Who is involved in the division of property? Division of property during divorce

Marriages are made in heaven, but divorces are made on earth. And most of them are inevitably accompanied by the division of jointly acquired property of the spouses. What and how is divided during a divorce? What property will a husband or wife not be able to claim? Does the size of shares during division affect the presence of children of a couple? Where to apply and how to apply? These and other questions will be discussed in this article.

The legislative framework

Currently in Russian Federation matrimonial property relations are regulated by the Civil Code of the Russian Federation and the Family Code of the Russian Federation.

The Civil Code of the Russian Federation establishes general provisions on the division of property, and the Family Code of the Russian Federation reveals and specifies them.

What marital property is subject to division?

Refers to common property and subject to division between spouses, everything that they acquired during the period of their joint married life.

Article 34 of the RF IC includes funds from the following sources as such family property:

The salary received by each married couple.
Profit from business.
Pensions, various payments, social benefits.
Profit from intellectual activity.
Immovable and movable objects.
Money (cash and deposits), securities.
Cooperative shares, shares in organizations.

In order for all of the above to be family-wide, it must be acquired after registering the relationship and during life together husband and wife using their common family funds.

When dividing, the following factors must be taken into account.

Property can only be registered in the name of the husband or wife. Regardless of the indication of the owner in official documents, the property is jointly acquired (Clause 2 of Article 34 of the Family Code of the Russian Federation).
It doesn’t matter how much each of the couple earned during family life. If there is a significant difference in income, everything earned by the spouses is shared. Even if someone did not work for objective reasons - ran a household and took care of family and children’s affairs, or had an illness or disability - this does not deprive the non-working spouse of the right to community property (Clause 3 of Article 34 of the Family Code of the Russian Federation).
Divide the property, as follows from the provisions of paragraph 1 of Art. 38 of the Family Code of the Russian Federation, it is possible: before divorce; simultaneously with the registration of divorce through the court; after divorce.

What marital property is not subject to division?

Certain types of property cannot be divided between spouses. These include:

1. What was purchased or received by one of the married couple (Clause 1 of Article 36 of the RF IC):

Before marriage or marriage.
During family life as a gift or inheritance after the death of relatives.
Privatized.
Using your own funds (accumulated before the wedding or received from the sale of personal belongings).

2. Municipal apartment where the family lives under a social tenancy agreement.

3. Purchased by one of the married couple using the funds he earned after the spouses actually stopped living as one family, before the divorce was filed (Clause 4 of Article 38 of the Family Code of the Russian Federation).

4. Housing purchased with targeted funds allocated to one of married couple in connection with his professional activities.

5. Personal belongings that are in the use only of the husband or wife (Clause 2 of Article 36 of the Family Code of the Russian Federation).

The exceptions are those that the court will recognize as luxury goods based on their cost and the level of wealth of the married couple.

Yolkin K.E. filed a claim for the division of property between him and his wife Yolkina M.R., the plaintiff’s common property included a sable fur coat worth more than 500,000 rubles. Yolkina M.R. She objected to the division, believing that it was her personal property and could not be divided, and confirmed that family money was spent on its purchase.

When considering the case, the court found that the total monthly income of a family with two young children did not exceed 50,000 rubles. The fur coat was purchased as an investment for the purpose of further resale. Yolkina M.R. I've never worn it. The court considered that for the Yolkin family, a sable fur coat worth more than half a million rubles is a luxury item, and therefore should be included in the property divided between the divorcees.

Children's property

The law determines that parents and children do not have any rights to each other’s property (clause 4 of article 60 of the Family Code of the Russian Federation). Therefore, when dividing the parents’ property, there are no legal grounds for children to receive part of the common property acquired by their parents during the marriage.

There are situations when parents registered some property in the name of their children or opened a bank deposit in the name of a common child (Clause 5 of Article 38 of the Family Code of the Russian Federation). It will not be possible to divide such property or contribution during a divorce, since it will be the property of the child.

If the contribution is made in the name of the child of only the husband or wife, all funds in the account are subject to division according to the law, as common property in a marriage.

Arbitrage practice

Lozhbinsky A.P. asked to divide between him and ex-wife Lozhbinskaya E.D. as common marital property, a monetary contribution in the name of Kupriyanova N.G. He explained that the money was deposited by him and his wife into the account of N.G. Kupriyanova, who is his stepdaughter. Lozhbinskaya E.D. did not agree with this, pointing out that the contribution made in the name of the children should not be divided by law; the ex-husband agreed to open an account in the name of her daughter. At the same time, she confirmed that the spouses’ common money was contributed for these purposes, her husband, her daughter N.G. Kupriyanov. didn't adopt.

The court upheld the claim, pointing out that the law does not divide deposits made in the name of only the common children of the spouses. The contribution was divided between Lozhbinsky A.P. and Lozhbinskaya E.D.

Also, personal belongings of the child or things that were acquired for the exclusive use of children cannot be included in the property divided during a divorce.

When can the property of one of the spouses be divided?

The law establishes Art. 37 of the Family Code of the Russian Federation there are exceptions in which a thing belonging only to a husband or wife can be divided between them upon divorce. This is possible under the following circumstances:

The item has been improved (repaired, reconstructed).
The work was carried out during family life.
Improvements have significantly increased the price of the item.
Improvements occurred due to:

investments of family funds;
investments of the other spouse's sole funds;
personal labor of the other spouse.

Given the combination of all the above factors, such a thing can be classified by the court as community property and divided between husband and wife. Based on the size of investments and improvements made, the share to be allocated to each of the divorcees will be determined.

Debts and loans

Often, by the time a family breaks up, spouses have debts, including loans. The law determines that during a divorce, not only property, but also debts are divided. At the same time, each of the couple is obliged to pay a part of the debt (loans) equal to the share of the marital property transferred to him (Clause 3 of Article 39 of the Family Code of the Russian Federation).

Total debts

Common debts that both spouses are obligated to repay, regardless of whether they live together or not, will be considered debts incurred:

Together by husband and wife.
One of the spouses, but with the consent of the other.
Although without the consent or knowledge of the second spouse, but spent on general family needs.

Features of loan repayment

It is very common for a divorcing couple to have a joint outstanding loan, sometimes with a mortgage. Repayment of such debt obligations after divorce can be carried out in the following ways.

A married couple approaches the bank with an application to divide the loan into two independent ones. Upon receipt of consent, a separate agreement is signed with each spouse, the husband and wife pay off their part of the debt. However, banks very rarely give such consent.
The mortgaged apartment is sold, in agreement with the bank, the outstanding debt is repaid.
The court divides the mortgaged apartment between the divorcing people and recognizes the loan debt as a common marital debt. The court is not authorized to divide a mortgage without the bank's consent.

The loan agreement remains alone; if one of the spouses voluntarily does not pay the loan, the second spouse can independently repay the unpaid part of the payments. After such repayment, the paid amounts are subject to recovery from the unscrupulous payer through the court.

With such a division, if one of the couple pays in good faith, but the other does not, if an overdue loan debt arises, the bank has the right to terminate the mortgage agreement and sell the mortgaged apartment. Therefore, in order to avoid such unfavorable consequences as loss of housing, it is better to pay off the spouse’s debt and subsequently collect the money paid from him.

How is property divided?

Section by law

When dividing common property, the law determines that each spouse owns half of such property (Clause 1, Article 39 of the Family Code of the Russian Federation). However, this rule does not always apply; distribution may be based on other principles.

Section on the marriage contract

Before officially registering a relationship or already being married, a man and a woman can sign a marriage contract, having it certified by a notary (Articles 40, 41 of the Family Code of the Russian Federation). With this document, the parties can determine any order of ownership of everything acquired during the marriage that suits them, as well as the division upon divorce.

Increasing and decreasing shares

By decision of the court, it is possible to change the principle of equal division of marital property.

1. An increase in the share of one of a married couple may be carried out by the court:

To respect the interests of children (for example, when a family has many children, all children live with their mother; in case of disability or serious illness of the child, etc.).
To protect the interests of the husband or wife (their inability to work due to disability or serious illness).
Other significant circumstances to be examined by the court in each situation individually.

2. The court may reduce the share of one of a married couple under the following circumstances:

Spending by a spouse of family funds to the detriment of the family (on gambling, alcohol and drugs, other unreasonable expenses for personal interests).
The spouse did not earn money without any reason, but did not take care of the house and child, and did not suffer from illnesses.

If there is an unequal division on the above grounds, the spouse who received a smaller share cannot count on recovering monetary payments from the other spouse as compensation.

Housing purchased using maternity capital

Often, a family improves its living conditions by spending maternal capital on the purchase of housing. If it breaks up, the husband and wife will not be able to divide such real estate only between themselves.

Important participants in this relationship are children, who also have the right to housing. In this case, the house or apartment will be divided among all family members - the parents and each child receive a share.

Section "indivisible"

Possible in case of divorce various options things section. For example, the right to real estate is divided with the transfer to everyone of a share in the property. It is possible to divide something in kind by transferring it to the husband and wife for each part (for example, a sum of money).

But there are indivisible things that are physically impossible to divide without significant damage or complete destruction. Also, division in kind can lead to the fact that the property will significantly drop in price (for example, collected works, tableware, jewelry or furniture sets, etc.). Recognition of shared ownership is also inappropriate, since due to the special properties of the thing, the joint use of it by divorced people will be difficult.

Such property most often turns out to be a car, furniture, and pets. When dividing such things, the court decides to leave it to one of the spouses and pay compensation to the other, usually half the cost.

When determining which of the couple will receive specific property, the court takes into account who used the divisible item more often, the presence of special rights and skills, and personal attachments.

Arbitrage practice

When dividing the bedroom set between the Konovalov spouses, Konovalov’s husband O.D. asked the court to divide it in kind and transfer ownership of the bed, chest of drawers and bedside tables to him, and to his wife I.T. Konovalova. wardrobe and dressing table. Konovalova I.T. objected, pointing out that with such a division of the set, its cost would significantly decrease, asked to leave the furniture to her, and was ready to pay compensation to her husband.

The court agreed with the position of I.T. Konovalova’s wife, handing over the entire set to her, O.D. Konovalov. received compensation in the amount of half the cost of the furniture.

Payment of compensation

It is not always possible in real life divide the property acquired by the spouses strictly equally. Sometimes there is a situation in which one of the couple received property, the total value of which was greater than what went to the other.

In this case, the court makes a decision that the other spouse is obliged to pay certain compensation to the one who received the property in a smaller amount (clause 3 of Article 38 of the Family Code of the Russian Federation). Moreover, it can be paid either in monetary terms or in another form. For example, how the sole property of the husband or wife is transferred as compensation.

Property valuation

When dividing family property, you may need all or part of the property being divided. This is necessary for the following:

Determining the amount of state duty to pay to a notary in case of extrajudicial division.
Calculation of state duty before filing a claim.
Calculation of compensation to be paid to the spouse.
Calculation of the market price of the property of one of the spouses improved during the marriage.

To calculate notarial or judicial state fees, it is permissible to use data on the inventory or cadastral value of real estate.

In other cases, it is necessary to contact an individual appraiser or a specialized organization for an assessment. It can be carried out both before going to court and during the consideration of the case.

Voluntary partition order

When the husband and wife themselves have agreed to settle all their property issues, they can divide the family property voluntarily, without resorting to the courts.
To do this, the agreements reached must be recorded in writing by concluding a division agreement. This document must be completed exclusively through a notary(clause 2 of article 38 of the Family Code of the Russian Federation).

When drawing up an agreement without notarization, the document will not be acquired legal force. If the ex-husband or wife refuses to comply with his conditions, the property will have to be divided through the court on a general basis.

By agreement, a husband and wife can provide for any conditions for the division of marital property that suit both of them. It is impossible to refuse the division fixed by the agreement without the consent of the other party. If any of the former spouses subsequently refuses to fulfill the obligations assumed in the executed agreement, they may be forced to comply through the court.

Arbitrage practice

Ryumina A.Yu. filed a claim for assignment to ex-husband Ryumina Yu.P. obligations to fulfill the agreement they concluded on the division of marital property, namely the re-registration of an apartment for it and the payment of compensation in the amount of 2,000,000 rubles. for a residential building. Ryumin Yu.P. with requirements ex-wife did not agree, confirming that in the divorce between him and Ryumina A.Yu. an agreement was actually concluded, which was certified by a notary. He explained that he was now married, he has a different family, the conditions of the previously concluded partition are no longer satisfactory, and he does not want to fulfill it.

The court granted the application of Ryumina A.Yu., indicating in the decision that the party that entered into an agreement on the division of property does not have the right to refuse its execution. Subsequent disagreements with previously assumed obligations do not cancel the legally executed document.

Judicial procedure for partition

When a husband and wife are unable to resolve disputes on their own, the common property of such spouses is divided with the help of the court.

Statement of claim

To initiate a lawsuit, a statement of claim must be filed by the husband or wife.

The application must state the circumstances of the case, list the jointly acquired property, and determine what the plaintiff requires to allocate to his property.

Attach copies of marriage and divorce documents, property, and other documents to the claim, depending on the specifics of the situation.

You can draw up an application using a sample or by seeking advice from a lawyer or lawyer.

When filing an application, you must pay a state fee, which is calculated based on the value of the property that the plaintiff asks the court to transfer to his ownership.

Jurisdiction

When the total value of the property claimed by the plaintiff does not exceed 50,000 rubles, it is necessary to submit documents to the magistrate (Article 23 of the Civil Procedure Code of the Russian Federation). If this amount is exceeded, you must apply to the district court (Article 24 of the Civil Procedure Code of the Russian Federation).

By general rules territorial jurisdiction, the claim is filed with the court at the defendant’s residence address (Article 28 of the Civil Procedure Code of the Russian Federation).

Article 29 of the Civil Procedure Code of the Russian Federation establishes the following exceptions:

Filing at the plaintiff’s residence address if claims for alimony are simultaneously filed.
Submission at the location of the property - when dividing such an object.

In the presence of the above circumstances, the plaintiff himself decides which court he will submit his application to.

Limitation of actions

The law establishes that if spouses divorce, then judicial protection their rights when dividing matrimonial property are subject to a statute of limitations of three years (Clause 7, Article 38 of the Family Code of the Russian Federation).

In this case, this period is subject to calculation not from the date of making an official record of the divorce in the registry office or the entry into force of a court decision, but from the day when the spouse learned that his right to property acquired during the marriage was being violated by the other spouse.

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 submitted 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 general rules division of property in case 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.

Tatiana lawyer

Family law relations cover many controversial situations between spouses, both during divorce and during marriage. Most of these situations are of a property nature.

Joint property of spouses

The norms of the Civil Code of the Russian Federation are similar to the norms of the RF IC in relation to the concept and division of property between citizens in a registered marriage and are as follows:

property acquired during a registered marriage is considered the joint property of both husband and wife;
property that was owned by either the husband or wife before the marriage was registered is the property of that person (personal property);
things received as a gift or inheritance during marriage are the property of the person who received them;
objects or things intended for individual use (except for jewelry and luxury items) are the property of the person who used them.

According to the rules of the Civil Code of the Russian Federation, division can be carried out only after the court determines preliminary share each of the owners has the right to such property. At the same time, the rules for determining the share in property are regulated by the RF IC.

Division of property and Civil Procedure Code

Civil Procedure Code of the Russian Federation establishes judicial procedure permissions various types civil disputes, including those of a property nature.

According to the Code of Civil Procedure of the Russian Federation, in the trial there are participants, which the Code of Civil Procedure of the Russian Federation endows with the following procedural properties:

the parties to the dispute act in the proceedings as a plaintiff (applicant) - the party that initiated the legal proceedings, and a defendant - the party against whom the claim is brought;
third parties (citizens or organizations whose rights and interests may be affected when resolving this dispute);
witnesses;
specialists (experts, translators, etc.);
other persons, depending on the complexity and procedural nature of the proceedings.

The Code of Civil Procedure of the Russian Federation regulates not only the judicial process, but also sets requirements to the content of the statement of claim, other documents provided by the parties or participants in the process, the pre-trial procedure for resolving the dispute, etc.

The court carries out certain procedural actions on the brought claim, conducts proceedings in the case and makes decisions, rulings and other procedural documents in the case only in accordance with the rules regulated by the Code of Civil Procedure of the Russian Federation.

Appeals against judicial acts are also carried out in accordance with the requirements and in the manner prescribed by the Code of Civil Procedure of the Russian Federation, incl. appeal, cassation, supervisory, etc.

Questions from our readers and answers from a consultant

I'm filing for divorce. At the same time, I want to divide the home ownership that I bought with my husband. Which articles should you refer to when writing a statement of claim for division?

If there is no marriage contract and agreement on division of property, then Art. 34 and Art. 38 RF IC. These rules establish the common property of husband and wife, as well as the procedure for its division.

The wife filed a claim for division of the apartment. Can I file a counterclaim if this apartment belongs to me by right of ownership, since I purchased it before marriage? And what requirements should I specify for this?

You can file a counterclaim to recognize the apartment as your property (the property of one of the spouses) in accordance with paragraph 4 of Art. 38 RF IC. In addition, it is necessary to provide evidence that the apartment was purchased before the marriage was registered - a purchase and sale agreement, etc., a certificate of ownership.

The division of marital property is a whole complex of complex actions. Necessary:

determine which property is subject to division and which is not subject to division, and disputes are possible here;
estimate the value of property according to certain rules;
provide the court with indisputable evidence to support your position (this is almost impossible without a lawyer);
spend a lot of time and effort on examinations that will determine the value of the property, document the results of these examinations and monitor the correctness of their conduct from a legal point of view;
finally, defend your position in the courtroom.

Let's just start with three examples that clearly show how the division of jointly acquired property is a complex, dreary and controversial legal process.

Example 1: A citizen has an apartment, which he inherited before marriage. During the marriage, he sells this apartment and buys another. It would seem that during a divorce, this purchased apartment cannot be divided, because the citizen bought it exclusively with his own money, with money from the sale of the inherited apartment. It seems that this apartment should remain with the person who bought it. But no, this purchased apartment is subject to division. This is what the Family Code states.

Example 2: Before marriage, the citizen paid the cost of an apartment in a building under construction. And he registered ownership of this apartment later, when he was already married. Who has the right to this apartment during a divorce - the one who paid for it or both spouses? Controversial situation? Yes, it's controversial.

Example 3: When dividing an apartment, a friend/brother/acquaintance of one of the spouses comes to court and brings a promissory note. This receipt indicates that the couple borrowed money to buy this apartment, and the debt has not yet been repaid. If the court divides the apartment in half between the spouses, then they will have to pay the balance of the debt equally. The trick is that the receipt is fake. An agreement between one of the spouses and his friend/brother/acquaintance. But it is almost impossible to prove that this is falsification, even with the help of an examination.

So, what do the laws say about the division of property between spouses?

It is important to know: the common property of spouses is property acquired during marriage. And it doesn’t matter in whose name (husband or wife) it is registered.

To understand everything clearly, you need to know several terms.

Property acquired by spouses during marriage = joint property of spouses = common property of spouses.

It so happens that in Article 34 of the Family Code all 3 terms are used as synonyms. In this article, for convenience, the term “common property of spouses” will be used.

So, the common property of the spouses is considered:

income of each spouse from work and entrepreneurship;
income from the results of intellectual activity;
benefits, pensions, cash payments that do not have a special purpose;
real estate and movable things acquired from general income;
securities, shares, deposits, shares in capital and the like.

The division of property between spouses can be carried out during divorce, before divorce and after divorce. In this case, the limitation period is 3 years. That is, spouses can divorce and divide property without being husband and wife anymore.

Property between spouses must be divided equally (Part 1 of Article 39 of the Family Code).

However, the court may judge differently. If one of the spouses, for an unjustifiable reason, did not receive income during the marriage, did not raise children and did not lead household, then the court, when considering a case on the division of property between spouses, may decide to award this spouse a smaller share of the property than ½.

Example: During the marriage, the husband ran a business, the wife did not work. There is a child for whom the spouse also did not look after, the child was in the care kindergarten and grandmothers. Instead of housekeeping, the wife went to beauty salons and fitness centers. In such a situation, during a divorce, the court has every reason to award the spouse less than ½ of the property, or even nothing at all. But all these facts still need to be proven in court.

The court can also increase or decrease the share of one of the spouses when dividing property, based on the interests of the children (Part 2 of Article 39 of the Family Code).

Example: Family - husband, wife, child. The couple is getting divorced. The wife and child are leaving to join their mother in the province. And there the mother does not have a washing machine. The child needs clean things, they need to be washed. In such a situation, the court, guided by the interests of the child, may award washing machine from common property spouses to the wife, even if such a decision violates the principle of equality of shares.

What property cannot be divided?

It is important to know: in fact, the division of property between spouses is only one of the issues that the court decides. The court also determines who the children will live with and what the amount of alimony will be. Often these issues are separated into independent litigation.

Not all property is divided. Article 36 of the Family Code establishes a list of what is not divided by the court and unquestionably remains with one of the spouses:

property that belonged to one of the spouses before marriage (logical, since the other spouse has nothing to do with this property);
the property that a spouse received during marriage, but through a gratuitous transaction, that is, as a gift or as an inheritance (an apartment that one of the spouses inherited during marriage is not subject to division, it remains to the spouse who inherited it );
personal items - shoes, clothing, hygiene items. But jewelry and luxury items do not fall into this category and are divided on a general basis;
exclusive rights to the result of intellectual activity remain with the spouse who created this result (example: the husband wrote computer program and earned 260,000 rubles by selling it. This money will be divided on a general basis, but the copyright to the program will remain with the husband in full and cannot be divided);
When dividing property of spouses, bank deposits in the name of common minor children, as well as children's things (musical instruments for a child, sports equipment, children's books) are not taken into account. These items remain without compensation from the parent with whom the children will live.

It is important to know: a situation is possible when things that seem to belong to one of the spouses can be recognized as joint property and subject to division. For example, during a marriage, a spouse inherits a dacha. As mentioned above, inherited property is not subject to division. However, if during marriage the value of the dacha has increased significantly, then the court may recognize the dacha as community property (Article 37 of the Family Code). The cost of the dacha could increase if repairs were carried out - for example, a veranda was added, the porch was changed, the roof was replaced, and so on.

In practice, it is very difficult to prove such things. Therefore in divorce proceedings It is very important to have the participation of an experienced lawyer who knows what to do, especially at the stage of events related to the division of jointly acquired property of the spouses.

What to write in a claim and which court should it be filed in?

Attention: Sometimes people, trying to save money, use templates for claims for division of property between spouses, downloaded from the Internet. It must be said that using templates is a big mistake and a sure way to losing in court in any more or less complex process. And when dividing property, using templates is completely contraindicated, because everyone’s property is different and it must be described correctly from a legal point of view. Below we provide the rules for writing a claim for the division of marital property. If you have any questions, please contact us, we will help you.

The rules for drawing up a claim are regulated by Articles 131, 132 of the Civil Procedure Code. 131 is about what to write in the claim itself, 132 is about what attachments to the claim should be.

In the upper right corner, in the “header” it is written to which court the application is being filed, the address of this court, the full name of the plaintiff and the full name of the defendant, as well as the price of the claim - the estimated value of the disputed property, that is, the one that is subject to division.

Below in the middle is written “Statement of claim for division of jointly acquired property.”

when the marriage was registered, whether it was dissolved or whether a claim for its dissolution has just been filed;
add that property was not divided during cohabitation;
list the property acquired during the marriage;
describe what property should become the property of the plaintiff. The court makes a decision on the division of jointly acquired property if there are grounds. Therefore, it is necessary to indicate why this or that property should remain with the plaintiff;
if it turns out that the plaintiff asks the court to leave him property that is worth more than the defendant’s property, then compensation can be offered.

Next comes the pleading part. In the middle of the sheet is written the word “I ask” and the requirements for the court are indicated: to divide the property between the spouses, recognizing the shares as equal, and, if necessary, decide to award compensation to the plaintiff or defendant.

Then a list of attached documents is indicated. Article 132 of the Civil Procedure Code specifies that these must be:

1 copy of the claim for the defendant;
receipt of payment of state duty;
power of attorney for the plaintiff’s representative, if there is one;
a copy of the marriage certificate and its dissolution, if the marriage has already been dissolved;
documents confirming ownership of property - sales contracts, certificates of ownership and others.

It is important to know: the claim is the main document with which you go to court. Requirements can be changed during the trial; this is not prohibited. But if you want to make a good impression on the judge, then the claim for division of property must be drawn up correctly right away. That is, with clear requirements and (most importantly) justification for these requirements. The judge studies the claim before the trial. The judge needs to know what demands the plaintiff is making. Changing requirements during the course of a case because of an incorrectly drafted claim is bad manners and irritates the judge. Experienced lawyers will help you write and legally substantiate your claim - remember that this is one of the most important things in the case.

If the price of the claim, that is, the value of the disputed property, is less than 50,000 rubles, then the claim is filed in the magistrate’s court at the place of residence of the defendant. If the cost of the claim is more than 50,000, then go to the district court.

It is important to know: indicating the price of the claim is one of the most problematic aspects when dividing jointly acquired property. Sometimes the value of property is assessed “by eye”, but if we are talking about a lot of money, then an appraiser is involved.

What state duty should I pay?

Article 333.19 of the Tax Code states that the state duty for the division of jointly acquired property of spouses cannot be less than 400 rubles and more than 60,000 rubles. The specific figure depends on the value of the disputed property:

if the property costs up to 20,000 rubles - the state duty is 4%, but not less than 400 rubles;
if the property costs from 20,001 rubles to 100,000, then the state duty will be 800 rubles + 3% of the amount exceeding 20,000 rubles;
if the property costs from 100,001 to 200,000 rubles, then the state duty is 3,200 rubles + 2% of the amount exceeding 100,000 rubles;
from 200,000 to 1,000,000 rubles - 5,200 rubles + 1% of the amount exceeding 200,000 rubles;
the value of the property is more than 1,000,000 - 13,200 rubles + 0.5% of the amount exceeding 1,000,000 rubles, but not more than 60,000 rubles.

Example: The cost of the property is 134,000 rubles. The state duty will be 3,200 rubles + 2% of the amount exceeding 100,000 rubles. The cost is 134,000, which means that 34,000 rubles exceeds 100,000. 2% of 34,000 - 680. 3,200 + 680 = 3,880 rubles. This is the amount of the state duty.

It is important to know: payment of the state duty can be paid in installments or deferred. To do this, you must submit a corresponding petition along with the claim. But in order for the court to allow the installment plan, strong arguments are needed. Our lawyers will be able to find them for you.

How is a mortgaged apartment divided when dividing property?

The difficulty is that the apartment taken on a mortgage is pledged to the bank that issued the loan. And if so, then any actions with this apartment require permission from the bank.

Practice shows that there are the following options:

The bank agrees to sell the mortgaged apartment. The apartment is sold, the proceeds go to cover the debt to the bank, the remaining money is divided between the spouses by court decision;
the bank agrees to the division of the apartment, each spouse remains his share, payments - in accordance with the share;
the bank does not agree to anything; the payer of the loan remains the spouse who took out the loan. Then the spouses will have to come to some kind of decision, for example, one of the spouses will give up their share in the apartment with appropriate compensation.

How is a car divided?

The car cannot be divided into parts. That is, the car must be awarded to one of the spouses.

When it comes to a car during the division of marital property, the court awards it to one of the spouses, and the other receives compensation in the form of other property or money.

It is important to know: when assessing which spouse should leave the car, the court proceeds from who used it more often and who needs it more. Moreover, the spouse in whose name the car is registered does not receive a preferential right to this car when it is divided.

How are loans divided when dividing property between spouses?

The same as property - equally. Or in accordance with the shares awarded to the spouses. This is stated in Part 3 of Article 39 of the Family Code. And it doesn’t matter in whose name the loan was taken.

Why is it necessary to contact a lawyer?

Because we are talking about property, and therefore about money. When dividing jointly acquired property, it is not enough to have the right to part of this property. This right must be proven. And not just prove it, but do it competently and professionally.
Estimate the value of your family's assets. This is the amount at stake. Imagine that you lost this money, part of the apartment, car, things, having decided to save on the services of a lawyer. This results in poor frugality. There is no need to skimp on a representative in court; anyone who has ever had a trial knows this.
Besides, good lawyer can completely save you from collecting documents, and there are a lot of them when dividing property between spouses. You will also be able not to come to court at all and know for sure that your interests are protected professionally.
You also need a lawyer so that there are no surprises for you. Surprises in court are an unpleasant thing. Some women have the position: “the child remains with me, which means give all the property to me.” Men have their own: “I worked and earned money, so I have the right to everything.” Both positions are wrong. To be clear about the situation, you need a good lawyer.

remember, that legal consultation, which you can easily sign up for by calling or writing in the form below, we are absolutely free and do not oblige you to anything.

The division of jointly acquired property between spouses is like a battle with tactics, with a well-thought-out strategy, everything is serious here. And you need someone who will lead the case and can competently defend your interests in court - a professional lawyer in civil cases. And even if you intend to defend your interests in court on your own, trust our experience - professional free legal advice will definitely not hurt you. Otherwise, there is a very high risk of losing the trial and losing property that legally belongs to you.

We all dream of living happily ever after in marriage and dying on the same day, like Russian heroes. folk tales. But, unfortunately, this does not always happen in life and it happens that marriages end in divorce. This is where the problems begin, since divorce often entails division of property between spouses, and this, as a rule, is an unpleasant and lengthy procedure if you are unable to resolve it by mutual agreement.

How is property divided during a divorce? There are several ways:

1.Nothing to share. However, if the spouses do not have mutual claims during the divorce, this does not mean that they will not arise afterwards.

2. If you still decide to divide and there are no mutual claims about who gets what, you can, bypassing the court, through an agreement, using the services of a notary, who will issue you a certificate of ownership, for which you will have to pay a small state fee. In this case, the shares during the division may not be equal, since the agreement is drawn up based on your personal desires and interests.

3. All controversial issues regarding the division of property are resolved exclusively judicially. At the same time, the truth is that the amount of the duty increases and depends on the value of the property being divided.

4.If available marriage contract, notarized and executed in compliance with all requirements, the division can be carried out without the participation of the court, in the absence of claims. If there are any, the court in its decision takes into account the articles prescribed in the marriage contract.

The procedure for dividing property is carried out in accordance with the Family Code of the Russian Federation (Chapter 7), as well as the Civil Code of the Russian Federation.

What is subject to section:

In accordance with Art. 34 of the Family Code of the Russian Federation, subject to section joint property of spouses, that is, all the property of the spouses that was acquired by them during marriage. In addition to material wealth (movable and immovable property) belonging to spouses, their income from labor, intellectual and entrepreneurial activities, salaries, pensions, fees, cash payments are also subject to division, with the exception of financial assistance, compensation for loss of ability to work due to loss of health, and debts, such as a mortgage on an apartment, are also divided. At the same time, it does not matter in whose name the joint property is registered, as well as in whose name the funds were deposited. In other words, spouses have equal shares and equal rights to the property. However, not all jointly acquired property is subject to division.

What is not subject to division:

The personal property of each spouse (clothing, personal household items, except jewelry) is not subject to division, although it was purchased during the period of cohabitation with common money. Things bought for minor children (clothing, musical instruments, computer, etc.) remain with the spouse with whom the child will subsequently live. Also, the monetary deposits made by the spouses in the name of the child remain with him. Personal property of the spouses, according to Art. 36 of the Family Code of the Russian Federation, is also movable and immovable property that belonged to them before marriage, received by one of the spouses as a gift, or inherited, even while already married. Provided that during the marriage, for common money, or as a result of the labor of the spouses, no major repairs, reconstructions, etc. were carried out that increased the value of this property. At the same time, in court, to recognize property as personal, only documentary evidence (receipts with the date of purchase, agreement, etc.) can be presented; any witness testimony is not taken into account.

I would also like to note that an apartment that was in municipal ownership and was privatized for one of the spouses during the period of cohabitation is not subject to division, if the second spouse refused to use his right to privatization. Although this case also has its own characteristics. According to the Law “On the Enactment of the Housing Code of the Russian Federation” (Article 19), persons who have equal rights to housing with the current owner at the time of privatization have the right to use this living space even after the termination of family relations.

What is the procedure for dividing property and when is it carried out:

Division of property is a procedure that represents the determination of the share of each spouse in the common joint property.

As a rule, the division of property is resorted to either simultaneously with the divorce procedure itself, by submitting, in addition to the application for divorce, the same statement of claim on the division of property. Then both of these applications are considered simultaneously, or after the divorce. True, after a divorce, each spouse is the full manager of the property belonging to him and can dispose of it at his own discretion (sell, donate, exchange, etc.). Therefore, there is no need to delay the issue of division of property.

In accordance with paragraph 2 of Art. 38 of the Family Code of the Russian Federation, the division of common property can be carried out by spouses by agreement. The agreement on the division of property can be notarized at the request of the spouses. All controversial issues regarding the division of property are resolved only in court.

When dividing property, one of the spouses submits statement of claim to the court to determine the share of each spouse from the common property of the family. As a rule, a statement of claim is filed during a divorce, and division of property after a divorce is also possible, and a three-year statute of limitations applies to claims for division of property (clause 7 of Article 38 of the Family Code of the Russian Federation). In this case, only property that was recognized as common and was in the possession of the spouses before the divorce is subject to division. The three-year claim period can be extended if one of the spouses, at the time of division of property, concealed the fact that he had any property. In this case, the three-year period is calculated from the moment when the second spouse became aware of this. Such cases may occur, since not all transactions provide for written permission to be completed by the second spouse.

In addition, the division of property between spouses can be carried out during marriage. In this case, all property acquired by the spouses after the division is their common property and is subject to division after the divorce.

If the spouses begin to live separately, but their marriage is not dissolved, their property acquired separately is still common, although it can be recognized by the court as the property of each of them (Clause 4 of Article 38 of the Family Code of the Russian Federation). But in in this case you will have to provide the court with evidence that you really are not driving general economy and ended their relationship as spouses. For this you will need both documentary evidence, such as letters, and witness statements.

In the absence of a marriage contract, the joint property acquired by the spouses is divided between them into equal shares. However, there may be exceptions if the court takes into account the interests of minors or if one of the spouses did not receive income without good reason (except if he looked after the child or ran the household), or his expenses caused damage to the interests of the family (Clause 2 of Art. 39 of the Family Code of the Russian Federation). The common debts of the spouses are distributed between them in proportion to the awarded shares (Clause 3.Article 39 of the Family Code of the Russian Federation).

If there are minor children in the family, the division of property is carried out in accordance with the Family and Civil Codes of the Russian Federation. According to Art. 17 of the Civil Code of the Russian Federation, all citizens of Russia have equal rights and obligations that begin at the moment of birth. Thus, the child also has the right to own real estate, shares, cash, etc. Moreover, up to 14 years of age, all transactions are made on his behalf, only by parents or persons replacing them, and from 14 to 18 years of age directly by children, but only with the consent of the parents. Naturally, the child receives all these benefits from his parents and relatives. And therefore, parents believe that during a divorce they also have the right to a part of the child’s property. However, Article 60 of the Family Code of the Russian Federation states that a child does not have the right of ownership to the property of his parents, and in turn, parents do not have the right to the property of their children, although they have the right to own and use, by mutual agreement, the property of other family members. Thus, only property that is their joint property and not the property of a minor child is subject to division of property between spouses. In order to avoid infringement of the interests of minor children in the event of alienation of real estate that is the place of residence or the property of a minor child, you will also require the consent of the guardianship and trusteeship authority.

The division of property is carried out in court at the place of residence of the plaintiff, if minor children live with him, and can also be carried out at the location of the property to be divided. Let's also consider the question of what documents need to be submitted to the court for the division of property.

Documents required to submit to court when dividing property:

Statement of claim.
A notarized copy of the marriage or divorce.
Documentary evidence of the existence of property acquired jointly:

Copies of vehicle registration certificates

Certificates of ownership (copies)

Copies of checks, receipts, cash receipt orders proving the acquisition of property during the marriage