Division of matrimonial property by the Supreme Court. Cases when the division of the common property of the spouses can be carried out in court. The court takes into account both the income and debts of the parties

SOLUTION

name of the Russian Federation

Nagatinsky District Court of Moscow, consisting of the presiding federal judge K., with secretary R.,

having considered in open court a civil case on the claim of M. to M. on the division of jointly acquired property,

SET UP:

M. filed a lawsuit against M. on the division of jointly acquired property. In support of the stated requirements, she indicated that the parties were married, which was annulled by the decision of the justice of the peace of the judicial district of the Tsaritsyno district of Moscow. From marriage, spouses have common child, M.

During the period of marriage, the spouses acquired property, the division of jointly acquired property was not carried out, an agreement on this issue was not reached, a marriage contract was not concluded.

During the marriage, property was acquired that is jointly acquired and subject to division, namely:

– An apartment consisting of 2 rooms with a total area of ​​74.9 sq. m.;

– An apartment consisting of 3 rooms, with a total area of ​​80.2 sq. m.,

– An apartment consisting of 2 rooms, with a total area of ​​41.0 sq.m.;

- Unfinished one-story log house with an attic lit. Ah, veranda lit. a, with a total area of ​​93.8 sq.m., SNT "Zvezda", plot 65;

– Land plot located on agricultural land, provided for horticulture and horticulture, with a total area of ​​500 sq.m.;

— 2-storey residential building, total area 79 sq.m., inv. No. 1696, lit. A, A1a

- Land plot with a total area of ​​436 sq.m.;

- Automobile.

He believes that the shares in the jointly acquired property of the spouses are equal, in connection with which, he asks to determine the shares of ownership by 1/2 for each of the property. In the amended statement of claim, she asked the court to determine the following procedure: the following property should be transferred to the ownership of M.: 1. An apartment consisting of 2 rooms, with a total area of ​​​​74.9 square meters. m., the market value of 13,895,000.00 rubles; 2. Unfinished one-story log house with an attic lit. Ah, veranda lit. a, with a total area of ​​93.8 sq.m., located on a land plot of agricultural land, provided for gardening and horticulture, with a total area of ​​​​500 sq.m., the market value of an unfinished garden house and land plot is 1,462,000.00 rubles.

The following property should be transferred to M.'s ownership: 1. An apartment consisting of 3 rooms with a total area of ​​80.2 sq. m. m., market value of 15,406,000.00 rubles; 2. An apartment consisting of 2 rooms, with a total area of ​​41.0 sq.m., with a market value of 1,564,000.00 rubles; 3. 2-storey residential building with a total area of ​​79 sq.m., located on a land plot with a total area of ​​436 sq.m., with a market value of 1,218,000.00 rubles; 4. A car with a market value of 756,000.00 rubles.

Taking into account the proposed procedure, the total value of the property transferred to the plaintiff is 15,357,000.00 rubles, and to the Respondent - 18,944,000.00 rubles. on the basis of the foregoing, she also requested to recover from the defendant in her favor compensation for the excess share of the property transferred to the defendant, which amounts to 3,587,000.00 rubles.

The representative of the plaintiff at the hearing supported the claims on the grounds set forth in the claim.

The defendant did not appear at the hearing, was duly notified of the date and time, has a representative who received a copy of the claim, was notified of the date and time of the hearing, as evidenced by the receipt. Under such circumstances, the court considers it possible to consider the case, guided by Article. 167 Code of Civil Procedure of the Russian Federation, in the absence of the defendant according to the evidence in the case.

After hearing the representative of the plaintiff, examining the written materials of the case, the court finds the claims subject to satisfaction on the basis of the following.

As established at the hearing, the parties were married.

On February 25, 2013, on the basis of the decision of the justice of the peace of the court district of the Tsaritsyno district, the marriage registered by the Tsaritsyno registry office of Moscow between M. and M. was annulled. The decision of the court entered into force.

The parties from the marriage have a common minor daughter - M.

A marriage contract between the parties was not concluded, an agreement on the division of jointly acquired property between the parties was not reached.

During the marriage, the parties acquired the following property:

Apartment consisting of 2 rooms.

The market value of the dwelling according to the report is 13,895,000.00 (thirteen million eight hundred ninety-five thousand) rubles 00 kopecks.

Unfinished one-story log house with an attic lit. Ah, veranda lit. a, with a total area of ​​93.8 sq.m.

A land plot located on agricultural land, provided for horticulture and horticulture, with a total area of ​​500 sq.m.

According to the report, the market value of the unfinished garden house and land plot is 1,462,000.00 (one million four hundred and sixty two thousand) rubles 00 kopecks.

The apartment, consisting of 3 rooms, with a total area of ​​80.2 sq. m.

The market value of the dwelling according to the report is 15,406,000.00 (fifteen million four hundred and six thousand) rubles 00 kopecks.

An apartment consisting of 2 rooms with a total area of ​​41.0 sq.m.

The market value of the dwelling according to the report is 1,564,000.00 (one million five hundred and sixty four thousand) rubles 00 kopecks.

2-storey residential building, total area 79 sq.m., lit. A, A1, a.

Land plot with a total area of ​​436 sq.m.

According to the report, the market value of the residential building and the land plot is 1,218,000.00 (one million two hundred and eighteen thousand) rubles 00 kopecks.

Automobile.

According to the report, the market value of the vehicle is 756,000.00 (seven hundred fifty-six thousand) rubles 00 kopecks.

According to Art. 34 of the Family Code of the Russian Federation, property acquired by spouses during marriage is their joint property. The common property of the spouses is also movable and immovable things acquired at the expense of the joint income of the spouses, securities, shares, contributions, shares in the capital, contributed to credit institutions or other commercial organizations, and any other property acquired by the spouses during the marriage, regardless of whether in the name of which of the spouses it was acquired or in the name of which or by which of the spouses the money was contributed. The right to the common property of the spouses also belongs to the spouse who during the period of marriage was engaged in housekeeping, caring for children or, for other valid reasons, did not have an independent income.

Articles 37, 38 of the RF IC determine that the property of each spouse can be recognized as their joint property if it is established that during the marriage, at the expense of the common property of the spouses or the property of each of the spouses or the labor of one of the spouses, investments were made that significantly increase the cost of this property . The division of the property of the spouses can be made both during the marriage and after its dissolution at the request of any of the spouses. In the event of a dispute, the division of the common property of the spouses, as well as the determination of the shares of the spouses in this property, shall be carried out in a judicial proceeding. If property is transferred to one of the spouses, the value of which exceeds the share due to him, the other spouse may be awarded appropriate monetary or other compensation.

Based on Art. 39 of the Family Code of the Russian Federation, when dividing the common property of the spouses and determining shares in this property, the shares of the spouses are recognized as equal, unless otherwise provided by the agreement between the spouses.

In accordance with the requirements of Art. 56 Code of Civil Procedure of the Russian Federation, each party participating in the case must prove the circumstances to which it refers as the basis of its claims or objections.

In view of the failure to provide evidence refuting the arguments of the claim, the dispute was considered on the basis of the available materials.

Determining the value of the property, the court is guided by the conclusions submitted by the plaintiff on the determination of the market value of the property.

The court has no grounds not to trust the indicated conclusions, since they have not been challenged at the court session.

Considering that objections to the option of division of property proposed by the plaintiff, the defendant did not submit to the court, and the Family Code of the Russian Federation does not define criteria, with the exception of equality of the shares of the spouses (unless otherwise provided by the agreement between the spouses), which the court should be guided by when dividing the common property of the spouses, accepting taking into account the fact that the volume of the joint property of the parties allows the division to be made in a shared relationship, the court concludes that the shares of the spouses are equal, and taking into account the specific circumstances of the case, to divide the jointly acquired real estate in accordance with which: to recognize for M. the right ownership of the following property:

1. An apartment consisting of 2 rooms with a total area of ​​74.9 sq. m., the market value of 13,895,000.00 rubles;

2. Unfinished one-story log house with an attic lit. Ah, veranda lit. a, with a total area of ​​93.8 sq.m., located on a land plot of agricultural land, provided for gardening and horticulture, with a total area of ​​​​500 sq.m., the market value of an unfinished garden house and land plot is 1,462,000.00 rubles.

Thus, the total value of the property transferred to M. is: 13,895,000.00 rubles. + RUB 1,462,000.00 = RUB 15,357,000.00

Transfer the following property to the ownership of M.:

1. An apartment consisting of 3 rooms with a total area of ​​80.2 sq. m., market value of 15,406,000.00 rubles;

2. An apartment consisting of 2 rooms, with a total area of ​​41.0 sq.m., with a market value of 1,564,000.00 rubles;

3. 2-storey residential building with a total area of ​​79 sq.m., lit. A, A1,a, located on a land plot with a total area of ​​436 sq.m., with a market value of 1,218,000.00 rubles;

4. A car with a market value of 756,000.00 rubles.

The total value of the property transferred to M. is: 15,406,000.00 + 1,218,000.00 + 1,564,000.00 + 756,000.00 = 18,944,000.00 rubles.

Since, based on the market value of the property to be transferred to M., M.'s property share exceeds M.'s property share by 3,587,000.00 rubles. (18,944,000.00 - 15/557,000.00 = 3,587,000.00 rubles), the court finds it possible to recover from M. in favor of M. in compensation for the division of property 1,793,500.00 rubles, based on calculation 3,587,000.00 / 2 = 1,793,500.00 rubles.

The Court considers that the grounds provided for by Art. 39 of the Family Code of the Russian Federation, for derogation from the equality of the shares of spouses in jointly acquired property, is not available.

There are no grounds for derogating the equality of shares, since the shares of the spouses in the common property are not such.

In accordance with the requirements of Art. 98 of the Code of Civil Procedure of the Russian Federation, the defendant is subject to collection of state duty in proportion to the share in the disputed property, i.e. RUB 30,000.00

Based on the aforesaid and guided by Article. Art. 194-199 Code of Civil Procedure of the Russian Federation, court,

DECIDED:

Recognize for M. ownership of the following property:

– An apartment consisting of 2 rooms with a total area of ​​74.9 sq. m.

- Unfinished one-story log house with an attic lit. Ah, veranda lit. a, with a total area of ​​93.8 sq.m.

Judges of two instances, who incorrectly interpreted the norms of substantive law when dividing the property of former spouses, were corrected by the Supreme Court of the Russian Federation in a case that was included in the new 160-page

judicial practice of the Supreme Court,

for the current year.

As noted by the Supreme Court in the chapter devoted to the analysis of the practice of the Collegium for Civil Cases, property acquired during the marriage, but funds owned by one of the spouses personally, is not subject to the regime of common joint property of the spouses.

U. filed a lawsuit against P. on the division of jointly acquired property, referring to the fact that he was married to P. During the period of marriage, under a sale and purchase agreement, the spouses acquired an apartment in joint ownership. Since no marriage contract was concluded between the parties, no agreement was reached on the division of jointly acquired property, U. asked to divide the apartment between him and P. and recognize his ownership of 1/2 of the share in the right of common shared ownership of the disputed apartment.

Defendant P. did not recognize the claims, asked to recognize the claimant's ownership of 1/15 of the share in the right of common shared ownership of the disputed apartment, and behind it - the ownership of 14/15 of the share, given the purchase of the apartment at the defendant's personal funds in the amount of 1 RUB 750,000

The court found that since December 23, 2010 U. was married to P.. During the marriage, on the basis of a sale and purchase agreement dated February 11, 2011, the spouses purchased an apartment, the joint ownership of which was registered for them on March 10, 2011. The price of the purchased apartment was 1,995,000 rubles.

As it was established during the consideration of the case and it was not disputed by the parties, part of the funds in the amount of 1,750,000 rubles spent on the purchase of the said apartment was received by P. as a gift from P. L. (P.’s mother) under a donation agreement dated 11 February 2011. This amount was received by P.'s mother from the sale of an apartment that belonged to her by right of ownership. All the above transactions were made on the same day - February 11, 2011.

The marriage between U. and P. was dissolved on October 9, 2014. The division of the property of the spouses after the dissolution of the marriage between the parties was not carried out.

In resolving the dispute and satisfying the claims for the division of the disputed apartment between the spouses in equal shares, the court of first instance proceeded from the fact that an agreement had been reached between the parties on the acquisition of the apartment in common joint ownership, and since the funds received as a gift were contributed by P. according to her discretion for the common needs of the spouses - the purchase of an apartment, then this property is subject to the regime of joint property of the spouses.

The Court of Appeal agreed with the findings of the Court of First Instance.

The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation recognized that the conclusions of the courts were made in violation of substantive law.

In accordance with Art. 34 of the Family Code of the Russian Federation, property acquired by spouses during marriage is their joint property. The property acquired by the spouses during the marriage (common property of the spouses) includes the income of each spouse from labor activity, entrepreneurial activity and results of intellectual activity, pensions, allowances received by them, as well as other cash payments that do not have a special purpose (amounts financial assistance, amounts paid in compensation for damage in connection with disability due to injury or other damage to health, and others). The common property of the spouses is also movable and immovable things acquired at the expense of the joint income of the spouses, securities, shares, deposits, shares in the capital contributed to credit institutions or other commercial organizations, and any other property acquired by the spouses during the marriage, regardless of whether in the name of which of the spouses it was acquired or in the name of which or by which of the spouses the funds were deposited.

In accordance with paragraph 1 of Art. 36 of the RF IC, the property that belonged to each of the spouses before marriage, as well as the property received by one of the spouses during the marriage as a gift, by inheritance or other gratuitous transactions (the property of each of the spouses), is his property.

As established by the court, the source of the acquisition of the disputed apartment was the funds received by P. under a gratuitous transaction, as well as partially jointly acquired funds of the spouses.

According to the explanations contained in the fourth paragraph of paragraph 15 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated November 5, 1998 No. 15 “On the application of legislation by the courts when considering cases of divorce”, it is not common joint property acquired, although during marriage, but on the personal funds of one of the spouses that belonged to him before marriage, received as a gift or by inheritance, as well as personal items, with the exception of jewelry and other luxury items.

It follows from the above provisions that a legally significant circumstance in deciding whether to classify property as common property of the spouses is what funds (personal or common) and under what transactions (compensated or gratuitous) the property was acquired by one of the spouses during the marriage. Property acquired by one of the spouses in marriage under gratuitous civil law transactions (for example, by way of inheritance, donation, privatization) is not the common property of the spouses. The acquisition of property during the period of marriage, but with funds owned by one of the spouses personally, also excludes such property from the common joint property regime.

At the same time, such a legally significant circumstance as the use of funds belonging to P. personally for the acquisition of the disputed apartment was erroneously ignored by the court.

Concluding that the disputed apartment refers to the jointly acquired property of the spouses, the court proceeded from the absence in the contract for its purchase of conditions on the distribution of shares in the apartment.

At the same time, the court did not take into account that the funds received by P. as a gift in the amount of 1,750,000 rubles. and the apartments spent on the purchase were the personal property of P., since they were not acquired jointly during the period of marriage with the plaintiff and were not the joint income of the spouses.

The contribution of these funds for the purchase of an apartment does not change their nature of the personal property of P.

Thus, the shares of the parties in the right of ownership of the apartment were to be determined in proportion to the invested personal money defendant and joint funds of the parties.

This was not taken into account by the courts and resulted in the issuance of illegal judicial decisions (determination No. 45-KG16-16).

judicial practice, the Supreme Court of the Russian Federation, civil procedure,

The divorce process for many couples is a difficult period, when the unfulfilled hopes of creating a strong family are finally put to an end. And while both parties are in worries, or maybe considering plans for the near future, lawyers strongly recommend that they immediately resolve other issues related to divorce. One of them is the division of property.

Our articles talk about typical ways to resolve legal issues, but each case is unique.

If you want to know how to solve your particular problem, please use the online consultant form on the right or call the numbers below. It's fast and free!

General provisions on the division of property

All the property that was acquired during the marriage for the income of the husband or wife is included in the jointly acquired property.

Even if only one spouse worked and earned money and property was acquired during the marriage with this money, it will still be considered jointly acquired.

The legislator considered that housework, childcare, raising children also require considerable effort. If you hire separate workers for this, then not every family will have enough money for this, even if these funds come from the earnings of both spouses.

Therefore, the fact that one of them sacrificed his career for the sake of doing housework is considered by the legislator from this side. And it doesn't matter whether the decision was consciously made or forced, due to lack of work.

All jointly acquired property must be divided into two equal parts.. That is, each of the spouses has equal rights to it. For example, if a car was bought during marriage for the husband’s income and it was he who used it, the documents were drawn up for him, then during a divorce he must understand that the spouse has the same rights to this car as he does.

But the spouse must also understand that the jewelry that she acquired during the marriage and that only she wore should also be included in the total mass of jointly acquired property. Her husband has the same rights to all acquired luxury goods as she does, even her mink coat and expensive sheepskin coat.

Many divorcing couples, clinging to each other's throats during the division of property, seem to forget that not only assets, but also liabilities are subject to division. That is, debts that were acquired during the marriage will also have to be divided among themselves.

They took a car on credit, issued a mortgage on an apartment - in case of a divorce, please be kind enough to share the remaining loans.

Jointly acquired property does not include property that was acquired by spouses before or after marriage, or was inherited or donated to either of them personally.

If the spouses during the marriage lived in an apartment that the wife inherited from her parents, and she inherited jewelry from her mother and grandmother, and at that time her husband drove a car that he purchased before marriage, then all this listed property is not subject to division.

You can read more about the division of property here.

So, with the general provisions more or less clear. Are there deviations from them? Of course there is, and it all depends on what arguments the parties present at the court session itself. But it must be taken into account that far from everything that this or that side of the process will approve will be taken into account by the court.

If a spouse accuses his wife that she never worked anywhere, everything was bought with his money, then the court will not even react to this for the reasons indicated above. This is a very common argument in court, after which the spouse is perplexed why they were not heard and even suspect collusion and corruption. But The reason for this is simple - the current legislation.

Wives in court also often go too far, demanding to give all or most of it, because the children remain with them. The maximum that they can additionally count on in this regard is the property that is due to children and that is transferred during a divorce to the parent with whom these children remain.

By the way, you can read about the procedure for divorce through the court if you have children here. Also read about how to file for alimony in a divorce.

However, everything changes if a sane argument sounds in court. For example, if one spouse did not work for no reason, led an immoral lifestyle, caused damage to property by his behavior, then in such a situation the court may decide by which he will reduce the share of the jointly acquired property due to this spouse.

It happens that one of the spouses (more often it is the husband) becomes an inveterate drunkard, for a long time doesn't work anywhere. In the family, on this basis, there are daily scandals that turn into a fight, accompanied by damage to property. A spouse can take things out of the house in order to sell them for next to nothing and get a new dose of alcohol or drugs.

But in such situations, it must be borne in mind that words alone in court will not be enough. In order to prove the regularity of scandals, it is necessary to show copies of protocols of administrative detention, extracts from the call log of the nearest police station.

Damage to property can be proved by the same protocols of detention, which describe the circumstances of the offense.

If there were removals of things from the house, you need at least show police reports. And it is very fortunate if at least one of these statements contains materials confirming such facts. It may administrative protocols, in which there is data that a citizen acquired the things taken out or the thing for a pittance from one of the spouses.

All of these materials are great importance in court, much more than the testimonies of neighbors who are greatly annoyed by a drunken neighbor. But the testimony of neighbors in this case will not be superfluous.

We are talking about an uneven division of property, and in order to make a decision that will differ from the direct norm of the law, the judge needs a very good reason.

As mentioned above, the personal property of one of the spouses is not included in the total estate. In theory, an apartment received by inheritance, donated or bought before marriage by one of the spouses, is not subject to division. But in practice it may be different, and here again argument plays a big role..

For example, after marriage, the wife moves to her husband's apartment, which he inherited. The apartment needs serious renovation and the wife decides to use the money she has saved up to do a major home renovation.

After this repair, made at her expense, the apartment significantly changes its market value in the direction of increase. During a divorce, the argument that the apartment was repaired at the wife's personal expense will be taken into account and it is quite possible that, by a court decision, she will be entitled to part of this apartment.

The same applies to other personal property, which, as a result of repairs at the expense of the other spouse, changes its value upwards.

If the car that belonged to the wife before marriage cost 300 thousand rubles, and during the marriage the husband repaired it at his own expense and it began to cost 700 thousand rubles, then he has the right to claim part of this car after the divorce.

But, it must be borne in mind that this is true only when the repair was carried out at the personal expense of one of the spouses. His current income is not classified as such and is considered jointly acquired..

But even in this case, if the apartment or car of one of the spouses is being repaired for joint income, increasing its value, then during a divorce, the other spouse may claim some part of them.

For example, an apartment before marriage cost 2 million rubles. During the marriage, the spouses made repairs in it for the total income, and the apartment increased its value to 3.5 million rubles. At the time of the divorce, the other spouse has the right to claim a portion of this apartment, which will be equivalent to half of the changed value. In this case, this is half of 1.5 million rubles or 750 thousand rubles, which is almost equal to one-fifth of the apartment (1/4.7).

It is this part of the apartment that the court can award to the other spouse, although in many cases, in the decision of the owner of the apartment, they are obliged to pay this amount to the former spouse, in this case 750 thousand rubles.

As in the previous case, the arguments must be based on facts. They are data on the availability of financial resources before marriage, on the sale of some property, the proceeds from which went to repairs. It is very good when all changes to an apartment or a car were made in a timely manner in the registration certificate. This increases the likelihood that the court will make the right decision.

If the money that was under the pillow went to increase the value of the property, and their origin is unknown, then it will be very difficult to prove something in court.

How is the valuation and division of various property, such as an apartment or a car, usually carried out in court? For general cases, the court does not care how much it costs. The cost data indicated in the documents issued by the technical inventory bureau is usually much lower than the market value. But this data is used only to pay the state fee when submitting documents to the court for consideration.

The court awards shares of this or that property, leaving it up to the former spouses how each of them will use ½ of the apartment, whether they will change an indivisible housing, such as an apartment, house, garage or car, or sell it and divide the money.

However, there are situations when you need to know the real value of the property. Some of them are described above when we are talking about the division of an apartment or a car that increased its value during the marriage. In such situations not possible without an examination.

An appropriate expert, for example, an employee from the BTI, will give a real assessment of the property at the current moment. The conclusion of experts will be the starting point in the trial, but not clippings from newspapers and magazines about similar property for sale.

Example #1

The wife filed for divorce along with a demand for the division of property. There is an apartment that my husband's parents bought, it has furniture and household appliances. Also, in her statement, the wife demanded half the money from the car sold three years ago. By court decision, half of the furniture and household appliances were awarded to his wife.

What was the basis for this decision? The apartment in which the spouses lived was purchased by the husband's parents. They were alive, while they did not draw up a donation agreement for her. It turned out that in fact the apartment belonged to the spouses, they used it, but from a legal point of view, it did not belong to any of the spouses.

But even if the parents had issued a deed of gift to their son, then in this case the spouse could not count on part of it.

The car sold three years ago was also registered with the husband's father, but this is not the main thing. The claim period is three years., and it expired at the time of submission of documents. This is first.

And secondly, the money was spent on the needs of the family, and therefore is not subject to division. Only household appliances and furniture remained, which were purchased during the marriage, and which constitute jointly acquired property. This property was divided by the court.

Two years before filing for divorce, the husband sold his one-room apartment, which belonged to him as personal property. Having reported the money, the family buys a three-room apartment, but the wife renounced the ownership of it. In the event of a divorce, she files an application for the division of the apartment.

The court decides which she is entitled to an amount of money equivalent to a quarter of this apartment.

During court session and conducting an examination, it was found that the cost of a one-room apartment is half that of a three-room apartment. Accordingly, half of this apartment belongs to the wife on the rights of joint ownership. Her renunciation of the ownership of the apartment did not matter in this case.

During a divorce, it sometimes happens that one of the spouses intentionally hides all documents for property. Judicial practice shows that it is not so difficult to get out of this situation. To do this, the court can file a petition for the reclamation of documents, or obtain their duplicates in the relevant institutions.

Where can I see court decisions in specific cases, including those of the Supreme Court? Judgments can be viewed without leaving home. All you need is a computer and an Internet connection. Go to the site, for example, here and in the section of judicial practice you can familiarize yourself with specific cases.

Also, now each court has its own website, where you can see those judgments which he accepted. For example, the site of the Chelyabinsk Regional Court. The Supreme Court of the Russian Federation also has a website. On all these sites you can find specific cases, for this you need to know their numbers, and familiarize yourself with the decisions on them.

Claimants in a property division case are faced with the need to pay a state fee when filing a lawsuit in court. For many of the plaintiffs, this may be the only or major cost.

The state duty on the division of property depends on the value of the claim itself and is equal to half the value of all property subject to division. It cannot be less than 400 rubles, but it cannot exceed 60 thousand rubles.

In addition to this, it may be necessary examination costs, since it is not free and costs far from a symbolic amount. So, the more expensive the disputed property, the more complicated the case itself, the higher the costs will be.

And if they are still attracted lawyers, without which difficult cases If you don’t figure it out yourself, then litigation will be very expensive. Several hundred thousand rubles is far from the limit.

By law, the party in whose favor the court made a decision, the other party is obliged to reimburse all the legal costs incurred by it. In case of partial satisfaction of the claim, the applicant will be reimbursed for expenses in proportion to the satisfaction of the requirements.

There is no exact answer to this question. Judicial practice shows that such proceedings can end within one or two months, or they can drag on for six months, a year or more.

The more complex the case, the more documents on the case need to be requested, the more witnesses to interview, the longer it will take. You can count on a quick solution if both sides immediately come to a mutual agreement.

Taking into account possible time and financial costs, at the beginning of the process itself it is worth thinking about finding a compromise with your ex-spouse or wife. Perhaps it is worth giving in to some demands.

At a minimum, this will save time, and as a maximum, it will significantly save not only money, but also allow you to stay in normal relationship with your ex.

If something remains unclear to you, perhaps this video will help you:

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Reference on the results of the generalization of judicial practice in civil cases on the division of jointly acquired property of the spouses

Reference
based on the results of the generalization of judicial practice
in civil cases on division
joint property of the spouses

In total, 385 civil cases were received from the district (city) courts of the Samara region for generalization, of which 2 cases do not relate to the topic of generalization.

Of the 383 cases received:

1) ended with a decision - 231 cases (60.3% of all 383 cases), of which 70 cases (30.3% of 231 cases) were appealed in the cassation procedure, 12 cases (17.1% of 69 cases) in the supervisory procedure cases, or 5.2% of 231 cases));

2) decisions were made to terminate proceedings - 125 cases

(32.6% of all 383 cases) - Art. 220 Code of Civil Procedure of the Russian Federation:

including:

94 cases (75.2% of 125 cases terminated, or 24.5% of all 383 cases) - in connection with the conclusion of a settlement agreement);

30 cases (24% of 125 dismissed cases, or 7.8% of all 383 cases) - in connection with the refusal of the claim;

1 case - in connection with the presentation of a repeated claim, for which there is a court decision that has entered into legal force.

3) decisions were made to leave the application

without consideration - 27 cases (or 7% of all 383 cases) - in accordance with paragraphs 7 and 8 of Art. 222 Code of Civil Procedure of the Russian Federation, due to the absence of the plaintiff, the parties.

When resolving disputes over the division of the jointly acquired property of the spouses, the courts are guided by:

1) norms family code RF,

2) the norms of the Civil Code of the Russian Federation,

3) Resolution of the Plenum of the Supreme Court of the Russian Federation No. 15 of November 5, 1998 No.

"On the application by the courts of legislation when considering cases of divorce" (as amended by Resolution of the Plenum of the Supreme Court of the Russian Federation No. 6 of February 6, 2007).

4) Decree of the Plenum of the Supreme Court of the Russian Federation N 4 of 06/10/1980 "On some issues that have arisen in the practice of applying by the courts of disputes on the allocation of a share to the owner and determining the procedure for using a house owned by citizens on the basis of common ownership."

5) Joint Decree of the Plenum of the Supreme Court N 15 of November 12, 2001 and the Plenum of the Supreme Arbitration Court of the Russian Federation N 18 of November 15, 2001 “On some issues related to the application of the norms of the Civil Code of the Russian Federation on limitation period».

6) other norms of the current legislation of the Russian Federation (codes, federal laws, Resolutions of the Plenums of the Supreme Court, etc.).

Jurisdiction of cases on the division of property of spouses.

Until February 1, 2003, district courts considered all cases on the division of jointly acquired property between spouses.

According to the norms of the current Code of Civil Procedure of the Russian Federation, in the period from February 01, 2003 to July 30, 2008, all cases on the division of jointly acquired property of the spouses, regardless of the value of the claim (Article 23 of the Code of Civil Procedure of the Russian Federation), were within the jurisdiction of justices of the peace.

Cases on the division between spouses of jointly acquired property with a claim value exceeding 100 thousand rubles, from 07/30/2008 to 02/15/2010, were considered by the district court as a court of first instance.

Since February 15, 2010, the jurisdiction of district courts includes cases on the division of jointly acquired property between spouses with a claim value exceeding 50 thousand rubles

Acceptance of the application.

Regardless of whether the claim for the division of property is filed simultaneously with the claim for divorce or separately, it is subject to payment of state duty. Its size is determined depending on the value of not all the property acquired by the spouses during the marriage, but only on the value of the property that the plaintiff asks to allocate to him in the statement of claim. In accordance with the requirements of Art. 131, Art. 132 of the Code of Civil Procedure of the Russian Federation, in the application, the plaintiffs indicate: a list of all property acquired by the spouses during the marriage and subject to division, indicating the time of purchase of each item and its price, and the things that the plaintiff asks to allocate to himself, their existence in kind on time of filing a claim.

If the statement of claim for the division of property is filed separately from the application for divorce, then the courts find out: the date of marriage, the presence of minor children and with which parent they live (in the event of separation or divorce), since these circumstances may be important for determining the share of each of the spouses in the common property.

The creditor's statement of claim on the division of the common property of the spouses in order to allocate the share of the debtor spouse in order to levy a debt on it must be attached, in addition to the documents listed in Art. 132 of the Code of Civil Procedure of the Russian Federation, also evidence confirming the existence of an outstanding debt of the debtor spouse, the amount and deadline for fulfilling the obligation, information that the bailiff-executor took measures to levy debt collection on property constituting the separate property of the debtor spouse, but there is no such property or this property is not enough to pay off the debt.

Preparation of the case for trial (Article 150 of the Code of Civil Procedure of the Russian Federation).

In order to prepare a case for trial, the courts consider the following questions:

1) whether the parties wish to end the case amicably by drawing up an agreement on the division of common property or by concluding a settlement agreement.

2) on what specific things (property) the parties do not have a dispute, whether the defendant agrees with the list of common property, acquired during the marriage, indicated in the statement of claim, its price and time of acquisition (specifically for each item). Depending on the results of the questioning, the court invites the parties to present relevant evidence, based on the principle of their admissibility.

3) whether all the things named by the parties are available, where they are, since the court has the right to allocate to each spouse only those things that are available to the parties or are held by third parties. If any things are in the possession of third parties, the court satisfies the petition of the party (parties) to involve these persons in the case. Without the involvement of third parties who, at the request of the party (parties), have their common property, the court in the decision is not entitled to decide on the rights and obligations of these things in relation to the things they have (for example, by virtue of paragraph 4 of part 2 of Art. 364 Code of Civil Procedure of the Russian Federation, violation of this rule entails the cancellation of the decision in the cassation procedure and may be the basis for the cancellation of the decision in the order of supervision).

4) whether the marriage contract has been concluded, whether it has been terminated and whether it has been declared invalid.

5) whether there are other agreements regarding the common property of the spouses.

6) whether any things are encumbered with a pledge.

The courts invite the parties to submit documents of title to property, including real estate subject to state registration, in particular, to a residential building, apartment, garage, land plot, garden house and land plot in a gardening, gardening partnership, an object of construction in progress, as well as on such movable things as a car, motor boat, yacht, etc., which are registered in the prescribed manner as a vehicle.

Consideration of cases in court.

When considering cases, courts should consider:

1) on what specific things (property) the parties do not have a dispute, in order to focus on those things (property) about which there is a dispute.

2) if a marriage contract is concluded, then the courts check for how long it was concluded, whether its validity period has expired, whether the marriage contract has been terminated or invalidated.

3) the courts do not clarify and do not compare the amount of investments of each of the spouses in joint property, the amount of earnings or other income of each of them, since the share of each spouse in joint property does not depend on the amount of investments in common property. The only exception is the case when the spouse refers to the fact that the other spouse did not receive income for disrespectful reasons, which, by virtue of paragraph 2 of Art. 39 of the RF IC, may be the basis for reducing the share of this spouse in the common property.

4) courts investigate issues related only to those things and securities that were acquired during the marriage. The courts examine the claims of one of the spouses about the separation, ascertaining whether the termination took place during this period family relations and what things are purchased, because, by virtue of paragraph 4 of Art. 38 of the RF IC, it is possible to recognize property acquired during this period by each of the spouses as the property of each of them.

5) the courts establish things (purchased exclusively to meet the needs of minor children) that are not subject to division and are transferred without compensation to the parent with whom the children live, and therefore there is no need to verify the value of these things.

The court decision states:

In the motivation part:

1) what specific things, for what amount jointly acquired by the spouses during the marriage;

2) whether the statement of the spouse (spouses) is justified that the list of common property subject to division includes things that do not belong to the jointly acquired property of the spouses or should not be included in this property by law and are the property of each of the spouses, unless otherwise provided by the marriage contract (in particular, things acquired before marriage; things received by one of the spouses as a gift, by inheritance or other gratuitous transactions; things acquired exclusively to meet the needs of children; things that are in the personal use of each from spouses, except for luxury items); things acquired during marriage, but after the actual termination of family relations during the period of their separation;

3) the value of each thing and all property subject to division is determined;

4) the share of each spouse in their common property is determined, taking into account the circumstances that are the basis for deviating from the principle of equality of shares under the legal regime of property of the spouses or based on the terms of the marriage contract;

5) it is established whether all things subject to division are available;

6) indicate what specific things (with an indication of the price of each of them) and for what total amount are allocated to the share of each of the spouses; in order to equalize the shares, the amount of monetary compensation is determined;

7) if there are debts, it will be determined whether they are the joint debt of the spouses or the obligation to repay them lies with only one of the spouses; common debts are distributed in proportion to the awarded shares in the joint property.

In the operative part: it is indicated that the claim was satisfied in full or in part, in which part it was denied. The property of each of the spouses excluded from the division of common property is indicated. If the requirement for division is satisfied, it is indicated what specific property and for what amount is allocated to each of the spouses for his share, the amount of monetary compensation to be collected from the spouse in favor of the other spouse, if the value of the things allocated to one of the spouses exceeds his share in the common property; the question of the distribution of the amount of debt between the spouses, if they are common, is resolved.

The Family Code subdivides:

1) legal regime of property of spouses;

2) the contractual regime of property of the spouses (marriage contract).

Legal regime of property of spouses
regulated by Articles 33-39 of Chapter 7 of the Family Code of the Russian Federation, Art. 256 of the Civil Code of the Russian Federation.

The legal regime of property of spouses is the regime of matrimonial property, established by the norms of civil and family law.

Based on Art. 256 of the Civil Code of the Russian Federation, property acquired by spouses during marriage is their joint property, unless an agreement between them establishes a different regime for this property.

The lawful regime of matrimonial property is in force, unless otherwise provided by the marriage contract.

The legal regime of matrimonial property is established automatically from the moment of marriage.

Property acquired by spouses during marriage (common property of spouses) includes:

Income of each of the spouses from labor activity, entrepreneurial activity and results of intellectual activity,

Pensions, allowances, as well as other cash payments that do not have a special purpose (amounts of material assistance, amounts paid in compensation for damage in connection with disability due to injury or other damage to health, and others).

Movable and immovable things, securities, shares, deposits, shares in capital, contributed to credit institutions or other commercial organizations,

Any other property acquired by the spouses during the marriage, regardless of the name of which of the spouses it was acquired or in the name of which or which of the spouses contributed funds.

This list of property is not exhaustive (for example, the following can be recognized as common property of spouses: property acquired by both spouses under an exchange agreement; property received as a gift by both spouses; funds received by them from the sale of joint property, etc.).

In judicial practice, there are difficulties in establishing the composition (list) of matrimonial property, its value, taking into account the fact that the legal regime of this or that property subject to division is different.

In addition, when considering disputes on the division of jointly acquired property, it is important to determine the moment of termination of marital relations and the conduct of a joint household, after which the property acquired by each of the spouses at personal expense refers to his personal (individual) property, and is not subject to division between the spouses.

When considering cases on the division of property of spouses, in order to establish legally significant circumstances in the case, it is important to have the correct procedural behavior of the parties, which can contribute to the collection of evidence by the court, but can also prevent this by alienating or concealing one or another common property, etc., due to with which, at the stage of preparing the case for trial, as well as at the stage of trial, the judge (court) takes measures to secure the claim, explains to the parties the rights and obligations on the inadmissibility of abuse of the right. The interim measures taken by the judge (court) contribute to the preservation of the property both by the time the court decision is issued, resolving the dispute on the merits, and by the time the court decision is executed.

In judicial practice, there are difficulties regarding what evidence should be presented to determine the composition and value of the property of the spouses, which is reflected in this generalization.

When establishing the fact of receipt by one of the spouses wages during the period of marriage and joint housekeeping, the courts satisfy the claims of the other spouse for the division of wages, however, if the opposite is proved, the courts dismiss the claim. Thus, on December 30, 2008, the Zheleznodorozhny District Court of the city of Samara correctly dismissed plaintiff B.N. in a claim for the recovery of 1/2 share of monetary compensation for unused vacation for the period of work of the defendant since 1997. for 2006 of the total amount in the amount of 800,000 rubles. on the grounds that this compensation was received by the defendant on April 2, 2008 after the dissolution of the marriage (the parties were married from October 6, 2001, the marriage was dissolved on October 24, 2007); the order on the accrual of these funds by the employer was also issued after the dissolution of the marriage - 31.02.2008; the court recognized that the plaintiff did not prove the facts that the defendant deliberately did not use annual leave and deliberately filed an application for compensation only after the dissolution of the marriage.

When resolving disputes over garage boxes that are not registered in the manner prescribed by law, the courts correctly proceed from their legal status, and therefore, the courts reasonably collect appropriate monetary compensation in favor of one of the spouses. Thus, on January 26, 2009, the Avtozavodskoy District Court of Tolyatti satisfied the claim of K.M. to the former wife of K.A. on the division of jointly acquired property, including a garage box in GSK. The court found that the defendant K.A. was a member of the GSK, the share contribution for the controversial garage box was fully paid by the spouses during their marriage, however, the garage box was sold by the defendant on December 10, 2007 after the dissolution of the marriage for 160 thousand rubles, in connection with which, the court reasonably recovered from the defendant K .A. in favor of the plaintiff K.M. a sum of money for a garage box in the amount of 80 thousand rubles (1/2 of 160 thousand rubles). Evidence of the sale of the defendant disputed garage box were: the confession of the defendant KA; certificate of the chairman of the GSK; warrant in the name of the new buyer, issued on the basis of the decision of the GSK Board, a copy of the membership card; indications of a new buyer. In this case, the defendant K.A. did not provide evidence that she had transferred half of the amount of 160 thousand rubles to her ex-husband.

Similarly (by collecting appropriate monetary compensation in favor of one of the spouses), the courts resolve disputes regarding a share in a Horticultural Non-Commercial Partnership (SNT). Thus, on July 21, 2009, the Komsomolsky District Court of Tolyatti recognized spouses S.L. (plaintiff) and V.A. as jointly acquired property. a share in SNT for a plot in the amount of 400,000 rubles (the spouses were married from 10/26/2005 to 01/12/2009) and from the defendant V.A. in favor of the plaintiff S.L. at her request, if the shares were equal, monetary compensation in the amount of 200,000 rubles (1/2 of the market value of the disputed property of 400 thousand rubles) was reasonably collected. Defendant V.A. did not recognize the claim, arguing that there was no title documentation for the share in the SNT, but, according to the receipt dated February 28, 2006, the defendant V.A. (during marriage) handed over to citizen R.M. cash in the amount of 30 thousand rubles. on account of the purchase of a disputed land plot located in SNT. It follows from the certificate of SNT that the indicated plot, with an area of ​​5 acres, was acquired on February 22, 2006 by the defendant V.A., who is a member of SNT; the site has an address; Currently, the site is used by the defendant V.A., which is confirmed by receipts of payment by the defendant V.A. site maintenance costs. By virtue of Art. 218 of the Civil Code of the Russian Federation, the court correctly recognized that a share in SNT is jointly acquired property subject to division.

When resolving disputes about the ownership of a house, about the allocation of a house in kind, the courts reasonably determine the ideal share of each of the spouses.

When considering disputes between spouses regarding the allocation of a share in property, the courts also apply the norms of civil law and take into account that each participant in common property has the right to demand the separation of his share from the common property in kind. If the separation of a share in kind is not allowed by law or is impossible without disproportionate damage to property in common ownership, the separating owner has the right to payment to him of the value of his share by other participants. The disproportion between the property allocated in kind to a participant in common property and his share in the right of ownership shall be eliminated by the payment of monetary compensation. The payment of monetary compensation to a participant in common property by the other co-owners instead of the allocation of his share in kind is allowed with his consent. In cases where the share of the owner is insignificant, cannot be really allocated and he does not have a significant interest in the use of the common property, the court may, even in the absence of the consent of this owner, oblige the other participants to pay compensation to him. When allocating a share in kind in a property that is divisible, the courts transfer to the co-owner (other spouse) a part of this property that is his share in size and value, if this is possible without disproportionate damage to the economic purpose of the thing. In particular, if a house is divided in kind, an isolated part of a residential house and a part of non-residential buildings corresponding in size and value to his share are allocated to the co-owner, if this is possible without disproportionate damage to the economic purpose of the building. Damage is disproportionate if it is impossible to use the property for its intended purpose, a significant deterioration in its technical condition or a decrease in material or artistic value (for example, a collection of paintings, coins, etc.), inconvenience in use, etc.

In some cases, as explained in paragraph 36 of the Joint Resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation N 6/8 of 07/01/1996 "On some issues related to the application of Part 1 of the Civil Code of the Russian Federation", taking into account specific circumstances of the case, the court may transfer an indivisible thing into the ownership of one of the participants in shared ownership who has a significant interest in its use, regardless of the size of the shares of the other participants in common ownership with compensation for the value of their shares. The presence or absence of a substantial interest is decided by the courts in each specific case on the basis of a study and assessment in the aggregate of the evidence submitted by the parties, confirming, in particular, the need to use this property due to age, health status, professional activity, the presence of children, other family members, including those who are disabled, etc.

Upon allocation of a share in kind and in the event of receipt of appropriate monetary compensation, the right of common ownership of the allocated property shall be terminated.

The impossibility of dividing property in kind or separating it from it in kind does not preclude the right to make a claim to determine the procedure for using this property. When resolving such a requirement, the actual procedure for using the property, which may not exactly correspond to the shares in the common property right, as well as the need of each of the co-owners in this property and the real possibility of joint use, are taken into account.

Thus, on June 24, 2009, the Volzhsky District Court recognized the claimant's and the defendant's ownership of 1/2 share each for a house and a land plot; the parties also determined the procedure for use, and, at the request of the plaintiff, she (the plaintiff, with whom a joint minor child was left to live), at her request, was allocated two living rooms, with an area of ​​10.5 sq.m., and 13.7 sq.m. . (out of a living area of ​​63.5 sq.m.), and the defendant was allocated two living rooms for use, with an area of ​​25.5 sq.m. and an area of ​​13.8 sq.m., the following are allocated for joint use by the parties: a kitchen, a garage, a bathhouse, a boiler room, basements and other non-residential premises in accordance with their share of 1/2 share in the right of common shared ownership of a house and a land plot .

Disputes about the division of land.

The courts correctly recognize the right of ownership for both spouses to a land plot provided during the marriage to one of the spouses free of charge, which follows from the following example. Thus, by the decision of the Oktyabrsky District Court of Samara dated April 7, 2009, each of the spouses M.K. (plaintiff) and the defendant N.N. the right of ownership of 1/2 share (for each) to a land plot (500 sq.m.) located in the Gardening Association in the Krasnoyarsk region, which was provided to plaintiff M.K., was recognized. in 1992 (during marriage) for free. The plaintiff M.K. there is a Certificate (of the old sample) dated 1992. on the ownership of land granted to her for a disputed land plot on the basis of a decision by the administration of the Krasnoyarsk Village Council.

In case of confiscation of a share in the land plot of one of the spouses, the right of ownership to this plot is terminated. Thus, on May 27, 2009, the Kinelsky District Court made a division of property between the spouses K.V. (plaintiff) and K.E. (defendant), and, for the plaintiff K.The. the right of ownership to 1/2 of the share of the disputed house and 1/4 of the land plot acquired during the marriage was recognized (the claim of the plaintiff was fully satisfied). The parties have been married since 1992, the marriage was dissolved on August 21, 2008. Defendant K.E. the claim was recognized in part of the house, not recognizing the claims in respect of the land plot, since there is another court decision dated May 30, 2001 on the claim of K.E. (defendant in the present case) to the spouse K.V. (convicted) about the release of the land plot from arrest, since the bailiff seized the land plot in pursuance of the guilty verdict of 01.06.2000 against the spouse K.V. on confiscation of property; the specified other decision of the court of May 30, 2001 recognized the ownership of K.E. (for the defendant in the present case) for the entire disputed land plot, having collected from her monetary compensation for 1/2 of the share of the land plot (for the share of the convicted spouse K.V.) in the amount of 7500 rubles. In this case, the court of first instance recognized 1/4 of the land plot for the plaintiff, indicating that the paid 7,500 rubles are the joint funds of the spouses, since, according to the court, during the period of payment of monetary compensation in the amount of 7,500 rubles. (for 1/2 of the land plot) family relations did not stop, the actual separation of the spouses cannot be considered as the termination of family relations, K.V. was in places of deprivation of liberty, the marriage was dissolved only in October 2008 (after the release of K.V. from places of deprivation of liberty); within 2 years after the conviction in 2000, the wife visited her husband in the colony, considered herself (K.E.) and K.V. spouses.

By the cassation ruling of the Judicial Collegium for Civil Cases of the Samara Regional Court dated June 22, 2009, the court’s decision in part of the land plot was canceled, and, in this part, a new decision was made to dismiss the claim, since the court of first instance gave an incorrect interpretation of Part 4 of Art. . 38 of the RF IC, according to which the court may recognize the property acquired by each of the spouses during the period of separation upon termination of family relations as the property of each of them; during the period of separation (when the spouse was serving a sentence of imprisonment), the parties did not conduct a joint household and the plaintiff did not bear the costs of acquiring the arrested share of the land plot.

An unfinished house can also be the subject of a dispute between spouses on the division of property.

In judicial practice, there are cases in which the spouses have a house in progress, which has passed state registration as a house in progress, or not registered in the manner prescribed by law.

Since January 01, 2005, an object whose construction has not been completed is classified as real estate and as one of the types of real estate objects in accordance with Federal Law N 112-FZ of July 21, 1997 “On State Registration of Rights to Real Estate and Transactions with him” is subject to state registration. A house in progress is also subject to division between the spouses if its construction was carried out on their general funds during the period of marriage. At the same time, it should be noted that the inclusion of this object in the list of real estate objects does not depend on the degree of its readiness, and therefore, it is subject to inclusion in the common property of the spouses to be divided, regardless of how much (cycle) of work produced. The right to an object, the construction of which has not been completed, cannot be considered as a right to building materials and structural elements if the ownership of this object is registered for one of the spouses or can be registered. The court has the right to make a division of a house in progress, if, taking into account the degree of its readiness, it is possible to determine separate parts that are subject to division, with the subsequent technical possibility of completing the construction of the house.

According to the indicated categories of cases, the courts establish who is allocated or owns the land plot on which the unfinished house is located (in practice, there are cases when land is allocated to both spouses, or land is donated to only one spouse, etc.), and depending on this and other circumstances of legal significance, claims can be resolved for the allocation of a certain share to both spouses for a house and land plot in progress, or by allocating a house and land plot in progress to one spouse, with the payment of appropriate monetary compensation to the other spouse for the house in progress taking into account its actual value, taking into account the prices prevailing in the area for building materials and work, transport services, as well as the location of the house, the degree of its improvement, wear and tear, and the possibility of its use.

Division of property of spouses in the form of a share
in the authorized capital
limited liability companies (LLC)

Courts, in addition to the norms of the Family Code of the Russian Federation, are guided by and apply:

1) norms of the Civil Code of the Russian Federation,

2) Federal Law No. 14-FZ dated February 8, 1998 “On Limited Liability Companies”,

3) Federal Law "On valuation activities in the Russian Federation",

4) Federal Law "On Accounting",

5) Joint Decree of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation N 90/14 dated 09.12.1999 “On Certain Issues of Application of the Federal Law “On Limited Liability Companies”.

6) Regulation on accounting and financial reporting in the Russian Federation, approved by the Order of the Ministry of Justice of the Russian Federation N 34N dated July 29, 1998

In accordance with paragraph 3 of Art. 26 of the Federal Law "On Limited Liability Companies", the actual value of a share in the authorized capital of a company upon withdrawal of its participant is determined taking into account the market value of real estate reflected on the balance sheet of the company. The case may be carried out: forensic accounting, construction and technical expertise on the basis of balance sheet data, taking into account the market value of the building.

In judicial practice, there are cases in which both spouses (50% each) are co-founders of one limited liability company (LLC), and one of the spouses demands to recognize his ownership of 50% of the other spouse's share in order to become the sole founder of the LLC. When considering such cases, it is necessary to establish whether the other spouse (who is also the second co-founder of the LLC) agrees or not with such requirements, taking into account the fact that issues of membership in the LLC, withdrawal from the LLC and other issues related to the LLC are resolved, inter alia, on the basis norms of the Civil Code of the Russian Federation, the Law "On Limited Liability Companies". If there is property (movable or immovable, for example, trading pavilions, cars, etc.) used by the spouses (co-founders of the LLC) in the implementation of the activities of the LLC, the spouses' claims for the transfer of this or that property are considered depending on whether or not this property on the balance sheet of this LLC. In the absence of registration on the balance sheet of the LLC, the specified property is matrimonial and is subject to division if it is proved that it was acquired during the marriage with the joint funds of the spouses.

When a claim is filed by one of the spouses for the division of a share in the authorized capital (introduced by the spouses during the marriage), when determining the actual value of the share in the authorized capital, it is determined on the basis of the norms of the Federal Law "On Limited Liability Companies".

Within the meaning of paragraph 2 of Art. 14 of the Federal Law "On Limited Liability Companies", the actual value of a share in the authorized capital of a company is determined taking into account data from accounting records, audit reports and reports on the market value of real estate reflected on the company's balance sheet, based on the market (actual) value of the company's assets. Without establishing the actual value of the property reflected in the company's financial statements at book value, it is impossible to determine the actual value of the share in the authorized capital.

The actual value of a share in the authorized capital is determined for the last reporting period preceding the day of filing an application for withdrawal from the company (clause 6.1, article 23 of the Law "On LLC").

Based on paragraph 2 of Art. 14 of the Federal Law "On Limited Liability Companies", the size of the share of a member of the Company must correspond to the ratio of the nominal value of his share and the authorized capital of the Company. The actual value of the share of a member of the Company corresponds to a part of the cost net assets Company, in proportion to the size of its share.

An example of such consideration of a dispute is the decision of the Avtozavodsky District Court of Togliatti dated February 19, 2009, which divided the property of the spouses, and from the defendant Zh.A. the court recovered in favor of the plaintiff Zh.Zh. the actual value of the share in the authorized capital of LLC in the amount of 1.406.500 rubles is 50% of the actual value of the share of the defendant Zh.A. in the authorized capital of the LLC. At the same time, the court found that the plaintiff Zh.Zh and the defendant Zh.A. have been married since June 29, 1991. to 11/12/2007, have been living separately since February 2006. During the period of marriage and running a joint household, the defendant acquired on 06/24/2005, when establishing an LLC, a share in this LLC in the amount of 50%, which is confirmed by the Charter of this LLC. The other founders of the LLC objected to the plaintiff Zh.Zh. became a member of the founders of the LLC (plaintiff Zh.Zh. did not make such demands). When considering such cases, it is necessary to establish the date on which the actual value of the share is determined. The court took into account that the claim for the division of property was filed with the court in August 2008, the marriage was dissolved on November 12, 2007, and they have been living separately since February 2006. At the same time, the court, with the participation of specialists, examined and compared various financial and accounting indicators indicating on the actual value of the disputed share on various dates: * at the time of divorce (as of November 12, 2007), the value of net assets was - 817 thousand rubles; * at the time of filing a claim for the division of property (as of 01/01/2008) - 5.8 million rubles. losses; * at the time of property division (as of June 30, 2008), according to the Company's balance sheet as of June 30, 2008 - 15 million rubles. losses. The court correctly determined the actual market value of the defendant's share Zh.A. in the authorized capital in an LLC (as a set of obligations rights) at the time of the dissolution of the marriage - as of November 12, 2007, since from the moment of the dissolution of the marriage, the defendant, without the knowledge and without the consent of the former spouse, exercised the rights and obligations of the participant in the LLC. In addition, in the subsequent sale of this LLC, including by the defendant, without the knowledge and without the consent of the spouse, part of the property took place, which changed the volume and cost characteristics of the share. The evidence in the case is: primary constituent documents, constituent agreements, charters of LLC, minutes of meetings of LLC participants, extracts from the Unified State Register of Legal Entities with information about the founders and participants of the LLC; information on settlement accounts and balance sheet, primary accounting documentation; information from the USRR on the presence of real estate in the LLC; information on the availability of securities, movable property, vehicles. To determine the actual value of the share in the authorized capital of the Company, the court appointed a forensic accounting examination in the institution YL-1 with the involvement of an auditor from another institution YL-2. (The expert was asked questions about: “Do the data of the financial statements of the LLC for 9 months of 2007 correspond to the primary accounting documents? What is the value of the defendant Zh.A.’s share in the LLC as of November 12, 2007?”).

When considering cases on the division of property, the courts correctly refuse the claim of the spouse (who is not the founder of the LLC) for inclusion in the founders of the LLC in the absence of the consent of the other founders of the LLC. An example of the consideration of such a dispute is the decision of the Leninsky District Court of Samara dated April 20, 2009, which partially satisfied the claims of the plaintiff G.E. to ex-husband G.M. (who is the founder of four LLCs), and, the division of the specific property of the spouses, as well as from the defendant G.M. in favor of the plaintiff G.E. (taking into account the equal share of each spouse in the common property) funds were recovered in the amount of 9,000 rubles (1/2 of the value of the defendant G.M.'s shares contributed by the spouses in the total amount of 18,000 rubles to the authorized capitals of four LLCs). In satisfying the demands of the plaintiff G.E. to include her in the founders of these Companies with a share equal to 1/2 of the share of the defendant G.M., contributed by him to the authorized capital of these companies, was reasonably refused, since the other founders of the said LLC objected to the plaintiff G.E. became a member of the founders of the said LLC. Recovering 9,000 rubles from the defendant in favor of the plaintiff, the court proceeded from the fact that extracts from the Unified State Register of Legal Entities confirm that the size of the share of the defendant G.M. in LLC-1 in monetary terms it is 6300 rubles, in LLC-2 it is 5000 rubles, in LLC-3 it is 2500 rubles. and in LLC-4 - 4200 rubles, in connection with which, 1/2 of the value of the defendant G.M.'s shares contributed to the authorized capitals of four LLCs is 9000 rubles (1/2 of 18,000 rubles 2500 + 4200)). As follows from the case file, the court considered the claims of the plaintiff G.E. according to the claims made and according to the evidence in the case about the value of the authorized capital of four LLCs; defendant G.M. agreed to pay 1/2 of the share of the funds contributed by the spouses to the authorized capital of the LLC; The plaintiff did not provide other evidence of the value of the authorized capital.

In the courts of cassation and supervisory instance, the plaintiff G.E. insisted on her demands to be included in the founders of the four Societies, but she was denied satisfaction of her complaints.

Shares section.

Federal Law No. 39-FZ of April 22, 1996 “On the Securities Market” (as amended) regulates, among other things, the circulation of securities in the form of shares (registered and bearer) and bonds; deals on them. Evidence of the presence of shares in one or another spouse is the information of the joint-stock companies themselves or from the "depo" account in the depository (for book-entry securities).

It is not difficult for the courts to consider the claims of one of the spouses for the division of shares. Thus, on September 28, 2009, the Avtozavodskoy District Court of Tolyatti divided 5,000 ordinary shares of OJSC, with a nominal value of 5 rubles. each, and, by a court decision, each spouse was allocated 2,500 ordinary shares worth 12,500 rubles. Information about the shares was issued by the Office of the share capital of this OJSC. In the event that the total number of shares between the spouses is divided in half, then an examination is not carried out to determine the market value of the shares, the parties do not file a petition about this. When dividing shares, the courts attract as 3 persons an OJSC, whose shares are subject to division between spouses, so that the rights of this OJSC are not violated.

Registration of securities in the register of a joint-stock company or on a "depo" account with a depository (for non-documentary securities) is not a state registration and does not entail the application of clause 3 of Art. 35 of the RF IC, therefore, in order to conclude a transaction for the alienation of securities by one of the spouses, including shares (as well as cars), a notarized consent of the other spouse is not required. Therefore, when making a transaction on the disposal of shares, the consent of the other spouse is assumed (presumed). In case of disposal of shares without the consent of the other spouse, the courts shall restore his violated right by including the value of the sold property in the joint property of the spouses and offsetting the amount received by the spouse who sold the property against his share in the common property.

On April 7, 2009, a similar case was considered by the Oktyabrsky District Court of Samara, which established that the joint property of the spouses M.K. (plaintiff) and defendant N.N. are preferred registered shares of OJSC in the amount of 3105 pieces (which were acquired during the marriage as a result of the defendant's labor participation in the privatized enterprise) and ordinary shares of this OJSC in the amount of 1400 pieces (as a result of civil transactions). However, the defendant, at his own discretion, ordered and sold all 3,105 preferred registered shares of OJSC for 300,000 rubles and all ordinary shares of OJSC in the amount of 1,400 shares for 60,000 rubles, in connection with which, the court reasonably included in the property transferred to the defendant N. N., funds from the sale of all shares in the total amount of 360,000 rubles, and took into account their value when dividing the property of the spouses by recovering from the defendant in favor of the plaintiff the appropriate monetary compensation.

The division of the common property of the spouses can be carried out (Article 38 of the RF IC):

During the period of marriage

After its termination at the request of either spouse,

If the creditor claims to divide the common property of the spouses in order to levy execution on the share of one of the spouses in the common property of the spouses,

After the death of one of the spouses, to allocate his share and determine the composition of the estate.

The composition of property to be divided between spouses is determined taking into account the provisions of Articles 129, 130 of the Civil Code of the Russian Federation, which provide for the legal status of objects civil rights by whether they are in free circulation or limited in civil circulation.

The composition of the property to be divided includes the common property of the spouses that they have available at the time of the consideration of the case or is held by third parties (clause 15 of the Decree of the Plenum of the Supreme Court of the Russian Federation N 15 of 05.11.1998).

In Article 36 of the RF IC, the legislator provides a list of property that is not related to the jointly acquired property of the spouses, since this property is the individual property of each spouse, namely:

Belonging to the spouse before marriage,

Received as a gift by each of the spouses,

inherited by either spouse,

Acquired under other gratuitous transactions, for example, in the course of gratuitous privatization,

Items for personal use (clothes, shoes, etc.),

Special cash payments with a special purpose

Acquired by each of the spouses during the period of their separation upon termination of family relations,

Not subject to division between spouses:

Items purchased solely to meet the needs of minor children (clothes, shoes, school and sports equipment, musical instruments, children's library and others), as they are transferred without compensation to the spouse with whom the children live; This rule applies not only to common children of spouses.

Contributions made by spouses at the expense of the common property of the spouses in the name of their common minor children

By virtue of Art. 35 of the Family Code of the Russian Federation, possession, use and disposal of the common property of the spouses are carried out by mutual consent of the spouses.

2. When one of the spouses concludes a transaction on the disposal of the common property of the spouses, it is assumed that he acts with the consent of the other spouse.

A transaction made by one of the spouses in order to dispose of the common property of the spouses may be declared invalid by the court due to the lack of consent of the other spouse only at his request and only in cases where it is proved that the other party to the transaction knew or obviously should have known about the disagreement of the other spouse. to complete this transaction.

3. In order for one of the spouses to make a transaction on the disposal of real estate and a transaction that requires notarization and (or) registration in the manner prescribed by law, it is necessary to obtain a notarized consent of the other spouse.

The spouse, whose notarized consent to the conclusion of the said transaction has not been obtained, has the right to demand that the transaction be recognized as invalid in court within a year from the day when he knew or should have known about the completion of this transaction.

So, article 35 of the RF IC, depending on the type of property, establishes two different rules for making transactions by one of the spouses on the disposal (including alienation) of property constituting joint property:

1) (Clause 3, Article 35 of the RF IC) - for a transaction to dispose of real estate and a transaction requiring notarization and (or) registration in the manner prescribed by law, a written notarized consent of the other spouse is required; at the same time, it does not matter whether the other party knew about the transaction or obviously should have known about the other spouse's disagreement to complete this transaction, since only one condition is necessary - obtaining a written, notarized consent of the other spouse. For these transactions, a reduced limitation period is provided - one year from the moment when the spouse, whose consent was not obtained, learned or should have known about the completion of this transaction.

Notarial certification of a transaction may be provided by the spouses in cases stipulated by the agreement of the parties, even though this form was not required by law for transactions of this type.

2) (Clause 2, Article 35 of the RF IC) - when making a transaction to dispose of the rest of the property and other transactions, the consent of the other spouse is assumed (presumed). Such a transaction can be declared invalid (disputable transaction) only if the buyer of such property knew or obviously should have known that the spouse was alienating the property without the consent or against the will of the other spouse, that is, the buyer was in bad faith. If the spouse, whose consent to the transaction was not obtained, cannot prove this, then the law, protecting the bona fide purchaser, does not allow the transaction to be declared invalid and the property sold to be returned. If the buyer's bad faith is not proved, the return of the property is impossible. In this case, the restoration of the violated right is possible by including the value of the sold property in the joint property of the spouses and offsetting the amount received by the spouse who sold the property against his share in the common property. In judicial practice, the courts extend this rule to cases of concealment of property or the use of property by one of the spouses to the detriment of the interests of the family (for example, on bank deposits, when one spouse, without the knowledge of the other spouse, manages the common funds not in the interests of the family.). In this case (in the absence of property), the courts use the terms “allocate a share in monetary terms” or “collect monetary compensation”. Also, the courts correctly reduce the share of the spouse who violated the rights of the other spouse by the value of the share of this spouse in the sold, hidden or used property or increase the share in the common property of the spouse whose rights were violated by the value of the share due to him in such property, or resolve the issue of monetary compensation. From the Review of Judicial Practice of the Supreme Court of the Russian Federation for the 3rd quarter of 2003, it follows that when filing claims for the recovery of monetary compensation and for the indexation of a sum of money, it is necessary to fully compensate for the damage (by indexation) caused to the spouse by the untimely receipt of funds from the sale without his consent to others spouse of common property; the amount not received in a timely manner must be returned with the preservation of its purchasing power in order to implement the principle of full compensation for damage in conditions of price instability. Or, in similar cases, the courts also determine the market value of the property sold.

The concept of real estate (real estate) is given in Article 130 of the Civil Code of the Russian Federation and Art. 1 of the Federal Law N 122-FZ of July 21, 1997 “On State Registration of Rights to Real Estate and Transactions with It”.

The range of transactions subject to notarization and (or) state registration is defined in the Civil Code (in particular, Articles 339, 560, 567, 574, 558, 584, 585, 609, 651, 1017 of the Civil Code of the Russian Federation.)

When real estate is alienated without the consent of the other spouse, the courts satisfy claims for the recognition of the transaction as invalid, subject to the provisions of paragraph 3 of Art. 35 SC. RF, which stipulates that a notarized consent of the other spouse is required to complete a real estate transaction. Such transactions are voidable, and the spouse, whose notarized consent to the conclusion of the said transaction has not been obtained, has the right to demand that the transaction be declared invalid in court within a year from the day when he knew or should have known about the conclusion of this transaction.

Thus, on June 24, 2009, the Volzhsky District Court, on the claim of S.A. to the former spouse S.K. (married from 09/10/1993 to 04/18/2008) invalidated the donation agreement dated 09/24/2008 (concluded between the defendant and his father) of the disputed house and land, stopped recording from 09/24/2008 in EGRP on recognizing the ownership of the father of the defendant to the disputed house and land, recognized the disputed house and land as the common property of the spouses, and divided the disputed house and land by 1/2 share for each of the spouses. The court found that the disputed house and land were acquired in 2006 during the marriage and at the joint expense of the parties, but in violation of paragraph 3 of Art. 35 of the RF IC, the transaction of donation of a house and a land plot dated September 17, 2008 was made by the defendant in favor of his father without the consent of his wife.

At the request of the interested party, the courts reasonably collect appropriate monetary compensation (without recognizing the transaction as invalid) for the common property of the spouses, alienated by one of them alone after the termination of the marital relationship. Thus, on March 13, 2009, the Zheleznodorozhny District Court of Samara exacted from the defendant P. in favor of the plaintiff P. (at her request) monetary compensation for 1/2 of the non-residential premises (real estate) and the car alienated by the defendant alone, in that period, when the parties terminated their marriage in September 2007 (the marriage was terminated later - 05/26/2008).

When alienating property that is not real estate and when making a transaction that does not require notarization and (or) does not require registration in the prescribed manner, by one of the spouses without the consent of the other spouse, the courts come to the correct conclusion that the violated rights of one of the spouses should be restored by paying appropriate monetary compensation. Thus, on February 6, 2009, the Syzran City Court reasonably satisfied the claim of T.O. to T.N. on the division of jointly acquired property for a total amount of 280,000 RUB., and, plaintiff T.Oh. the court singled out household appliances in the amount of 40 thousand rubles, and the defendant was credited with the cost of the car sold by him without the consent of his wife in the amount of 240,000 rubles (the market value of the car), in connection with which, from the defendant in favor of the plaintiff, the court exacted monetary compensation in the amount of 100,000 rubles, considering that the disputed car was purchased on May 8, 2007 with joint funds, but was deregistered on October 8, 2008 and under a sales contract dated October 14, 2008 for 240 thousand rubles. was sold by the defendant to his father during the period divorce proceedings in order to exclude the disputed car from the jointly acquired property of the spouses (the parties have been married since July 18, 1980, the marriage was dissolved on November 10, 2009); the court recognized the defendant's father as an unfair purchaser, since he should have known about the dispute over the disputed car, and the court did not take into account the receipt dated 05/27/2007 in the amount of 248 thousand rubles. on receipt by the defendant, allegedly, of a loan from his father for the purchase of a car.

The law may provide for special registration of certain types of real estate (clause 2 of article 131 of the Civil Code of the Russian Federation), as well as registration of rights to movable things (clause 2 of article 130 of the Civil Code of the Russian Federation).

A fuzzy wording on the transfer of a specific disputed real estate to one spouse can lead to difficulties in state registration of ownership of it. So, the court satisfied the claim of O.T. to O.A. on the division of property, and taking into account the recognition by the defendant of the claim and with a departure from the beginning of equality in the interests of the child, handed over to her all the property in the amount of 480 thousand rubles. and in the operative part he indicated: “To carry out the division of property, transferring O.T. all property, for a total amount of 480 thousand rubles. acquired in marriage: two apartments and a house with a land plot. After that, in November 2009, the plaintiff applied to the court for clarification of the court's decision, arguing that the issue of shares in property arose during the registration of ownership. By a court ruling dated 02.12.2009, O.T. on clarification of the court decision left without consideration on the grounds that the applicant did not appear; in addition, according to the court, the applicant submitted a statement that her application for clarification of the court decision should not be considered, since the state registration of property rights has already been made on the basis of the above court decision of 10/20/2009. Based on the norms of the Code of Civil Procedure of the Russian Federation, in this case it was necessary to refuse to satisfy the application for clarification of the court decision, including on the grounds that the applicant did not support her application. The Code of Civil Procedure of the Russian Federation does not provide that an application for clarification of a court decision may be left without consideration.

An unclear wording on the division of property can lead to difficulties in the execution of a court decision, as follows from the following example. So, when considering the case on the claim of A.N. to the former spouse M.K. on the division of property, it was established that the car was acquired by the spouses during the marriage; the car is registered in the MREO for the spouse M.K. The court actually transferred the car (worth 400 thousand rubles) into the ownership of the defendant M.K., recovering from him in favor of A.N.'s ex-wife. monetary compensation in the amount of 200 thousand rubles, however, in the reasoning and operative part of the decision, the court unnecessarily indicated that the plaintiff A.N. 1/2 of the car is allocated (from such a proposal in the decision, it can be concluded that each spouse is allocated 1/2 of the car). In this case, it is possible to use the wording that: “To make a division of the common property of the spouses A.N. and M.K. for a total amount of 400,000 rubles, recognizing the shares of the spouses as equal (1/2 shares each). Select M.K. a car worth 400,000 rubles. On account of the equalization of shares, recover from M.K. in favor of the plaintiff A.N. monetary compensation in the amount of 200,000 rubles.

property of each spouse. (Art. 36 RF IC)

The property that belonged to each of the spouses before marriage, as well as the property received by one of the spouses during marriage as a gift, by inheritance or other gratuitous transactions (the property of each of the spouses), is his property.

Items for individual use (clothes, shoes, and others), with the exception of jewelry and other luxury items, although acquired during the marriage at the expense of the joint funds of the spouses, are recognized as the property of the spouse who used them.

In judicial practice, there are cases in which, taking into account the financial condition of the family, the courts recognized mink coats and jewelry with diamonds (earrings, rings) as luxury items and included them in the property of the spouses to be divided.

Jewelry can be classified either as personal items (gifts), or as jewelry, luxury items subject to division. When classifying a thing as jewelry, it should be taken into account the purpose of the acquisition jewelry, quantity, cost, antiquity, purpose, etc.

The courts lawfully do not recognize property as jointly acquired if it was acquired with the personal funds of the other spouse, received from the sale of premarital property, by inheritance or acquired through a gratuitous transaction in the manner of privatization. Thus, on March 3, 2009, the Avtozavodskoy District Court of Tolyatti reasonably refused Petitioner B.I. in a lawsuit against B.V. on the recognition of ownership of 1/2 of the disputed apartment, since it was established that the defendant B.V. before marriage in 2005, since 2004 he owned an apartment, which he sold on 02.11.2007 at a price of 1.650.000. rubles, after which, during the marriage -02.11.2007 - a disputed apartment was purchased at a price of 1,530,000 rubles.

On January 21, 2009, the Oktyabrsky District Court correctly refused K.A. in a lawsuit against the former spouse R.V. on the recognition of ownership of 1/2 of the apartment, since during the marriage, the defendant R.The. became the owner of the apartment by inheritance, after which he sold the inheritance apartment, and on the same day acquired the disputed apartment in his own name, which therefore is not jointly acquired property of the spouses.

On September 10, 2009, the Zhiguli City Court rightfully dismissed A.E. to the former spouse A.S. on the recognition of ownership of 1/2 of the apartment, since the disputed apartment was acquired by the defendant during the marriage under a gratuitous transaction in the order of privatization; truthful A.E. it has not been proven that at the expense of the common funds of the spouses or her property or her labor investments were made that significantly increase the value of the disputed apartment.

The courts correctly recognize the ownership of most of the disputed property for one of the spouses upon its acquisition, partly for his personal funds, and partly for the common funds of the spouses, which follows from the following example. Thus, on June 2, 2009, the Syzran City Court recognized M.N. ownership of 3/4 shares of the disputed four-room apartment, and for the defendant P.S. - 1/4 share, since the court found that for 1/2 of the cost of the disputed apartment in the amount of 540 thousand rubles. plaintiff M.N. contributed from personal funds received from the sale of a premarital apartment (acquired by her before marriage), and the other 1/2 of the cost of the disputed apartment in the amount of 410 thousand rubles was accumulated by the spouses during the marriage, therefore only 1/2 is subject to division between the spouses in equal shares 2 part of the disputed apartment purchased with the joint funds of the spouses (before the plaintiff M.N. went to court, the disputed apartment was registered in the Unified State Register of Rights (EGRP) as the joint property of the spouses).

Another similar example is when one of the spouses is a disabled person of the 2nd group due to the accident at the Chernobyl nuclear power plant. On February 2, 2009, the Novokuibyshesky City Court allocated a VAZ-21200 car to defendant A., and monetary compensation for the car in the amount of 20,625 rubles was recovered from defendant A. in favor of plaintiff V.. At the same time, the court found that the parties had been married since 08/09/1975, the marriage was dissolved on 09/10/2008. During the period of marriage, the defendant (as a disabled person of the 2nd group), the Ministry of Health and social development Samara region, in accordance with the Federal Law N 1244-1 "On social protection Citizens Exposed to the Radiation of the Chernobyl Catastrophe”, donated a car to OKA, worth 82,400 rubles. The defendant did not take the OKA car, but the spouses made an additional payment in the amount of 100 thousand rubles and in 2004 purchased a VAZ-21102 car, worth 182,400 rubles, offsetting the cost of the OKA car in 82,400 rubles, which is confirmed by a written communication from the Ministry of Health and Social Development of the Samara Region. When collecting monetary compensation in the amount of 20625 RUB. the court correctly proceeded from the market value of the disputed VAZ car at the time of the consideration of the dispute at 75,000 rubles, since in accordance with paragraph 15 of the Decree of the Plenum of the Supreme Court of the Russian Federation N 15 of November 5, 1998 “On the application of legislation by the courts when considering cases of divorce” , the value of the property to be divided is determined at the time of the consideration of the case. In view of the foregoing, the court correctly recognized that out of 182,400 rubles, only 100.00 rubles, which are the joint funds of the spouses, are subject to division, since the remaining 82,400 rubles relate to the personal funds of the defendant. As a percentage, the joint funds of the spouses are 55% (calculation = 100,000 rubles: 182,400 rubles: 100% = 54.8% or approximately 55%). Since the market value of the disputed VAZ car is currently 75,000 rubles, in connection with which, 41,250 rubles (55% of 75,000 rubles) are subject to division between the spouses, and since the shares of the spouses are equal, and the plaintiff asked the court to transfer the disputed car to the defendant (for that the defendant did not object), and therefore the court handed over the car to the defendant, recovering from the defendant in favor of the plaintiff monetary compensation for the car in the amount of 20,625 rubles (or 1/2 of 41,250 rubles).

The courts reasonably recognize property as jointly acquired and subject to division between the spouses if one of the spouses claims that the disputed property was acquired at the expense of his parents (other relatives), but there is no admissible evidence for this (Article 60 of the Code of Civil Procedure of the Russian Federation). Thus, on June 16, 2009, the Zheleznodorozhny District Court of Samara correctly recognized the ownership of 1/2 share (for each) of the disputed land and house, which were acquired during the marriage by the spouses L.V. and K.E., although the defendant K.E. claimed that the disputed property was purchased with funds received from her father as a gift. At the same time, the court did not take into account the contract of donation of funds in simple written form, concluded between the defendant and her father. The court in its decision indicated that the money donation agreement was not notarized and it does not follow from this money donation agreement that the funds are intended for the purchase of the disputed property; that the plaintiff was unaware of this agreement donating money.

Courts occasionally recognize the personal property of one of the spouses, if admissible evidence confirms the fact that it was acquired during the marriage with money received by him as a gift from his parents or through other gratuitous transactions. Thus, on May 26, 2009, the Avtozavodskoy District Court of Togliatti refused the plaintiff V.I. recognize the land plot as the property of the spouses, since the plot was acquired on 04/01/2008 during the marriage with the money received by the defendant M.N. as a gift from his mother K.L. (who sold on February 9, 2008 with her sister N.O. (the defendant's aunt) the hereditary house and land plot for 2.2 million rubles, which were transferred to the bank account of K.L. (the defendant's mother). The court found that that the disputed plot registered in the name of the defendant M.N. was actually purchased for 800 thousand rubles, the contract for the sale of the disputed plot states that it was purchased for 125 thousand rubles. M.N. cash in the amount of 800 thousand rubles Plaintiff V.I. himself did not deny that his wife paid for the disputed land plot, that he was not present during the transfer of funds, that the disputed plot was acquired with funds partially received from sale of the mother-in-law’s house and her own savings, that she does not remember the amount of her own savings.In the case file there is a donation agreement in a simple written form that M.N. (the mother of the defendant) gave her daughter M.N. (the defendant) funds in the amount of 1 million rubles

When presenting claims of one of the spouses for the recovery of monetary compensation for his share in the common property, the courts make mistakes and involve only the second spouse in the case, although the co-owners of the common property are not only the second spouse, but also other persons (children, parents, etc.). etc.), which follows from the following example. Thus, the disputed two-room apartment was acquired into ownership by way of privatization by spouses and their two adult children, 1/4 share each. Claimant K.S. appealed to the court to his wife K.T. on the payment of monetary compensation to him for his 1/4 share in the amount of 300 thousand rubles. with an apartment price of 1.2 million rubles. On December 15, 2008, the Kinel-Cherkssky District Court exacted from the defendant K.T. in favor of the plaintiff K.C. monetary compensation for 1/4 share of the disputed apartment in the amount of 300 thousand rubles, upon receipt of which the plaintiff K.S. loses the right of ownership to 1/4 of the share of the apartment. The district court unreasonably did not involve the other co-owners (two children of the parties) of the apartment in the case, which is wrong, and therefore the court decision in the court of cassation was canceled and sent for a new trial. During the new consideration of the case, by the decision of the same court dated 12/15/2008, the defendant K.T. and from two children of the parties - with K.M. and K.E. (from three), in favor of the plaintiff K.S. correctly collected monetary compensation for 1/4 share of the disputed apartment in the total amount of 300 thousand rubles, in equal shares - 100,000 rubles from each defendant, and, after receiving monetary compensation, the plaintiff K.S. loses ownership of 1/4 share of the apartment, and the disputed apartment passes in equal shares to the defendants, after which, the defendant K.T., two children - K.M. and K E. (all three) become co-owners of 1/3 each.

Taking into account the specific circumstances of the case, the value of the disputed property, the court may transfer ownership of an apartment to one spouse, and a residential building to the other. Thus, on December 25, 2008, the Pestravsky District Court, in the order of division of the property of the spouses (1/2 share for each), for the plaintiff Z.I. recognized the ownership of a one-room apartment in the city of Kinel, worth 360,000 rubles (at the place of residence and work of the plaintiff), and for the defendant Z.G. (with which the common children of the parties live) - the court recognized the ownership of a residential building (three-room cottage) with a land plot in the village of Pestravka, worth 300,000 rubles (at the place of residence and work of the defendant) with payment from the plaintiff in favor of the defendant of monetary compensation in the amount 30,000 rubles, since this section option provides the spouses with housing.

When resolving disputes on the recognition of the property of each of the spouses as joint property of the spouses, if during the period of marriage at the expense of the common property of the spouses or the property of each of the spouses or the labor of one of the spouses, investments were made that significantly increase the value of this property (major repairs, reconstruction, re-equipment and others). (Article 37 of the RF IC, Art. 256 of the Civil Code of the Russian Federation), the courts proceed from the actual value of this property, determined taking into account the prices prevailing in the area for building materials and work, transport services, the location of the house, the degree of its amenities , wear, the possibility of its use. In order to determine whether or not the value of this property has increased significantly as a result of the investments made, the value of the property should be determined before the investments made in it and after the investments made.

A good example of the resolution of such a dispute is the decision of the Zheleznodorozhny District Court of Samara dated January 16, 2009, which terminated the marriage of the spouses T.V. and T.G., and recognized the common property of the spouses T.V. (plaintiff) and T.G. (defendants) - a residential building, and, for each, the ownership of 1/2 of the share of the house is recognized on the grounds that the parties have been married since 1981; in 1990 the Executive Committee of the City Council granted the plaintiff a land plot for the construction of an individual residential building; the plaintiff built a house on the site, which was put into operation in 1994; the plaintiff in 1995 gave a house to his wife T.G. (the defendant), who is currently the owner of the disputed residential building; since December 1998, there has been no joint economy between the parties; since January 1999, the plaintiff has been living in a disputed house with another woman, and the defendant T.G. lives at a different address with his son. The court established that in 1999, that is, during the period when the parties lived separately and did not conduct a joint household (although the marriage was dissolved on 01/16/2009), when the defendant was the owner of the disputed house, but at the expense of the plaintiff T. IN. investments were made that significantly increased the value of a residential building. In 1999, the first major overhaul of the house was carried out (which the defendant did not dispute), and the second major overhaul in the amount of 1,037,000 rubles. - in 2007-2008 (claimant T.V. was named as the customer under the work contract dated 06.07.2007). In the case of the Samara Laboratory of Forensic Examinations, an examination was carried out, which confirmed the fact that the work specified in the work contract dated 06.07.2007 was performed by Claimant T.The. a loan agreement dated July 02, 2007 was submitted for granting him a target loan in the amount of 1.5 million rubles. for the reconstruction of the disputed house. Carrying out major repairs of the house in 2007-2008. confirmed by video and photographs of the disputed house. An estimated market valuation of the house was made, which is 5.5 million rubles, the estimated cost of the house without significant improvements is 2.9 million rubles, the market value of the land plot is 230,600 rubles, in connection with which, the court reasonably recognized that that the results of all the work carried out in the disputed house are significant improvements, inseparable without disproportionate damage to their purpose and the technical characteristics of the house, and, material costs were made to the account of the personal property of the plaintiff T.The. and his personal labor, and, therefore, the court reasonably recognized the residential building as the property of the spouses and recognized the shares of the spouses as equal - 1/2 of each.

Determination of shares in the division of the common property of the spouses.

According to Art. 39 of the Family Code of the Russian Federation, when dividing the common property of the spouses and determining shares in this property, the shares of the spouses are recognized as equal, unless otherwise provided by the agreement between the spouses. The court has the right to derogate from the beginning of the equality of the shares of the spouses in their common property based on the interests of minor children and (or) based on the noteworthy interest of one of the spouses, in particular, in cases where the other spouse did not receive income for unjustified reasons or spent the common property of the spouses to the detriment of the family.

The court is obliged to give in the decision the reasons for the deviation from the beginning of the equality of the shares of the spouses in their common property (paragraph 17 of the Decree of the Plenum of the Supreme Court of the Russian Federation N 15 of 05.11.1998).

In judicial practice, there are errors in awarding one of the spouses a certain amount of monetary compensation in the event that property is transferred to the other spouse, the value of which exceeds the share due to him. To help this, simple arithmetic examples can serve, according to which, firstly, it is necessary to determine the value of the entire property of the spouses, for example - 900,000 rubles; if the share of each of the spouses is 1/2, therefore, property in the amount of 450 thousand rubles must be transferred to each of the spouses. Secondly, if in fact the property was transferred to the husband in the amount of 350,000 rubles, and to the wife - in the amount of 550,000 rubles, in connection with which, the husband lacks up to 1/2 of the share of 100,000 rubles.

(calculation: 350,000 - 450,000 rubles = -100,000), which should be collected from the wife in favor of the husband as monetary compensation on account of equalizing the shares.

To verify these calculations of monetary compensation (if the share of each spouse is 1/2), it is possible to use another method: 550,000 rubles. (transferred to the wife) - 350.000 (transferred to the husband) = 200.000 rubles (difference), but then the difference is 200.000 rubles. must be divided by 2 (two) (200.000: 2 \u003d 100.000 rubles).

Another example. If the wife's share is set at 3/5, and the husband's share is 2/5, then the wife from the property, with a total value of 900,000 rubles, should be transferred in the amount of 540,000 rubles (3/5), and the husband should be transferred in the amount of - 360.000 rubles (2/5). Suppose that property was actually transferred for other amounts: to the wife in the amount of 400,000 rubles, and to the husband - in the amount of 500,000 rubles, in connection with which, 140 thousand rubles (540,000 - 400.000 rubles = 140.000 rubles).

It is wrong to resolve disputes about the division of property of the spouses, when, when making a decision, the court in the decision does not indicate the value of the disputed property transferred to each spouse (example: the cost of the entire property is 4.5 million rubles, the court allocates M.N. a land plot without price indications, and ex-wife S.K. - an apartment without specifying the cost, having recovered from M.N. in favor of the ex-wife of S.K. 500 thousand rubles as monetary compensation.

Another example of a mishandled case. By a court decision, the plaintiff was denied satisfaction of the claims against her ex-husband for the division of property, for the recovery of monetary compensation in the amount of 300 thousand rubles - for 1/2 of the sold car, purchased during the marriage in 2007 for 600 thousand rubles; marriage terminated in April 2009; the car was sold in July 2009 after the marriage ended. The court dismissed the claim on the grounds that the car was sold and owned by another person; according to the court, only property available at the time of the dispute is subject to division. The case was considered in the absence of the plaintiff, who asked to consider the case in her absence; The plaintiff did not appeal the court's decision. When considering such cases, legally significant circumstances are: whether or not movable property was acquired during the marriage with joint funds; movable property has been alienated in favor of another person by mutual agreement or not; the alienation took place during the period of conducting a joint household by the spouses or not; whether both spouses received their share of the money for the sold property.

Distribution of joint debts of spouses.

The total debts in the division of the common property of the spouses are distributed between the spouses in proportion to the awarded shares (clause 3, article 39 of the RF IC).

When dividing the common property of the spouses, the joint debts of the spouses shall be taken into account.

The total debts between the spouses are distributed in proportion to the shares awarded to them, if the court establishes that the subjects of the monetary obligation are both spouses or one of them, but in the interests of the family.

The complexity of resolving disputes in this category is associated with various options the origin of the common debts of the spouses, various subject composition of monetary obligations and loan legal relations, including under loan agreements, in which:

*the borrower can be one of the spouses or both spouses;

*Co-borrowers can be both spouses and any relative (or other citizen) who, according to the RF IC, does not belong to the family of spouses who are married to each other.

In addition, borrowers and guarantors (spouses) bear obligations under the loan agreement jointly and severally, and Article 39 of the RF IC indicates the distribution of the total debts of the spouses in proportion to the shares awarded, in connection with which, there is a difficulty in wording (explanation) in the court decision, including including, in the operative part of the decision, instructions on the distribution of the joint debts of the spouses.

Therefore, it is necessary to proceed from the requirements of paragraph 3 of Art. 39 of the Family Code of the Russian Federation, which provides for the distribution of common debts precisely between spouses.

When resolving each specific dispute on the distribution of joint debts of the spouses, the courts establish the opinion of borrowers, guarantors, credit organizations (banks) on this matter.

Legally significant circumstances for recognizing debts as common joint is the establishment of the fact that the spouses received money on credit (in debt) during the marriage for the needs of the family and in the interests of the family, as well as their spending on the needs of the family and in the interests of the family.

Of the cases received for generalization, which resolved disputes about the distribution of the total debts of the spouses, there are three main areas.

A) The distribution of the total debts of the spouses in proportion to the shares awarded. Section of debt obligations in equal shares.

The most common wording used when distributing credit debt between spouses (in case of equal shares): 50% - from the defendant E.Yu. and 50% from the plaintiff E.V.” The bank (3rd party) argued that in case of delay, a claim would be brought, due to the requirements of the Civil Code of the Russian Federation. At the same time, the claims of the plaintiff E.V. were satisfied, and the parties recognized the ownership of 1/2 shares of the house and land mortgaged under the loan agreement dated November 24, 2005 (decision of the Stavropol District Court dated June 22, 2009).

Conclusion. A similar distribution of the total debts of the spouses in accordance with Art. 39 of the Family Code of the Russian Federation, does not prevent the further fulfillment in a joint and several manner of obligations under an unfulfilled loan agreement, under which the funds were received by the spouses (or one of them) during the marriage for the needs of the family and spent in the interests of the family, which follows from the following concrete examples dispute resolution.

So, the court found equal debentures spouses L.G. and L.E. before the bank under a loan agreement dated May 13, 2008 in the amount of 146,000 rubles for the principal debt - the decision of the Avtozavodsky District Court of Togliatti dated November 23, 2009 (the husband is the borrower, and the wife is the guarantor.)

The operative part of the decision of the Neftegorsky District Court dated May 29, 2009 is set out as follows: “The debt under the loan agreement concluded between the Bank and the defendant K.Yu. and K.E. in equal parts. Determine the debt of K.Yu. and K.E - 30,000 rubles each.

In another case, the court divided between the spouses A.V. and A.S. property in equal shares, and, divided between spouses A.The. and A.S. credit debt (concluded between A.V. and the bank), which at the time of the consideration of the case in the amount of 200 thousand rubles. The court determined the debt of A.The. and A.S. - 100 thousand rubles for each.

On April 23, 2009, the Central District Court considered the case on the division of the property of the spouses E.T. (plaintiffs) and E.N. (defendant), who acquired during the marriage: an apartment, furniture, household appliances. Concerning the apartment, a marriage contract was concluded, according to which the husband's share is 2/3, the wife's - 1/3. During the period of marriage, two loan agreements were concluded, one of which (for the amount of 300 thousand rubles) was concluded between the bank and the defendant E.N. (the first loan was spent on the purchase of an apartment); under both loan agreements, the loan was not repaid, therefore, under the loan agreement (under which the money was spent on the purchase of an apartment in respect of which there is a marriage agreement), the total debt of the spouses is divided as follows: the husband’s (respondent’s) share is 2/3, the wife’s share is 1/ 3.

According to the second loan agreement, the total debt is divided in equal shares (the legal regime of matrimonial property), and, in the court decision, the total debt (under two loan agreements) in monetary terms was recognized for each spouse (for example: for the husband - in the amount of 173,000 rubles, for his wife - in the amount of 111,900 rubles).

On November 18, 2009, the Shigonsky District Court divided the property between the spouses and the payment of the balance of the loan debt in the amount of 120 thousand rubles to the bank under a loan agreement concluded between the bank and the defendant B.M. for a period of 10.07.2012. At the same time, the court assigned the defendant B.M. (borrower) to execute the loan agreement, recovering from the plaintiff G.N. in favor of the defendant B.M. half of the balance of the loan debt under the same loan agreement in the amount of 60,000 thousand rubles, by arranging the payment of the said amount of money in equal installments of 2570 rubles. monthly, no later than the 10th day of each month (the defendant agreed with such an installment plan; according to the schedule, payment of the loan and interest to the bank is also the 10th day of each month). It should be noted that the decision of the court is in the nature of a settlement agreement.

On October 29, 2009, the Pestravsky District Court divided the property of the spouses M.O. and M.R., who during the period of marriage acquired a controversial two-room apartment on the basis of an agreement on providing borrowers K.M. and K.N. (spouses) of a mortgage (target) loan in the amount of 380 thousand rubles, a contract of sale and mortgage, after which the disputed apartment is registered for the spouses on the basis of common joint ownership; encumbrance of the apartment - mortgage. At the request of the plaintiff, the court divided the disputed apartment between the spouses in equal shares - 1/2 share each, established the procedure for use (for the plaintiff with her son - a room of 16.1 sq.m., for the defendant - a room of 11 sq.m., the rest premises - in the order of common use). The court recognized for each of the spouses under the agreement on the provision of a mortgage loan to the Samara Regional Fund for Support of Individual Construction in the Village in the amount of 1/2 of the share of the debt in proportion to the property awarded. The Samara Regional Fund for the Support of Individual Construction in the Village agreed with the claim for the recognition of each of the spouses for 1/2 of the share of the debt in proportion to the allocated shares in the disputed apartment.

B) In judicial practice, there are cases on the distribution of common debts of spouses with the participation of creditors (banks) that agree to their division between spouses.

By the decision of the Novokuibyshevsk City Court dated 10.06.2009 for the spouses K.I. (plaintiff) and K.S. (defendant) recognized the ownership of 1/2 share of the disputed apartment being pledged by the bank, and, between the spouses, with the consent of the bank (creditor), the total debt in the total amount of 437,330 rubles was divided. (debt at the time of the court decision) under a loan agreement dated October 19, 2006, concluded between the bank (on the one hand) and the borrowers-spouses of K.I. and K.S. (on the other hand) for a loan of 1.5 million rubles; the bank is obliged to amend the loan agreement dated 10/19/2006 in terms of instructions: to establish the debt at the time of the court decision - 437,330 rubles. with interest, - recover from the plaintiff K.AND. (taking into account the repayment of part of the debt by her at the expense of personal funds) in repayment of the debt, a sum of money in the amount of - 175,855 rubles. with interest, and from the defendant - 261475 RUB. with interest.

At the court session, the representative of the bank agreed with the division of the credit collateral between the spouses, and in the future the bank did not appeal the court's decision regarding the division of the joint debts of the spouses.

By the cassation ruling of the Judicial Collegium for Civil Cases of the Samara Regional Court dated July 27, 2009, the court's decision was changed, and it was decided to state the operative part of the decision in terms of determining the debt of the spouses under the loan agreement in a different version: “Split the debt of K.S. and K.I. under a loan agreement dated October 19, 2006, concluded between the bank and K.S. and K.I., in the amount of 437,330 rubles. with interest. Determine the debt of the plaintiff K.I. - 175855 rubles. with interest. Determine the debt of the defendant K.C. - 261475 rubles. with interest." (an indication to amend the loan agreement was reasonably excluded from the court decision, and an indication to collect debt under the loan agreement from the spouses was excluded from the court decision, since such requirements were not stated).

In judicial practice, there are also cases on the distribution of the total debts of the spouses with the participation of creditors (banks) who agree to change the number of borrowers in the total monetary obligation of the spouses, therefore, with the consent of the creditor (bank), as well as with the consent of the guarantor, the court assigned one spouse to fulfill the conditions a loan agreement (under which both spouses are co-borrowers) for the payment of the remaining loan debt upon transfer to this (first) spouse of the disputed pledged property (acquired by the spouses with credit funds), excluding the second spouse (co-borrower) from the loan agreements and the pledge agreement, paying the second spouse 1 / 2 part of the funds paid by the spouses during the marriage under the loan agreement. Thus, on April 20, 2009, the Leninsky District Court of Samara transferred the ownership of the defendant G.M. the disputed car pledged in the bank, and with the consent of the bank to the defendant T.M. all rights and obligations under the loan agreement of 10.12.2007 and under the pledge agreement of 10.12.2007 of the car were assigned, excluding the plaintiff G.E. from these agreements. When recovering from the defendant T.M. in favor of the plaintiff G.E. the total amount of monetary compensation is taken into account that of the funds paid by the spouses during the marriage in the amount of 1,600,000 rubles. as a return of credit funds, from the defendant from the defendant T.M. in favor of the plaintiff G.E. 1/2 of their part (or 800,000 rubles) are subject to collection. At the same time, the court took into account the arguments of the 3rd person - the bank, who claimed that in the loan agreement for 6.6 million rubles. both spouses are indicated as borrowers, but the loan was granted to the defendant G.M. taking into account his solvency (if only the plaintiff had applied, the loan would not have been granted); the bank agrees to transfer the car to the defendant G.M. in order to release the plaintiff G.E. from the execution of a loan agreement and a pledge agreement; The 3rd person, the guarantor V.I. (the defendant’s sister G.M.) also agrees with this option for dividing the total debts of the spouses. In the future, the bank and the guarantor V.I. did not appeal against the judgment.

In judicial practice, there are cases on the distribution of joint debts of spouses with the participation of creditors (banks) who agree to their division between spouses, however, general rule the court decision should not contain wording on changing the loan agreement, since, in accordance with paragraph 3 of Art. 39 of the RF IC, disputes about the distribution of the total debts of the spouses are resolved.

Occasionally in judicial practice there are cases (exceptions from the general rule) when only with the consent of the creditor (bank) the courts occasionally transfer the rights and obligations of borrowers under a loan agreement (under which both spouses are co-borrowers) to only one spouse, which follows from the following example. So, according to the loan agreement of October 15, 2007, the spouses K.V. and N.R. (co-borrowers) during the period of marriage received borrowed funds from the Bank for the purchase of a car, the loan has not yet been repaid; the car, as a result of the division of property, was transferred into the ownership of the defendant K.V., with which he did not argue, agreeing that he be obliged to pay the entire amount of the principal and interest under the loan agreement for the car with the payment of monetary compensation to his wife. The bank, without presenting any claims, agreed to the division of common debts between the spouses, since both spouses are co-borrowers. The court handed over the car to the defendant K.The. and unreasonably recovered from the defendant K.The. in favor of the bank, the entire debt under the loan agreement dated October 15, 2007 in the total amount of 280 thousand rubles. (including principal debt - 220,000 RUB., interest - 60,000 RUB.), recovering from the defendant K.The. in favor of the plaintiff N.R. appropriate monetary compensation for the car; The plaintiff agreed to be paid monetary compensation for the car. By the decision of the same court, it is also divided equally between the spouses K.V. and N.R. another debt for a mortgage loan to Bank No. 2 under the second loan agreement dated June 27, 2008 in the total amount of 1.6 million rubles. principal debt with interest, that is - each of 800,000 rubles. principal with interest. The cassation ruling of the Judicial Collegium for Civil Cases of the Samara Regional Court dated May 26, 2009 correctly excluded from the court decision an indication of the recovery from K.V. in favor of the bank debt under the loan agreement dated 15.10.2007, in the amount of 280,000 RUB., and, for the defendant K.The. the rights and obligations of the plaintiff N.R. under the first loan agreement on October 15, 2007 (concluded between the bank and the co-borrowers - the spouses K.V. and N.R.), since no claims were made by the bank for the collection of credit debt.

C) The courts refuse to distribute the total credit debt between the spouses, if the borrowers are, in addition to the spouses, other persons.

Thus, on April 21, 2009, the Avtozavodskoy District Court of Tolyatti correctly dismissed the claim for the division of total debts into three parts in equal shares between the three co-borrowers (both spouses and the father of the defendant) under a loan agreement on the grounds that the requirement for the division of debts is actually aimed at changing the loan agreement (which provides for the joint liability of three co-borrowers, provided that the creditor (bank) does not agree with the division of the debt.

Conclusion: in order of paragraph 3 of Art. 39 of the RF IC, in this particular case, debts between spouses cannot be distributed without changing the loan agreement, since the third debtor (except spouses) is another person (the father of the defendant), therefore it is impossible to conclude that the money was spent precisely in the interests of two spouses . In accordance with the requirements of paragraph 3 of Art. 39 of the RF IC, only the total debts of the spouses can be distributed.

Similarly, the dispute was resolved by the Zheleznodorozhny District Court of Samara on May 15, 2009, when plaintiff N.N. dismissed in the claim against the defendant NA, to the 3rd person to the bank on the division of the total credit debt in the amount of 1.200.000 RUB. under a loan agreement dated September 19, 2007, concluded between the bank and three borrowers - spouses N.A., N.N., their joint child; the apartment purchased on credit is mortgaged by virtue of law, and, for the spouses and their child, the pledge agreement (before the plaintiff goes to court) recognizes the right of common shared (1/3 shares) ownership of the mortgaged apartment. The plaintiff asked to divide (which she was denied) the credit debt as of 30.03.2009 in the amount of 1.2 million rubles. between her and the defendant in accordance with the shares in the purchased apartment (the child lives with her, she actually pays the entire loan every month), oblige the defendant to independently pay the bank the debt under the loan agreement in the amount of 400 thousand rubles. (1/3 of 1.2 million rubles); There were no requirements for the division of property. The claim was denied on the grounds that the loan agreement defines the joint and several liability of the spouses for the payment of the loan; the spouses did not apply to the bank with a request to change the contract in this part.

From the court's decision to dismiss the claim for the distribution of the joint debts of the spouses, it follows that the reason for the refusal is not the absence of joint debts of the spouses. It follows from such a refusal decision that the spouses and another person have a common debt on a certain date (for example, at the time of termination of the marriage relationship of two spouses), and therefore, the spouses are not subsequently deprived of the right to protect their property rights in another way (including , including, by changing the loan agreement, by collecting a certain amount of money from the other spouse after the actual payment of the loan, etc.).

In judicial practice, there are errors in determining the share of spouses from total debts, which, on the basis of Part 3 of Art. 39 of the RF IC, should be distributed between the spouses in proportion to the shares awarded to them. which follows from the following example. By the decision of the Krasnoglinsky District Court of 10/08/2009, the jointly acquired property of the spouses M. was divided, and each of the spouses was allocated 1/2 share of the property (the marriage was concluded on 03/04/1988 and terminated on 04/27/2009, but the actual marriage the relationship was terminated earlier, and the joint household has not been conducted since July 2008), however, during the period of marriage, a loan agreement was concluded in the name of the plaintiff for the needs of the family, paid in full by the plaintiff; the plaintiff made payments in the amount of 74,134 rubles from her own funds for the period from 08/01/2008 to 05/08/2009 (when the parties did not conduct a joint household), that is, for the period from the moment of termination of marital relations (from 08/01/2008 .) and until the actual payment (until 08.05.2009), however, the court of first instance, in violation of Part 3 of Art. 39 of the RF IC, recovered from the defendant 1/3 of the total debts (instead of 1/2 of the share).

The cassation ruling of the Judicial Collegium for Civil Cases of the Samara Regional Court dated November 18, 2009, corrected the violation of the court of first instance, and the defendant's share in the total debt was determined at 1/2.

Paragraph 3 of Art. 39 of the Family Code of the Russian Federation provides for the distribution of only the total debts of the spouses (and not the recovery), in connection with which, when resolving disputes about the distribution of the total debts of the spouses, the courts act incorrectly when they indicate in the decision on the recovery of certain sums of money from one of the spouses (for example, to recover 1/2 of the principal and interest in the amount of 100 thousand rubles of the total amount of 200 thousand rubles) under a loan agreement, under which: either both spouses are co-borrowers, or one spouse is a borrower, and the other spouse is a guarantor, as in practice there are cases when one of the spouses actually pays the indicated 100 thousand rubles to the other spouse or the bank, and the other spouse evades paying the loan and interest to the bank, despite the fact that the loan agreement has not been changed. In this case, in the event of a credit debt, the bank goes to court with a claim for the joint and several recovery of credit debt from both spouses. Therefore, in this case, the spouse who paid 100 thousand rubles. is not released under the loan agreement from joint and several liability to pay the loan and interest.

When distributing the total debts of the spouses on receipts issued by the spouses (or one of the spouses) to an individual about receiving money in debt, and when collecting the total debt from the spouses on an IOU, the courts carefully check the evidence submitted by the parties, and, only if proven, occasionally satisfy such claims. At the same time, the courts check for what purposes the funds were borrowed and what they were spent on, etc.

So, plaintiff G.D. appealed to the court to the former wife of S.D. on the division of property, and asked to transfer certain property to each party (they were married from 11/20/2008 to 01/27/2008). Furthermore, plaintiff G.D. asked the court to divide between the spouses a debt obligation on receipt dated 11/13/2006 in the amount of 600,000 rubles and interest in the amount of 115,000 rubles. before citizen K.M. (the receipt was issued by the plaintiff G.D. to this citizen K.M.). The court singled out the claims of the plaintiff G.D. to the former wife of S.D., to the 3rd person K.M. (creditor) on the division of the debt obligation.

3rd person K.M. filed an independent claim against the spouses G.D. and S.D. on the recovery of the same receipt dated November 13, 2006, of the principal debt in the amount of 600 thousand rubles in equal shares (300 thousand rubles from each spouse) and interest in the amount of 160 thousand rubles. in equal shares (80 thousand rubles from each spouse). The plaintiff's claims on the division of the debt obligation and the claims of the 3rd person K.M. to the spouses for the recovery of debt and interest on receipt dated 11/13/2006. combined into one production. Avtozavodskoy District Court of Tolyatti dated 31.08.2009, the claims of the plaintiff G.D. and 3rd person K.M. satisfied; between spouses G.D. and S.D. the total debt to the 3rd person K.M. is equally divided.

Limitation period.

According to. 19 Resolution of the Plenum of the Supreme Court of the Russian Federation N 15 dated November 05, 1998, the three-year limitation period for claims for the division of property that is the common joint property of spouses whose marriage is dissolved (clause 7, article 38 of the RF IC) should not be calculated from the time of termination of marriage (the day of state registration of the dissolution of marriage in the register of acts of civil status in case of dissolution of marriage in the bodies of registration of acts of civil status, and in case of dissolution of marriage in court - the day the decision comes into force), and from the day when the person knew or should have find out about the violation of your right (clause 1, article 200 of the Civil Code of the Russian Federation).

The courts of the Samara region, when considering claims for the division of property that is the common joint property of spouses whose marriage is dissolved, the three-year limitation period is calculated from the day when the person knew or should have known about the violation of his right.

The courts correctly dismiss the claim if the plaintiff misses the statute of limitations. Thus, by decision of the Avtozavodsky District Court of the city of Tolyatti dated 06/01/2009, plaintiff R. was denied a claim against B.'s ex-husband for the division of property (including share accumulation for a garage box) on the grounds of missing a three-year statute of limitations, since the defendant stated that the statute of limitations had been missed; the marriage relationship was terminated on 06/12/2005, the marriage was dissolved on 08/09/2005, the claim was filed on March 19, 2009; the court did not take into account (as not proven) the plaintiff's allegations that since 2007 she allegedly learned about the violated right (when there were disagreements about the use of the garage); the court found that the plaintiff did not provide evidence that, after the dissolution of the marriage, she used the disputed garage; the court did not restore the term to the plaintiff, since the court did not recognize the following circumstances as valid reasons: the loss of her husband's job, the presence of a sick child, born in 2007, at her expense, despite the fact that the plaintiff herself did not deny that she missed the three-year term.

The above practice of resolving disputes in the courts of the Samara region in cases in which the question of the application of a three-year limitation period arises is similar to the judicial practice of the Supreme Court of the Russian Federation.

The contractual regime of property of spouses is an agreement of persons entering into marriage, or an agreement of spouses that determines the property rights and obligations of spouses in marriage and (or) in the event of its dissolution.

The conditions and procedure for concluding marriage contracts established by Chapter 8 shall apply to marriage contracts concluded after March 01, 1996. Marriage contracts concluded before March 01, 1996 are valid in the part that does not contradict the provisions of the Family Code (paragraph 5 of Article 169).

A marriage contract can be concluded both before the state registration of marriage, and at any time during the marriage. A marriage contract concluded before the state registration of the conclusion of marriage shall enter into force on the day of the state registration of the conclusion of marriage. The marriage contract is concluded in writing and is subject to notarization.

By a marriage contract, the spouses have the right to change the regime of joint ownership established by law (Article 34 of this Code), to establish the regime of joint, shared or separate property on all the property of the spouses, on its separate types or on the property of each of the spouses. A marriage contract can be concluded both in relation to the existing and in relation to the future property of the spouses (Article 42 of the RF IC).

A marriage contract may be declared invalid by the court in whole or in part on the grounds provided for by the Civil Code of the Russian Federation for the invalidity of transactions (Article 44 of the RF IC).

The court may also invalidate the marriage contract in whole or in part at the request of one of the spouses, if the terms of the contract put this spouse in an extremely unfavorable position.

Thus, by the decision of the Avtozavodsky District Court of Tolyatti dated April 6, 2009, for the spouses P.A. and P.M. recognized ownership of 1/2 shares of non-residential premises, and, the plaintiff P.A. dismissed in a lawsuit against the defendant P.M. on the invalidation of a notarized marriage contract dated April 29, 2008, concluded by the spouses during the marriage (marriage from March 4, 1980 to June 24, 2008). The spouses changed the legal regime of property and established a regime of separate ownership, and, from the joint property of the spouses, a two-room apartment was transferred to the property of the spouse P.M., and to the property of the spouse P.A. - a garage box and a Toyota car were handed over. Suing his wife P.M. on the recognition of the marriage contract invalid, the plaintiff P.A. claimed that he was a pensioner and a disabled person of the 2nd group, that the terms of the marriage contract put him in an extremely unfavorable position, since he had lost his only home, that the cost of a garage and a car was less than the cost of an apartment. The court did not reasonably obtain grounds for recognizing the marriage contract as invalid, since the deviation from the principle of equality of the shares of the spouses does not put the plaintiff in an extremely unfavorable position, is not a violation of the law and is allowed if there is consent to this from the persons changing the legal regime of marital property to a contractual one entering into a marriage contract. In addition, according to the marriage contract, movable and immovable property worth 2 million rubles was transferred to him (P.M.); the parties previously discussed the issue of concluding a marriage contract, taking into account the fact that the wife has an illegitimate daughter, whom he adopted. Despite the fact that the plaintiff had already disposed of the garage (transferred to him under a marriage contract), having submitted the specified marriage contract dated April 29, 2008 to the state registration authority (FRS Office) upon its alienation.

Based on Art. 98 Code of Civil Procedure of the Russian Federation, court costs are collected in proportion to the shares awarded.

By decision of the Avtozavodsky District Court of the city of Tolyatti dated September 21, 2009, the jointly acquired property of the former spouses M. was divided into 1/2 shares for a total of 146,400 rubles.

At the same time, from the ex-husband M.M. in favor of the former wife M.N. her legal costs for the services of an appraiser in the amount of 4,000 rubles were fully recovered.

The court decision was appealed by the former spouse of M.M. regarding the recovery of legal costs.

The cassation ruling of the Judicial Collegium for Civil Cases of the Samara Regional Court dated July 29, 2009, the court decision regarding the recovery of 4,000 rubles. clarified, and, on the basis of Art. 98 Code of Civil Procedure of the Russian Federation, from ex-husband M.M. in favor of the former wife M.N. 2,000 rubles (1/2 of 4,000 rubles) were collected to cover the costs of paying for the services of an appraiser, taking into account the fact that each party was awarded 1/2 of the disputed property.

The study of judicial practice in cases on the division of jointly acquired property of spouses showed that the courts correctly apply the norms of substantive and procedural law in resolving disputes in this category.

The results of this generalization are proposed to be discussed with the judges of the Samara region at the seminar in order to correctly apply the current legislation.

Division of jointly acquired property of spouses judicial practice considers in some detail. This is due to a large number of cases, as well as their diversity, because the list of jointly acquired property includes a number of property of a different nature, so it is not easy to draw a line between jointly acquired and personal property.

Cases when the division of the common property of the spouses can be carried out by the court

Application (claim) for the division of jointly acquired property

Sample agreement on the division of jointly acquired property

Inclusion of property in the list of jointly acquired and exclusion from it

Establishment of shares of division of property

Illegal disposal of property

Contestation of the marriage contract

The family legislation of the Russian Federation offers married spouses to choose one of the property management regimes - legal (according to legislative norms) or contractual (under the terms of the marriage contract).

In the event of a divorce (or any other reason), the conditions for the division of property are also regulated either by law or by an agreement. In both the first and second cases, judicial authorities can be involved to resolve issues that arise in the process of dividing property.

Important! The division of property can also be made before the dissolution of the marriage - by decision of the spouses or, for example, when foreclosing the property of one of them.

The most common cases in which the parties resort to litigation are:

• inclusion of property in the list of jointly acquired and exclusion from it;
• establishment of shares of division of property;
• misappropriation of property;
• contestation of the marriage contract.

It should be noted that the division of property can be carried out without the participation of the court when the spouses voluntarily and by mutual agreement share the property acquired during the marriage. If a joint decision is not reached, then even if there is a marriage contract, the dissenting party may file a lawsuit in court to resolve the disputed issue.

Claim A sample agreement on the division of jointly acquired property The division of property is drawn up in a standard form (a sample of such a claim can be found on our website). Also, a sample claim (statement) can be seen at the information stand in the courthouse - this is convenient, since in the sample available there, as a rule, some required fields. Otherwise, it is necessary to fill out the application in such a way that it contains information relevant to a particular proceeding.

The following items must be included in the application for divorce and division of property:

1. Appeal to the body that will conduct the trial.

   The question of the division of property, the value of which is up to 50 thousand rubles, is decided by a justice of the peace. If the amount of the claim is greater, the application must be submitted to the district or city court.

2. Information about the applicant and his spouse (name, place of residence).
   The claim is filed at the place of residence of the defendant or at the location of the property that is the subject of the dispute.
3. Amount of claim.

   In some cases, the amount of the claim will have to be determined with the help of an independent appraiser. If the spouses have kept documents confirming the value of the disputed property and this value has not changed significantly since the acquisition, you can rely on them.

4. Information about the registration of marriage and the termination of cohabitation or joint activities.
5. Defendant's consent to divorce, if any.
6. Data on minor children, their age and information about which spouse they live with.
7. Request for divorce.

In this section, the claimant justifies their request for divorce and division of property, and describes the circumstances that justify the filing of the claim and its validity. It also indicates the need for alimony payments.

Copies of the applicant's documents, a list of property, copies of birth certificates of children and marriage certificates, as well as a document confirming the payment of the state duty are attached to the application. Its value is 5% of the amount of the claimed claim, and in the case of a large number jointly acquired property can be quite impressive. It is not surprising that many spouses prefer to resolve the issue peacefully.

There is no standard form of agreement on the division of jointly acquired property. In some cases, if a notary is involved in the conclusion of the agreement, he can provide a form and show a sample of filling out the agreement (you can also find it in our sample bank) in the form in which he will be ready to certify it. However, the involvement of a notary public is optional.

In general, an agreement on the division of property contains:

1. Name - "Agreement on the division of jointly acquired property."
2. Date and time stamp of the document.
3. Full name and passport data of the compilers of the document.
4. A list of property with an indication of its value (please note that the name of the registered property must match the name indicated in the registration documents).
5. An indication of the shares in which the listed property goes to each of the spouses.
6. If some property goes entirely to one of the spouses, it is necessary to indicate this as well, as well as indicate the amount of money that he pays to the second spouse as compensation for his share (if necessary).
7. An indication of the absence of circumstances that make the terms of the agreement enslaving and disadvantageous to one party.
8. Information about the number of copies of the agreement.
9. Signatures of the parties, witnesses, notarial marks.

Unfortunately, it is not always possible to divide property peacefully. As a rule, the composition of the property that will be included in the list of jointly acquired property causes the greatest controversy.

It would seem that the legislation gives clear definitions of the property that is part of the jointly acquired by the spouses - this is property acquired (purchased, created) during marriage. However, the spread of purchases on credit and in installments can stretch the process of acquiring property for years or even decades. Part of it can be acquired during the marriage, although the contract itself can be drawn up in the premarital period.

In such cases, the court, as a rule, decides the issue as follows: the property that is the subject of a mortgage agreement or acquired with credit funds remains with the spouse who concluded the corresponding agreement. However, he must compensate the other party for the amount of payments to the bank made during the period of marriage.

Another controversial situation relates to the personal property in which the joint funds or labor of the spouses were invested, which led to a significant increase in its value. Such property is also considered jointly acquired. At the same time, the legislation does not determine which increase is recognized as significant, and the courts are guided by their own opinion on materiality, supported by evidence and expert opinion.

In some cases, the court may recognize not the property itself as joint property, but the improvements made during the marriage, or distribute the rights to the disputed property between the spouses in unequal shares.

Spouses can challenge the division of property in equal shares if this infringes on the interests of minor children. Moreover, Art. 39 of the Family Code of the Russian Federation gives other reasons for the uneven division of property of the spouses:

• if it is proved that one of the spouses did not receive income for an unexcused reason;
• if it is proved that one of the spouses spent the common property to the detriment of the interests of the family (that is, violated the principle of good faith).

There is jurisprudence and decisions of the Supreme Court that a mother with minor children who, after a divorce, will live with her, may be entitled to a greater part of the property than the father.

The legal regime of property of spouses assumes that they dispose of the property jointly and subject to the presumption of good faith. But it often happens that in the period preceding the divorce, one of the spouses sells joint property, and makes this transaction fictitious - at an underestimated or overpriced price (depending on intentions).

As a rule, valuable movable property becomes a “victim” of such transactions, since the spouse’s consent to a real estate transaction is mandatory. But an unfair transaction with movable property can cause great damage.

In this case, it is difficult to challenge the completed transaction, but it is possible to recover compensation for the value of the property (in a proportional share) from the former spouse if the court considers that the transaction was made by him in bad faith and without the consent of the second owner of the property.

A prenuptial agreement is intended to regulate the property relations of the spouses, but sometimes it can also become the subject of a litigation. For example, if property that has become the property of one of the spouses under the contract becomes an instrument of pressure on the other party to the contract. Unfortunately, it is extremely rare in court to prove that a prenuptial agreement can be terminated, but there are still several reasons for this:

1. The fictitious nature of the marriage (in this case, the marriage itself is declared invalid).
2. Misleading or coercing one of the spouses.
3. Extremely unfavorable conditions in which the second spouse finds himself at the conclusion of a marriage contract.

The issue in each case is considered individually, based on the personal property status of the parties before marriage and after it, taking into account all the accompanying circumstances. It must be remembered that the right to challenge a marriage contract is retained for one year from the moment when one of the parties was forced to conclude it or learned about the circumstances that are the grounds for declaring the contract invalid.

Many couples, going through a relationship crisis, cannot save their marriage. And then it comes down to divorce. And its consequence, as a rule, is the division of common property. And as the spouses show after a divorce, not all couples can come to an amicable agreement and resolve all issues on the spot.

In this article

How is property divided?

When a husband and wife fail to share all the acquired values ​​by mutual agreement, then going to the judicial authority cannot be avoided. The legislator supports the spouses in this matter, and according to article 38 of the Family Code, one of the couple can file a lawsuit in court. Moreover, as judicial practice shows, it does not always happen this procedure after the dissolution of the marriage. Some families in official marriage want to share what they have together. When does this situation usually occur:

• if one of the couple wants to donate part of their property to relatives;
• spouses may not formalize a divorce, but at the same time no longer be in a relationship;
• if one of the spouses is indebted to creditors, then his part of the property may be seized.

It should be understood that the division of jointly acquired property through a judicial authority is a rather lengthy procedure, and it can take up to three months. And if one of the couple treats this procedure in bad faith, then this period can be changed upwards.

Each individual case will have its own characteristics. Sometimes, already in the process of proceedings in court, the couple comes to the conclusion that they resolve the conflict that has arisen peacefully. Then the further conduct of the case does not make sense. It will be enough to sign a peace agreement, according to which it will be determined for each of the spouses.

But if you study the spouses, then there are frequent cases of citizens turning to specialists in family affairs. They can be used to calculate possible risks, as well as assess what everyone can expect in the end.

How to value joint property?

As statistics show, divorces are only increasing every year. With particular difficulty, those couples who have a lot of common things acquired in marriage come to this procedure.

And when property values ​​begin to be divided through the court, then it is necessary to evaluate the property so that it can be divided in equal shares. This must be done with the help of an outside expert, since, on their own, spouses can give an underestimate or overestimate.

Therefore, for common property, it is necessary to determine its market value. This is what the court will be guided by when deciding on the division of shares.

And, as a rule, all property will be divided equally between the spouses. Exceptional cases will be those when a marriage contract is concluded between a couple, then all property will be divided according to its conditions.

But since each case is individual, after the dissolution of the marriage, the court may also decide on the unequal distribution of parts of the common property. Many nuances and features will be taken into account here:

• if there are minor children in the family, when they stay with one of the spouses, his share in the possession of common values ​​may be increased;
• reduce the part of one of the couple, the court can if a particular spouse led a wasteful lifestyle and did not make any contribution to family budget, having all the possibilities for this;
• if one of the spouses is sick and at the same time was unable to work, then his share may be increased, since this fact is a good reason.

If there are no good reasons, then all property will be divided equally. When it becomes impossible, for example, to divide the property and the car in equal parts, then one of the couple who receives the most part will be obliged to pay compensation to the other half.

Drawing up marriage contracts is gaining more and more popularity in our country. Under such an agreement, the spouses agree in advance on what will go to whom in the event of a divorce. But sometimes the court recognizes such an agreement on the division of property as invalid. This happens when the terms of the contract too discriminate against the rights of one of the couple.

How are debts dealt with?

Spouses can have not only jointly acquired property, but also common debts. What to do in such a situation, will they also be subject to division?

In this situation, everything will depend on whether the obligations are personal to each of the spouses, or whether they are joint, acquired in marriage. Personal obligations include:

• those that arose before marriage;
• those that are connected specifically with the personality of one of the spouses, for example, alimony, compensation for harm, and so on;
• those who appeared already in marriage, but one of the couple disposed of his individual property, and not common.

Those debts that both spouses incurred during their marriage will be recognized as common:

• one of the family can also act as a debtor, but the occurrence of such obligations is directly related to the interests of the family (for example, educating children, buying things necessary for family use);
• general obligations of spouses (for loans and other debts);
• those debts that arose from the unjustified enrichment of the family.

It is for such obligations that the spouses will be responsible. But practice shows that common property may not be enough to pay off debts, then everyone will be held individually responsible. Often these are long-term debt obligations, such as a mortgage or a home loan. And here it will not matter to whom exactly these obligations were concluded. Their repayment will be distributed equally.

The divorce process is an unpleasant process. Especially when it comes to the division of property, and the spouses cannot agree to peacefully resolve the conflict that has arisen. The court will take into account the interests of both spouses, and there will also be a recognition of the share of each in common property. But these proceedings are always delayed in time and can cost considerable material costs. Therefore, it is better to resolve all conflicts through peaceful agreements.

SOLUTION

In the name of the Russian Federation

On April 12, 2011, the Kuzminsky District Court of Moscow, represented by the presiding judge Yezerskaya Zh.A., under the secretary Ippolitova S.V., having considered the materials of the civil case on the claim of K.I.Ya. to K.V.Yu. about the division of property,

installed:

K.I.Ya. filed a claim to K.The.Yew. on the division of property. In substantiation of the stated requirements, she indicated that in 1984 she registered a marriage with the defendant, in 2007 the marriage was terminated on the basis of the decision of the justice of the peace of the court district No. 125 of the Kuzminki district of Moscow. During the period of marriage, the following property was acquired: an apartment located at the address Moscow, st. Lyublinskaya, d., apt.; parking lot number in the garage, located at Moscow, st. Lublinskad, d., BMW 530 XIA car, state registration plate, kitchen set with built-in appliances, bedroom set of original design, designer carpets, leather sofa, AgoProfile doors - 4 pcs. ownership of the apartment and parking spaces located at the address Zheleznodorozhny, Leonovskoye Highway, microdistrict, cottage village. He asks to make a division of property, where he asks to recognize her ownership of a 1/2 share of an apartment located at Moscow, st. Lyublinskaya, d., apt., to recover from the defendant 1/2 the share of parking space No. in the garage located at the address: Moscow, Lyublinskaya, d. a share of CJSC shares, 1/2 of the funds contributed towards obtaining ownership of an apartment and parking spaces located at the address Zheleznodorozhny, Leonovskoye Shosse, microdistrict, cottage settlement, 1/2 share of a kitchen set in the amount of 104,225 rubles.

The parties have been notified of their appearance in court. The representative of the plaintiff appeared in court and supported the claims.

Representatives of the defendant: lawyer Bondarchuk The.Yew. and M.E.S. appeared in court, objected to the stated demands, explaining that the marriage relations between the spouses had been terminated since April 2006. K.V.Yu. acquired a vehicle not with jointly acquired funds at the end of 2006. They also declare that the limitation period for the division of property in the form of an apartment, parking lots on the street. The Lublin side of the plaintiff was omitted, since the plaintiff learned about the violated right from April 2006, while the lawsuit was filed in August 2010, that is, after a three-year period. The plaintiff asks to recover 1/2 of the funds contributed to the account of the investment agreement with an organization declared bankrupt in the manner prescribed by law, which violates the defendant's right to equality of shares in the division of common property, the requirements for the division of shares are also not subject to satisfaction, since the shares were sold during their marriage in 2005.

The court, after hearing the parties, examining the materials of the case, considers that the claims are subject to partial satisfaction.

In accordance with Part 1.2 of Art. 34 of the Family Code of the Russian Federation, property acquired by spouses during marriage is their joint property. The property acquired by the spouses during marriage (common property of the spouses) includes the income of each spouse from labor activity, entrepreneurial activity and the results of intellectual activity, pensions, allowances received by them, as well as other cash payments that do not have a special purpose (the amount of material assistance, amounts paid in compensation for damage in connection with disability due to injury or other damage to health, and others). The common property of the spouses is also movable and immovable things acquired at the expense of the joint income of the spouses, securities, shares, deposits, shares in the capital contributed to credit institutions or other commercial organizations, and any other property acquired by the spouses during the marriage, regardless of whether in the name of which of the spouses it was acquired or in the name of which or by which of the spouses the funds were deposited.

By virtue of h. 1 Article. 38 of the RF IC, the division of the common property of the spouses can be made both during the period of marriage and after its dissolution at the request of any of the spouses, as well as in the event that the creditor claims the division of the common property of the spouses in order to levy execution on the share of one of the spouses in the common property of the spouses .

Based on Part 1 of Art. 39 of the Family Code of the Russian Federation, when dividing the common property of the spouses and determining shares in this property, the shares of the spouses are recognized as equal, unless otherwise provided by the agreement between the spouses.

The court found that in 1984 the parties entered into a marriage, in 2007 the marriage was terminated on the basis of the decision of the magistrate of the court district No. 125 of the Kuzminki district of Moscow. In fact, the parties ceased to live together, to conduct a common household since April 2006, which is confirmed by the court decision and the minutes of the court session of 09.2007.

During the period of living together, the following property was acquired: an apartment located at the address Moscow, st. Lyublinskaya, d., apt.; parking lot number in the garage, located at Moscow, st. Lyublinskaya, d., kitchen set with built-in appliances, funds contributed towards obtaining ownership of an apartment and parking spaces located at Zheleznodorozhny, Leonovskoye Highway, microdistrict, cottage village, CJSC shares.

The court believes to partially satisfy the plaintiff's requirements for the division of the following property: an apartment located at Moscow, st. Lyublinskaya, d., apt.; parking lot number in the garage, located at Moscow, st. Lyublinskaya, d., kitchen with built-in appliances. Recognize for K.I.Ya. ownership of a 1/2 share of an apartment located at Moscow, st. Lyublinskaya, d., apt.

Leave for K.V.Yu. in use parking lot No. in the garage located at the address: Moscow, st. Lyublinskaya, D., recovering from him in favor of K.I.Ya. - 1/2 share of the cost in the amount of 409,260 rubles.

The parties made an assessment of parking space No., located at the address: Moscow, st. Lyublinkaya, d. The plaintiff submitted report No. on the assessment of the market value of non-residential premises, compiled by SOYUZ-EXPERT LLC. According to this report, the most efficient use is a fundamental prerequisite for value. The concept of "highest use" used in the report means "the most likely use of the property, in which the valuation of this property gives the maximum value." According to the analysis of the most effective use, "the estimated area is in the urban housing stock, it is legally possible to use it only as a residential area." Further, it is indicated that there is no information about the transfer of the object of assessment to non-residential, the compliance of the physical parameters of the apartment with the requirements for residential premises. As a result, the most efficient use of the property being assessed is as a living space. This statement, the court considers, is aimed at increasing the appraised value and does not correspond to the intended purpose and most efficient use. The appraiser in his work took into account analogues: a garage in the Novogireevo metro area, a garage on Rublevsky Highway, a garage in the Krasnogvardeiskaya metro area, a garage in the Begovaya metro area. As indicated in the assessment, analogues are capital garages, have inspection pits, basements. All analogues are located in the South-Eastern Administrative District, the Lyublino region, none of the analogues is inferior to the evaluated object.

Thus, under these circumstances, the submitted report cannot be admissible and reliable evidence of the value of the parking space that is the subject of the dispute. Considering the object of appraisal as a dwelling, the appraiser artificially inflated the cost of a parking space, which amounted to 1,381,700 rubles.

The defendants provided the court with a Report on the determination of the market value of parking space No. at Moscow, st. Lublin. dated 02.2010, produced by Inkom Expert LLC, according to which the cost of this parking space was 818,520 rubles. The court believes that this report is more reliable, and the cost of a parking space corresponds to the property and its location, in connection with this, the cost of 1/2 of the share of the parking space is 409,260 rubles.

The Court also considers recover from K.The.Yew. in favor of K.I.Ya. 1/2 share of a kitchen set in the amount of 104,225 rubles 68 kopecks, since according to the report No. dated 11.2010 of Soyuz-Expert LLC, the market value of furniture amounted to 208,451 rubles 36 kopecks. The market value of the kitchen set was not disputed by the defendant. When examining the report, the court found no reason not to trust it and took it as a basis.

The respondent points out that the claimant missed the limitation period, since she learned about the violated right in April 2006.

The court cannot agree with these arguments of the defendant, since, in accordance with paragraph 7 of Art. 38 of the RF IC, a three-year limitation period applies to the claims of spouses with the division of common property, whose marriage is annulled, and only after the dissolution of the marriage, from the day when the person knew or should have known about the violation of his right.

The plaintiff asks for 1/2 of the funds contributed towards obtaining the ownership of an apartment and parking spaces located at the address Zheleznodorozhny, Leonovskoye Highway, microdistrict, cottage settlement.

The court established that CJSC is an investor in the implementation of an investment project to complete the construction of investment facilities on the basis of an additional agreement No. dated 04. 2008 to contract No. dated 03.2001, on the date of conclusion of which between the Administration of the city of Zheleznodorozhny and NO "FSZ" 03.2001 Contract No. was concluded, according to which the NPO “FSZ” assumed the obligation to implement the investment project at the expense of its own or borrowed funds. In 2002, the NPO “FSZ” attracted two investors to the implementation of the investment project: an LLC and a limited partnership, while the LLC was supposed to invest and build facilities on an area of ​​4.14 hectares, and a limited partnership on an area of ​​4.14 hectares. 10 ha. During the implementation of the agreement No. 2001, LLC and the Limited Partnership entered into agreements with individuals and received funds from them to send them to the construction of facilities, however, the investment project was not implemented, the individuals did not receive an apartment in the investment project. K.V.Yu. is included in the list of persons specified in Appendix No. 1 who have a contractual relationship with the LLC. As a result of the reorganization of the LLC, MZhK LLC became its legal successor.

As part of the claims for the recovery from the defendant of 1/2 of the funds contributed to the receipt of ownership of the apartment and parking spaces located at the address: Zheleznodorozhny, Leonovskoye Highway, microdistrict, cottage village, the court considers to refuse, since the decision of the Arbitration Court of the city Moscow dated 02.2010, the debtor LLC was declared insolvent (bankrupt), bankruptcy proceedings were opened against him. CJSC with K.V.Yu. did not conclude a contract, did not receive any money from him, does not have any contractual obligations to him. As the representative of the plaintiff points out, the developer was ZAO, however, according to the documents submitted from ZAO, they did not interfere with K.V.Yu. contracts. If the defendant's claims are satisfied, the equality of shares in the division of common property will be violated.

If, after the actual termination of family relations and the conduct of a common household, the spouses did not acquire property jointly, the court, in accordance with paragraph 4 of Art. 38 of the RF IC, can only divide the property that was their common property at the time of termination of the common economy.

According to the court decision of 09.2007, the marriage relations between the parties ceased, they did not conduct a household since April 2006.

In 2006, in accordance with contract No. K.V.Yu. made an order for a BMW 530 XIA car, state registration plate, 258 hp, paying a part of the sum of money in the amount of 7,000 euros as an advance payment. On 03.2007, in accordance with the PTS vehicle passport, as well as the registration certificate, the disputed vehicle was registered with the 3rd department of the GOTOTRER UVD of the SEAD of Moscow.

Thus, the car was purchased by K.V.Yu. not on jointly acquired funds, and during the period of time when the marriage relationship was terminated and the joint household was not conducted, in connection with this it is not subject to division.

The plaintiff is claiming a 1/2 share of CJSC shares, however, these claims are also not subject to satisfaction.

According to an extract from the register of shareholders, 15 shares belonged to K.V.Yu. According to the sale and purchase agreement dated 12.2005, the shares of K.V.Yu. were sold to G.A.E., which is also confirmed by the transfer order dated 12.2005.

According to paragraph 2 of Art. 35 of the Family Code of the Russian Federation, when one of the spouses makes a transaction on the disposal of the common property of the spouses, it is assumed that he acts with the consent of the other spouse. Thus, the shares were sold during the marriage. During the trial, the plaintiff's representative filed a petition for a forensic technical examination to determine the age of the document. The court granted this request, but the plaintiff and his representative did not pay for this examination. The court, in order not to delay the consideration of the case on the merits, returned the case and resumed the proceedings, however, the plaintiff's representative re-submitted a petition for the same examination, this examination was vehemently denied, since the court believes that the plaintiff's side is delaying the consideration of the case on the merits. The court considers the arguments that the documents must be provided by the defendant's side to be untenable, since, in accordance with Art. 56 Code of Civil Procedure of the Russian Federation, each party must prove their arguments. The plaintiff's representative did not submit his evidence confirming that he had doubts about the authenticity and time of drawing up the share purchase agreement.

Due to the fact that the shares were sold during the marriage, which is confirmed by the materials of the case, the court finds no grounds to satisfy the plaintiff's claims in this part of the claim.

Guided by Art. 194-199 Code of Civil Procedure of the Russian Federation,

DECIDED

Carry out division of property.

Recognize for K.I.Ya. ownership of 1/2 share of the apartment located at the address: Moscow, st. Lyublinskaya, d., apt.

Collect from K.V.Yu. in favor of K.I.Ya. 1/2 share of the cost of parking space No. in the garage located at the address: Moscow, st. Lyublinskaya, d. in the amount of 409,260 rubles.

Collect from K.V.Yu. in favor of K.I.Ya. 1/2 kitchen set in size - 104,225 rubles 68 kopecks.

The rest of the claim is denied.

The decision can be appealed to the Moscow City Court within 10 days from the date of the final decision.

2017, . All rights reserved.

The judges of two instances, who incorrectly interpreted the norms of substantive law when dividing the property of former spouses, were corrected by the Supreme Court of the Russian Federation in the case, which was included in the new 160-page review of the judicial practice of the Supreme Court for the current year.

As noted by the Supreme Court in the chapter devoted to the analysis of the practice of the Collegium for Civil Cases, property acquired during the marriage, but funds owned by one of the spouses personally, is not subject to the regime of common joint property of the spouses.

U. filed a lawsuit against P. on the division of jointly acquired property, referring to the fact that he was married to P. During the period of marriage, under a sale and purchase agreement, the spouses acquired an apartment in joint ownership. Since no marriage contract was concluded between the parties, no agreement was reached on the division of jointly acquired property, U. asked to divide the apartment between him and P. and recognize his ownership of 1/2 of the share in the right of common shared ownership of the disputed apartment.

Defendant P. did not recognize the claims, asked to recognize the claimant's ownership of 1/15 of the share in the right of common shared ownership of the disputed apartment, and behind it - the ownership of 14/15 of the share, given the purchase of the apartment at the defendant's personal funds in the amount of 1 RUB 750,000

The court found that since December 23, 2010 U. was married to P.. During the marriage, on the basis of a sale and purchase agreement dated February 11, 2011, the spouses purchased an apartment, the joint ownership of which was registered for them on March 10, 2011. The price of the purchased apartment was 1,995,000 rubles.

As it was established during the consideration of the case and it was not disputed by the parties, part of the funds in the amount of 1,750,000 rubles spent on the purchase of the said apartment was received by P. as a gift from P. L. (P.’s mother) under a donation agreement dated 11 February 2011. This amount was received by P.'s mother from the sale of an apartment that belonged to her by right of ownership. All the transactions mentioned above were made on the same day - February 11, 2011.

The marriage between U. and P. was dissolved on October 9, 2014. The division of the property of the spouses after the dissolution of the marriage between the parties was not carried out.

In resolving the dispute and satisfying the claims for the division of the disputed apartment between the spouses in equal shares, the court of first instance proceeded from the fact that an agreement had been reached between the parties on the acquisition of the apartment in common joint ownership, and since the funds received as a gift were contributed by P. according to her discretion for the common needs of the spouses - the purchase of an apartment, then this property is subject to the regime of joint property of the spouses.

The Court of Appeal agreed with the findings of the Court of First Instance.

The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation recognized that the conclusions of the courts were made in violation of substantive law.

In accordance with Art. 34 of the Family Code of the Russian Federation, property acquired by spouses during marriage is their joint property. The property acquired by the spouses during marriage (common property of the spouses) includes the income of each spouse from labor activity, entrepreneurial activity and the results of intellectual activity, pensions, allowances received by them, as well as other cash payments that do not have a special purpose (the amount of material assistance, amounts paid in compensation for damage in connection with disability due to injury or other damage to health, and others). The common property of the spouses is also movable and immovable things acquired at the expense of the joint income of the spouses, securities, shares, deposits, shares in the capital contributed to credit institutions or other commercial organizations, and any other property acquired by the spouses during the marriage, regardless of whether in the name of which of the spouses it was acquired or in the name of which or by which of the spouses the funds were deposited.

In accordance with paragraph 1 of Art. 36 of the RF IC, the property that belonged to each of the spouses before marriage, as well as the property received by one of the spouses during the marriage as a gift, by inheritance or other gratuitous transactions (the property of each of the spouses), is his property.

As established by the court, the source of the acquisition of the disputed apartment was the funds received by P. under a gratuitous transaction, as well as partially jointly acquired funds of the spouses.

According to the explanations contained in the fourth paragraph of paragraph 15 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated November 5, 1998 No. 15 “On the application of legislation by the courts when considering cases of divorce”, it is not common joint property acquired, although during marriage, but on the personal funds of one of the spouses that belonged to him before marriage, received as a gift or by inheritance, as well as personal items, with the exception of jewelry and other luxury items.

It follows from the above provisions that a legally significant circumstance in deciding whether to classify property as common property of the spouses is what funds (personal or common) and under what transactions (compensated or gratuitous) the property was acquired by one of the spouses during the marriage. Property acquired by one of the spouses in marriage under gratuitous civil law transactions (for example, by way of inheritance, donation, privatization) is not the common property of the spouses. The acquisition of property during the period of marriage, but with funds owned by one of the spouses personally, also excludes such property from the common joint property regime.

At the same time, such a legally significant circumstance as the use of funds belonging to P. personally for the acquisition of the disputed apartment was erroneously ignored by the court.

Concluding that the disputed apartment refers to the jointly acquired property of the spouses, the court proceeded from the absence in the contract for its purchase of conditions on the distribution of shares in the apartment.

At the same time, the court did not take into account that the funds received by P. as a gift in the amount of 1,750,000 rubles. and the apartments spent on the purchase were the personal property of P., since they were not acquired jointly during the period of marriage with the plaintiff and were not the joint income of the spouses.

The contribution of these funds for the purchase of an apartment does not change their nature of the personal property of P.

Thus, the shares of the parties in the right of ownership of the apartment were to be determined in proportion to the defendant's invested personal funds and the joint funds of the parties.

This was not taken into account by the courts and resulted in the issuance of illegal judicial decisions (determination No. 45-KG16-16).