If the husband and wife cannot reach an agreement in the process of delegation, the judiciary comes to the rescue. About how the trial of the property section is happening - this article.
How is the property divorce?
- Divide without the division of property. Sometimes spouses make a decision to break up, but not to take any action regarding the property. Most often, the reason for this is the reluctance to argue and find out the relationship, collect documents, walk by instances. But even if, at the time of termination, the spouses came to an agreement on the ownership and disposal of common property, this does not mean that there will be no conflicts in the future. Therefore, "leave everything as it is" is not the best option.
- Agreement.A more preferred option for a husband and is to divide the property to a peaceful way and give an agreement with a written form. Spouses make up an agreement on the division of property (paragraph 2 of Art. 38 of the Family Code of the Russian Federation). A notarized agreement must be fulfilled.
- Perform the terms of the marriage contract. If, before marriage or directly in married, the spouses concluded a marriage contract, the conditions of which provided for the procedure for the division of the property of the property, when divorced, these conditions should be fulfilled.
- Go to court. Any disputes regarding the property section can be resolved in the judicial instance. Even if the spouses concluded a marriage contract or the agreement on the division of property, this does not deprive them of the right to go to court in the event of a dispute.
Property section procedure through court
The procedure for the property section is governed by several legislative acts, including the Family Code of the Russian Federation, the Civil Code of the Russian Federation, as well as the Civil Procedure Code of the Russian Federation.
This procedure is distinguished by the shares of her husband and wife from the common property acquired during the marriage.
The property of the property can be carried out:
- During marriage.Spouses can share property at any time, including marriage. The property that will be acquired after the section will be a common property. If the spouses shared property and actually stopped family life (they do not live together, they do not conduct a joint household), they should take care of the documentary proof of personal ownership of all purchased property, otherwise it will be considered joint, and therefore in the case of the divorce will be subject to section ;
- Simultaneously with the scratching process.In this case, two claims (or one statement of claim with several lawsuits) is submitted to the court at the same time) - on the termination of marriage and the division of property, which are considered simultaneously or one after another.
- After divorce. It happens that the spouses have already terminated marriage, but they are not in a hurry to share everything that belongs to them. In this case, this property remains joint. You can divide it at any time, but you should remember the timing of the limitation. Read more about this in the article "Time limit on the property section after a divorce."
Submission of the Property Deal
To share the property in court, you need to apply for a statement. It is necessary to inform all the essential circumstances: personal and contact details of spouses, information about marriage and termination of marriage, the list of property acquired in marriage, as well as evidence that this property is personal or joint.
For more information on the compilation of the claim (with a sample for downloading) - in the article "The statement of claim for the section of the property during the divorce of spouses".
The statement of claim may be filed:
- At the place of residence of the defendant
- At the location of real estate or material values \u200b\u200bthat are subject to the section;
- At the place of residence of the plaintiff, if juvenile children live with him.
If the price of the claim exceeds 50 thousand rubles, the case will consider the urban or district court. If the price is less than, you can contact the world court.
Documents for applying for property
In addition to the claim, the following documents are required to submit to the judicial authority:
- Certificate of marriage, about divorce, about the birth of children;
- Documents on property (contracts, certificates, receipts, checks, bank statements, acquisition of cash orders, technical documents, registration documents);
- Appraisal documents on property value;
- Power of Attorney, if on behalf of the plaintiff documents a trustee submits;
- Receipt of payment of state duty.
What the court takes into account when considering the claim. Judicial decision
When considering the claims on the division of property, the court adheres to the next algorithm.
Initially, it determines which property is personal (not subject to section), and what - joint. Then determines the shares of each spouse. By default, the share is equal - the joint property is divided equally. But if a marriage contract was concluded between the spouses, other shares may be provided.
After that, the court performs a section of property according to shares. If it fails to perform the exact partition, one of the spouses gets most of the property, but then it is obliged to pay cash compensation to another spouse. Supbo debts are also subject to section in accordance with shares.
Sometimes the court moves away from the principle of equality of marital fraud, even if there is no marriage contract. This happens extremely rare. The basis for such a solution may be the presence of minor children remaining with his wife or husband. Or misuse spending of married means one of the spouses during family life.
World Agreement
Until the final decision by the court, spouses can enter into a global agreement. They have the right to share the property at their discretion, not necessarily equally, as it would have done this court.
The settlement agreement is issued in the form of a written document, which has the power of a court decision, therefore is subject to compulsory execution.
But if in the process of fulfilling the terms of the agreement, it turns out that it is concluded under the influence of threats or pressure, the court may recognize it invalid and decide on the division of the property at its discretion.
Entry and entry into force of the court decision
After the end of the consideration of the case in essence, the court is removed into the meeting room and makes a decision.
The court decision will not necessarily comply with the statement of claim. The court will divide joint marital property according to the law (or according to the terms of the marriage contract).
The court decision comes into force a month after the submission. Throughout this term, that of the spouses, who considers him unfair, can submit an appeal and demand a revision of the court decision.
Conclusion
Spouses can share everything that they have acquired for the period of marriage themselves - by concluding an agreement. If it is impossible, they (or one of them) have the right to apply to the court with a claim for the division of property. Make it can be married, and after a divorce.
The statement of claim should be submitted no later than three years after the occurrence of circumstances indicating violation of property rights.
The court divides property in equal shares according to the law. In the lawsuit, the spouses may conclude a settlement agreement - it is equal to the court decision, and its conditions are mandatory for execution.
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