Where to apply for division of property. When to divide joint property? What is shared and what is not

How to prepare and file an application for the division of property in court? What does such a claim look like and what conditions does it contain? Is it possible to apply jointly for the termination of marriage and to divide the property acquired jointly? What can the defendant claim, and how does he claim his rights? About all important points division of property between spouses you will learn 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;
• at the same time as the notice of termination marriage union;
• when considering a case on termination in the form of additions.

Any capable spouse is eligible to apply.

It should be noted that the requirements under the section relate to property, therefore, in order to present them, you must pay state duty. Its size is determined on the basis of paragraph 1 of paragraph 1 of Article 333.19 of the Tax Code of the Russian Federation. When opening a case at the same time on an application for divorce, a fee is also charged for filing a non-property claim on the basis of subparagraph 3, paragraph 1, article 333.19 of the Tax Code of the Russian Federation. Thus, the state duty will be combined.

Calculation example:

A lawsuit was filed with the court to terminate the marriage, demanding the division of jointly acquired property.
The amount of the state duty will be:

1. For a non-property dispute on the dissolution of a marriage union - 300 rubles.
2. For the division of property acquired by the family, estimated at 500 thousand rubles - 1% of the amount of more than 200 thousand rubles. plus 5200 rubles, total 3200 rubles.

Total state duty on the claim: 3,500 rubles. (300 + 3,200 rubles)

When the requirements are divided, a statement of claim for the division of jointly acquired property can be filed within 3 years from the moment the record of divorce is entered in the book of acts of the registry office (clause 3 of article 38 of the RF IC).

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

In case of dissolution of 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 in official marriage, and simultaneously or after its termination in the registry office or the court.

How to apply for divorce and division of property

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

1. The name of the court. When evaluating a claim up to 50 thousand rubles. should apply to the world court, more - 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. Grounds for in the specified proportions. Written justification: receipts, receipts, agreements with a creditor, etc.
5. Evidence that the claim was sent to the defendant or a copy of the application. Copies of documents supporting the claim. The originals are provided for verification at the hearing.
6. The date of filing of the claim and the signature of the claimant. When submitting an application by a representative, it is necessary to attach the original power of attorney to conduct business in court.

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

Mandatory attachments to the application in copies:

• Marriage certificate;
• a document on the dissolution of the family union - a court decision or a certificate of the registry office;
• birth certificates of children;
• list of property to be divided;
• 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;
• contracts of sale, certificates of inheritance, certificates from bank accounts to justify the personal ownership of each spouse for individual items.

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

How to apply for division of property

The lawsuit is filed in the district court general jurisdiction at the location of the defendant (Article 28 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 former address or the location of property, including real estate (clause 1, 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 place of residence of the applicant (clause 4, 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 CPC PF).

The application is printed in triplicate. 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 postage 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 the branches of the Russian Post 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 the claim, then 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 was not 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:

• disabled citizen;
• by 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 instance instead of a magistrate's court;
• the case is already pending in another proceeding.

When suspended litigation 10 days are given to eliminate defects when filing a claim. The term is calculated from the moment the applicant receives the court ruling. The date is established by an entry in the court about the receipt of the document in hand or by a stamp of the Russian Post on the envelope with the definition or on the notification of delivery.

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

Judicial acts may be appealed to the appellate instance (clause 3 of article 136 of the Code of Civil Procedure of the Russian Federation).
For disputes under 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 world court at a price below 50 thousand rubles. month is allocated.

Consideration of an application in court for the division of property

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

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

The judge of the first instance considers the claim on the merits. This means that all the circumstances of the section and the evidence are evaluated in the aggregate. Even if the claims are based on the award of certain types of property or part of it to one of the parties, 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 case of their failure to appear, the court may postpone the date of the court session. In the absence of the parties twice when considering the case without warning and good reason, the court has the right to leave the claim without consideration. The case will then be terminated, and the applicant will be deprived of the opportunity to file a similar claim a second time on the same grounds.

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

The decision explains the procedure for filing an appeal and a cassation complaint in case of disagreement with the conclusions of the court. The expiration of the period for filing an appeal, equal to 30 days, means the entry into force of the decision (clause 2 of article 321 of the Code of Civil Procedure of the Russian Federation). The parties may file a complaint against the existing judicial acts with a higher court in the procedure of cassation proceedings.

Counter claim for the division of property: filing rules

A statement of claim with counterclaims is submitted 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 of the court, by mail or provided at the court session when considering the main claim.

The form of the counterclaim is the same as that of a regular application. It is distinguished by a note about new requirements and a reference to the case in court on the same subject of the dispute. Copies of documents, a receipt for payment of the state duty and proof of sending a copy of the application to the other party are also attached to it. The counterclaim may contain new list, as well as the same subjects as in the basic requirements.

Before the resolution of the case, the parties have the right to come to an agreement at any time mutual decision and conclude a settlement agreement.

AT recent times a fairly small number of married couples remain for life, so the question of how long after a divorce can be more relevant than ever.

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

It is worth noting the fact that divorce does not always end with a large number of disputes between former spouses. There are situations when the wife who has taken the child does not even require the payment of alimony, since the husband helps them in every possible way in later life. The same situations may arise with regard to property acquired by joint forces, because the former married couple can split it out of court or just take turns using the same car.

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

But very often they ask the question of how much you can pull with this and is it possible. let's consider detailed rules, which will concern 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 such a document 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, we note that any of the spouses can apply, but the bank also has such a right if the couple took a family loan in it, which, by the way, should also be divided equally with property.

Should property be divided in court?

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

Note! If you communicate well with your ex-spouse even after a divorce, then there may not be any point in dividing 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 it is possible to produce the same section without the involvement of the judiciary, but on your own. Note that none of the spouses will be able to sell the property acquired in 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 what any property division cases have, 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 order.

The statute of limitations rule

In fact, this rule much more difficult than you might think. The countdown of 3 years begins only from the time when one of former spouses finds out about any violations concerning property rights.

Let's go back to our earlier example, which is about trusting relationship between former spouses even after a divorce, when a man and a woman parted due to the fading of 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 term for the division of 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 drags it out for 3 years.

An example about 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 common agreement.
• One spouse sells when the other disagrees. 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 (not to agree to the sale).
• The sale takes place without the knowledge of one of the spouses. Such cases must be resolved in court when, for some reason, the spouse sold part of the property and kept the proceeds for himself. Remember that there are only 3 years.

Important! If three years have passed, then the property will automatically pass to the one who disposes of it in this moment, or to the one for whom it was issued upon purchase (with timely separation, there will be no problems with this).

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

Division of property after divorce

Most complex issue- section of real estate.

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

Real estate in a state of construction in progress is also subject to division, despite the fact that it is not even registered in the register. It is necessary to confirm the contractual relationship with the developer to demand the division of the object under construction real estate. If the spouses erected the property on their own, then the already erected part of it is assessed and, on the basis of the assessment, division and allocation of shares are carried out, and the purchased materials, tools and other things necessary at the construction site are part of the jointly acquired property and are subject to division along with other objects and for general grounds.

How things are divided in a divorce

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

For example, the division of a vehicle in kind is impossible, therefore, the spouse who, during the period of marriage, registered it in his own name, drove the vehicle, and was its insured, has the priority right to receive it in sole ownership. The second spouse is offered monetary compensation at the rate of the market value of the vehicle or other things from the estate.

Things can be divided according to the occupation of the spouses. So, musical instruments should be transferred to the spouse-musician, and garden tools - to the spouse-farmer.

How money and business are divided in a divorce

Money, shares and deposits are divided equally in accordance with the law, unless another option is officially provided by the spouses.

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 business valuation. If an individual entrepreneurship was registered, then the property acquired for the purposes of commercial activity is part of the property of the spouses and is divided in the same way as other property.

When dividing a business, the rules for allocating an enterprise's share are applied. The benefits in kind are given to the spouse who will continue to operate and develop the business. The second spouse may be offered a part of it in monetary terms.

The total debts are divided in half.

How are children's property divided in a divorce?

Children's property is not subject to division. Whatever the property and for whose funds it would not be acquired, it does not apply to common property. Property owned by a minor child is transferred to the management of the spouse with whom the child remains until the owner becomes legally capable.

They do not share things, even very expensive ones, bought for minors to practice music, dance, drawing, sports, crafts. The same applies to deposits made in the name of the child. They are managed by the parent with whom the child lives, and disposed of by the child himself upon reaching his legal capacity.

Of course, the spouse staying 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 the 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 guardianship authorities. The parent who has disposed of the child's property must, upon request, submit to the other parent, guardianship and guardianship authorities or the court documents confirming the acquisition of property in the name of the child in exchange for the sold property or confirming that the child has received the services he needs at the expense of funds taken from his bank account.

The initiator of the division of jointly acquired property may be one of the spouses and claim his 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.

A spouse can choose a contractual or judicial procedure for the division of property, a creditor - only a judicial one.

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

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

If the property was acquired with the funds of one spouse, when the other had no income for a good reason (led a household and / or subsidiary farm, raised children, was unable to work), then the property is understood as common property.

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

Legal and contractual regime of property of spouses

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

The marriage contract draws up the division of property during the marriage, when the spouses agree on who owns what in common property during the period of marriage, and what will belong after the dissolution.

A marriage contract is drawn up by the voluntary consent of both spouses before or after the moment of marriage registration, is valid during the marriage and is subject to certification in a notary's office.

If the property regime of the spouses was legal (there was no marriage contract), then after the dissolution of the marriage, it is necessary to determine who will be the owner of the objects included in the mass of the common property of the spouses, 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 a section in court.

Former spouses sometimes agree among themselves on the division of property orally, without drawing up an agreement and not certifying it with a notary. And when one of the former spouses violates such an agreement, the second spouse begins to demand its implementation. You need to know that a written, notarized agreement serves as proof of a voluntary agreement. And it is possible to demand the protection of only those rights with which each spouse is endowed according to him. 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 regimes of ownership: common share, where the spouses have a share in one object of property, and separate, where each object has one owner.

WhichWhat is the statute of limitations for dividing property after divorce?

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

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

Division of property in court

How to file for division of property after a divorce?

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

For the division of 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, a certificate of divorce or a corresponding extract from the registry office is attached if the certificate is not received; if the dissolution of the marriage and the 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 requirements for division.

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

If some things were purchased through gratuitous transactions, evidence must be attached: a certificate of the right to inheritance, a donation agreement.

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

For the division of unfinished real estate, you can first register it as an unfinished object and divide it on a common basis. But it is allowed to present to the court evidence of contractual relations with the developer (investment, equity participation, sale and purchase agreement) or grounds for acquiring materials during independent construction (inventory of materials with checks, receipts, payments).

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

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

It is reasonable to submit only removed uncertified copies of documents to the statement of claim and to attach to the case. The originals are presented to the court during the process for review.

The court usually makes a division of property in natural form, but may also take into account the preferences of each side.

Changing the shares of spouses in a divorce

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

So, The share of one spouse may be increased:

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

When dividing property, the court is based on the data of an independent examination in the absence of payment documents for property. The costs of it are either divided in half, or are assigned to the defendant if he expresses disagreement with the claims, but cannot prove his case, which entails additional legal costs.

If you have any questions about the division of marital property after a divorce, then our duty lawyer online ready respond to 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.

Regulated given right Article 38 of the Family Code of the Russian Federation entitled "Section of the common property of the spouses".

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

Deadlines for a claim

Simply put, the sooner an application for the division of property is submitted, the more likely get what you need. The further the date of divorce becomes, the more and more necessary evidence disappears, including witnesses, cash receipts, receipts and other legally significant documentation. So don't over tighten!

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

The limitation period 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 of. 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 limitation period should be considered 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 the dissolution of the marriage, the spouses can use the common property in equally and jointly, 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 with the court will begin.

How to file a claim for division of property?

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

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

Just one wrong word or an improperly chosen phrase in statement of claim distort the claims of the plaintiff and deprive him of the opportunity to get what he needs.

In the right upper corner the name of the court, full name and address of the place of residence of the plaintiff and the defendant, the price of the claim are indicated. The cost of the claim is calculated at the total price of all property to be divided.

The text of the application contains the following information:

• Date of dissolution of marriage (or date of filing a claim for dissolution, stage of litigation in the case);
• It is indicated that there was no division of property before, the agreement was not concluded, the parties are not able to divide the property on their own;
• List of property acquired during marital relations to be divided: its name is prescribed, distinctive properties, references to documentation confirming the acquisition, the price of each property, its total cost;
• Reference to article 39 of the Family Code of the Russian Federation on the mandatory division of property in equal shares or the requirement for division in other proportions with justifications (living with common children, disability, etc.);
• The list of property that the plaintiff claims for his property, its name, cost, justifications proving that this property belongs to him more must be received;
• A list of property (its name and value) that should be given to the defendant with the justification that it should be given to him;
• A link to receive compensation if the share of the property of one spouse is more expensive than the share of the second;
• Claimant's requirements, based on the entire text of the claim, the list of documents attached to the application, as well as the date and signature.

The following documentation must be attached to the claim:

• or its copy of the entry in the marriage certificate, if it has already been dissolved;
• Divorce certificate, if already obtained or judgment on divorce;
• Documents on the property that is subject to division in the lawsuit. These can be registration certificates, receipts, checks, sales contracts, vehicle passport;
• Expert opinion, if they were independently assessed;
• Receipt of payment ;
• Other documents at the discretion of the plaintiff or at the request of the court.

What happens if you don't share property after a divorce?

Jointly acquired property in marriage has a special legal protection .

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

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

The legal concept of "jointly acquired property" did not appear by chance and is intended, first of all, to secure the rights of spouses to equal possession, use and disposal of this property.

Since it will be problematic to divide such property, in many families the question arises of 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 property of spouses, are the most difficult cases in court.

Trial on them can spin for months ahead. And often the final decision is delayed due to insufficient knowledge of the law, the inability to correctly state their requirements, to 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 property to be shared 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 underpricing.

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

Single services:

• Consultation (1 hour) - 1-2 thousand rubles;
• The work of a lawyer at the pre-trial stage: examines the case materials, documents in detail, draws up requests, interviews witnesses and other participants in the case, conducts negotiations, clarifies 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 statement of claim with the court is a way out for those spouses who failed to reach an agreement in pre-trial order. 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 of article 38 of the UK). This means that the property claims of the spouses against each other, as well as the property claims of creditors, can be brought within the specified period.

In practice, the issue of applying and calculating the limitation period raises many 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 common joint property. The code does not contain such explanations.

By the Decree of the Plenum of the Supreme Court of the Russian Federation No. 15 of 05.11.1998 an attempt was made to clarify the solution of the problem. According to the document, the limitation period for the division of the property of the former spouses, which is joint property, should be calculated from the moment the person became aware or should have known about the violation of his rights not from the date of divorce.

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

Decision of the Supreme Court of the Russian Federation No. 4-В05-49 dated 17.01.2006 it was established that if, after a divorce, the former spouses continue to jointly use the common property, then the limitation period begins from the day when one of them takes an action that prevents the other spouse from exercising his rights in relation to the joint property (for example, an alienation (sale or donation).

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

• alienation as a result of a transaction of joint property owned by one of the former spouses;
• restriction or obstruction in access to joint property;
• dispute on the procedure for the use of joint property;
• bearing the entire burden of maintaining joint property to those of the former spouses in whose possession it remains.

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

You should be aware of the existence of a special limitation period. So, in the case of the acquisition of housing in marriage under an investment agreement, the limitation period for the division of the said property will be calculated from the date of registration of ownership on the constructed housing, even if this registration is made after the dissolution of the marriage.

Application of the limitation period for the division of joint property after a divorce in practice

In practice, the situation with the calculation of limitation periods in cases of division of property of former spouses after a divorce is as follows. For example, the division of the property of the spouses during the divorce was not made, and the apartment in which one of the spouses remained to live was jointly owned.

After a long time has elapsed (and this can be 10 or 20 years), the second spouse declares to the first about his intentions to use the joint property, which is refused. Violation of the right to joint property. And only from now on may legally start running the statute of limitations by division of property. During the time during which the joint property was not used by the second spouse, it could be subject 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.

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

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

• The general rule states that the omission of the limitation period deprives a person of the opportunity to demand the restoration of his violated rights, in this case the right to demand the division of joint property.
• However, in exceptional cases, with good reason relating to circumstances relating to the identity of the plaintiff (in connection with serious illness, illiteracy, helpless position, etc.) the court has the right restore timeline statute of limitations (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 were observed for 6 or less months during the limitation period can be recognized as valid.

The decision on the validity of a particular reason, which may become the basis for the restoration of the statute of limitations, is taken by the court. clear criteria, allowing to attribute this or that reason to the category of valid, not in the legislation.

The procedure for the division of joint property by former spouses

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

• The first one is peace resolution issue by concluding a voluntary agreement;
• The second option is the division of property by the court on the basis of a statement of claim by one of the spouses. It is applied in case of impossibility of peaceful settlement of the issue and in the presence of disputes regarding property.

Voluntary procedure for the division of property of former spouses

The voluntary procedure for the division of property provides for the preparation by former spouses voluntary agreement- an agreement in which it will be clearly defined what property, to whom and in what amount departs (part 2 of article 38 of the UK). Contrary to the general rule of equality of the shares of spouses in joint property, defined by law, an agreement on the voluntary division of property may divide property between spouses not in equal parts. The main thing - voluntary consent former spouses for such a resolution of the issue.

The agreement on the division of the common property of the former spouses is official document However, it does not require notarization. The document can be notarized at the request of the parties.

Judicial procedure for the division of property of former spouses after a divorce

The issue of division of property between former spouses can be resolved and judicially. This option is possible in the event of a dispute between the parties(part 3 of article 38 of the UK). The court determines which of the former spouses and what specific property belongs. Based general rule, the division of property takes place according to the principle of determining equal shares (50/50), however, the court may, at its discretion step back from it, taking into account the interests of the minor children of the couple or the noteworthy interests of one of the spouses (Article 39 UK).

Claim for division of property

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

Making a claim

The statement of claim is drawn up on an A4 sheet, as a rule, 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 personal (full name) and contact (address, telephone number) data of the plaintiff and defendant, the price of the claim. After - in the center of the document - its name is indicated, namely " Statement of claim for the division of property of the 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 arguments);
• 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 an indication of the date of its compilation. To the claim attached package of documents, confirming the existence and value of the property of the spouses, a document confirming the 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 the division of property is filed to the court where the defendant lives. If real estate is subject to division, then you should apply to the court at the location of the property.

The amount of the state duty for filing a statement of claim on the division of property of former spouses

Compensation for the division of property of former spouses

In the case when 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 said property.

The basis for awarding compensation is the expression of a desire by the second spouse to receive compensation for a part of the property transferred to the possession of the second spouse.

Compensation can be made:

• in monetary terms(50% of the value of the transferred property);
• in a different form, for example, by providing various kinds of services, paying bills, transferring possession of other property, etc.

Things acquired during marriage to meet the needs of minor children are transferred to the spouse with whom the place of residence of the children is determined. Compensation to the second spouse in this case is not provided. 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 reached a consensus on practically all the property and we have no claims on 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 by ex-husband. It's been 2 years since the divorce. To date, my ex-husband had a need to use a car that is in my use. I also need a car. We decided to go to court for the division of property. Can you please tell me how the division of the car takes place after a divorce?

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

• the car remains with one of the spouses, for which the second of the spouses receives the right to other property;
• the car is awarded to one of the spouses, who is obliged to pay the second monetary compensation for its part. (In this case, the court makes a decision on who to award the car to, 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 in a case on the division of property of former spouses determined?

The price of the claim is determined by the plaintiff and indicated by him in the statement of claim. She is a display total cost all joint property to be divided at the time of applying to the court. If the defendant agrees with the value of the joint property indicated in the claim, the court, when making a final decision on the division, starts from the indicated 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 an item (checks, waybills, etc.) and conducting a commodity examination.

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