Division of acquired property between spouses. How is marital property divided during a divorce? Common debts of spouses

Division of marital property. All possible options for dividing jointly acquired property.

When we get married, the last thing we think about is its material side. It seems that the division of property is not about us, everything will be different for us, not like everyone else. However, according to statistics, in the first 9 years of marriage, 2/3 of married couples get divorced, and with this, problems arise in the division of jointly acquired property. In this situation, it is important to do everything legally correctly.

How to properly divide joint property during a marriage, during a divorce or after a marriage is dissolved; how to do this most advantageously by allowing controversial situation with minimal losses.

Joint property

The joint property of the spouses includes the property acquired during the official marriage. From the first day of marriage registration, common property appears in the registry office - these are wedding gifts, salaries and other income. Everything acquired during the marriage with the common money of the husband and wife is considered their joint property. Joint property also includes money and bank deposits. It does not matter in whose name the property is recorded according to the documents.

The regime of joint ownership of property means that each spouse can equally use and dispose of this property. The consent of the second spouse for transactions with property is not required, with the exception of transactions with real estate or those requiring registration or notarization. In these cases, it is necessary to obtain a notarized consent of the second spouse to complete the transaction.

The second spouse has the right to challenge the transaction by filing a lawsuit in court to declare the transaction invalid on the grounds of lack of his consent.

Personal property of spouses

The joint ownership regime does not apply to the personal property of spouses. This property belongs to each spouse individually, only he can dispose of it. The other spouse may use such property only with his consent.

Personal property includes property acquired before marriage or received during marriage as a gift, by inheritance, or in a gratuitous transaction (for example, privatization of an apartment). The property of each spouse also includes his personal belongings (clothing, accessories), with the exception of jewelry and luxury items.

Personal property can be divided if it is recognized as joint property of the spouses. Such cases arise when, during the marriage, personal property was subjected to serious improvements, significantly increasing its value at the expense of the common funds of the spouses.

Marriage contract

A prenuptial agreement is an agreement that defines property rights and the responsibilities of spouses during marriage and upon its dissolution. In the marriage contract, you can indicate which of the spouses will own specific property, both existing and planned for acquisition in the future.

The marriage contract is drawn up by a notary. It can be concluded before the marriage is registered (in this case it will still come into force after the marriage is registered at the registry office) or at any time during the marriage.

When dividing property in the presence of a marriage contract, the regime of joint property of the spouses is determined precisely by this agreement. A marriage contract can be challenged, it can be changed or terminated by mutual consent of the spouses or in court: .

Division of property during marriage

Spouses can divide joint property at any time after marriage. You can start the division the very next day after the registry office, the main thing is that there is something to divide. The division of property during marriage can be secured by a written agreement of the spouses or the dispute can be resolved in court.

When dividing property during marriage, only the property that is available is divided. Regarding the fate of property that will be acquired in the future, a prenuptial agreement must be concluded. Property acquired by spouses after division will again be considered their joint property.

An exception is the case when the spouses, without officially dissolving the marriage, have actually ended their family relationship. However, if there is a dispute, this circumstance will need to be specifically proven in court.

Division of property during divorce and after dissolution of marriage

After the divorce, all property acquired by the spouses becomes their personal property. Spouses must decide the fate of their joint property. In this case, it is possible to conclude a written agreement between the spouses or division of property through the court. You can write.

The law stipulates that the statute of limitations for dividing marital property is 3 years. Please note that this period begins to run not from the moment of divorce, but from the moment when the second spouse learned or should have learned about the violation of his right. Thus, if during the divorce the question of the fate of some thing was not resolved, then the second spouse can make claims on it even after a considerable time. Perhaps if you miss it for good reasons.

The procedure for dividing property

To divide property, it is necessary to determine the composition of the property, its value, the share of each spouse, and establish which spouse will receive specific property.

The composition of jointly acquired property is determined by the transfer of this property. Property must exist in kind, there must be a real possibility of dividing this property.

The value of the property is determined at the time of its division. It doesn’t matter at what price these things were purchased, what their market value is. Spouses have the right, by mutual agreement, to determine absolutely any value of the property they own. If it is difficult to agree on the value of property, you can use the services of an independent appraiser or the market value of these things.

As a general rule, it is assumed that the shares of spouses in jointly acquired property are equal, ½ share for each. The size of the shares does not depend on which spouse earned how much. The spouse who was involved in the household has the same rights to property as the spouse who brings income to the family. This rule can be waived by agreement of the spouses. An obvious condition for changing this rule would be a situation where one of the spouses spent the common property not in the interests of the family (drank, spent on drugs, lost in gambling), or did not receive income for unjustified reasons.

Division of property by agreement of spouses

The simplest and most obvious option for spouses is to divide property by agreeing among themselves peacefully. In this case, a written document is drawn up - an agreement on the division of property, which is signed by the spouses. Such an agreement can be certified by a notary.

In the case of real estate, it will be necessary to obtain state registration of the transfer of ownership. In the case of vehicles, it is necessary to resolve the issue of deregistration and registration during re-registration.

Division of property in court

If there is no agreement on the division of property peacefully, disputes are resolved in court. Before going to court, it is also necessary to determine the composition of the property to be divided, evaluate it, determine the shares of the spouses, as well as to whom what property will be transferred. In the event of a legal dispute, the plaintiff independently determines all of the listed positions, while it should be taken into account that the defendant may not agree with the claim, file or write.

When considering the case, the court will take into account the need for the property and the interest in its use of each of the spouses, who primarily used the specific property and was the initiator of its acquisition. For example, the car will go to the spouse who has the right to drive. When dividing expensive things that cannot be divided in kind, for example, real estate (apartments, houses), the court will most likely determine the regime of shared ownership of these things.

Division of common debts of spouses

When dividing property, the common debts of the spouses are also subject to division. The size of the debts will correspond to the size of the spouses’ shares when dividing joint property. If the shares of the spouses are recognized as equal, then all debts are divided in equal parts.

It should be borne in mind that only real, already incurred debts of the spouses are subject to division. If there are joint obligations (credit agreement or loan agreement), they can be divided between spouses only with the consent of the lender (bank or borrower). If there is no such consent, then the obligation must be fulfilled by the spouse indicated in the contract. After repaying the debt, he has the right to recover his share from the second spouse.

Division of property in a civil marriage

We examined in detail the issues of dividing the property of spouses who officially registered the marriage with the registry office. But what about those citizens who simply live together without signing, the so-called cohabitation or civil marriage? In this case, the regime of joint ownership does not apply. The Family Code of the Russian Federation does not apply to such relationships.

In this case, legal relations arise that are regulated by the provisions of the Civil Code of the Russian Federation on shared or individual property of several persons. The property becomes the property of the person in whose name and at whose expense it was acquired.

If one of the cohabitants put off all the time life together money, living on the support of the second “spouse”, and then purchased an expensive item (for example, a car or an apartment) in his own name, he will be the sole owner of this item.
To avoid negative consequences, cohabiting citizens can be advised to document all their relationships. The purchase of all things with joint money should be registered as shared ownership in order to avoid problems later.

Divorce and the subsequent division of property is one of the most problematic and controversial cases that lawyers and ordinary citizens have to deal with. Despite the fact that the main provisions regarding the division of property are enshrined in law in Article 38 of the Family Code and Article 256 of the Civil Code, this does not reduce the number of difficulties.

Dear readers! Our articles talk about typical ways to resolve legal issues, but each case is unique.

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Sample statement of claim

The statement of claim is submitted to the court office. There are recommended forms for filing a claim, they can be found at the information stand in the courtroom or requested from the office. You can also entrust the preparation of a court application to a specialist.

The statement of claim must include:

1. name of the court;
2. information about the plaintiff and the defendant;
3. information about marital status;
4. data on property, grounds for possessing the disputed property;
5. the cost of the claim (the total value of all property);
6. specific requirements.

You can use this sample application for division of property: Download.

Required documents

Along with the claim, you will need to provide the following documents to the court:

1. your passport;
2. passport or birth certificate of the child or children;
3. a document certifying marital status - a certificate of marriage or divorce, or a court decision or an extract from a court decision, if the certificate has not yet been ordered;
4. certificate of family composition;
5. assessment of the disputed property (ordered from an independent appraiser);
6. receipt for payment of state duty.

Payment of state duty

The amount of the state duty is established by Article 333 of the Tax Code and depends on the value of the claim. The higher the cost of the claim, the higher the state duty. It will need to be paid before filing an application with the court; if you wish, you can include a claim for reimbursement of legal costs in your claim. If the claim is filed with the mutual consent of the spouses, then they must pay the state fee in equal amounts.

Conclusion

In order for all the information presented in the article to form an overall picture, we recommend viewing it again in this structured form:

This is a kind of cheat sheet for the division of property. Examples from judicial practice.

Good afternoon, dear readers of my blog!

Working in legal advice on family issues, I've seen enough of everything. Every day I get to help people resolve complex issues that arise during family disputes. Most often, people turn to me for clarification regarding jointly acquired property. Today I want to tell you about what is not subject to division in case of divorce.

What is considered joint property?

Let's clarify what exactly is meant by the concept<совместно нажитое имущество>?

Article 34 of the Family Code of the Russian Federation and Article 256 of the Civil Code of the Russian Federation state that any acquisition made by spouses at the time of marriage is considered joint property.

In this case, it does not matter whether one spouse worked or both.

Also, the following are considered joint property:

• bank deposits;
• all types of real estate;
• stock;
• shares in various companies.

During the division of property, it does not matter to whom it is registered. In case of divorce, the division of property is carried out in equal shares between the spouses. This rule applies, except for the cases of a marriage contract, which clearly indicates what property goes to each spouse upon divorce.

The division of property can occur voluntarily. In this case, an agreement is drawn up between the spouses, certified and presented during the divorce hearing.
The division of jointly acquired property can be made not only during divorce. If one of the spouses has incurred debts, then bailiffs can initiate the division of marital property to allocate his share in order to pay them off.
I would like to clarify that debts are also divided equally between spouses. Loans, mortgages - after a divorce, each spouse is required to pay half of the monthly payment on existing obligations. If the debts of one of the spouses arose as a result of a court decision in criminal or civil proceedings, then they cannot be divided between the spouses and are the personal obligations of the person.
You should also remember the statute of limitations for filing an application for division of property. It must be submitted within three years from the moment of divorce. If this is not done, you will have to restore the filing deadline through the courts.

What is not subject to division during a divorce?

So, we have figured out what relates to the joint property of spouses. There are also some types of property that are not subject to division and are assigned entirely to one of the spouses.

Let's take a closer look at what this property is:

• property acquired or received as a gift by one of the spouses before marriage;
• valuables received by one of the spouses at the time of marriage under a gratuitous transaction - as an inheritance, gift, during privatization;
• service living quarters. Square meters of commercial real estate leased are also not divided between spouses;
• personal belongings of spouses - clothes, shoes, cosmetics and other items that can only be used by one person. Exceptions include jewelry and other luxury items;
• royalties received during the sale of intellectual property;
• it is impossible to divide an indivisible thing that is used by one of the spouses;
• complex items used by one of the spouses to earn money are not divided;
• insurance payments received by one of the spouses;
• Any types of property acquired in the name of children are not subject to division;
• Property assigned to one of the spouses in a marriage contract cannot be divided.

If the spouses separated and one of them acquired some valuable thing, then in order to retain his right to own it, he must confirm the following:

• fact of separation;
• lack of joint farming.

How is property divided if you have children?

The legislation does not provide for the allocation of a mandatory property share to children at the time of their parents’ divorce.

All property recorded in the name of the child remains his property and is not included in the mass of divided property. Such values ​​are assigned only to the minor and are transferred to the parent with whom the child remains. Parents do not have property rights to items purchased for the needs of a minor.

Such items include:

• child’s clothes and shoes;
• educational supplies;
• Sports Equipment;
• books and furniture;
• cash deposits registered in the name of the child;
• instruments for music practice.

The second spouse cannot expect to receive compensation for the children's property, even if he becomes aware of its sale.

If, during the divorce of parents, property recorded in the name of a minor child is alienated, then the guardianship and guardianship authorities must necessarily participate in this process.

Without the consent of such authorities, the allocation of a mandatory share for a child is impossible.

Resolving difficult situations during divorce

In accordance with the law, the division of property between the ex-husband and wife is carried out in equal proportions. But, in some cases, exceptions may apply to it. Now I will tell you about them in more detail.
Given certain circumstances, the judge may deviate from general rule division of property in equal proportions. In this case, the principle of increasing or decreasing the share of property is applied.

An increase in the share of property assigned to one of the spouses is possible in the following situations:

• minor children remained living with the spouse;
• the spouse has a degree of disability or illness that arose during the marriage;
• payment by one of the spouses of common debt obligations.
• If one of the spouses led household, was engaged in raising common children, then he has the right to receive a common marital share.

A reduction in the property share is possible if the following facts are proven:

• one of the spouses did not want to work without good reason;
• antisocial behavior of one of the spouses led to the emergence of joint debt obligations;
• one of the spouses was careless with the property of the other spouse, which resulted in the loss or damage of valuables.

I would like to note that in addition to reducing or increasing the marital share, it is possible to divide marital property acquired before marriage.

Let's take a look at the most difficult cases of division of premarital property:

• if one of the spouses had pre-marital savings, but spent them after registering the marriage on joint property, then it can be divided equally between the spouses. To do this, you must provide evidence confirming movements in your bank account;
• evidence is also required in cases where unequal parts of marital funds were invested in the common purchase;
• if the inherited property received by one of the spouses has been significantly improved, then the second spouse has the right to a share in it if he provides evidence confirming his expenses;
• if one of the spouses sold items of jointly acquired property without the consent of the second spouse, then such a transaction can be challenged in court.

What to do if property<потерялось>before section

I want to tell you about the most common trick used by unscrupulous spouses who do not want to part with jointly acquired values. Most often, property can be taken out of the apartment to relatives or friends and it can be very difficult to prove its presence. To prevent this from happening, it is necessary to make an inventory of the things in the apartment. It is necessary to indicate all the things that were in the living space, their properties and color. Indicate the state of wear and tear and the average market value of the items listed in the inventory.

The contract must reflect the date and place of its preparation. The inventory must be signed by both spouses.

If one of them avoids signing, then you can ask to certify the property list of uninterested parties - neighbors, colleagues and others. It is better to accompany the process of compiling an inventory with photos or videos.
If one of the spouses is not allowed into the premises, then the task becomes a little more complicated. First of all, it is necessary to record this fact. If the locks on the premises have been changed, the second spouse can call a locksmith and remove this obstacle. If the second spouse a good relationship with neighbors, it would not be amiss to record their testimony on this fact in writing.
I would like to talk in detail about cases of concealment by one of the spouses of joint property. There are often cases when purchased real estate or cars are registered in the name of the closest relatives of one of the spouses. Such property can be included in the total mass of jointly acquired assets, having previously challenged the fictitiousness of the transaction in court.

To do this, you will need to provide the following evidence:

• funds for the acquisition of the disputed property were allocated from the general budget of the spouses;
• the owner of the property does not have the opportunity to purchase it;
• the owner of the disputed property does not have the skills and needs to use it;
• these objects were used and maintained by the family.

When challenging the fictitiousness of such transactions, the paperwork on the division of property is suspended and resumed after a court decision is made regarding the disputed objects.
In conclusion, I would like to note that the division of property is a rather complicated procedure, especially if the spouses have not come to a common agreement. To represent your interests during the division of property, it is better to use the services of a specialist in family disputes. In this way, a person will be able to make a competent division of joint values ​​and protect himself from possible mistakes.

About the division of property during divorce in the video:

Common sense and the law will help spouses avoid hassle and petty grievances when dividing property

Photo ITAR-TASS/Interpress/Vladimir Bertov

Another star couple - Evgeny Petrosyan and Elena Stepanenko - appeared at an unpleasant stage of matrimonial relations: on Monday, August 6, the claim for the division of property between them will be considered by the Khamovnichesky Court of Moscow. The bad news was confirmed to the Parliamentary Newspaper in the court reception room. Experts in family litigation, however, suggest not to rush things and “not to divorce” the heroes of gossip columns, since even after such a bitter procedure the parties may not dissolve the marriage.

Everything is fair

Leaving behind the scenes the reasons for the extreme turn in the life together of the 72-year-old comedian and the 65-year-old Honored Artist of Russia, we must admit that they will soon have to pass a difficult test. The division of property is a serious matter that requires patience and endurance.

To prevent the process from devolving into a fight between Shura Balaganov and Panikovsky due to an unfair division of money, the Civil and Family Codes contain norms that should guide married couples in such situations. It doesn’t matter whether we are talking about an official divorce or simply a desire to separate, while formally remaining spouses. This is provided for in Article 38 of the RF IC, which states that the division of joint property is possible not only after the divorce, but also during it.

The property rights and obligations of husband and wife are covered in more detail in Chapters 7-9 of the RF IC. First of all, we are talking about the joint property of the spouses, that is, about real estate, vehicles, things that were purchased at the stage family life.

What property can be divided

Securities, shares, deposits, shares in capital contributed to a bank or other credit and commercial organizations and purchased with family money are also considered the common property of spouses. If spouses have purchased animals, they are also their joint property.

According to the Family Code, any property acquired by spouses during marriage using common income is their joint property, regardless of who it was acquired for or which of them contributed the money, and is divided in half.

For example, if a car purchased with joint funds is registered in the name of the spouse, it is still considered joint. The same scheme applies to cash. For example, if the deposit was opened in the name of the spouse, but the money was contributed from the family budget, all this money with interest is common property.

Prenuptial agreement or court?

“The parties resort to dividing common property through the court if there are difficulties and there is a dispute between spouses regarding property. In court, each spouse presents their own demands. The court takes into account wishes, but if the parties do not reach a consensus, it can distribute the property equally by a strong-willed decision,” the expert explained to Parliamentary Gazeta.

The final stage of property division comes down to the judge’s verdict, which sets out which specific property remains with whom. If we are talking about real estate, then in accordance with the court decision, changes are made to Rosreestr, Litvinov clarified.

If the parties show prudence and peacefully agree to give up the family screen in exchange for the mother’s chest of drawers, then you don’t have to go to court and formalize the division of property by agreement of the parties.

The parties resort to dividing common property through the court if there are difficulties and there is a dispute between spouses regarding property.

The value of the property is calculated based on its current market price. If a spouse definitely wants to inherit his beloved Mercedes from the marriage, and the spouse does not object, then he is obliged to pay compensation. The spouses can agree on its size themselves or call an appraiser. This is usually how cars, household appliances and Jewelry. Compensation does not have to be paid immediately, but can be paid in stages.

It must be remembered that all borrowed funds are removed from the bankruptcy estate. If, say, a spouse has several million rubles in his account and he can prove that he borrowed them from a friend, then the spouse cannot count on this money. An apartment inherited by one of the spouses during marriage is also exclusively personal property and is not subject to division. But credit obligations taken by a husband or wife for the purchase of equipment or a car are divided equally during a divorce.

How to draw up a statement of claim to the court for the division of property

In the statement of claim for the division of joint property, you must indicate:

• details of husband and wife (full name, residential address);
• data on marriage (date, place);
• data on minor children born in marriage;
• a list of property that the husband and wife intend to divide;
• ownership of property (personal or joint);
• who initiated the acquisition, who contributed more, who uses or needs the property more, who lays claim to the property;
• the value of joint property.

How should joint property be divided?

The statement of claim must be accompanied by a receipt for payment of the state duty, as well as documents confirming the fact of acquisition of the property (indicating the date, place, cost, registration), ownership (personal or joint). In addition, the following documents must be attached:

• passports of husband and wife;
• marriage certificate, birth certificate of children;
• certificate of family composition;
• contracts and certificates of ownership of property.

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 married life together.

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

• The salary received by each member of a 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 property, it must be acquired after the registration of the relationship and during the life of the husband and wife together using their common family funds.

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

1. 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).
2. It doesn’t matter how much each of the couple earned during their married 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).
3. 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 M.R. Yolkina; 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:

1. The item has been improved (repaired, reconstructed).
2. The work was carried out during family life.
3. Improvements have significantly increased the price of the item.
4. 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:

1. Together by husband and wife.
2. One of the spouses, but with the consent of the other.
3. 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.

1. 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.
2. The mortgaged apartment is sold, in agreement with the bank, the outstanding debt is repaid.
3. 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 a 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:

1. Determining the amount of state duty to pay to a notary in case of extrajudicial division.
2. Calculation of state duty before filing a claim.
3. Calculation of compensation to be paid to the spouse.
4. 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

Filing is required to initiate legal proceedings. statement of claim 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:

1. Filing at the plaintiff’s residence address if claims for alimony are simultaneously filed.
2. 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.