Divorce and division of property. How property is divided when spouses divorce This is for you, this is for you again, this is for you all the time...

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.

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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.

IN statement of claim You will definitely need to indicate:

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 mutual consent spouses, then they must pay the state duty 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.

Most often, former spouses divide joint property after a divorce. If the married couple still maintains normal relations, then the division occurs peacefully, in accordance with oral agreements or by voluntary agreement; if the relationship does not allow an agreement, then they resort to division through the court. Many people have a question: how many years after a divorce can joint property be divided?

What is subject to division

Not everyone knows what property can be divided and what cannot be divided under any circumstances. All property that a married couple acquired during marriage is subject to division, namely:

• real estate (residential premises, land plots, garages, dachas);
• all vehicles;
• joint business, shares, deposits, other monetary assets;
• Appliances;
• furniture;
• antiques and other luxury items.

But in addition to assets, liabilities are also subject to division, the most common of which are loan obligations to banks and other credit institutions.

In cases where the couple no longer lives together, but the divorce has not yet been formalized, all property acquired by the parties during their separation is also recognized as joint property and is subject to division, unless it is proven that the other party did not take part in the acquisition of the property.

As well as debt obligations of one of the spouses acquired during marriage, but during the period of separation, unless it is proven that all the funds borrowed were spent by only one of the spouses.

But not all property that both spouses used during the marriage can be divided. Personal property of spouses is not subject to division, namely:

• acquired by one of the spouses before marriage;
• received as a gift;
• inherited.

The belongings and property of minor children are not subject to division, even if they are of considerable value. All children's property is transferred to the parent with whom the child owner remains.

But, as with every rule, there are some exceptions here too.

For example, if a spouse, after a divorce, but before the division of property, sold an expensive fur coat, purchased during marriage, but having the status of personal property, then after its sale the spouse has the right to half of the proceeds from the sale.

Is it possible to apply for division of property after a divorce?

In accordance with Russian legislation, spouses can divide property:

• married;
• in the process of divorce;
• after the official divorce.

Thus, it is not necessary to deal with the division of joint property in parallel with the divorce, especially since divorce proceedings occurs much faster than the division of property. but the division should not be delayed too much, especially since the legislation has established a limitation period of three years.

How long after a divorce can property be divided, deadlines for filing an application

Many couples believe that the statute of limitations is set starting from the date of divorce, and if 3 years have passed since the divorce, then the law prohibits filing a claim for separation, but this is far from the case.

The Civil Code of the Russian Federation determines that the limitation period for property claims for division of property begins from the date when the plaintiff learned of the violation of his property rights.

In other words, former spouses may not have to deal with the division of property at all, as long as they are satisfied with the existing order of things, they can live in a common house for years, use a joint car and not feel disadvantaged.

For example, after a divorce, spouses Olga and Nikolai R. did not divide the house, which belonged to them in equal shares, but agreed that the ex-husband would live in one half of the house, and ex-wife- in another. Both were satisfied with this arrangement for using the property until Olga remarried five years later. Her husband began to demand that Nikolai vacate the half of the house he occupied, since he was disturbing the young married couple, and things came to a point of mutual insults and assault.

Nikolai filed a claim for division of the house, while he asked the court not to actually divide the house, but to leave it as the property of Olga, who in return should pay him half the cost of the house. The court fully satisfied his demands.

Thus, as long as no one's property rights are violated, there is no basis for filing a claim for partition, the statute of limitations does not begin. But as soon as there is a violation of the property rights of one in favor of the other, the injured party has three years to file a claim for division.

What is considered a violation of the right to joint property

In accordance with the law, the following is considered a violation of the right to joint property:

• obstruction or complete restriction of the use of joint property;
• any disputes about the procedure for using joint property;
• sale, donation or other alienation of joint property registered in the name of one of the former spouses;
• incurring expenses for maintaining joint property by one of the former spouses and completely ignoring these expenses by the other.

Missing the statute of limitations

It is not uncommon for citizens to miss the statute of limitations. In this case, the injured party no longer has the right to demand the division of joint property, except in exceptional cases. The law recognizes such exceptional cases as:

• serious illness of the plaintiff;
• his helpless situation
• other significant circumstances.

In this case, the above reasons can be considered valid if they occurred within the last six months of the statute of limitations.

It is necessary to keep in mind that there is no clear criterion for determining certain reasons as valid in the law; the decision in this case is made by the court, so you should not delay the claim if the defendant violates your property rights.

The court has the right to restore missed deadlines for the division of property after a divorce, but for this it needs good reasons, For example:

1. Severe long-term illness, because of which the plaintiff could not go to court. This disease must be confirmed by a medical certificate.
2. Family circumstances. This could be caring for a seriously ill relative, death loved one, birth of a child, etc.
3. Personal circumstances. These include long business trips, conscription into the army, and imprisonment.
4. Other reasons. The court may accept ignorance of the law, illiteracy, or poor command of the Russian language as a valid reason.

It must be remembered that the above circumstances must occur over a long period of the statute of limitations, at least six months before its expiration.

In order to extend the period for filing a statement of claim, the plaintiff must file a statement of claim for its restoration, which must indicate:

• when the plaintiff learned about the violation of his property rights;
• for what reason did he miss the deadline to go to court?

The claim must be accompanied by all documents confirming the reason for absence specified in the application, these can be:

• child's birth certificate;
• certificate of illness;
• death certificate confirming relationship with the deceased;
• military ID;
• certificate of release from prison;
• other documents.

How is property divided after divorce?

The RF IC provides two options for dividing property for couples who have divorced. This:

1. Voluntary division order.
2. Division by court.

How to divide marital property after divorce by agreement

Allows you to avoid a lengthy trial and apply an individual division procedure. A mandatory condition for the execution of an agreement in accordance with the law is its certification by a notary office. This, firstly, allows one to avoid any manipulation by one of the signatories, and secondly, it does not allow it to be terminated or changed without the consent of both parties.

To sign the agreement, the former spouses must have the following documents with them:

• passports;
• marriage and divorce documents;
• title documents for joint ownership.

The text of the agreement must include the following information:

• place and date of signing the agreement;
• personal information about signatories;
• information about the dates of marriage and divorce;
• a list of all property that is being divided and information about the procedure and order of division;
• signatures of all parties.

How to divide jointly acquired property after a divorce through court

If the ex-spouse is against any division and it is not possible to divide the property peacefully, you will have to file a claim in court. When dividing with the help of a court, the procedure is much more complicated and lengthy.

Filing a claim

A statement of claim for the division of joint property after a divorce is drawn up on a standard A4 sheet of paper. The text of the document must be written in legally competent language and must not contain grammatical or stylistic errors. The text of the claim must contain:

1. Fable. There should be information about the dates of marriage and divorce and the essence of the disagreement.
2. Circumstances, according to which the plaintiff is forced to go to court. These may be descriptions of violations of the plaintiff's rights by the defendant.
3. Claim. Here the plaintiff describes how he sees the partition problem being resolved.
4. List of attached documents. It is necessary to list with number all the documents that the plaintiff attaches to the claim.
5. Signature and date.

The plaintiff must attach a package of documents to the statement of claim, namely:

1. A certificate from the registry office about the place and time of marriage between the defendant and the plaintiff. Upon divorce, the certificate of its conclusion is confiscated, so such a certificate will confirm that the parties were previously married.
2. Divorce document.
3. Copies of passports of the parties to the process.
4. Documents confirming the right of joint ownership of divisible property.
5. Receipt for payment of state duty.
6. Other required documents.

Procedure for filing a claim

According to the general judicial rule, a statement of claim is filed with the district court at the defendant’s place of residence, but this is only if movable property is subject to division. In situations where real estate is divided, jurisdiction changes, the claim must be filed in the court within whose jurisdiction the house or apartment is located.

State duty

The state fee in cases of division of property must be paid by the plaintiff in the case. During the trial, this amount may be recovered from the defendant, provided that the court satisfies the applicant's claims.

The amount of the state duty is calculated in accordance with the price of the claim, in turn, the price of the claim is usually half the cost of all property proposed for division.

Table 1. Calculation of state duty on a claim for division of joint property

In cases where the plaintiff reduces the amount of the claim during the trial, the court recalculates the amount of the state duty and returns the overpaid amount to him, but if the price of the claim increases, the court will require additional payment of the missing amount.

The court may allow the plaintiff to pay the state fee in installments or provide him with a deferment in payment if the plaintiff can prove his difficult financial situation; in some particularly difficult situations from a financial point of view, the court may even reduce the amount of the state fee.

Moreover, in accordance with the Tax Code of the Russian Federation, some categories of citizens are generally exempt from paying state duty, these are:

• disabled people of the first and second groups;
• combat veterans;
• some other categories.

Arbitrage practice

The courts often hear cases regarding the division of joint property after a divorce; sometimes more than one year passes from the divorce to the division of property. And almost always the basis for the claim is a violation of the property rights of one of the former spouses.

For example, after a divorce, the husband left for another city, the wife and child remained to live in the apartment. They verbally agreed that the ex-husband would not claim their joint property, and she, in turn, would not demand alimony from him. But five years later, the ex-husband returned and said that things were going badly for him and he would live in their shared apartment.

In such a situation, the three-year limitation period began from the moment of return ex-husband and the woman has every right to file a claim for the division of joint property, and since the ex-husband does not fulfill the agreement, also for the collection of alimony.

Often the reason for division several years after a divorce is the alienation of joint property by one of the former spouses.

For example, Nina and Mikhail P., while married, bought a three-room apartment, which they registered in their husband’s name. After the divorce, they agreed that Nina and the children would occupy two rooms, and Mikhail would live in the third. They maintained good neighborly relations with each other; Mikhail helped his ex-wife with their children.

But ten years later, when the children grew up and moved away, Mikhail sold the apartment secretly from Nina, thereby violating her property rights.

In this case, the statute of limitations begins from the moment Nina learned about the sale of the apartment. She has the right to file a claim for the division of proceeds from the sale of real estate, or a claim for invalidation of the purchase and sale transaction, unless Mikhail proves that the property was purchased with his personal funds.

The longer the interval between divorce and division of property, the more difficult the process of dividing common property becomes. Over the years that have passed since the separation, the former spouses have acquired new, personal property instead of the previous, joint property; checks and receipts confirming joint rights to property may be lost. A vehicle purchased during marriage could be involved in an accident, joint real estate could be overhauled and its value thus significantly increased.

In such cases, only an experienced lawyer will be able to deal with all the nuances, who will be able to separate joint property from personal property, help to competently draw up a statement of claim, restore any lost documents and evidence, find witnesses, and, if necessary, represent your interests in court.

Usually, after the spouses decide to divorce, they immediately begin to divide everything that was purchased during the marriage. And here they often face problems. They cannot figure out where is personal property, where is joint property, what should be done for division in the first place, and what should not be done under any circumstances, how to draw up a statement of claim, what documents are needed for division. Questions grow like a snowball.

Main factors influencing the division of property

Nowadays, when divorce and division of property have long become commonplace, lawyers have developed certain algorithms for action in various circumstances that simplify this procedure. The division of marital property during a divorce depends on a number of factors:

• mutual consent or, conversely, disagreement of one of the spouses to divorce and division;
• terms of the marriage contract (if any);
• minor children;
• procedure for acquiring property;
• some other conditions.

The division of joint property can occur both during the divorce process and after it, when the dissolution of the marriage has already occurred. Both cases have their pros and cons.

In case of simultaneous divorce and division of property:

1. The divorce process can drag on indefinitely - this is a minus.
2. Former spouses will not have time to hide or sell part of the joint property in order to hide from division - this is a plus.
3. Both processes take place in parallel, so the costs for lawyers and other legal costs are reduced - this is a plus.

When dividing property after the divorce process is completed:

1. You can calmly start collecting documents and preparing for the division procedure - this is a plus.
2. It is important not to miss the statute of limitations - this is a minus.
3. Some unscrupulous spouses try (and sometimes they succeed) to sell (sell, donate) part of the joint property in order not to divide it; as a result, the second spouse remains deprived - this is a minus.

How is property divided during divorce?

In accordance with family law, all property acquired by spouses during marriage is considered joint and is subject to division equally. These are the so-called “ideal shares”.

But there are a number of circumstances in which the court deviates from equality of shares and determines the share of one of the spouses to be greater than the share of the other. Such an unequal division is possible in cases where:

• minor children remain with one of the spouses, and his financial situation leaves much to be desired, in which case his share may be larger;
• one of the spouses led an immoral lifestyle, spent joint funds to satisfy his unseemly needs (drank or lost money, spent it on drugs); in this case, the court may reduce his share.

The legislation defines two main ways of dividing joint property, depending on what legal regime they choose, these are:

1. Legal regime for the division of joint property.
2. Contractual regime.

Let's look at each of them.

Legal partition regime. Based on the legislative definition of equality of the parties, in which all joint property must be divided equally except for the personal property of each of them.

Contractual regime. Involves the conclusion of a marriage contract or a voluntary agreement on the division of joint property. In both the first and second documents, the spouses can deviate from the equality of the parties and determine what property and in what volume will go to one or another spouse after the divorce.

What property is divided, what property is not subject to division

Often, when dividing joint property, spouses have no idea what property can be divided and what property cannot be divided and make mistakes.

What is shared

If you view judicial practice, then it becomes clear that expensive property is most often divided:

• real estate;
• vehicles;
• luxuries;
• antiques.

It should be remembered that only joint property is subject to division, that is, only what was acquired by the spouses during marriage using joint funds.

What cannot be shared

The law determines that all personal property of spouses is not subject to division. What can be classified as personal property? This:

• all property acquired by each spouse before marriage;
• real estate, vehicles, other types of property purchased during marriage, but with the personal funds of the husband and wife;
• property received by one of the spouses as a gift or inherited;
• everyone’s personal belongings with the exception of expensive ones, for example, antique jewelry;
• property purchased for children, for example, a computer purchased for a child’s lessons or an expensive musical instrument purchased for his training.

Where to start a divorce with division of property

First, let's look at when is the best time to start the divorce and separation process.

When to start divorce and separation

As practice shows, as soon as the spouses realized that living together becomes impossible, you need to begin the process of divorce and parallel division of joint property. The sooner you begin the divorce process and division, the greater the chance of retaining and subsequently receiving the property due to you.

The more time passes after separation, the less chances you have to prove that you are right - some documents are lost, receipts and checks are lost, witnesses forget some facts, morally unscrupulous spouses hide or sell joint property, transfer property to relatives or friends. There are often cases when it is not possible to return what was lost.

The second reason why you shouldn’t delay the division is that things, real estate or a vehicle wear out, age, and, accordingly, lose value.

The third reason is the statute of limitations. Of course, the legislation provides a certain time period for filing a claim for division (three years), but situations are different, you can miss this period, then division will be impossible.

Where to start a divorce with division

The process of divorce and separation begins, naturally, with the official dissolution of the marriage. There are three ways to get a divorce:

1. At the registry office. Divorce is possible if the couple has no children or they are already adults. The application is submitted to the department where the couple registered the marriage or at the place of residence of either spouse.
2. In the magistrate's court. Divorce is possible if there are no disputes about the place of residence of the children after the divorce, and the disputed property costs no more than fifty thousand rubles.
3. In the district court. The court will not only dissolve the marriage, but will also decide which parent the children will remain with, and if a parallel claim is filed for the division of joint property, it will also divide the property.

Where to start a divorce in court

First you need to collect all the documents and evidence. You will need receipts, checks for goods, purchase and sale agreements. At this stage, the main task is to collect all the evidence of your contribution to the acquisition of the disputed property.

There are several nuances associated with the partition procedure:

1. All property purchased by a married couple after marriage and before the actual termination of the marital relationship is considered joint property. If the spouses separated long before filing an application for divorce and during this time one of them acquired an expensive property, then he must prove that there was no life together during the period of its acquisition and the purchase was made with personal funds.
2. If the wife did not work, manage the household, or take care of the children during the marriage, she does not lose the right to half of the joint property. An exception to this rule may be evidence that she led an antisocial lifestyle, did not take care of the children, or spent joint funds on her own needs to the detriment of the family.
3. Those things that only one of the spouses used cannot be classified as joint property.
4. Gifts that were intended separately for the husband or wife, even those received during the marriage, are considered personal property.

Conclusion of a voluntary agreement

The cost of certifying a voluntary agreement is much lower than legal costs in the case of division of joint property in court. Depending on the value of the property being divided, the notary fee varies from 300 rubles for an agreement amount of up to one million to sixty thousand if the value of the property being divided is significantly higher than ten million rubles.

How to apply to court for divorce and division of property

So, it was not possible to agree on the division and a lawsuit is inevitable. Required documents and the evidence has been collected, all that remains is:

• draw up a statement of claim;
• pay the fee;
• file a claim;
• take part in the trial.

Statement of claim

State duty

When filing a claim, the plaintiff is required to pay a state fee, the amount of which depends on the price of the claim. The state duty is calculated independently in accordance with Table 1.

Table 1. Calculation of the amount of state duty depending on the price of the claim

How to seize property during a divorce

If the plaintiff has concerns that his opponent will dispose of the joint property in his favor before the division, he can petition the court to seize the joint property. such a step is necessary to implement an interim measure to preserve the disputed property.

The petition is made either when filing a statement of claim, or already in court proceedings. If the court considers the grounds for seizure of property to be significant and there are conditions for seizure, then the court will grant the plaintiff’s request.

Important. Without a petition from either party, the court does not have the right, on its own initiative, to apply interim measures to preserve the disputed property.

Arbitrage practice

Judicial practice has enough examples of various options for the judicial division of joint property. Below is one such example.

Facts of the case. Kirill O. bought an apartment before marriage. Immediately after the wedding, his wife Natalya O. decided to renovate the living space, purchased the necessary building materials from her personal funds and hired a construction team. In addition to personal funds, joint money earned by the couple during their marriage was also spent on repairs, but the joint contribution was small. Two years later, the couple divorced, and Kmirill issued a deed of gift for the apartment in his brother’s name.

Plaintiff's claims. Since Kirill did not recognize Natalya’s right to residential premises, she was forced to file a claim in court demanding:

1. Recognize the living space as jointly owned. Natalya motivated this demand by the fact that thanks to her efforts, the apartment was significantly improved and its price increased.
2. Recognize her right to own half of the living space.
3. Invalidate the apartment donation agreement, since it was concluded for the purpose of concealing the property from division.

Natalya attached to her claim receipts, checks and estimate documentation, as well as bank statements that confirmed the materiality of her expenses.

Kirill took the opposite position and did not agree with any of Natalia’s demands. At the trial, he stated that the living space was his personal property, since it was purchased before marriage. He also stated that he did not consider the improvement of the apartment significant, especially since his funds were also spent on repairs. As for the deed of gift, he has the right to dispose of his property as he wants.

The court ordered an independent examination, which concluded that the cost of the residential premises after reconstruction increased, but not significantly.

Kirill could not prove that he spent personal funds on repairs, but Natalya was able to provide all the evidence of her expenses.

The court's decision. Having considered all the materials of the case, the court ruled:

1. The property cannot be considered jointly owned, since the defendant acquired it before marriage.
2. The court refuses to recognize the plaintiff's ownership of half of the living space.
3. The court refuses to recognize the gift agreement as invalid.
4. The defendant is obliged to reimburse the plaintiff for the funds spent on repairs to the residential premises.

Property can be divided at any stage of the marriage: before the divorce, during the process and after. The procedure for filing for divorce with division of property is complicated by disputes about legal ownership between the parties. When divorcing with division of property, where to start is the main question for separating people. In cases where a compromise is reached that suits both spouses, it will not last long. If this does not happen, then the division of property may take several years.

From what moment is the right of one of the spouses considered violated?

The statute of limitations for the division of property of former spouses is determined to be 3 years from the date of violation of the property rights of one of them. This means that it can arise at any period of time after the official separation, if there has been no redistribution of rights under the agreement before that.

For evidence in court, copies and originals of supporting documents will be required. The longer the period after the breakup, the more difficult it will be to confirm your rights due to the lack of necessary papers. In case of divorce without division of property, it is necessary to have certified copies of certificates of ownership of movable and immovable property remaining at the disposal of the divorced spouse. For household items, certified copies of receipts and receipts are required. You can confirm your rights to a share in the business with a notarized receipt from your ex-husband or wife.

Suspension of the limitation period

The statute of limitations may be missed for various reasons.

Attention! It can be reinstated if the court finds them reasonable.

Cases in which the statute of limitations for the division of property is considered missed for an objective reason:

• the applicant's illness;
• childbirth and child care;
• moving to a new place of residence;
• illness or death of a relative or loved one;
• long business trip;
• time spent in prison;
• military service;
• moratorium on enforcement of the statute of limitations;
• martial law;
• ignorance of the Russian language;
• lack of legal knowledge.

Each fact must have documentary evidence and is considered individually. If the applicant is ill, this is an extract from the medical history certified by a medical institution. The birth of a child is confirmed by a birth certificate. A change of place of residence is proven by registration data. The illness and death of relatives is confirmed by certificates and death certificates.

A travel certificate, a copy of an extract from the travel order, which indicates the basis, terms and name of the traveler will be needed to confirm the absence. A certificate of release and a copy of an extract from the court decision on imprisonment are needed to restore your rights after gaining freedom. A link to government decisions is indicated in the statement of claim indicating the date and place. In all cases of missing the claim deadline, the assistance of a lawyer will be required to draw up an appeal to the court with evidentiary wording.

If the co-owner knew for 3 years about the violation of his rights, but did not take any action, then the court will refuse to restore the statute of limitations. In this case, it will be impossible to divide property after a divorce.