The divorce process is the division of property. Division of property of the spouses at the dissolution of marriage. Learn how to appeal a court decision

One of the most common problems in a divorce is the division of property, especially if a sharp dispute arises between the spouses regarding property rights. It happens that expensive items are purchased by a husband and wife together during their married life, but are issued only to the husband. Or vice versa - the husband is the legal owner of the property, but the wife makes claims on the basis of marital relations.

In this article, we will try to understand the difficult question - how to divide property if its owner is a husband? If after reading the article you have additional questions or need clarification, please contact the portal's legal advisors - personal advice is provided free of charge.

The right of joint property of spouses

According to the family law of our state, the spouses are the owners of everything that was acquired during a registered marriage. Moreover, the shares of spouses in joint property are equal. Even if the husband was in business and made purchases in his own name, while the wife was engaged in housework and childcare, they will be equal co-owners.

It does not matter which of the spouses earned the money, who concluded the transaction, in whose name the acquisition was registered. In a divorce, marital property must be divided equally.

As an example, we can cite the widespread situation when, when registering the ownership of real estate in the USRR register, only one of the spouses is indicated as the owner. At first glance, it may seem that an apartment bought in marriage belongs only to the husband or wife, since it is indicated in the registration documents. But it's not. If the property was purchased during marriage, the spouse not listed in the Rosreestr documents has the same rights as the spouse listed in the registration documents. You can prove this in court by presenting as evidence - a marriage certificate and a contract of sale (or other document of title), confirming the fact of acquiring real estate during marriage.

However, in the process of divorce, the question often arises - how to divide the property if the husband is the owner? It is possible to call the husband the sole proprietor only in exceptional cases, which we will consider below.

Exceptions. When is the husband the sole proprietor?

So, in accordance with Russian law, everything that was acquired in marriage belongs to the husband and wife on an equal footing. The only exceptions are cases where only one of the spouses is the sole owner, in particular ...

• Personal items (except for luxury items, jewelry) - even if it was acquired during marriage;
• Property acquired by the spouse before marriage;
• Property that was received as a gift - even during marriage;
• Property inherited by will or by law - even during marriage;
• Property acquired during marriage, but with funds that belonged to the spouse before marriage or received during marriage under a gratuitous transaction (under a donation agreement, by inheritance);
• Real estate that has become the property of a spouse as a result of primary privatization.

Ownership of a privatized apartment

It is worth talking about the ownership of privatized real estate in more detail.

If the privatization of real estate took place even before the registration of marriage, the sole owner of the apartment is, in this case, the husband. A wife cannot claim an apartment privatized by her husband, even if she lived in it during the marriage. According to the Housing Code, the wife must change her place of residence after the dissolution of the marriage.

If the privatization took place already during the marriage, the situation is somewhat different. So, if the wife lived or was registered in the apartment, but refused to be privatized, she does not have ownership of it. Only the husband will be the owner of the privatized apartment. But the wife has the right to live in it, and on a permanent basis, although without the ability to dispose of this property.

If the spouses privatized the apartment together, they are equal owners of real estate

Disputed questions about the ownership of property

In addition to the above cases, in which the ownership of one spouse is practically indisputable, disputes often arise. The court decides whether the property belongs to both spouses in equal or unequal shares or only to one of the spouses by the right of personal property.

These situations include the following…

• The acquisition was made during an officially registered marriage, but during the acquisition period, the spouses did not live together, marital relations between them were terminated. If this can be proved in court, the ownership of the property purchased in such circumstances will remain with the spouse who acquired it;
• If the divorcing spouses have minor children who, after the dissolution of the marriage, remain to live with their mother or father, the court may increase the share of this parent in the process of dividing property, that is, to carry out an unequal division in order to protect the interests of children;
• A decrease in the share of one of the spouses is also possible. The reason for such an unequal division may be the fact that during the time of cohabitation this spouse, without good reason, did not receive income or unreasonably spent the family budget. This issue is also considered exclusively in judicial order.

note! We are not talking about those fairly common cases when the wife does not work (often at the insistence of her husband), but she does housekeeping, takes care of the children, while the responsibility for the financial support of the family lies entirely with the husband. In such cases, the shares of the spouses in the jointly acquired property will be equal - 50 to 50. But if there have been circumstances such as regular unreasonable spending, gambling losses, alcohol or drug abuse, refusal to get a job without good reason - you can demand a reduction in the share such spouse in court.

It should also be mentioned that the conditions for the division of joint property may differ from those provided for in the Family Code of the Russian Federation in the event that a marriage contract was concluded between a husband and wife. Spouses have the right to provide for any conditions of possession, use and disposal of joint and personal property, which was acquired before marriage, will be acquired during marriage. The distribution of shares and division of property in a divorce - occurs in accordance with the terms of the marriage contract. But this does not mean that in the event of a dispute, the husband and wife do not have the right to go to court.

How to divide marital property

If matrimonial property is subject to division, despite the fact that it is registered in the name of the husband, it can be divided in the following order:

1. Determination of shares of co-owners;
2. Cost estimate;
3. Section in proportion to shares.

Well, if there is an opportunity to divide the property in kind. For example, a wife gets a city apartment, a husband gets a car and a garage. Sometimes, even if there is only one property object, for example, a house, it is also possible to carry out a division in kind - to redevelop the house and divide it into equal parts with separate exits and communication nodes. A large land plot can also be divided into two plots and re-registered for two new owners.

But it is far from always possible to carry out a division in kind. If we are talking about indivisible property, for example, a country house or a one-room apartment, the spouses provide several alternative ways to divide:

• Sale of property and division of proceeds from the sale of money;
• Transfer of property to the ownership of one of the spouses, payment of monetary compensation to the other spouse in an amount proportional to his share.

Good afternoon, dear readers of my blog!

Working at a family law office, I've seen a lot of stuff. Every day I have to help people solve complex issues that arise during family disputes. Most often, people turn to me for clarification about jointly acquired property. Today I want to tell you about what is not subject to division in the event of a 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 the spouses at the time of marriage is considered joint property.

At the same time, it does not matter whether one spouse worked or both.

The following are also 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. During a divorce, the division of property is carried out in equal shares between the spouses. This rule applies, except in cases where there is a marriage contract, which clearly indicates what kind of property goes to each spouse upon divorce.

The division of property can take place 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 in case of divorce. If one of the spouses has incurred debts, then the bailiffs can initiate the division of marital property in order to allocate his share in order to pay them off.
I want to clarify that the debts are also divided equally between the spouses. Loans, mortgages - after a divorce, each of the spouses is obliged to pay half of the monthly payment on existing obligations. If the debts of one of the spouses have arisen as a result of a court decision in criminal or civil proceedings, then they cannot be divided between the spouses and are personal obligations of a person.
You should also remember about the statute of limitations for filing an application for the division of property. It must be filed within three years from the date of divorce. If this is not done, then you will have to restore the deadline for filing in court.

What is not subject to division in a divorce of spouses

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

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

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

If the spouses have separated and one of them has acquired some valuable thing, then in order to retain his right to her possessions, he needs to confirm the following:

• fact of separation;
• lack of joint management.

How is property divided when there are children?

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

All property registered in the name of the child remains in his property and is not included in the mass of property to be divided. Such values ​​are assigned only to a 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.

These items include:

• clothing and footwear for the child;
• educational supplies;
• Sports Equipment;
• books and furniture;
• cash deposits in the name of the child;
• musical instruments.

The second spouse cannot count on providing compensation for the children's property, even if he becomes aware of its sale.

If during the divorce of parents the 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 the child is impossible.

Dealing with difficult divorce situations

In accordance with the law, the division of property between the former 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.
Under certain circumstances, the judge may deviate from the general rule of dividing 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 stayed with the spouse;
• the spouse has a degree of incapacity for work or an illness that arose during the marriage;
• payment by one of the spouses of common debt obligations.
• If one of the spouses ran a household, was engaged in raising common children, then he has the right to receive a common marital share.

Reduction of the property share is possible if the following facts are proved:

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

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

Let's get acquainted with the most difficult cases of the division of premarital property:

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

What if the 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 existence. To prevent this from happening, it is necessary to draw up an inventory of the things that were in the apartment. It is necessary to indicate all the things that were in the living room, their properties and color. Indicate the state of wear and the average market value of the items listed in the inventory.

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

If one of them evades signing, then you can be asked to certify the property list of disinterested persons - neighbors, colleagues and others. The process of compiling an inventory is best accompanied by a photo or video.
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 fix this fact. If the locks have changed in the room, then the second spouse can call a locksmith and remove this obstacle. If the second spouse a good relationship with neighbors, it will not be superfluous to record their testimony on this fact in writing.
I want to tell you in detail about cases of concealment by one of the spouses of joint property. It is not uncommon for acquired real estate or cars to be registered with the next of kin of one of the spouses. Such property can be included in the total mass of jointly acquired valuables, 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 acquire 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.

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

About the division of property in a divorce in the video:

Not every marriage is a happy one. In some situations, conflicts arise between the couple, which ultimately lead to divorce.

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In some situations, the question arises of how the division of property takes place. Usually this procedure takes some time and requires knowledge of legal aspects.

Causes

If, after the divorce process, the former spouses do not have any claims against each other, then they may not share anything.

However, in cases where there is disagreement over jointly acquired property (acquired during married life), a division operation may be required.

There are different ways to divide property:

• through the court
• through an agreement;
• by marriage contract.

Law

Family law 2020, namely 34 Art. The RF IC makes it clear that it is possible to share objects acquired in marriage.

Article 39 of the RF IC states that when dividing property, the process itself is governed by the principle of equality between husband and wife.

All issues related to the division of common property must be resolved within a 3-year period after the divorce.

What is to be divided?

In accordance with family law, the following property can be divided after the breakdown of a marriage:

• real estate;
• securities;
• auto;
• furniture;
• jewelry;
• luxuries;
• fees, etc.

It is noteworthy that the former spouses after the divorce process can also divide the debts.

The wife and husband have an equal right to the property that was acquired during the marriage.

There are, however, a number of objects that cannot be separated. So, they include personal items of the spouses, items belonging to their minor children and household items.

How is property divided?

The division of property is an operation associated with the allocation of the shares of the wife and husband and the division of property purchased during marriage, in accordance with these shares.

Between spouses

Property can be divided between husband and wife even while their marriage is not dissolved. In this situation, you can draw up a division of common property by drawing up a marriage contract or.

In the event that the husband and wife have made a division of property and ceased cohabitation with each other and the conduct of a common household, then they will need evidence of personal ownership of the acquired property.

In the absence of such, the objects will already be considered, and in the event of a divorce, they will be subject to division.

Jointly acquired

• on the division of property;
• about divorce.

Both these claims will be considered together or in turn.

After divorce

In some situations, spouses do not share property along with the divorce.

In this case, even after the divorce proceedings, they retain the right to divide the common property.

If there are children

Property acquired for a child under the age of 18 remains with him after the division of the property of his parents. Parents have no right to take any part of their property from a child.

Likewise, the child himself also has no right of ownership of property belonging to his parents in the absence of their consent.

Loans and debts

In the event of a divorce, debts are also divided between husband and wife. They depend on the shares that the court will assign to the spouses. However, this section does not include personal debts.

Mortgage apartment

This document must include the following information:

• information about husband and wife;
• data on the conclusion and dissolution of marriage;
• a list of objects purchased in marriage;
• evidence that the property belongs to the general.

State duty

When submitting documents to the court, you must pay a state fee. Its size depends on the value of the property claimed by one of the parties.

In some cases, the judge may establish a discrepancy between the data and offer the plaintiff to pay part of the state duty.

The court's decision

How does the court act in such matters:

1. Identifies among the property personal and common.
2. Determines the shares for each spouse. Initially, the shares are considered equal. But if there is a marriage contract, and it provides for other conditions, then the shares may not be assigned equally.
3. The court awards property to the spouses in accordance with the assigned shares. In most cases, there are indivisible objects that are awarded to one of the spouses, and he undertakes to pay compensation to the other.

Limitation period

Spouses are given a 3-year period to resolve issues related to the division of property.

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

This is for me, this is for you

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

Article 34 of the Family Code of the Russian Federation states that all property that the spouses acquired during the marriage will be considered their joint property. This is the income from labor activity, and cash deposits, and securities, and shares in a business, as well as all material assets, from apartments and cars to plates and spoons. It does not matter in whose name they are issued, they will be considered general. Even if one of the spouses did not work constantly and did not have his own personal income.

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

• received under a donation agreement,
• inherited (read more about how Is inheritance divided in divorce? read ),
• items for personal use (clothes, shoes, hygiene products..), excluding jewelry and luxury items,
• the result of individual intellectual labor.

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

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

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

When dividing jointly acquired property after a divorce, spouses often fall into two tricks:

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

Agreement on the division of property

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

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

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

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

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

It is advisable to use the services of competent lawyers when drawing up this document, after all, the issue of division of property during a divorce is very complex and ambiguous.

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

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

How is the division of property in a divorce in court

The division of property through the court can be made after the submission of the relevant statement of claim. You can submit it:

• along with the divorce petition,
• during the divorce proceedings,
• after divorce.

It is necessary to take into account when filing an application-claim for the division of property after a divorce, the statute of limitations. After registering the dissolution of marriage, the spouses have only three years, during which they have the opportunity to file a claim for the division of common property. Then the limitation period expires, and the court simply will not accept such a statement from them.

Disputes about the division of property are resolved by a justice of the peace, if the value of the claim is not more than 50,000 rubles. In other cases, it will be considered by a court of general jurisdiction (city or district) at the place of residence of the defendant or the location of the disputed property.

According to the established over the years judicial practice The division of property in a divorce occurs in equal shares between the spouses. A rare judge will go into details of the financial difficulties or needs of the spouses, in most cases, he, according to the law, will divide the jointly acquired property in half. If this is not possible, then the spouse who received a larger share will have to pay compensation to the second.

Do you know that

The right to joint property is not determined by the person to whom the property is registered and acquired. If the spouse (s), for good reasons (housekeeping, childcare, etc.), had no income, then he can also claim joint property.

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

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

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

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

That is why it is advisable to hurry up with the division of jointly acquired property after a divorce or resolve the issue of seizing it in court so that an unscrupulous spouse cannot turn it in his favor before a court order.

Documents for the division of property after a divorce

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

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

How is the division of property in a divorce after a court decision

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

Some facts

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

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

Let it be as it is

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

Therefore, it is necessary to resolve the issue of the division of property in a timely manner and put all the dots over the “i” in order to avoid problems in the future.

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