How is joint property divided in a divorce? What does the law say about the joint property of spouses. What property is not divided in a divorce

If the spouses have common minor children, divorce is possible only in court. So the law protects their personal and property rights. And although children do not participate in the divorce process, the court decision regarding living with one of the parents, alimony payments, property division directly affects them.

Division of property of spouses and children

Children have no rights to their parents' property. They can acquire ownership of parental property only by gift or inheritance after death. Therefore, they do not participate in the division of property during a divorce.

But the situation changes dramatically if we are talking on property belonging to minor children, acquired for them, registered in their name. This may be real estate, bank deposits, personal items (clothes and shoes, musical instruments, Sports Equipment, books, educational supplies). This property acquires a special legal regime - it is not subject to division between spouses. Without any compensation, it is transferred to the spouse with whom the children will remain after the divorce. Even if the children's property is eventually sold, the second spouse cannot count on half of the proceeds - it also belongs to the child.

The parent with whom the son or daughter lives with can dispose of children's property until the child reaches the age of majority. But, although parents have the right to make transactions with property minor child on his behalf, the state, represented by the body of guardianship and guardianship, controls this process. For example, without the consent of the guardianship and guardianship authority, it is impossible to sell, exchange, donate the child's real estate. This measure is aimed at additional protection of the property rights of minors.

Challenging children's ownership of property

Sometimes one of the spouses disputes the fact that the child owns or needs certain property.

For example. Several years ago, the couple purchased a computer, assuming that all family members, including a minor daughter, would use it. During the division of property, the child's ownership of the computer was challenged.

Another example. The husband claimed the division of the piano, which was purchased with family funds. The wife, in turn, presented evidence to the court that the piano was used exclusively by her son, who studies at music school and practice daily.

To such contentious issues were resolved in favor of the child (or, conversely, the parent who disputes the ownership of children's property), it is necessary to take care of the evidence - when, at whose expense, for whom the property was acquired, who uses the property.

How to divide property: order and procedure

Now consider how divorcing parents divide jointly acquired property.

As already mentioned, the division procedure can occur:

voluntarily - by written agreement of the spouses;
forcibly - by a court decision when a husband or wife applies with a claim for the division of property to the court.

Agreement on the division of property

The process of dividing property will be much faster and less troublesome if the spouses are able to agree on everything themselves, and then state the agreements reached in writing and notarize the document. This can be done both before the divorce, during the divorce process, and also after the dissolution of the marriage.

The advantage of a voluntary agreement is the ability to avoid a lengthy and costly division process, as well as the ability to independently reach a compromise on all property issues. For example, spouses can agree on an unequal division, they can determine for themselves who gets what property.

An agreement on the division of property may contain the following information:

Date and place of conclusion of the agreement;
Information about spouses - full name, date of birth, place of residence;
Data on the date and place of conclusion and / or registration of marriage;
A list of jointly acquired property with an indication of the estimated value;
A list of property that is not subject to division with an indication of the reason (is the personal property of the husband or wife, belongs to the child);
The procedure for the division of joint property;
Additional terms;
Spouses' signatures;
Notary certification.

The marital agreement must be notarized - otherwise it will not be legally binding. The cost of notarizing the agreement is much lower than the cost of paying the state fee when filing a claim, which is calculated based on the value of the disputed property.

Division of property in court

The division of property in court is a procedure that can be initiated by one or both spouses by filing a statement of claim with the court, if it was not possible to reach an agreement out of court.

You can file a claim for the division of joint property either at the same time as the divorce, or before or after it. The judicial procedure for the division of property can be quite long or relatively fast - it all depends on the complexity of property disputes between husband and wife.

If the cost of joint property is more than 50 thousand rubles, the claim will be considered by the district or city court at the place of residence of the defendant.

Do children count when dividing property?

As already mentioned, divorce occurs only in court if the couple has common children who have not reached the age of majority. But the dissolution of marriage and the division of property - judicial procedures that may occur in different time. Although the result of the division of parental property will directly affect the children, they do not take part in the division procedure and cannot claim the property.

However, the fact of the presence of minor children may have an impact on the order of division and the proportion of shares. As you know, the shares of husband and wife are recognized as equal. However, if, after a divorce, minors and especially young children remain living with their mother or father, the court may depart from the principle of equality by dividing the property into unequal shares. The share of the parent who is responsible for raising the child after the divorce can be increased. This measure is aimed primarily at protecting the rights of the child.

However, it should be noted that this is only a right, not an obligation of the court. Moreover, this is the exception rather than the rule. The court, at its discretion, decides whether to increase the share of one of the spouses in the common property or not. It will not be superfluous to ask the court about this, referring to the relevant provision in the law.

Alimony or an increase in a share in joint property?

As mentioned above, when dividing marital property, the court adheres to the principle of equality of shares. That is, it divides everything in half.

But, in exceptional cases, the court has the right to depart from this principle and divide everything in other proportions. The reason for this may be minor children left to live with one of the spouses after a divorce. Such a spouse receives most of the property.

But! If the other spouse pays child support for minor children who do not live with him, most likely, marital property will be divided equally.

If the children are adults

According to article 60 of the RF IC, children and parents do not have the right to claim each other's property. The property of children, especially adults, spouses do not have the right to include in the composition of the disputed property and divide. And, on the contrary, adult children do not take part in the procedure for dividing the jointly acquired property of the parents.

However, there is an exception to the general rule. If an adult son or daughter is incapacitated and is dependent on one of the parents, the division of property is made differently. In particular, the property that is joint, but required for the life support of an incapacitated son or daughter, is not included in the disputed property and is not subject to division. It remains at the disposal of the spouse who exercises guardianship or guardianship over an incapacitated adult son or daughter. This measure is intended to protect the rights and preserve the necessary conditions the life of a disabled person.

Judicial practice of division of property in the presence of children

Each divorce process is individual, and the outcome is unpredictable. Sometimes the decision of the court of first instance is overturned by a higher court on the complaint of one or both spouses. Sometimes judgment does not meet the stated requirements.

Consider a few examples of the division of property in the presence of children.

Example. During family life apartment was purchased. Children were born in the family. How will the property be divided in a divorce?

Most likely the apartment will be divided in half. The presence of children in most cases does not affect the decision of the court.

Another example. Even before marriage, the man took out a mortgage. The loan was also repaid during family life, partly at the expense of joint funds. How will mortgage real estate be divided, given that there are minor children in the family?

Having underage children probably won't affect the court's decision. The husband will receive a larger share of the apartment - in proportion to the self-paid part of the loan before marriage and half of the jointly paid part of the loan in marriage. The wife will receive a smaller portion, proportionate to half of the part of the loan repaid from the joint funds. Most likely, this smaller part will be in the form of monetary compensation. The apartment itself, along with the remaining debts on the loan, will go to her husband.

But! If the children are left with the wife, but they do not have their own place of residence, the court may retain the right to use the husband's apartment for an indefinite period.

One more example. During their married life, husband and wife bought an apartment and had children. In a lawsuit, the apartment was divided equally.

However, the spouses made an agreement according to which half of the husband's apartment was transferred to his wife as alimony. Thus, the mother and children remained provided with housing, and the father was released from the payment of alimony.

Unfortunately, part family unions ends with the dissolution of the marriage, while disputes often occur during the division of joint property between former spouses. Many couples during a divorce cannot agree on what property will go to whom, often people confuse joint and personal property, do not know the procedure and procedure for dividing both joint property in general and its individual types.

Jointly acquired property in a divorce

Under the joint property (joint property) according to the Civil Code and the UK means the property acquired by a married couple during the marriage, regardless of whether both spouses or only one of them earned money in family budget.

At the same time, it does not matter which of the spouses is registered with this or that property, if the property was acquired (significantly improved) in marriage, it is considered joint.

What is considered common property

Joint ownership includes:

the income of each of the spouses received by them during the marriage;
pension, social and other payments, but only those that do not have a designated purpose;
movable and immovable property acquired by a couple during family life;
income received as a result of entrepreneurial activity;
shares in the capital, shares, shares and other securities;
dividends on shares and interest on bank deposits, but only if these shares or deposits are also joint property.

What property is considered personal

The personal property of each spouse is:

property acquired before marriage;
property received by inheritance;
present;
things intended for individual use;
right to intellectual property.

At the same time, expensive items, even if they are used by only one of the spouses, are not considered personal. For example, an expensive antique necklace, if it is not inherited or donated, will be considered joint property in the event of a partition, and not a personal item belonging only to the wife. At the same time simple jewelry, bought with joint money, will be recognized as personal.

Common property rights

Regardless of whether one of the spouses had income during the period of marital relations or did not bring any money to the family “piggy bank”, he still has the right to part of the joint property during the division.

What is shared

Only jointly acquired property can be divided during a divorce, namely:

real estate acquired during the marriage;
deposits in banks, securities (except those held by the spouses before marriage);
other movable and immovable property.

At the same time, it does not matter which of the spouses and how much contributed to the family budget, both have the right to half of the joint property if they decide to divorce and divide it.

What can't be divided

The personal property of the spouses is not subject to division, namely:

acquired before marriage;
purchased with the personal funds of one of the spouses;
received as a gift or inherited;
personal belongings (except for especially expensive property, such as antiques, antique jewelry, etc.).

There is an exception to this rule: if personal property during the period of marriage has been significantly improved at the expense of joint funds or personal money of the second spouse, it becomes joint and is subject to division.

For example, a spouse had an apartment she bought before marriage. But during the period life together at the expense of the husband's personal funds, the living quarters were overhauled, while its cost doubled. In this case, the property ceases to be personal property and is considered joint.

How is property acquired during marriage divided in a divorce?

There are three options for the division of joint property:

By marriage contract.
In accordance with a voluntary agreement.
By court.

marriage contract

In the Russian Federation, at present, the conclusion of a marriage contract is a rare occurrence. Mostly successful businessmen resort to it to protect their business in the event of a divorce. The contract can be concluded both before marriage and during marital relations but until the dissolution of the marriage is initiated.

In it, the signatories spell out the procedure for dividing property in the event of a divorce and division, and it is possible to stipulate the procedure for dividing not only existing property, but also property intended to be acquired.

Agreement

The division of joint property is possible both in marriage and after its dissolution, the main thing is that both spouses can find a consensus. The algorithm for concluding an agreement is as follows:

Preparation of the project and coordination of the partition procedure.
A visit to a notary who checks the document for compliance with it Russian legislation and certifies in case of its legitimacy.
Signing of the agreement by the parties.

Section options are negotiated by the signatories, it can be:

Division in equal or unequal shares.
Transfer of property to one with the obligatory payment of monetary compensation to the second spouse.
Broadcast various items property in different variations to each of the signatories.

By court

If agreement on the section cannot be reached, then the third option remains -. The procedure is as follows:

Making a claim.
Collection of all required documentation for the court.
Payment of state duty.
Filing a claim.
participation in the process.
Receiving a court verdict.

Features of the division of different types of joint property

Different kinds and types of property are divided in different ways. The procedure for dividing a vehicle and a land plot or an apartment and country house cannot be the same, as these types of property are different.

Consider how some of the most common of them are divided.

Apartment

The section of anyone is affected by her legal status. Housing can be:

in shared ownership;
jointly owned;
in the personal property of one of the spouses.

The easiest way to divide a property located in fractional ownership, everything is simple here: what share you own, that one will get during the division.

If the apartment is in joint ownership, then the shares of its owners are not defined, when dividing, it is first necessary to establish the shares of the husband and wife, and only then proceed to the division.

The most difficult is the option of dividing housing located in personal property.

By law, personal property is not subject to division, it remains entirely with the spouse whose property it is.

But during the period of marriage, housing could be improved: rebuilt, overhauled, while its cost increases significantly, and in the vast majority of cases with the involvement of joint funds. It will be enough for the second spouse to prove that he contributed to the increase in the price of the disputed apartment in order to be entitled to its share.

If there are children

Children cannot claim parental property if they are not its co-owners. In cases where the child has a share in the living quarters, then in the event of a divorce, it passes to the parent, with whom the minor remains.

For example, both spouses and their joint child had shares in a dwelling, each of which is equal to one third. If minor child remains after the divorce to live with her mother, then she receives two-thirds of the property, the husband remains one-third.

If the apartment is one-room

In fact, two are impossible, Cohabitation after a divorce is also unlikely, there are several options for the section:

The property is transferred to one spouse, the second in return receives another joint property equal in value to the dwelling. For example, the wife gets an apartment, and the husband gets a car.
Sale of residential premises and division of the funds received in accordance with the shares.

Privatized apartment

The section of the apartment bought in marriage and in the same period differ significantly. In the first variant, the legislation does not see a difference - a living space is issued for one spouse or for both, in any case it is divided equally. But if the dwelling was privatized for one spouse, then when the second spouse is divided, he has no right to it.

In such a situation, he may lose any opportunity to even use the residential premises, if, for example, the period of his registration in the residential premises (with temporary registration) has expired.

Mortgage

As a rule, it is issued to one of the spouses (to the one who takes mortgage). Of course, both are involved in paying off the mortgage, so each of the couple has the right to a share in the residential premises, but this is much more difficult to implement.

Most often, former spouses try to reissue a loan for both, but banks are not always willing to go for such a procedure, especially if the second spouse has a low income.

You can simplify the division of such a property if you take care of it in advance. There are two options:

Conclude a marriage contract.
Sign a special agreement with the bank, where the parties will prescribe the procedure for division and payment under the loan agreement in the event of a divorce and division of property.

Vehicle (TC)

It is considered indivisible property, since in fact it cannot be divided. There are several section options:

the car is transferred to the ownership of one, the second in return receives monetary compensation in the amount of half the cost of the vehicle;
similarly, the car is transferred to one spouse, and the second receives other property, at a cost equal to the price of the car;
The vehicle is for sale, the proceeds are divided;
the car is transferred to a third party, for example, an adult joint child or another family member.

Shares, other securities, joint ventures

If shares or other securities were acquired during the marriage, then their division takes place in the same manner as the division of other joint property - equally.

If it is actually divided (in the case when the family owns a controlling stake), then both spouses become equity participants and are subsequently forced to conduct all business jointly.

As a rule, during a divorce, rarely one of the former spouses maintains a trusting and benevolent relationship, therefore, it is usually practiced to buy back shares from one of the spouses from the other. Of course, this option does not benefit the enterprise.

It is much easier to divide the securities if the spouses own a small block of shares, they simply divide it in half.

Earth

It is divided in the same way as any other joint property - equally. But there are many nuances in the division of land.

Which plots of land can be divided and which are indivisible

Not all land plots can be divided in kind, there are a number of conditions that must be met during the division, namely:

Secondary plots must have the same status as the primary and comply with the standards established for lands of a certain purpose in terms of size.
Each newly formed site must have free access.
It is not allowed to have disputed objects on a divisible land plot.

If these conditions cannot be met, the plot is recognized as indivisible.

In this case, you can try to divide the land in alternative ways:

The allotment remains in the ownership of one spouse, the second receives monetary compensation in the amount of half the value of the land or other equivalent property.
Spouses sell the property, the proceeds are divided in half or in unequal shares (by agreement).
The earth is not divided at all, ex-husband and the wife agree on the use of the plot, determining which of them will take what part of the land for use.

Loans

The couple decided to divorce, but there are. What to do in such cases? First you need to decide what the loan was taken for. If in order to purchase property that is planned to be divided during a divorce, then it is advisable to try to renegotiate the loan agreement for both spouses.

Banks are reluctant to undertake such debt restructuring.

If one of the spouses took out a loan to use it for personal purposes, for example, to pay for studies or for a ticket to a sanatorium, then he will repay it himself.

personal property

According to the law, personal property is not subject to division. But there are cases when spouses include very expensive and valuable things, for example, antiques or antique jewelry with precious stones, the cost of which is often determined in the hundreds of thousands or millions.

For example, the husband is a famous violinist and an old instrument of a famous master was bought for him to play. The cost of such violins is huge, the price can reach several million rubles. On the one hand, the husband needs the tool for work, so he considers the tool his personal property, on the other hand, it is a very valuable item, and, therefore, is a joint property. Most likely, the court will decide on the recognition of the violin as joint property subject to division.

How is property divided during a divorce if the wife is the owner

It makes no difference to whom the property purchased in marriage with joint funds was registered, it will still be considered joint. But this rule applies if the property was acquired, and not inherited or donated. In this case, the options are:

The property was gifted to the wife. The husband believes that the gift was for the family, and not separately to his wife. In this case, if he proves that the property was not presented personally to his wife, but by the two of them, then it is divided equally. Evidence of one or another variant of donation can be testimonies or deeds of deed.
The wife inherited some property. She is the full owner and should not share it with anyone.
The property was bought during the period of matrimonial relations, but at the personal expense of the wife. Such property is not divided, but she must prove that her money was used for the purchase, statements from bank accounts opened before marriage, a contract for the sale of her personal property, can help in this.

How is property divided in a divorce? This question needs to be decided in advance, and not to look for an answer to it at the very last moment. Unfortunately, statistics show that divorces happen more and more every year. In a significant proportion of cases, spouses cannot part amicably. How loans are divided during a divorce, who gets the animals, who the children stay with - it's all very important. difficult questions, the answers to which can only be found in the current legislation. In this case, in each case, standard schemes are used, which differ little from each other.

How property is divided in a divorce

To begin with, when applying to the court, it will be necessary to pay a state fee. As a general rule, it is the plaintiff who will have to contribute the money. The issue of the division of property can be considered by the judge simultaneously with the case of the divorce itself, if the spouses cannot decide everything on their own. How is property divided in a divorce? The conversation should start, perhaps, with the fact that all the property of the spouses under the current legislation is their common property.

Jointly acquired property: what is it?

Based on the Family Code, it is customary to include:

The income of any of the spouses received from any activity;

That immovable and, of course, movable property that was purchased with jointly earned money;

Pensions, as well as all kinds of monetary compensation, but only those that do not have any special purpose;

Shares in business, cash deposits, securities and the like.

What does not qualify as joint property?

That real estate and that property that were acquired even before the moment of marriage;

Property received by either of the spouses by inheritance or as a gift;

Real estate registered in the ownership of one of the spouses (primary privatization);

Any property that someone acquired with funds accumulated before marriage;

Property belonging to children of divorced spouses who have not reached the age of majority;

Items for personal use (with the exception of all kinds of jewelry and the like).

Section Features

How is property divided in a divorce? The case can drag on for a long time if each of the spouses does not want to concede what, for one reason or another, considers his own. It is good if there are sales receipts or any other documents that can confirm the fact of purchase. Great importance have witness statements.

How is the property divided in a divorce?

First you need to determine whether it refers to jointly acquired property. What will happen if she treats him? IN this case everything is simple - it is divided, since both sides have rights to it. Shares? They must be defined. If this is not possible, then they will be considered equal. An apartment in which one of the spouses moved in after marriage cannot remain his property after a divorce.

Conclusion

How is property divided in a divorce? To avoid such issues, we recommend concluding marriage contract.

When we get married, we plan to live together for a long and happy life without quarrels and scandals. Reality often makes adjustments to the plans of the newlyweds. Everyday problems, material difficulties, inability to find mutual language and resolve disputes - all these circumstances lead to family relationships to collapse.

People disperse and fearing to lose what they have acquired, they wonder how property is divided during a divorce. The Civil Code provides exhaustive answers to all questions, so it is necessary to be guided by its provisions.

Joint property and types of division

According to the provisions of Art. 256 of the Civil Code of the Russian Federation, all property acquired during the period of marriage is considered jointly acquired, unless otherwise specified in the agreement concluded by the husband and wife earlier. This category includes:

income from the performance of labor duties or own business;
social benefits from the state;
benefits from intellectual property;
securities;
stakes in legal entities;
real estate;
movable assets.

From the point of view of the Civil Code of the Russian Federation, it does not matter to whom jointly acquired property is registered: in any case, it is recognized as common.

The division of property in a divorce occurs in one of two ways:

Voluntarily

This method allows yesterday's husband and wife to save time, money and effort on litigation. They agree among themselves about who will receive what values and draw up the compromise reached in writing. The paper must be notarized, otherwise it will not have legal force.

court order

If the parties are unable to reach an agreement on their own, the court will decide their issue. The judge analyzes the composition and total value of the assets belonging to the couple and determines which shares will go to each of the spouses.

Husband and wife have the right to apply to the court with a request to issue a more “expensive” share, subject to payment of material compensation to the other party.

Property that is not shared

When deciding what is jointly acquired property, the court excludes from consideration following types material assets:

immovable and movable objects that citizens had before marriage;
gifts and valuables received as an inheritance;
intellectual property rights;
items for personal use.

The last category does not include items of luxury and jewelry. For example, the wife will not be able to prove to the court that the collection of diamonds and the black lam fur coat are objects of her personal use.

Change in the value of the spouse's shares

Jointly acquired property of the spouses is not always divided in the ratio of 50:50. Exist objective reasons on which the court may decide to leave a large share to the husband or wife:

Minor children who will live with him remain under the guardianship of the spouse.
A person became disabled during marriage due to the duties of a family man. For example, while collecting funds for the treatment of his wife, the husband was forced to work at three jobs, got a heart attack and became disabled.
Spouse previously calculated on general obligations. For example, in order to repay the loan received, the wife had to work as a nanny on a gratuitous basis for the lender.

The court has the right to reduce the share of the spouse if it is proved that:

He long time did not work during the period of marriage;
carelessly treated common property, due to which its value fell;
behaved antisocially, which caused the family to become indebted (for example, breaking an expensive shop window while drunk).

Attention! If a woman did not work because she was driving household and looked after children, her share in the division of property is not reduced.

General debts of spouses

Art. 39 of the RF IC clearly states that loans received during marriage are treated as “property”. Operate following rules their divisions:

The principle of equality. Initially, it is assumed that material obligations are split between husband and wife in a ratio of 50:50. However, the court has the right to derogate from this rule if there are objective grounds.
The court has the right to transfer loans to one of the debtors, provided that as a result of a divorce, property of comparable value departs to him. For example, an agreement is reached between the spouses that the wife fully repays the mortgage, but in the end becomes the sole owner of the apartment.

Credits are divided disproportionately if one of the parties makes a strong case in its favor. For example, the husband will be able to prove that mink coat, acquired on a consumer loan, was solely the satisfaction of the whim of his wife. He did not receive any benefit from the purchase.

Voluntary agreement

The law gives former spouses the opportunity to divide property in a divorce without a trial. According to Art. 38 of the RF IC, this is achieved by concluding an agreement. It can be signed during the period of marriage or after registering a break in relations. The document states:

what values are shared;
what shares go to each member of the couple;
how the division is carried out (through sale, payment of material compensation, etc.).

An agreement regarding property, the value of which exceeds 10 thousand rubles, must be drawn up in writing. Oral agreements are an unreliable solution: for three years, any of the former spouses retains the right to demand a division in court.

The agreement must contain:

Full name and passport details of the spouses;
form of relationship (dissolved or undissolved marriage);
list of values and shares;
the date and place of the contract;
signatures of the parties.

If property acquired during marriage is not divided equally, this should be specified in the contract as a separate clause.

The agreement is notarized and entered in the State Register - after that it becomes legally binding. A document may be recognized as null and void by the supervisory authority if it significantly worsens the position of one of the members of the couple, violates the interests of minor children, or contains serious legal errors.

Jointly acquired property during a divorce is a traditional object of disputes and lengthy litigation, leading to a loss of time, money and effort. To protect own interests without conflicts, you need to be guided by the provisions of the RF IC and the RF Civil Code. Experts advise first trying to reach a peace agreement, and only if the negotiations fail to sue.

As a rule, the question of how the jointly acquired property will be divided arises during the divorce proceedings, however, the division of property during marriage is also possible. But nevertheless, the section is always painful and long.

A civil law attorney can help you divide your property. A free consultation is available on our website around the clock.

How to quickly divide the property acquired jointly?

When couples are forced to divorce, they want to go through this procedure as soon as possible in order to get rid of the psychological and emotional problems. However, this will require:

Competent actions;
Time;
Plastic bag required documents.

Therefore, it will not be possible to quickly divide the property acquired jointly on your own, you will need to seek support from civil law lawyers.

How is the division of jointly acquired property after a divorce?

As everyone knows, the Civil and Family Code established that jointly acquired property must be divided after a divorce between spouses into equal shares. In addition, the property in any case will be divided by 50% between them, with the exception of things received by one of the spouses as a gift or inheritance. However, this requires the submission of documents confirming this fact to the court.

In addition, under certain circumstances, by a court decision, jointly acquired property may be divided in other, unequal, shares. But we'll talk about this further.

Division of property after divorce in the absence of a marriage contract

In law Russian Federation There are only two options for the division of property between spouses: by law and by marriage contract. First, we will analyze how the division of jointly acquired property takes place according to the law in the absence of a marriage contract.

The division of property between spouses equally occurs when legal regime possession of property and the absence of a marriage contract.

Most often, we are talking about property acquired by spouses in the period after the wedding and before the divorce:

Vehicles;
Real estate:
1. Houses, apartments;
2. Land;
3. Country houses and gardens.
Large Appliances and furniture;
Luxuries;
Financial savings, deposits.

Both spouses will have equal rights to own these types of property. To enforce the law on the equal division of property, you can:

Draw up and sign an agreement on the division of property after a divorce in a notary's office;
Submit statement of claim to the court on the division of property jointly owned with the spouse.

In addition, there are types of property that cannot be divided between spouses.

What property is not divided between spouses?

Agree, is it unfair to divide between the spouses the property that they acquired independently, received as a gift or by inheritance? Of course, in the absence of knowledge of Family and Civil Law, as well as in the absence of care on the part of the court, the spouse may lose half of the property that, according to the law, should have remained in his property.

So, in order not to get into a similar situation, we carefully study Article 36 Family Code, which lists all types of property that are not included in the category "communally acquired property":

All types of property that the spouse acquired before the conclusion marriage union. Including real estate and vehicles;
Property received by the spouse on a gratuitous basis:
1. As a gift, with the existing donation agreement. For example, the husband's parents gave him an apartment for a wedding, drawing up a donation agreement in his name. The wife in this situation cannot claim half of the apartment;
2. Inherited property.
Personal household items:
1. Clothes, shoes;
2. Hygiene and personal care items.

Thus, after a divorce, a person always retains the right to own property that he owned before marriage, gifts, inheritance, and personal belongings. The question of the division of property concerns only large equipment, expensive items, real estate and transport.

Gifts, inheritances and property purchased before marriage are retained by the person who purchased.

However, these rules cease to apply if there is a marriage contract. If the marriage contract was concluded after a period of time after the registration of the marriage, then the property acquired during the period after the wedding and before the signing of the contract will be divided on the basis of general rules, i.e. equally.

Division of jointly acquired property if the spouses have a child

Let's immediately list those items that a priori belong to the child, and which cannot be the subject of a dispute between the parents:

Personal belongings of the child that meet the basic needs:
1. Clothing, footwear, personal hygiene items;
2. Household items (baby stroller, crib, etc.);
Developing subjects, as well as school, educational, sports or any other inventory;
Gifts from other persons, including real estate;
Bank accounts and deposits opened in the name of the child, including the account to which child support is transferred.

In addition, under certain circumstances, the court may divide the property not on a 50-50 basis, but with the allocation of a share of the property for a minor child.

For example, if a divorce married couple where the man works and the wife was at home with two children, then the court may divide the property in one of the following options:

½ share of the property - to the man, and the remaining property is left to the woman and children;
The second option: the woman receives housing, and the man everything else.

Thus, the court can resolve a property dispute not only in half, but also taking into account the interests of children under 18 years of age.

Division of property under a marriage contract

Property acquired jointly is divided equally. However, when signing a marriage contract, the property of the spouses after the divorce will be divided according to the conditions established by them themselves.

If the marriage contract was concluded after a period of time after the registration of the marriage, then the property acquired in the period after the wedding and before the signing of the contract will be divided on the basis of general rules, that is, equally.

The marriage contract regulates the following issues:

In what shares / percentages will the property acquired jointly be divided after the divorce;
Enumeration of the conditions under which, one of the spouses loses the right to property acquired jointly. For example, if the spouse was convicted of treason or a crime against the other spouse;
How is the property right distributed between the spouses on the newly acquired property.

Despite the common misconception, a marriage contract can be concluded:

Before the wedding, but it will begin to act from the moment the marriage is concluded;
During wedding registration, simultaneously with the signing of the marriage certificate;
During the marriage.

In order for the marriage contract to enter into legal force, notarization is required. It will be possible to divide property both during marriage and after a divorce.

How to start the division of property in a divorce?

Most questions about divorce proceedings, which our specialist consultants receive, on how and where to start the division of property.

Get in touch with your spouse and organize a constructive dialogue with the question of how to share the property acquired jointly and common debt obligations;
When finding a compromise solution, start collecting documents for drawing up an agreement on the division of property in a notary's office;
In the absence of the consent of the second spouse, start preparing for the trial:
1. Collection of documents on the acquisition of all property;
2. Finding an Attorney or an Experienced Family Law Attorney;
3. Conducting a trial.

Try to divide the property acquired together according to mutual consent using a property division agreement to save time, money and nerves.

Lawyers, as one, convince their clients to resolve the issue of division of jointly acquired property peacefully, without initiating a lawsuit, in order to avoid red tape and unnecessary expenses for paying lawyer services, fees, and so on. In addition, the opportunity to resolve the issue peacefully frees you from moral hassle.

Do not waste your time, call us, our telephone consultation is free, right now you will receive answers to your questions!

Phone in Moscow and the Moscow region:
+7 499 350-36-87

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+7 812 309-46-91

For the division of property judicial order you need to draw up and file a claim for the division of jointly acquired property.

Division of jointly acquired property after divorce without litigation

So, to avoid a property division lawsuit, you need to:

Come to joint agreement on the division of property with a spouse;
Draw up an agreement and certify it with a notary;
Produce the actual partition.

If both parties are ready for division and agree to a compromise, then it will pass without trial and the property acquired jointly will be safely divided or left to one of them at the request of the other.

To prevent future litigation over property disputes between the former spouses, secure the division agreement with notarization.

Although by law it is not at all necessary to certify an agreement on the division of property with a notary, it is better to do this in order to consolidate this decision once and for all and avoid other disputes.

Agreement on the division of property after a divorce: provisions and rules for registration

An oral agreement on the division of jointly acquired property is not allowed, and therefore does not have legal force.

Thus, if the spouses have come to an agreement on the division of property, they must:

Draw up a written act on the division of property indicating “someone”, i.e. what property goes to each of them, and in what shares.
Contact a notary to verify the correctness of the agreement;
Put signatures in the presence of a notary who certifies the authenticity of the document.

Please note that the agreement must meet the following requirements:

Written in simple, legally literate language;
The document should contain only property issues; it is not allowed to enter the section of children or other disputes;
The agreement must specify exactly the size of the shares of property due to each of the spouses.

Get free consultation family law lawyer is available on our website 24/7.

If you doubt the possibility of drawing up an agreement on your own, then it is better to order this service from a lawyer or notary.

Deadline for division of property after divorce

Please note that according to Family and Civil Codes RF, there are two options for setting a time limit for the division of property:

There is no time limit for the peaceful division of property without a trial:

Spouses may at any time voluntarily divide the jointly acquired property at any time, including several years after the dissolution of the marriage.

And therefore, to divide the property acquired jointly under a voluntary peace agreement on the division of property, including real estate and cash accounts.

Division of property in court within 3 years from the date of termination of the contract:

That is, if a property dispute arises between the spouses, then you can go to court to protect your rights only within 3 years from the date of the divorce, which is also the period limitation period(Article 38 of the Family Code of the Russian Federation).

Is it possible to apply for the division of property if more than 3 years have passed since the divorce?

Unfortunately, if more than 3 years have passed since the divorce, then it is possible to divide the property acquired jointly only under a peace treaty.

However, if your rights were violated by the other spouse, then you can file for restoration of rights within 3 years from the date of discovery of this fact, and not from the date of divorce. For example, if the spouse sold common property, but were not notified of this fact and did not receive their financial compensation.

How to issue a waiver of property in favor of a spouse during a divorce?

WITH legal point of view, it is impossible to issue a waiver of property in favor of the spouse, since this document and even the concept does not exist in Russian civil or family law.

A document with the title “renunciation of a share of property in favor of a spouse” automatically becomes void, i.e. do not have legal force.

In order to actually renounce your share of the property and transfer it to your wife (husband), you need to draw up a donation agreement in her (his) name. This agreement issued in a notary's office.

How to value property during its division?

How is the property acquired jointly divided equally: by the number of things, the area or the cost? Of course, the value of the property, the current market policy at the time of the division of the property.

So, the property appraisal will include:

current market value;
The degree of deterioration of the property;
Dynamics of market value.

The court will consider only an expert opinion obtained from a competent organization, in addition, the court may accept a certificate from the Chamber of Commerce and Industry. Thus, be prepared for the fact that obtaining an assessment document takes time, and therefore order it in advance.

You can get an initial consultation of a lawyer on preparing for a court on the division of property on our website around the clock.

Can property division be avoided?

Many are wondering how to protect their property from division in the event of marriage. The only way out is to conclude a marriage contract. As we wrote above, this can be done during the registration of marriage or during marriage. It is also possible to sign a marriage contract before the marriage ceremony, but it will take effect from the moment the marriage is registered.

An alternative to a marriage contract is an agreement on the division of property. However, the agreement will not give a 100% guarantee that property disputes will be avoided.

Claim for the division of property: where to file and who draws up?

The choice of the place of filing a claim depends on the total value of the entire property:

The value of the property is less than 50 thousand rubles - the claim is filed with the world court at the place of residence of the defendant;
The value of the property is more than 50 thousand rubles - the claim is filed in district court, also at the address of the defendant's registration.

The claim for the division of property must contain the following information:

In the upper right corner:
1. Full name and location of the court;
2. Full name and contact details (address and phone number) of the parties: the plaintiff and the defendant;
3. The cost of the claim.
In the main body of the document:
1. A complete list of property with an indication of the estimated value;
2. The list is evidence that the dispute is about property acquired jointly;
3. indication desired method division of property;
4. Additional circumstances deserving the attention of the court.
List of attached documents;
Date and signature of the complainant.

The document is submitted to the court office, depending on the type of court chosen.

List of required documents

Gathering the necessary documents can take quite a bit. long time, so try to start the collection in advance.

You will need:

Copies of the claim for each of the parties involved in the lawsuit;
Copies of title documents on the ownership of the property acquired jointly. For example, a contract of sale for an apartment and a certificate of ownership;
Documents with analysis of real estate valuation;
Claimant's passport;
Marriage certificate;
Certificate of divorce, if the marriage has already been dissolved;
Birth certificate of children, if they are under 18 years old to exclude children's things from the list of property to be divided;
Receipt of payment of state duty;

In addition, you may need additional documents at various circumstances affairs. For example, documents justifying the unemployment of a woman on maternity leave.

Please note that the legislation of Russia is constantly changing and the information written by us may become outdated. In order to resolve your issue with family law, we advise you to seek legal advice in support of the site. To do this, use the form below or contact the specialist directly in the chat on the right side of the screen.