Privatized property during divorce, judicial practice. Certificate on the results of generalization of judicial practice in cases of division of property of spouses (former spouses)

When dividing property in kind, the plaintiff asked to transfer to the defendant the Sang Yong Korando and Toyota Land Cruiser cars for the cost of his share, since he used them during the marriage and is currently using them, as well as the funds contributed by him under the agreement for participation in shared construction , concluded with Apartment Developer LLC, since agreement of participation in shared construction No. 17-B6 dated November 20, 2008. concluded by the defendant, and after the completion of construction of the apartment, it is not possible for them to live together with the defendant in a one-room apartment. The plaintiff also asked to recover from the defendant in her favor monetary compensation in the amount of the cost? shares in conscientiously acquired property, which amounts to 1,050,175 rubles.

She asked to recover from the defendant the costs of paying the state duty in the amount of 9,351 rubles.

Subsequently, the plaintiff clarified the claims (case sheet 118) by abandoning the claims for the division of 1,403,350 rubles paid by the defendant under the agreement for participation in shared construction No. 17-B6 dated November 20, 2008. LLC S for the purchase of an apartment and asked to make a payment from the PP in its favor in the amount of 348,500 rubles, since the total amount of purchased cars was 697,000 rubles. Subsequently, the defendant alienated the cars and disposed of the received funds at his own discretion, in connection with which the plaintiff asked to recover from the defendant? share of the market value of the property sold by the defendant, which is 348,500 rubles. The plaintiff also asked to recover a state fee of 3,000 rubles, and expenses for the services of a lawyer-representative in the amount of 30,000 rubles.

By ruling of the Moscow District Court dated August 31, 2010. proceedings regarding the OP's claims for the division of funds in the amount of 1,403,350 rubles paid under the agreement for participation in shared construction No. 17-B6 dated November 20, 2008. Apartment Builder LLC was terminated due to the plaintiff's refusal of the claim in this part.

At the court hearing, the OP supported the stated requirements in full. Gave the court similar explanations.
The defendant PP did not appear at the court hearing, was duly notified of the time and place of the trial (case file 122), and submitted a statement in which he asked to consider the case without his participation.

The court, after listening to the plaintiff’s explanations and examining the written evidence in the case, came to the following conclusion:

In accordance with Art. 34: a car, as acquired during a marriage, is considered to be the joint property of the parties.

The income of each spouse from hired work, entrepreneurial activity, results of intellectual activity, pensions and benefits, cash payments that do not have a special purpose also constitute joint property. Jointly acquired property also includes movable and immovable property, bank deposits, shares in the authorized capital purchased from the income of one or another spouse, and it does not matter in whose name it is registered or in whose name it is registered.

The judges of two instances, who incorrectly interpreted the norms of substantive law when dividing the property of former spouses, were corrected by the Supreme Court of the Russian Federation in a case that was included in a new 160-page

judicial practice of the Supreme Court,

for the current year.

As the Supreme Court notes in the chapter devoted to the analysis of the practice of the collegium in civil cases, the regime of common joint property of the spouses does not apply to property acquired during marriage, but to funds that belonged to one of the spouses personally.

U. filed a lawsuit against P. for the division of jointly acquired property, citing the fact that he was married to P. During the marriage, under a purchase and sale agreement, the spouses acquired an apartment in joint ownership. Since a marriage contract was not concluded between the parties, an agreement on the division of jointly acquired property was not reached, U. asked to divide the apartment between him and P. and recognize his ownership of 1/2 shares in the right of common shared ownership of the disputed apartment.

The defendant P. did not recognize the claims, she asked to recognize the plaintiff’s ownership of 1/15 of a share in the right of common shared ownership of the disputed apartment, and for her the ownership of 14/15 of the share, taking into account the purchase of the apartment with the defendant’s personal funds in the amount of 1 750,000 rub.

The court found that since December 23, 2010, U. was married to P. During the marriage, on the basis of a purchase and sale agreement dated February 11, 2011, the spouses purchased an apartment, the right of joint ownership of which was registered with them on March 10, 2011. The price of the purchased apartment was 1,995,000 rubles.

As it was established during the consideration of the case and was not disputed by the parties, part of the funds in the amount of 1,750,000 rubles spent on the purchase of this apartment was received by P. as a gift from P.L. (P.’s mother) under a gift agreement dated 11 February 2011. This amount was received by P.’s mother from the sale of an apartment that belonged to her. All of the above transactions were completed on the same day – February 11, 2011.

The marriage between U. and P. was dissolved on October 9, 2014. The division of the spouses’ property after the dissolution of the marriage was not carried out between the parties.

Resolving the dispute and satisfying the claims for the division of the disputed apartment between the spouses in equal shares, the court of first instance proceeded from the fact that an agreement was reached between the parties to purchase the apartment into common joint ownership, and since the funds received as a gift were contributed by P. on her discretion for the common needs of the spouses - the purchase of an apartment, then this property is subject to the regime of joint ownership of the spouses.

The appellate court agreed with the findings of the trial court.

The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation recognized that the conclusions of the courts were made in violation of substantive law.

In accordance with Art. 34 of the RF IC, property acquired by spouses during marriage is their joint property. Property acquired by spouses during marriage (common property of spouses) includes the income of each spouse from labor activity, entrepreneurial activity and the results of intellectual activity, pensions, benefits received by them, as well as other monetary payments that do not have a special purpose (amounts of material assistance, amounts paid in compensation for damage due to loss of ability to work due to injury or other damage to health, and others). The common property of the spouses also includes movable and immovable things acquired at the expense of the spouses' common income, securities, shares, deposits, shares in capital contributed to credit institutions or other commercial organizations, and any other property acquired by the spouses during the marriage, regardless of whether in the name of which of the spouses it was purchased or in the name of which or which of the spouses contributed funds.

In accordance with paragraph 1 of Art. 36 of the RF IC, property that belonged to each of the spouses before marriage, as well as property received by one of the spouses during marriage as a gift, by inheritance or through other gratuitous transactions (the property of each spouse), is his property.

As the court established, the source of acquisition of the disputed apartment was the funds received by P. in a gratuitous transaction, as well as partially jointly acquired funds of the spouses.

According to the explanations contained in paragraph four of clause 15 of the resolution of the Plenum of the Supreme Court of the Russian Federation of November 5, 1998 No. 15 “On the application of legislation by courts when considering cases of divorce,” property acquired, although acquired during marriage, is not jointly owned. on the personal funds of one of the spouses that belonged to him before marriage, received as a gift or by inheritance, as well as personal items, with the exception of jewelry and other luxury items.

From the above provisions it follows that a legally significant circumstance when deciding whether to classify property as the common property of spouses is what funds (personal or general) and through what transactions (compensated or gratuitous) the property was acquired by one of the spouses during the marriage. Property acquired by one of the spouses during marriage through gratuitous civil law transactions (for example, by inheritance, donation, privatization) is not the common property of the spouses. The acquisition of property during marriage, but with funds that belonged to one of the spouses personally, also excludes such property from the regime of common joint property.

At the same time, the court mistakenly ignored such a legally significant circumstance as the use of funds that belonged to P. personally to purchase the disputed apartment.

In concluding that the disputed apartment belongs to the joint property of the spouses, the court proceeded from the absence of conditions in the purchase agreement regarding the distribution of shares in the apartment.

At the same time, the court did not take into account that the funds received by P. as a gift in the amount of 1,750,000 rubles. and spent on the purchase of the apartment were the personal property of P., since they were not purchased jointly during the marriage with the plaintiff and did not constitute the common income of the spouses.

Contribution of these funds to purchase an apartment does not change their nature as P’s personal property.

Thus, the parties’ shares in the ownership of the apartment were subject to determination in proportion to the defendant’s invested personal funds and the joint funds of the parties.

This was not taken into account by the courts and resulted in the issuance of illegal court decisions (definition No. 45-КГ16-16).

judicial practice, Supreme Court of the Russian Federation, civil procedure,

For many couples, the divorce process is a difficult period when unrealistic hopes of creating a strong family are finally put to rest. And while both parties are worried, or maybe thinking about plans for the near future, lawyers strongly recommend that they immediately resolve other issues related to the divorce. One of them is the division of property.

Our articles talk about typical ways to resolve legal issues, but each case is unique.

If you want to find out how to solve your particular problem, please contact the online consultant form on the right or call the numbers below. It's fast and free!

General provisions for the division of property

All property that was acquired during the marriage with the income of the husband or wife is included in jointly acquired property.

Even if only one spouse worked and earned money and property was purchased with this money during the marriage, it will still be considered jointly acquired.

The legislator decided that Housework, child care, and raising children also require considerable effort.. If you hire individual workers for this, then not every family will have enough funds for this, even if these funds come from the earnings of both spouses.

Therefore, the fact that one of them sacrificed his career for the sake of running a household is viewed by the legislator from precisely this angle. And it doesn’t matter whether the decision was made consciously or forced due to lack of work.

All jointly acquired property must be divided into two equal parts. That is, each spouse has equal rights to it. For example, if a car was purchased during marriage with the husband’s income and it was he who used it, the documents were drawn up in his name, then during a divorce he must understand that his wife has the same rights to this car as he does.

But the spouse must also understand that those jewelry that she acquired during the marriage and that only she wore are also subject to inclusion in the total amount of jointly acquired property. Her husband has the same rights to all acquired luxury items as she does, even to her mink coat and expensive sheepskin coat.

Many divorcing couples, clinging to each other's throats during the division of property, somehow forget that not only assets, but also liabilities are subject to division. That is, debts acquired during marriage will also have to be divided among themselves.

You took out a car on credit, took out a mortgage for an apartment - during a divorce, be kind enough to divide the remaining loans.

Jointly acquired property does not include property that was acquired by spouses before or after marriage, or was inherited or gifted to one of them personally.

If during the marriage the spouses lived in an apartment that the spouse inherited from her parents, and she inherited jewelry from her mother and grandmother, and at that time her husband drove a car that he purchased before marriage, then All this listed property is subject to division.

You can read more about the procedure for dividing property here.

So, the general provisions are more or less clear. Are there any deviations from them? Of course there is, and it all depends on what arguments the parties present at the court hearing itself. But it must be taken into account that not everything that one or another side of the process will assert will be taken into account by the court.

If the husband accuses his wife that she never worked anywhere, everything was bought with his money, then the court will not even react to this for the reasons stated above. This is a very common argument in court, after which the spouse wonders why they were not heard and even suspect collusion and corruption. But the reason for this is simple - current legislation.

Wives in court also often go too far, demanding to give everything or most of it, because the children remain with them. The maximum that they can additionally count on in this regard is the property that is due to the children and which is transferred upon divorce to the parent with whom these children remain.

By the way, you can read about the procedure for divorce through the court if you have children here. Also read about how to apply for alimony during a divorce.

However, everything changes if sane arguments are heard in court. For example, if one spouse did not work without any reason, led an immoral lifestyle, and caused damage to property by his behavior, then in such a situation the court may make a decision by which it will reduce the share of the jointly acquired property due to this spouse.

It happens that one of the spouses (usually the husband) becomes an alcoholic and does not work anywhere for a long time. In the family, on this basis, there are daily scandals that turn into fights, accompanied by damage to property. The spouse may take things out of the house to sell them for next to nothing and get a new dose of alcohol or drugs.

But in such situations, it must be taken into account that words alone will not be enough in court. In order to prove the regularity of scandals, it is necessary to show copies of administrative detention protocols and extracts from the call log of the nearest police station.

Damage to property can be proven by the same arrest reports, which describe the circumstances of the offense.

If things have been taken out of the house, you must at least show police statements. And it will be very fortunate if at least one of these statements contains materials confirming such facts. It can administrative protocols, in which there is information that a citizen purchased the items taken out or an item for next to nothing from one of the spouses.

All these materials are of great importance in court, much more than the testimony of neighbors who are greatly bothered by a drunk neighbor. But the testimony of neighbors in this case will not be superfluous.

We are talking about an unequal division of property, and in order to make a decision that will differ from the direct rule of law, the judge needs very good reasons.

As stated above, the personal property of one of the spouses is not included in the total estate. In theory, an apartment received by inheritance, gifted or purchased before marriage by one of the spouses is not subject to division. But in practice it may be different, and here again argumentation plays a big role.

For example, after marriage, the wife moves to her husband’s apartment, which he inherited. The apartment needs serious renovation and the wife decides to use the money she has saved to make major home renovations.

After this repair, made at her expense, the apartment significantly changes its market value in the direction of increase. During a divorce, the argument that the apartment was renovated with the wife’s personal funds will be taken into account and it is quite possible that, by a court decision, she will be entitled to a share of this apartment.

The same applies to other personal property, which, as a result of repairs using the personal funds of the other spouse, changes its value upward.

If a car that belonged to the wife before marriage cost 300 thousand rubles, and during the marriage the husband repaired it at his own expense and it began to cost 700 thousand rubles, then he has the right to claim part of this car after the divorce.

But, it must be borne in mind that this is only true when the repairs were carried out at the personal expense of one of the spouses. His current income does not qualify as such and is considered jointly acquired..

But even in this case, if the apartment or car of one of the spouses is repaired using joint income, increasing its value, then during a divorce the other spouse can claim some part of it.

For example, an apartment before marriage cost 2 million rubles. During the marriage, the spouses made repairs in it for the combined income, and the apartment increased its value to 3.5 million rubles. During a divorce, the second spouse has the right to claim part of this apartment, which will be equivalent to half of the changed value. In this case, it is half of 1.5 million rubles or 750 thousand rubles, which is almost equal to one fifth of the apartment (1/4.7).

It is this part of the apartment that the court can award to the other spouse, although in many cases the decision of the apartment owner is obligatory to pay this amount to the ex-spouse, in this case 750 thousand rubles.

As in the previous case, arguments must be based on facts. They are data on the availability of financial resources before marriage, on the sale of some property, the proceeds from which were used for repairs. It is very good when all changes to an apartment or car are made in a timely manner in the registration certificates. This increases the likelihood that the right decision will be made in court.

If the money lying under the pillow was used to increase the value of the property, and its origin is unknown, then it will be very difficult to prove something in court.

How is the value and division of various property, such as an apartment or car, usually assessed in court? For general cases, the court does not care at all how much it costs. The cost data indicated in documents issued by the technical inventory bureau is usually much lower than the market value. But this data is used only to pay the state fee when submitting documents to the court for consideration.

The court awards shares of this or that property, leaving it up to the former spouses to decide how each of them will use ½ of the apartment, whether they will change indivisible housing, such as an apartment, house, garage or car, or sell it and divide the money.

However, there are situations when you need to find out the real value of a property. Some of them are described above when it comes to dividing an apartment or car that has increased in value during the marriage. In such situations it is impossible to do without an examination.

An appropriate expert, for example, an employee from the BTI, will give a real assessment of the property at the moment. The expert opinion will be the starting point in the court hearing, but not clippings from newspapers and magazines about similar property for sale.

Example No. 1

The wife filed for divorce along with a demand for division of property. There is an apartment that my husband’s parents bought, it has furniture and household appliances. Also, in her application, the wife demanded half the money from the car sold three years ago. According to the court's decision, the wife was awarded half of the furniture and household appliances.

What was this decision based on? The apartment in which the spouses lived was purchased by the husband's parents. They were alive, but they did not draw up a deed of gift for her. It turned out that in fact the apartment belonged to the spouses, they used it, but from a legal point of view it did not belong to any of the spouses.

But even if the parents had drawn up a deed of gift for their son, even in this case the wife could not count on part of it.

The car sold three years ago was also registered to the husband's father, but that is not the main thing. The period for property claims is three years, and it had expired at the time of filing the documents. This is, firstly.

And secondly, the money was spent on the needs of the family and therefore is not subject to division. All that remains are household appliances and furniture that were purchased during the marriage, and which constitute jointly acquired property. The court divided this property.

Two years before filing for divorce, the husband sold his one-room apartment, which belonged to him as personal property. After donating money, the family buys a three-room apartment, but the wife renounces ownership of it. During a divorce, she submits an application for division of the apartment.

The court makes a decision on she is entitled to a sum of money equivalent to a quarter of this apartment.

During the court hearing and examination, it was established that the cost of a one-room apartment is half that of a three-room apartment. Accordingly, half of this apartment belongs to the spouse as joint property. Her refusal of ownership of the apartment did not matter in this case.

During a divorce, it sometimes happens that one of the spouses deliberately hides all documents on property. As judicial practice shows, getting out of this situation is not so difficult. To do this in court you can submit a petition to request documents, or obtain their duplicates from the relevant institutions.

Where can I view court decisions on specific cases, including the Supreme Court? You can view court decisions without leaving your home. All you need is a computer and an Internet connection. Go to the website, for example here, and in the judicial practice section you can familiarize yourself with specific cases.

Also, now each court has its own website, where you can see the court decisions that it made. For example, the website of the Chelyabinsk Regional Court. The Supreme Court of the Russian Federation also has a website. On all these sites you can find specific cases; to do this, you need to know their numbers and familiarize yourself with the decisions on them.

Plaintiffs in a property division case are faced with the need to pay a state fee when filing a claim in court. For many of the plaintiffs, this may be the only or main expense.

The state fee for the division of property depends on the price of the claim itself and is equal to half the cost of all property subject to division. It cannot be less than 400 rubles, but cannot exceed 60 thousand rubles.

In addition to this, you may need examination costs, since it is not free and costs far from a symbolic amount. So, the more expensive the disputed property, the more complex the case itself, the higher the costs will be.

And if they are still attracted lawyers, without which you can’t figure out complex cases yourself, then the litigation will be very expensive. A few hundred thousand rubles is far from the limit here.

According to the law, the party in whose favor the court made a decision, the other party is obliged to reimburse all legal costs incurred by it. If the claim is partially satisfied, the applicant is reimbursed expenses in proportion to the claims satisfied.

There is no exact answer to this question. As judicial practice shows, such proceedings can end within one or two months, or they can drag on for six months, a year or more.

The more complex the case, the more documents on the case need to be requested, the more witnesses to interview, the longer it will take. You can count on a quick solution if both parties immediately come to mutual agreement.

Taking into account possible time and financial costs, at the beginning of the process itself you should think about finding a compromise with your ex-spouse. Perhaps it is worth giving in to some demands.

At a minimum, this will save time, and at a maximum, it will significantly save not only money, but will also allow you to remain in normal relations with your ex-other half.

If something remains unclear to you, perhaps this video will help you:

Didn't find the answer to your question? Find out,

how to solve exactly your problem - call right now:

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Certificate on the results of generalization of judicial practice in civil cases on the division of jointly acquired property of spouses

Reference
based on the results of generalization of judicial practice
in civil cases regarding division
jointly acquired property of spouses

In total, 385 civil cases were received for generalization from the district (city) courts of the Samara region, of which 2 cases are not related to the topic of generalization.

Of the 383 cases received:

1) ended with a decision - 231 cases (60.3% of all 383 cases), of which 70 cases (30.3% of 231 cases) were appealed in cassation procedure, 12 cases (17.1% of 69) were appealed in a supervisory procedure cases, or 5.2% of 231 cases));

2) rulings to terminate proceedings were issued - 125 cases

(32.6% of all 383 cases) - Art. 220 Code of Civil Procedure of the Russian Federation:

including:

94 cases (75.2% of the dismissed 125 cases, or 24.5% of all 383 cases) - due to the conclusion of a settlement agreement);

30 cases (24% of the dismissed 125 cases, or 7.8% of all 383 cases) - due to the abandonment of the claim;

1 case - in connection with the filing of a repeated claim, for which there is a court decision that has entered into legal force.

3) rulings on leaving the application were made

without consideration - 27 cases (or 7% of all 383 cases) - in accordance with paragraphs 7 and 8 of Art. 222 of the Code of Civil Procedure of the Russian Federation, due to the failure of the plaintiff and the parties to appear.

When resolving disputes regarding the division of jointly acquired property of spouses, courts are guided by:

1) the norms of the Family Code of the Russian Federation,

2) the norms of the Civil Code of the Russian Federation,

3) Resolution of the Plenum of the Supreme Court of the Russian Federation No. 15 of November 5, 1998.

“On the application of legislation by courts when considering cases of divorce” (as amended by Resolution of the Plenum of the Supreme Court of the Russian Federation No. 6 of 02/06/2007).

4) Resolution of the Plenum of the Supreme Court of the Russian Federation No. 4 of June 10, 1980 “On some issues that have arisen in the practice of courts applying disputes on the allocation of a share to the owner and determining the procedure for using a house owned by citizens on the right of common ownership.”

5) Joint Resolution of the Plenum of the Supreme Court No. 15 of November 12, 2001 and the Plenum of the Supreme Arbitration Court of the Russian Federation No. 18 of November 15, 2001 “On some issues related to the application of the provisions of the Civil Code of the Russian Federation on the limitation period.”

6) other norms of the current legislation of the Russian Federation (codes, federal laws, Resolutions of the Plenums of the Supreme Court, etc.).

Jurisdiction of cases on division of property of spouses.

Until 02/01/2003, district courts considered all cases regarding the division of jointly acquired property between spouses.

According to the norms of the current Code of Civil Procedure of the Russian Federation, in the period from February 1, 2003 to July 30, 2008, the jurisdiction of justices of the peace included all cases regarding the division of jointly acquired property of spouses, regardless of the value of the claim (Article 23 of the Code of Civil Procedure of the Russian Federation).

Cases regarding the division of jointly acquired property between spouses when the value of the claim exceeded 100 thousand rubles, from July 30, 2008 to February 15, 2010, were considered by the district court as a court of first instance.

Since February 15, 2010, the jurisdiction of district courts includes cases of division between spouses of jointly acquired property when the value of the claim exceeds 50 thousand rubles

Acceptance of the application.

Regardless of whether the claim for division of property is filed simultaneously with the claim for divorce or separately, it is subject to payment of state duty. Its size is determined depending on the value not of all the property acquired by the spouses during the marriage, but only on the value of the property that the plaintiff asks to be allocated to him in the statement of claim. In accordance with the requirements of Art. 131, art. 132 of the Code of Civil Procedure of the Russian Federation, in the application the plaintiffs indicate: a list of all property acquired by the spouses during the marriage and subject to division, indicating the time of acquisition of each thing and its price, and the things that the plaintiff asks to be allocated to himself must also be indicated, their existence in kind on moment of filing a claim.

If a claim for division of property is filed separately from an application for divorce, then the courts find out: the date of marriage, the presence of minor children and which parent they live with (in case of separation or divorce), since these circumstances may be important for determining the share of each spouse in the common property.

The creditor's statement of claim for the division of the common property of the spouses in order to allocate the share of the debtor spouse for the purpose of foreclosure of the debt must be attached, in addition to the documents listed in Art. 132 of the Code of Civil Procedure of the Russian Federation, also evidence confirming the existence of an outstanding debt of the debtor spouse, the amount and deadline for fulfilling the obligation, information that the bailiff took measures to foreclose on the debt on property constituting the separate property of the debtor spouse, but there is no such property or this property is not enough to pay off the debt.

Preparing the case for trial (Article 150 of the Code of Civil Procedure of the Russian Federation).

In order to prepare a case for trial, courts clarify the following issues:

1) whether the parties wish to end the matter peacefully by drawing up an agreement on the division of common property or by concluding a settlement agreement.

2) regarding what specific things (property) the parties do not have a dispute, whether the defendant agrees with the list of common property acquired during the marriage, its price and time of acquisition indicated in the statement of claim (specifically for each thing). Depending on the results of the survey, the court invites the parties to present relevant evidence based on the principle of its admissibility.

3) whether all the things named by the parties are available, where they are, since the court has the right to allocate to each spouse only those things that are available to the parties or are in the possession of third parties. If any things are in the possession of third parties, the court grants the request of the party(ies) to involve these persons in participation in the case. Without involving third parties who, at the request of the party(ies), have their common property, the court in its decision does not have the right to decide the issue of the rights and obligations of these things in relation to the things they have (thus, by virtue of paragraph 4 of Part 2 of Art. 364 of the Code of Civil Procedure of the Russian Federation, violation of this rule entails the cancellation of the decision in cassation procedure and may be the basis for the cancellation of the decision in the order of supervision).

4) whether a marriage contract has been concluded, whether it has been terminated or declared invalid.

5) are there any other agreements regarding the common property of the spouses.

6) whether any things are encumbered with collateral.

The court invites the parties to submit title documents for property, including real estate subject to state registration, in particular, a residential house, apartment, garage, land plot, garden house and land plot in a gardening partnership, an unfinished construction project, as well as for such movable things as a car, motor boat, yacht, etc., which are registered in the prescribed manner as a vehicle.

Consideration of cases in court.

When considering cases, courts should consider:

1) on what specific things (property) the parties do not have a dispute, in order to focus on those things (property) about which there is a dispute.

2) if a marriage contract is concluded, the courts check for how long it was concluded, whether its validity period has expired, and whether the marriage contract has been terminated or declared invalid.

3) the courts do not find out or compare the size of investments of each spouse in joint property, the amount of earnings or other income of each of them, since the share of each spouse in joint property does not depend on the size of investments in common property. The only exception is the case when a spouse refers to the fact that the other spouse did not receive income for unjustified reasons, which, by virtue of clause 2 of Art. 39 of the RF IC, may be the basis for reducing the share of this spouse in the common property.

4) the courts examine issues related only to those things and securities that were acquired during the marriage. The courts check the statements of one of the spouses about separation, finding out whether there was a termination of family relations during this period and what things were acquired, since, by virtue of paragraph 4 of Art. 38 of the RF IC, it is possible to recognize the property acquired during this period by each of the spouses as the property of each of them.

5) the courts establish things (acquired solely to meet the needs of minor children) that are not subject to division and are transferred without compensation to the parent with whom the children live, and therefore there is no need to check the value of these things.

The court decision states:

In the motivational part:

1) what specific things, for what amount, were jointly acquired by the spouses during the marriage;

2) whether the statement of the spouse (spouses) is justified that the list of common property subject to division includes things that do not belong to the jointly acquired property of the spouses or should not by law be included in this property and are the property of each of the spouses, unless otherwise provided by the marriage contract (in particular, things acquired before marriage; things received by one of the spouses as a gift, by inheritance or through other gratuitous transactions; things acquired exclusively to meet the needs of children; things for the personal use of each from spouses, except for luxury items); things acquired during marriage, but after the actual termination of family relations during the period of their separation;

3) the value of each item and all property subject to division is determined;

4) the share of each spouse in their common property is determined, taking into account the circumstances that are the basis for deviation from the principle of equality of shares under the legal regime of the property of the spouses or based on the terms of the marriage contract;

5) it is established whether all things subject to division are available;

6) it is indicated which specific things (indicating the price of each of them) and for what total amount are allocated to the share of each of the spouses; in order to equalize the shares, the amount of monetary compensation is determined;

7) if there are debts, it will be determined whether they are a common debt of the spouses or whether the obligation to repay them lies with only one of the spouses; common debts are distributed in proportion to the awarded shares in joint property.

In the operative part: it is indicated whether the claim has been satisfied in whole or in part, and which part has been refused. The property of each spouse excluded from the division of common property is indicated. If the requirement for division is satisfied, it is indicated what specific property and for what amount is allocated to each of the spouses for his share, the amount of monetary compensation to be recovered from the spouse in favor of the other spouse, if the value of the things allocated to one of the spouses exceeds his share in the common property; the issue of distribution of the amount of debt between the spouses is resolved, if they are common.

The Family Code subdivides:

1) the legal regime of the spouses’ property;

2) contractual regime of property of spouses (nuptial agreement).

Legal regime of marital property
regulated by Articles 33-39 of Chapter 7 of the Family Code of the Russian Federation, Art. 256 of the Civil Code of the Russian Federation.

The legal regime of the property of the spouses is the regime of matrimonial property established by the norms of civil and family law.

Based on Art. 256 of the Civil Code of the Russian Federation, property acquired by spouses during marriage is their joint property, unless an agreement between them establishes a different regime for this property.

The legal regime of marital property is valid unless otherwise provided by the marriage contract.

The legal regime of matrimonial property is established automatically from the moment of marriage.

Property acquired by spouses during marriage (common property of spouses) includes:

Income of each spouse from labor activity, entrepreneurial activity and results of intellectual activity,

Pensions, benefits, as well as other monetary payments that do not have a special purpose (amounts of material assistance, amounts paid in compensation for damage due to loss of ability to work due to injury or other damage to health, and others).

Movable and immovable things, securities, shares, deposits, shares in capital contributed to credit institutions or other commercial organizations,

Any other property acquired by the spouses during the marriage, regardless of which spouse’s name it was acquired in or in the name of which or which of the spouses contributed funds.

This list of property is not exhaustive (for example, the common property of spouses can be recognized as: property acquired by both spouses under an exchange agreement; property received as a gift by both spouses; funds received by them from the sale of joint property, etc.).

In judicial practice, difficulties arise in establishing the composition (list) of marital property and its value, taking into account the fact that the legal regime of a particular property subject to division is different.

In addition, when considering disputes about the division of jointly acquired property, it is important to determine the moment of termination of marriage relations and joint household management, after which the property acquired by each spouse with personal funds belongs to his personal (individual) property and is not subject to division between the spouses.

When considering cases of division of property of spouses, in order to establish legally significant circumstances in the case, the correct procedural behavior of the parties is important, which can facilitate the court’s collection of evidence, but can also hinder this by alienating or concealing one or another common property, etc., in connection with which, at the stage of preparing the case for trial, as well as at the stage of trial, the judge (court) takes measures to secure the claim, explains to the parties the rights and obligations about the inadmissibility of abuse of rights. Interim measures taken by a judge (court) help preserve the availability of property both at the time of a court decision resolving the dispute on the merits, and at the time of execution of the court decision.

In judicial practice, difficulties arise regarding what evidence should be presented to determine the composition and value of the spouses’ property, which is reflected in this generalization.

When establishing the fact that one of the spouses received wages during marriage and running a joint household, the courts satisfy the claims of the other spouse for the division of wages, but if the contrary is proven, the courts reject the claim. Thus, on December 30, 2008, the Zheleznodorozhny District Court of Samara correctly denied plaintiff B.N. in a claim for the recovery of 1/2 share of monetary compensation for unused vacations for the period of work of the defendant since 1997. until 2006 from the total amount in the amount of 800,000 rubles. on the grounds that this compensation was received by the defendant on 04/02/2008 after the divorce (the parties were married from 10/06/2001, the marriage was dissolved on 10/24/2007); the order to accrue these funds by the employer was also issued after the divorce - 02/31/2008; the court found that the plaintiff had not proven the facts that the defendant deliberately did not use annual leave and deliberately filed an application for compensation only after the divorce.

When resolving disputes regarding garage boxes that are not registered in accordance with the procedure established by law, the courts correctly proceed from their legal status, and therefore, the courts justifiably seek appropriate monetary compensation in favor of one of the spouses. Thus, on January 26, 2009, the Avtozavodskoy District Court of Togliatti satisfied the claim of K.M. to his ex-wife K.A. on the division of jointly acquired property, including a garage box in the GSK. The court found that defendant K.A. was a member of the GSK, the share contribution for the disputed garage box was fully paid by the spouses during their marriage, however, the garage box was sold by the defendant on December 10, 2007 after the divorce for 160 thousand rubles, and therefore the court justifiably recovered K from the defendant .A. in favor of the plaintiff K.M. a sum of money for a garage box in the amount of 80 thousand rubles (1/2 of 160 thousand rubles). The evidence of the defendant’s sale of the disputed garage box was: the confession of the defendant K.A. herself; certificate from the chairman of the State Committee; a warrant in the name of the new buyer, issued on the basis of a decision of the GSK Board, a copy of the membership card; testimony of a new buyer. At the same time, defendant K.A. did not provide evidence that she transferred half of the amount of 160 thousand rubles to her ex-husband.

Similarly (by collecting appropriate monetary compensation in favor of one of the spouses), the courts resolve disputes regarding a share in the Horticultural Non-Profit Partnership (SNT). Thus, on July 21, 2009, the Komsomolsky District Court of Togliatti recognized the jointly acquired property of spouses S.L. (plaintiff) and V.A. a share in SNT for a plot in the amount of 400,000 rubles (the spouses were married from October 26, 2005 to January 12, 2009) and from the defendant V.A. in favor of plaintiff S.L. at her request, if the shares were equal, monetary compensation in the amount of 200,000 rubles was justifiably collected (1/2 of the market value of the disputed property of 400 thousand rubles). Defendant V.A. did not recognize the claim, claiming that there was no title documentation for a share in SNT, but, according to the receipt dated February 28, 2006, defendant V.A. (during the marriage) transferred to citizen R.M. cash in the amount of 30 thousand rubles. towards the purchase of a disputed land plot located in SNT. From the SNT certificate it follows that the specified plot, with an area of ​​5 acres, was acquired on February 22, 2006 by defendant V.A., who is a member of SNT; the site has an address; Currently, the site is used by defendant V.A., which is confirmed by receipts for payment by defendant V.A. expenses for maintaining the site. By virtue of Art. 218 of the Civil Code of the Russian Federation, the court correctly recognized that a share in SNT is jointly acquired property subject to division.

When resolving disputes about the ownership of a house, about the allocation of a house in kind, the courts reasonably determine the ideal share of each spouse.

When considering disputes between spouses about the allocation of a share in property, the courts also apply the norms of civil law and take into account that each participant in common property has the right to demand the allocation of his share from the common property in kind. If the allocation of a share in kind is not permitted by law or is impossible without disproportionate damage to property in common ownership, the allocated owner has the right to have the value of his share paid to him by other participants. The disproportion between the property allocated in kind to the participant in the common property and his share in the right of ownership is eliminated by the payment of monetary compensation. Payment of monetary compensation to a participant in common property by the remaining co-owners instead of allocating his share in kind is permitted with his consent. In cases where the owner’s share is insignificant, cannot be realistically allocated and he does not have a significant interest in the use of the common property, the court may, even in the absence of the consent of this owner, oblige the remaining participants to pay him compensation. When allocating in kind a share in property that is divisible, the courts transfer to the co-owner (the other spouse) a part of this property that is equal in size and value to his share, if this is possible without disproportionate damage to the economic purpose of the thing. In particular, in the case of dividing a house in kind, the co-owner is allocated an isolated part of the residential building and a part of non-residential buildings corresponding in size and value to his share, if this is possible without disproportionate damage to the economic purpose of the building. Damage is disproportionate if it is impossible to use the property for its intended purpose, a significant deterioration in its technical condition or a decrease in material or artistic value (for example, a collection of paintings, coins, etc.), inconvenience in use, etc.

In some cases, as explained in paragraph 36 of the Joint Resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation No. 6/8 dated July 1, 1996, “On some issues related to the application of Part 1 of the Civil Code of the Russian Federation,” taking into account specific In the circumstances of the case, the court may transfer an indivisible thing into the ownership of one of the participants in shared ownership who has a significant interest in its use, regardless of the size of the shares of the remaining participants in the common property with compensation for the value of their shares. The presence or absence of a significant interest is decided by the courts in each specific case on the basis of a study and assessment of the totality of evidence presented by the parties, confirming, in particular, the need for the use of this property due to age, health, professional activity, the presence of children, other family members, etc. including disabled people, etc.

When allocating a share in kind and receiving appropriate monetary compensation, the right of common ownership to the allocated property is terminated.

The impossibility of dividing property in kind or separating it from it in kind does not exclude the right to make a claim to determine the procedure for using this property. When resolving such a requirement, the actual established procedure for using the property, which may not exactly correspond to the shares in the right of common ownership, is taken into account, as well as the need of each of the co-owners for this property and the real possibility of joint use.

Thus, on June 24, 2009, the Volzhsky District Court recognized the ownership of 1/2 share of each in the house and land plot for the plaintiff and the defendant; the procedure for use was also determined between the parties, and, at the request of the plaintiff, she (the plaintiff, with whom the joint minor child was left to live), at her request, was allocated for use two living rooms with an area of ​​10.5 sq.m. and 13.7 sq.m. . (out of a living area of ​​63.5 sq.m.), and the defendant was allocated two living rooms with an area of ​​25.5 sq.m. for use. and an area of ​​13.8 sq.m., the following are allocated for the joint use of the parties: kitchen, garage, bathhouse, boiler room, basements and other non-residential premises in accordance with their 1/2 share in the right of common shared ownership of the house and land plot .

Disputes about the division of land.

The courts correctly recognize the right of ownership of both spouses to a land plot provided during the marriage to one of the spouses free of charge, as follows from the following example. Thus, by the decision of the Oktyabrsky District Court of Samara dated April 7, 2009, each of the spouses M.K. (plaintiff) and defendant N.N. the right of ownership of 1/2 share (for each) of the land plot (500 sq.m.) located in the Gardening Partnership in the Krasnoyarsk region, which was provided to the plaintiff M.K., was recognized. in 1992 (during marriage) free of charge. The plaintiff M.K. There is a Certificate (old sample) dated 1992. on the ownership of land, issued to her for the disputed land plot on the basis of a decision of the administration of the Krasnoyarsk Village Council.

If a share in a land plot of one of the spouses is confiscated, his right of ownership to this plot is terminated. Thus, on May 27, 2009, the Kinelsky District Court divided the property between the spouses of K.V. (plaintiff) and K.E. (defendant), and, for plaintiff K.V. ownership of 1/2 share of the disputed house and 1/4 share of the land acquired during the marriage was recognized (the plaintiff’s claim was fully satisfied). The parties have been married since 1992, the marriage was dissolved on August 21, 2008. Defendant K.E. the claim was recognized in part of the house, without recognizing the claims in relation to the land plot, since there is another court decision dated May 30, 2001 on the claim of K.E. (defendants in this case) to the husband K.V. (convicted) about the release of the land plot from seizure, since the bailiff seized the land plot in execution of the conviction dated 01.06.2000 against the husband K.V. on confiscation of property; the indicated other court decision dated May 30, 2001 recognized the ownership rights of K.E. (for the defendant in this case) for the entire disputed land plot, collecting from her monetary compensation for 1/2 of the land plot (for the share of the convicted spouse K.V.) in the amount of 7,500 rubles. In this case, the court of first instance recognized 1/4 of the land plot as belonging to the plaintiff, indicating that the 7,500 rubles paid are the joint funds of the spouses, since, according to the court, during the period of payment of monetary compensation in the amount of 7,500 rubles. (for 1/2 part of the land plot) family relations did not cease, the actual separation of spouses cannot be considered as the termination of family relations, K.V. was in prison, the marriage was dissolved only in October 2008 (after K.V. was released from prison); for 2 years after his conviction in 2000, the wife visited her husband in the colony, considered herself (K.E.) and K.V. spouses.

The cassation ruling of the judicial panel for civil cases of the Samara Regional Court dated June 22, 2009 canceled the court decision regarding the land plot, and in this part a new decision was made to refuse the claim, since the court of first instance gave an incorrect interpretation of Part 4 of Art. . 38 of the RF IC, according to which the court may recognize the property acquired by each of the spouses during the period of separation upon termination of family relations as the property of each of them; During the period of separation (when the spouse was serving a sentence of imprisonment), the parties did not conduct a joint household and the plaintiff did not bear the costs of acquiring the seized share of the land plot.

An unfinished house may also be the subject of a dispute between spouses regarding the division of property.

In judicial practice, there are cases in which spouses have an unfinished house that has passed state registration as an unfinished house, or has not been registered in the manner prescribed by law.

Since January 1, 2005, an object whose construction has not been completed is classified as real estate and as one of the types of real estate in accordance with Federal Law N 112-FZ of July 21, 1997 “On state registration of rights to real estate and transactions with him" is subject to state registration. An unfinished house is also subject to division between spouses if its construction was carried out using their common funds during the marriage. It should be taken into account that the law does not make the inclusion of this object in the list of real estate objects dependent on the degree of its readiness, and therefore, it is subject to inclusion in the common property of the spouses, subject to division, regardless of the volume (cycle) of work produced. The right to an object whose construction is not completed cannot be considered as a right to building materials and structural elements if the ownership of this object is registered with one of the spouses or can be registered. The court has the right to divide an unfinished house if, taking into account the degree of its readiness, it is possible to determine the individual parts to be divided with the subsequent technical feasibility of completing the construction of the house.

For these categories of cases, the courts establish who is allocated or owns the land plot on which the unfinished house is located (in practice, there are cases when the land is allocated to both spouses, or the land is gifted to only one spouse, etc.), and depending on this and other circumstances of legal significance, claims may be resolved for the allocation to both spouses of a certain share of an unfinished house and land plot, or by allocating an unfinished house and land plot to one spouse, with the payment to the other spouse of appropriate monetary compensation for the unfinished house taking into account its actual cost, taking into account the prices prevailing in the area for building materials and work, transport services, as well as the location of the house, the degree of its improvement, wear and tear, and the possibility of its use.

Division of marital property in the form of a share
in the authorized capital
limited liability companies (LLC)

Courts, in addition to the norms of the Family Code of the Russian Federation, are guided by and apply:

1) norms of the Civil Code of the Russian Federation,

2) Federal Law No. 14-FZ dated 02/08/1998 “On limited liability companies”,

3) Federal Law “On Valuation Activities in the Russian Federation”,

4) Federal Law “On Accounting”,

5) Joint Resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation No. 90/14 dated December 9, 1999 “On some issues of application of the Federal Law “On Limited Liability Companies.”

6) Regulations on maintaining accounting records and financial statements in the Russian Federation, approved by Order of the Ministry of Justice of the Russian Federation N 34N dated July 29, 1998.

In accordance with paragraph 3 of Art. 26 of the Federal Law “On Limited Liability Companies”, the actual value of a share in the authorized capital of a company upon the withdrawal of its participant is determined taking into account the market value of real estate reflected on the company’s balance sheet. The following may be carried out in the case: forensic accounting, construction and technical examination based on balance sheet data, taking into account the market value of the building.

In judicial practice, there are cases in which both spouses (50%) are co-founders of one limited liability company (LLC), and one of the spouses demands that ownership of a 50% share of the other spouse be recognized in order to become the sole founder of the LLC. When considering such cases, it is necessary to establish whether or not the other spouse (who is also the second co-founder of the LLC) agrees with such requirements, taking into account the fact that issues of membership in the LLC, withdrawal from the LLC and other issues related to the LLC are resolved, inter alia, on the basis norms of the Civil Code of the Russian Federation, the Law “On Limited Liability Companies”. If there is property (movable or immovable, for example, shopping pavilions, cars, etc.) used by spouses (co-founders of the LLC) in carrying out the activities of the LLC, the demands of the spouses for the transfer of this or that property are considered depending on whether this property was delivered or not property on the balance sheet of this LLC. In the absence of registration on the balance sheet of the LLC, the specified property is marital and is subject to division if it is proven that it was acquired during the marriage using the joint funds of the spouses.

When one of the spouses files a claim for division of a share in the authorized capital (contributed by the spouses during the marriage), when determining the actual value of the share in the authorized capital, it is determined on the basis of the norms of the Federal Law “On Limited Liability Companies”.

Within the meaning of paragraph 2 of Art. 14 of the Federal Law “On Limited Liability Companies”, the actual value of a share in the authorized capital of the company is determined taking into account data from accounting documentation, audit reports and reports on the market value of real estate reflected on the company’s balance sheet, based on the market (actual) value of the company’s assets. Without establishing the actual value of the property reflected in the company's financial statements at book value, it is impossible to determine the actual value of the share in the authorized capital.

The actual value of a share in the authorized capital is determined for the last reporting period preceding the day of filing an application for withdrawal from the company (clause 6.1 of Article 23 of the Law “On LLC”).

Based on clause 2 of Art. 14 Federal Law “On Limited Liability Companies”, the size of the share of a participant in the Company must correspond to the ratio of the nominal value of his share and the authorized capital of the Company. The actual value of the share of a Company participant corresponds to part of the value of the Company's net assets, in proportion to the size of his share.

An example of such a consideration of a dispute is the decision of the Avtozavodsky District Court of Tolyatti dated February 19, 2009, which divided the property of the spouses, and from the defendant Zh.A. the court recovered in favor of the plaintiff Zh.Zh. the actual value of the share in the authorized capital of the LLC in the amount of 1,406,500 rubles is 50% of the actual value of the share of the defendant Zh.A. in the authorized capital of the LLC. At the same time, the court found that plaintiff Zh.Zh. and defendant Zh.A. married since June 29, 1991. to November 12, 2007, living separately since February 2006. During the period of marriage and joint household, the defendant acquired on June 24, 2005, when establishing an LLC, a share in this LLC in the amount of 50%, which is confirmed by the Charter of this LLC. The remaining founders of the LLC objected to the plaintiff Zh.Zh. became one of the founders of the LLC (plaintiff Zh.Zh. did not make such demands). When considering such cases, it is necessary to establish the date on which the actual value of the share is determined. The court took into account that the claim for division of property was brought to court in August 2008, the marriage was dissolved on November 12, 2007, they have been living separately since February 2006. At the same time, the court, with the participation of specialists, examined and compared various financial and accounting indicators indicating on the actual value of the disputed share on various dates: * at the time of divorce (as of November 12, 2007), the value of net assets was 817 thousand rubles; *at the time of filing a claim for division of property (as of January 1, 2008) - 5.8 million rubles. losses; * at the time of division of property (as of June 30, 2008), according to the Company’s balance sheet as of June 30, 2008 - 15 million rubles. losses. The court correctly determined the actual market value of the share of the defendant Zh.A. in the authorized capital of the LLC (as a set of obligatory rights) at the time of divorce - as of November 12, 2007, since from the moment of divorce the defendant, without the knowledge and without the consent of the ex-wife, exercised the rights and obligations of the LLC participant. In addition, this LLC was subsequently sold, including by the defendant, without the knowledge and without the consent of the spouse, of part of the property, which changed the volume and cost characteristics of the share. The evidence in the case is: primary constituent documentation, Articles of Association, LLC Charters, minutes of meetings of LLC participants, extracts from the Unified State Register of Legal Entities with information about the founders and participants of the LLC; information on current accounts and balance sheets, primary accounting documentation, information from the Unified State Register on the availability of real estate at the LLC; information about the LLC’s possession of securities, movable property, and vehicles. To determine the actual value of the share in the authorized capital of the Company, the court ordered a forensic accounting examination in institution UL-1 with the involvement of an auditor from another institution UL-2. (the expert was asked questions about: “Do the accounting data of the LLC for 9 months of 2007 correspond to the primary accounting documents? What is the value of the defendant Zh.A.’s share in the LLC as of November 12, 2007?”).

When considering cases on the division of property, the courts correctly reject the claim of a spouse (who is not the founder of the LLC) to be included in the list of founders of the LLC in the absence of the consent of the other founders of the LLC. An example of consideration of such a dispute is the decision of the Leninsky District Court of Samara dated April 20, 2009, which partially satisfied the demands of plaintiff G.E. to her ex-husband G.M. (who is the founder of four LLCs), and the specific property of the spouses was divided, as well as from the defendant G.M. in favor of plaintiff G.E. (taking into account the equal share of each spouse in the common property) funds were recovered in the amount of 9,000 rubles (1/2 of the cost of the shares of the defendant G.M. contributed by the spouses in the total amount of 18,000 rubles to the authorized capitals of four LLCs). In satisfying the demands of the plaintiff G.E. her inclusion in the founders of the said Companies with a share equal to 1/2 of the share of the defendant G.M., contributed by him to the authorized capital of the said companies, was rightfully refused, since the other founders of the said LLCs objected to the plaintiff G.E. became one of the founders of these LLCs. In collecting 9,000 rubles from the defendant in favor of the plaintiff, the court proceeded from the fact that extracts from the Unified State Register of Legal Entities confirmed that the size of the share of the defendant G.M. in LLC-1 in monetary terms it is 6,300 rubles, in LLC-2 it is 5,000 rubles, in LLC-3 it is 2,500 rubles. and in LLC-4 - 4200 rubles, in connection with which, 1/2 of the cost of the shares of the defendant G.M. contributed to the authorized capitals of four LLCs is 9000 rubles (1/2 of 18,000 rubles (6300+5000+ 2500+4200)). As follows from the case materials, the court considered the demands of the plaintiff G.E. on the requirements presented and on the evidence available in the case about the value of the authorized capital of four LLCs; defendant G.M. agreed to pay 1/2 of the funds contributed by the spouses to the authorized capital of the LLC; The plaintiff did not provide other evidence about the value of the authorized capital.

In the courts of cassation and supervisory instance, plaintiff G.E. insisted on her demands to be included in the founders of four Societies, but she was denied satisfaction of her complaints.

Shares section.

Federal Law No. 39-FZ of April 22, 1996 “On the Securities Market” (as amended and supplemented) regulates, among other things, the circulation of securities in the form of shares (registered and bearer) and bonds; transactions on them. Evidence of the presence of shares in one or another spouse is information from the joint stock companies themselves or from the “depo” account in the depository (for uncertificated securities).

It is not difficult for the courts to consider the demands of one of the spouses for the division of shares. Thus, on September 28, 2009, the Avtozavodsky District Court of Tolyatti divided 5,000 ordinary shares of the OJSC with a par value of 5 rubles. each, and, by a court decision, the court allocated 2,500 ordinary shares to each spouse, worth 12,500 rubles. Information about the shares was issued by the Share Capital Department of this OJSC. If the total number of shares between spouses is divided in half, then an examination is not carried out to determine the market value of the shares, the parties do not file a petition about this. When dividing shares, the courts involve the OJSC as third parties, whose shares are subject to division between the spouses, so that the rights of this OJSC are not violated.

Registration of securities in the register of a joint stock company or in a “custody” account in a depositary (for uncertificated securities) is not state registration and does not entail the application of clause 3 of Art. 35 of the RF IC, therefore, in order to complete a transaction on the alienation of securities by one of the spouses, including shares (as well as cars), the notarized consent of the other spouse is not required. Therefore, when making a transaction to dispose of shares, the consent of the other spouse is assumed (presumed). If shares are disposed of without the consent of the other spouse, the courts restore his violated right by including the cost of the sold property in the common property of the spouses and offsetting the amount received by the spouse who sold the property against his share in the common property.

A similar case was considered on April 7, 2009 by the Oktyabrsky District Court of Samara, which established that the joint property of the spouses M.K. (plaintiff) and defendant N.N. are preferred registered shares of the OJSC in the amount of 3,105 pieces (which were acquired during the marriage as a result of the defendant’s labor participation in a privatized enterprise) and ordinary shares of this OJSC in the amount of 1,400 pieces (as a result of civil transactions). However, the defendant, at his own discretion, disposed of and sold all 3,105 preferred registered shares of the OJSC for 300,000 rubles and all 1,400 ordinary shares of the OJSC for 60,000 rubles, in connection with which the court justifiably included N. in the property transferred to the defendant. N., funds from the sale of all shares in the total amount of 360,000 rubles, and took into account their value when dividing the property of the spouses by collecting appropriate monetary compensation from the defendant in favor of the plaintiff.

The division of the common property of the spouses can be made (Article 38 of the RF IC):

During marriage,

After its termination at the request of either spouse,

If a creditor makes a claim to divide the common property of the spouses in order to foreclose on the share of one of the spouses in the common property of the spouses,

After the death of one of the spouses, to allocate his share and determine the composition of the inherited property.

The composition of property subject to division between spouses is determined taking into account the provisions of Articles 129, 130 of the Civil Code of the Russian Federation, which provide for the legal status of objects of civil rights according to whether they are in free circulation or limited in civil circulation.

The property subject to division includes the common property of the spouses, available to them at the time of consideration of the case or located with third parties (clause 15 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 15 of November 5, 1998).

In Article 36 of the RF IC, the legislator provides a list of property that does not belong to the jointly acquired property of spouses, since this property is the individual property of each spouse, namely:

Belonging to the spouse before marriage,

Received as a gift by each spouse,

Inherited by one of the spouses by inheritance,

Acquired through other gratuitous transactions, for example, during gratuitous privatization,

Personal items (clothes, shoes, etc.),

Special cash payments with a specific purpose

Acquired by each of the spouses during the period of their separation upon termination of family relations,

The following are not subject to division between spouses:

Items acquired solely to meet the needs of minor children (clothing, shoes, school and sports supplies, musical instruments, children's library and others), since they are transferred without compensation to the spouse with whom the children live; This rule applies not only to the common children of spouses.

Contributions made by spouses at the expense of the spouses' common property in the name of their common minor children

By virtue of Art. 35 of the RF IC, ownership, use and disposal of the common property of spouses is carried out by mutual consent of the spouses.

2. When one of the spouses makes a transaction to dispose of the spouses’ common property, it is assumed that he is acting with the consent of the other spouse.

A transaction made by one of the spouses to dispose of the common property of the spouses may be declared invalid by the court on the grounds of lack of consent of the other spouse only at his request and only in cases where it is proven that the other party to the transaction knew or should have known about the disagreement of the other spouse to complete this transaction.

3. In order for one of the spouses to complete a transaction to dispose of real estate and a transaction requiring notarization and (or) registration in the manner prescribed by law, it is necessary to obtain the notarized consent of the other spouse.

The spouse, whose notarized consent to carry out the said transaction was not received, has the right to demand that the transaction be declared invalid in court within a year from the day when he learned or should have learned about the completion of this transaction.

So, Article 35 of the RF IC, depending on the type of property, establishes two different rules for the execution of transactions by one of the spouses regarding the disposal (including alienation) of property constituting joint property:

1) (clause 3 of Article 35 of the RF IC) - to complete a transaction for the disposal of real estate and a transaction requiring notarization and (or) registration in the manner prescribed by law, the written notarized consent of the other spouse is required; it does not matter whether the other party knew about the transaction or should have known about the other spouse’s disagreement with the transaction, since only one condition is necessary - obtaining the written, notarized consent of the other spouse. For these transactions, a shortened statute of limitations is provided - one year from the moment when the spouse, whose consent was not obtained, learned or should have known about the completion of this transaction.

Notarization of a transaction may be provided for by spouses in cases provided for by agreement of the parties, at least by law this form was not required for transactions of this type.

2) (Clause 2 of Article 35 of the RF IC) - when making a transaction to dispose of the remaining property and other transactions, the consent of the other spouse is assumed (presumed). Such a transaction can be declared invalid (voidable transaction) only if the buyer of such property knew or should have known that the spouse was alienating the property without the consent or against the wishes of the other spouse, that is, the buyer was in bad faith. If the spouse, whose consent to the transaction was not obtained, cannot prove this, then the law, protecting the bona fide purchaser, does not allow the transaction to be declared invalid and the property sold to be returned. If the buyer's dishonesty is not proven, the property cannot be returned. In this case, restoration of the violated right is possible by including the value of the sold property in the common property of the spouses and offsetting the amount received by the spouse who sold the property against his share in the common property. In judicial practice, courts extend this rule to cases of concealment of property or use of property by one of the spouses to the detriment of the interests of the family (for example, with regard to bank deposits, when one spouse, without the knowledge of the other spouse, disposes of common funds not in the interests of the family.). In this case (in the absence of property), the courts use the terms “allocate a share in monetary terms” or “collect monetary compensation.” Also, the courts correctly reduce the share of the spouse who violated the rights of the other spouse by the value of the share of this spouse in the sold, hidden or used property or increase the share in the common property of the spouse whose rights were violated by the value of the share due to him in such property or resolve the issue of monetary compensation. From the Review of Judicial Practice of the Supreme Court of the Russian Federation for the 3rd quarter of 2003, it follows that when filing claims for the collection of monetary compensation and indexation of the amount of money, full compensation for damage (by indexation) caused to the spouse by the untimely receipt of funds from the sale to others without his consent is necessary. spouse of common property; the amount not received in a timely manner must be returned while maintaining its purchasing power to implement the principle of full compensation for damage in conditions of price instability. Or, in such cases, the courts also determine the market value of the property sold.

The concept of real estate (real estate) is given in Article 130 of the Civil Code of the Russian Federation and Art. 1 of Federal Law No. 122-FZ of July 21, 1997 “On state registration of rights to real estate and transactions with it.”

The range of transactions subject to notarization and (or) state registration is defined in the Civil Code (in particular, Articles 339, 560, 567, 574, 558, 584, 585, 609, 651, 1017 of the Civil Code of the Russian Federation.)

When alienating real estate without the consent of the other spouse, the courts satisfy claims to declare the transaction invalid, taking into account the provisions of paragraph 3 of Art. 35 SK. RF, which stipulates that in order to complete a real estate transaction, a notarized consent of the other spouse is required. Such transactions are contestable, and the spouse, whose notarized consent to carry out the specified transaction was not received, has the right to demand recognition of the transaction as invalid in court within a year from the day when he learned or should have learned about the completion of this transaction.

Thus, the Volzhsky District Court on June 24, 2009, on the claim of S.A. to ex-husband S.K. (married from 09/10/1993 to 04/18/2008) invalidated the donation agreement dated 09/24/2008 (concluded between the defendant and his father) of the disputed house and land plot, terminated the registration dated 09/24/2008 in The Unified State Register of Registration on recognition of the defendant's father's right of ownership to the disputed house and land plot recognized the disputed house and land plot as the common property of the spouses, and divided the disputed house and land plot into 1/2 shares for each of the spouses. The court found that the disputed house and land plot were acquired in 2006 during the marriage and with the joint funds of the parties, but in violation of clause 3 of Art. 35 of the RF IC, the transaction of donation of a house and land dated September 17, 2008 was made by the defendant in favor of his father without the appropriate consent of his wife.

At the request of the interested party, the courts reasonably recover the appropriate monetary compensation (without declaring the transaction invalid) for the common property of the spouses, alienated by one of them individually after the termination of the marriage relationship. Thus, on March 13, 2009, the Zheleznodorozhny District Court of Samara recovered from the defendant P. in favor of the plaintiff P. (at her request) monetary compensation for 1/2 of the non-residential premises (real estate) and a car alienated by the defendant individually, during that period, when the parties terminated the marital relationship in September 2007 (the marriage was dissolved later - 05/26/2008).

When alienating property that is not real estate and when making a transaction that does not require notarization and (or) does not require registration in the prescribed manner, by one of the spouses without the consent of the other spouse, the courts come to the correct conclusion that the violated rights of one of the spouses should be restored by paying appropriate monetary compensation. Thus, the Syzran City Court on 02/06/2009 reasonably satisfied the claim of T.O. to T.N. on the division of jointly acquired property for a total amount of 280,000 rubles, and, plaintiff T.O. the court allocated household appliances in the amount of 40 thousand rubles, and the defendant was credited with the cost of the car he sold without the consent of his wife in the amount of 240,000 rubles (the market value of the car), in connection with which, from the defendant in favor of the plaintiff, the court recovered monetary compensation in the amount of 100,000 rubles, taking into account that the disputed car was purchased on 05/08/2007 with joint funds, but was deregistered on 10/08/2008 and under the purchase and sale agreement dated 10/14/2008 for 240 thousand rubles. was sold by the defendant to his father during the divorce proceedings in order to exclude the disputed car from the joint property of the spouses (the parties were married on July 18, 1980, the marriage was dissolved on November 10, 2009); the court found the defendant's father to be an unscrupulous purchaser, since he should have known about the dispute regarding the disputed car, and the court did not take into account the receipt dated May 27, 2007 in the amount of 248 thousand rubles. about the defendant allegedly receiving a loan from his father to purchase a car.

The law may provide for special registration of certain types of real estate (clause 2 of Article 131 of the Civil Code of the Russian Federation), as well as registration of rights to movable things (clause 2 of Article 130 of the Civil Code of the Russian Federation).

Unclear wording on the transfer of specific disputed real estate to one spouse can lead to difficulties in state registration of ownership of it. Thus, the court satisfied the claim of O.T. to O.A. about the division of property, and taking into account the defendant’s recognition of the claim and with a departure from the beginning of equality in the interests of the child, he transferred all the property to her in the amount of 480 thousand rubles. and in the operative part indicated: “To make a division of the property, transferring to the composition due to the plaintiff O.T. all property, totaling 480 thousand rubles. property acquired during marriage: two apartments and a house with a plot of land.” After this, in November 2009, the plaintiff filed a petition with the court to clarify the court’s decision, arguing that when registering ownership rights, the question of shares in the property arose. By court ruling dated December 2, 2009, the statement of O.T. the explanation of the court decision was left without consideration on the grounds that the applicant did not appear; in addition, in the opinion of the court, the applicant submitted a statement that her application for clarification of the court decision should not be considered, since state registration of property rights had already been carried out on the basis of the above-mentioned court decision dated October 20, 2009. Based on the norms of the Code of Civil Procedure of the Russian Federation, in this case it was necessary to refuse the application for clarification of the court decision, including on the grounds that the applicant did not support her application. The rules of the Code of Civil Procedure of the Russian Federation do not provide that an application for clarification of a court decision can be left without consideration.

Unclear wording on the division of property can lead to difficulties in executing a court decision, as follows from the following example. Thus, when considering the case based on the claim of A.N. to ex-husband M.K. on the division of property it was established that the car was acquired by the spouses during the marriage; The car is registered in the MREO for the husband M.K. The court actually transferred the car (worth 400 thousand rubles) into the ownership of the defendant M.K., collecting from him in favor of his ex-wife A.N. monetary compensation in the amount of 200 thousand rubles, however, in the reasoning and operative part of the decision, the court unnecessarily indicated that the plaintiff A.N. 1/2 of the car is allocated (from a similar sentence in the decision it can be concluded that each spouse is allocated 1/2 of the car). In this case, it is possible to use the wording that: “To make a division of the common property of the spouses A.N. and M.K. for a total amount of 400,000 rubles, recognizing the shares of the spouses as equal (1/2 share each). Select M.K. a car worth 400,000 rubles. To equalize the shares, recover from M.K. in favor of plaintiff A.N. monetary compensation in the amount of 200,000 rubles.”

Property of each spouse. (Article 36 of the RF IC)

Property that belonged to each of the spouses before marriage, as well as property received by one of the spouses during marriage as a gift, by inheritance or through other gratuitous transactions (the property of each spouse), is his property.

Personal items (clothing, shoes and others), with the exception of jewelry and other luxury items, although acquired during the marriage at the expense of the spouses’ common funds, are recognized as the property of the spouse who used them.

In judicial practice, there are cases in which, taking into account the financial status of the family, the courts recognized mink coats and diamond jewelry (earrings, rings) as luxury items and included them in the property of spouses subject to division.

Jewelry can be classified either as personal items (gifts), or as jewelry, luxury items subject to division. When classifying an item as jewelry, you should take into account the purpose of purchasing jewelry, quantity, cost, antiquity, purpose, etc.

Courts do not rightfully recognize property as jointly acquired if it was acquired with the personal funds of the other spouse, received from the sale of premarital property, inherited, or acquired through a gratuitous transaction in the manner of privatization. Thus, on 03.03.2009, the Avtozavodsky District Court of Togliatti justifiably refused to plaintiff B.I. in a claim against B.V.’s husband on recognition of ownership of 1/2 of the disputed apartment, since it was established that the defendant B.V. Before getting married in 2005, since 2004 he owned an apartment, which he sold on November 2, 2007 at a price of 1,650,000. rubles, after which, during the marriage - November 2, 2007 - the disputed apartment was purchased at a price of 1,530,000 rubles.

On January 21, 2009, the Oktyabrsky District Court correctly denied K.A. in a claim against ex-husband R.V. on recognition of ownership of 1/2 of the apartment, since during the marriage the defendant R.V. became the owner of the apartment by inheritance, after which he sold the inherited apartment, and on the same day acquired the disputed apartment in his own name, which therefore is not joint property of the spouses.

On September 10, 2009, the Zhigulevsky City Court rightfully rejected A.E.’s claim. to ex-husband A.S. on recognition of ownership of 1/2 of the apartment, since the disputed apartment was acquired by the defendant during the marriage under a gratuitous transaction in the manner of privatization; plaintiff A.E. it has not been proven that at the expense of the spouses’ common funds or her property or her labor, investments were made that significantly increased the cost of the disputed apartment.

The courts correctly recognize the right of ownership of most of the disputed property to one of the spouses upon its acquisition, partly to his personal funds, and partly to the common funds of the spouses, as follows from the following example. Thus, on June 2, 2009, the Syzran City Court recognized the plaintiff M.N. ownership of a 3/4 share of the disputed four-room apartment, and the defendant P.S. - 1/4 share, since the court found that for 1/2 of the cost of the disputed apartment in the amount of 540 thousand rubles. plaintiff M.N. contributed from personal funds received from the sale of a premarital apartment (acquired by her before marriage), and the other 1/2 of the cost of the disputed apartment in the amount of 410 thousand rubles was accumulated by the spouses during the marriage, therefore only 1/2 is subject to division between the spouses in equal shares 2nd part of the disputed apartment acquired with the joint funds of the spouses (before plaintiff M.N. went to court, the disputed apartment was registered in the Unified State Register of Rights (USRE) as the joint property of the spouses).

Another similar example is when one of the spouses is a group 2 disabled person due to the accident at the Chernobyl nuclear power plant. On 02.02.2009, the Novokuibyshesky City Court allocated a VAZ-21200 car to defendant A., and, from defendant A. in favor of plaintiff B., monetary compensation for the car was recovered in the amount of 20,625 rubles. At the same time, the court established that the parties were married since 08/09/1975, the marriage was dissolved on 09/10/2008. During the marriage, the defendant (as a disabled person of group 2), the Ministry of Health and Social Development of the Samara Region, in accordance with the Federal Law N 1244-1 “On the social protection of citizens exposed to radiation from the Chernobyl disaster”, OKA provided a free car worth 82,400 rubles. The defendant did not take the OKA car, but the spouses made an additional payment in the amount of 100 thousand rubles and in 2004 purchased a VAZ-21102 car worth 182,400 rubles, with the cost of the OKA car set off at 82,400 rubles, which is confirmed by a written message from the Ministry of Health and Social Development of the Samara Region. When collecting monetary compensation in the amount of 20,625 rubles. the court correctly proceeded from the market value of the disputed VAZ car at the time of consideration of the dispute at 75,000 rubles, since in accordance with paragraph 15 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 15 of November 5, 1998 “On the application of legislation by courts when considering cases of divorce” , the value of the property to be divided is determined during the consideration of the case. Taking into account the above, the court correctly recognized that out of 182,400 rubles, only 100.00 rubles are subject to division, which are the joint funds of the spouses, since the remaining 82,400 rubles relate to the personal funds of the defendant. As a percentage, the joint funds of the spouses are 55% (calculation = 100,000 rubles: 182,400 rubles: 100% = 54.8% or approximately 55%). Since the market value of the disputed VAZ car is currently 75,000 rubles, and therefore 41,250 rubles (55% of 75,000 rubles) are subject to division between the spouses, and since the shares of the spouses are equal, and the plaintiff asked the court to transfer the disputed car to the defendant (on that the defendant did not object), and therefore the court handed over the car to the defendant, collecting from the defendant in favor of the plaintiff monetary compensation for the car in the amount of 20,625 rubles (or 1/2 of 41,250 rubles).

The courts rightly recognize property as jointly acquired and subject to division between spouses if one of the spouses claims that the disputed property was acquired at the expense of his parents (other relatives), but there is no acceptable evidence for this (Article 60 of the Code of Civil Procedure of the Russian Federation). Thus, on June 16, 2009, the Zheleznodorozhny District Court of Samara correctly recognized the ownership of 1/2 share (for each) of the disputed land plot and house, which were acquired during the marriage by spouses L.V. and K.E., although the defendant K.E. claimed that the disputed property was acquired with funds received from her father as a gift. At the same time, the court did not take into account the agreement of donation of funds in simple written form, concluded between the defendant and her father. The court in its decision indicated that the money donation agreement was not notarized and it does not follow from this money gift agreement that the funds are intended for the purchase of the disputed property; that the plaintiff was not aware of this money donation agreement.

Courts occasionally recognize the personal property of one of the spouses if admissible evidence confirms the fact of its acquisition during the marriage with funds received as a gift from parents or through other gratuitous transactions. Thus, on May 26, 2009, the Avtozavodsky District Court of Togliatti refused to the plaintiff V.I. recognize the land plot as the property of the spouses, since the plot was acquired on 04/01/2008 during the marriage with funds received by the defendant M.N. as a gift from his mother K.L. (who sold on 02/09/2008 with her sister N.O. (the defendant’s aunt) an inherited house and land for 2.2 million rubles, which were transferred to the bank account of K.L. (the defendant’s mother). The court found that that the disputed plot registered in the name of the defendant M.N. was actually purchased for 800 thousand rubles, the purchase and sale agreement for the disputed plot states that it was purchased for 125 thousand rubles. The case materials contain receipts on behalf of the seller of the disputed plot on receipt from the defendant M.N. funds in the amount of 800 thousand rubles. Plaintiff V.I. himself did not deny that the spouse paid for the disputed land plot, that he was not present during the transfer of funds, that the disputed plot was purchased with funds partially received from the sale of his mother-in-law's house and his own savings, that he does not remember the amount of his own savings. In the case materials there is a gift agreement in simple written form that M.N. (the defendant's mother) gave her daughter M.N. (the defendant) funds in the amount of 1 million rubles

When one of the spouses claims to collect monetary compensation for his share in the common property, the courts make mistakes and involve only the second spouse in the case, although not only the second spouse, but also other persons (children, parents, etc.) are co-owners of the common property. etc.), as follows from the following example. Thus, the disputed two-room apartment was acquired as a property through privatization by the spouses and their two adult children, 1/4 of a share each. Plaintiff K.S. appealed to the court to the wife of K.T. on payment of monetary compensation to him for his 1/4 share in the amount of 300 thousand rubles. with an apartment price of 1.2 million rubles. On December 15, 2008, the Kinel-Cherkssky District Court recovered from the defendant K.T. in favor of the plaintiff K.S. monetary compensation for 1/4 share of the disputed apartment in the amount of 300 thousand rubles, upon receipt of which plaintiff K.S. loses ownership of 1/4 share of the apartment. The district court unreasonably did not involve the remaining co-owners (two children of the parties) of the apartment in the case, which is incorrect, and therefore the court decision in the cassation court was canceled and sent for a new trial. During a new consideration of the case, by the decision of the same court dated December 15, 2008, the defendant K.T. and from two children of the parties - from K.M. and K.E. (from three), in favor of plaintiff K.S. monetary compensation for 1/4 share of the disputed apartment was correctly collected in the total amount of 300 thousand rubles, in equal shares - 100,000 rubles from each defendant, and, after receiving monetary compensation, plaintiff K.S. loses ownership of a 1/4 share of the apartment, and the disputed apartment passes in equal shares to the defendants, after which the defendant K.T., two children - K.M. and K E. (all three) become co-owners of 1/3 share each.

Taking into account the specific circumstances of the case and the value of the disputed property, the court may transfer ownership of an apartment to one spouse and a residential building to the other. Thus, the Pestravsky District Court on December 25, 2008, in the order of dividing the property of the spouses (1/2 share for each), for the plaintiff Z.I. recognized the ownership of a one-room apartment in the city of Kinel, worth 360,000 rubles (at the plaintiff’s place of residence and work), and for the defendant Z.G. (with whom the parties’ common children live) - the court recognized the ownership of a residential house (three-room cottage) with a plot of land in the village of Pestravka, worth 300,000 rubles (at the defendant’s place of residence and work) with payment from the plaintiff to the defendant of monetary compensation in the amount 30,000 rubles, since this version of the division provides the spouses with housing.

When resolving disputes regarding the recognition of the property of each of the spouses as joint property of the spouses if, during the marriage, investments were made at the expense of the common property of the spouses or the property of each of the spouses or the labor of one of the spouses that significantly increased the value of this property (major repairs, reconstruction, re-equipment and others). (Article 37 of the RF IC, Article 256 of the RF Civil Code), the courts proceed from the actual value of this property, determined taking into account prevailing local prices for building materials and work, transport services, the location of the house, the degree of its amenities , wear, the possibility of its use. To determine whether the value of this property has increased significantly or not as a result of the investments made, the value of the property should be determined before the investments made in it and after the investments made.

A clear example of the resolution of such a dispute is the decision of the Zheleznodorozhny District Court of Samara dated January 16, 2009, which dissolved the marriage of spouses T.V. and T.G., and recognized the common property of spouses T.V. (plaintiff) and T.G. (defendants) - a residential building, and each of them has the right of ownership of 1/2 shares of the house on the grounds that the parties have been married since 1981; in 1990, the plaintiff was provided with a plot of land by the Executive Committee of the City Council for the construction of an individual residential building; the plaintiff built a house on the site, which was put into operation in 1994; The plaintiff in 1995 donated a residential house to his wife T.G. (the defendant), who is currently the owner of the disputed residential building; since December 1998, there has been no joint farming between the parties; Since January 1999, the plaintiff has been living in the disputed house with another woman, and the defendant T.G. lives with his son at a different address. The court found that in 1999, that is, during the period when the parties lived separately and did not have a joint household (although the marriage was dissolved on January 16, 2009), when the defendant was the owner of the disputed house, but at the expense of only the plaintiff T. IN. investments were made that significantly increased the cost of the residential building. In 1999, the first major renovation of the house was carried out (which was not disputed by the defendant), and the second major renovation was carried out in the amount of 1,037,000 rubles. - in 2007-2008 (the customer under the contract dated 07/06/2007 indicated plaintiff T.V.). In the case, the Samara Forensic Laboratory carried out an examination, which confirmed the completion of the work specified in the contract dated July 6, 2007 by Plaintiff T.V. a loan agreement dated July 2, 2007 was presented to provide him with a targeted loan in the amount of 1.5 million rubles. for the reconstruction of the controversial house. Carrying out major renovations of the house in 2007-2008. confirmed by video footage and photographs of the disputed house. An estimated market valuation of the house was made, which amounts to 5.5 million rubles, the estimated value of the house without taking into account significant improvements is 2.9 million rubles, the market value of the land plot is 230,600 rubles, in connection with which, the court reasonably found, that the results of all the work carried out in the disputed house are significant improvements, inseparable without disproportionate damage to their purpose and technical characteristics of the house, and the material costs were paid to the personal property of the plaintiff T.V. and his personal labor, and therefore the court rightfully recognized the residential building as the property of the spouses and recognized the shares of the spouses as equal - 1/2 of each.

Determination of shares when dividing the common property of spouses.

According to Art. 39 of the RF IC, when dividing the common property of spouses and determining shares in this property, the shares of the spouses are recognized as equal, unless otherwise provided by the agreement between the spouses. The court has the right to deviate from the beginning of equality of shares of spouses in their common property based on the interests of minor children and (or) based on the noteworthy interests of one of the spouses, in particular, in cases where the other spouse did not receive income for unjustified reasons or spent the common property of the spouses to the detriment of the interests of the family.

The court is obliged to give in its decision the reasons for the deviation from the beginning of equality of shares of spouses in their common property (clause 17 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 15 of November 5, 1998).

In judicial practice, there are errors when awarding one of the spouses a certain amount of monetary compensation in the event that the other spouse is transferred property whose value exceeds his share. To help with this, simple arithmetic examples can serve, according to which, firstly, it is necessary to determine the value of all the property of the spouses, for example, 900,000 rubles; if the share of each spouse is 1/2, therefore, each spouse must be transferred property in the amount of 450 thousand rubles. Secondly, if in fact the husband was given property in the amount of 350,000 rubles, and the wife - in the amount of 550,000 rubles, therefore, the husband is missing up to 1/2 share of 100,000 rubles.

(calculation: 350,000 - 450,000 rubles = -100,000), which should be recovered from the wife in favor of the husband as monetary compensation to equalize the shares.

To check the specified calculations of monetary compensation (if the share of each spouse is 1/2), it is possible to use another method: 550,000 rubles. (transferred to the wife) - 350,000 (transferred to the husband) = 200,000 rubles (difference), but then the difference is 200,000 rubles. must be divided by 2 (two) (200,000: 2 = 100,000 rubles).

Another example. If the wife’s share is established as 3/5, and the husband’s share as 2/5, then the wife from property with a total value of 900,000 rubles should be transferred in the amount of 540,000 rubles (3/5), and the husband should be transferred in the amount of - RUB 360,000 (2/5). Let’s say that property in other amounts was actually transferred: to the wife in the amount of 400,000 rubles, and to the husband - for 500,000 rubles, in connection with which, 140 thousand rubles (540,000) should be recovered from the husband in favor of the wife as monetary compensation to equalize the shares - 400,000 rubles = 140,000 rubles).

It is incorrect to resolve disputes about the division of property of spouses when, when making a decision, the court does not indicate in the decision the value of the disputed property transferred to each spouse (example: the value of all property is 4.5 million rubles, the court allocates M.N. a plot of land without indicating the cost, and S.K.’s ex-wife - an apartment without indicating the cost, having recovered 500 thousand rubles from M.N. in favor of S.K.’s ex-wife as monetary compensation.

Another example of a mishandled case. By a court decision, the plaintiff was refused to satisfy her demands against her ex-husband for the division of property, for the collection of monetary compensation in the amount of 300 thousand rubles - for 1/2 of the car sold, purchased during the marriage in 2007 for 600 thousand rubles; marriage ended in April 2009; The car was sold in July 2009 after the termination of the marriage relationship. The court rejected the claim on the grounds that the car was sold and is owned by another person; According to the court, only property available at the time of consideration of the dispute is subject to division. The case was considered in the absence of the plaintiff, who asked to consider the case in her absence; The plaintiff did not appeal the court's decision. When considering such cases, legally significant circumstances are: whether or not movable property was acquired during the marriage using joint funds; movable property is alienated in favor of another person by mutual consent or not; the alienation occurred during the period when the spouses were maintaining a joint household or not; whether both spouses received their share of the money for the sold property.

Distribution of common debts of spouses.

When dividing the common property of spouses, common debts are distributed between the spouses in proportion to the awarded shares (Clause 3 of Article 39 of the RF IC).

When dividing the common property of the spouses, the common debts of the spouses are taken into account.

Common debts between spouses are distributed in proportion to the shares awarded to them, if the court determines that the subjects of the monetary obligation are both spouses or one of them, but in the interests of the family.

The complexity of resolving disputes in this category is associated with various options for the origin of common debts of spouses, different subject composition of monetary obligations and borrowed legal relations, including under loan agreements, in which:

*the borrower can be one of the spouses or both spouses;

*co-borrowers can be both spouses and any relative (or other citizen) who, within the meaning of the RF IC, does not belong to the family of spouses who are married to each other.

In addition, borrowers and guarantors (spouses) bear obligations under the loan agreement jointly and severally, and Article 39 of the RF IC indicates the distribution of the spouses’ common debts in proportion to the awarded shares, and therefore, the difficulty of wording (statement) in the court decision arises, including including, in the operative part of the decision, instructions on the distribution of the common debts of the spouses.

Therefore, it is necessary to proceed from the requirements of paragraph 3 of Art. 39 of the RF IC, which provides for the distribution of common debts between spouses.

When resolving each specific dispute about the distribution of common debts of spouses, the courts establish the opinion of borrowers, guarantors, and a credit institution (bank) on this matter.

Legally significant circumstances for recognizing debts as common joint are the establishment of the fact that spouses received funds on credit (borrowed) during the marriage for the needs of the family and in the interests of the family, as well as their expenditure on the needs of the family and in the interests of the family.

Of the cases submitted for synthesis that resolved disputes about the distribution of common debts of spouses, three main areas are distinguished.

A) Distribution of the spouses' common debts is proportional to the awarded shares. Division of debt obligations in equal shares.

The most common formulations used when distributing credit debt between spouses (if shares are equal): “The debt under the loan agreement dated November 24, 2005 to the Bank in the amount of 1,800,000 rubles as of June 22, 2009 should be divided between the spouses in proportion to the awarded shares: 50% - from the defendant E.Yu. and 50% from plaintiff E.V.” The bank (3rd party) argued that in case of delay, a claim would be filed, in accordance with the requirements of the Civil Code of the Russian Federation. At the same time, the demands of the plaintiff E.V. were satisfied, and the parties were recognized as having ownership of 1/2 share of the house and land pledged under the loan agreement dated November 24, 2005 (decision of the Stavropol District Court dated June 22, 2009).

Conclusion. Such a distribution of the common debts of the spouses in accordance with Art. 39 of the RF IC, does not prevent the further fulfillment, in a joint and several manner, of obligations under an unfulfilled loan agreement, under which funds were received by the spouses (or one of them) during the marriage for the needs of the family and spent in the interests of the family, as follows from the specific examples given below disputes.

Thus, the court recognized the debt obligations of the spouses L.G. as equal. and L.E. before the bank under a loan agreement dated May 13, 2008 in the amount of 146,000 rubles for the principal debt - decision of the Avtozavodsky District Court of Togliatti dated November 23, 2009 (the husband is the borrower, and the wife is the guarantor.)

The operative part of the decision of the Neftegorsky District Court dated May 29, 2009 is stated as follows: “The debt under the loan agreement concluded between the Bank and the defendant K.Yu., which amounted to 60,000 rubles at the time of consideration of the case, is to be divided between K.Yu. and K.E. in equal parts. Determine the debt of K.Yu. and K.E - 30,000 rubles each.”

In another case, the court divided between the spouses A.V. and A.S. property in equal shares, and divided between spouses A.V. and A.S. credit debt (concluded between A.V. and the bank), amounting to 200 thousand rubles at the time of consideration of the case. The court determined the debt of A.V. and A.S. - 100 thousand rubles for each.

On April 23, 2009, the Central District Court considered the case on the division of property of the spouses of E.T. (plaintiffs) and E.N. (defendant), who during the marriage purchased: an apartment, furniture, household appliances. A marriage contract was concluded in relation to the apartment, according to which the husband’s share is 2/3, the wife’s is 1/3. During the marriage, two loan agreements were concluded, one of which (in the amount of 300 thousand rubles) was concluded between the bank and defendant E.N. (the first loan was spent on purchasing an apartment); under both loan agreements the loan has not been repaid, therefore, under the loan agreement (under which the money was spent on purchasing an apartment for which there is a marriage contract), the total debt of the spouses is divided as follows: the husband’s (defendant’s) share is 2/3, the wife’s share is 1/ 3.

According to the second loan agreement, the total debt is divided in equal shares (legal regime of matrimonial property), and, in the court decision, each spouse is recognized as having a total debt (under two loan agreements) in monetary terms (for example: for the husband - in the amount of 173,000 rubles, for the wife - in the amount of 111,900 rubles).

On November 18, 2009, the Shigonsky District Court divided between the spouses the property and payment of the balance of the loan debt in the amount of 120 thousand rubles to the bank under the loan agreement concluded between the bank and the defendant B.M. for a period of 07/10/2012. At the same time, the court imposed on the defendant B.M. (borrower) to fulfill the loan agreement by collecting from the plaintiff G.N. in favor of the defendant B.M. half of the balance of the loan debt under the same loan agreement in the amount of 60,000 thousand rubles, by installing the payment of the specified amount of money in equal payments of 2,570 rubles. monthly, no later than the 10th day of each month (the defendant agreed with such an installment plan; according to the schedule, payment to the bank of the loan and interest is also on the 10th day of each month). It should be noted that the court decision is in the nature of a settlement agreement.

On October 29, 2009, the Pestravsky District Court divided the property of the spouses M.O. and M.R., who during the marriage purchased the disputed two-room apartment on the basis of an agreement to provide borrowers K.M. and K.N. (to the spouses) a mortgage (targeted) loan in the amount of 380 thousand rubles, a purchase and sale agreement and a mortgage, after which the disputed apartment was registered for the spouses under the right of common joint ownership; encumbrance of the apartment - mortgage. At the request of the plaintiff, the court divided the disputed apartment between the spouses in equal shares - 1/2 share each, established the procedure for use (the plaintiff and her son - a room of 16.1 sq.m., the defendant - a room of 11 sq.m., the rest premises - for general use). The court recognized for each of the spouses, under an agreement on the provision of a mortgage loan to the Samara Regional Fund for Support of Individual Construction in Rural Affairs, in the amount of 1/2 of the debt in proportion to the awarded property. The Samara Regional Fund for Support of Individual Construction in Rural Affairs agreed with the claim to recognize each spouse as having 1/2 of the debt in proportion to the allocated shares in the disputed apartment.

B) In judicial practice, there are cases on the distribution of common debts of spouses with the participation of creditors (banks) who agree to their division between the spouses.

By decision of the Novokuibyshevsky City Court dated June 10, 2009, for the spouses K.I. (plaintiff) and K.S. (the defendant) recognized the ownership of 1/2 share of the disputed apartment pledged by the bank, and the total debt in the total amount of 437,330 rubles was divided between the spouses with the consent of the bank (creditor). (debt at the time of the court decision) under the loan agreement dated October 19, 2006, concluded between the bank (on the one hand) and the borrower spouses K.I. and K.S. (on the other hand) for a loan amount of 1.5 million rubles; the bank was entrusted with the obligation to amend the loan agreement dated October 19, 2006 in terms of instructions: to establish the debt at the time of the court decision - 437,330 rubles. with interest, - to recover from the plaintiff K.I. (taking into account her repayment of part of the debt at the expense of personal funds) to pay off the debt a sum of money in the amount of 175,855 rubles. with interest, and from the defendant - 261,475 rubles. with interest.

At the court hearing, the bank representative agreed with the division of the loan debt between the spouses, and subsequently the bank did not appeal the court decision regarding the division of the spouses’ common debts.

The cassation ruling of the judicial panel for civil cases of the Samara Regional Court dated July 27, 2009 changed the court’s decision, and it was decided to state the operative part of the decision in terms of determining the debt of the spouses under the loan agreement in a different wording: “To divide the debt of K.S. and K.I. under the loan agreement dated October 19, 2006, concluded between the bank and K.S. and K.I., in the amount of 437,330 rubles. with interest. Determine the debt of plaintiff K.I. - 175855 rub. with interest. Determine the debt of the defendant K.S. - 261475 rub. with interest." (from the court decision, the instruction to amend the loan agreement was reasonably excluded, and from the court decision, the instruction to collect debt from the spouses under the loan agreement was excluded, since such demands were not stated).

In judicial practice, there are also cases on the distribution of common debts of spouses with the participation of creditors (banks), who agree to change the number of borrowers in the common monetary obligation of the spouses, therefore, with the consent of the creditor (bank), as well as with the consent of the guarantor, the court assigned one spouse to fulfill the conditions loan agreement (under which both spouses are co-borrowers) for the payment of the remaining credit debt when transferring to this (first) spouse the disputed pledged property (purchased by the spouses with loan funds), excluding the second spouse (co-borrower) from the loan agreement and the collateral agreement, paying the second spouse 1 /2 part of the funds paid by the spouses during the marriage under the loan agreement. Thus, the Leninsky District Court of Samara on April 20, 2009, transferred ownership of the defendant G.M. the disputed car pledged to the bank, and with the consent of the bank to the defendant G.M. assigned all rights and obligations under the loan agreement dated December 10, 2007 and under the pledge agreement dated December 10, 2007 for the car, excluding plaintiff G.E. from these agreements. When collecting from the defendant G.M. in favor of plaintiff G.E. The total amount of monetary compensation takes into account that of the funds paid by the spouses during the marriage in the amount of 1,600,000 rubles. as a return of loan funds, from the defendant from the defendant G.M. in favor of plaintiff G.E. 1/2 of their part (or 800,000 rubles) is subject to recovery. At the same time, the court took into account the arguments of the 3rd party - the bank, which argued that in the loan agreement for 6.6 million rubles. both spouses are listed as borrowers, but the loan was provided to the defendant G.M. taking into account his solvency (if only the plaintiff had applied, the loan would not have been provided); the bank agrees to transfer the car to the defendant G.M. in order to release plaintiff G.E. from the execution of the loan agreement and collateral agreement; The 3rd person - guarantor V.I. (sister of the defendant G.M.) also agrees with this option for dividing the common debts of the spouses. Subsequently, the bank and guarantor V.I. did not appeal the court decision.

In judicial practice, there are cases on the distribution of common debts of spouses with the participation of creditors (banks) who agree to their division between the spouses, however, as a general rule, the court decision should not contain language about changing the loan agreement, since, in accordance with paragraph 3 of Art. . 39 of the RF IC, disputes regarding the distribution of common debts of spouses are resolved.

Occasionally in judicial practice there are cases (exceptions to the general rule) when, only with the consent of the creditor (bank), the courts occasionally transfer the rights and obligations of borrowers under a loan agreement (under which both spouses are co-borrowers) to only one spouse, as follows from the following example. Thus, according to the loan agreement dated October 15, 2007, the spouses K.V. and N.R. (co-borrowers) during the marriage received borrowed funds from the Bank to purchase a car, the loan has not yet been repaid; As a result of the division of property, the car was transferred into the ownership of the defendant K.V., which he did not argue with, agreeing to be charged with the obligation to pay the entire amount of principal and interest under the loan agreement for the car with the payment of monetary compensation to his wife. The bank, without filing any claims, agreed to the division of common debts between the spouses, since both spouses are co-borrowers. The court handed over the car to defendant K.V. and unreasonably collected from the defendant K.V. in favor of the bank all debt under the loan agreement dated October 15, 2007 in the total amount of 280 thousand rubles. (including the principal debt - 220,000 rubles, interest - 60,000 rubles), collecting from the defendant K.V. in favor of plaintiff N.R. appropriate monetary compensation for the car; The plaintiff agreed to be paid monetary compensation for the car. By the decision of the same court it was also divided equally between the spouses K.V. and N.R. another debt for a mortgage loan to Bank No. 2 under the second loan agreement dated June 27, 2008 in the total amount of 1.6 million rubles. principal with interest, that is, 800,000 rubles each. principal with interest. The cassation ruling of the judicial panel for civil cases of the Samara Regional Court dated May 26, 2009 correctly excluded from the court decision the instruction to recover from K.V. in favor of the bank of debt under the loan agreement dated October 15, 2007 in the amount of 280,000 rubles, and, for the defendant K.V. the rights and obligations of plaintiff N.R. were transferred. under the first loan agreement on October 15, 2007 (concluded between the bank and the co-borrowers - spouses K.V. and N.R.), since the bank did not make any demands for collection of the loan debt.

C) The courts refuse to distribute the total credit debt between spouses if the borrowers are persons other than the spouses.

Thus, on April 21, 2009, the Avtozavodskoy District Court of Togliatti correctly rejected the claim for dividing common debts into three parts in equal shares between three co-borrowers (both spouses and the defendant’s father) under a loan agreement on the grounds that the requirement for dividing debts was actually is aimed at changing the loan agreement (which provides for joint liability of three co-borrowers, provided that the creditor (bank) does not agree with the division of the debt.

Conclusion: in accordance with paragraph 3 of Art. 39 of the RF IC, in this particular case, debts between spouses cannot be distributed without changing the loan agreement, since the third debtor (besides the spouses) is another person (the defendant’s father), therefore it is impossible to conclude that the funds were spent specifically in the interests of the two spouses . In accordance with the requirements of paragraph 3 of Art. 39 of the RF IC, only the common debts of the spouses can be distributed.

The dispute was similarly resolved by the Zheleznodorozhny District Court of Samara on May 15, 2009, when plaintiff N.N. The claim against the defendant N.A. and the third party bank for the division of the total credit debt in the amount of 1,200,000 rubles was rejected. under the loan agreement dated September 19, 2007, concluded between the bank and three borrowers - spouses N.A., N.N., their joint child; The apartment purchased with a loan is pledged by force of law, and the spouses and their child are recognized by the pledge agreement (before the plaintiff goes to court) with the right of common shared (1/3 share) ownership of the pledged apartment. The plaintiff asked to divide (which she was denied) the credit debt as of March 30, 2009 in the amount of 1.2 million rubles. between her and the defendant in accordance with the shares of the purchased apartment (the child lives with her, she actually pays the entire loan monthly), oblige the defendant to independently pay the bank the debt under the loan agreement in the amount of 400 thousand rubles. (1/3 of 1.2 million rubles); no demands for division of property were made. The claim was rejected on the grounds that the loan agreement stipulates the joint and several liability of the spouses to repay the loan; the spouses did not contact the bank with a request to change the agreement in this part.

From the court's decision to reject the claim for distribution of the spouses' common debts, it follows that the basis for the refusal is not the absence of the spouses' common debts. From such a refusal decision it follows that the spouses and another person at a certain date (for example, at the time of termination of the marital relationship of two spouses) have a common debt, and therefore, the spouses are not subsequently deprived of the right to protect their property rights in another way (including , including, by changing the loan agreement, by collecting a certain amount of money from the other spouse after the actual payment of the loan, etc.).

In judicial practice, there are errors when determining the share of spouses from common debts, which, on the basis of Part 3 of Art. 39 of the RF IC, must be distributed between spouses in proportion to the shares awarded to them. as follows from the following example. By decision of the Krasnoglinsky District Court dated 10/08/2009, the jointly acquired property of the M. spouses was divided, and each of the spouses was allocated 1/2 of the property (the marriage was concluded on 03/04/1988 and dissolved on 04/27/2009, but actual marriage the relationship was terminated earlier, and there has been no joint household since July 2008), however, during the marriage, a loan agreement was concluded in the name of the plaintiff for the needs of the family, paid in full by the plaintiff; the plaintiff made payments in the amount of 74,134 rubles from her own funds for the period from 01.08.2008 to 08.05.2009 (when the parties did not conduct a joint household), that is, for the period from the moment of termination of the marriage relationship (from 01.08.2008 .) and until the moment of actual payment (up to 05/08/2009), however, the court of first instance, in violation of Part 3 of Art. 39 of the RF IC, collected from the defendant 1/3 of the total debts (instead of 1/2 of the share).

The cassation ruling of the judicial panel for civil cases of the Samara Regional Court dated November 18, 2009 corrected the indicated violation of the court of first instance, and the defendant’s share in the total debt was determined to be 1/2.

Clause 3 of Art. 39 of the RF IC provides for the distribution of only the common debts of the spouses (and not collection), and therefore, when resolving disputes about the distribution of the common debts of the spouses, the courts act incorrectly when they indicate in the decision to collect certain sums of money from one of the spouses (for example, to collect 1/2 of the principal debt and interest in the amount of 100 thousand rubles from the total amount of 200 thousand rubles) under a loan agreement, according to which: either both spouses are co-borrowers, or one spouse is the borrower, and the other spouse is the guarantor, as in practice they meet cases when one of the spouses actually pays the other spouse or the bank the indicated 100 thousand rubles, and the other spouse evades paying the loan and interest to the bank, despite the fact that the loan agreement has not been changed. In this case, if a credit debt arises, the bank goes to court with a claim for joint and several collection of the credit debt from both spouses. Consequently, in this case, the spouse who paid 100 thousand rubles. is not released under the loan agreement from joint liability to repay the loan and interest.

When distributing the common debts of the spouses according to receipts issued by the spouses (or one of the spouses) to an individual about the receipt of funds in debt, and when collecting the common debt from the spouses according to the debt receipt, the courts carefully check the evidence presented by the parties, and only if proven, occasionally satisfy such claims. The courts check for what purposes the funds were borrowed and what they were spent on, etc.

So, plaintiff G.D. appealed to the court to S.D.’s ex-wife. about the division of property, and asked to transfer certain property to each party (they were married from November 20, 2008 to January 27, 2008). In addition, plaintiff G.D. asked the court to divide between the spouses the debt obligation under the receipt dated November 13, 2006 in the amount of 600,000 rubles and interest in the amount of 115,000 rubles. before citizen K.M. (the receipt was issued by the plaintiff G.D. to this citizen K.M.). The court separated the claims of the plaintiff G.D. into separate proceedings. to the ex-wife S.D., to the 3rd person K.M. (to the creditor) on the division of the debt obligation.

3rd person K.M. filed an independent claim against the spouses G.D. and S.D. on the collection, according to the same receipt dated November 13, 2006, of the principal debt in the amount of 600 thousand rubles in equal shares (300 thousand rubles from each spouse) and interest in the amount of 160 thousand rubles. in equal shares (80 thousand rubles for each spouse). The plaintiff’s demands for division of the debt obligation and the demands of the 3rd party K.M. to the spouses for the collection of debt and interest on the receipt dated November 13, 2006. combined into one production. Avtozavodskoy District Court of Tolyatti dated August 31, 2009, claims of plaintiff G.D. and 3rd person K.M. satisfied; between spouses G.D. and S.D. The total debt to the 3rd person K.M. is equally divided.

Statute of limitations.

According to. 19 Resolution of the Plenum of the Supreme Court of the Russian Federation No. 15 of November 5, 1998, the three-year limitation period for claims for the division of property that is the common joint property of spouses whose marriage is dissolved (clause 7 of Article 38 of the RF IC) should not be calculated from time of termination of marriage (the day of state registration of divorce in the civil registration book for divorce in the civil registry office, and for divorce in court - the day the decision entered into legal force), and from the day when the person learned or should have find out about a violation of your right (clause 1 of article 200 of the Civil Code of the Russian Federation).

The courts of the Samara region, when considering claims for the division of property that is the common joint property of spouses whose marriage is dissolved, the three-year limitation period is calculated from the day when the person learned or should have learned about the violation of his right.

Courts correctly deny a claim if the plaintiff misses the statute of limitations. Thus, by the decision of the Avtozavodsky District Court of Tolyatti dated June 1, 2009, the plaintiff R. was denied a claim against her ex-husband B. for the division of property (including the share capital for a garage box) on the grounds of missing the three-year statute of limitations, since the defendant claimed that the statute of limitations had expired; the marriage relationship was terminated on June 12, 2005, the marriage was dissolved on August 9, 2005, the claim was filed on March 19, 2009; the court did not take into account (as unproven) the plaintiff’s allegations that she allegedly learned about the violated right in 2007 (when disagreements arose regarding the use of the garage); the court found that the plaintiff did not provide evidence that after the divorce she used the disputed garage; the court did not restore the plaintiff’s deadline, since the court did not recognize the following circumstances as valid reasons: her husband’s loss of work, her dependent sick child, born in 2007, despite the fact that the plaintiff herself did not deny that she missed the three-year deadline.

The above practice of resolving disputes in the courts of the Samara region in cases in which the question of applying a three-year statute of limitations arises is similar to the judicial practice of the Supreme Court of the Russian Federation.

The contractual regime of property of spouses is an agreement between persons entering into marriage, or an agreement between spouses, defining the property rights and obligations of spouses in marriage and (or) in the event of its dissolution.

The conditions and procedure for concluding marriage contracts established by Chapter 8 apply to marriage contracts concluded after March 1, 1996. Marriage agreements concluded before March 1, 1996 are valid to the extent that they do not contradict the provisions of the Family Code (clause 5 of Article 169).

A marriage contract can be concluded both before the state registration of marriage and at any time during the marriage. A marriage contract concluded before the state registration of the marriage comes into force on the date of state registration of the marriage. The marriage contract is concluded in writing and is subject to notarization.

By means of a marriage contract, spouses have the right to change the regime of joint ownership established by law (Article 34 of this Code), establish a regime of joint, shared or separate ownership of all property of the spouses, of its individual types or of the property of each spouse. A marriage contract can be concluded both in relation to the existing and in relation to the future property of the spouses (Article 42 of the RF IC).

A marriage contract may be declared invalid by the court in whole or in part on the grounds provided for by the Civil Code of the Russian Federation for the invalidity of transactions (Article 44 of the RF IC).

The court may also invalidate a prenuptial agreement in whole or in part at the request of one of the spouses if the terms of the agreement place that spouse in an extremely unfavorable position.

Thus, by the decision of the Avtozavodsky District Court of Tolyatti dated April 6, 2009, the spouses P.A. and P.M. ownership of 1/2 share of non-residential premises was recognized, and plaintiff P.A. The claim against the defendant P.M. was denied. on invalidating a notarized marriage contract dated April 29, 2008, concluded by spouses during the marriage (marriage from March 4, 1980 to June 24, 2008). The spouses changed the legal regime of property and established a regime of separate property, and, from the joint property of the spouses, the two-room apartment was transferred to the ownership of spouse P.M., and to the ownership of spouse P.A. - a garage box and a Toyota car were handed over. Bringing a claim against the wife of P.M. on the recognition of the marriage contract as invalid, plaintiff P.A. claimed that he was a pensioner and a disabled person of group 2, that the terms of the marriage contract put him in an extremely unfavorable position, since he had lost his only home, that the cost of a garage and a car was less than the cost of an apartment. The court did not reasonably find grounds for declaring the marriage contract invalid, since a deviation from the principle of equality of shares of spouses does not put the plaintiff in an extremely unfavorable position, is not a violation of the law and is allowed if there is consent to this from the persons changing the legal regime of matrimonial property by contract conclusion of a marriage contract. In addition, under the marriage contract, movable and immovable property in the amount of 2 million rubles was transferred to him (P.M.); The parties previously discussed the issue of concluding a marriage contract, taking into account the fact that the wife has an illegitimate daughter whom he adopted. Despite the fact that the plaintiff himself already disposed of the garage (transferred to him under the marriage contract), submitting the specified marriage contract dated April 29, 2008, to the state registration authority (Federal Reserve Office) upon its alienation.

Based on Art. 98 of the Code of Civil Procedure of the Russian Federation, legal costs are recovered in proportion to the awarded shares.

By decision of the Avtozavodsky District Court of Tolyatti dated September 21, 2009, the jointly acquired property of M.’s former spouses was divided into 1/2 shares for a total amount of 146,400 rubles.

At the same time, from M.M.’s ex-husband. in favor of the ex-wife M.N. Her legal expenses for the appraiser's services were fully recovered in the amount of 4,000 rubles.

The court decision was appealed by M.M.’s ex-husband. regarding the collection of legal costs.

By cassation ruling of the judicial panel for civil cases of the Samara Regional Court dated July 29, 2009, the court decision regarding the recovery of 4,000 rubles. clarified, and, on the basis of Art. 98 Code of Civil Procedure of the Russian Federation, from the ex-husband M.M. in favor of the ex-wife M.N. 2,000 rubles (1/2 of 4,000 rubles) were recovered to reimburse the costs of paying for the services of an appraiser, taking into account the fact that each party was awarded 1/2 of the disputed property.

A study of judicial practice in cases of division of joint property of spouses showed that courts correctly apply the norms of substantive and procedural law when resolving disputes in this category.

The results of this synthesis are proposed to be discussed with judges of the Samara region at a seminar in order to correctly apply the current legislation.

Division of jointly acquired property of spouses, judicial practice looks at it in some detail. This is due to the large number of cases, as well as their diversity, because the list of jointly acquired property includes a whole range of property of different nature, so it can be difficult to draw the line between jointly acquired and personal property.

Cases when the division of common property of spouses can be carried out in court

Application (claim) for division of jointly acquired property

Sample agreement on the division of jointly acquired property

Inclusion of property in the list of jointly acquired property and exclusion from it

Establishment of shares of property division

Wrongful disposal of property

Challenging the marriage contract

Family legislation of the Russian Federation offers married spouses to choose one of the modes of property management - legal (according to legislative norms) or contractual (according to the terms of the marriage contract).

In case of divorce (or other reason), the conditions for the division of property are also regulated either by law or by contract. In both the first and second cases, the judicial authorities can be involved to resolve issues that arise during the division of property.

Important! The division of property can be carried out before the divorce - by decision of the spouses or, for example, when foreclosure is filed on the property of one of them.

The most common cases in which parties resort to litigation are:

• inclusion of property in the list of jointly acquired property and exclusion from it;
• establishing shares of property division;
• unlawful disposal of property;
• challenging the marriage contract.

It should be noted that the division of property can be carried out without the participation of the court when the spouses voluntarily and by mutual consent divide the property acquired during the marriage. If a joint decision is not reached, then even if there is a prenuptial agreement, the dissenting party can file a lawsuit to resolve the disputed issue.

Claim A sample agreement on the division of jointly acquired property, division of property, is drawn up according to a standard form (a sample of such a claim can be found on our website). Also, a sample claim (application) can be seen on the information stand in the courthouse - this is convenient, since in the sample available there, as a rule, some required fields are already filled in. Otherwise, it is necessary to fill out the application in such a way that it contains information relevant to the specific proceedings.

The following items must be included in the application for divorce and division of property:

1. Appeal to the authority that will conduct the trial.

   The issue of division of property, the value of which is up to 50 thousand rubles, is decided by a magistrate. If the amount of the claim is greater, the application must be submitted to the district or city court.

2. Information about the applicant and his spouse (full name, place of residence).
   The claim is filed at the place of residence of the defendant or at the location of the real estate that is the subject of the dispute.
3. Amount of claim.

   In some cases, the amount of the claim will have to be determined with the help of an independent appraiser. If the spouses have kept documents confirming the value of the disputed property and this value has not changed significantly since the acquisition, you can rely on them.

4. Information about registration of marriage and termination of cohabitation or joint activities.
5. Consent to the defendant's divorce, if available.
6. Information about minor children, their age and information about which spouse they live with.
7. Request for divorce of spouses.

In this section, the plaintiff substantiates his request for divorce and division of property, and also describes the circumstances that justify the filing of the claim and its legality. The need to pay alimony is also indicated here.

Attached to the application are copies of the applicant’s documents, a list of property, copies of children’s birth certificates and marriage certificates, as well as a document confirming payment of the state duty. Its value is 5% of the amount of the claim, and in the case of a large amount of jointly acquired property it can be quite impressive. It is not surprising that many spouses prefer to resolve the issue peacefully.

There is no standard form of agreement on the division of jointly acquired property. In some cases, if a notary is involved in concluding an agreement, he can provide a form and show a sample of the agreement (you can also find it in our sample bank) in the form in which he will be ready to certify it. However, hiring a notary is not necessary.

In general, a property division agreement contains:

1. Name - “Agreement on the division of jointly acquired property.”
2. A stamp indicating the date and time the document was compiled.
3. Full name and passport details of the document preparers.
4. A list of property indicating its value (please note that the name of the registered property must match the name specified in the registration documents).
5. Indication of the shares in which the listed property goes to each of the spouses.
6. If some property goes entirely to one of the spouses, it is necessary to indicate this, as well as indicate the amount of money that he pays to the second spouse as compensation for his share (if necessary).
7. An indication of the absence of circumstances that make the terms of the agreement enslaving and unfavorable to one party.
8. Information about the number of copies of the agreement.
9. Signatures of the parties, witnesses, notary marks.

Unfortunately, it is not always possible to divide property peacefully. As a rule, the greatest controversy is caused by the very composition of the property that will be included in the list of jointly acquired property.

It would seem that the legislation gives clear definitions of the property that is included in the jointly acquired property of the spouses - this is property acquired (purchased, created) during the marriage. However, the spread of purchases on credit and in installments can drag out the process of acquiring property for years or even decades. Partially it can be acquired during the marriage, although the contract itself can be drawn up during the premarital period.

In such cases, the court, as a rule, resolves the issue as follows: the property that is the subject of a mortgage agreement or acquired with loan funds remains with the spouse who entered into the corresponding agreement. However, he must compensate the other party for the amount of payments to the bank made during the marriage.

Another controversial situation is related to personal property in which joint funds or the work of spouses were invested, leading to a significant increase in its value. Such property is also considered jointly acquired. At the same time, the legislation does not determine what kind of increase is considered significant, and the courts rely on their own opinion on materiality, supported by evidence and expert opinion.

In some cases, the court may recognize as joint property not the property itself, but improvements made during the marriage, or distribute the rights to the disputed property between spouses in unequal shares.

Spouses can challenge the division of property in equal shares if this infringes on the interests of minor children. Moreover, Art. 39 of the Family Code of the Russian Federation gives other reasons for the uneven division of property between spouses:

• if it is proven that one of the spouses did not receive income for an unjustifiable reason;
• if it is proven that one of the spouses spent common property to the detriment of the interests of the family (that is, violated the principle of good faith).

There is case law and decisions of the Supreme Court that a mother with minor children who will live with her after a divorce may be entitled to a larger share of the property than the father.

The legal regime for the property of spouses assumes that they dispose of property jointly and subject to the presumption of good faith. But it often happens that in the period preceding a divorce, one of the spouses sells joint property, and makes this transaction fictitious - at an underestimated or inflated price (depending on intentions).

As a rule, valuable movable property becomes the “victim” of such transactions, since the consent of the spouse to a real estate transaction is required. But an unfair transaction with movable property can cause great damage.

In this case, it is difficult to challenge the completed transaction, but it is possible to recover compensation for the value of the property (in a proportional share) from the ex-spouse if the court finds that the transaction was made in bad faith and without the consent of the second owner of the property.

A marriage contract is intended to regulate the property relations of spouses, but sometimes it can also become the subject of a legal dispute. For example, if property that has become the property of one of the spouses under an agreement becomes an instrument of pressure on the other party to the agreement. Unfortunately, it is extremely rare in court to prove that a marriage contract can be terminated, but there are still several reasons for this:

1. The fictitious nature of the marriage (in this case, the marriage itself is declared invalid).
2. Misleading or coercing one of the spouses.
3. Extremely unfavorable conditions in which the second spouse finds himself when concluding a marriage contract.

The issue in each case is considered individually, based on the personal property status of the parties before the marriage and after its end, taking into account all related circumstances. It must be remembered that the right to challenge a marriage contract is retained for one year from the moment when one of the parties was forced to conclude it or learned about the circumstances that are grounds for invalidating the contract.

Divorce is no longer uncommon. Unfortunately, statistics on this issue show disappointing figures. This year, the number of divorced marriages already exceeds the number of registered ones. Accordingly, every year hundreds of thousands of former spouses decide on the division of jointly acquired property. Such disputes are always difficult not only from a moral point of view, but also from a legal point of view. Division of marital estate and divorce require knowledge and skill to correctly interpret the law.

The thorny path of property division

The Family Code, which regulates such relationships, does not provide detailed explanations even for typical situations. In judicial practice, to resolve property disputes during a divorce between former spouses, lawyers use the Civil Code, the Tax Code and the norms of special law in complex issues, for example, mortgages. But this is not enough to clearly define all issues. Increasingly, it is necessary to use case law to accurately interpret a position. In other words, lawyers need to refer to already rendered court decisions in similar cases regarding the division of jointly acquired wealth, considered earlier, in order to convince the judge of their position. A particularly complex approach is required by civil marriage, which is regulated in law by special rules, but to a lesser extent than official ones.

Methods of dividing property

The law provides two options for resolving this issue:

A settlement agreement involves a list drawn up in writing and certified by a notary. In it, the former spouses prescribe options for dividing property. In conflict situations, when spouses are unable to resolve these issues on their own, they have to go to court. The general rule in such cases is to file a claim in the court of the defendant’s district of residence.

How is property divided?

When there is no prenuptial agreement, which is concluded by only 5% of couples, the joint property acquired during marriage is divided equally between husband and wife. All income of both spouses is taken into account: from labor and commercial activities, pensions, benefits, special and other payments. The common property of the spouses is considered from all points of view: real estate, valuables, shares and deposits, shares in commercial organizations, etc. Luxurious, especially valuable and expensive things are recognized as equally shared, unless there are compelling arguments that they were acquired by one of the spouses outside of marriage or are inherited. When one of the spouses did not receive any income, the court in any case divides the joint property acquired during the marriage into equal shares between the spouses.

The court takes into account both the income and debts of the parties

An important aspect that the court takes into account when deciding on the distribution of property acquired jointly during marriage is taking into account not only the income of the parties, but also debts. The legal relationship of spouses in debt proceedings is clearly demonstrated by a mortgage loan. In judicial practice, a number of methods are used to divide joint property under a mortgage:

1. The mortgage payment arrears are divided equally between the spouses and each pays a portion of their mortgage payments.
2. The property under the mortgage is subject to sale, and the difference in the balance is divided equally between the disputing parties.
3. One of the parties to the dispute may remain the owner and pay compensation to the other party.
4. When dividing housing under mortgage, the court also takes into account the interests of minor children living in this territory. Most of such property is transferred to the person with whom the children remain and will live.

Difficulties of the legal process

When analyzing judicial practice, one can come to the conclusion that there are no identical cases or identical decisions in court. When such cases are considered, many difficulties and problems arise in court, and therefore such civil litigation always drags on for a long period. The court is impartial, but even it does not have clear mathematical algorithms for resolving issues of division of joint property. In addition, justice is administered by people, much depends on their subjective opinion and outlook on life. When considering cases in the final instance, the decision is made collectively, but even there heated disputes arise during the discussion, since each judge has his own dissenting opinion. In essence, the civil process is built based not on exact formulas and calculations, but on a certain philosophy. However, as in life, if everything was decided simply, then there would be no civil divorce cases at all. Everything would be resolved peacefully between the parties. It is advisable for each party to use a professional mediator - a lawyer. He will be able to competently and without emotion convey the client’s point of view to the court. Considering such cases together with a lawyer is already common practice.

Trial

Often, a claim for division of acquired property is filed together with a petition for divorce. But sometimes these court cases proceed separately. To begin with, the court tries to reconcile the parties and resolve the case through an amicable settlement. If the parties disagree, the court considers all the information on the case and develops a strategy for conducting the trial together with the participants in the process. They carefully study all documents and listen to the opinions of the parties and lawyers in order to assess the situation. Each meeting is recorded, and such a document has the most important procedural significance. The judge then makes a decision on the fate of the property acquired during the marriage.

Outcome of the proceedings

The court's decision is not the end point of all disputes. A situation may arise that the defendant decides to evade obligations or not fully fulfill them. If the plaintiff is not prudent and does not seize the disputed property, then it may happen that the defendant no longer has the disputed item. Let's say it's sold or transferred to another owner. Based on judicial practices, it is necessary to prepare in advance for a court decision in order to avoid unpleasant situations when it cannot be executed.

How to protect personal property during marriage?

Modern people have learned to treat the sacrament of marriage more pragmatically. Many personal financial obligations force us to take a more sober approach to married life. It happens that with a mortgage, the entire burden falls on one spouse, and the second one also requires a share. It happens that one spouse achieves financial success, and during a divorce, the second demands half of the share of his business, despite the spouse’s obligations to his partners. The only way to avoid lengthy legal proceedings is a prenuptial agreement. It will also protect personal property acquired before marriage.

In addition to the unpleasant issues related to the division of joint property, during a divorce one also has to resolve the issue of children. There are often cases when one of the spouses, more often the father, blackmails the mother under the threat of taking away the children. Succumbing to pressure, a woman may renounce her claims to her share of acquired property. Every woman should know that the fate of children after divorce can only be decided by the court if the spouses were unable to reach an agreement on the division without the intervention of the judicial system.

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spouses

Every year, thousands of people file for divorce, and this is due to various reasons.

But every year the same questions are asked - how does the division of property take place and what do you need to know?

What do you need to know?

It is worth remembering that the period for judicial division of property is approximately 2–3 months. This long period is needed for the spouses to understand the situation and for possible reconciliation.

If one of the spouses behaves in bad faith in a dispute, this time has the right to be increased. That is, if such matters are postponed until later, then it will not be possible to quickly resolve the property issue.

Any situation regarding the division of property is accompanied by its own characteristics. It often happens that spouses themselves decide on the issue of division and everything ends peacefully. But unfortunately, such situations are very few.

This means that you need to resort to the services of highly qualified family lawyers. They will allow, based on sober calculations, to assess possible risks and calculate them in advance.

Divorce statistics are not encouraging. Every day more and more people are filing for divorce. The action is characterized by a considerable number of features and nuances.

It is especially difficult for couples who have jointly acquired a large amount of property and have children to divorce. The procedure for dividing property deserves special attention. After all, it can be either through a peaceful agreement or resolved in court.

All property acquired during marriage is subject to division. And every person should understand this.

In practice, there is also a situation where even after a divorce it remains in common ownership, but this is extremely rare.

Relationships of this kind are regulated by the current Family Code. It also stipulates the main features of resolving a conflict situation in court.

This law allows you to establish the limitation period, the rights and obligations of the parties and the procedure for appeal.

You need to submit an application for division of property only after familiarizing yourself with all the nuances and features of the issue. After all, the legislative framework of the Russian Federation is imperfect. Any lawyer who will protect the rights of the parties can say this.

To go to court, you need to have both practical and theoretical knowledge of family law. Only family lawyers and lawyers have the necessary information.

To minimize the risk of property loss, it is better to consult with a specialist in advance. He will tell you what the chances are for this or that property and what privileges each party has.

As mentioned earlier, there are both voluntary and judicial procedures for the division of property. There is no point in delaying the filing of the application, otherwise the value of the property will decrease, which will negatively affect the other party. The longer the process drags on, the lower the value of the property.

The most beneficial solution is a peace agreement. The spouses themselves decide on the division of property within a specific time frame. All this is stipulated on the document, which is subsequently certified by a notary. Thus, the document acquires legal effect.

This method is considered a pre-trial settlement of the conflict. When dividing property, you can be guided by your own rules, regardless of the law.

For example, if children remain with the wife, the husband can give away real estate or a car. This, of course, is not an equivalent action, but by mutual consent it is possible.

If the settlement agreement is not suitable for this case, then it must be filed promptly in court. In this case, any spouse can act as a plaintiff. But it is worth considering the statute of limitations, which is 3 years.

During the trial, the need for additional financial support, as well as real estate and a car, is determined.

The section can be carried out in parts. Based on the financial and material situation, the judge makes a decision. Until a representative of the government authority leaves to make a decision, it is possible to conclude a settlement agreement even in court.

A sample agreement on the division of marital property is here.

Normative base

This issue is regulated by Article 38 of the Family Code of the Russian Federation. It is here that the basic principles of action, the rights and obligations of spouses and the possibility of dividing property are indicated.

Art. 131 of the Civil Code of the Russian Federation regulates the issue of drawing up and requirements for a statement of claim.

What can and cannot be divided?

As mentioned earlier, property can be divided both in court and before court.

But we must remember that if previously it was possible to choose property, even that which by law is not possible to obtain, then in court everything will be according to the law.

It is better to divide property under the control of highly qualified lawyers. In particular, family specialists become competent employees. They will be able to help organize the process, taking into account all the features of the action.

Joint property

Naturally, only jointly acquired property can be divided. This may include the income of an individual (salary), bonus, real estate and share in an apartment or business.

Do not think that the law will side with the plaintiff and allow him to receive property:

• acquired before marriage;
• inherited;
• things of children and personal nature.

Any of the presented cases is considered on an individual basis. But these things can also be transferred in exceptional cases. All of them are prescribed in the Family Code.

The main thing is to have documentary evidence of the purchase using your own savings. It is even possible to attract witnesses who will confirm this fact.

If one party receives the majority of the jointly acquired property, then the other party has the right to receive monetary compensation.

Loans and debts

Having property rights, spouses also acquire responsibilities. Moreover, they can arise both before marriage and after marriage. If they are purchased on time, then they respond equally to them.

If they were acquired before marriage, and the spouse took part and paid the debt, then he has the right to apply to the court for payment of compensation.

• before marriage type;
• arose during marriage, but with the desire of the spouse and the disposal of one’s own property;
• inextricably linked with the personality of the spouse, for example, alimony obligations.

These obligations lie with only one spouse. If the property received after the division of property is not enough, then the creditor has the right to demand fulfillment of obligations from the property that belongs to the spouse. This is stipulated in Article 255 of the Civil Code of the Russian Federation.

The general obligations are:

• loans taken for the needs of the family, and the debtor is only one person;
• obligations that resulted in harm to third parties;
• for unjust enrichment;
• Payment of utility services.

Both spouses are liable for such obligations in accordance with their property shares. A situation often occurs when the common property is not enough to pay off the debt.

Then each spouse also bears joint liability with his property.

Mortgage

Mortgages are debt obligations for a long period of time. As a rule, it is taken during marriage. Accordingly, both spouses are liable for such an obligation.

• If the loan was taken out before marriage, the second spouse is not responsible for this debt.
• The spouse who previously paid the debt jointly and severally has the right to demand compensation.
• Even if a person does not receive a share in the acquired property, he still must pay the debt jointly.

The bank does not delve into family issues, therefore it requires fulfillment of obligations in accordance with the signed loan agreement.

Inheritance

Inheritance received both before and after marriage is not distributed between spouses.

The sole owner in this case becomes the person whose name appears on the legal document.

A sample statement of claim for division of property is here.

Grade

After a divorce, it is mandatory to have the property assessed. This is necessary to obtain real results on the price of a specific object.

This also allows you to receive a commensurate share and monetary compensation of jointly acquired property. The value of property may change over time.

An item can either depreciate in value or decrease significantly. Therefore, property valuation becomes the main procedure before dividing property. This allows you to minimize unnecessary disputes and proceedings.

The assessment is carried out by independent experts working in the assessment organization.

You can conduct the assessment yourself, but the result must satisfy both spouses. If one spouse does not agree, the other party will have to pay for the company’s services.

This procedure costs 5–16 thousand rubles. Carried out only by companies licensed to do so.

Judicial practice on division of property

Judicial practice on the division of property in 2017 suggests that the process is accompanied by numerous objections and nuances.

Therefore, before you take action, you need to familiarize yourself with all the features.

How to conclude an agreement on the division of property? See here.

When spouses divorce

When spouses divorce, a situation often arises with the automatic filing of a claim for division of property. This is done at the place of registration of the defendant. And a claim is filed in the local court.

It is accompanied by payment of state fees for several actions - divorce and division of property.

After divorce

You can apply after a divorce. To do this, you will need to provide a statement of claim, a divorce certificate and a receipt for payment of the state fee. An application can be submitted either to a local judicial authority or to a magistrate's court.

The latter is possible only if the amount of claims is less than 50,000 rubles and there are no additional requirements (alimony).

In a civil marriage

Judicial practice on the division of marital property shows that it is almost impossible to carry out the process in an unregistered marriage. Neither spouse can claim joint property.

Each of them must document their right to this or that property.

Is it possible to increase the share?

You can increase your share, for example, in an apartment, by providing certificates of dependent persons in need. These include the elderly, incapacitated people, and minor children.

If we talk about other property, then a person can confirm the purchase with his own money by providing supporting documentation or witnesses.

Children's interests

There is no relevant law that would increase the share of monetary compensation in the interests of children.

This is only possible if the financial situation of the spouse with whom the children live is poor. In each specific case, this fact is recognized separately.

The court proceeds from the spouse’s place of work, income and other property received by him during the division of property.

Only on the basis of these factors can he make an appropriate decision.

How is property divided in a mortgage? Information here.

Is it possible to divide property without divorce? Details in this article.

Financial compensation

The law stipulates the possibility of receiving monetary compensation for the property that went to the second spouse.

For example, if one person gets a car, the other can count on compensation, since it is physically impossible to share a vehicle.

Judicial practice on the division of joint property of spouses

Division of jointly acquired property of spouses, judicial practice looks at it in some detail. This is due to the large number of cases, as well as their diversity, because the list of jointly acquired property includes a whole range of property of different nature, so it can be difficult to draw the line between jointly acquired and personal property.

Cases when the division of common property of spouses can be carried out in court

Family legislation of the Russian Federation offers married spouses to choose one of the modes of property management - legal (according to legislative norms) or contractual (according to the terms of the marriage contract).

In case of divorce (or other reason), the conditions for the division of property are also regulated either by law or by contract. In both the first and second cases, the judicial authorities can be involved to resolve issues that arise during the division of property.

Important! The division of property can be carried out before the divorce - by decision of the spouses or, for example, when foreclosure is filed on the property of one of them.

The most common cases in which parties resort to litigation are:

• inclusion of property in the list of jointly acquired property and exclusion from it;
• establishing shares of property division;
• unlawful disposal of property;
• challenging the marriage contract.

It should be noted that the division of property can be carried out without the participation of the court when the spouses voluntarily and by mutual consent divide the property acquired during the marriage. If a joint decision is not reached, then even if there is a prenuptial agreement, the dissenting party can file a lawsuit to resolve the disputed issue.

Application (claim) for division of jointly acquired property

Claim A sample agreement on the division of jointly acquired property, division of property, is drawn up according to a standard form (a sample of such a claim can be found on our website). Also, a sample claim (application) can be seen on the information stand in the courthouse - this is convenient, since in the sample available there, as a rule, some required fields are already filled in. Otherwise, it is necessary to fill out the application in such a way that it contains information relevant to the specific proceedings.

The following items must be included in the application for divorce and division of property:

1. Appeal to the authority that will conduct the trial.

The claim is filed at the place of residence of the defendant or at the location of the real estate that is the subject of the dispute.

In this section, the plaintiff substantiates his request for divorce and division of property, and also describes the circumstances that justify the filing of the claim and its legality. The need to pay alimony is also indicated here.

Attached to the application are copies of the applicant’s documents, a list of property, copies of children’s birth certificates and marriage certificates, as well as a document confirming payment of the state duty. Its value is 5% of the amount of the claim, and in the case of a large amount of jointly acquired property it can be quite impressive. It is not surprising that many spouses prefer to resolve the issue peacefully.

Sample agreement on the division of jointly acquired property

There is no standard form of agreement on the division of jointly acquired property. In some cases, if a notary is involved in concluding an agreement, he can provide a form and show a sample of the agreement (you can also find it in our sample bank) in the form in which he will be ready to certify it. However, hiring a notary is not necessary.

In general, a property division agreement contains:

1. Name: “Agreement on the division of jointly acquired property.”
2. A stamp indicating the date and time the document was compiled.
3. Full name and passport details of the document preparers.
4. A list of property indicating its value (please note that the name of the registered property must match the name specified in the registration documents).
5. Indication of the shares in which the listed property goes to each of the spouses.
6. If some property goes entirely to one of the spouses, it is necessary to indicate this, as well as indicate the amount of money that he pays to the second spouse as compensation for his share (if necessary).
7. An indication of the absence of circumstances that make the terms of the agreement enslaving and unfavorable to one party.
8. Information about the number of copies of the agreement.
9. Signatures of the parties, witnesses, notary marks.

Unfortunately, it is not always possible to divide property peacefully. As a rule, the greatest controversy is caused by the very composition of the property that will be included in the list of jointly acquired property.

Inclusion of property in the list of jointly acquired property and exclusion from it

It would seem that the legislation gives clear definitions of the property that is included in the jointly acquired property of the spouses - this is property acquired (purchased, created) during the marriage. However, the spread of purchases on credit and in installments can drag out the process of acquiring property for years or even decades. Partially it can be acquired during the marriage, although the contract itself can be drawn up during the premarital period.

In such cases, the court, as a rule, resolves the issue as follows: the property that is the subject of a mortgage agreement or acquired with loan funds remains with the spouse who entered into the corresponding agreement. However, he must compensate the other party for the amount of payments to the bank made during the marriage.

Another controversial situation is related to personal property in which joint funds or the work of spouses were invested, leading to a significant increase in its value. Such property is also considered jointly acquired. At the same time, the legislation does not determine what kind of increase is considered significant, and the courts rely on their own opinion on materiality, supported by evidence and expert opinion.

In some cases, the court may recognize as joint property not the property itself, but improvements made during the marriage, or distribute the rights to the disputed property between spouses in unequal shares.

Establishment of shares of property division

Spouses can challenge the division of property in equal shares if this infringes on the interests of minor children. Moreover, Art. 39 of the Family Code of the Russian Federation gives other reasons for the uneven division of property between spouses:

• if it is proven that one of the spouses did not receive income for an unjustifiable reason;
• if it is proven that one of the spouses spent common property to the detriment of the interests of the family (that is, violated the principle of good faith).

There is case law and decisions of the Supreme Court that a mother with minor children who will live with her after a divorce may be entitled to a larger share of the property than the father.

Wrongful disposal of property

The legal regime for the property of spouses assumes that they dispose of property jointly and subject to the presumption of good faith. But it often happens that in the period preceding a divorce, one of the spouses sells joint property, and makes this transaction fictitious - at an underestimated or inflated price (depending on intentions).

As a rule, valuable movable property becomes the “victim” of such transactions, since the consent of the spouse to a real estate transaction is required. But an unfair transaction with movable property can cause great damage.

In this case, it is difficult to challenge the completed transaction, but it is possible to recover compensation for the value of the property (in a proportional share) from the ex-spouse if the court finds that the transaction was made in bad faith and without the consent of the second owner of the property.

Challenging the marriage contract

A marriage contract is intended to regulate the property relations of spouses, but sometimes it can also become the subject of a legal dispute. For example, if property that has become the property of one of the spouses under an agreement becomes an instrument of pressure on the other party to the agreement. Unfortunately, it is extremely rare in court to prove that a marriage contract can be terminated, but there are still several reasons for this:

1. The fictitious nature of the marriage (in this case, the marriage itself is declared invalid).
2. Misleading or coercing one of the spouses.
3. Extremely unfavorable conditions in which the second spouse finds himself when concluding a marriage contract.

The issue in each case is considered individually, based on the personal property status of the parties before the marriage and after its end, taking into account all related circumstances. It must be remembered that the right to challenge a marriage contract is retained for one year from the moment when one of the parties was forced to conclude it or learned about the circumstances that are grounds for invalidating the contract.

Situations from judicial practice on the division of property during divorce

For many couples, the divorce process is a difficult period when unrealistic hopes of creating a strong family are finally put to rest. And while both parties are worried, or maybe thinking about plans for the near future, lawyers strongly recommend that they immediately resolve other issues related to the divorce. One of them is the division of property.

General provisions for the division of property

The concept of jointly acquired property of spouses

All property that was acquired during the marriage with the income of the husband or wife is included in jointly acquired property.

Even if only one spouse worked and earned money and property was purchased with this money during the marriage, it will still be considered jointly acquired.

The legislator decided that Housework, child care, and raising children also require considerable effort.. If you hire individual workers for this, then not every family will have enough funds for this, even if these funds come from the earnings of both spouses.

Therefore, the fact that one of them sacrificed his career for the sake of running a household is viewed by the legislator from precisely this angle. And it doesn’t matter whether the decision was made consciously or forced due to lack of work.

Division principle

All jointly acquired property must be divided into two equal parts. That is, each spouse has equal rights to it. For example, if a car was purchased during marriage with the husband’s income and it was he who used it, the documents were drawn up in his name, then during a divorce he must understand that his wife has the same rights to this car as he does.

But the spouse must also understand that those jewelry that she acquired during the marriage and that only she wore are also subject to inclusion in the total amount of jointly acquired property. Her husband has the same rights to all acquired luxury items as she does, even to her mink coat and expensive sheepskin coat.

Many divorcing couples, clinging to each other's throats during the division of property, somehow forget that not only assets, but also liabilities are subject to division. That is, debts acquired during marriage will also have to be divided among themselves.

You took out a car on credit, took out a mortgage for an apartment - during a divorce, be kind enough to divide the remaining loans.

Inherited property is not divided

Jointly acquired property does not include property that was acquired by spouses before or after marriage, or was inherited or gifted to one of them personally.

If during the marriage the spouses lived in an apartment that the spouse inherited from her parents, and she inherited jewelry from her mother and grandmother, and at that time her husband drove a car that he purchased before marriage, then All this listed property is subject to division.

You can read more about the procedure for dividing property here.

Typical misconceptions of parties in court

So, the general provisions are more or less clear. Are there any deviations from them? Of course there is, and it all depends on what arguments the parties present at the court hearing itself. But it must be taken into account that not everything that one or another side of the process will assert will be taken into account by the court.

If the husband accuses his wife that she never worked anywhere, everything was bought with his money, then the court will not even react to this for the reasons stated above. This is a very common argument in court, after which the spouse wonders why they were not heard and even suspect collusion and corruption. But the reason for this is simple - current legislation.

Wives in court also often go too far, demanding to give everything or most of it, because the children remain with them. The maximum that they can additionally count on in this regard is the property that is due to the children and which is transferred upon divorce to the parent with whom these children remain.

By the way, you can read about the procedure for divorce through the court if you have children here. Also read about how to apply for alimony during a divorce.

When is property divided unequally?

However, everything changes if sane arguments are heard in court. For example, if one spouse did not work without any reason, led an immoral lifestyle, and caused damage to property by his behavior, then in such a situation the court may make a decision by which it will reduce the share of the jointly acquired property due to this spouse.

It happens that one of the spouses (usually the husband) becomes an alcoholic and does not work anywhere for a long time. In the family, on this basis, there are daily scandals that turn into fights, accompanied by damage to property. The spouse may take things out of the house to sell them for next to nothing and get a new dose of alcohol or drugs.

But in such situations, it must be taken into account that words alone will not be enough in court. In order to prove the regularity of scandals, it is necessary to show copies of administrative detention protocols and extracts from the call log of the nearest police station.

Damage to property can be proven by the same arrest reports, which describe the circumstances of the offense.

If things have been taken out of the house, you must at least show police statements. And it will be very fortunate if at least one of these statements contains materials confirming such facts. It can administrative protocols, in which there is information that a citizen purchased the items taken out or an item for next to nothing from one of the spouses.

All these materials are of great importance in court, much more than the testimony of neighbors who are greatly bothered by a drunk neighbor. But the testimony of neighbors in this case will not be superfluous.

We are talking about an unequal division of property, and in order to make a decision that will differ from the direct rule of law, the judge needs very good reasons.

When can one spouse's inheritance be divided in a divorce?

As stated above, the personal property of one of the spouses is not included in the total estate. In theory, an apartment received by inheritance, gifted or purchased before marriage by one of the spouses is not subject to division. But in practice it may be different, and here again argumentation plays a big role.

For example, after marriage, the wife moves to her husband’s apartment, which he inherited. The apartment needs serious renovation and the wife decides to use the money she has saved to make major home renovations.

After this repair, made at her expense, the apartment significantly changes its market value in the direction of increase. During a divorce, the argument that the apartment was renovated with the wife’s personal funds will be taken into account and it is quite possible that, by a court decision, she will be entitled to a share of this apartment.

The same applies to other personal property, which, as a result of repairs using the personal funds of the other spouse, changes its value upward.

If a car that belonged to the wife before marriage cost 300 thousand rubles, and during the marriage the husband repaired it at his own expense and it began to cost 700 thousand rubles, then he has the right to claim part of this car after the divorce.

But, it must be borne in mind that this is only true when the repairs were carried out at the personal expense of one of the spouses. His current income does not qualify as such and is considered jointly acquired..

But even in this case, if the apartment or car of one of the spouses is repaired using joint income, increasing its value, then during a divorce the other spouse can claim some part of it.

For example, an apartment before marriage cost 2 million rubles. During the marriage, the spouses made repairs in it for the combined income, and the apartment increased its value to 3.5 million rubles. During a divorce, the second spouse has the right to claim part of this apartment, which will be equivalent to half of the changed value. In this case, it is half of 1.5 million rubles or 750 thousand rubles, which is almost equal to one fifth of the apartment (1/4.7).

It is this part of the apartment that the court can award to the other spouse, although in many cases the decision of the apartment owner is obligatory to pay this amount to the ex-spouse, in this case 750 thousand rubles.

As in the previous case, arguments must be based on facts. They are data on the availability of financial resources before marriage, on the sale of some property, the proceeds from which were used for repairs. It is very good when all changes to an apartment or car are made in a timely manner in the registration certificates. This increases the likelihood that the right decision will be made in court.

If the money lying under the pillow was used to increase the value of the property, and its origin is unknown, then it will be very difficult to prove something in court.

Estimation of the cost of an apartment, car, etc.

How is the value and division of various property, such as an apartment or car, usually assessed in court? For general cases, the court does not care at all how much it costs. The cost data indicated in documents issued by the technical inventory bureau is usually much lower than the market value. But this data is used only to pay the state fee when submitting documents to the court for consideration.

The court awards shares of this or that property, leaving it up to the former spouses to decide how each of them will use ½ of the apartment, whether they will change indivisible housing, such as an apartment, house, garage or car, or sell it and divide the money.

However, there are situations when you need to find out the real value of a property. Some of them are described above when it comes to dividing an apartment or car that has increased in value during the marriage. In such situations it is impossible to do without an examination.

An appropriate expert, for example, an employee from the BTI, will give a real assessment of the property at the moment. The expert opinion will be the starting point in the court hearing, but not clippings from newspapers and magazines about similar property for sale.

Examples of court decisions

Example No. 1

The wife filed for divorce along with a demand for division of property. There is an apartment that my husband’s parents bought, it has furniture and household appliances. Also, in her application, the wife demanded half the money from the car sold three years ago. According to the court's decision, the wife was awarded half of the furniture and household appliances.

What was this decision based on? The apartment in which the spouses lived was purchased by the husband's parents. They were alive, but they did not draw up a deed of gift for her. It turned out that in fact the apartment belonged to the spouses, they used it, but from a legal point of view it did not belong to any of the spouses.

But even if the parents had drawn up a deed of gift for their son, even in this case the wife could not count on part of it.

The car sold three years ago was also registered to the husband's father, but that is not the main thing. The period for property claims is three years, and it had expired at the time of filing the documents. This is, firstly.

And secondly, the money was spent on the needs of the family and therefore is not subject to division. All that remains are household appliances and furniture that were purchased during the marriage, and which constitute jointly acquired property. The court divided this property.

Example No. 2

Two years before filing for divorce, the husband sold his one-room apartment, which belonged to him as personal property. After donating money, the family buys a three-room apartment, but the wife renounces ownership of it. During a divorce, she submits an application for division of the apartment.

The court makes a decision on she is entitled to a sum of money equivalent to a quarter of this apartment.

During the court hearing and examination, it was established that the cost of a one-room apartment is half that of a three-room apartment. Accordingly, half of this apartment belongs to the spouse as joint property. Her refusal of ownership of the apartment did not matter in this case.

During a divorce, it sometimes happens that one of the spouses deliberately hides all documents on property. As judicial practice shows, getting out of this situation is not so difficult. To do this in court you can submit a petition to request documents, or obtain their duplicates from the relevant institutions.

Where can I see court decisions?

Where can I view court decisions on specific cases, including the Supreme Court? You can view court decisions without leaving your home. All you need is a computer and an Internet connection. Go to the website, for example here, and in the judicial practice section you can familiarize yourself with specific cases.

Also, now each court has its own website, where you can see the court decisions that it made. For example, the website of the Chelyabinsk Regional Court. The Supreme Court of the Russian Federation also has a website. On all these sites you can find specific cases; to do this, you need to know their numbers and familiarize yourself with the decisions on them.

How much does it cost to divide property through court?

Plaintiffs in a property division case are faced with the need to pay a state fee when filing a claim in court. For many of the plaintiffs, this may be the only or main expense.

The state fee for the division of property depends on the price of the claim itself and is equal to half the cost of all property subject to division. It cannot be less than 400 rubles, but cannot exceed 60 thousand rubles.

In addition to this, you may need examination costs, since it is not free and costs far from a symbolic amount. So, the more expensive the disputed property, the more complex the case itself, the higher the costs will be.

And if they are still attracted lawyers, without which you can’t figure out complex cases yourself, then the litigation will be very expensive. A few hundred thousand rubles is far from the limit here.

According to the law, the party in whose favor the court made a decision, the other party is obliged to reimburse all legal costs incurred by it. If the claim is partially satisfied, the applicant is reimbursed expenses in proportion to the claims satisfied.

How long does the trial last?

There is no exact answer to this question. As judicial practice shows, such proceedings can end within one or two months, or they can drag on for six months, a year or more.

The more complex the case, the more documents on the case need to be requested, the more witnesses to interview, the longer it will take. You can count on a quick solution if both parties immediately come to mutual agreement.

Taking into account possible time and financial costs, at the beginning of the process itself you should think about finding a compromise with your ex-spouse. Perhaps it is worth giving in to some demands.

At a minimum, this will save time, and at a maximum, it will significantly save not only money, but will also allow you to remain in normal relations with your ex-other half.

If something remains unclear to you, perhaps this video will help you:

Question about the division of land. The plot was purchased during marriage, payment was made from an account, a bank statement was taken the day before the marriage, and at the time of purchase, the difference was covered by a promissory note and a statement of funds being credited. I'm trying to prove that I bought the plot from an account and with money earned before marriage

During the marriage, a plot of land was purchased. The couple built a house on this site. After this, the house and land were registered in the name of the brother and sister. the husband was only registered in this house. after which the brother, on the basis of a trust agreement, donated his share to his sister. How, in this case, will the division of property be made between the spouses during a divorce, and can the registration of this property in the name of a brother and sister, and a further agreement of gift, be invalidated, since the house was built at the expense of the spouses.

Judicial practice on division of property

If there is no agreement between the spouses on the division of property, the distribution of shares is carried out in court at the request of one of the spouses (Article 38 of the RF IC).

The issue of dividing property acquired during marriage may arise for spouses not only as a result of divorce. A claim for division of property is often filed in court in the following cases:

• during marriage for various reasons, for example, one of the spouses wants give as a gift share part of your property with close relatives or pay off your debts;
• the reason for the division of property may be termination of family relationships between married spouses;
• after divorce;
• when creditors' claims on the division of the common property of the spouses in order to foreclose on the share of one of the spouses in the common property of the spouses.

The division of property, both during marriage and after divorce, can be made by spouses by agreement of the parties. In case of a dispute, division is carried out in court at the request of one of the spouses (Article 38 of the RF IC).

It's important not to miss statute of limitations to go to court regarding the division of common property. This period is calculated 3 years and begins from the time when the spouse discovered that his rights were violated.

Determining the value of the spouses' common property

The assessment of the value of property, the division of which is initiated by the spouses or one of them, must be objective and be determined at the time of the trial. It is not uncommon for participants in the process to try to underestimate or inflate the value of the disputed property.

N.N. Zakharov filed a cassation appeal with the court. In his opinion, the property transferred after the divorce to him and his wife Zakharova G.K. according to the decision of the court of first instance, it was assessed subjectively, as a result of which, after its division, the shares turned out to be unequal. This violated the principle of Art. 39 of the RF IC on equality of shares of spouses in common property.

Thus, when dividing property, the court is guided solely by its market value, to determine which, it is necessary to conduct an appraisal examination of the property subject to division, with the exception of property for which:

• common shared ownership is established;
• divided in kind.

The principle of equality of shares in the division of property

When approaching the court on the issue of dividing the common property of spouses, the judge, as a rule, adheres to principle of equality of shares. Except for cases when a different procedure is established by the spouses independently by a marriage contract (Article 39 of the RF IC). For example, if a wife took care of the house, raised children and was not able to work, then she also has equal rights with her husband when dividing their common property.

There are a number of cases when in court, in the course of identifying various circumstances shares are not divided equally:

• the court's decision to increase the share of a spouse may be influenced by the fact that minor children will live with this spouse;
• the share of a spouse who was wasteful in the family, did not work without objective reasons, or did not manage the household can be reduced in court;
• The share of one of the spouses can be increased in court if the spouse did not work and did not bring money to the family for good reasons. For example, due to illness.

In any case, there must be significant reasons why the court increases or decreases the spouses’ share in the common property.

In case of concluding a marriage contract, the ratio of shares may be any(Article 42 of the RF IC). But it should be taken into account that the terms of a marriage contract may be considered void if they turn out to be extremely unfavorable for one of the spouses (Article 44 of the RF IC).

O.V. Zaitseva appealed to the court. with a statement of claim in which she asked to terminate the marriage contract concluded between her and her ex-husband P.V. Zaitsev, since the contract distributed shares in their common property, which consisted of a residential building and a plot of land, extremely unfavorably for her.

Division of debts during division of property

As you know, rights give rise to responsibilities, therefore, having property rights, spouses also have various obligations.

As a rule, the common debts of the spouses and the rights of claim are distributed by the court between the spouses in proportion to the shares awarded to them (Article 45 of the RF IC).

Obligations may arise between spouses both before marriage and during marriage. They can be general, but can only apply to one of the spouses:

• premarital obligations;
• obligations that arose during marriage, but which the spouse entered into by disposing of his own and not common property;
• obligations inextricably linked with a person, for example, for compensation for harm caused to life and health (tort), alimony obligations.

For all of the above obligations, the spouse is liable exclusively with personal property. If personal property is not enough to fully repay debts, creditors have the right to demand the allocation of the debtor's share, in common property to foreclose on it (Article 255 of the Civil Code of the Russian Federation).

The general obligations of spouses are recognized debts incurred during marriage. These include:

• joint obligations or debts, in which only one spouse is the debtor, but they arose in the interests of the family (improving living conditions, maintaining children, purchasing household appliances, repairs, etc.);
• tortious obligations, when the spouses committed actions that caused harm to third parties;
• obligations arising from unjust enrichment;
• obligations for which spouses are responsible jointly, for example, paying utility bills.

For joint debts or obligations, spouses are liable with common property in proportion to the shares awarded to them. However, there are often cases when common property is not enough to pay off debts, then each spouse bears joint and several liability with your property.

Quite often situations arise when spouses develop debt obligations that extend over a long period of time. These could be loans for the purchase of certain things, car loans, or mortgages. If a debt or loan was taken out before marriage, then the spouse who took it will be obliged to repay it. The second spouse is not responsible for these debts.

Loans incurred after marriage will be required to be repaid by both spouses, regardless of which of them entered into the loan agreement, if it is proven in court that the loan money was used in the interests of the family.

Expenditures in the interests of the family include repairs in a shared apartment or the purchase of household appliances. Moreover, it should be noted that debts acquired during marriage are distributed between spouses in proportion to their shares.

In the case where the loan was taken to satisfy exclusively personal needs one of the spouses, for example, the purchase of personal items, improvement of personal or inherited property, responsibility for its repayment arises only from the spouse for whom the loan is issued.

Currently, car loans have become widespread. It should be noted that if a loan is taken out for the purchase of a car or other indivisible property, then the debt is recognized by the spouse in whose name this property is registered. And the second spouse has the right to demand in court compensation for your share in property purchased on debt. As for the balance of the debt, it is distributed according to shares.

The issue of distribution of debts and property rights to real estate arising from mortgage obligations is quite relevant in our time. Thus, an apartment or residential building purchased with a mortgage is divided equally between spouses. In this case, it does not matter with which spouse the loan agreement was concluded. The spouses will have to repay the mortgage loan in proportion to the shares awarded to them. Sometimes credit institutions express disagreement with receiving an apartment secured by collateral in shared ownership. But in judicial practice, this fact does not significantly affect the decision in the case. It is important to note that the court does not care whether the second spouse acted as a guarantor when applying for a mortgage or not.

Payment of compensation upon division of property

Quite often there are cases when, when dividing common property, one of the parties expresses a desire to retain the right to the property in full, and the other party to be awarded compensation equal to its share. Most often, such situations arise when dividing real estate or indivisible things.

Property that is in shared ownership can be divided between co-owners by agreement between them (Article 252 of the Civil Code of the Russian Federation). Thus, determining a share in common property does not always mean the actual division of property in kind; payment of monetary compensation by one of the parties is acceptable.

This principle may be violated if we are talking about the division between the owners of something that cannot be divided in kind. If the court determines that one of the spouses has a significant interest in the possession and use of an indivisible thing, then such thing by a court decision may be transferred into the sole ownership of him, regardless of the size of the share of the spouse to whom it is transferred. The other spouse must be paid compensation - the value of his share.

When paying compensation, the court is always guided by the market value of the property at the time of consideration of the case, to determine which an appraisal examination is carried out. So, when determining the cost of a private house, prices for:

• Construction Materials;
• amounts spent on paying builders and finishers;
• costs for delivery of building materials;
• unloading and loading operations corresponding to the prices of the given area during the period of consideration of the dispute.

Contributions made in the name of children by spouses do not belong to their common property, are not subject to division and are considered to belong to the children. Children's things are also not subject to division and are transferred without compensation to the parent with whom the child lives (Article 38 of the RF IC).

Incurring legal expenses

Legal costs consist of state fees and court costs. The procedure for paying state duty and its amount are established by the Federal Laws on Taxes and Duties.

When going to court, spouses must pay state fee, the size of which directly depends on the price of the claim they bring. The value of the claim in the division of property represents the property claims of one spouse against the other, which the former declares in court. The price of the claim will correspond to the amount that the spouse who filed a claim for division of property intends to receive.

So, for example, if the common, jointly acquired property of the spouses consists of an apartment worth 5,000,000 rubles and a land plot worth 300,000 rubles, then the cost of the claim will be equal to 5,300,000 rubles.

Typically, the price of the claim is established by the spouse who filed a claim for division of property, taking into account the cost of such things, independently. However, the judge can change the price if it is proven that it is too high or too low. If the price of the claim changes, then the state duty is subject to change accordingly.

If the plaintiff (spouse) applies to the court with a claim for division of property and divorce, then he will be required to pay the state fee for divorce (200 rubles) and separately for division of property. The amount of state duty may be reduced in court for low-income citizens.

The state fee is paid before filing a claim. A receipt for payment of the fee is attached to the statement of claim. If the plaintiff has a difficult financial situation, confirmed by relevant certificates and documents, he can petition the court to reduce the amount of the state fee.

• If a positive decision is made on the claim, then the state fee is returned to the plaintiff and is subject to recovery from the defendant in an amount proportional to the size of the claims satisfied by the court.
• If the plaintiff’s claim was denied, the state fee will go to the appropriate budget.

State duty may be refunded, if the plaintiff changed his mind about filing a claim or the court left the case without consideration. In this case, it is necessary to apply to the tax office for a refund of the state duty (the application deadline is 3 years), to which should be attached a certificate from the court stating that the plaintiff did not apply to the court, and the original receipt for payment of the state duty.

We lived with my husband for 10 years and have two children together. During this time, my husband earned money, and I did all the housework and raised our children. During our marriage, we bought an apartment in which we live and a car. The apartment and car are registered in the husband's name. Recently my husband proposed a divorce. Can I count on a share in an apartment and a car if I didn’t work?

You will have full rights to a share in the joint property. In accordance with Art. 39 of the RF IC, you are entitled to 1/2 share in the apartment, since it was acquired during marriage, and you did not work for good reasons: you ran the household and raised joint children. As for the car, you can demand compensation for your share in this property.

I have been married for 5 years. During the marriage, the husband accumulated loans. With the money borrowed, he bought clothes for himself, equipment for personal use, and spent money on trips. Currently he has been laid off from his job and has nothing to pay off his loans with. Does the bank have the right to legally demand that I pay my spouse’s loan if I am not the guarantor for his loan?

In accordance with Art. 45 of the RF IC, recovery is applied to the common property of the spouses if it is established that what one of the spouses received under obligations was spent on the needs of the family. In your case, the bank does not have the right to demand that you pay for your spouse’s loans, since the money he borrowed was spent only on his own needs. If this case is tried in court, you will have to prove that the spouse did not use the loan for the needs of the family.

Conclusion

If there is no consent of the spouses when dividing property, the issue is resolved in court, and the following should be taken into account:

• When dividing property, the court is guided solely by its market value during the consideration of the case, to determine which an assessment examination is carried out.
• In addition to the rights to common property, spouses bear liability for general debts, which are distributed by the court between the spouses in proportion to the shares awarded to them (Article 45 of the RF IC).
• Determining a share in common property does not always mean the actual division of property in kind; payment by one of the parties is acceptable monetary compensation.
• Amount of state duty when dividing property not fixed and depends on the claim price, which is determined by the plaintiff independently.

Issues of common property of spouses are regulated by the norms of Chapter. 7 RF IC, ch. 16 of the Civil Code of the Russian Federation. Explanations on some of these issues are contained in the Resolution of the Plenum of the Supreme Court of the Russian Federation dated November 5, 1998 “On the application of legislation by courts when considering cases of divorce.”

When considering cases on disputes related to the division of common property of spouses, it is necessary, first of all, to find out its legal regime: legal or contractual (the latter may include elements of a legal regime, a separate property regime, etc.).

As official statistics show, the legal regime is most common. When resolving issues related to the joint property of spouses, it is necessary in accordance with Art. Art. 14, 50 of the Civil Procedure Code of the RSFSR (hereinafter also referred to as the Civil Procedure Code of the RSFSR) rules determine legally significant circumstances. Their circle is indicated by the norms of substantive law regulating issues of family property. Such circumstances will make it possible to correctly establish the legal regime of property, the grounds that allow in a number of cases to deviate from the principle of equality of shares, as well as resolve other issues that are the subject of proof. See: Bespalov Yu. Proceedings of cases on the division of common property of spouses. // Russian justice. - 2002. - No. 9. - P. 14.

Analyzing these norms, we can conclude that such circumstances include: the time of marriage; grounds and moment of emergence of common property; composition, type and value of property, its location; reasons for changing the regime; grounds for deviation from the principle of equality of shares; the presence or absence of encumbrances of property with the rights of third parties, as well as its negotiability; limitation periods; a list of property transferred to each of the spouses (former spouses). A full examination of these circumstances occurs during the consideration of the relevant case.

When deciding whether to accept an application for proceedings, the judge first of all determines the circle of persons who have the right to file a claim in court. This right is possessed by: spouse, former spouse, guardian of the spouse (former spouse), prosecutor, heir, creditor of the spouse (see Appendix 2), creditor of the testator.

The statement of claim must comply with the requirements of Art. 126 Code of Civil Procedure of the RSFSR. It must, in particular, indicate the property acquired during the marriage, the time of its acquisition, the property to be allocated to the plaintiff, the value of the property, existing encumbrances and other circumstances relevant to the case (see Appendix 3). Jurisdiction for this category of cases is determined by the place of residence of the defendant (Article 117 of the Code of Civil Procedure). In a case accepted for production, preparation is carried out within the framework outlined in Art. 141, 142 Code of Civil Procedure of the RSFSR. The parties are invited to prove their allegations and objections according to the rules provided for in Art. 14, 50 Code of Civil Procedure of the RSFSR.

One of the subjects of proof is the time of marriage, including the moment of its conclusion and termination. The first point is confirmed by a marriage certificate, and in the case where the marriage was dissolved before the Family Code of the Russian Federation came into force, by a copy of the record of marriage acts. The time of marriage is the day of state registration of marriage (the date of the marriage record). The moment of termination of marriage is determined depending on the order of termination of marriage. A marriage dissolved in the civil registry office is terminated from the date of state registration of the divorce in the civil registration book. A marriage dissolved in court is terminated from the day the court decision enters into legal force. An extract from the court decision must be sent to the civil registry office at the place of state registration of the marriage within three days from the date of entry into force of the court decision.

The grounds and moment of emergence of ownership rights, composition, type, value of property and its location are other legally significant circumstances. As is known, common property arises when two persons (spouses) take ownership of property provided for by the norms of Chapter. Ch. 14, 16 Civil Code and ch. 7 SK.

The composition and type of property determined on the day of termination of the marriage are also important. Thus, if there is real estate in the common property, it is necessary to find out whether the rights to this property or transactions with it are registered, whether the structure is unauthorized, and whether the construction is certified. Unauthorized construction may be evidenced by the erection of a building on a land plot not allocated for this purpose, without obtaining permission from the competent authorities, in violation of town planning, building codes and regulations. The parties must be asked to resolve the issue of allocating a plot of land for the erected building, eliminate deficiencies by obtaining the appropriate permits, or re-equip or rebuild the facility. See: Bespalov Yu. Decree. op. - P. 15. When the construction of an object is not completed, it can be divided if the degree of readiness allows the separation of individual parts with the subsequent technical ability to complete construction.

The indivisible thing is sold to one of the spouses (former spouses), another eligible person, and the other is paid compensation equal to the difference in the value of the property and its share in the right of ownership of the property. If there are securities included in the property, it is necessary to take into account the time of their acquisition, the grounds and time when the right to them arose.

If one of the spouses (former spouses) was engaged in entrepreneurial activity during the marriage, it is necessary to find out the availability of property in kind on the day of termination of the marriage, as well as the value of the property. It is necessary to take into account that the entrepreneur’s property is in circulation. See: Rykova I. Division of business according to family. // Home lawyer. - 2002. - No. 3. - P. 14-15.

The property subject to division between spouses increasingly includes shares, shares, participation shares in commercial companies and partnerships, as well as shares in production cooperatives. It seems that the shares, bonds, and other securities included in the marital property should be divided equally not according to their nominal value, but according to the value in accordance with the stock quote that they have at the time the dispute is considered in court. The nominal value can be used as the basis for valuation only if certain shares are not quoted on a financial exchange. The same applies to government securities of different types, as well as issues, series, etc., giving different levels of profitability. Only low-yield securities cannot be allocated to the share of one spouse, and high-yield securities to the share of the other. It can be assumed that in the near future, in order to evaluate the securities portfolio to be divided, the court will be forced to order a financial examination. See: Chefranova E. Decree. op. - P. 36.

In accordance with the Federal Law “On Joint-Stock Companies,” joint-stock companies are required to maintain a register of shareholders, which indicates information about each registered shareholder, nominee shareholder, number and categories of shares recorded in the name of each registered person. The registry holder, upon request of the court, is obliged to provide all necessary information. If the property subject to division includes shares of an open joint-stock company, then the court decision to recognize the ownership of the shares is the basis for the register holder to make changes to the register of shareholders of the company. This is necessary both to participate in the management of the company’s affairs and to receive dividends on shares. Otherwise, the issue of shares in a closed joint-stock company must be resolved, which, firstly, are distributed only among the founders of the company, and secondly, the number of their holders cannot exceed fifty people. The approach should be uniform for cases where the property acquired by spouses includes shares (contributions) in business companies, partnerships, shares in production cooperatives, as well as shares in closed joint-stock companies. These cases are united by the fact that the alienation of a share, share, shares is impossible, as a rule, without the consent of other participants, shareholders, founders, members, and also that, unlike open joint-stock companies where capital is pooled, here not only association of capital, but also association of labor, and, in addition, there is an element of trust among the persons who signed the constituent documents. As a general rule, a court decision, if such a possibility is not provided for by the constituent documents of a company, cooperative, or partnership, cannot be obliged to accept an outsider as a participant in an enterprise created as the owner of the property. From the above, it follows that in appropriate cases, the court obliges the spouse - participant (co-founder, shareholder, member, shareholder), on the basis of the data contained in the balance sheet of the enterprise, to pay free funds to the other spouse and oblige the latter to alienate his share, share, shares , judicial practice has yet to provide an answer. It is appropriate to recall that, by virtue of Art. 38 of the RF IC, the division of the property of a peasant (farm) enterprise is carried out according to the rules provided for in Art. Art. 252 and 254 of the Civil Code of the Russian Federation and the Law of the RSFSR “On Peasant (Farm) Economy”. The principle of indivisibility of property applies to such an economy. This means that when one of its members leaves the farm, fixed assets (equipment, equipment, buildings) are not subject to division and allocation. The share attributable to the allocated share is compensated to him in monetary terms. The period for payment of compensation cannot exceed five years. Thus, a residential building is not subject to division in kind between farmer spouses; the court can only determine the procedure for using it.

If one of the spouses alienated the common property or spent it at his own discretion, contrary to the will of the other spouse and not in the interests of the family, or concealed the property, then this property or its value is taken into account during the division.

When property is encumbered with the rights of third parties, the issue of involving them in the case should be discussed, and, if necessary, according to the rules provided for in Art. 128 Code of Civil Procedure, separate the case into separate proceedings.

Spouses who divide joint property are not always content with assigning them an ideal property share. The real division, the real part of the property they own, is the main and often the only goal of their claims. Therefore, not only the plaintiff, but also the defendant in a dispute resolved by the court usually specifies what things, at what value, and within what monetary limits they want to receive. But it is not always practically possible to make all calculations in strict accordance with the share due to the spouse. That's why Art. 252 Civil Code and paragraph 3 of Art. 38 of the IC allow, in cases where one of the spouses is transferred property the value of which exceeds the share due to him, to award the other spouse the appropriate monetary or other compensation, taking into account clauses 35-37 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated July 1, 1996 “On some issues related to the application of part one of the Civil Code of the Russian Federation,” which defines in more detail how a share is allocated from common property. The impossibility of dividing this property in kind does not exclude the right of a participant in the common shared value to make a demand to determine the procedure for using this property, if this procedure is not established by agreement. In resolving such a requirement, the court takes into account the actual procedure for using the property, which may not exactly correspond to the shares in the right of common ownership, the need of each of the owners for this property and the real possibility of joint use of it.

Naturally, when dividing property that has a certain assessment, which is given by the competent authorities on behalf of the court, not only the mercantile considerations of the spouses are taken into account. Professional interests, habits, inclinations, opportunities, etc. Circumstances in their own way also influence the fate of the things being discussed. Moreover, clause 5 of Art. 38 SK gives an approximate list of such things. These include not only the minor’s clothes, shoes, school and sports supplies, but also his musical instruments and a children’s library. The same can be said about a bank deposit made by spouses (one of them) at the expense of their common property in the name of their common minor children. Such deposits, regardless of their size, are considered to belong to these children and are not taken into account when dividing the property of the parent spouses.

Among the circumstances that may influence a change in the property regime and are subject to study are the following: whether there were investments during the marriage that significantly increased the property status of each spouse; whether there is property acquired to meet the needs of minor children; whether property was acquired at the expense of one of the spouses that belonged to him before marriage; whether the property was acquired by one of them through gratuitous transactions; whether the property was acquired after the termination of the marriage relationship.

Let's consider one example of judicial practice in which a problem arose regarding the determination of the common property of spouses.

In 1994, Alekseev filed a lawsuit against Alekseeva for divorce and division of property acquired during the marriage, including the VAZ-21063 car.

Alekseeva considered the car not to be included in the joint property of the spouses, since in 1992 it was allocated to her at work as a production leader for 100 thousand rubles, with its actual value at that time being 430 thousand rubles.

On October 26, 1994, the Krasnoarmeysky District Court of the Volgograd Region dissolved the marriage between the Alekseevs and divided the property, allocating the car to the defendant. In this case, the court proceeded from the fact that the total funds of the spouses for its acquisition amounted to? from the cost of the car.

On November 30, 1994, the Judicial Collegium for Civil Cases of the Volgograd Regional Court canceled the decision of the district court regarding the division of property and sent the case for a new trial.

When re-examining the case on January 23, 1995, the same district court found it possible to transfer the car to Alekseev at its actual value for that period of 8,144,860 rubles, citing the fact that the car is the total joint value of the spouses, since payment for it was made at the expense of the common funds of the spouses, and the circumstances of receipt of the car indicated by the defendant are not the basis for recognition of Alekseeva’s personal property rights. Taking into account the difference in the value of Alekseeva’s property allocated by the parties in the case, monetary compensation was determined at Alekseev’s expense.

On July 21, 1995, the Presidium of the Volgograd Regional Court canceled the decision of the district court of January 23, 1995 and sent the case for a new trial.

As the presidium of the regional court admitted, when overturning the court's decision, the court of first instance incompletely determined the list of things constituting the property of the spouses to be divided, and also did not take into account the fact that the car was given to the defendant as a gift by the factory for long-term work with payment? car cost.

When the case was reconsidered on April 4, 1996, the same court allocated the car to the defendant for the reason that was indicated in the decision of the presidium of the regional court, determining its value in the amount of 31,835,700 rubles.

The case was not considered in cassation.

The Deputy Chairman of the Supreme Court of the Russian Federation in protest raised the issue of canceling the decision of the Krasnoarmeysky District Court of April 4, 1996 as decided in violation of substantive law.

On February 10, 1997, the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation satisfied the protest on the following grounds.

In accordance with both the previously existing legislation (Articles 20-22 of the Code of the Russian Federation), and with the currently valid Art. 34, 36, 38 of the Family Code of the Russian Federation, property acquired by spouses during marriage is their joint property. Property that belonged to spouses before marriage, as well as property received by one of the spouses during marriage as a gift, by inheritance or through other gratuitous transactions, is the property of each of them. When dividing common property, the shares of spouses are recognized as equal.

From the case materials it is clear that the car about which the dispute arose was allocated to Alekseeva according to her work schedule for 100 thousand rubles, with the cost of the car being 430 thousand rubles as an incentive for long, conscientious work in connection with the 35th anniversary of the enterprise. This circumstance was not denied by the plaintiff. At the same time, Alekseeva did not dispute her ex-husband’s claims that the 100 thousand rubles she paid for the car was a loan from Alekseev’s place of work, and recognized this amount as their common funds.

Under these circumstances, the court’s conclusion that the car is Alekseeva’s property cannot be considered correct, since the court did not assess the fact that it was purchased with the joint funds of the spouses. The court also did not take into account that the purchase of Alekseyeva’s car at a discounted price at her place of work does not indicate that it was transferred to the defendant free of charge as a gift and, therefore, should be recognized as her personal property.

Thus, the decision of the Krasnoarmeysky District Court of April 4, 1996 is subject to cancellation, and the case is sent for a new trial.

When dividing property, the shares of the spouses are recognized as equal, but derogations from this right are possible on the basis of clause 2 of Art. 39 RF IC. The size of shares in these cases is determined by the court based on the circumstances of the case. When deciding on a deviation from the principle of equality of shares or on the priority of one of the spouses in the transfer of specific property, the court in its decision is obliged to provide relevant reasons.

At the request of one of the parties, a limitation period may be applied. The beginning of the calculation of its term is associated with the time when the person learned or should have learned about the violation of his right. It is not always associated with the moment the marriage ends.

During division, the common debts of the spouses are distributed between them in proportion to the shares awarded to them. When a foreign element participates in the relationship, the legislation of the state in whose territory they had joint residence is applied, and in the absence of such, the law of the state in whose territory they had their last joint residence. If the spouses did not have one at all, Russian legislation is adopted.

The court's decision to divorce must be legal and based on evidence that has been comprehensively verified in court.

The operative part of the court decision on the division of common joint property should indicate what specific property is transferred to each of the spouses (former spouses), the value of the property (including things), the amount of compensation (if it is paid), an indication of the termination of the right of common property and other court decisions in accordance with the subject of the claim. If the property is not subject to division in kind and the law does not allow payment of compensation without the consent of the spouse (former spouse), it is necessary to indicate the size of the shares in the ownership of the property. It should be borne in mind that without the consent of the spouse (former spouse), payment of compensation is possible in cases where the share is insignificant, cannot be realistically allocated, and there is no interest or need to use this property.

The judges of two instances, who incorrectly interpreted the norms of substantive law when dividing the property of former spouses, were corrected by the Supreme Court of the Russian Federation in a case that was included in a new 160-page review of the judicial practice of the Supreme Court for the current year.

As the Supreme Court notes in the chapter devoted to the analysis of the practice of the collegium in civil cases, the regime of common joint property of the spouses does not apply to property acquired during marriage, but to funds that belonged to one of the spouses personally.

U. filed a lawsuit against P. for the division of jointly acquired property, citing the fact that he was married to P. During the marriage, under a purchase and sale agreement, the spouses acquired an apartment in joint ownership. Since a marriage contract was not concluded between the parties, an agreement on the division of jointly acquired property was not reached, U. asked to divide the apartment between him and P. and recognize his ownership of 1/2 shares in the right of common shared ownership of the disputed apartment.

The defendant P. did not recognize the claims, she asked to recognize the plaintiff’s right of ownership to 1/15 of a share in the right of common shared ownership of the disputed apartment, and for her the right of ownership to 14/15 of a share, taking into account the purchase of the apartment with the defendant’s personal funds in the amount of 1 750,000 rub.

The court found that since December 23, 2010, U. was married to P. During the marriage, on the basis of a purchase and sale agreement dated February 11, 2011, the spouses purchased an apartment, the right of joint ownership of which was registered with them on March 10, 2011. The price of the purchased apartment was 1,995,000 rubles.

As it was established during the consideration of the case and was not disputed by the parties, part of the funds in the amount of 1,750,000 rubles spent on the purchase of this apartment was received by P. as a gift from P.L. (P.’s mother) under a gift agreement dated 11 February 2011. This amount was received by P.’s mother from the sale of an apartment that belonged to her. All of the above transactions were completed on the same day - February 11, 2011.

The marriage between U. and P. was dissolved on October 9, 2014. The division of the spouses’ property after the dissolution of the marriage was not carried out between the parties.

Resolving the dispute and satisfying the claims for the division of the disputed apartment between the spouses in equal shares, the court of first instance proceeded from the fact that an agreement was reached between the parties to purchase the apartment into common joint ownership, and since the funds received as a gift were contributed by P. on her discretion for the common needs of the spouses - the purchase of an apartment, then this property is subject to the regime of joint ownership of the spouses.

The appellate court agreed with the findings of the trial court.

The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation recognized that the conclusions of the courts were made in violation of substantive law.

In accordance with Art. 34 of the RF IC, property acquired by spouses during marriage is their joint property. Property acquired by spouses during marriage (common property of spouses) includes the income of each spouse from labor activity, entrepreneurial activity and the results of intellectual activity, pensions, benefits received by them, as well as other monetary payments that do not have a special purpose (amounts of material assistance, amounts paid in compensation for damage due to loss of ability to work due to injury or other damage to health, and others). The common property of the spouses also includes movable and immovable things acquired at the expense of the spouses' common income, securities, shares, deposits, shares in capital contributed to credit institutions or other commercial organizations, and any other property acquired by the spouses during the marriage, regardless of whether in the name of which of the spouses it was purchased or in the name of which or which of the spouses contributed funds.

In accordance with paragraph 1 of Art. 36 of the RF IC, property that belonged to each of the spouses before marriage, as well as property received by one of the spouses during marriage as a gift, by inheritance or through other gratuitous transactions (the property of each spouse), is his property.

As the court established, the source of acquisition of the disputed apartment was the funds received by P. in a gratuitous transaction, as well as partially jointly acquired funds of the spouses.

According to the explanations contained in paragraph four of clause 15 of the resolution of the Plenum of the Supreme Court of the Russian Federation of November 5, 1998 No. 15 “On the application of legislation by courts when considering cases of divorce,” property acquired, although acquired during marriage, is not jointly owned. on the personal funds of one of the spouses that belonged to him before marriage, received as a gift or by inheritance, as well as personal items, with the exception of jewelry and other luxury items.

From the above provisions it follows that a legally significant circumstance when deciding whether to classify property as the common property of spouses is what funds (personal or general) and through what transactions (compensated or gratuitous) the property was acquired by one of the spouses during the marriage. Property acquired by one of the spouses during marriage through gratuitous civil law transactions (for example, by inheritance, donation, privatization) is not the common property of the spouses. The acquisition of property during marriage, but with funds that belonged to one of the spouses personally, also excludes such property from the regime of common joint property.

At the same time, the court mistakenly ignored such a legally significant circumstance as the use of funds that belonged to P. personally to purchase the disputed apartment.

In concluding that the disputed apartment belongs to the joint property of the spouses, the court proceeded from the absence of conditions in the purchase agreement regarding the distribution of shares in the apartment.

At the same time, the court did not take into account that the funds received by P. as a gift in the amount of 1,750,000 rubles. and spent on the purchase of the apartment were the personal property of P., since they were not purchased jointly during the marriage with the plaintiff and did not constitute the common income of the spouses.

Contribution of these funds to purchase an apartment does not change their nature as P’s personal property.

Thus, the parties’ shares in the ownership of the apartment were subject to determination in proportion to the defendant’s invested personal funds and the joint funds of the parties.

This was not taken into account by the courts and resulted in the issuance of illegal court decisions (definition No. 45-КГ16-16).