Where should I file for division of property? When to divide joint property? What is shared and what is not

How to correctly draw up and submit an application for division of property to the court? What does such a claim look like and what conditions does it contain? Is it possible to file a joint application for dissolution of marriage and divide property acquired jointly? What can a defendant claim, and how does he assert his rights? About everyone important points You will learn about the division of property between spouses from this article.

How to apply for division of property

A claim to the court for the division of property is filed (Article 38 of the RF IC):

• at the time of marriage;
• simultaneously with the application for termination marriage union;
• when considering the termination case in the form of additions.

Any legally capable spouse has the right to submit an application.

Please note that the requirements for the division relate to property, therefore, in order to present them you must pay state fee. Its size is determined on the basis of clause 1, clause 1, article 333.19 of the Tax Code of the Russian Federation. When opening a case simultaneously on an application for divorce, a fee is also charged for filing a claim of a non-property nature on the basis of paragraph 3 of paragraph 1 of Article 333.19 of the Tax Code of the Russian Federation. Thus, the state duty will be combined.

Calculation example:

A lawsuit was filed in court for the termination of the marriage with a demand for the division of jointly acquired property.
The amount of the state duty will be:

1. For a non-property dispute about the dissolution of a marriage union - 300 rubles.
2. For the division of property acquired by a family, valued at 500 thousand rubles, - 1% of the amount over 200 thousand rubles. plus 5,200 rubles, total 3,200 rubles.

Total state duty for the claim: RUB 3,500. (300 + 3,200 rub.)

When dividing claims, a statement of claim for the division of jointly acquired property can be filed within 3 years from the date of entry into the registry office record of divorce (Clause 3 of Article 38 of the RF IC).

If the application for partition is filed outside deadline, then the court may refuse to consider the dispute and close the case.

When dissolving a marriage by court, the period is determined from the date of entry into force of the judicial act.

The division of property can be carried out both while you are in official marriage, and simultaneously or after its termination in the registry office or court.

How to file an application for divorce and division of property

A sample claim for division of property can be found on information boards in court or on the Internet. The application must indicate the following details (Article 131 of the Code of Civil Procedure of the Russian Federation):

1. Name of the court. When assessing a claim up to 50 thousand rubles. you should apply to the magistrate's court, or even the district court.
2. Personal data of the plaintiff and defendant: full name, registration addresses, telephone numbers.
3. List of property for division. The assessment can be determined independently by the plaintiff, by agreement of the parties, or reflected in an expert opinion.
4. Reasons for in the specified shares. Written justification: receipts, receipts, agreements with the creditor, etc.
5. Evidence of sending the claim to the defendant or a copy of the statement. Copies of documents in support of the claim. The originals are provided for verification at the court hearing.
6. Date of filing the claim and signature of the plaintiff. When submitting an application, a representative must attach the original power of attorney to conduct the case in court.

A receipt for payment of the state fee is attached to the claim. Without this document, the court will leave the application without consideration.

Mandatory copies of attachments to the application:

• Marriage certificate;
• document on dissolution of the family union - a court decision or a registry office certificate;
• children's birth certificates;
• list of property subject to division;
• if available - an agreement on the distribution of shares or property in joint ownership;
• a marriage contract, if the document was signed by the parties before going to court;
• purchase and sale agreements, certificates of inheritance, certificates from bank accounts to substantiate the personal ownership of each spouse of individual items.

The form of the document can be used as the basis for drawing up a claim for division of property.

Procedure for filing an application for division of property

The claim is filed in the district court general jurisdiction at the location of the defendant (Article 28 of the Code of Civil Procedure of the Russian Federation). In exceptional cases:

1. If the defendant is constantly abroad or his address is not known, - at his previous address or location of property, including real estate (Clause 1 of Article 29 of the Code of Civil Procedure of the Russian Federation).
2. When living with the plaintiff minor child or travel to another region is difficult for the initiator of the process - at the applicant’s place of residence (clause 4 of article 29 of the Code of Civil Procedure of the Russian Federation).
3. If the main property to be divided is real estate, then the claim is filed at its location (Article 30 of the Civil Procedure Code of the Russian Federation).

The application is printed in three copies. One for the defendant, the second for the court, the third remains with the plaintiff.

A copy of the document for the defendant or a receipt for mailing is attached to the claim. An application is submitted to the court:

• personally to the office, in this case a mark with the date of acceptance is placed on the plaintiff’s copy;
• through Russian Post offices by a valuable letter with an inventory and notification.

When accepting the application, the court issues a ruling indicating the date of the preliminary hearing. If the requirements of the law are not met when drawing up a claim, the application may remain:

1. Without movement (Article 136 of the Code of Civil Procedure of the Russian Federation) - the procedure for filing a claim has not been followed, there are no documents substantiating the position.
2. Without consideration (Article 135 of the Code of Civil Procedure of the Russian Federation) in cases where the claim is filed:

• an incapacitated citizen;
• an unauthorized person - a representative in the absence of a power of attorney;
• to a court that does not consider cases of this category, for example, a district court instead of a magistrate’s court;
• The case is already being considered in another proceeding.

Upon suspension trial 10 days are given to eliminate shortcomings when filing a claim. The period is calculated from the moment the applicant receives the court ruling. The date is established by the court record of receipt of the document in hand or by the stamp of the Russian Post on the envelope with the determination or on the notification of delivery.

If the plaintiff does not eliminate the shortcomings specified in the judicial act, the application is returned along with all materials, the case is terminated (clause 2 of Article 136 of the Code of Civil Procedure of the Russian Federation).

Judicial acts can be appealed to the appellate authority (clause 3 of Article 136 of the Code of Civil Procedure of the Russian Federation).
For disputes considered in district courts, a period of 2 months is provided (clause 1 of Article 154 of the Code of Civil Procedure of the Russian Federation). To make a decision by the magistrate court at a price below 50 thousand rubles. a month is allocated.

Consideration of an application in court for division of property

After accepting the claim, the court sets a date for a preliminary hearing. The parties are summoned to court.
During the conversation, the party’s demands and the defendant’s arguments are clarified. Copies of documents attached to the application are verified with the originals. They are marked with identity by the court secretary, and then they are filed with the case materials.

The court checks the valuation of the property. The judge asks questions to the parties, analyzes documents to determine whether they have common objects purchased during the marriage. Finds out whether personal property is included in the list of property subject to division.

The trial judge considers the claim on its merits. This means that all the circumstances of the section and the evidence are assessed in their entirety. Even if the claims are based on the award to one of the parties of specific types of property or part thereof, the court has the right to make a division at its own discretion, based on the situation.

At the request of the parties or in the event of their failure to appear, the court may postpone the date of the court hearing. If the parties are absent twice during the consideration of the case without warning and good reason, the court has the right to leave the claim without consideration. This will end the case, and the applicant will be deprived of the opportunity to file a second similar claim on the same grounds.

The operative part of the decision is announced at the court hearing. Full text a judicial act with a motivational component is prepared within 5 days. You can pick up the document from the judge’s secretary, in the office, or receive it by mail.

The decision explains the procedure for filing an appeal and cassation complaint if you disagree with the court's conclusions. The expiration of the period for filing an appeal, equal to 30 days, means the entry into force of the resolution (clause 2 of Article 321 of the Code of Civil Procedure of the Russian Federation). Parties can file a complaint against current judicial acts to a higher court through cassation proceedings.

Counterclaim for division of property: rules for filing

A statement of claim with counterclaims is filed at any time before the final decision on the case is made (Article 138 of the Code of Civil Procedure of the Russian Federation). The document is sent through the office by the court, by mail, or presented at the court hearing when considering the main claim.

The form of a counterclaim is the same as a regular application. It is distinguished by a note about new requirements and a reference to the conduct of a case in court on the same subject of the dispute. It is also accompanied by copies of documents, a receipt for payment of the state fee and evidence of sending a copy of the application to the other party. The counterclaim may contain new list, as well as the same subjects as in the basic requirements.

Until the case is resolved, the parties have the right to come to an agreement at any time. mutual decision and conclude a settlement agreement.

IN Lately A fairly small number of married couples last a lifetime, so the question of how long after a divorce is possible is more relevant than ever.

In fact, during most divorces, ex-spouses experience a lot of stress, especially when there was a past relationship between them. strong love. In such situations, the division of property is often postponed, but someday it will still need to be started. Let's take a closer look at the issue regarding the time over which this can be delayed.

It is worth noting the fact that divorce does not always end in a large number of disputes between former spouses. There are situations when the wife who took the child does not even demand payment of alimony, since the husband helps them in every possible way in later life. The same situations may arise regarding property acquired jointly, because the former married couple can divide it out of court or simply use the same car in turn.

Thus, making a request for a divorce may be endlessly postponed or not planned at all if the former spouses can resolve all the issues on their own.

But very often they ask the question of how long you can delay this and whether it is possible. let's consider detailed rules, which will apply to any property, regardless of cost, type, size and other factors.

How long after a divorce can property be divided?

In order to give the most accurate answer, you need to refer to a document such as the Family Code Russian Federation, where you should go to article number 38.

There you can find information that the division of property occurs directly during a divorce, which is extremely rare, or after divorce proceedings, which is what interests us.

This article also states that this may not happen at all in the absence of, we note that any of the spouses can submit an application, but the bank also has this right if the couple took out a family loan from it, which, by the way, should also be divided equally with property.

Is it worth dividing property through court?

From this justification it is worth drawing one important conclusion - the absence of a marriage or, conversely, being in one cannot in any way affect the appeal to court with a similar problem. It’s not worth talking about the first situation, because no one wants to divide property while married. Now we will analyze the second situation, since it is the most relevant.

Note! If, even after the divorce, you communicate well with your ex-spouse, then there may be no point in dividing the property, especially if you trust him (her), and the divorce was made simply because of the fading of feelings.

It is also important to understand that the same division can be carried out without the involvement of judicial authorities, but independently. Note that none of the spouses will be able to sell property acquired during marriage if it has not been divided. For this reason, we advise you to do this regardless of the warmth of the relationship between you and your ex-spouse.

Let us turn to the same material (Article 38 Family Code), where you should go to point 7. It details that any case related to the division of property has, but this does not mean that after the divorce process you will only have three years, and after this period you will not be able to apply for the division of property in judicial procedure.

Statute of limitations rule

In fact, this rule much more complicated than you might think. The countdown of 3 years begins only from the time when one of ex-spouses becomes aware of any violations relating to property rights.

Let's go back to the example given earlier, the essence of which is relationships of trust between former spouses even after a divorce, when a man and a woman separated due to fading feelings, but trust each other, are ready to selflessly help with children and take on many other functions.

This example also assumes that the division of property was not carried out, and the former spouses continue to use the property that was acquired jointly. Similar situations can only mean that the period for dividing property is not limited.

If there is a clear violation of the rights to the property of one of the spouses, for example, the sale of a common (by right) car without the consent of the other spouse, then a three-year countdown begins. A person will not be able to sue if he delays this for 3 years.

The example of selling a car is worth considering in more detail; the fact is that three situations are possible:

• The sale is supported by both ex-spouses. In such situations, the car can be sold and the money divided in half, but only by mutual agreement.
• One spouse sells when the other does not agree. Even under fair conditions, one of the spouses may not agree to the sale for some reason, and this will be considered a legal right (to not consent to the sale).
• The sale takes place without the knowledge of one of the spouses. Such cases should be resolved in court, when for some reason the spouse sold part of the property and kept the proceeds for himself. Remember you only have 3 years.

Important! If three years have passed, then the property will automatically be transferred to the person who disposes of it in this moment, or to the person to whom it was registered at the time of purchase (if timely division occurs, there will be no problems with this).

The most common dispute between ex-spouses along with the dispute about children. After the dissolution of a marriage, any property acquired jointly by the spouses is subject to division: real estate, things, money, deposits, securities, shares, enterprises.

Division of real estate after divorce

Most complex issue- real estate section.

Real estate is usually divided between former spouses in equal shares, but if compelling circumstances exist, the shares can be changed.

Properties in a state of unfinished construction are also subject to division, despite the fact that they are not even registered in the registry. It is necessary to confirm the contractual relationship with the developer to request the division of the property under construction real estate. If the spouses built the property on their own, then the already constructed part of it is assessed and, on the basis of the assessment, a division and allocation of shares is carried out, and the purchased materials, tools and other things necessary for the construction are included in the jointly acquired property and are subject to division along with other objects and on on general grounds.

How things are divided during a divorce

Things are divided between spouses in kind, excluding indivisible things. When dividing indivisible things, one of them receives ownership of the thing, and the other monetary compensation By market value or other things instead of the indivisible.

For example, dividing a vehicle in kind is impossible, therefore the priority right to receive it as sole property belongs to the spouse who, during the marriage, registered it in his own name, drove the vehicle, and was its insured. The second spouse is offered monetary compensation based on the market value of the vehicle or other items from the property estate.

Things can be divided depending on the occupation of the spouses. So, musical instruments should be transferred to the ownership of the musician spouse, and gardening equipment to the farmer spouse.

How money and business are divided during divorce

Money, shares and deposits are divided equally in accordance with the law, unless the spouses officially provide for another option.

If the spouses ran a business, then the business is also divided between them upon divorce. If a legal entity has been registered, then each spouse can receive a share in it or monetary compensation after the business has been assessed. If an individual entrepreneurship has been registered, then the property acquired for the purposes of commercial activity is included in the property of the spouses and is divided in the same way as other property.

When dividing a business, the rules for allocating a share of an enterprise apply. Preferences for receiving a share in kind are given to the spouse who will continue to run and develop the business. The second spouse may be offered his share in monetary terms.

Total debts are divided in half.

How children's property is divided during divorce

Children's property cannot be divided. Whatever the property may be and for whose funds it is acquired, it does not belong to the common property. Real estate owned by a minor child is transferred to the management of the spouse with whom the child remains until the owner becomes legally capable.

Things, even very expensive ones, purchased for a minor to practice music, dancing, drawing, sports, or crafts, are not shared. The same applies to deposits made in the name of a child. They are managed by the parent with whom the child lives, and are administered by the child himself upon reaching his legal capacity.

Of course, the spouse who remains with the child can dispose of the child’s property, but only in his interests. For example, sell one property and buy another worth at least or more than the proceeds. Or spend money from the account on treatment or education of the child. All these manipulations with the property of a minor are carried out with the permission and under the control of the guardianship and trusteeship authorities. The parent who disposed of the child’s property must, upon request, submit to the second parent, the guardianship and trusteeship authorities or the court documents confirming the acquisition of property in the child’s name in exchange for what was sold or confirming that the child received the services he needs using funds taken from his bank account.

One of the spouses can initiate the division of jointly acquired property and claim their part in kind or in monetary terms. Also, the creditor of one of them has the right to initiate the division of property of the spouses in order to foreclose on the allocated share.

The spouse can choose a contractual or judicial procedure for dividing property, the creditor can only choose a judicial one.

The property that the spouses acquired during the marriage is their common joint property.

From common property excludes property acquired before marriage for any reason and during marriage through gratuitous transactions (for example, by inheritance or under a gift agreement), personal belongings of spouses, regardless of who acquired these things (exceptions from the rule - jewelry and luxury items), exceptional author's rights.

If property was acquired with the funds of one spouse, when the second did not have income for a good reason (running a household and/or subsidiary farm, raising children, was disabled), then the property is understood as community property.

If one spouse significantly improved or transformed the property received by the other spouse in a gratuitous transaction, then he acquires the right to a share in this property. For example, major renovation premises, restoration of driving performance and appearance car, the formation of a garden on an empty plot of land gives the spouse who made the improvements the right to claim a share of the premises, car, land plot owned by the other spouse.

Legal and contractual regime of marital property

The provisions listed above are included in the concept legal regime of marital property. It's installed family law and can be changed to negotiated regime by concluding a marriage contract between the spouses.

A prenuptial agreement formalizes the division of property during the marriage, when spouses agree on who owns what. common property during the marriage, and what will belong after dissolution.

A marriage contract is drawn up with the voluntary consent of both spouses before or after the registration of the marriage, is valid during the marriage and must be certified by a notary office.

If the property regime of the spouses was legal (there was no agreement between them marriage contract), then after the divorce it is necessary to determine who will be the owner of the objects included in the mass of the spouses’ common property, that is, to divide the property.

There are two ways to resolve the partition issue:

1. The first is a voluntary agreement, an agreement on the division of property after a divorce, certified by a notary.
2. The second is the section in court.

Former spouses sometimes agree among themselves on the division of property orally, without drawing up an agreement or having it certified by a notary. And when one of the former spouses violates such an agreement, the second spouse begins to demand its fulfillment. You need to know that proof of a voluntary agreement is a written, notarized agreement. And one can demand protection only of those rights that each spouse is entitled to according to it. In all other cases, you must first demand a change in the agreement in court, and then its execution in a separate proceeding.

The property division agreement establishes two ownership regimes: common shared, where spouses have a share in one property, and separate, where each property has one owner.

Whichstatute of limitations for division of property after divorce?

The period for division of property after divorce is three years. This is the standard statute of limitations provided for by civil law for most cases. The period begins not on the day of divorce, but when the former spouse learned about the violation of his right or should have found out. Formally, as soon as one of the former spouses violates the right of the other, the spouse whose right was violated goes to court. Therefore, to the question “ Is it possible to divide property after 3 years of divorce?"The answer is positive. Yes, it is possible to divide property at any time, but within reasonable limits.

But it is still better to conclude a property agreement notarized or divide property in court within 3 years from the date of divorce, so that you do not have to prove the legality of belated claims.

Division of property in court

How to file for division of property after divorce?

You can apply for division of property to a magistrate if the value of the claim does not exceed 50 thousand. If more, then go to a court of general jurisdiction (federal court).

To divide property, you need to write a competent statement of claim. It must be accompanied by proof of payment of the state duty.

If the marriage is dissolved, attach a divorce certificate or a corresponding extract from the civil registry office if the certificate has not been received; if the divorce and division of property coincide in time, then - a marriage certificate.

In the claim, the plaintiff indicates in as much detail as possible what property he includes in the jointly acquired property, formulates and substantiates his demands for division.

It is necessary to prove that the property belongs to the spouses by right of ownership: submit title documents for expensive objects - real estate and vehicles; checks and receipts for payment regarding other items. You can attach an inventory of things and an assessment by an independent expert. This is especially true when checks and payment slips have not been preserved. The plaintiff pays for the expert’s services himself, but has the right to demand that the defendant reimburse him for part of the expenses.

If some things were purchased through gratuitous transactions, you need to attach evidence: a certificate of inheritance, a gift agreement.

To divide real estate, you must submit to the court a certificate of ownership, the basis for the acquisition (agreement, certificate of inheritance), and an extract from the house register.

To divide unfinished real estate, you can first register it as an unfinished property and divide it on a general basis. But it is allowed to present to the court evidence of contractual relations with the developer (investment agreement, equity participation, purchase and sale) or the basis for purchasing materials during independent construction (inventory of materials with checks, receipts, bills).

For the division of a vehicle, a vehicle passport, an insurance contract, and the basis for purchase are attached. To confirm the priority right to receive a vehicle during division, you can attach a driver’s license.

If a spouse has improved the premarital or gratuitously acquired property of the second spouse and claims to receive a share in it, he must provide evidence of participation in the improvement.

It is reasonable to submit only taken, uncertified copies of documents for the statement of claim and for inclusion in the case. The originals are presented to the court during the trial for review.

The court usually divides the property according to in kind, but may also take into account the preferences of each party.

Changing the shares of spouses during a divorce

The shares of spouses when dividing property must be equal in monetary terms. But there is a possibility that the size of the shares will change.

So, The share of one spouse can be increased:

1. if, by agreement or court decision, minor children or a disabled child for whom care is required will live with him ongoing care regardless of age;
2. if the second spouse led a dependent lifestyle with the ability to work, while not leading household without raising children - without good reasons;
3. if the second spouse abused alcohol, took drugs, lost common property in gambling, or otherwise worsened the financial condition of the family (a rather rare, but real basis for changing the size of the share in the property).

When dividing property, the court is based on independent expert data in the absence of payment documents for the property. The costs are either divided in half or assigned to the defendant if he disagrees with the claims, but cannot prove that he is right, which entails additional legal costs.

If you have any questions about the division of marital property after a divorce, our duty lawyer online ready answer them promptly.

Each spouse has every right to receive his share of what was acquired during the marriage.

After a divorce, it is more convenient for parties who have disagreements in property and non-property disputes.

Adjustable this right Article 38 of the Family Code of the Russian Federation entitled “Division of common property of spouses”.

In accordance with this article, the common property can be divided during the marriage, after its dissolution at the request of any of the spouses, as well as at the request of the creditor to divide the common property of the spouses in connection with the need to recover the share of one of the spouses.

Deadlines for the claim

Simply put, the sooner an application for division of property is filed, the more likely get what you need. The further the divorce date gets, the more necessary evidence disappears, including witnesses, cash receipts, receipts and other legally significant documentation. Therefore, you should not delay!

Another reason is that the division of property is carried out at market prices at the date of the trial, which means that over time things will lose their value, plus they will become outdated.

The statute of limitations for the division of property after a divorce in accordance with Article 38, paragraph 7 of the RF IC is 3 years from the date. However, the Plenum Supreme Court The Russian Federation in one of its Resolutions pointed to paragraph 1 of Article 200 of the Civil Code of the Russian Federation.

This part of the article establishes that the statute of limitations should be counted not from the date of divorce, but from the day from which the person learned or should have learned about the violation of his right.

That is, after divorce, spouses can use common property in equally and together, but if on some day one spouse prevents the other from exercising their rights to property, then it is from that day that the countdown of 3 years for filing claims in court will begin.

How to properly file a claim for division of property?

In its form, the claim for division of property is very similar to, but it is very important correct composition and the reflection in it of all necessary information.

Therefore, spouses often have to resort to help from professional lawyers By this issue.

Only one wrong word or incorrectly chosen phrase in statement of claim will distort the plaintiff’s demands and deprive him of the opportunity to get what he needs.

On the right top corner the name of the court, full name and address of residence of the plaintiff and defendant, and the price of the claim are indicated. The cost of the claim is calculated based on the total price of all property that needs to be divided.

The text of the application contains the following information:

• The date of divorce (or the date of filing the claim for divorce, the stage of the trial in the case);
• It is indicated that there was no division of property before, no agreement was concluded, and the parties are not able to divide the property on their own;
• List of property that was acquired during marital relations, to be divided: its name is written down, distinctive properties, links to documentation confirming the acquisition, the price of each property, its total cost;
• A link to Article 39 of the Family Code of the Russian Federation on the mandatory division of property in equal shares or a requirement for division in other proportions with justifications (living with common children, disability, etc.);
• The list of property that the plaintiff claims for his ownership, its name, cost, justifications proving that this property is in his possession to a greater extent must be obtained;
• A list of property (its name and value) that should be given to the defendant with justification that it should go to him;
• A link to receiving compensation in the event that the share of property of one spouse is more expensive than the share of the second;
• The plaintiff’s demands, based on the entire text of the claim, a list of documents attached to the application, as well as the date and signature.

The following required documentation must be attached to the claim:

• or a copy of the entry in the marriage act, if it has already been dissolved;
• Divorce certificate, if it has already been received or judgment about divorce;
• Documents for property that is subject to division in the claim. These may be registration certificates, receipts, checks, sales contracts, vehicle passport;
• Expert opinion, if an independent assessment was carried out;
• Receipt of payment ;
• Other documents at the discretion of the plaintiff or at the request of the court.

What happens if you don’t divide property after a divorce?

Jointly acquired property in marriage has a special legal protection .

Until the division is made, such property will retain its status as common property.

You can file a claim for division or enter into an agreement on jointly acquired property at any time after a divorce. However, after the expiration of the statute of limitations of 3 years, one of the spouses can declare this to the court if they have applied for division.

The legal concept of “jointly acquired property” did not appear by chance and is intended, first of all, to consolidate the rights of spouses to equal ownership, use and disposal of this property.

Since such property will be problematic to divide, in many families the question arises about the spouses’ trust in each other and the possibility of a preliminary agreement between themselves, which already causes concern for both. As you know, you never know how relations between people will turn tomorrow.

Can lawyers help?

Property disputes, including the division of marital property, are the most difficult cases in court.

Trial they can spin for months in advance. And often the final decision is delayed due to insufficient knowledge of the law, the inability to correctly state one’s demands and draw up a statement of claim.

In this case, you can contact a lawyer. They will help you file a claim property and will even represent the interests of the plaintiff in court on the basis of a power of attorney.

Lawyers will ensure that the divided property is not sold, lost or destroyed by the other spouse before the court makes a decision, they will evaluate the real shares of the spouses and will not allow overpricing or underestimation.

On average, the cost of services for comprehensive participation in a property division case ranges from 40 to 60 thousand rubles.

Unit services:

• Consultation (1 hour) - 1-2 thousand rubles;
• Work of a lawyer at the pre-trial stage: will review the case materials and documents in detail, draw up requests, interview witnesses and other participants in the case, conduct negotiations, clarify the details of the case (1 hour) - from 3 thousand rubles;
• Drawing up a statement of claim (1 page) - 3 thousand rubles.

Thus, filing a claim in court is a solution for those spouses who were unable to reach an agreement in pre-trial proceedings. If you are not sure that everything will be done correctly, it is better to seek help from professionals.

And this period is 3 years(Part 7, Art. 38 SK). This means that property claims of spouses against each other, as well as property claims of creditors, can be presented during the specified period.

In practice, the issue of application and calculation of the limitation period raises a lot of difficulties. The dilemma lies in determining the moment from which the countdown should begin: from the moment of divorce or from the moment of infringement of the rights of one of the spouses to his part in the common joint property. The Code does not contain such clarifications.

By Resolution of the Plenum of the Supreme Court of the Russian Federation No. 15 of November 5, 1998, an attempt was made to clarify the resolution of the problem. According to the document, the limitation period for the division of property of former spouses, which is joint property, should be calculated from the moment the person became aware or should have become known about violation of his rights, and not from the date of divorce.

What is considered a violation of the right of one of the former spouses to joint property?

By ruling of the Supreme Court of the Russian Federation No. 4-B05-49 dated January 17, 2006. It has been established that if, after a divorce, the former spouses continue to jointly use common property, then the limitation period begins from the day when one of them commits an action that prevents the other spouse from exercising his rights in relation to the joint property (for example, alienation is made (sale or donation).

Violation of the rights of the former spouse The following can be considered joint property:

• alienation as a result of a transaction of joint property that was in the possession of one of the former spouses;
• restriction or obstruction of access to joint property;
• dispute over the procedure for using joint property;
• bearing the entire burden of maintaining the joint property by those of the former spouses in whose possession it remained.

One way or another, the decision on whether there was a violation of the rights of one of the former spouses is made by the court, and therefore the decision largely depends on the internal conviction and opinion of a particular judge.

You should be aware of the existence of a special statute of limitations. Thus, in the case of the acquisition of housing under an investment agreement during marriage, the statute of limitations for the division of said property will be calculated from the moment of registration of ownership for constructed housing, even if this registration will be made after the divorce.

Application of the statute of limitations for the division of joint property after divorce in practice

In practice, the situation with calculating the limitation period in cases of division of property of former spouses after divorce is as follows. For example, the division of the spouses’ property during the divorce was not carried out, and the apartment in which one of the spouses remained to live was jointly owned.

After a long time (and this can be 10 or 20 years), the second spouse declares to the first of his intentions to use joint property, which is refused. Violation of the right to joint property. AND only from now on by law can the statute of limitations begins to count according to the division of property. During the time during which the joint property was not used by the second spouse, it could be subjected to repeated alienation, both by the spouse in whose possession it was, and by its subsequent acquirers. A problem arises: transactions made in relation to joint property, for example, for 10 or 20 years, must be declared invalid.

Skipping the statute of limitations for the division of property of former spouses

For one reason or another, the statute of limitations for the division of joint property may be missed by the former spouses.

• The general rule states that missing the limitation period deprives a person of the opportunity to demand restoration of his violated rights, in in this case the right to demand the division of joint property.
• However, in exceptional cases, if there are good reasons relating to circumstances relating to the personality of the plaintiff (in connection with serious illness, illiteracy, helpless position, etc.) the court has the right restore the deadlines limitation period (Article 205 of the Civil Code of the Russian Federation - hereinafter referred to as the Civil Code).

Only those reasons for missing the limitation period that occurred during the last 6 months of the limitation period or that were observed for 6 months or less during the running of the limitation period can be considered valid.

The decision on the validity of a particular reason, which may become the basis for reinstating the statute of limitations, is made by the court. Clear criteria, allowing one or another reason to be classified as valid, not in the legislation.

The procedure for dividing joint property by former spouses

The Family Code provides two possible options division of property for already divorced spouses.

• The first one is peaceful resolution issue by concluding a voluntary agreement ;
• The second option is the division of property by the court based on the claim of one of the spouses. It is used if it is impossible to resolve the issue peacefully and if there are disputes regarding property.

Voluntary procedure for dividing property of former spouses

The voluntary procedure for the division of property involves the drawing up by former spouses voluntary agreement- an agreement that will clearly define what property goes to whom and in what amount (part 2 of article 38 of the IC). Contrary to the general rule of equality of shares of spouses in joint property, defined by law, an agreement on voluntary division of property can divide property between spouses not in equal parts. Main - voluntary consent former spouses to such a resolution of the issue.

An agreement on the division of common property of former spouses is official document however, it does not require notarization. The document can be certified by a notary at the request of the parties.

Judicial procedure for dividing property of former spouses after divorce

The issue of division of property between former spouses can be resolved and judicially. This option is possible in case of a dispute between the parties(Part 3 of Article 38 of the Criminal Code). The court determines which of the former spouses owns what specific property. Based general rule, the division of property occurs on the principle of determining equal shares (50/50), however the court may, at its discretion back off from this, taking into account the interests of the couple’s minor children or the noteworthy interests of one of the spouses (Article 39 of the Family Code).

Statement of claim for division of property

Spouses can defend their demands for restoration of the violated right to joint property by going to court. This appeal is formalized in the form of a statement of claim. The statement of claim must not only be legally competent, but also correctly executed. The requirements for filing a statement of claim are contained in the norms of the Civil Code of the Russian Federation (Article 131 of the Civil Code).

Filing a claim

The statement of claim is drawn up on an A4 sheet, usually in printed form. In the upper right corner of the sheet, in the so-called “header,” it is indicated to whom (to which court) the application is addressed, followed by the personal (full name) and contact (address, telephone number) information of the plaintiff and defendant, and the price of the claim. After - in the center of the document - its name is indicated, namely “ Statement of claim for division of property of former spouses».

The text of the statement of claim must be logically correct, consistent and structured. The document contains:

• the plot of the issue (the date of marriage, the date of its dissolution, the essence of the dispute);
• a description of the circumstances that prompted the plaintiff to go to court (with appropriate argumentation);
• the essence of the violation or threat of violation of the rights and legitimate interests of the plaintiff;
• the plaintiff’s request to resolve the issue of division, addressed to the court outlining his vision of the final result.

The application ends with the signature of the plaintiff and the date of its preparation. To the statement of claim Attached is a package of documents, confirming the presence and value of the spouses’ property, a document confirming payment of the state duty, copies of the application for the number of participants in the process and other documents.

Procedure for filing a claim

As a general rule, a statement of claim for division of property is filed to the court at the defendant’s place of residence. If real estate is subject to division, then you should go to the court at the location of the property.

The amount of the state fee for filing a claim for division of property of former spouses

Payment of compensation upon division of property of former spouses

In the event that one of the spouses, by a court decision, is transferred property, the price of which significantly exceeds the spouse’s share in the common property, the other spouse may be awarded monetary or other compensation his shares in the said property.

The basis for awarding compensation is the second spouse’s expression of desire to receive compensation for part of the property transferred into the possession of the second spouse.

Compensation may be made:

• in monetary terms(50% of the value of the transferred property);
• in another form, for example, through the provision of various types of services, payment of bills, transfer of ownership of other property, etc.

Things acquired during marriage to meet the needs of minor children are transferred to the spouse with whom the children’s place of residence is determined. In this case, compensation is not provided to the second spouse. The same applies to deposits made in the name of minor children.

Questions from our readers and answers from a consultant

My husband and I have been married for 12 years. We have reached a consensus regarding almost all the property and have no claims regarding its division. At the same time, the apartment and car remained in my use, and the dacha and row household appliances and electronics - in use ex-husband. 2 years have passed since the divorce. Today, my ex-husband has a need to use the car that is in my use. I also need a car. We decided to go to court for division of property. Please tell me how the car is divided after a divorce?

According to the legislation of the Russian Federation, a car is considered indivisible property, therefore, the allocation of a share or part of the property in kind is impossible. The following options for resolving the issue of car division are possible:

• the car remains with one of the spouses, for which the second spouse receives the right to other property;
• the car is awarded to one of the spouses, who is obliged to pay monetary compensation to the other for its part. (In this case, the court makes a decision about who to award the car based on its own opinion and the circumstances of using the car, for example, based on which of the spouses used the car more often);

the court decides to sell the car and divide the proceeds equally between the former spouses.

How and by whom is the price of a claim determined in a case of division of property of former spouses?

The price of the claim is determined by the plaintiff and is indicated by him in the statement of claim. She is a reflection total cost all joint property subject to division at the time of going to court. If the defendant agrees with the value of the joint property indicated in the claim, the court, when making a final decision on division, is based on the specified value. If the parties do not have a common opinion regarding the value of the property, such value must be confirmed by any available legal means, including providing the court with documents confirming the value of a particular item (checks, invoices, etc.) and conducting a merchandising examination.

The absence of documents in the case confirming the value of the divided property may become grounds for appealing the final decision in the case.