Divide property between wife and husband. Division of property: everything you need to know before a divorce. Application for the division of property to file with the court

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

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

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

It's fast and FOR FREE!

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

General information

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

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

• through the registry office;
• through the court.

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

In situations where one of the spouses does not agree to a divorce, the other has the right to apply to the court for recognition of the marriage as invalid.

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

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

Conclusion of an agreement

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

In such a situation, the parties simply agree among themselves on who receives what part of the property, after which the agreement is documented.

An agreement on the division of property is an official document, where:

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

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

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

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

Judicially

When people fail to find a compromise solution on the procedure for dividing joint property, then this issue can be resolved through the courts. Both spouses can file a claim.

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

Required documents

To file a lawsuit, you will need the following documents:

• two samples of the statement of claim;
• certificate confirming the conclusion or dissolution of marriage;
• property rights documents;
• results of expert appraisal of property value;
• document on payment of state duty;
• other documents constituting the evidence base.

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

Claim Form

Dispute resolution in judicial order is possible only in a situation where one of the parties submits a statement of claim with requirements to the other party to the dispute.

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

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

Compilation of the statement of claim must be carried out in accordance with strictly established rules.

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

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

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

It's fast and FOR FREE!

In 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.

When dissolving a marriage, one of the most important problems is the division of property, because it has a number of features. How does the process of division of property in a divorce take place, and what will be required for its implementation? The answers to these questions can be found below.

What is to be divided?

The first and important aspect of the division of property upon dissolution of marriages is that only jointly acquired property is subject to division. This refers to the property that was purchased in the process of being married. These may include:

• Real estate - apartment, garage, cottage, etc.
• Movable property - cars.
• Appliances.
• Together earned income.
• Securities and shares.
• Bank deposits.
• Jewelry, ornaments, etc.

What property is not shared?

Property that does not fit the definition of "acquired jointly" cannot be divided. Specialists in the field of jurisprudence distinguish the following categories of property that will not be divided:

• Things that belonged to one or the other spouse before marriage.
• Anything purchased with personal property.
• Rights to the results of individual creativity (copyright or patent law).
• Donated or inherited property, as well as the property that was received in another gratuitous way.
• Payments received for personal insurance.
• Items that are not shared (clothes, jewelry, medicines, etc.).
• Compensation received for personal damage (damage to health, property, moral damage, etc.).

There are cases when property not subject to division passed into the status of "jointly acquired". To do this, it is necessary to modernize, transform this property in some way, for example, complete the construction of a house, make repairs in it, etc.

How is the property on loan divided?

Property that is on credit may be divided as follows:

• Equally divided between spouses is the same as debt on a loan.
• If one of the spouses receives most of the property, then he undertakes to pay most of the remaining debt (see also -).
• If the property was mortgaged from funds belonging to one of the spouses before marriage or as a result of inheritance or donation, then this amount is withdrawn from the total mass of joint property, and the rest is divided equally.

Features of the division of property

Consider a number of other nuances of the division of property:

• The procedure for the division of property can be implemented both in a judicial proceeding, as well as independently. The choice of the appropriate method is made by the husband and wife.
• The division of property is carried out in accordance with the acts of the Family, Civil and Civil Procedure Codes of the Russian Federation.
• The division can be made both in the form of the property itself (for example, shares of an apartment), and in monetary terms. To implement the latter option, the property is sold, and the money is divided in appropriate shares.
• Cars almost always have to be sold: both spouses must receive 50% of the cost of the car.
• The division of property includes not only profit, but also losses, since loans are also subject to division. In this case, the loan can be divided into parts equal to the shares of inheritance.
• If there is a common child, then it is necessary to take into account his share in the division of property. In addition, the calculation of alimony payable is also taken into account.

As for the timing, it is very important to start the division of property as soon as possible after the divorce. So in the course of the proceedings there will be fewer questions and difficulties. In addition, the longer it takes after the divorce, the more the plaintiff will lose, because the property will age and significantly lose in value.

When to go to court?

If it was not possible to reach a peace agreement, the spouses can file a claim for the division of property at the place of residence, location of real estate or at the place of residence of the plaintiff, if he lives with minor children. You can apply to the court while you are married or divorce proceedings as well as after a divorce.

If the price of the claim is from 50,000 rubles, then the case goes to the city or district court, and if less, to the world court.

What documents to submit to the court?

When applying to the court, you must present the following documents:

• Statement of claim + power of attorney, if the application is submitted by an authorized person.
• Certificate of marriage, divorce (if any), birth certificate of children (if any).
• Property papers.
• Appraisal papers.
• Receipt for payment of state duty.

Application for the division of property to file with the court

The claim must be drawn up correctly, in accordance with existing legislative requirements. Let's consider them further:

• The application must indicate the full names of both spouses and the reason for the dissolution of the marriage. This information must be supported by supporting documents (certificate of marriage and divorce, as well as a copy of the plaintiff's passport). These data are indicated at the beginning of the application.
• After that, the list lists all the property that was acquired jointly. Each of the points is confirmed by the relevant documents - the right to own an apartment, documents on the purchase of a car, etc. Often, the indicated paragraph also indicates the total value of the jointly acquired property.
• Then the plaintiff must indicate what property, in his opinion, should be transferred in whole or in part to his property (and the property of the spouse) and on what grounds.
• It should also be emphasized that the plaintiff agrees to recover compensation in monetary terms if the defendant refuses to give up the property.
• At the end of the application, a list of attached documents is listed in writing, a date is put with a signature.

Here is an example of such a claim:

Video: Lawyer's comments on the division of property in a divorce

The end of a marriage is accompanied by a serious problem - the division of property, which almost all spouses face. It is very important to be aware of your legal framework in order to be able to sue your own. How to do this, the following story will tell:

So, in a divorce, only jointly acquired property can be divided. If the parties fail to conclude a peace agreement, then they will have to go to court by providing an appropriate application and documents. The court will consider the statement of claim, determine the divisible and indivisible property. After that, it will be decided in what shares to divide the divisible property.

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 advisers - 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 is 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 court.

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.

Ask a lawyer for free!

Briefly describe your problem in the form, lawyer FOR FREE will prepare an answer and call you back within 5 minutes! We will solve any issue!

Ask a Question

Confidentially

All data will be transmitted over a secure channel

Promptly

Fill out the form and a lawyer will contact you within 5 minutes

Most often, it is real estate that becomes the subject of the most fierce dispute in the division of joint property. There is only one reason for this - this is the most expensive and often the only property that each of the spouses wants to possess.

What property is subject to division?

As a general rule and the provisions of Art. 34-36 of the Family Code of the Russian Federation, all the property of the spouses acquired in marriage can be divided in equal shares, except in cases where the court has the right to deviate from the equality of shares in the interests of minor children.

For the division of real estate after a divorce, the property to be divided must meet the following requirements:

• It must be purchased after the marriage date;
• The joint funds of the spouses must be used for its purchase.

Divorce during the division will be subject to any property acquired in compliance with the above conditions, including:

• Apartments, dorm rooms, communal apartments;
• Individual residential houses, dachas, cottages, residential temporary housing;
• Land plots, including agricultural land or land for individual housing construction;
• Garages, outbuildings;
• Commercial real estate, non-residential premises, industrial buildings;
• Other objects inextricably linked with the earth.

What is not divided in a divorce

Property that is not subject to division as jointly acquired property is:

• Received by one of the spouses, subject to the refusal of the second spouse from the right to privatization;
• Privatized in equal shares for each of the spouses (even after the divorce, they will retain the right of ownership on the same conditions and in the same shares);
• one of the spouses with registration of rights to it;
• Presented to both spouses with registration of the right of common shared ownership;
• Inherited by law or will;
• Acquired with the personal (donated, inherited) funds of the spouse;
• Acquired by spouse before marriage;
• Is .

In almost every case, exceptions are possible that give the second spouse the right to demand recognition of ownership of a share in real estate. This may be an investment of a significant amount of own funds in the improvement of real estate, its reconstruction, overhaul, etc. All of these issues are subject to judicial review.

How to share if there are children

The presence of joint minor children can significantly affect the procedure for dividing real estate.

Due to the special status of minors, whose interests are subject to special protection, it is important to pay attention to the following nuances when dividing real estate:

• immovable property, among the owners of which are minor children, is not subject to division without the participation of guardianship and guardianship authorities;
• it is impossible to divide real estate registered in the name of any of the children;
• it is impossible to deprive a minor child of his only place of residence by dividing the property, or significantly worsen his living conditions during the division.

An example of deteriorating conditions might be the recognition of the right to an apartment in a large city for the father of a child, while a young child remains with his mother, whose only home is a house without amenities in the province. In this case, there is a clear violation of the interests of the child.

Compliance with these requirements is carefully monitored by the guardianship and guardianship authorities, whose involvement in legal proceedings in case of infringement of the interests of minor children is mandatory.

When resolving a dispute about property, the court may deviate from the principle of equality of shares (part 2 of article 39 of the RF IC) in order to respect the interests of a minor child.

Note: The court MAY, that is, the right, but is not obliged to increase the share of the parent with whom it remains minor child. You can insist on increasing the share in the common property due to the difficult financial situation or the child's need for special or additional care.

In addition, the courts take into account the interests of children when dividing property in equal shares, determining to whom what property should be transferred.

For example: The court can leave the apartment for the ex-wife if minor children remain with her. The rest of the property will be transferred to the husband or compensation will be paid, the amount of which can be reduced, taking into account the provisions of Part 2 of Art. 39 of the RF IC on deviation from equality of shares.

Also, in the interests of the child, other property can be transferred in favor of the spouse, for example, a car, if the child is disabled or his place of study is located at a considerable distance from his place of residence.

No property bought or donated to children (even if it is not subject to registration, such as furniture, expensive toys, etc.) can be presented for division. It is the property of the children.

How to divide property in a divorce

The legislation allows for several ways of dividing real estate by spouses after a divorce. The simplest and most beneficial for both parties was and remains a voluntary division procedure, which will significantly save on court costs.
Alas, in the absence of the consent of the second spouse, the dispute will have to be resolved in court.

Marriage contract

A marriage contract is an agreement between spouses (including future spouses) concluded by them to determine the regime of joint property of the spouses.

This agreement allows the spouses to regulate in detail the regime of joint property, providing for both the use and disposal of property during marriage, and its further fate after the divorce.

In case of dissolution of the marriage and if there is a marriage contract, the provisions from the document concluded by the spouses will apply when dividing the real estate. Spouses can establish a rule of shared ownership (i.e. registration of any property in shared ownership), registration of all property to one of the spouses, as well as conditions under which one of the spouses will not have the right to a share in common property (for example, treason or immoral lifestyle).

A prenuptial agreement may not include conditions that directly contradict the principles of family law or restrict the husband or wife in their legal capacity. Such conditions will not be valid and may be challenged in court.

Agreement

After a divorce, a husband and wife can voluntarily determine the division of real estate by entering into an appropriate agreement. To give this document legal force, it must be notarized.

In the agreement, the parties have the right to divide real estate and other property in any convenient and convenient way for both parties.

The agreement may provide for the following options for the division of real estate:

• Distribution of property by shares;
• Payment of compensation by one of the spouses on account of the value of the share of the second spouse (for example, when an apartment or house is completely transferred to one of the spouses);
• The procedure for the sale of real estate and the division of proceeds from the sale of funds;
• Transfer of property to one of the spouses, offsetting the value of the property already owned;
• Transfer of property to one of the spouses in exchange for property owned or donated (inheritance).

Simply put, spouses are free to decide how to divide the property after a divorce and choose options for distributing existing assets. The main exception: the accepted version of the section should not violate the interests of third parties and minor children. Otherwise, such an agreement may be challenged through the courts.

Spouses I. during the period of marriage acquired a 3-room apartment with an estimated value of 2 million rubles. After the divorce, they decided to voluntarily divide the acquired property. Ex-wife I. insisted on transferring the apartment to her property, but instead of compensation in the amount of 1 million rubles, which she would have been obliged to pay to her ex-husband by law, she offered him to take ownership of her personal 1-room apartment, inherited from her mother, and estimated at approximately at 1.2 million rubles. She preferred to write off the difference of 200 thousand rubles in favor of her husband, who independently did repairs there some time ago. The second spouse agreed to this version of the section.

In the example above, the spouses decided the fate of the jointly acquired real estate, compensating for its value at the expense of personal property. If both parties are satisfied with such a division option, the law does not prohibit the conclusion and execution of such an agreement.

Through the court

When an agreement cannot be reached, the only option for dividing the property of the spouses will be to go to court.

To initiate a judicial procedure for the division of real estate, one of the spouses must file a claim with the court. The procedure and rules for filing a claim, the requirements for its content and applications are prescribed in Art. 131-132 Code of Civil Procedure of the Russian Federation.

The claim must contain the following information:

1. Address and full name of the judicial authority;
2. Names and addresses of the parties to the case, contact information;
3. Circumstances of the dispute: date of conclusion and dissolution of marriage; the existence of a dispute; the reasons for the dispute;
4. Characteristic data on real estate: its location, area, details (cadastral number, inventory number); the cost and the procedure for its determination (estimated, purchased under a contract, inventory, cadastral, etc.), other data;
5. The plaintiff's proposals for the division of property, their rationale, references to arguments and evidence;
6. A demand addressed to the court indicating the property that the plaintiff wants to keep;
7. Date, signature.

At the same time, a claim may be made to recognize real estate as jointly acquired property if there are disagreements about its legal status. Such a requirement should be listed first, and only then the remaining requirements should be stated.

Also in the statement of claim, after the plaintiff and the defendant, it is necessary to indicate third parties whose interests are affected by this process.

As third parties in cases of division of real estate after a divorce, there may be:

• Guardianship authorities, if the division of property affects the interests of minor children;
• Participants in shared ownership, if the co-owners are persons other than spouses;
• Banks and credit organizations in cases where the divisible property is pledged and (or) purchased from them;
• Tenants of real estate when dividing commercial real estate and when submitting claims for its sale with the subsequent division of funds;
• Other persons whose rights and interests may be affected.

Documents confirming the circumstances of the dispute and all the arguments given by the plaintiff are attached to the claim.

Features of the judicial division of real estate

The judicial procedure for the division of real estate implies a complete and comprehensive study of all the circumstances of the case. The evidence presented by the parties and their persuasiveness are of key importance in the outcome of the trial on the division of the spouses' real estate.

The most important thing during the trial is to maintain composure and self-control. It is best to entrust the litigation to an experienced lawyer - a representative who will take care of all the subtleties of this difficult case. Our experts are ready to advise you on the division of property absolutely free.

Particular attention should be paid to the court ruling on the preparation of the case, which the plaintiff receives after the judge has accepted his application. Perhaps it will be an ordinary formal document, but in some cases it will contain a kind of reminder of what the court will require from the plaintiff. Also, there may be reflected actions that need to be performed or documents that need to be submitted.

Jurisdiction

The claim for the division of real estate is filed at the location of this property.

If several real estate objects are involved in the division, then the claim must be filed at the location of the largest number of them or at the location of the most expensive real estate object.

This rule is exclusive and cannot be changed at the will of the plaintiff in the case.

Limitation periods

The limitation period is the period during which a person whose rights and interests have been violated can apply to the court for their protection.

For cases on the division of real estate, the general limitation period established in Art. 196 of the Civil Code of the Russian Federation, which is 3 years from the day when the spouse found out or should have found out about the fact of violation of their rights and freedoms.

With regard to cases on the division of real estate, the limitation period can be calculated both from the moment of divorce and from the moment when the rights and interests of the spouse were actually violated.

Article 38 of the IC of the Russian Federation states that if the marriage of the spouses is dissolved, then a three-year limitation period is subject to their claims. At the same time, the Plenum of the Supreme Court of the Russian Federation in its resolution of November 5, 1998 N 15 (as amended on February 6, 2007) clarifies that the starting point for calculating the limitation period should be the date when the spouse found out or should have found out about the violation of his rights .

In some cases, based on the law enforcement practice of the courts, the limitation period for the division of real estate can be calculated:

• From the moment of refusal by the second spouses in the voluntary division of acquired property;
• From the moment of revealing the property that can be recognized as joint;
• From the date of sale of such property by one of the spouses, if the other spouse knew about the sale.

The defendant must declare the application of the limitation period. The court has no right on its own initiative to refuse a claim due to the expiration of the limitation period.

Expertise in real estate division cases

The consideration of cases on the division of real estate almost always entails the appointment of at least one construction, technical, land management or other expertise. Expertise can only be carried out by specialists of both public and private institutions who have a special permit and the necessary level of experience and education.

In relation to real estate, the following questions may be asked to experts:

• The possibility of a real division (allotment) of a real estate object (for example, a house);
• Property value (assessment);
• The possibility and cost of redevelopment / restructuring / division of a residential or non-residential facility;
• Other questions that may arise in court.

Initially, the examination is appointed at the expense of the person who filed the petition, however, it can be evenly attributed to the expense of each of the parties. Based on the results of the consideration of the case, all expenses incurred are divided in proportion to the satisfied requirements.

Note: In case of disagreement with the results of the examination or if there are doubts about its objectivity, the second party in the case has the right to apply for the appointment of a repeated or additional examination at its own expense. The court, taking into account all the circumstances, may either grant such a request or reject it.

Property valuation

When determining the market value of real estate during its division, it is necessary to take into account many different factors.

If the division is by agreement of the parties, the spouses can use both the value for which the disputed property was bought and the value confirmed by the valuation report.

In a court of law, a real estate appraisal is mandatory, unless the defendant acknowledges the claim and agrees with the declared value of the property. The appraisal must be carried out by a specialized organization or a private appraiser who has the appropriate license.

When filing a claim, you can specify:

• value in the form of the purchase price of the property;
• average market value based on advertisements in the press or on the Internet;
• cadastral value (for land plots).

In case of any disputes, we recommend enlisting the advice of an experienced lawyer. The real estate section is replete with many different subtleties and nuances, which is almost impossible to understand without legal experience. Our specialists are ready to advise you free of charge at any time convenient for you.

Section terms

The term for consideration of cases on the division of real estate of spouses may significantly exceed the fixed period for civil cases in general.

Procedural terms

• 2 months - for consideration of the case in court;
• 1 month - for the entry into force of the decision.

Thus, the maximum procedural period for considering a case on the division of real estate is 3 months.

However, in reality, this period can be much longer, especially if an expert examination is appointed by the court and the proceedings are suspended. The procedural term is frozen, but the real one can drag on from a couple of additional months to six months.

Arbitrage practice

The most common in the judicial practice of the Russian Federation court decisions in cases on the division of real estate are:

• Recognition of the rights of one of the spouses to real estate, with the imposition on him of the obligation to pay the value of the share in the amount of money to the second spouse;
• Real division of real estate with recognition of the right in the order of common shared ownership;
• The exclusion of real estate from divisible property due to the fact that it was bought before marriage, inherited, donated or acquired with personal funds.

Example: Plaintiff S. filed a lawsuit for the division of an apartment purchased by the defendant six months before the marriage, indicating that she took an active part in its repair and maintenance, thereby insisting on recognizing it as jointly acquired property. The court dismissed S.'s claim, explaining that during the meeting there was no evidence of an increase in the cost of the apartment purchased before marriage, during the marriage the plaintiff did not work and did not take any active actions that led to an increase in the value of the property. In this regard, the apartment is not subject to division and is the defendant's personal property, acquired by him before marriage.

• Due to constant changes in legislation, by-laws and judicial practice sometimes we do not have time to update the information on the site
• Your legal problem in 90% of cases is individual, so self-protection of rights and basic options for resolving the situation may often not be suitable and will only complicate the process!

Therefore, contact our lawyer for a FREE consultation right now and get rid of problems in the future!

Ask an expert lawyer for free!

Ask a legal question and get a free
consultation. We will prepare an answer within 5 minutes!