, then formally the entire debt passes to the second spouse - the borrower. During a divorce, it makes sense to challenge the guarantee and make the second spouse a co-borrower.

What to do? Agree with your ex-spouse to jointly repay the debt, provide the bank with information about the solvency of the co-borrower, and agree to reissue the loan agreement.

If your spouse does not agree to the division of obligations, you can force it in judicial procedure, in the same way as property was divided. With the court's decision, you need to contact the bank and discuss with it the possibility of recognizing your ex-spouse as a co-borrower.

With the consent of the bank, you can sell the mortgaged property and repay the loan early. Discuss this issue with your spouse and the bank representative.

Marriage contract

Divorce is unpleasant, but not necessarily painful. Most property problems in a divorce can be avoided by entering into a prenuptial agreement in advance. This document removes from the court all questions about the division of property. Next time we’ll talk about what kind of agreement this is and how to conclude it so that it doesn’t hurt excruciatingly over the years we lived together.

conclusions

1. Agree on the division of property before the trial. There is a prenuptial agreement for this.
2. Keep evidence that the property was purchased with your personal funds or that you have significantly improved it.
3. Obtain your spouse's written consent to sell common property.
4. If your spouse sold common property without your consent, challenge the deal in court.
5. Share common loans voluntarily or through the court. Get the bank's support.

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

This is for me, this is for you

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

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

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

• received under a gift agreement,
• left as an inheritance (read more about how Is the inheritance divided in case of divorce? read),
• personal items (clothing, shoes, hygiene products..), excluding jewelry and luxury items,
• the result of individual intellectual work.

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

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

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

When dividing jointly acquired property after a divorce, spouses often resort to two tricks:

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

Property division agreement

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

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

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

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

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

When drawing up this document, it is advisable to use the services of competent lawyers; after all, the issue of division of property during a divorce is very complex and controversial.

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

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

How property is divided during a divorce in court

Division of property through the court can be done after filing the appropriate statement of claim. You can submit it:

• along with the application for divorce,
• in the process of considering a divorce case,
• after divorce.

When filing a claim for division of property after a divorce, you must take into account the statute of limitations. After registering a divorce, spouses have only three years within which they have the opportunity to file a claim for division of common property. Then the statute of limitations expires, and the court simply will not accept such a statement from them.

Disputes about the division of property are resolved by a magistrate if the value of the claim is no more than 50,000 rubles. In other cases, it will be considered by a court of general jurisdiction (city or district) at the place of residence of the defendant or location of the disputed property.

According to the judicial practice that has developed over the years, the division of property during a divorce occurs in equal shares between the spouses. Rarely will a judge go into detail about the spouses' financial difficulties or needs; in most cases, according to the law, he will divide the jointly acquired property in half. If this is not possible, then the spouse who received the larger share will have to pay compensation to the second.

Do you know that

The right to joint property is not determined by the person in whose name the property is registered and acquired. If the spouse, for good reasons (housekeeping, child care, etc.), did not have income, then he can also claim joint property.

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

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

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

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

That is why it is advisable to hurry up with the division of jointly acquired property after a divorce or resolve in court the issue of seizing it, so that an unscrupulous spouse will not be able to turn it to his advantage before a court ruling.

Documents for the division of property after divorce

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

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

How property is divided during a divorce after a court decision

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

Some facts

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

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

Let it be as it is

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

Therefore, it is necessary to resolve the issue of division of property in a timely manner and dot all the i’s in order to avoid problems in the future.

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

How to divide property between spouses, spending the least amount of money and nerves - this is what our article is about.

I tried to answer all the basic questions as fully as possible and correctly structure the material for ease of navigation, so I consider this article the most convenient. Yes, it turned out to be probably the most voluminous, but you no longer have to collect information from several sources on the Internet.

As always, you can ask for all the nuances in the comments - we will answer as quickly as possible.

Specialist of the portal TopYurist.ru: Vadim Kalyuzhny.

When entering into a marriage, neither spouse usually thinks about a future divorce. However, unfortunately, many marriages break up, and before ex-husbands and the wife is faced with the question of how to divide what has been acquired over time married life. Let's see what the law says about the division of family property after a divorce.

○ What types of property are there?

The Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation) provides that property can be located either in citizen's personal property(or a legal entity, but we will not talk about them now), and in common property two or more persons.

By default, common property is considered shared when it is known in advance which of the owners owns what part of the value of the thing. However, the law makes an exception for the property of spouses: according to Art. 256 of the Civil Code of the Russian Federation, the property of spouses is joint property. The difference here is that the shares here are not predetermined or allocated. Spouses jointly own and use all things belonging to them.

However, the law provides for a number of cases when the property of spouses has a different legal regime:

1) That which belonged to a husband or wife before marriage, or was given or inherited during marriage, is personal property to which the other spouse has no connection.

2) Things that only one of the spouses uses (clothes, shoes, hygiene items, etc.) are the personal property of the person who uses them, even if they were purchased with common money. The only exception here is luxury items: even if only the wife wears gold jewelry, it is their joint property with her husband.

3) Copyrights for books, inventions, soundtracks of music or songs belong to the person who authored them. However, all income received from the use of these copyrights (publishing, film adaptation, etc.) will already be joint property.

4) Target payments received by either spouse are also not included in the community property. For example, if a wife was injured as a result of an accident, and she received monetary compensation from the person responsible for the accident, the husband will have nothing to do with this money.

However, with personal property things are not so simple. Art. 37 of the Family Code of the Russian Federation (hereinafter referred to as the Family Code of the Russian Federation) states that if property, even if it is personal, has been significantly improved at the expense of the funds or labor of the other spouse, then it can be recognized as already in joint ownership.

Finally, to complete the topic of personal and common property of the spouses, it should be said that all of the above applied to cases where the husband and wife relied solely on the law. If, before or during marriage, they entered into an agreement between themselves on the division of property (I have already published, which can be downloaded) or signed a marriage contract, in which you can indicate in advance the ownership of the property and about which I am talking - here the status of the property can be any, provided for by these documents.

○ General procedure for dividing property during a divorce.

Before talking about the division of property, it should be said that the division of property is a concept whose relationship is not absolute. The fact is that spouses can divide property during marriage (voluntarily or at the request of a creditor against one of them).

In addition, the divorce itself, even if it occurs in court (such a procedure exists if children were born in the marriage), does not provide for the automatic division of property: the former spouses need to deal with this separately, including such a requirement in or making the division themselves.

✔ How is common property divided?

By law, shares in property that were joint during the marriage are considered equal. The income level of each spouse does not matter. However, in a number of cases deviation from this principle is allowed:

• If the spouses entered into a marriage contract or some other agreement that part of the property is transferred to the personal property of one of the spouses.
• Items purchased exclusively for minor children (clothing, books and textbooks, children's furniture, etc.) are not subject to division. These items are received by the spouse with whom the children remain.
• If the division occurs in court, the court has the right to increase or decrease the share of one of the spouses. This is possible both in the interests of the spouse with whom the minor children remain, and in some other cases.
  For example, if one of the spouses spent money to the detriment of the interests of the family and had no income without good reason, his share will be reduced; if the spouse could not earn money due to illness or other emergency circumstances, the court may increase his share.
• If some property was acquired, even during marriage, but with funds received by one of the spouses before marriage, the court may recognize this property as personal property that is not subject to division.

✔ Procedure and procedure for dividing common property.

It is assumed that property issues, like other family problems, are decided within the family by spouses by mutual consent. This fully applies to the division of property. Both during a divorce and before it, a husband and wife have the right to determine for themselves what specific things belong to which of them, by concluding an agreement on the division of property and having it certified by a notary in order to avoid disputes in the future.

However, unfortunately, peaceful division does not always occur. And if there is a dispute about property between spouses, they can go to court with a corresponding claim.

It must be taken into account that if the division affects the interests of third parties, the court may separate the dispute over such property into separate proceedings. Then this case will be considered separately, without connection with the divorce and division of the remaining property.

Based on the results of the meeting, the judge makes a decision in which he determines which of the disputed items belongs to which of the spouses. In the same case, if the thing cannot be divided, and its value clearly exceeds the share of the spouse, the court has the right to give it to someone alone, but with payment to the other spouse of the difference in value between the value of the thing and the value of the share.

✔ Division of personal property.

As I already said, in addition to joint property, spouses can also have personal property. This property, in general cases, is not subject to division and remains the property of the spouse to whom it previously belonged.

In order not to repeat ourselves, we can only add that, in addition to gifts, personal property includes everything received through gratuitous transactions (for example, etc.). In addition, the court may classify as personal property items acquired by one of the spouses after their cohabitation has ceased. However, in this case, the court will already need evidence that, for example, a specific washing machine purchased by the wife, although before the divorce, but after the husband left the family and only at her own expense. How exactly such questions are proven will be discussed below.

✔ Required documents.

If the divorce case comes to judicial section property, then for the court proof will be required. However, since the spouses can own virtually anything, it is difficult to determine in advance the list necessary documents which will have to be presented in court. However, there are some that will be required anyway:

• A certificate of marriage and, if the division occurs after a divorce, of its dissolution.
• If children were born in the marriage - birth certificates.
• List of property subject to division. It must be remembered that the court will only make a decision regarding what is included in this list. If the plaintiff loses sight of something, he will have to divide this thing separately - by agreement or in separate legal proceedings. It is highly advisable to indicate (even approximately) the value of the property in the list.
• Copies of documents for certain expensive items. There can be anything here: certificates of ownership or extracts from the Unified State Register of Real Estate for real estate, registration certificates for cars, checks and receipts for the purchase of expensive household appliances or furniture, bank account statements, etc.
• If during the process it is intended to increase the plaintiff’s share, then documents proving the need for such an increase (in case of illness - copies of medical documentation, etc.).

More details on how exactly the division of specific types of property occurs will be discussed below. It should also be remembered that not only documents can be used as evidence. For example, if we are talking about the actual termination of family relations before marriage, witnesses may be called to court, and the court is obliged to take their testimony into account.

○ Division of real estate during a divorce: apartment, house, land.

The biggest problems in a divorce usually arise with real estate. Usually they are the most expensive of the family property, and the main disputes arise around them. In addition, according to the law, all real estate transactions and any change in ownership are subject to state registration and data entry into the Unified Register (USRPN).

Let's try to take a closer look at how exactly the partition occurs different types real estate.

✔ Division of an apartment during a divorce.

The most common type of real estate that is divided during a divorce is an apartment. And here the main difficulties are related to the fact that, on the one hand, Art. 40 of the Constitution of the Russian Federation directly establishes the right of everyone to housing, on the other hand, an apartment is the same type of property as everything else, and Art. 35 of the same Constitution protects the right private property. And the main task here is to find the right balance between these two norms.

Below we will describe exactly how the division of an apartment occurs, depending on the basis on which the spouses previously used it.

✔ How to divide a municipal apartment?

Despite privatization that has been going on for many years, many families still live in apartments owned by municipal authorities.

It is necessary to remember here that since such an apartment is not the property of the spouses, it is not subject to division. In this case, we can only talk about determining the procedure for using this apartment.

In particular, according to Art. 69 of the Housing Code of the Russian Federation, divorce is not a reason for any of the former spouses: if a person is still registered in this apartment and continues to use it, he has the right to live in it after the divorce, but is obliged to participate in paying for utilities and other payments related to the use of the apartment. At the same time, the former spouses, if they continue to use the apartment together, must take care of renewing the social tenancy agreement.

In addition, divorce is not an obstacle. A citizen using an apartment on the basis of a social tenancy agreement has the right, in accordance with the law of the Russian Federation “On the privatization of housing stock in Russian Federation", acquire ownership of a share in this apartment. However, we must remember that privatization is possible only until March 1, 2016.

Alternatively, in the event of a divorce, it is necessary to take care of the privatization of the apartment in advance, and then, using the rights of common ownership, divide it.

✔ We are dividing a non-privatized apartment after a divorce.

In addition to municipal housing, other types of housing, in particular office housing, may also be non-privatized. The same rules apply here as for municipal apartments - that is division of such housing is also impossible, however, it is permissible for one of the spouses to retain the right of residence.

The only feature that you need to pay attention to is that service apartments, unlike state and municipal ones, cannot be privatized, but can be purchased with the consent of the owner organization.

✔ How is an apartment divided in a mortgage?

An apartment purchased with a mortgage can be divided, since it is jointly owned by the spouses. In this case, it does not matter at all which spouse entered into an agreement with the bank - both will have the right of ownership.

However, it should be remembered that the division of an apartment taken on a mortgage is possible only with the indispensable participation of the bank that issued the loan. The fact is that during a divorce and division of such an apartment, the parties to the collateral agreement change, so any actions with the apartment will require the consent of the bank.

There are several possible options here:

• The bank reissues the mortgage agreement, and both spouses continue to pay the loan separately.
• With the consent of the bank, the apartment is sold, the debt to the bank is paid off from the proceeds, and the remaining amount (if any) is divided between the spouses.
• One of the spouses renounces his share in the mortgaged apartment, and the spouse who received it continues to pay the mortgage.

This list is far from complete. There is no single solution, since a possible dispute over an apartment is tripartite (for two spouses and the bank). Possible solutions there are many, and it is impossible to recommend any one of them without knowing all the terms of the mortgage agreement. Even arbitrage practice The division of such apartments is extremely diverse. In this matter it is better on housing issues.

✔ Division of a privatized apartment during a divorce.

Since privatization is a free transaction: citizens do not buy housing, but receive it for free, paying only fees for paperwork. That is why privatization is equivalent to donation, and the privatized apartment becomes the personal property of the privatization participants.

In practice this means the following:

1. If the apartment was initially privatized for all family members, then no difficulties arise. After a divorce, both husband and wife simply receive the shares that were recorded on them during privatization.

2. If other family members living in the apartment participated in the privatization, then their shares remain their property and are not divided between spouses. This should be remembered, since in other cases the same children do not have rights to their parents’ property during their lifetime, and if the apartment were purchased, they would not receive their share.

3. If one of the spouses at one time refused to privatize a share in the apartment, one can only sympathize with him. He no longer has any property rights to this property. The maximum he can count on is to obtain through the court the right to live in an apartment, but even then only for a certain period, and not forever.

4. If the apartment was privatized before marriage, then it is also not divided - it is entirely the property of the spouse who participated in the privatization. The second one gets nothing here either.

Thus, in order not to lose housing during a divorce, it is necessary either for both spouses, or during the marriage, to enter into a contract, including apartments.

✔ Is it possible to divide the donated apartment?

In short, no. I’ll explain why: if the apartment was received by one of the spouses as a result of a gift, it is also not subject to division, because it is already the personal property of the person who received such a gift.

✔ How is the house divided?

If, during a divorce, it is not housing in an apartment building that is divided, but a separate residential building (cottage, etc.), all the same rules apply to it as for an apartment. Namely: if it is jointly owned, then upon division, each spouse is allocated a share in the property right - usually equal. One of the spouses also has the right to refuse the share, demanding in return monetary compensation in the amount of its value. If the house is the personal property of one of the spouses, then it is not subject to division.

However, in relation to the house, unlike most apartments, the following option is possible: physical partition. In this case, through redevelopment, the house is divided into two isolated living spaces (with separate exits, separate power supply, water supply, etc.), each of which goes to one of the divorcing spouses - with the possible payment of compensation if the area differs greatly.

In addition, if at the time of the divorce the house was not completed, then such cases are considered separately. Nowadays, judicial practice, summarized by the Supreme Court of the Russian Federation, is developing in such a way that the court usually takes into account which of the former spouses has the opportunity to complete construction. As a rule, the house in kind goes to this spouse, and the second receives monetary compensation.

✔ Who will get the dacha after divorce?

There is a separate question about the division in the event of a divorce of this type of real estate such as a dacha. The fact is that this concept often means completely different structures - from a primitive shed to a full-fledged residential building in which you can live all year round.

If the dacha has been recognized as a residential premises (and this is a separate and rather complex issue), then the same rules apply to it as to the house - with the only difference that the dacha, as a rule, is not the only residence for family. In this case, a situation is possible when one of the spouses receives ownership of a city apartment, and the other - a dacha, while someone will have to pay the difference in value between the share in the cost of the apartment and the dacha. It is also possible to divide the dacha in kind - just like at home.

If the dacha is not residential, then, as a rule, it is not divided in kind, and the court only establishes the share in the ownership of each spouse, and, at the request of the plaintiff, also the procedure for use.

✔ Division of land during divorce.

Separate rules also apply when dividing land plots. The fact is that here, in addition to the norms of the Civil Code of the Russian Federation and the Investigative Committee of the Russian Federation regulating the legal regime of personal and joint property, it is also necessary to take into account the rules of the Land Code of the Russian Federation and other norms regulating the circulation of land.

The fact is that for each category of land that has a different purpose, the law establishes a minimum area at which the allocation of a plot in kind is allowed. It would seem that a plot of land, unlike a house, apartment or cottage, can be divided in any way - you just need to draw a boundary. In fact, if the area of ​​the allocated plots turns out to be less than the minimum established ones, it is not the plot that is divided, but only ownership of it.

The specific dimensions of the minimum areas are established differently in different regions of Russia, therefore, when dividing a plot, it is necessary to take into account not only federal, but also local legislation.

○ Division of movable property during divorce.

Unlike real estate, movable property is divided between spouses much more easily, however, there are a number of nuances here too. Let's look at them.

✔ Who will get the car?

A car, being a complex technical device, under no circumstances can be divided in kind. Consequently, no matter how the division of property develops, the car always goes to one of the spouses. The only thing that can be done if in the end the spouses do not come to an agreement on dividing the car is to sell it and divide the money already received.

If the car is part of the property that is divided in court, then the court will most likely, among other issues, take into account which spouse has a driver's license, who used the car more often, as well as other circumstances. For example, if, as a result of the divorce, the children remained with the mother, she has a driver’s license, and it was usually she who drove the children to school, then there is a high probability that she will get the car in kind.

Division of property through the court occurs in all cases when the spouses could not reach a compromise and do not know how to divide it correctly.

There are certain rules based on which there is property that is subject to joint division, and there is personal property that remains with its owner.

If spouses want to divide everything according to the law, it would be best to divorce through the court with division of property.

Divorce proceedings do not happen often in people's lives, so it is natural that many people do not know how to file a lawsuit and how to proceed correctly. It is important to carry out all actions consistently; this will help significantly save time and reduce the conflict situation.

The algorithm of actions will be as follows:

If you act in this manner, the spouses will be able to quickly obtain a court decision regarding the future fate of their property.

When compiling a list of property that ex-spouses want to divide, it is important to know what is not subject to division.

The law establishes that in case of divorce the following are indivisible:

All other property that the couple acquired while in official family relationships, may be included in the list of property, which will be divided by a court decision.

This may include not only certain things, but also cash deposits, dividends, securities, etc.

Along with all property, the debt obligations of the spouses will also be divided in equal proportions, unless otherwise established by the marriage contract.

State duty

In order to prepare all the documents for the court, you need to know their complete list. First of all, you need to pay for court services.

This is a public service for which the applicant must pay a fee. The state fee for dividing property through the court will depend on the value of the claim.

If the court previously made a decision regarding this property, then the cost of re-examining the case will be 300 rubles.

In the list of property to be divided, it is important to indicate its market value. Based on the total cost of the entire list, the duty will be calculated.

The legislation establishes the following gradation for 2020:

The maximum allowable fee cannot exceed 60 thousand rubles.

If spouses cannot agree on the approximate value of their property, they can make an independent appraisal.

It is impossible to answer exactly how much a property valuation costs, since different valuation companies have different prices for their services. Also, the cost will depend on the type and number of objects to be assessed.

After the state fee has been paid, you must keep the receipt confirming payment.

Before filing a claim, it is important to know what documents are needed for a divorce through the court with division of property.

These include:

When collecting this package of documentation, the question may arise about how to correctly write an application to the court for the division of property. There are certain application requirements.

Lawsuit

A sample statement of claim can be found on the stand in the court branch itself. You can also get a blank form there. However, you can fill out the application at home.

The filling procedure will be as follows:

The claim is submitted along with all the documents listed in it to the court office. After checking the entire package of documentation, the court sets a court date within 30 days from the date of acceptance of the papers.

It is important to know in which court you are filing statement of claim. The choice of court depends on the value of the claim. If its price is within 50 thousand, then you need to go to the magistrate’s court. In cases where the cost of the claim is higher, it must be filed in a district or city court.

Along with a demand for division of property, a demand for divorce and an award of alimony can be filed simultaneously.

You can submit a claim:

• during the period of marriage;
• simultaneously during the dissolution of the marriage;
• after divorce.

According to the law, a claim is filed according to the territorial location of the defendant’s address. But in certain situations, a claim can also be filed at the plaintiff’s place of residence.

Such circumstances include:

• presence of small children;
• for health;
• other significant reasons.

If the claim involves real estate, then the application is submitted at the location of one of these objects.

A settlement agreement on the division of marital property can be submitted to the court at any time before the court makes its decision. There are often cases when, during legal proceedings, the parties negotiated with each other and were able to reach an agreement.

In this case, a settlement agreement must be drawn up and submitted to the court for review.

The judge has the right to satisfy the terms of the settlement agreement if they do not infringe on the interests of one of the parties to the judicial debate.

The judge also has the right to make his decision, regardless of the settlement agreement provided. Participants in the meeting can challenge any court decision within 15 days from the date of the decision.

In order to resolve a controversial issue with the help of a settlement agreement, you need to follow the following algorithm:

A settlement agreement can be concluded even after the court makes its decision. But in this case, it must be drawn up within 15 days and filed as an appeal to a higher court.

How to win a trial is a pressing issue when participating in a court hearing for each participant in this process. The most important thing is to be well prepared to justify your claims.

The plaintiff must collect the maximum amount of documentary evidence to support his claims.

In addition, it is important to know how to behave in court.. You must not give in to emotions and start screaming, crying, using obscene words, or insulting the participants in the process.

For this, the court has the right to impose an administrative fine and remove from the courtroom.

If the plaintiff is not confident in his abilities and knowledge, it is better to turn to lawyers for help. Many lawyers provide a separate service for attending court hearings. This can be of significant help in winning in court.

If the defendant did not appear at the hearing, but was duly notified of the date and time of the trial, then the hearing will take place without his presence.

If it is determined that the defendant may not have received notice, the trial may be rescheduled and the plaintiff will be required to give due notice to the defendant.

Most the best way It is considered that notification is sent via mail to the actual address of residence, as well as to the address of its registration. It is important to send a notification letter. This notice will need to be presented to the court at the next hearing.

If the defendant fails to appear and a decision is made without his presence, a copy of the decision is sent to his registered address. He can appeal this decision within 15 days.

Many citizens worry about how long the trial will take. divorce proceedings . Most short term installed within 60 days. In this case, the decision will be made at the first meeting.

But it often happens that the parties delay the trial, since some controversial issues cannot be proven by either party.

On average, the trial can take from 3 to 9 months, taking into account the workload of the court and all possible reasons postponing the consideration of the case.

From the moment the decision is made, it comes into force 30 days later, unless an appeal has been filed.

Division of property in court is a costly procedure. You need to spend a considerable amount of money on it to pay the state fee. In addition, the parties waste their time if they deal with this issue themselves.

Therefore, during a divorce, you should strive to divide property peacefully. This will significantly save money and nerves. However, if an agreement cannot be reached, then the only way out is to resolve the issue in court.

Video: How to divide jointly acquired property in court?