The divorce and subsequent section of the property is one of the most problematic and conflicting cases that you have to deal with lawyers and ordinary citizens. Despite the fact that the basic provisions relating to the separation of property are enshrined by law in Article 38 of the Family Code and Article 256 of the Civil Code, the number of difficulties does not reduce.
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Property shares and does not share
According to the law, it is divided jointly hidden property. A lot of difficulties causes the need to establish what exactly is subject to section, but what is not.
Together, the property that was acquired by spouses during their marriage is considered.
However, there are several exceptions when property is personal property and section is not subject if it:
- obtained by one spouse as a gift or purchased for funds received as a gift;
- was obtained by one spouse inheritance;
- belonged to the spouse before marriage;
- it was purchased after the divorce.
Moreover, not divided property of personal use, for example, clothing, shoes, personal hygiene items, etc., as well as professional activities tools. For example, it can be a car for a taxi driver.
Not divided by the property belonging to children or acquired for use, such as clothes, musical instruments, children's books, school supplies, etc. They are transmitted without compensating to the spouse who children stay with.
The funds are also not subject to section, which are on the bank account, open to the child's name.
About what is divided and what is not, the lawyer tells:
Thus, a section is subject to any property:
- real Estate (apartment, garage, house);
- movable property (including car);
- appliances;
- revenues received from commercial, labor, investment or intellectual activity;
- non-target benefits;
- securities and pairs in various investment funds;
- bank deposits;
- luxury, jewelry, jewelry.
Main condition: Property should be recognized together.
During the division of property, it is necessary to proceed from understanding that not all items can be divided physically. For example, an apartment, a house or car to divide in half without loss of their functionality is impossible. Therefore, the law provides for several possibilities, how to divide physically inseparable property.
First option: Property is transferred to one of the spouses, and it pays compensation to the second side in the form of half the value of this property. Compensation can be both monetary and natural - that is, in the form of the transfer of a former spouse of other property.
The cost of property is calculated based on its current market price. On the amount of compensation, the spouses can agree themselves, or will have to call the appraiser. This option is most often used if the cost of the disputed property is small, and it is quite realistic to compensate.
So usually divided car, household appliances, jewelry, etc. Compensation does not have to be paid immediately. Spouses can adopt a phased repayment of debt.
The second option - the property is sold, and the spouses get half the remedy. It is also most often divided by large property, as a rule, immovable: apartment, private house, land.
The second option in its apparent simplicity is not always real for use. So, one of the spouses may insist on selling property, and the other is on transmission with subsequent compensation. And the law, which would oblige spouses to divide property in the second option, no. In essence, there will be no property to share here, but the funds reversed from its sale.
Another important point: property must be divided into an ideal proportion: 1/2. Thus, when dividing a country house with a land plot is unacceptable so that this spouse is awarded the plot, and the second is a house. If this happens in judicial practice or in accordance with the convention of spouses, it can lead to big problems in the future. So, the house and plot separately sell is not possible. In this case, half of the site and half of the house must move together to one spouse, and the other half of the house and the plot is the second.
The stumbling block is often becoming inherited property. For example, the family lives in an apartment that went to her inheritance from deceased parents. In this case, you need to carefully read the text of the will. If the property was left only to one spouse, then it is not divided after divorce.
Another thing, if in the will is spelled out that the spouses are given a share in an apartment or house. In this case, the separation occurs strictly in accordance with shares. For example, her husband is 3/4, and the wife is 1/4, and nothing else.
But if there is no will, but only one of the spouses is recognized as the heir, he will be the owner of the property after the gap of the marriage.
Debts and mortgage spouses
Debts, like property, are divided between binding strictly in half. The same applies to loans. Spouses will need to renew the contract with creditors. The former treaty will be terminated, and with each of them separately will be concluded its own, which provides for the repayment of debt on the previous conditions (duration and interest rate), but the amount of payments will be recalculated.
However, according to mutual consent, the spouses can continue to extinguish loans or debts together in the same proportion. In this case, reservoirness is not required.
An option is also possible when the loan service completely takes on one of the spouses. For example, if the car goes to his property, he can re-replenish a loan. Wherein:
- the new car owner must compensate for the second spouse half of the market value of transport;
- after repaying the loan, he must pay the second spouse of half of all those contributions that were paid together in the period of marriage.
If the mortgage apartment is divided, then three options are possible:
First method - division of apartments for sharesTherefore, mortgage payments are also divided into shares. In this case, the spouses sign additional contracts to the main one, according to which they undertake to pay certain amounts to the Bank.
After the mortgage is paid, the spouses become owners of housing in the shares established by additional treaties. In practice, this method is rarely applied, as the spouses do not always have the same income and can share payments strictly in half.
If payments (and shares in the apartment) are not divided into the same proportion, it can meet resistance both from the bank and one of the spouses.
The second way is to renew the mortgage on one of the spouses. At the same time, the second is completely exempt from any obligations to pay the loan, but at the same time deprived of the right to hold housing. After the mortgage is paid, it must compensate for the spouse half of all mortgage contributions paid during the period of marriage.
Third way - sale of apartments and repayment of mortgage debt with reversed funds. The residue is divided between spouses in half. At the same time, the Bank takes on the apartment, the spouses themselves do not accept any participation.
It is important to understand that with any scenario, the consent of all three sides is required: both spouses and banks. In the case of the judicial section of the property, the last word is most often for the bank, and usually banks choose the third option as the most trouble-free.
There are two ways to dissolve marriage: voluntarily and through court. The property section can also occur voluntarily (by mutual agreement) and in court.
If the spouses were able to agree that someone would belong after receiving a marriage termination certificate, they can conclude. It describes in detail what kind of property to whom will it belong. At the same time it is necessary to take into account some subtleties:
- in the agreement, it is necessary to describe the subject as accurately as possible, indicate its name, brand, color, etc.;
- it is advisable to specify the approximate market value of the property;
- if the section is made with the attraction of an appraiser's specialist, the price must be specified.
- the agreement should stand the personal signatures of both spouses;
- the agreement is recommended to assure a notary.
To draw up an agreement, you can attract specialists: appraisers, lawyers, notary, etc., as well as at the court section of the property.
Important: Property, not taken into account in the Agreement, is divided into court in accordance with the law.
Through the court, property is divided in an ideal proportion of 1/2, if the property cannot be physically divided, it is transferred to one of the spouses with the terms of payment of compensation.
If the spouses concluded, the section of the property occurs in accordance with this document. The marriage contract spouses can conclude at any point of marriage, even immediately before divorce.
In essence, the agreement on the division of property and the marriage contract duplicate each other, but in the marriage contract you can touch on additional issues, for example, the order of residence of common children and the alimony obligations of spouses.
When concluding a voluntary agreement or marriage contract, parents themselves determine which stakes in the property will belong, regardless of the presence of children or their absence. If they agree that the parent, who children will stay with, will get more property, and it will be. If we separate the property in half, then these are their solution.
But if it is considered in court, then the presence of minor common children can play a key role in the distribution of property. The fact is that the court is obliged to consider primarily the interests of minors. And he can go to meet the parent with whom children remain, and give him most of the property, for example, an increased share in the apartment.
When solving controversial issues, the priority will be given to the parent with children. For example, the Court can pass the Mother's Mother's car with two children, provided that she can drive a car and transport, to carry children to school.
How to submit to the section of jointly proven property in court?
What court to file a lawsuit?
Before making a claim, you need to decide where to submit a claim to which court. As a general rule, the court considers cases at the place of residence of the defendant. So, if the former spouses have already divorced and after receiving a certificate of dissolution of marriage, they decided to divide the property, the case will be considered at the place of residence of the defendant.
At the place of residence of the plaintiff, the court will sit down if only one:
- has minor children on the provision;
- as of health, it cannot be attended by meeting in another city or district.
If the amount of challenged property does not exceed 30,000 rubles, then it is necessary to apply to the world court. If the price of the issue is higher, the application is submitted to the city court.
The prescribed limitation period under the division of the property is 3 years. This means that one of the spouses can be submitted to the division of property within three years after the divorce, namely after receiving a court decision on the dissolution of marriage.
More about the statute of limitations and from what point it is considered to be written.
Sample statement
The statement of claim is submitted to the Court's Office. There are recommended forms of drawing upWith them you can find on the information booth in the courtroom or request in the office. You can also instruct the preparation of a judicial statement by a specialist.
In the statement of statement will definitely need to specify:
- name of the court;
- information about the plaintiff and the defendant;
- marital status information;
- property data, grounds for the possession of disputed property;
- the price of the claim (the total value of the entire property);
- specific requirements.
You can use this sample application to the property section: Download.
Required documents
Together with the lawsuit, the Documents will be required:
- your passport;
- passport or child or children's birth certificate;
- the document certifying the marital status is a certificate of concluding or termination of a marriage or a court decision or an extract from the court decision, if the evidence has not yet ordered;
- certificate of family composition;
- an assessment of the disputed property (the independent appraiser is ordered);
- receipt about the payment of state duty.
Payment of state duty
The size of the state duty is established by Article 333 of the Tax Code and depends on the price of the claim. The higher the cost of the claim, the higher the size of the state duty. It will need to be paid before applying for a court, as desired can be included in the claim to compensate legal costs. If the claim is filed with the mutual consent of the spouses, then the size of the state duty they must pay in equal size.
Conclusion
So that the entire information presented in the article has developed into the overall picture, we recommend it to see it once again in such a structured form:
This is a kind of cheat sheet in the property section. Examples from judicial practice.
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