If the spouses have common juvenile children, the divorce is only possible in court. So the law protects their personal and property rights. And although children do not participate in the broken-water process, the decision of the court regarding residence with one of the parents, the payment of alimony, the property section - directly affects them.
Section of the property of spouses and children
Children have no rights to the property of their parents. Purchase ownership of parental property they can exclusively with donation or inheritance after death. Therefore, in the section of the property during divorce, they do not participate.
But the situation changes dramatically, if we are talking about the property owned by minor children acquired for them, decorated into their name. It can be real estate, bank deposits, personal belongings (clothing and shoes, musical instruments, sports equipment, books, educational supplies. This property acquires special legal regime - it is not subject to separation between spouses. Without any compensation, it is transmitted to that of spouses Who will remain after the divorce children. Even if children's property will be sold over time, the second spouse cannot count on half of the amount reversed - it also belongs to the child.
To dispose of children's property to the adulthood of the child may be the parent with whom the son or daughter lives. But, although parents are endowed with the right to make transactions with the property of a minor child from his behalf, the state represented by the guardianship and guardianship authority controls this process. For example, without the consent of the guardianship and guardianship authority, it is impossible to sell, exchange, to present the real estate of the child. This measure is aimed at additional protection of property rights of minors.
Challenging the property of children's property
Sometimes one of the spouses challenges the fact of belonging or the need for a certain property to the child.
For example. A few years ago, the spouses acquired a computer, assuming that all family members would use them, including a minor daughter. In the process of the property section, the ownership of the child on the computer was challenged.
Another example. The spouse stated the requirement of the section of the piano, which was purchased for family funds. The spouse, in turn, presented a court of evidence that the piano is used an extremely son who studies at a music school and exercises daily in the game.
So that such controversial issues are allowed in favor of the child (or, on the contrary, the parent, who disputes the ownership of children's property), it is necessary to take care of evidence - when, at whose funds, for whom the property is acquired, who uses the property.
How to split property: order and procedure
Now consider how to share the proclaimed property is divided by parents.
As already mentioned, the deleration procedure can occur
- voluntarily - according to the written agreement of spouses;
- forcibly - on a court decision when handling a husband or wife with a claim for the division of property to court.
Property section agreement
The process of the property section will occur much faster and less troublesome, if the spouses are able to agree on everything, and then to state the agreements achieved in writing and refer to the document notarially. You can do this as a divorce, so during the scroll-produced process, and also after the dissolution of the marriage.
The advantage of a voluntary agreement is the opportunity to avoid a long and expensive trial to the tolere, as well as the ability to independently achieve a compromise on all property issues. For example, spouses can agree on an unequal section, they can determine who will come to whom.
The property sharing agreement may contain the following information:
- Date and place of conclusion of the agreement;
- Data on spouses - Full name, date of birth, place of residence;
- Data on the date and location and / or marriage registration;
- A list of joint property with an estimated value;
- A list of property that is not subject to section indicating the reason (the personal property of her husband or wife belongs to the child);
- The procedure for the division of joint property;
- Additional conditions;
- Signatures of spouses;
- Requirement recording notary.
A marital agreement must necessarily verify notaries - otherwise it will not have a legitimate force. The costs of notarization of the Agreement are much lower than the cost of paying the state duty when submitting a claim that is calculated on the basis of the cost of controversial property.
Section of property in court
The division of property in the court is a procedure that can be initiated by one or both spouses by submitting a claim to court if it is not possible to achieve agreement with an extrajudicial way.
To apply for joint ownership section, you can both simultaneously with a divorce and before or after it. The judicial procedure of the property of the property may be sufficiently long or relatively fast - it all depends on the complexity of property disputes between husband and wife.
If the cost of joint property is more than 50 thousand rubles, the lawsuit will consider the district or urban court at the place of residence of the defendant.
Whether children are taken into account when division
As already mentioned, the divorce occurs only in court, if the married couple has common children who have not reached the age of majority. But the dissolution of the marriage and the division of property is the judicial procedures that can occur at different times. Although the result of the division of parental property will directly affect children, they do not participate in the section procedure and cannot claim property.
However, the fact of the availability of minor children can affect the procedure for delegation and proportion of shares. As you know, the robes of husband and wives are recognized as equal. However, if, after a divorce with a mother or father, minors and especially juvenile children stay remain, the court can retreat from the principle of equality to share the property on unequal lolts. The share of the parent, on which, after the divorce, the duty to educate the child can be increased. Such a measure is aimed primarily to protect the rights of the child.
However, it should be noted that this is only the right, and not the obligation of the court. Moreover, it is rather an exception than the rule. The court at its discretion decides whether to increase the share of one of the spouses in general property or not. It will not be superfluous to ask for this by the court, referring to the appropriate position in law.
Alimony or increase in shared property?
As already mentioned above, in the section of the marital property, the court adheres to the principle of equality of shares. That is, divides everything in half.
But, in exceptional cases, the court has the right to retreat from this principle and divide everything in other proportions. The cause of this may be minor children who remained living with one of the spouses after the divorce. Such a spouse receives a majority of property.
But! If the second spouse pays alimony for the maintenance of minor children who do not live with him, most likely, married property will be divided equally.
If children are adults
According to Article 60 of the SC RF, children and parents are not eligible to claim each other's property. The property of children, especially adults, spouses are not allowed to include in the composition of controversial property and divided. And, on the contrary, adult children do not participate in the procedure of section of the joint property of parents.
However, out of the general rule there is an exception. If an adult son or daughter is incapacitated and is on depending on one of the parents, the Property Property is done otherwise. In particular, the property that is joint, but is required for the life support of an incapacitated son or daughter, is not part of the disputed property and is not subject to section. It remains at the disposal of that of spouses who exercise custody or care over an incompetent adult son or daughter. Such a measure is designed to protect the rights and maintain the necessary living conditions of an incapacitated person.
Judicial practice of the property section in the presence of children
Each broken-produced process is individual, and the outcome is unpredictable. Sometimes the court decision the first instance is canceled by a higher court on a complaint of one or both spouses. Sometimes a court decision does not comply with the claimed claims.
Consider several examples of the division of property in the presence of children.
Example. During family life, an apartment was purchased. Children were born in the family. How will the apartment be divided when divorced?
Most likely the apartment will be divided in half. The presence of children in most cases does not affect the court decision.
Another example. Even before marriage, a man issued a mortgage. The loan was paid during family life, in part - at the expense of joint funds. How will the mortgage real estate be divided, given that there are minor children in the family?
The presence of minor children will probably not affect the court decision. The husband will get most of the apartment - proportional to the independent part of the loan before marriage and half of the collapsed part of the loan in marriage. The wife will get a smaller part - the proportional half of the loan paid at the expense of joint funds. Most likely, this smaller part will have the form of monetary compensation. The apartment itself, together with the remaining debts on the loan, will go to her husband.
But! If children stayed with his wife, and they have no own residence place, the court can preserve the right to use the husband's apartment for an indefinite time.
One more example. During family life, her husband and wife bought an apartment and gave birth to children. In the trial, the apartment was divided equally.
However, the spouses amounted to an agreement, according to which half the apartment of her husband passed his wife to alimony. Thus, the mother with children remained secured by housing, and his father was released from the payment of alimony.