Last update: 01/30/2020

According to statistics, in the first 4 years life together About 40% of divorces occur. More than 15% occur at the very beginning of married life and, unfortunately, young families do not have time to live together even for 1 year. And one of the very first questions that arises during a divorce is how to divide property.

Division of joint property after divorce

Joint property- based on the norms of Article 256 of the Civil Code of the Russian Federation, we can conclude that all property that was purchased by spouses at the time of marriage is jointly acquired (except for circumstances when the marriage contract signed by them establishes a different regime for these things). Cm. .

Article 34 of the Family Code of the Russian Federation states that all income received by each spouse in any way is their joint property. Property that is common also includes: securities, shares, shares in the authorized capital of enterprises, real and movable things, deposits and other property acquired by the wife and husband. In this case, it does not matter at all to which of them this property is registered.

The division of property during a divorce can occur:

A conflict-free solution - an amicable agreement between the spouses

If both parties agree to an out-of-court settlement of the issue and there is no conflict between them, then they enter into a corresponding written document (), in which they indicate the shares of each party and notarize it. If the agreement is left in simple written form, it will not have legal force. Such a document will not work anywhere, including in court. Since December 29, 2015, Federal Law No. 391-FZ established that it is mandatory must be notarized.

Through the court

If, however, the former spouses cannot independently agree on who takes what things, then the matter comes to court. When resolving a conflict in court, the court initially establishes the composition of the property suitable for division, and then allocates a part of each spouse.

But if one of the parties receives property, the price of which significantly exceeds its legal share, then the court may oblige this party to pay the former spouse material compensation (compensation) in cash or other form.

Example: At the time of marriage, the husband bought a rare painting by a famous artist, which cost more than 1,500,000 rubles. The wife was not against the transfer of this property to her ex-husband, provided that the court ordered him to pay compensation to his ex-wife in the amount of 200,000 rubles.

Division of property in court

Stages of division of jointly acquired property in court:

• Establishment of the property of each of the former spouses.
• Determining the share of each of them.
• Separation from the common property of those things that each party wants to take for themselves.
• Determining the amount of compensation to either spouse in case of unequal distribution.

The list of things is determined in accordance with the interests of the spouses and their children. When dividing, the principle of equal division of property is observed. However, taking into account life circumstances, the judge may deviate from equality (cases when children remain after marriage with one of the parents or one of the parties does not have a job without specifying good reasons). In these situations, the principle of decreasing or increasing the share applies, which must be justified in court.

Increasing the spouse's share

The reasons for increasing the share of one of the spouses may be:

• minor children who were left to live with him,
• his illness or permanent disability, especially if it arose during marriage and is associated with the performance of duties as a family member. For example, the husband took two jobs to raise money for his child’s expensive operation, as a result of which, against the backdrop of general fatigue and overwork, he received heart disease and now I have to constantly undergo treatment.
• fulfillment of obligations by one spouse for common debts. Example: The family received a loan from a private person, but due to their unsatisfactory financial situation, they were unable to repay it. In order to avoid litigation, the accrual of interest and fines, the wife, who is a painter, performed finishing work in the creditor's home to repay the debt.

The domestic work of a spouse who is not working at the time of marriage and is running a household or caring for children, who due to extenuating circumstances could not have his own income, will be the basis for receiving a share in the joint property.

Reducing the spouse's share

A reduction in the share is possible if unjustified reasons are established:

• non-receipt of income by the spouse due to unwillingness to find a job;
• careless and negligent attitude of the husband or wife towards the property, which led to a decrease in its value, complete or partial destruction;
• irresponsible, antisocial behavior of the spouse, leading to common family debts. Eg: The couple checked into the hotel on a package tour. The husband, while drunk, damaged property in the room for a large sum. Reimbursement of hotel administration expenses was made from general money.

What about debts?

If the former spouses have debts, then they will also be divided in proportion to the awarded shares (see details and).

But it should be borne in mind that if we are talking about an administrative, criminal or other offense, then responsibility for debts arising due to such acts is assigned personally to the culprit.

How to divide indivisible things

It often happens that common property includes things that spouses want to keep for themselves (see). In such situations, the court acts in the following order:

• Former spouses are invited to determine for themselves who will get this item. Further:
  • the parties determine the value by mutual agreement or on the basis of the appraiser’s conclusion (if there is no agreement);
  • the court, based on the price, assigns monetary compensation to the spouse left without the property from the funds of the other spouse.
• If there is no compromise, then the object of division is transferred to shared ownership with a share assigned to everyone, and if necessary, the judge determines the procedure for using it.
• When it is impossible to allocate a share in the property, the court forcibly decides who will own the subject of the dispute. In this case, the following circumstances are taken into account:
  • the need of each spouse for things;
  • the ability to actually use the controversial item.

For example, spouses cannot share a car. The court found that the ex-wife does not have a driver's license and for health reasons is unable to drive. While the other spouse works in a remote place from residence. The judge is more likely to leave the property to the husband.

Terms of division of property of spouses

As a general rule, the statute of limitations in cases regarding the division of property between former spouses is 3 years (clause 7 of Article 38 of the RF IC). However, many do not know from what moment this period begins.

The Plenum of the Supreme Court of the Russian Federation in its Resolution No. 15 of November 5, 1998, in Article 19, indicated that it is necessary to calculate the limitation period not from the very moment of divorce (entry into force of a legal court decision or registration of an entry in the book of dissolution of marriage unions in the registry office) , but from the moment when the person should have become or became aware of the fact of a violation of his right. This provision is also indicated in paragraph 1 of Art. 200 Civil Code of the Russian Federation.

Example: 5 years after the end of the marriage, the husband learned about the real estate that was purchased at the time of his cohabitation with ex-wife, however, this building was not indicated in the list of common property.

The spouse, whose rights were not respected, is obliged to prove the fact of evasion from the division of jointly acquired property, but it is sometimes extremely difficult to justify such circumstances.

To restore the missed deadline, the spouse must file a claim for renewal of the missed deadline with the judicial authorities.

What property is not divided during divorce?

Everything that was acquired before marriage

In Part 2 of Art. 256 of the Civil Code of the Russian Federation states that property that was owned by each of the spouses before the marriage, as well as property given to one of the spouses or passed to one of the parties by inheritance, is not jointly acquired, but belongs to the personal property of the corresponding spouse.

Personal items

Items for individual use, namely: clothing, shoes and other personal property (except for precious items and luxury items), purchased even for general cash, belong to the property of the spouse who uses them.

Rights to the result of intellectual activity

The right to the result of intellectual activity is also not divided during a divorce like other property. It is exclusive and belongs only to the author. And the income received from the use of this result is jointly acquired property (unless the document between the spouses (nuptial agreement) indicates otherwise).

Belongings of minor children

The rights and things that belong to minor children are not divided between the parties to the process. These include things purchased only to meet the needs of children and deposits made in their names.

Items purchased after leaving

Things acquired by spouses after the end of cohabitation (in the event of a long divorce process) are also not divided. This is one of the most sensitive issues in divorce proceedings, since it is difficult for one of the spouses to resist the temptation to declare their right to someone else’s property, despite the fact that there are formal signs for this. Therefore, such property must be separated from the general property, and confirmed in court:

• separation of residence;
• lack of a joint budget;
• the presence of conflict, incompatibility of life positions, etc.

Division of property during divorce if there are children

The property of adult children, namely: an apartment, a car, a summer house or shares, is not subject to division. They must remain the personal property of the child.

If in , then the divorce process occurs only through court. This action is used to ensure the personal property rights of children.

In the event of a divorce, adult and minor children, at the time of division of the spouses' property acquired jointly during marriage, do not have the right to it, just as parents do not have rights to the children's things purchased for their needs. These include:

• clothes, shoes
• Sports Equipment
• school supplies
• furniture, books
• instruments for music practice
• as well as material deposits issued for children.

The listed items are transferred to the parent with whom the children will remain. Another person does not have the right to count on appropriate monetary compensation, even if it becomes known that the children’s property was sold.

Sometimes the fact that the child needs these things is disputed:

Example 1: The computer, which was purchased more than 4 years ago, was purchased for general use, and not just to meet the needs of the child. Here the issue is controversial and the court may rule in favor of one side or the other. Because the computer can hardly be attributed exclusively to children's use.

Example 2: A claim has been made for a piano. The ex-husband stated that the purpose of this tool is not intended only for children. However, the wife presented evidence that their child is studying piano at a music school and this musical instrument was bought for him. Such a piano will not be subject to division.

If real estate that is the property of a minor child or his place of residence is alienated, then a representative of the guardianship and trusteeship authority must be present at the court hearing. The consent of the authority to allocate the child’s share is mandatory.

If there is a minor child in a family that is involved in divorce proceedings, then the spouse with whom the child does not live is obliged to pay alimony for his maintenance (see). Then the court will divide the parts of the jointly acquired property equally.

How to draw up an agreement on the division of property

Initially, it is necessary to indicate that an agreement (agreement) on the division of property can be drawn up at the time of marriage, upon its dissolution, or after this process. However, the best part of drafting it is somewhere between the beginning and the end of the divorce.

After filing an application for divorce, the spouses can draw up an agreement and avoid losing money when paying the state fee, the amount of which is calculated from the total value of the property and can amount to more than 10 thousand rubles.

After concluding such an agreement, the spouses peacefully divide the joint property, informing the court about the settlement of the disputed relationship.

Part 2 art. 38 of the Family Code of the Russian Federation states that an agreement of this kind is concluded in writing and is subject to notarization. Since December 29, 2015, Federal Law No. 391-FZ has established the procedure for mandatory notarization of a settlement agreement on the division of property.

Notary services are paid. He charges the spouses a state fee, the amount of which is calculated based on the total price of the property to be divided. This percentage may not be small and it is better to know it in advance.

• Preamble. It should indicate the place (city) and date of drawing up the document, as well as indicate the parties to the agreement (Party 1 - Full name, Party 2 - Full name)
• Item. Here the spouses describe their civil status and indicate all the property in their jointly acquired property.
• The procedure for dividing property. In this part it is necessary to indicate what property goes to whom.
• Conditions for transfer of property. This indicates exactly how the transfer of property from spouse to spouse will take place. For example: If there is a division of real estate - when one of the parties goes to the appropriate registry with title documents to re-register the property to the other party.
• Personal property that will not be shared. This point is quite important. It lists all property that is not divided or will not be divided (property that was not jointly acquired property, personal belongings of one of the spouses, or items that one of the spouses does not claim). This must be done to avoid claims that may occur in the future.
• The procedure for the entry into force of a contract (agreement). Here it is necessary to indicate that this document will come into force from the moment of its notarization.
• Final provisions. In this paragraph, you must indicate information about the number of copies of this agreement, the procedure for making additional changes to this agreement and the consideration of disputes regarding the execution of the agreement.
• Signatures of the parties. This is quite important! After drawing up the agreement, it must be signed by the spouses

Question:
What to do if a separation agreement is concluded, but after that the other spouse changes his mind and avoids notarial actions.

The answer is simple: The interested spouse should fulfill that part of the obligations that was assigned to him. And then you can go to court to recognize the agreement as valid without notarization. Subsequently, the intractable spouse can be required to fulfill his part of the agreement on the basis of a court decision.
But this method is not always effective. Sometimes it is easier to go to court with a regular division of property.

How to hide a spouse's property

Statistics show that during marital relations Many spouses think about the possible consequences of divorce. Therefore, they play it safe and use all possible means to divert property from the regime of joint ownership of husband and wife.

The most common methods:

• registration of property in the name of relatives. This mainly concerns large things: real estate, transport, etc.;
• concealment about existing values. Most often these are bank deposits, shares, cash, etc.;
• buying things with donated money from relatives.

For example: My husband buys a car, which he wants to register in his name. The day before the purchase, the spouse turns to a notary to certify the agreement of donation of money from the spouse’s father for the purpose of buying a car. The agreement, of course, is non-monetary, but it is difficult to prove this, since it is notarized. It turns out that a car purchased with that kind of money is a gift and will not be counted as common property during division.

• acquisition of material assets through loans from friends and acquaintances. The bottom line is that during the division, the spouse can present to the court a loan agreement, supposedly for the purchase of an item, drawn up shortly before the purchase, as well as a fake receipt or other payment document on behalf of this spouse about the repayment of the loan, dated after the divorce. Formally, this gives grounds to demand that the property remain with oneself without compensation to the other spouse, since he alone paid the common debt.
• There are other methods that are singular in nature.

How to divide property registered in the name of another person

It is not uncommon for one of the spouses (as a rule, the main breadwinner in the family), showing worldly “wisdom,” to register all acquired property in the name of their relatives (parents, grandmothers, brothers, sisters, etc.) or in general to strangers (isolated cases ).

However, such property can still be included in the total estate and divided fairly.

To do this, it is necessary to separately (under a new claim) challenge fictitious transactions in court, that is, invalidate the transaction with dummies and transfer ownership to the spouses. True, this process is not simple, but if the controversial item is expensive, then the work will not be in vain.

When considering the court, they provide information that:

• funds for the purchase of the item were taken from the general budget (no matter which spouse or from what sources);

For example: Before buying an apartment, the husband withdrew money from his bank account in the exact amount that corresponded to the price of the home.

• the person in whose name the property is registered does not actually have sufficient finances.
• the one in whose name the registration is made does not have the skills and needs to use this property.

Eg: The motor boat was registered in the name of a grandmother, who has neither the rights nor the means to maintain a watercraft.

• the disputed objects were used by the family and incurred the costs of maintaining these objects.

Example: the dacha plot, which was listed on the spouse’s brother, was at the disposal of the family, which will be confirmed by neighbors, the board, payment documents on membership and target contributions, etc.

It is important not to miss the deadline for appealing - 3 years from the moment such a pseudo-transaction was made or when the deprived spouse became aware of it.

During a dispute over false registration of property, the court case on division must be suspended, since the results of challenging the transaction will make it clear whether the spouses’ common property will increase or not.

If the spouses decide to get a divorce, then it is necessary to take into account several rules that will help them get through the divorce process faster.

• To avoid unnecessary expenses, it is best to correctly draw up an agreement on the division of property and not go to the courts at all. IN this document All required information must be provided. But notarization is sometimes quite an expensive process.
• If the case comes to court consideration, then do not forget to file a claim for the division of property and documents for the deduction of alimony (for the spouse with whom minor children remain living). The presence of minor children is also a basis for increasing the share of joint property.
• After the divorce process is completed, save all documents related to the marriage, as they may be needed in the future. (If the spouse finds out about the undivided property and wants to claim it).

If you have questions about the topic of the article, please do not hesitate to ask them in the comments. We will definitely answer all your questions within a few days.

Reading time: 10 minutes

Divorce of a marriage forces spouses to resolve many issues related not only to the place of residence of their common children, their maintenance and upbringing, but also to the division of property acquired during the marriage. The legislation of the Russian Federation regulates the procedure by which property is divided during a divorce. If the husband and wife who are planning to end the marriage follow the rules of the law in this matter, the division will occur as quickly and fairly as possible.

Legislation on the division of property during divorce

What rights do spouses receive after divorce?

When a marriage relationship breaks down, every citizen of the Russian Federation has the right to protect their legal rights:

• parental;
• personal non-property;
• property

Disputes regarding the protection of these rights are considered in court if the spouses were unable to reach agreement on them.

Protection of property rights simultaneously with divorce should be carried out exclusively during judicial trial. A claim for division of property should be filed together with an application for divorce.

The division of property takes place taking into account the norms written in Art. 38–39 SK or art. 40-44 RF IC (if there is a marriage contract).

It is important to know: if a marriage contract or its individual clauses create a force majeure situation for one of the spouses (they are left without housing or livelihood), they can be canceled in court.

Is it possible to get a divorce without dividing property?

According to Russian family law, there is no inextricable link between divorce and division of property. This means that spouses have the right to apply for division of property without filing a divorce, as well as to file for divorce without dividing property.

It is possible to initiate a divorce without filing a demand for division of jointly acquired assets if:

1. The property was divided before the divorce.
2. Spouses have nothing to share.
3. One of the spouses renounces claims to joint property.
4. The partners decided to divide the property at the end of the divorce process (Article 38 of the RF IC).

Couples who have entered into a marriage contract or established a shared/separate property ownership regime can dissolve a marriage without considering the issue of division of material assets in court.

If the couple does not have common minor children and disputes about property, or their decision by mutual consent is postponed until after the divorce, the marriage can be dissolved through the registry office.

What can be considered joint property?

Community property is property acquired by partners during a marriage. It does not matter in whose name it is registered and who exactly contributed the funds.

What can be divided upon dissolution of a marriage?

During a divorce, everything that is considered by law to be common joint property is subject to division, unless its regime is affected by the terms of the marriage contract. The only exception is personal property. Therefore, you will have to divide all jointly acquired property when the spouses divorce:

• wages and other income from work;
• amounts of remuneration for the use of patent and copyright rights;
• business assets and income;
• real estate;
• shares received through transactions, as a gift or as a result of the actions of one/both spouses, shares in an LLC, checks, shares in cooperatives, bonds;
• intangible values ​​and so on.

Protecting the interests of children

If a spouse and children are divorcing and dividing property, the presence of minor family members complicates not only the divorce procedure, but also the task of dividing material assets.

As a rule, upon divorce, the children remain with the mother, so the court may deviate from the principle of equal rights to property when determining the size of the shares that will go to each spouse.

The assessment and division of property with a minor child is carried out in court. As a result of the proceedings, the judge may decide to transfer the majority of the spouses' common property to the one with whom the children remain.

The RF IC also regulates the right to transfer the property of minor family members to the parent with whom they will live at the end of the divorce process. Children's property includes their personal belongings, toys, furniture, sports equipment, etc.

Cash deposits opened in the name of children are their property and therefore are not subject to division.

It is also worth mentioning the legal requirements regarding how to divide property during a divorce if there are adult children. This procedure is no different from divorce in the absence of children. According to Russian laws, children over 18 years of age are considered completely independent, their property is separate, and they have no right to claim the property of their parents during a divorce.

Agreement on divorce

Spouses can peacefully agree on the procedure for dividing common joint property acquired during marriage (division of housing, etc.). An agreement reached in pre-trial proceedings must be legitimized by drawing up an agreement.

Only a document registered in Rosreestr and certified by a notary has the force of a court decision.

The document details the shares that will go to each of the spouses after the dissolution of the marriage. The main requirement when drawing up an agreement is the mutual consent of the parties to the stated conditions, especially if they are not based on the principles of equality of shares.

The procedure for drawing up an agreement on the division of property

The division of property acquired during marriage in court is a long and complex process that takes a lot of time and effort from the spouses. To confirm the legitimacy and fairness of your claims to the declared part of the divisible common property, you need to provide a sufficient number of arguments, evidence, testimony and other facts.

However, there is an easier way to divide property during a divorce without court. Concluding an agreement on the division of property can save spouses from many problems.

Where to draw up an agreement

Spouses who have decided to enter into an agreement on the division of common joint property can visit a legal or notary office. There they will be explained the rules for dividing property during a divorce, warned about the consequences of concluding this agreement, and will be helped to correctly draw up the document.
Although the text of the agreement is drawn up in any form, it must contain the following information:

• personal data of spouses;
• details of marriage and divorce documents;
• list of items to be divided.

The completed agreement must be certified by a notary.

Preparation of documents

When deciding where to start preparing for concluding an agreement, the first step is to schedule a visit from an independent appraiser. An invited specialist will determine the current value of the property and draw up a corresponding act.

Only after this you can contact the notary’s office with a complete package of documents:

• ID cards of both spouses;
• 2 copies of the property division agreement;
• documents confirming the indicated value of the property;
• receipts or checks containing information about the original cost of the item in the section;
• certificates confirming that the property has not been seized, pledged or sold.

Financial costs when dividing property

If the spouses were unable to reach an agreement on the division of common property, they will have to divide it through the court. In this case, a state fee must be paid when dividing property during a divorce.

The procedure for calculating and paying the fee is determined by the Civil and Tax Codes of the Russian Federation (Article 333.19). The claim for the division of common joint property upon divorce is of a property nature, and therefore the amount of the state fee is calculated taking into account the total cost of the claim.

Thus, it is impossible to accurately answer in advance how much a divorce with division of property costs. In accordance with the normative act According to the calculation algorithm, the state fee when considering joint claims in court (divorce and division of property) will vary between 400–60,000 rubles.

Since the plaintiff independently calculates the amount of the state fee before filing documents with the court, we recommend that you familiarize yourself with how it is calculated.

When is property divided after divorce?

The RF IC (Article 38) determines that you can file a claim for division of common property acquired during marriage:

• simultaneously with the divorce process;
• before the commencement of divorce proceedings;
• after the marriage is dissolved.

For various reasons, spouses prefer the division of property after marriage and its official dissolution.

In this case, it is worth keeping in mind that such a trial usually lasts from one and a half to two months. This time interval is set taking into account the possible postponement of court hearings, as well as the high probability of filing counterclaims by the other party. Therefore, it is precisely this period of division of property after divorce that seems most likely.

The procedure for dividing an apartment

Property issues almost always cause heated disputes between spouses. They rarely manage to agree pre-trial on how to dispose of property acquired jointly during marriage without violating the interests of both parties.

Particularly painful is the issue of dividing real estate during a divorce. If there is no marriage contract or agreement on the division of property, the court has to take into account many nuances: whether the apartment is privatized, whether the housing is municipal property, etc.

Usually the issue of dividing an apartment in court is resolved by establishing equal ownership of it. But in a situation where an apartment is divided in the presence of children, the court may not take into account the principle of equality of shares of former partners in their common property.

Often the court is ready to increase the share of the spouse with whom the children will remain (Clause 2 of Article 39 of the RF IC).

Another common aspect that worries separating spouses is the division of the apartment during a divorce, if it is not written down in it. It should be taken into account that registration has nothing to do with the right of ownership of housing. Consequently, this fact plays a role only when determining the order of use municipal apartment after a divorce, but such housing is not subject to division.

The additional article goes into more detail about the factors that significantly influence .

Section of a private house

The division of a house or cottage follows the same principles as the division of an apartment. If the property is jointly owned, then upon division each spouse receives equal shares.

In addition, a physical division of the premises is possible, involving redevelopment and transformation of the house into two separate objects.

How to divide a car upon divorce

The issue of dividing a vehicle during a family breakup also raises difficulties. This is due to the fact that the car, being common property, is subject to division, but at the same time it is an indivisible item. It cannot be physically separated without causing irreparable harm.

In this case, you can find a way out, for example, by selling the car to a third party and dividing the proceeds between the spouses.

Is it possible to split a business?

Entrepreneurial activity, like other common property of the husband and wife acquired during marriage, should be divided equally. There are many ways to actually and legally divide a company - from selling shares to a third party and dividing funds to jointly conducting business with division of powers.

Procedure for dividing a mortgage loan

According to the RF IC, the unpaid mortgage debt belongs to the common property of the spouses, and therefore can also be divided by agreement or in court.

In this situation, the most common courses of action are:

• re-issuing a loan to one of the spouses;
• sale of collateral property with debt repayment and division of the remaining funds between spouses.

Division of land

It is quite difficult to divide a plot of land acquired by spouses during marriage, because one also has to take into account the norms of the Land Code and other legislative acts.

The difficulty in resolving the issue lies in the impossibility of dividing the land in kind if the area of ​​the plot is less than the minimum established for a given category of land.

Many difficulties are associated with the issue of dividing property acquired using funds that have a specific purpose. According to Russian laws, such funds do not belong to common joint property.

Property acquired with funds that are earmarked is also not divided in the usual manner (in equal shares). state support families with children. This determination was made by the Supreme Court of the Russian Federation on January 26, 2016.

Find out more about who can qualify.

Statute of limitations for claims for division of property

Sometimes spouses, for various reasons, do not divide the common property either before the divorce procedure or during the divorce process. However, over time, life circumstances may change, resulting in the need to exercise your legal rights. In this case, you need to know how long it takes to divide property after a divorce.

Voluntary division of property between spouses has no time restrictions.

When dividing through a court, the statute of limitations for this type of claim is 3 years (Article 38, Clause 7 of the RF IC). If the spouses did not divide property upon divorce, they have the right to file a claim within the period established in this document.

Some people mistakenly believe that the three-year period begins on the date of divorce. But according to Art. 200 of the Civil Code of the Russian Federation, the starting point for the specified period is the moment when one of the parties learned of a violation of its rights.

Summary

Most couples ending their marriage resolve issues of custody of minor children and division of marital property at the same time as the divorce process. As a rule, courts decide on the division of common property based on the principle of equality of shares in it between the wife and husband.

Spouses who decide to put off the financial aspects of the matter for later, after a while, begin to figure out how to file for division of property after a divorce. If the ex-husband and wife are ready to come to an agreement and sign a separation agreement, they can do so at any time. The court will accept the relevant claim for consideration only if the plaintiff meets the statutory limitation period.

Division of marital property by the court according to new rules: Video

Lawyer. Member of the Bar Association of St. Petersburg. More than 10 years of experience. Graduated from St. Petersburg State University. I specialize in civil, family, housing, and land law.

Most couples enter into family relationships out of strong love. But this does not negate the opportunity to foresee and plan in advance how relationships will develop in the future. Moreover, not only personal, but also property relations. Planning acquisitions, dividing income and belongings, repaying debts - all this is not only allowed, but also encouraged in marriage.

Thus, division of joint property is possible not only upon divorce, but also during joint life. Let's consider what methods are provided by law for dividing the property of a husband and wife without divorce.

Is it possible to divide property without divorce?

The Family Code directly provides that the division of joint property is possible not only after divorce, but also during marriage(Article 38 of the RF IC).

In general, the property rights and obligations of a husband and wife are regulated in detail by Chapters 7-9 of the RF IC. First of all, we are talking about the joint property of the spouses, that is, about real estate, cash savings, vehicles, things - everything that was acquired during the marriage.

What is shared?

Only joint property acquired during marriage is subject to the division procedure. This includes:

• Money earned or received by husband and wife (salary, profit from business, pension, scholarship, social benefit);
• Real or movable property;
• Deposits, securities, shares in authorized capital.

For more information about what relates to joint property and is subject to division, read the article “”. The principles for dividing property in marriage are exactly the same as in divorce.

It does not matter who earns how much, who acquires and uses the property. Both husband and wife have equal rights to it. After all, most often in families a patriarchal distribution of roles is practiced: the man earns money, and the woman manages everyday life and raises children. However, a woman has the right to claim half of everything a man earns. The exception is the spouse who recklessly spends family funds without contributing to the family budget. In this case, the right to half of the joint property may be reviewed by the court.

What is not shared?

Most spouses are afraid that the division will affect not only joint property, but also personal property - that which was acquired long before marriage or on special grounds during marriage. There is no need to be afraid of this - family law protects personal property.

Not subject to division:

• what belonged to the husband or wife before marriage;
• something that was acquired, albeit during marriage, but with personal funds that belonged to the husband or wife before marriage;
• what was given;
• what was inherited;
• what is necessary for personal use - clothing, shoes, tools, accessories.

For more information about what is personal property and is not subject to division, see the article “”. The principles for dividing property in marriage are exactly the same as in divorce.

Some personal property may well become joint property. The reason for this is to increase its value at the expense of money, labor, and the time of the spouses.

Methods of division without divorce

Let's return to the issue of division of joint property in marriage. Article 38 of the Family Code provides for two main methods of division:

• Division by consent of husband and wife;

If we are talking about property whose value does not exceed 10,000 rubles, an oral agreement is sufficient. If we are talking about more expensive property, it is impossible to do without drawing up written documents that will regulate the procedure for ownership, use and disposal of joint property, as well as its division - both during marriage and upon divorce. Such documents are the Marriage Agreement and the Property Division Agreement.

• Judgment Section.

Such a step is a necessary measure if it is not possible to reach agreement peacefully. The legal process for the division of joint property can be carried out separately from the divorce process.

Division of joint property by agreement

As mentioned above, for the division of joint property, a husband and wife can draw up documents such as a Marriage Agreement and an Agreement.

Agreement on the division of joint property in marriage

This document may provide for absolutely any agreement between husband and wife regarding the division of joint property (list and description of property, value, size of shares, division procedure). With the exception, of course, of agreements that clearly violate the rights of one of the spouses (see ““).

The agreement can be drawn up as regards everything common property, so specific property object(residential property, land, vehicle). Several Agreements may also be drawn up.

Both simple written form and notarization of the document are allowed.

Marriage contract

A document such as is becoming increasingly popular among conscious married couples. Although it, like the Agreement, may provide for the procedure for dividing joint property in marriage and divorce, there are significant differences:

• division is made not only of the property available at the time of conclusion of the contract, but also of future property;
• the document provides for the conditions for the entry into force, validity and cancellation of the marriage contract;
• the document must be in written form with official wording and must be notarized.

The validity of the marriage contract extends only to the period of existence of the family, and terminates after the divorce (see ““).

The legal process of dividing joint property in marriage

If a peace agreement is unattainable, you have to go to court with a statement of claim. As you know, property can be divided in court not only simultaneously with the divorce process, but also separately from it. The defendant has the right to disagree with the arguments and claims of the plaintiff, and.

The court divides property acquired during marriage in accordance with the provisions of family law (Articles 34-39 of the RF IC). In this case, the court examines all the circumstances: family relationships, material well-being, the contribution of both spouses to the financial support of the family, to the acquisition and improvement of property, to raising children, etc.

As a rule, the court is guided the principle of equality of shares between spouses, and divides the property equally, but in exceptional cases the shares of the spouses may be recognized as unequal. Property belonging to children is not divided between parents.

How to file a claim?

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

• Name of the court;
• Details of husband and wife (full name, residential address);
• Data on marriage (date, place);
• Data on minor children born in marriage;
• A list of property that the husband and wife intend to divide;
• Ownership of property (personal or joint);
• Who initiated the acquisition, who contributed more, who uses or needs the property more, who lays claim to the property;
• The value of joint property;
• How should joint property be divided?
• Date of filing the claim;
• Plaintiff's signature.

Sample statement of claim for division of property of spouses in marriage 2020

You can view a sample statement of claim below:

Documentation

Documents must be attached to the statement of claim, which confirm the fact of acquisition of property (indicating the date, place, cost, registration), ownership (personal or joint). In addition, the following documents must be attached:

• passports of husband and wife;
• marriage certificates, birth certificates of children;
• extracts from the house register (archive);
• agreements and certificates of ownership of property (new sample - extract from the Unified State Register of Property Rights).

The claim will not be accepted without a receipt for payment of the state fee! Calculations are carried out in accordance with Art. 333.19 Tax Code of the Russian Federation. The minimum amount of state duty is 400 rubles, and the maximum is 60,000 rubles. A receipt for payment must be attached to the claim.

Principles of division of property in marriage

Basic principles of division of joint property in marriage:

1. All divided property passes from joint ownership to separate ownership. But everything that will be acquired after this division will again belong to the husband and wife as joint property. An exception is the conditions of the marriage contract, according to which all property that is expected to be acquired in the future has already been divided.
2. If property is divided voluntarily, the husband and wife may receive different shares. If the court is involved in the division, most likely the division will be carried out equally.

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TEXT: Alexandra Bukvareva

CONGRATULATE OR sympathize with you- in any case, after a divorce, the problem of division of property arises. Together with lawyer Yulia Sakunova, we’ll figure out how to solve it with minimal losses.

Remember if there is a prenuptial agreement?

If yes, then congratulations: there will be no problems with the partition. , you saved yourself a huge amount of effort, time and nerves in the future. Now the property will be distributed according to what is specified in the agreement. To do this, you and your copy (the marriage contract was certified by a notary upon conclusion) go to the registration authorities and re-register the property. Please note that a marriage contract involves the division of property only between spouses, so, for example, it will not be possible to provide for the transfer of things to children (Articles 40–42 of the Family Code of the Russian Federation).

If there is no prenuptial agreement and you managed to agree on who will get what, you can go to a notary together and conclude an agreement on the division of property. If there is mutual agreement, there are no restrictions - the notary will only document what was said. Then, based on it, you need to contact the registration authorities (State Traffic Safety Inspectorate, Rosreestr) and re-register what is necessary.

If there is no marriage contract and you do not agree about the division, then you will have to sort it out in court and according to the law. Prepare a claim for division of property. The general statute of limitations applies here: three years from the date of divorce, or more precisely, from the moment when you learned or could find out about it. Be sure to open the Family Code and study Art. 34 (“Joint property of spouses”), Art. 38 (“Division of common property of spouses”), Art. 39 (“Determination of shares in the division of common property”), as well as Art. 256 (“Common property of spouses”).

Determine what you are applying for

Be guided by the fact that according to the law, spouses are entitled to half of the property acquired during marriage. This means that everything that belonged to you before the wedding remains with you. You also retain property acquired as a result of gratuitous transactions - that is, for example, inherited or transferred under a gift agreement. Please note: if your parents gave you an apartment after your wedding, but formalized it through a purchase and sale agreement rather than a gift, then the ex-spouse has the right to claim half. Personal belongings are indivisible - both yours and your children's. That is, your clothes, laptop (if only you use it), smartphone will remain with you. Children's personal belongings - clothes, books, toys, computer - remain with them and, accordingly, with the parent with whom they will live. Unfortunately, diamonds and other luxury items are not considered personal items, so they will have to be divided.

Moral rights are not divided: if one of you, for example, is a writer, then he will receive royalties, and divorce will not affect this in any way. Jointly acquired property (everything purchased during marriage: real estate, cars, household appliances, and even dogs and cats) is subject to division. As well as money earned by both spouses stored in the bank. It is clear that dividing an apartment or car in half is problematic, so often the property is transferred to one of the spouses, and he pays half the cost to the other.

Keep in mind that the start date of marriage is, of course, the date of the wedding, but the end date is the date of the actual end of cohabitation and joint household management. That is, if you actually separated from your spouse long before the formal divorce, then this is considered the date of end of the marriage relationship.

In some cases (listed in Article 39 of the Family Code), the court may decide that one of the spouses is entitled to more than half of the jointly acquired property. For example, if one of the spouses has two or more minor children or if the second spouse did not receive income during the marriage for unjustified reasons. Unexcusable reasons must be compelling - that is, the person did not just not work, but did not work and was on the drug control register or was in prison. In any case, how much to deviate from the usual division of property equally will be decided by the court, but you can offer your own option.

Deal with your debts

Yes, “in sorrow and in joy” extends here too. If you have an apartment with a mortgage and it is registered in the name of one of the spouses, it is possible to divide it, but only with the consent of the bank. The bank must also split the payments, but, as a rule, it does not want to do this. Therefore, most likely, the apartment, as well as the obligation to pay for it, will remain with the person to whom it was originally registered.

With a consumer loan, the obligations are considered personal - that is, whoever took it must repay. But if it can be proven that the borrowed funds were spent during the marriage on common needs (renovating the apartment, going on a family vacation, etc.), then it can be divided between the spouses by way of recourse, and then the second spouse will have to return part of the payments to the first one. Moreover, the calculation is also made based on the date of termination of cohabitation. Let’s say A and B got married in 2014, and married in 2015 consumer loan, separated in 2016, and divorced in 2017. In 2018, A, for whom the loan was issued, repaid it in full. Question: half of what part of the loan can he recover from B? Answer: half of the amount paid by him from the moment he left in 2016 until the loan was fully repaid in 2018.

Make a list of assets and prepare evidence

Evaluate all jointly acquired property in monetary terms and indicate how you propose to divide it. For example, you want to stay in the apartment, but pay your spouse half of its cost, and leave him the car, half the cost of which you will receive from him.

Then collect documents confirming that the property (including money) was acquired during the marriage. Purchase and sale agreements, bank statements, registration certificates, checks and so on. If you cannot get a document, include it in the list anyway - later you will ask the court to demand this document.

Evidence also includes witness statements. With their help, you will prove exactly when your marriage ended, if you separated before the divorce, and also, for example, that the dog should stay with you, since you are more attached to it and were engaged in it. Your witnesses will give testimony directly in court, but as a last resort, if a person cannot come to court, he can have his testimony certified by a notary. In this case, it is necessary for the notary to warn him about liability for giving false testimony, otherwise the court may not accept the document.

Decide on the court

If the amount of your claim is less than 50 thousand rubles, go to the magistrate's court. If it’s more than 50 thousand, go to the district office. As for the location, contact either the location of the property or the defendant’s place of residence. Remember that you have the freedom to choose the court - after it accepts the claim, you can clarify it, and it will still be considered there. That is, if your claim for the division of spoons and ladle was accepted by the court at the place of residence of the ex-spouse, and then you suddenly found out or remembered that you also need to divide a summer cottage located in another region, bring the clarification of the claim to the court - the consideration will still be will already be here.

Pay the fee

Do not forget that when filing a claim for division of property, you need to pay a fee, and it is calculated depending on the size of the claim itself. So the more you demand, the more you will pay at the beginning, and if you lose, no one will return the fee to you. So approach the matter carefully and responsibly.

Go to court

If your opponent does not appear in court, the decision will be made in your favor without any special proceedings.

If your opponent suddenly declares that he agrees with your proposed version of the division, the judge will invite you both to prepare a draft settlement agreement, which he will then approve. This can happen at any stage of the trial - even at the preliminary, very first, hearing.

If you disagree, your opponent can file a counterclaim, in which he will outline his vision of the situation. Both of your claims will be considered in one meeting. He may not file a counterclaim, but simply participate in the proceedings and defend his (different from yours) scheme for dividing property. Of course, he will also present evidence, bring witnesses and prove his case in every possible way.

Beware of scams

Remember that not only property is divided, but also debts - this applies to debts not only to banks, but also to other creditors. Some “resourceful” citizens are trying to take advantage of this for unjust enrichment. It is done like this: A brings to the court a receipt from his sister (mother, friend, hairdresser) stating that this sister on such and such a date (during the actual marriage of A and B) lent A such and such an amount. The “creditor” himself also comes to court and confirms: yes, yes, there was a case, she lent money. On this basis, A claims, B must return half of this amount to him.

Of course, the courts are familiar with this practice and, with the proper level of investigation of the circumstances, should reveal such a fact of abuse of law, but there are no guarantees in this regard. So be aware of this danger and be careful.

Find out,
how to appeal a court decision

The stages and procedure for appealing are standard. After the court of first instance makes a decision, if you disagree, you must appeal it within a month. After passing the second (appeal) instance, the decision is considered to have entered into force, so I agree or disagree, must be complied with.

The execution of the decision, especially if the defendant himself is in no hurry, should be ensured by bailiffs, but for this you need to go to them with the court decision and writ of execution. They will open enforcement proceedings and will collect what is due from the debtor in various ways: a ban on traveling abroad, seizure of property and accounts, forced deductions from wages and pensions (up to fifty percent of monthly income can be withheld), and so on.

However, you can further appeal the court decision. If it is subsequently changed, the defendant will be given back what he handed over in pursuance of the previous decision. The defendant can also submit an application to the bailiffs with a request to suspend the proceedings, since the decision has been appealed in cassation.

Spouses have the right to divide. The initiator of the process has the right to act any of married couple , or interested creditors. Not subject to the division listed in Art. 36 of the Family Code of the Russian Federation, as well as that to which the separate ownership regime is imposed.

When dividing marital property, one of the couple who, by agreement or for good reasons, did not work, took care of the household and children, was on disability, received a very small salary, has rights to the property on a par with another spouse. Often the division of property is associated with difficulties, even if the couple does not have many things. For example, it is difficult to divide one-room apartment, purchased by spouses jointly and used for common residence.

The financial status of the spouse can be found out with the help of judicial and lawyer inquiries when considering a case in court. However, it is recommended to clarify these issues before starting the property division process.

Matrimonial Property Regimes

Division of joint property during divorce

Spouses can divide common property by voluntary agreement or court decision. This section is greatly facilitated by the presence of a section that allows you to painlessly divide the things listed in it. Based on Art. 254 Civil Code and Art. 39 IC, each spouse must be allocated equal shares from their joint property, unless other proportions are provided for in the marriage contract. In practice, this rarely happens due to impossibility divide indivisible things and other difficulties.

• The division of joint property by agreement is covered in Art. 252, Civil Code (Civil Code) of the Russian Federation. If desired, the conciliation document is certified by a notary (Article 163 of the Civil Code), but this is not mandatory. If the agreement does not stipulate who will receive which items, the notary will issue upon request certificate of ownership to the spouses' share from the common property.
• Even after filing a lawsuit, the spouses still have the opportunity to reach an agreement. During the consideration of the case, they can enter into a settlement agreement.
• According to the law, the court is given the opportunity deviate from the principle of equal shares to ensure the interests of children or one of the spouses who earned more, or who will not be able to fully provide for themselves due to incapacity. Each case is considered individually.

For the division of property after a divorce and filing claims in court from a party whose interests were infringed during the division process, there is statute of limitations – three years(Part 7 of Article 38 of the RF IC). This period is calculated not from the moment of divorce, but from the day when one of the former spouses learned about the violation of their rights (Article 200 of the Civil Code of the Russian Federation).

Example.

In 2019, G. filed a lawsuit against M., her ex-husband, wanting to sue half of the apartment purchased during marriage and land plot. In the statement of claim, she asked to restore the term for the division of property, since after the divorce in 2015, her mother fell ill, and G. could not deal with property issues. The court refused to consider the woman's demands, citing the impossibility of restoring the term. G. filed a supervisory appeal, in which she asked to reconsider the decision.

After reviewing the case materials, the complaint was found to be justified. According to the commission, the judge who rejected the claim incorrectly calculated the start date of the limitation period. It was necessary not to count from the date of divorce, but to find out exactly when G. realized that her property rights were violated. It should also be noted that in 2017, the woman approached her husband with a request to divide the joint property by agreement, to which the husband refused. The judge's decision was overturned and the case was sent back for a new appeal hearing.

Division of joint property in a civil marriage

The legislation of the Russian Federation does not recognize the so-called civil marriage, that is, a union without official registration, as matrimony. On him provisions do not apply. occurs in accordance with Art. 252 of the Civil Code of the Russian Federation as property in shared ownership.

• The allocation of a co-owner's share occurs on his initiative. Each of the common-law spouses may demand the division of property acquired with common income in the process of joint farming.
• There are two ways to divide property: by voluntary agreement and by court decision. The first one is preferable.
• If the co-owners cannot reach an agreement, the interested common-law spouse has the right to go to court.

The allocation of shares occurs in kind. If this is not possible, one of the spouses is awarded property of equal value or monetary compensation (clauses 3-5 of Article 252 of the Civil Code of the Russian Federation).