For many married couples, divorce is a difficult stage. Husbands and wives experience psychological stress when they break up. In the event of a divorce, the diverging spouses will have to go through such a complex procedure as the division of property and decide how the former joint property will be divided. This is a complex process, so often such issues can only be resolved through a court.
What is division of property
For a family life together, material values are accumulated, which at a certain moment can be divided between the spouses. It should always be borne in mind that the basis for separation is marriage. For an unmarried couple, people in a civil marriage, or cohabitation, the division of property is not provided for by law. The Civil Code regulates the division of real estate in case of divorce of citizens who are husband and wife and provide a marriage certificate.
Division of property between spouses
A husband and wife can share material values at any stage of the marital relationship. It is possible to determine the procedure and share of the receipt of property by the spouses in the marriage contract. It is drawn up before or after marriage. At the request of even one of the spouses, they divide the property in marriage, if the husband / wife wants to use material assets separately.
Some couples are ready to use objects, valuables, things together and after the divorce, but mostly there is a divorce process with the division of property. The joint use of real estate, a car, and other things after the breakup of a marriage relationship is inconvenient for both parties. At a certain stage, the division still occurs.
What property is divided in case of divorce
Family relations are regulated by the Civil Code. Divisible property includes money and material assets accumulated for living together, which were bought by spouses for money acquired by the family - these are:
- the property;
- cars;
- things of general use (furniture, dishes, paintings, household appliances);
- luxury goods;
- jewelry.
The property is considered common, even if one family member worked, and the other did not receive income, but participated in raising children or was engaged in the household. The division applies to material assets acquired for general income, the owner of which, according to the documents, became one of the spouses and when the funds for the acquisition were contributed by one person and there is a confirmation (check).
What property is not divided upon divorce
Not all material values of a family are subject to division. Nuances:
- Indivisible property includes items that are in personal use (luxury items, jewelry are excluded).
- The property that one party acquired before marriage or after entering into it (for the money accumulated before the painting) is not divided.
- Things, real estate, cars that the party received by inheritance, as a gift, in other ways that do not provide for compensation (privatized apartments or land plots) are not subject to division.
Property division procedure
It is important to understand how much of the property the spouses will receive. It depends on how you partition. The division of property in a divorce is a lengthy process. It sometimes becomes possible to divide material values only through the courts. An instance is needed if the husband and wife did not manage to come to an agreement and there is no marriage contract. Practice shows that in order to defend their rights, both parties hire lawyers, and this entails high costs. The end of the division of ownership is the moment of legal registration of documents that contain changes in property rights.
Section proportions
The parties can independently, with the help of an existing marriage contract or by drawing up an amicable agreement, divide and determine the procedure for obtaining material assets in such proportions as they consider correct for their situation. Voluntary division does not imply dividing every thing into equal parts. Mostly, by agreement and contract, the division is made by name, for example - one gets an apartment, the other gets a car and other things.
Determination of shares in the division of common property takes place in a judicial proceeding in accordance with the Civil Code. The principles of the section are contained in the 38th article. The parties receive equal parts of the apartment, land plot, car, and other things. Sometimes these principles are not followed if:
- It can be proved that a husband or wife did not bring income to the family, because they were parasites.
- There is clear evidence that the spouse misused the funds.
- It is possible to change the proportion in favor of one side as moral compensation in case of a spouse's rough treatment.
Composition of property
Before making a division of property, it is necessary to determine that part of material assets that is subject to division (acquired after marriage). The structure of the property for the division includes real estate, cars, other common things, securities or a share in a business, cash: cash, in accounts, in bank deposits. It is also necessary to divide into equal parts the promissory notes of the spouses (for example, mortgage).
Partition method
You can avoid property disputes in divorce with the help of a prearranged marriage contract. The Civil Code provides for other ways of dividing property:
- voluntary separation (through an amicable agreement, which must be concluded by the couple);
- filing a statement of claim (divorce proceedings with division of property).
How property is divided in case of divorce
According to the law, both spouses are entitled to equal shares of material assets acquired in marriage. The division of jointly acquired property in unequal amounts implies monetary compensation for the lost share. Much of the controversy concerns the division of real estate. A land plot without buildings can be divided into equal parts and new certificates of ownership can be issued for each.
Receives the right to real estate when dividing a house, apartment, mainly one spouse, and the other is paid monetary compensation for the share. If there is a mortgage at the time of divorce, the family's debt obligations are subject to division. They can be divided between husband and wife, or calculated from the amount of compensation. After a divorce, two parties are obliged to pay off the loan, without taking into account who the mortgage has already been issued to.
Voluntary section
Spouses can save a significant amount of money if they can conclude an amicable agreement on the division of the spouses' property. The division of material assets on a voluntary basis does not imply the obligatory observance of equal shares of both parties. The principles, conditions and proportions of division are established by the spouses themselves. The agreement must be documented. The content of the contract specifies an inventory of the divisible material assets, the market value of the items at the time of the divorce, and who will own them after the distribution of property.
Through the court
In practice, if there is no agreement between the spouses, there was no marriage contract, the only way out is to divide the property in court. Consideration of such disputes is the prerogative of the world, city or district courts. The procedure for considering a claim is a lengthy process: the evidence of both parties is considered in court. The division of property takes place after, according to the received court decision.
By prenuptial agreement
Today in Russia, the conclusion of a marriage contract is not popular, but in the world, drawing up a contract is a generally accepted practice. The contract helps the spouses avoid property disputes afterwards. The terms of the agreement indicate the ways of using the material assets of the family: joint, separate, shared on the existing property and the one that will be acquired in the future. The contract stipulates the procedure for the transfer of property to the spouses, the contract is certified by a notary. The division of property under a marriage contract occurs in accordance with the prescribed conditions.
How property is divided in case of divorce from children
The country's legislation does not provide for the share of children in family ownership in case of divorce, therefore, the division of property in the presence of minor children occurs according to general principles. There are cases when the court increases the share of the spouse if the children remain with him. Children's personal belongings are their property and are transferred to the parent with whom the children live. Deposits made in the name of a child, even at the expense of general funds, are considered his property (not subject to division).
How to apply for division of property
Consideration of a claim for the division of joint property is carried out only after filing a statement of claim. For this, the desire of one of the parties is enough. The applicant must correctly determine the composition of the property that is subject to division and prepare evidence that the listed material values were acquired by common labor. Sometimes it is not easy to do and it is necessary to use legal services.
Statement of claim on division of property
Before filing a claim, they choose where to file the application. A claim for the division of material assets worth over 50,000 rubles is considered not by a magistrate, but by a city or district court. Then the application should be submitted to the district, at the place of registration of the former spouse. When filing a claim for the division of real estate, it is more convenient to file a lawsuit at the place of real estate registration.
Limitation period
You can file a statement of claim at the end of the marriage relationship or at the end of the dissolution of the marriage. The parties must take into account the limitation period for the division of property. The time frame for filing a claim is three years after the divorce. The period may be extended if the party discovered a violation of property rights by the spouse, in which case the limitation period is calculated from the moment the violation of rights was discovered.
What documents are needed
To consider a property dispute in court, it is necessary to correctly write a statement of claim. The form indicates: the name of the court, the personal data of both parties, the place of residence, the date of the conclusion and dissolution of the marriage, the justification for your appeal. The applicant must provide documents for the division of property:
- inventory of material assets and their value;
- marriage certificate (divorce);
- the passport;
- birth certificates of children;
- a receipt for payment of the state duty.
State duty
The party submitting the application bears the legal costs. When filing, the state duty is paid for the division of jointly acquired property. Its size depends on the cost of the claim - the full value of the material assets to be divided. Sometimes the amount of the state duty reaches a significant amount. The plaintiff can file a motion to defer payment of the state fee. With the correct preparation of the justification, the legislation allows for a deferral of one year.
When can you apply for the division of property
It is possible to divide family property not only after the dissolution of the marriage relationship. The basis for the division of material assets acquired by common labor is the requirement of one of the spouses, therefore, property can be divided:
- No divorce. Sometimes in a family one of the spouses prohibits the other from using the house, plot or car. This may be a reason for the other spouse to go to court to divide the property of married citizens.
- In case of divorce. Citizens who have started divorce proceedings can file a claim before receiving a divorce certificate if they are sure that it is impossible to sign an amicable agreement.
- After divorce. It is necessary to file an application after the dissolution of the marriage sooner, because the evidence may be lost or the witnesses of the parties may leave the city.