Division of property in marriage Division of property during divorce Help from qualified lawyers in Voronezh in various cases cases of property division

In this article, dear visitors of the official website of the Voronezh Legal Center “Zakon”, we will talk to you about such a very common procedure such as division of property.

If we turn to the rules of law contained in the Family Code of the Russian Federation, the following will become clear:

• the division of the common property of the spouses can be made during the marriage;
• the division of the common property of the spouses can be made after the dissolution of the marriage at the request of any of the spouses;
• division of the common property of the spouses can be made if the creditor makes such a claim in order to foreclose on the share of one of the spouses.

When dividing property, it is not at all necessary to bring the matter to trial - the common property of the spouses can be divided between the spouses by agreement. Please remember that this Agreement on the division of common property must be notarized.

Division of joint (common) property

But in the event of a lack of mutual understanding between the spouses, which, unfortunately, happens very, very often, the division of the spouses’ common property, as well as the determination of the spouses’ shares in this property, is carried out in court.

In this case, when dividing the common property of the spouses, the court, at the request of the spouses, determines what property is to be transferred to each of the spouses.

If one of the spouses is transferred property, the value of which exceeds the share due to him, the other spouse may be awarded appropriate monetary or other compensation.

Also, it is important to know that the court can recognize the property acquired by each of the spouses during the period of their separation upon termination of family relations as the property of each of them. Those. A stamp in a passport confirming marriage registration does not guarantee the emergence of a mandatory right to common property. It will be necessary to prove in court that the spouses were running a joint household or, conversely, provide evidence to the contrary, depending on whose interests our lawyer represents.

Also, it should be remembered that things purchased solely to meet the needs of minor children (clothing, shoes, school and sports supplies, musical instruments, children's library and others) are not subject to division and are transferred without compensation to the spouse with whom the children live.And also, contributions made by spouses at the expense of the spouses’ common property in the name of their common minor children are considered to belong to these children and are not taken into account when dividing the spouses’ common property.

Remember that in the case of division of the common property of the spouses during the marriage, that part of the common property of the spouses that was not divided, as well as the property acquired by the spouses during the marriage in the future, constitute their joint property.

And one more thing: a three-year statute of limitations applies to the claims of spouses for the division of common property of spouses whose marriage is dissolved. Of course, in our practice there have been numerous cases when we were able to restore the statute of limitations even after ten years, but it is better to do everything on time within the time allotted by law.

What is shared?

What else would I pay attention to? Let's define the very concept of joint ownership - i.e. This is all property acquired by spouses after the official registration of marriage in the absence of a concluded marriage contract. Joint ownership includes the following types of property:

• cars and other movable things;
• real estate;
• securities (stocks, bonds, etc.);
• income from the sale of movable and immovable property;
• business and labor income;
• intellectual income;
• luxuries;
• jewelry;
• deposits in banks.

It is important to know that when dividing joint property in the event of a divorce, it does not matter in whose name this or that property is registered - in any case, the rights of the spouses to it are recognized as equal.

In our practice, we often encounter the fact that during the period of cohabitation, the properties and technical characteristics, for example, of real estate that belonged to one of the spouses before marriage, were significantly improved (for example, a residential building underwent major renovations) - in such very complex cases , with our competent legal position, such real estate is also recognized by the court as joint property.

I also note that there are cases when there are legal grounds to deviate from the principle of equality when dividing property, namely:

• if it is proven that one of the spouses did not contribute money to the family budget due to unjustifiable reasons (these do not include housekeeping and child care);
• if it is proven that family funds were wasted by one of the spouses to the detriment of the rest of its members.

What is not shared?

And yet, it is useful to remind once again what does not belong to the category of jointly acquired property, and, accordingly, is not subject to division:

• personal belongings of each spouse with the exception of jewelry;
• items purchased for use by a minor child;
• cash deposits opened in the name of a minor child.

Property and court...

Dear readers, if you are faced with a situation where you are faced with the division of property, and if you were unable to resolve this issue amicably through a notarized agreement, then you will face a very difficult procedure for dividing property in court.In this case, you either independently or with the help of a professional lawyer specializing in property disputes, draw up and submit a corresponding statement of claim according to the jurisdiction.The following documents must be attached to the statement of claim for division of property:

• documents confirming the existence of joint property, i.e. certificates of ownership of real estate, vehicle passport, copies of checks and receipts confirming the fact of acquisition of things, etc.);
• information on the value of each unit of property subject to division;
• receipt of payment of the state duty (the amount of the state duty is calculated based on the price of the claim).

Regulatory framework

Let me note once again that the legal basis for these property disputes, including the division of property, is the Family Code of the Russian Federation, including the following articles of the RF IC:

Article 33 of the RF IC "The concept of the legal regime of property of spouses"

1. The legal regime for the property of spouses is the regime for their joint ownership. The legal regime for the property of the spouses applies unless otherwise provided by the marriage contract.
2. The rights of spouses to own, use and dispose of property that is the joint property of members of a peasant (farm) household are determined by Articles 257* and 258** of the Civil Code of the Russian Federation.

*Article 257 of the Civil Code of the Russian Federation "Property of a peasant (farm) enterprise"

1. The property of a peasant (farm) enterprise belongs to its members on the right of joint ownership, unless otherwise established by law or an agreement between them.

2. The joint ownership of members of a peasant (farm) enterprise includes the land plot granted to this farm or acquired, outbuildings and other buildings, reclamation and other structures, productive and working livestock, poultry, agricultural and other machinery and equipment, vehicles, inventory and other property acquired for the farm using the common funds of its members.

3. Fruits, products and income received as a result of the activities of a peasant (farm) enterprise are the common property of the members of the peasant (farm) enterprise and are used by agreement between them.

**Article 258 of the Civil Code of the Russian Federation "Division of property of a peasant (farm) enterprise"

1. When a peasant (farm) enterprise is terminated due to the withdrawal of all its members or for other reasons, the common property is subject to division according to the rules provided for in Articles 252 and 254 of this Code.

In such cases, the land plot is divided according to the rules established by this Code and land legislation.

2. A plot of land and means of production belonging to a peasant (farm) enterprise are not subject to division when one of its members leaves the enterprise. Those who leave the farm have the right to receive monetary compensation commensurate with their share in the common ownership of this property.

3. In the cases provided for by this article, the shares of members of a peasant (farm) enterprise in the right of joint ownership of the property of the enterprise are recognized as equal, unless otherwise established by agreement between them.

Article 34 of the RF IC "Joint property of spouses"

1. Property acquired by spouses during marriage is their joint property.

2. Property acquired by spouses during marriage (common property of spouses) includes the income of each spouse from labor activity, entrepreneurial activity and the results of intellectual activity, pensions, benefits received by them, as well as other monetary payments that do not have a special purpose ( amounts of financial assistance, amounts paid in compensation for damage in connection with loss of ability to work due to injury or other damage to health, and others). The common property of the spouses also includes movable and immovable things acquired at the expense of the spouses' common income, securities, shares, deposits, shares in capital contributed to credit institutions or other commercial organizations, and any other property acquired by the spouses during the marriage, regardless of whether in the name of which of the spouses it was purchased or in the name of which or which of the spouses contributed funds.

3. The right to the common property of the spouses also belongs to the spouse who, during the marriage, managed the household, cared for children, or for other valid reasons did not have independent income.

Article 35 of the RF IC "Ownership, use and disposal of common property of spouses"

1. Possession, use and disposal of the common property of spouses is carried out by mutual consent of the spouses.

2. When one of the spouses makes a transaction to dispose of the spouses’ common property, it is assumed that he is acting with the consent of the other spouse. A transaction made by one of the spouses to dispose of the common property of the spouses may be declared invalid by the court on the grounds of lack of consent of the other spouse only at his request and only in cases where it is proven that the other party to the transaction knew or should have known about the disagreement of the other spouse to complete this transaction.

3. In order for one of the spouses to enter into a transaction for the disposal of property, the rights to which are subject to state registration, a transaction for which a mandatory notarial form is established by law, or a transaction subject to mandatory state registration, it is necessary to obtain the notarized consent of the other spouse. The spouse, whose notarized consent to carry out the said transaction was not received, has the right to demand that the transaction be declared invalid in court within a year from the day when he learned or should have learned about the completion of this transaction.

Article 36 of the RF IC "Property of each spouse"

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

2. Items for individual use (clothes, shoes and others), with the exception of jewelry and other luxury items, although acquired during the marriage at the expense of the spouses’ common funds, are recognized as the property of the spouse who used them.

3. The exclusive right to the result of intellectual activity created by one of the spouses belongs to the author of such result.

Article 37 of the RF IC "Recognition of the property of each of the spouses as their joint property"

The property of each of the spouses may be recognized by the court as their joint property if it is established that during the marriage, investments were made at the expense of the common property of the spouses or the property of each of the spouses or the labor of one of the spouses that significantly increased the value of this property (major repairs, reconstruction, re-equipment and others).

Article 38 of the RF IC "Division of common property of spouses"

1. The division of the common property of the spouses can be made both during the marriage and after its dissolution at the request of any of the spouses, as well as in the event of a creditor making a claim to divide the common property of the spouses in order to foreclose on the share of one of the spouses in the common property of the spouses.

2. The common property of the spouses may be divided between the spouses by agreement. An agreement on the division of common property acquired by spouses during marriage must be notarized.

3. In the event of a dispute, the division of the common property of the spouses, as well as the determination of the spouses’ shares in this property, are carried out in court. When dividing the common property of spouses, the court, at the request of the spouses, determines what property is to be transferred to each of the spouses. If one of the spouses is transferred property, the value of which exceeds the share due to him, the other spouse may be awarded appropriate monetary or other compensation.

4. The court may recognize the property acquired by each of the spouses during the period of their separation upon termination of family relations as the property of each of them.

5. Items purchased solely to meet the needs of minor children (clothing, shoes, school and sports supplies, musical instruments, children's library and others) are not subject to division and are transferred without compensation to the spouse with whom the children live.
Contributions made by spouses at the expense of the spouses' common property in the name of their common minor children are considered to belong to these children and are not taken into account when dividing the spouses' common property.

6. In the case of division of the common property of the spouses during the marriage, that part of the common property of the spouses that was not divided, as well as the property acquired by the spouses during the subsequent marriage, constitute their joint property.

7. A three-year statute of limitations applies to the claims of spouses for the division of common property of spouses whose marriage is dissolved.

Article 39. Determination of shares when dividing the common property of spouses

1. When dividing the common property of spouses and determining shares in this property, the shares of the spouses are recognized as equal, unless otherwise provided by the agreement between the spouses.

2. The court has the right to deviate from the beginning of equality of shares of spouses in their common property based on the interests of minor children and (or) based on the noteworthy interests of one of the spouses, in particular, in cases where the other spouse did not receive income for unjustified reasons or spent the common property of the spouses to the detriment of the interests of the family.

3. When dividing the common property of the spouses, the common debts of the spouses are distributed between the spouses in proportion to the shares awarded to them.

Dear readers! If you still have questions regarding the division of property, then you can always sign up for a free consultation with the specialists of the Voronezh Legal Center “Zakon” and here they will definitely help you defend your legal rights.

Material prepared by Oleg Rukavitsyn

. The husband and wife can discuss the division order in advance - in the marriage contract. This agreement is drawn up before marriage or at any time after registering the relationship. After a divorce, the parties distribute assets as agreed upon in advance.

If there is no prenuptial agreement, then what was purchased during the marriage is divided in half as required by family law (except for things and bank deposits of common children).

If there are any disputes, you will have to go to court within three years after the divorce (we wrote about the statute of limitations). In this case, everything is divided according to a court decision or a settlement agreement between the plaintiff and the defendant.

The division of common property can also be made during the marriage at the request of one of the spouses or a creditor, for example.

Important! In a divorce, only what was purchased during the marriage is divided. Everything that was acquired before the registration of the relationship or was received as a gift, inherited by one of the spouses, is not divided.

Read about what is subject to division and what is not.

Ways to do this

There are two ways to divide family assets, which can be conditionally called voluntary and forced.

In the first case, a separation agreement is drawn up (if a marriage contract has not been drawn up). The spouses discuss all controversial issues regarding who and what will belong after the end of the family relationship, and reach a mutually beneficial compromise.

In the second, property issues are dealt with by the court, where one of the parties applies. The court determines:

• what property is subject to transfer and to which of the spouses;
• whether monetary compensation is required and whether any assets purchased during separation can be considered personal and not subject to division.

The court also decides on the issue of deviation from the general rule of equal shares (if the money was spent by one of the spouses on drugs, casino games, etc.). How the shares of spouses are determined is described in.

Formalization of the agreement

How to properly file a divorce between spouses if there are disputes? The common property of the spouses can be divided according to a notarized document. The document is drawn up during the marriage or at its end.

The agreement lists in separate lists which property is transferred into personal ownership to the husband and which to the wife. From the moment the agreement is concluded and executed, these assets can no longer be the subject of dispute. The parties sign that they have no claims against each other.

You can divide everything or only part of what you have acquired, in equal or unequal parts. It is also allowed to combine methods of division (example: transfer a car into personal ownership, and an apartment into common shared ownership). In relation to other property purchased after the signing of this document, the legal regime for spouses usually applies (everything purchased during marriage is divided in half).

In addition, an agreement can be drawn up to determine shares in the right (to an apartment, business, land, etc.).

Which spouse should go to court?

Attention! A statement of claim for division of joint property is filed by one of the parties.

To draw it up, it is necessary to study the requirements of the Code of Civil Procedure of the Russian Federation and decide on the composition, cost and desired procedure for division.

How this happens: algorithm of procedure through a government agency

An application to the court for division can be filed before the divorce, simultaneously with the claim for divorce, or after receiving the divorce certificate. For this type of case, there is a three-year statute of limitations.

Property can be divided before and after the official dissolution of the family relationship. If the issue is resolved during a divorce, then the claim of one of the parties is considered as an ordinary property dispute concerning common property.

If a statement of claim is filed for divorce in court and simultaneous division, then the issue of divorce is resolved first, and then the property dispute.

After a divorce, the former spouses can each dispose of their own share. If disagreements arise regarding common property, the issue is resolved in court by filing a civil lawsuit.

In court, it is possible to determine the shares of husband and wife in common property, and also establish what property should be transferred to each party.

What to include in the application?

A separate one is drawn up in accordance with Art. 131 Code of Civil Procedure of the Russian Federation. The document indicates the contacts of the plaintiff and defendant, the dates of marriage and dissolution (if there has already been a divorce), and common property.

The price of the claim is determined independently, based on the value of the joint property. At the end of the application, the plaintiff usually asks for recognition of ownership of specific assets and recovery of legal costs from the defendant.

Jurisdiction of the claim

Where is the claim filed? To the district court at the defendant’s place of residence or to a magistrate (if the amount of the claim is up to 50 thousand rubles).

Do I need to pay a state fee?

Reference! When filing a claim, you always pay. It is calculated based on the price of the claim, but cannot be less than 400 rubles.

If the price of the claim is up to 100 thousand rubles, then the state duty will be 3.2 thousand rubles + 2% of the amount that exceeds this limit.

If the issue of an apartment or other expensive property worth more than 1 million rubles is being decided, you will have to pay 13.2 thousand rubles + 0.5% of the amount that exceeds a million (but not more than 60 thousand rubles).

How long does it take to process a case?

Typically, a case in court is considered from 1 month to 1.5 years depending on the complexity of the case.

The procedure for divorce in property disputes

What is the procedure for dividing property during a divorce? If you decide to file one claim for divorce and at the same time for division of property, then you need to carefully prepare for the process. The plaintiff needs:

1. (independently or with the assistance of an appraiser).
2. Identify the assets in dispute and try to reach a compromise with your spouse regarding the division.
3. If an agreement could not be reached, then draw up the text of the statement of claim (on your own or by contacting a law office).
4. Pay double state fees (for divorce and for division) and file a lawsuit.
5. Participate in the scheduled court hearing, present evidence, argue your position.
6. Receive information about divorce and division of joint property.

The court's verdict can be appealed by the other party through the appellate or cassation procedures. If an appeal is not filed, then the documents are transferred to the executive service. Further the defendant is given a period of time to voluntarily comply with the court decision, and if this does not help, then a forced division of assets occurs.

Where to send documents?

The claim is filed in the district court or in the judicial district of the magistrate at the place of residence of the defendant (if the amount of the claim is up to 50 thousand rubles).

How to compose them?

The claim for divorce with simultaneous division of property consists of two parts. First, the plaintiff needs to convince the court of the need for divorce, and then recount the reasons for the property disagreements. The reason for the breakup of the family must be indicated(they didn’t get along in character, alcohol abuse of one of the spouses, etc.).

Then everything jointly acquired is listed and a request is made: to dissolve the marriage, and then recognize the plaintiff’s ownership of specific assets.

Attention! If the marital relationship ended before the date of divorce and the spouses lived separately, then this must also be recorded in the statement of claim. The presence or absence of a prenuptial agreement or separation agreement is also indicated, as this is important.

Available assets (real estate, furniture, cars, etc.) must be listed in a list, indicating what the dispute was about.

List of additional papers

Attached to the application:

• copy for the defendant;
• receipt of payment of state duty;
• a copy of the marriage or divorce certificate (if any);
• copies of title documents on joint property (USRN extract, purchase and sale agreement, agreement on bank deposits, etc.);
• petitions for arrest, collection of evidence;
• power of attorney for a representative;
• calculation of the claim price.

What do you need to pay?

When filing a claim, the state fee is paid both for the fact of divorce and for the division. In other words, you must attach two receipts. For the first you will have to pay 650 rubles, and for the second - an amount that depends on the price of the claim (but not less than 400 rubles). The amount of the fee must be calculated by the applicant himself. You can submit a request to defer the payment of state fees.

How long does the process take?

The case can be considered from several months before a magistrate to 1.5 years in a district court. It all depends on the number of disputed assets and other nuances.

Can be done at the same time as the filing of the lawsuit or before or after the divorce. Usually, everything jointly acquired is divided in half, but there are exceptions if the spouses have not lived together for a long period of time.

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Ending a marriage without property disputes is gradually becoming rare. Therefore, in the minds of women, divorce from her husband and division of property become one.

The question arises, how to carry out everything competently, given that you usually have to go to court and wait several months for the decision you need?

In this article we will tell you how to properly file a divorce and division of property. Information will be provided on where to go and what documents to prepare. You will also learn about the peculiarities of the divorce process in court.

In this article:

Divorce with division of property: general provisions and legislative principles

My husband was sentenced to 5 years in prison for the crime. How can I divorce him and divide my property?

In your situation, you can file a divorce through the registry office, as they say, unilaterally. This will take one month from the date you submit your application.

As for the division of property, you should go to court at the place where the spouse is serving his sentence or where the property is located (if it is the subject of a dispute).

Can I apply for division of property after filing a divorce through the registry office?

Yes, filing a divorce in a simplified manner does not deprive one of the spouses of the right to subsequently file a claim for division of property.

It can be filed within three years from the moment when the second spouse violates the order of disposal of common property. However, practice shows that it is better not to delay going to court.

What should be included in a court decision on the division of property

The operative part of the court decision contains a list of the property that goes to each spouse after a divorce. If the property has specific characteristics, then the court indicates them as well.

For example, if we are talking about an apartment, then its address, area, and number of rooms are indicated. The model and license plate data are written down for the car.

Conclusion

In this article, we described the general rules for dividing property in the event of divorce. It’s good when spouses manage to agree on everything peacefully and agree.

However, often the case ends up in court. In such a situation, one of the options for a positive solution to all problems would be to contact a lawyer.

Tens of thousands of marriages are registered in Russia every year. Unfortunately, many married couples officially end their relationship through divorce.

Dear readers! The article talks about typical ways to resolve legal issues, but each case is individual. If you want to know how solve exactly your problem- contact a consultant:

APPLICATIONS AND CALLS ARE ACCEPTED 24/7 and 7 days a week.

It's fast and FOR FREE!

In such a situation, it becomes necessary to divide jointly acquired property. Next, we will consider in more detail how the divorce procedure with division of property is carried out.

General information

If you need to figure out how to file a divorce with division of property in 2020, then this procedure is possible, both on the basis of mutual consent of the spouses, and through court proceedings on the initiative of one of the members of the couple.

The divorce procedure itself can be carried out in two ways:

• through the registry office;
• through the court.

The first method is possible when the decision to divorce is mutual. In such a situation, the spouses submit a joint application to the registry office, after which they receive a certificate of divorce.

In situations where one of the spouses does not agree to a divorce, the second has the right to file an application with the court to declare the marriage invalid.

After receiving a divorce certificate, an agreement is concluded between the people who were married on the division of property.

If spouses do not know how to properly file a divorce with division of property, or where to start the procedure, then it is best to contact the registry office.

Conclusion of an agreement

Between spouses it is possible only in a situation where both parties find a compromise on the procedure for dividing jointly acquired property.

In such a situation, the parties simply agree among themselves who gets what part of the property, after which the agreement is recorded in documents.

The property division agreement is an official document where:

• a description of all joint property is indicated;
• shares are registered that become the property of each party.

The agreement is drawn up by a notary, and the spouses put their signatures on it.

It is impossible to challenge this agreement if it does not violate the legal rights and interests of one of the parties.

The conclusion of an agreement is the most common form of division of property. In such a situation, there is no need for a trial, and the basis for the division of property is the mutual consent of the parties.

Judicially

When people cannot find a compromise solution on the procedure for dividing joint property, then this issue can be resolved through the court. Both spouses can file a claim.

The division of joint property can occur along with the divorce procedure. Also, spouses can carry out division after divorce.

Required documents

To file a lawsuit you will need the following documents:

• two sample statements of claim;
• certificate confirming marriage or divorce;
• property rights documents;
• results of expert assessment of property value;
• document confirming payment of state duty;
• other documents constituting the evidence base.

The statement of claim, as well as other documents, must be submitted to the court in two copies. The first copy is used by the court to familiarize itself with the case, and the second is sent to the defendant.

Sample statement of claim

Resolving a dispute in court is only possible in a situation where one of the parties files a statement of claim with demands against the other party to the dispute.

This application can be submitted by one of the spouses. It states:

• a detailed list of joint property;
• claims against the defendant, who has the right to file a counterclaim indicating his own claims.

Drawing up a statement of claim must be carried out in accordance with strictly established rules.

The procedure for dividing property can be carried out both after the divorce and during the marriage. occurs if it was not possible to peacefully agree on the distribution of acquired property and an agreement on the division of property was not concluded.

In the event of a trial, the court must resolve the dispute over the distribution of property by determining the shares of each spouse.

General provisions on division of property

Based on Art. 254 of the Civil Code of the Russian Federation, division of property is possible only after determining the share of each of the participants in joint ownership. Division of property between spouses can be carried out by mutual consent on the basis of an agreement between them or in court at the request of the wife or husband (Article 38 of the RF IC). However, there is no prohibition on the division of property if citizens are married. In exceptional cases, division of property may be required in the event of the death of a wife or husband.

If the spouses have reached a compromise, then they have the authority to formalize this in an agreement, which is drawn up in simple written form and certified by a notary.

In the absence of an agreement on the division of property between the former spouses, the dispute is subject to judicial review. The subject of the dispute can be any property acquired during marriage:

• movable property;
• cash;
• enterprises, etc.

It does not matter to whom the joint property is registered and for whose money it was purchased. An exception in this case may be if a marriage contract was previously concluded between the spouses, which specifically established the regime of jointly acquired property. When dividing property, you must be guided by Article 39 of the RF IC, which establishes the rule that the shares of spouses are recognized as equal if no agreement has been drawn up between them. If there is a concluded marriage contract, the court must be guided by the provisions of such an agreement. However, if the terms of the marriage contract clearly disadvantage one of the spouses, for example, if the agreement stipulates that the wife will be deprived of all joint property, then the court has the power to rule that such a contract is invalid and not to take it into account.

Limitation periods for dividing property through court

Please note that spouses can file a claim:

1. During the period of being in a marital relationship;
2. Simultaneously with the consideration of the issue of divorce;
3. After the official termination of the marital relationship.

To file a claim for division of property, spouses are given a three-year statute of limitations. However, the moment of calculation of this period is carried out not from the time, but from the time when one of the spouses learned about the violation of his right to common property.

Let's say a wife and husband divorced in May 2011. The ex-spouses continued to live in their shared apartment, but in August 2016, the husband brought his new wife into the apartment, kicked out his ex-wife and changed the locks. In this case, the ex-wife can apply to the court with a request for division of property, despite the fact that the divorce has already taken place more than 3 years ago.

Determination of the composition of property

Before, how to file a claim for division of property, you first need to determine the property that should be transferred to each spouse.

In this case, you need to adhere to the following rules:

• all property received by the husband and wife is considered their personal property and is not divided;
• property donated to spouses during marriage or real estate (movable property) received by inheritance cannot be divided unless otherwise specified in the marriage contract;
• If spouses have joint debts, then they must be paid in proportion to their shares. If the division of property is carried out in equal shares, then the debts are also divided equally.

The exception is things that were bought for minor children (clothes, musical instruments, books, etc.), they are transferred to the parent who lives with the child and the second parent; compensation for children’s things is not due. If we talk about contributions made by spouses for minor children, then such contributions are considered the property of the children and are not taken into account when dividing the property of the spouses.

Preparation of documents on the division of property in court

When filing a claim for division of property, you must prepare the following package of documents:

• passport of a citizen of the Russian Federation;
• certificate of marriage or divorce;
• documents confirming ownership of property;
• certificates confirming the value of the property. If the property is registered in the name of the defendant, a petition is attached to the claim to request evidence from the second spouse about the value of the property. Also, in this case, you should submit a request for a deferment in paying the state duty until you receive a certificate of the value of the spouses’ property.

Property is assessed based on its market price at the time of filing a claim for division of property, taking into account wear and tear. Property valuation is carried out by an independent expert or you can contact an expert organization. The state duty is calculated taking into account the cost of the claim. If the second spouse, who is the defendant in the case, does not agree with the price for the joint property, which was declared by the plaintiff spouse, he has the right to ask the court to conduct a re-examination of the property valuation.

Drawing up a claim for division of property upon divorce of spouses

You need to file a claim with a request for division of property in the magistrate court at the place of registration of the defendant, but if the amount of the claim is over 50 thousand rubles, then you will have to apply to the district court, also at the place of residence of the defendant spouse. However, if real estate is subject to division, the claim is filed at the location of the apartment, dacha, land plot, etc. And if real estate objects are located in different places, then you are allowed to choose to file a claim at the location of one of them.

When filing a claim for division of property, the following data must be indicated:

• the name of the court to which the claim is sent;
• FULL NAME. the plaintiff and defendant, their addresses and information about the parties’ representative (if the interests of the spouses or one of them are protected by a lawyer or lawyer);
• the text of the claim itself sets out the essence of the requirements for the division of property, indicates the circumstances of a particular case, which are based on specific evidence that is attached to the claim;
• the price of the claims, it is determined depending on the price of the property;
• list of documents attached to the claim.

In the statement of claim, the plaintiff spouse must list all things and real estate that should be distributed as joint property. Justify your position: why such and such property should become your property, and another - the property of your spouse. For example, a two-room apartment is transferred into the ownership of the wife, and the husband becomes the full owner of a country cottage with payment of monetary compensation to the wife.

Measures to secure a claim when dividing property through the court

If there is every reason to believe that the second spouse, before the court makes a decision, can urgently sell or otherwise dispose of the property acquired during the marriage, then the plaintiff has the right to file a petition with the court to seize the disputed property. For example, the court may seize cash deposits that are registered in the name of the defendant spouse. The request for seizure may be indicated in the claim itself or in a separate application.

If the claim of the husband or wife is satisfied, then after its entry into force division of marital property must be made on the basis of a court decision.

Features of cases on division of property during divorce

It often happens that petition for division of property carried out together with the divorce process or together with In such situations, the plaintiff may not file a claim at the plaintiff’s place of residence, but file an application with the court at his place of residence.

As a rule, shares in the common property of spouses are considered equal, but courts in some situations may deviate from this rule. In particular, this happens if minor children live with one of the spouses or if one of the spouses spent common property to the detriment of the interests of the family or could not receive income for unjustified reasons. In practice, an increase in the share is possible due to the illness of the husband/wife or the incapacity of one of them. The share of one of the spouses can be reduced due to the consumption of large quantities of alcoholic beverages, excessive wastefulness, passion for gambling, and other reasons.

However, the very fact that the child will live with his mother or father does not provide grounds for increasing the share in the property; the court will increase the share only if it is determined that this will ensure the interests of the child. Let's give an example from practice:

Approached the magistrate claim for division of property from citizen Razina A.S. When studying the case, the judge found that a minor daughter lives with citizen Razina and is fully supported by her mother. Father of daughter Razin V.V. did not support his daughter and did not pay utilities for housing. Based on such circumstances, the court deviated from the rule of equality of shares and awarded Razina 2/3 shares in the property common with her husband.

This case demonstrates that the court acted based on the best interests of the child. Therefore, when drawing up a claim, it is necessary to indicate what exactly the interests of the child are, which must be taken into account by the court.

If the share of one spouse significantly exceeds the share of the other, then the court has the right to award the second spouse monetary compensation for his share. But the assignment of compensation for property can only be made with the consent of the spouse; if he does not agree to compensation, then the spouses will own the property on the right of common ownership. However, the court must determine whether the spouse to whom the property is transferred has the opportunity to pay compensation or not. If this possibility is absent, the court does not have the right to make a decision on compensation, but to make a different decision, without violating the rights of the spouses. For example, in practice, decisions are often made to pay compensation in installments for a specific period (1, 2, 6 months, 1 year, etc.).

While you are married, you can also file a claim for division of property, but in such a situation, the plaintiff can request the transfer of only actually acquired property at the time of filing the claim, unless other conditions are included in the marriage contract. Property that the spouses may receive in the future cannot be taken into account. But property that was acquired during marriage and then sold against the will of the second spouse can be indicated. If the court determines that the sale of jointly acquired property was carried out without obtaining the consent of the second spouse and was not carried out in the interests of the family, then the cost of the sold items should be included in the division of property.