Defects that arise through no fault of the employee are paid on an equal basis with suitable products (Article 156 Labor Code RF). If the employee is to blame for the marriage, then:

Complete defects are not subject to payment;

Partial (correctable) defects are paid at reduced rates depending on the degree of suitability of the product.

The employee is also obliged to compensate the employer for direct actual damage caused to him (Article 238 of the Labor Code of the Russian Federation). In this case, the legislation provides for the following procedure for compensation:

If the guilty employee is ready to voluntarily compensate for the damage caused, then, by agreement with the employer, compensation for damage in installments is allowed. In this case, the employee must give a written commitment indicating the specific terms of each payment (Article 248 of the Labor Code of the Russian Federation);

If the employee does not agree to voluntarily compensate for the amount of damage caused, then the employer, on the basis of an order from the head of the organization (issued no later than a month from the date of final determination of the amount of damage caused), can recover it indisputably only if the amount of damage does not exceed the average monthly earnings of the employee. If the amount of damage exceeds the average monthly salary, then it can only be recovered in judicial procedure(Article 248 of the Labor Code of the Russian Federation).

It must be remembered that the maximum amount of all deductions for each salary payment (by order of the manager) is 20 percent of the salary due to the employee (Article 138 of the Labor Code of the Russian Federation). Moreover, the amount of deductions from wages and other types of income of the debtor is calculated from the amount remaining after taxes are withheld. If an employee is deducted under several enforcement documents, then the amount of deductions cannot be more than 50% of earnings (Article 138 of the Labor Code of the Russian Federation).

Please note: if the defect is corrected by other employees, they wage this doesn't change.

To account for defects in accounting, account 28 “Defects in production” is intended. The debit of account 28 collects the costs of identified defects (cost of irreparable, that is, final defects, costs of correction, etc.).

The credit of account 28 reflects the amounts attributed to the reduction of losses from defects.

Analytical accounting for account 28 is carried out for individual divisions of the organization, types of products, expense items, reasons and culprits of the defect.

When calculating income tax, losses from marriage are taken into account in full as part of other expenses (clause 47, clause 1, article 264 of the Tax Code of the Russian Federation).

Example. An employee of the main production committed an irreparable defect. According to the calculations compiled, the actual cost of rejected products is 7,000 rubles.

Rejected products are capitalized at the price of possible use - 500 rubles.

The average monthly earnings of an employee who has committed a marriage is 5,000 rubles.

The organization's accountant makes the following entries:

Debit 28 credit 02 (10, 69, 70...)

7000 rub. - reflects the actual cost of an irreparable defect;

Debit 73 Credit 28

5000 rub. - the employee’s debt for damages is reflected (in the amount of his average monthly earnings);

Debit 10, subaccount "Other materials", Credit 28

500 rub. - rejected products were capitalized at the price of possible use;

Debit 20 Credit 28

7500 rub. (7000 - 5000 - 500) - losses from defects are written off as expenses of the main production.

V. D. Gorbulin, V. M. Kirsanova
All types of benefits and compensations
Source SPS Consultant+

1) Depending on the nature of the defects, marriage is divided into correctable and irreparable (final).

Non-refundable amounts of losses from defects are included in the cost of those types of products for which defects are detected. If in the period in which a defect was detected, this type of product was not produced, then the amount of losses from defects is distributed by type of product as general production expenses.

The cost of internal irreparable defects, subject to reflection on account 28 “Defects in production”, is determined by the amount of costs for the manufacture of defective products, which includes:

· cost of raw materials used;

· labor costs;

· corresponding amounts of unified social tax;

· expenses for maintenance and operation of equipment;

· part of general production expenses;

· other costs associated with the manufacture of defective products.

To calculate the cost of the final defect, you must perform the following steps:

1. calculate the costs of manufacturing defective products;

4. determine the amount of losses from the final marriage.

Accounting for irreparable internal defects is documented by accounting entries:

Account correspondence
Debit	Credit
		The cost of defective products is written off
		Defective products are accepted for accounting at the price of possible use
		Amounts to be recovered from those responsible for the marriage have been accrued
		Amounts to be recovered from suppliers of defective materials have been accrued
		Losses from defects are included in the cost of production

Example 1.

During production, an irreparable defect in a batch of products was identified, the cause of which was the use of low-quality materials. The costs of manufacturing defective products were:

The cost of materials used is 25,000 rubles;

Salary – 15,000 rubles;

The amount of unified social tax is 3,900 rubles;

The share of general production costs is 7,500 rubles.

Price possible implementation of defective products is 20,000 rubles.

A claim was filed against the supplier of low-quality materials; the amount claimed for collection is 10,000 rubles.

Account correspondence		Amount, rubles
Debit	Credit
			The cost of defective products is reflected (25,000 + 15,000 + 3,900 + 7,500)
			Defective products are accepted for accounting at the price of possible sale
			The amount to be collected from the supplier has been accrued
			Losses from defects are included in the cost of production (51,400 – 20,000 – 10,000)

The cost of internal correctable defects includes:

· the cost of raw materials and supplies used to correct the defect;

In practice, the question often arises as to whether it is necessary to restore VAT on the cost of material assets that were used in the production of defective products. Some experts believe that if the defective products are not subsequently sold, then the VAT previously accepted for deduction in the part attributable to the cost of inventory items used in the production process of the defective products must be restored and paid to the budget.

It is difficult to agree with this point of view. Let us remind you that in accordance with subparagraph 1 of paragraph 2 of Article 171 of Chapter 21 of the Tax Code Russian Federation(hereinafter referred to as the Tax Code of the Russian Federation), VAT amounts presented to the organization and paid by it when purchasing goods on the territory of the Russian Federation necessary for carrying out transactions recognized as objects of taxation in accordance with Chapter 21 of the Tax Code of the Russian Federation are subject to deductions. In addition, losses from defects for profit tax purposes are included in other expenses (subparagraph 47 of paragraph 1 of Article 264 of Chapter 25 of the Tax Code of the Russian Federation, therefore, despite the fact that part of the acquired inventory was used in the production of defective products, expenses for such materials are directly related to the sale of goods, that is, to transactions subject to VAT.

Consequently, in accordance with subparagraph 1 of paragraph 2 of Article 171 of Chapter 21 of the Tax Code of the Russian Federation, the deduction was made by the organization lawfully, and there is no need to restore the amount of VAT accepted for deduction in the part attributable to the cost of inventory items used in the production of defective products of the organization.

If the requirements of Article 252 of Chapter 25 of the Tax Code of the Russian Federation are not met, and therefore the cost of defective products cannot be recognized as expenses for the purposes of Chapter 25, then in accordance with subparagraph 2 of paragraph 1 of Article 146 of Chapter 21 of the Tax Code of the Russian Federation, such expenses are expenses for own needs, which are subject to VAT. At the same time, the organization retains the right to VAT refund on material assets, which were used to produce defective products in accordance with subparagraph 1 of paragraph 2 of Article 171 of Chapter 21 of the Tax Code of the Russian Federation.

In tax accounting, losses from defects are included in other expenses associated with production and sales on the basis of subparagraph 47 of paragraph 1 of Article 264 of Chapter 25 of the Tax Code of the Russian Federation. These expenses are indirect and are taken into account as expenses of the reporting period in full (clause 2 of Article 318 of the Tax Code of the Russian Federation). At the same time, among other expenses associated with production and sales, taken into account for the purpose of determining the tax base for corporate income tax, taxpayers have the right to include only those losses from defects in production that are not subject to recovery (withholding) from those responsible for the defects.

In order to recognize losses from marriage, it is necessary to comply with the requirements of Article 252 of Chapter 25 of the Tax Code of the Russian Federation. Let us recall that in accordance with paragraph 1 of Article 252 of the Tax Code of the Russian Federation, expenses for tax accounting purposes are recognized as justified and documented expenses incurred by the taxpayer, provided that they were incurred to carry out activities aimed at generating income.

Justified expenses mean economically justified expenses, the assessment of which is expressed in monetary form. Documented expenses mean expenses supported by documents drawn up in accordance with the legislation of the Russian Federation.

Organizations that apply a simplified taxation system in accordance with Chapter 26.2 of the Tax Code of the Russian Federation and have chosen “income reduced by the amount of expenses” as the object of taxation will not be able to include losses from marriage as expenses, since Chapter 26.2 of the Tax Code of the Russian Federation contains a closed list of expenses and expenses in the form of losses from marriage are not provided for in Article 346.16 of Chapter 26.2 of the Tax Code of the Russian Federation.

An external defect is one that is detected after the finished product has been shipped to the buyer.

Losses from external marriage are reflected as part of the costs of the month in which claims from customers are received and accepted. Losses from defects that relate to products manufactured in previous periods are included in the cost of similar products produced in the current period. If such products are not produced in the current period, then these costs are distributed by type of product as general production costs.

Article 475 of the Civil Code of the Russian Federation establishes the following:

"1. If the defects of the goods were not specified by the seller, the buyer to whom the goods of inadequate quality were transferred has the right, at his own discretion, to demand from the seller:

proportionate reduction in the purchase price;

free elimination of product defects within a reasonable time;

reimbursement of their expenses for eliminating defects in the goods.

2. In the event of a significant violation of the requirements for the quality of the goods (detection of irreparable defects, defects that cannot be eliminated without disproportionate costs or time, or are detected repeatedly, or appear again after their elimination, and other similar defects), the buyer has the right to choose :

refuse to fulfill the purchase and sale agreement and demand the return of the amount of money paid for the goods;

demand the replacement of goods of inadequate quality with goods that comply with the contract.”

The cost of an irreparable external defect includes:

· production cost of products (products) ultimately rejected by the consumer;

· reimbursement to the buyer of costs incurred in connection with the purchase of these products;

· transportation costs for returning defective products;

· other costs associated with the production of defective products.

To ensure that the return of products is not qualified as its resale to the manufacturing organization, it is important to correctly draw up documents confirming the nature of the transaction. In this case, an act of identifying defects is drawn up (form TORG-2) and a claim is filed, which reflects the fact of delivery of low-quality products and indicates whether the supplier should transfer money to the buyer for defective products, or pay off the debt incurred after the return of defective products by shipping similar products of proper quality.

As a rule, external defects are detected not in the month when the products were manufactured, but later, when the rejected products are already included in the sales volume.

In the event of returning defective products, the supplier must reverse accounting transactions for sales in the share attributable to the defect, including the amount of accrued taxes.

The procedure for writing off external defects depends on the period when they were identified and on whether the organization creates a reserve for warranty repairs or not.

The cost of external correctable defects includes:

· costs of correcting defective products from the consumer;

· transportation costs for transporting products from the buyer to the manufacturer and back;

· other costs to reimburse the buyer for the purchase of products.

In the event that the manufacturing organization corrects a detected defect and then again delivers the product with corrected defects to the buyer, the following must be taken into account. Since the product has already been sold, ownership of it has passed to the buyer. Consequently, for the period during which these products are in the manufacturing organization and work is being carried out to eliminate defects, they should be accounted for in off-balance sheet account 002 “Inventory assets accepted for safekeeping.”

Example 4.

Let's change the conditions of example 3.

The organization sold a batch of 10 products. The selling price of one product is 23,600 rubles (including VAT 3,600 rubles). The cost of one product is 15,000 rubles.

During the use of the products, the buyer discovered defects in three products; the defects can be eliminated.

VAT reflected on transport costs

VAT is deductible

Losses from defects are included in the cost of production of the current period (1,000 + 3,000 + 5,000 + 1,300 + 1,000 – 8,000)

Features of accounting for income tax from the seller on returned low-quality goods.

The obligation to pay tax arises when the payer has an object of taxation. In accordance with Article 38 of Part One of the Tax Code of the Russian Federation, objects of taxation may be transactions for the sale of goods (work, services), property, profit, income, cost of goods sold (work performed, services rendered) or another object that has a cost, quantitative or physical characteristics, with the presence of which the taxpayer’s legislation on taxes and fees associates the emergence of an obligation to pay tax. The sale of goods, works or services is recognized as the transfer on a reimbursable basis of ownership of goods, the results of work performed, the provision of services, and in cases provided for by the Tax Code of the Russian Federation - also on a gratuitous basis (clause 1 of Article 39 of the Tax Code of the Russian Federation).

When returning low-quality goods, there is no object of taxation, since the parties return to their original position: it is impossible to recognize the returned goods as sold, since we consider the buyer’s obligation to accept the goods unfulfilled. In addition, there is no mandatory sales criterion - consideration of the transfer, since the amounts paid are returned to the buyer.

Due to the fact that there is no object of taxation, therefore, there is no obligation to pay taxes, in particular income tax (clause 1 of Article 248 of Chapter 25 of the Tax Code of the Russian Federation).

It should be noted that at the time of shipment (transfer of goods from the seller to the buyer), the seller has no information about whether a certain volume of products will be returned or not. Therefore, an organization that determines income and expenses using the accrual method for the purposes of Chapter 25 of the Tax Code of the Russian Federation forms the tax base on the basis of primary documents as of the date of sale of goods.

But Chapter 25 of the Tax Code of the Russian Federation does not contain direct instructions on how to reflect the return of goods in tax accounting and how to take it into account when calculating the tax base for income tax.

In our opinion, the return of low-quality goods will depend on the period in which it is carried out. If the return of a low-quality product occurred in the same tax period as the sale, then the seller must reduce the amount of income from the sale, calculated in accordance with Articles 249 and 316 of the Tax Code of the Russian Federation, by the amount of the refund that was received by the seller for this product. And the amount of expenses of the current tax period should be reduced by the purchase price of the returned goods.

In addition, in tax accounting, losses from defects are included in other expenses associated with production and sales on the basis of subparagraph 47 of paragraph 1 of Article 264 of Chapter 25 of the Tax Code of the Russian Federation. These expenses are indirect and are taken into account as expenses of the reporting period in full (clause 2 of Article 318 of the Tax Code of the Russian Federation). At the same time, among other expenses associated with production and sales, taken into account for the purpose of determining the tax base for corporate income tax, taxpayers have the right to include only those losses from defects in production that are not subject to recovery (withholding) from those responsible for the defects, in compliance with the requirements of Article 252 chapter 25 of the Tax Code of the Russian Federation.

End of the example.

You can find out more about issues related to the specifics of accounting and tax accounting in production in the book of JSC “BKR-Intercom-Audit” “ Production».

Divorce proceedings are a complex procedure that requires division of property, settlement of mutual claims, and resolution of issues related to the maintenance of incapacitated family members and children. Often, a husband or wife believes that their spouse should pay them additional compensation, which may be associated with an unfair division of property or causing moral harm. Let's find out what compensation you can get in a divorce.

Moral compensation in case of divorce

Compensation for moral damage is a separate type of compensation payments that has nothing to do with property and the divorce process itself. Naturally, the dissolution of a marriage leads to stress, but on this basis alone there is no point in demanding compensation for moral damage from the ex-spouse - the court will refuse the claim. Compensation is paid only when the spouse has caused significant harm to the psyche of the former other half. For example, the spouse cheated, and this led to divorce, or there was shame, slander, unfounded accusations in public, humiliation, etc. The court rarely satisfies such demands, but it is worth a try - the availability of documents that would prove that mental disorders appeared after the actions of the defendant would be a good help.

In order to prove the infliction of serious harm to the psyche and general emotional state, you will have to turn to specialists, psychologists. This will require money, and the results are not guaranteed. Unlike Russia, in European countries and the USA, there are no problems with proving a spouse’s guilt in causing mental harm - spouses regularly visit psychologists who can speak in court and confirm nervous breakdowns due to their wife or husband.

Divorce compensation for an apartment purchased with a mortgage

Upon divorce, jointly acquired property is required to be divided in equal shares. Almost always the most expensive property is purchased on credit. And, of course, the most desired property after a divorce is an apartment and a car. The problem arises when the divorce process has already begun, but the mortgage still has to be repaid for many years.

Mortgage debts are divided in the same way as property, since the loan assumes the ownership of an apartment or house, which will be divided equally between the spouses.

The outstanding portion of the mortgage loan is also subject to division in equal shares between the divorced husband and wife, unless one of them refused the apartment purchased in this way. So, the loan debt can be divided in the following order:

• the entire debt goes entirely to one of the spouses, but then the apartment remains in his sole use;
• the debt is divided in equal shares - then the apartment is also divided equally and remains in shared ownership.

Often the situation looks different. A divorced couple does not want to have any relationship, much less live in the same living space. Therefore, the apartment is purchased, the loan is repaid in full, after which the former spouses agree either to sell it and divide the money equally, or to transfer it into ownership of one of them and pay compensation to the second owner, the amount of which will correspond to the value of the share.

Most often, it is not possible to resolve the dispute peacefully, and therefore divorced spouses go to court. However, it is worth warning that this is not profitable - you will have to pay a state duty as a percentage of the value of the disputed property.

Divorce compensation for apartment renovations

Often, when dividing real estate during a divorce, spouses argue about who will get the furniture located in it, as well as integral parts of the home. These include repairs, a gas pipeline in a country house, a heating boiler and other expensive equipment that could be purchased at the expense of one of the spouses. If the court rules that the repairs will go to or will belong to the wife or husband, the second spouse has the right to apply for compensation.

For the court to accept this position and make a decision on payment of compensation for that part of the repair that was purchased with common money, but went to only one of the ex-spouses, you need to collect as many documents as possible about payment for repairs, as confirmation that the money of both spouses was involved. Receipts, checks, and witness statements will do.

Compensation may also be recovered when repairs were carried out using common savings in an apartment donated or inherited. In such a situation, the housing will be taken by the person whose relatives donated or bequeathed the apartment, but a partial cost of repairs will be reimbursed to the second spouse.

It is not so easy for a husband and wife to divide equally property that has different values ​​or cannot be divided into parts. Therefore, the law provides for the concept of monetary compensation - as a way to fairly distribute joint property between co-owners.

Payment of monetary compensation is often used if spouses resort to a pre-trial agreement, for example, one of the spouses wants to receive property, the other agrees to the cash equivalent. If the spouses cannot agree on their own, they can initiate legal proceedings, as a result of which the value of the property is assessed, its distribution between the spouses, and the amount of compensation is calculated.

Thus, payment of monetary compensation is a modern, universal and reasonable way to divide property acquired through joint efforts between divorcing spouses.

In this article we will look at in what cases monetary compensation is paid, how it is calculated, and in what order it is collected.

In what cases is it paid?

As a rule, spouses resort to paying monetary compensation in cases where joint ownership includes so-called indivisible property or property the division of which cannot be equal.

The legislation of the Russian Federation clearly defines which property is joint and must be divided in the event of a divorce, and which is personal and is not subject to divorce.

According to the provisions of family law (Article 34 of the RF IC), all property acquired during marriage (from the moment of marriage) is subject to division. This could be...

• real estate,
• vehicles,
• movable property (equipment, furniture, household items),
• funds (cash, bank deposits, savings),
• property rights and obligations,
• debts.

The following property is not subject to division between spouses (and therefore does not require payment of monetary compensation):

• Personal property acquired by a husband or wife before marriage or after divorce;
• Property that was received by one of the spouses as a gift or by inheritance;
• Funds (non-cash and cash) deposited by spouses into a bank account in the name of a minor child;
• Property that is needed to meet the needs of a minor child;

Important! It is also impossible to recover monetary compensation if the man and woman were not married, but lived together in a so-called civil marriage. Family law does not regulate property rights and obligations arising from such relationships. You can read about how property acquired in a civil marriage is divided in this article.

Ways to receive monetary compensation

• The issue of distribution of property and payment of monetary compensation in the event of an unequal division can be resolved by the spouses independently - by concluding a marriage contract between husband and wife or an agreement on the division of joint marital property. A written document may contain any voluntarily reached agreement: provisions on the size of shares (shares can be either equal or unequal), on the distribution of property according to shares, on the amount of monetary compensation, on in kind compensation, for example, for the performance of work, provision of services, transfer of personal property of equal value
• If it is impossible to peacefully, voluntarily resolve the issue of division of property and payment of monetary compensation, the issue is resolved in court. According to the general rule provided family law(Article 39 of the RF IC), the shares of the spouses are considered equal. But if it is impossible to divide the property equally, the court resorts to assigning monetary compensation: the spouse to whom all the property or most of it is transferred is obliged to pay the second spouse an amount of money equivalent to his missing share.

Thus, if the spouses do not agree on the procedure for dividing property and the amount of monetary compensation, the dispute is referred to the judicial authority. To calculate the payment, the court appoints an appraisal examination joint property, and based on the results of the assessment, makes a decision on the procedure for dividing marital property and awarding compensation to one of the spouses.

The spouse loses the right of ownership of the property for which he received compensation and can no longer demand the right to use, own, or dispose of it.

Important! As mentioned above, in addition to monetary compensation, Russian legislation does not prevent the award (judicial or voluntary) of other ways to eliminate the disproportionality of shares, for example:

• Provision of services by one spouse to another;
• Performance of work by one of the spouses for the benefit of the other;
• Assignment of the right to temporary use of property;
• Transfer of equivalent personal property as compensation by one of the spouses.

Determination of monetary compensation

The amount of compensation cash payment can be determined in one of the following ways:

• By agreement between husband and wife.
• By the tribunal's decision.

However, before calculating the amount of payment, it is necessary to assess the value of the marital property that is subject to division. You can read more about how matrimonial property is assessed in the article The expert conducts an inspection, studies documents, analyzes the market, and as a result draws up a report on the value of the property, taking into account wear and tear or improvements made. If each spouse conducted an assessment, the results of which differ significantly, you will have to apply to the court for a forensic examination.

After the assessment, all divisible property is divided into equal parts, and property that cannot be divided becomes the property of one of the spouses. After this, it remains to determine which of the spouses got the largest part - he is assigned monetary compensation. The amount of compensation is half the difference in the value of the property received by each spouse.

For example

The total cost of family property (car, household appliances) is 800 thousand rubles. A car worth 500 thousand rubles becomes the property of the husband, and furniture and household appliances with a total value of 300 thousand rubles become the property of the wife. The difference in the size of the shares is 200 thousand rubles, the amount of compensation that the husband must pay to his wife is equal to half of this amount - 100 thousand rubles.

If the amount of compensation is small, it can be assigned by the court without the consent of the recipient and the payer, but if we are talking about a large amount, it must be agreed upon by the court with the parties. The court also takes into account the interest of each spouse in receiving this or that property - the degree of such interest is determined individually, according to the circumstances of the case and the assessment of these circumstances by the court.

Taxation of monetary compensation

According to the law, all income of citizens is taxed. Cash compensation also applies to taxable income, which means that deductions must be made from it in favor of the state. But if the property for which monetary compensation was received was owned for at least three years, the owner can exercise the right to a tax deduction and thus avoid taxation of the compensation payment.

To qualify for a tax deduction, property must meet two conditions:

• Its cost should not exceed 1 million rubles. If the price of the property is above 1 million rubles, then 1 million rubles are deducted from the taxable amount, and personal income tax of 13% is charged on the balance;
• Spouses must have owned the property continuously for at least 3 years.

Example

During the division of marital property, the husband received a car valued at 500 thousand rubles. The compensation due to the wife should have been 250 thousand rubles, from which tax should have been deducted. However, if the wife proves that the car was purchased four years ago, it turns out that she did not receive any income and does not have to pay tax.

In order to apply the right to a tax deduction for their own purposes, the spouse needs to formalize the transfer of compensation in the form of a purchase and sale agreement with the second spouse. Thus, one of them acquires personal ownership of property that was joint, and the other receives a payment and the opportunity not to pay personal income tax.

How to draw up a compensation agreement?

If a husband and wife decide to divide joint property peacefully and independently, they should enter into an agreement, which involves the following actions:

• If there are no disagreements between the spouses regarding the assessment of the value of the property and the amount of compensation, they can immediately begin to draw up a written document (either independently or with the assistance of a competent lawyer), after which they can notarize the document;
• If a dispute arises between spouses regarding the value of jointly acquired property and, as a consequence, the amount of compensation payment, they must first contact an expert who will assess its value, after which the spouses will be able to calculate the amount of payment due in the event of an unequal division of property. All agreements reached are also included in a written document, subject to notarization and subsequent execution.

— here you can learn more about the procedure for concluding a written marital agreement on the division of joint property and receive a ready-made sample document that can be used to conclude your own marital agreement.

How to recover monetary compensation through court

Despite the fact that the extrajudicial method of dividing marital property is considered preferable (due to efficiency, affordability and the ability to independently choose the method and procedure for distributing property benefits), turning to a judicial institution still remains a popular and common way to resolve a property dispute. Spouses can also go to court if an agreement was concluded between them on the division of marital property or marriage contract, but the terms of the agreements were not fulfilled voluntarily.

The court orders an expert assessment of the matrimonial property, based on the results of which it divides the property and determines the amount of monetary compensation, as well as the period during which it must be paid, taking into account the financial situation of the parties.

The court decision made as a result of the proceedings is subject to mandatory execution. In case of non-compliance, the parties have the right to contact the Bailiff Service and initiate enforcement.

Procedure

So, if it is impossible for the spouses to independently resolve a property dispute, it is referred to a judicial institution in accordance with the rules of jurisdiction.

The procedure will be approximately as follows:

• The spouse interested in the division of marital property prepares and files a claim in court for division of property and payment of compensation, attaching supporting documents;
• Court hearing statement of claim, studies the submitted documents, listens to the arguments of the parties, appoints an expert assessment to determine the market value of the property. Payment for the expert's services is borne by the plaintiff;
• The report on the assessment of the value of property serves as the basis for calculating the compensation payment due to the spouse whose share during division turned out to be less than that of the second spouse;
• The court makes a decision specifying the procedure for dividing marital property, the amount of monetary compensation, the timing and procedure for its payment.

Lawsuit

The statement of claim is drawn up in strict accordance with the procedural law (Articles 131 and 132 of the Code of Civil Procedure of the Russian Federation). The form and content of the statement of claim must be as follows:

1. Document header:

• Name, address of the judicial institution;
• FULL NAME. plaintiff and defendant, addresses, contact details;
• Cost of claim (half the value of the disputed property (equivalent amount of money) claimed by the plaintiff);

1. Title of the document: “Statement of Claim for the Division of Joint Marital Property and Payment of Compensation”;
2. Statement of the circumstances of the case:

• Date, place of marriage and divorce;
• Information about minor children (full name, date of birth, place of residence);
• List of disputed property with detailed description each property object and indicating the date of acquisition, ownership (personal, joint), estimated value;

1. Reference to the norms of family and civil procedural legislation;
2. Request to the court: to divide the joint marital property (indicate how: which property should become the property of the plaintiff, which should become the property of the defendant), order the payment of monetary compensation in case of unequal division;
3. List of documents that are attached to the claim;
4. Date of;
5. Signature.

Documentation

The following documents must be attached to the claim:

• copies of the statement of claim for the court and the other party;
• copies of marriage, divorce, birth certificates;
• a receipt confirming payment of the state fee for filing a claim;
• title and technical documents for property that is subject to division;
• appraisal documents confirming the value of the property that is subject to division.

State duty

The state fee for filing a claim for division of marital property is calculated based on the cost of the claim according to the formula established by Article 333.19 of the Tax Code of the Russian Federation, consisting of fixed amount and interest rate. The higher the value of the disputed property, the higher the state duty. However, the law establishes a minimum (400 rubles) and maximum (60 thousand rubles) amount of state duty.

Details for payment can be obtained from the office of the court in which the claim is filed. You can make a payment through a post office or bank cash desk, a bank terminal, or an Internet banking service. A receipt for payment of the state fee must be attached to the statement of claim, otherwise the claim will be abandoned.

Deadlines

It is possible to make a division of marital property (and assign a compensation payment in case of unequal shares) during marriage, during divorce proceedings, or after divorce. The law (Clause 7, Article 38 of the RF IC) establishes a limitation period for the division of property between divorced spouses - 3 years, which begins from the moment one of the co-owners of the property learned of a violation of his property rights.

Spouses often ask about the length of the trial. But it is impossible to give a definite answer to this question - in some cases the trial ends in two months, in others it drags on for six months or longer. It’s good if the spouses are ready to reach a compromise in the legal process (for example, by concluding a settlement agreement), then the court’s decision will be made sooner.

Arbitrage practice

Before going to court, spouses should discuss (think about) and thoroughly weigh all the pros and cons of legal proceedings - the cost of time, money, and human resources. And if the final result - a decision on the division of marital property and the optimal amount of monetary compensation - can be achieved without a trial, it is better to take independent actions. But if you cannot do without a trial, preparation for the trial should be maximum - a competent statement of claim, a complete package of documentation, a well-thought-out legal position. If you need legal support, please contact the lawyers of our portal for a free consultation.

It would also be useful to familiarize yourself with examples of judicial practice in similar cases. Such illustrative examples can be viewed on the website of the judicial institution to which you plan to file a claim, or any other court.

Below are also examples of consideration of cases on the division of property and the assignment of compensation payments.

Example 1

For married life husband and wife lived in an apartment that was purchased by the husband's parents for the young couple. But since the apartment donation agreement was not drawn up, the apartment actually and legally belonged to the husband’s parents. Therefore, during the divorce, the division of real estate was not carried out. No division of other property was carried out; all furnishings - furniture, household appliances - that belonged to the couple remained in the husband's ownership, since the child remained to live with his father. The court ordered the husband to pay his wife half the value of all jointly acquired property.

Example 2

Several years before the divorce, the wife sold a 1-room apartment that belonged to her personally. Having added joint money to the proceeds from the sale, the couple bought a 3-room apartment, formalizing the transaction and the ownership right to the wife. However, after the divorce, the husband filed a lawsuit to divide the apartment. Having studied the documentation, the court found that the cost of the 1-room apartment sold by the wife was 60% of the cost of the purchased 3-room apartment. Therefore, 60% is the wife's personal property, and the remaining 40% is joint marital property, which is subject to division in half. The husband’s refusal to register ownership of the apartment does not matter - according to Article 34, everything acquired by the spouses during marriage belongs to them on equal rights. Thus, by a court decision, the wife remained obliged to compensate her husband 20% of the cost of the apartment

What to do if the defendant does not pay compensation?

The court decision on the appointment of compensation payment must establish the procedure and period during which the defendant must transfer the amount of money to the plaintiff. The compensation payment may be a one-time payment, or may be paid in installments (in this case deadline payment of the next payment will be the last day of the month).

If the defendant does not comply with the court decision voluntarily, he must contact the court that made the decision and obtain a writ of execution. With this document you need to go to the SSP department (at the defendant’s place of permanent residence) and initiate enforcement proceedings to force the collection of compensation payments.

Financial compensation for a spouse upon divorce

During divorce proceedings in favor of one of the spouses, by mutual agreement or as part of a lawsuit, the payment of material compensation - pensión compensatoria, which should not be confused with alimony obligations, may be awarded.
In accordance with Article 97 of the Spanish Civil Code, such compensation is granted to a spouse who, as a result of the divorce, has suffered from an economic point of view and whose financial situation has significantly deteriorated. This is the main difference between compensation payments and alimony, the main purpose of which is to cover expenses for vital things and needs (food, medicine, clothing, education, utilities, etc.).
The right to receive financial compensation is granted to a spouse whose economic situation after the divorce has worsened in comparison with the other spouse and in comparison with the period when he was married. Such payments are established for a certain period of time (6 months, 1 year, etc.) or until the economic situation of the spouse affected by the divorce improves (for example, the spouse must find a job or complete his studies, etc.).
The amount of compensation payments is established by agreement of the parties, or in the absence of agreement, by a court decision. However, not all divorce cases are awarded such payments. When deciding on compensation, the following circumstances are taken into account:
– existence of an agreement between spouses on the payment of alimony;
– presence of common children;
– age and health status of each spouse;
– professional qualifications and ability to find yourself workplace;
– what the family did in the past and what the spouses will do after the divorce;
– the presence of a joint business, as well as the fact of providing assistance and being in the workplace of the other spouse within the framework of their own business;
– duration of marriage and cohabitation;
– the likelihood of losing the right to receive a pension;
– income and economic status of each spouse.
After the amount of compensation payment has been established based on a court decision, its size can be changed if the economic situation of each spouse changes in one direction or another. In addition, the payment of financial assistance stops if the spouse receiving it enters into another marriage or begins to live in a civil marriage. According to Spanish law, failure to pay financial compensation is a punishable offence. Cash payments in favor of one of the spouses are taken into account when filing a declaration of income IRPF, both by the spouse who receives them and by those who pay them.
IN judicial practice Spain has a precedent in which the court ordered the spouse to pay his ex-wife monetary compensation only for the fact that during the entire period of their life together she took care of the housework and raising their three children together. The amount of compensation was set at 400 euros for each month of their marriage, which lasted 38 years. The court motivated its decision by the fact that the woman, being busy with household chores for such a long period of time, could not work and, as a result, after retirement she does not have sufficient length of service, which deprives her of the right to receive pension payments based on the results of work activity.