How to file a claim for division of property after divorce. How to apply for division of joint property after divorce

Almost every second marriage breaks up. And this is due to various reasons. Perhaps someone did not fit the character, or perhaps someone simply could not withstand family life.

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But in any case, the situation is accompanied by a division of property. So how does all this happen?

General information

After all, during this period of time, witnesses forget about it, and purchase receipts are lost. They will no longer be able to prove the correctness of each of the spouses, and accordingly there will no longer be legal documents for confirmation.

Another reason to speed up the process is that all property loses its value after a certain time. And the more time passes, the less money the plaintiff will receive.

As an example, consider the same car. As a rule, only one person in a family uses it. Accordingly, in a divorce, the car goes to the person who drove it. And the other party receives nothing, only compensation from the cost of the car. And if it is an old car, then the amount will be minimal.

There is no point in delaying the division of property. This is also due to the statute of limitations. In accordance with the Russian Federation, it was 3 years from the date of divorce proceedings.

If this is a section where the transaction is contested, then the period is completely reduced to a year.

There are certain features after divorce. For example, the sale of such property is possible without the written consent of the spouse. An action of this kind can only be prohibited through judicial proceedings. And in the best case, here you can recover half of the cost of selling the property.

As a rule, the total cost is underestimated in order to save on taxes. Often the cost becomes lower than the market price.

The legislative framework

This issue is regulated by the RF IC. It is he who provides for the possibility of dividing acquired property after divorce proceedings on the initiative of any person, including the creditor:

• Art. 38 of the RF IC regulates the ease of foreclosure by any creditor on the total share of jointly acquired property.
• Part 7 art. 38 of the RF IC stipulates the limitation period for issues of this type.
• Art. 205 of the Civil Code of the Russian Federation regulates the issue of restoring the period of claim for specific reasons.
• Part 2 Art. 38 of the RF IC regulates the voluntary procedure for dividing property of spouses.
• Part 3 Art. 38 of the RF IC regulates the dispute and the procedure for resolving it in court.
• Article 39 of the RF IC stipulates the possibility of receiving an additional share for a minor child or other dependent.

What can be divided?

Article 34 of the Family Code clearly regulates the issue of what exactly is to be divided between spouses. It states that all property acquired by spouses during marriage becomes the property of both parties.

Accordingly, each party has the right to claim this property. This allows the court to resolve controversial issues.

This could be income from work (salary), deposits, shares in business and real estate, cars and even cutlery. And it doesn’t matter in whose name the property was purchased. Everything will still be considered jointly acquired property.

But every person should know that there are several nuances that limit the actions of spouses. For example, not everything can be divided, even if these things were acquired during marriage.

Article 36 of the Family Code stipulates these restrictions:

• all acquisitions under a gift agreement, for example, if an apartment was donated under such a document, then it remains with the person indicated in the document;
• any kind by will;
• intellectual works and personal belongings.

It is also impossible to divide children's things belonging to a child born in marriage. This includes toys, school supplies, and personal items.

These things are not shared, but must be transferred to the citizen with whom the child will live. Even bank deposits belonging to the child will remain at the same level. And this applies even to those deposits that were replenished by the other spouse.

Many people are interested in the question of how property in the form of a privatized apartment is divided. This is a very complex issue that not even many lawyers can explain.

Division of property is possible only if basic conditions are met. If during the marriage this property was privatized, then the spouses should figure it out on their own, that is, whether the apartment will remain with one owner or will become the property of both.

All such subtleties can be explained by a highly qualified family law lawyer. Often such a conflict can only be resolved in court. But you should not think that spouses receive only material benefits. All loan obligations are also divided equally between the spouses.

How to file for division of property after divorce?

Many citizens who have decided to take this action want to know how to file for division of property after a divorce.

It is necessary to familiarize yourself with this issue in advance. This will avoid conflict situations and misunderstandings.

Where to contact?

You must contact the district or magistrate court. As a rule, the application takes place at the place of registration of one of the spouses.

In the magistrate's court, consideration occurs if there is property whose value does not exceed 50,000 rubles.

But a claim with a value higher than this indicator is considered in the district court.

You can only file a claim in the district court, even if the value of the claim is less than the amount presented. The main condition in this case is that the claim contains other demands that are considered by this authority. For example, determining the place of residence of a common child, collecting alimony.

As a general rule, a claim is filed at the place of registration of the defendant. And if the claim contains an additional requirement, for example, for the collection of alimony, then you can submit an application at the place of registration of the plaintiff.

Deadlines

Must be submitted as soon as possible. Otherwise, there is a possibility of not receiving the property due to the statute of limitations.

According to general rules, this period can be counted from the moment of registration of divorce.

Procedure

The procedure is a special algorithm that allows you to save money and time to get what you want.

The action is accompanied by several features that every person should know.

List of documents

Submitting an application for division of property is accompanied by the mandatory attachment of documents. In particular, you need to attach:

• document confirming the identity of the applicants;
• birth certificate of all common children;
• certificate of divorce and marriage;
• title documents for property acquired before marriage;
• title documents for property acquired before marriage;
• other documents;
• receipt confirming payment.

Its cost is determined based on the value of the claims.

Filing a claim

– the main document on the basis of which the verdict is announced. And the decision of the court depends on how correctly it is drawn up.

Here you need to carefully work out the thought and argue your point of view. You need to justify and prove your case.

Writing rules:

• You must initially write a header - the name of the court, information about the plaintiff and defendant, the cost of the claims;
• then follows the name of the document - statement of claim for division of property;
• the main part contains information about the place of marriage and divorce, the presence of children, the presence of previously divided property, a list of jointly acquired property;
• argumentation in the form of legislation;
• the claims are described - a list of property, shares, amount of compensation;
• date of claim and signature of the plaintiff.

State duty

Naturally, such an action is accompanied by a state duty. This is a mandatory payment that is made before filing a claim.

Without confirmation, the claim remains without progress, so it is necessary to keep a document confirming its payment. If this document is not attached, the statement of claim is automatically returned.

The cost of the procedure is calculated based on the claims. That is, the value of the property and the amount of recovery are taken.

The formula is taken from the Tax Code. There is also the possibility of deferred payment due to the impressive amount of state duty.

Judgment

The trial in 2019 is taking place in public. That is, all interested parties, including witnesses, can be present.

The court listens to arguments, considers evidence, and ensures the protection of property through seizure. This allows you to limit the actions of both parties. And no one will be able to sell or donate the property.

The court also has the right to order an independent examination, which will allow the property of the spouses and its individual parts to be assessed.

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

How to apply for division of property

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

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

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

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

Calculation example:

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

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

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

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

If the application for division is filed outside the established period, the court may refuse to consider the dispute and close the case.

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

The division of property can be carried out both during an official marriage, and simultaneously or after its dissolution in the registry office or court.

How to file an application for divorce and division of property

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

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

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

Mandatory copies of attachments to the application:

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

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

Procedure for filing an application for division of property

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

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

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

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

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

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

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

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

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

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

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

Consideration of an application in court for division of property

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

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

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

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

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

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

Counterclaim for division of property: rules for filing

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

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

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

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How to correctly divide property is one of the most important issues facing a married couple during a divorce. In rare cases, it is possible to reach an agreement without conflicts. If this problem cannot be resolved in a coordinated manner, it becomes necessary to go to court.

There are the following options for deciding on the division of property:

• Negotiated – a peace agreement is concluded;
• Judicial.

It is necessary to go to court if the divorcees have not agreed on how to divide the property themselves. In this situation, one party who does not agree with the other's division plan must file a lawsuit in court. This option is more costly and time-consuming than concluding a peace agreement, but it helps resolve the conflict situation. A claim for divorce must also be considered in court if there is a child.

It is important to know where to file for division of property. The application to the court is given at the location of the defendant. If the claim includes real estate, then the application is submitted at its location. If there are several objects located in different localities, an application can be submitted at the location of any one.

Applications worth up to 50 thousand rubles. considered by the magistrate. Claims with a higher cost are filed in courts of general jurisdiction of constituent entities in Russia.

Division of property during divorce and after divorce - statute of limitations

Most often, the division of property is carried out simultaneously with the divorce process. But it is not uncommon for a lawsuit to be filed after a divorce. For such cases, there is a statute of limitations of 3 years. During this period, you can file a claim and divide the property through the court. The period can be extended if there are valid reasons provided for by law.

How to divide property without divorce

If a married couple does not plan to divorce, but there is a need to delimit ownership rights between them, you can choose one of the following options:

• A prenuptial agreement is the best way to delimit property in a marriage. It will take an hour to sign it with a notary. It is very important to compose it correctly. A lawyer will tell you how to draw up a document so that the rights of the husband and wife are not violated;
• An agreement drawn up regarding a specific piece of property is a convenient document for dividing real estate. For example, when buying an apartment, the husband contributes 80% of the cost of housing, and the wife 20%. By drawing up an agreement and dividing their shares in a ratio of 8:2, you can easily resolve the issue of this property in a divorce;
• Application for division of an apartment - submitted by a husband or wife when controversial issues arise when one of the parties claims their part in it.

What is the deadline for filing for division of property?

Submission of documents is carried out:

• In the process of living together in marriage;
• During a divorce;
• For 3 years after divorce or violation of the rights of one of the parties.

Limitation periods

According to paragraph 7 of Art. 38 of the RF IC, a statute of limitations of three years applies to property claims. It begins from the moment one party violated the other's rights to property.

Such violations may be associated with:

• Independent alienation of common property without the permission of the other spouse as a result of transactions related to exchange, donation, sale;
• The inability of one of the parties to access common property due to obstacles arising due to the fault of the other;
• The emergence of disputes regarding the use of common things.

The judge assesses the violation of rights, and the decision may depend on his internal beliefs.

The statute of limitations may be temporarily suspended if the injured party was unable to defend its rights at the trial for good reason. The list of such reasons is prescribed in Art. 202 of the Civil Code of the Russian Federation.

Application for division of property, sample

The application must clearly formulate the requirements and include:

1. Full name of the judge/name of the court;
2. Full name of the plaintiff, residential address;
3. Full name of the defendant, his place of residence;
4. Amount of claim;
5. Date and place of marriage registration;
6. Information about the beginning of separation;
7. Data on whether the defendant agrees to the divorce;
8. Information on the number of children, their ages, with whom they will live after the divorce.

The main part states:

• Reasons for applying;
• Plaintiff's evidence;
• Request for division of property of a married couple;
• Signature and date.

In the text, the plaintiff describes in detail what property is included in the total assets, forms and substantiates his claims.

In addition to the application, you must prepare the following documents:

• List of common property, its value;
• Papers that confirm the right of ownership;
• Receipt of paid duty;
• Divorce certificate;
• Marriage certificate;
• Papers about the birth of children, certified by a notary;
• Passport.

Additional information about the statement of claim can be found here.
You can download it below.

Claims and disputes

After submitting the application, preparations for the consideration of the case take place and evidence is collected.

The procedure for considering a case in court usually occurs in the following order:

1. Determination of the total cost of the claim, preparation, collection of evidence;
2. Division of property according to the principle of equal shares;
3. Clarification of the circumstances, if necessary, the allocation of unequal shares;
4. The court's decision.

The basis for resolving substantive legal issues in court when resolving disputes is the Family Code (FC) of the Russian Federation.

Civil law applies to family issues not regulated by the UK. Resolution of the Supreme Court of Russia No. 15 of November 5, 1998 clarifies some of the rules for the division of property of the Family Code.

In order for property disputes to be resolved fairly, all aspects must be taken into account. A lawyer will help you defend the rights of your wife or husband in court.

What property is divided

Not all property acquired by a couple during marriage will be divided equally between them after marriage. The law divides property into:

• Personal, not subject to division after;
• Jointly acquired property is divided among the divorced.

The division does not depend on to whom the jointly acquired property is registered and who earned more; the main fact for the division of property is that it was acquired during marriage.

According to Art. 39 of the Family Code, joint property is divided in half between divorcees. Judicial practice shows that in most situations the court makes a decision to allocate equal shares to each spouse. Even if someone in a married couple did not earn money for a good reason (caring for children, taking care of the household), he will receive his half of the property. The division of property registered in the name of one spouse also occurs on the principle of equality of shares.

But there are exceptions in civil cases: under certain circumstances, the share of one of the parties can be increased.

Increasing the spouse's share when dividing property

The reasons for the increase in the share may be:

• Living with children who have not reached the age of majority;
• The presence of severe or chronic illnesses, especially those related to family responsibilities. For example, in order to earn money for housing, the husband was forced to work several jobs, which is why he acquired a chronic disease, which now requires expensive treatment;
• Fulfillment of debt obligations by only one of the spouses.

Reducing the spouse's share

Reasons that reduce a spouse's share may be:

• Failure of the husband or wife to receive income, evasion of employment if they have the strength and opportunity to work;
• Negligent attitude of one of the parties towards the common property, which led to its damage, depreciation or loss;
• Concealing expenses that were not used for the benefit of the family;
• Alcoholism, drug addiction or immoral behavior that caused family debt.

Debts upon division

During a divorce, not only jointly acquired property is divided, but also debts. Common debts are:

• Obligations in which both spouses are borrowers. Examples of such loans: husband and wife are co-borrowers on the loan, or one of them is the borrower, and the second is the guarantor;
• Debts of one of the spouses, with the condition that the money received from it was spent on family needs.

In the second case, there are often controversial situations. You can prove that the loan was taken for family needs by presenting documents for purchased items or a voucher. It is more difficult to prove that the loan money was not spent on the family. Evidence may be income statements, bank statements, or other information.

There are situations when a loan is taken after the end of a relationship. In this case, the second spouse must prove the actual end of the family relationship before the debt arose.

In Art. 38 part 4 of the RF IC states that if the spouses at the time of receiving the loan did not run a common household and did not live together, then only the spouse who took it will pay the debt.

How is property divided if there are children?

In a marriage with children, the procedure for dividing property differs slightly from the court process without them. There is no share of children in the joint property of the spouses, since they do not have the right to the property of their parents. The exception is those things that were bought specifically for the child and which he constantly uses.

• Furniture items;
• Kids' things;
• Books;
• Toys;
• Instruments for music lessons;
• School materials;
• Tools for sports.

These supplies go to the parent with whom the child will live. Things and possessions registered in the name of the child remain with him, are not divided between the parents and are not compensated.

The presence of minor children may influence the judge's decision to increase the property of the spouse with whom they remain. But such a decision is more the exception than the rule.

It may be adopted to protect the rights of the child. But, if the second parent is obliged to pay child support, then most likely the property of the divorcing couple will be divided in half.

Property that is not divided during divorce

Non-common property that is not divided during a divorce includes:

• Things and possessions received before marriage;
• present;
• inherited items;
• property received through gratuitous transactions;
• things for individual use: clothing, shoes, jewelry, with the exception of luxury items and jewelry;
• the right to receive results from intellectual work.

Agreement on division of property, how to draw it up correctly

The division of property will be faster and easier if the divorcing parties agree among themselves and write down the agreements reached on paper, notarized.

The conclusion of a peace agreement relieves the parties from paying state fees when dividing property.

The property division agreement includes:

• Date and place of detention;
• Full name of the spouses, their place of birth, passport details;
• List of divisible property;
• The ratio of the shares in which the division occurs (1/2, 1/3);
• List of things that pass into the possession of the wife and husband;
• An indication that the property is not subject to seizure or other restrictions;
• Effective date;
• Number of copies;
• Signatures of the parties.

When dividing real estate, the agreement specifies its characteristics: square footage, floor, location. If a car is divided, then its number, make, and color are written down. The agreement can specify the division of common debts (loans, mortgages, etc.).

If real estate is divided, then the transfer of ownership or change in shares in ownership must be registered with Rosreestr, otherwise the division will not be considered officially formalized.

Hiding property from a spouse: how to identify it

Practice shows that the lack of agreement between husband and wife leads to conflicts. Against this background, an unscrupulous party may try to hide common property.

The most common ways are:

• Concealment;
• Registration for relatives and friends;
• Sale of joint property without the consent of the husband or wife.

To avoid the sale of a vehicle or other property before the court divides, these items are seized until a decision is made.

What to do if the property is registered in the name of another person

If the right of ownership is illegally registered in the name of another person, it is possible to file a new claim to challenge the fictitious transaction.

You will need to provide the following evidence:

• Money for the purchase was taken from the family budget;
• The owner did not need this item;
• He did not have the financial ability to purchase it;
• The items were used by family members, and the costs of maintaining them were paid from the family budget.

During the proceedings, it is worth suspending the case regarding the division of property, since the results of a new claim may affect the size of the shares received by the divorced persons.

Results

If the couple decides to divorce, then you need to consider the following tips:

• To reduce waste of money and time, it is better to draw up a peace agreement certified by a notary;
• If it is impossible to reach an agreement peacefully, it is necessary to file a lawsuit. To defend your rights in court you will need legal assistance;
• It is better to divide property immediately during the divorce process, so that one of the parties cannot illegally carry out transactions with common property;
• After the trial is over, it is necessary to preserve all documents in case the spouse decides to file a counterclaim.

Filing a claim for division of property in court is the only way out for spouses who were unable to peacefully agree on who and what of the jointly acquired property will get after the divorce. The reason for this inability to agree may be that one spouse wants to receive more than half, and is completely sure that he has the right to this. Or something from the common property is so dear to both spouses that they are ready to fight in court for the right to possess it after a divorce.

Before filing for division of property after a divorce, spouses need to think carefully about their actions, remember what common property they have, when and how it was acquired, what exactly they want to claim, and evaluate their chances.

What is shared and what is not

Article 34 of the Family Code of the Russian Federation states that all property acquired by spouses during their marriage is their joint property. This includes income from work, cash deposits, securities, shares in business, as well as all material assets, from apartments and cars to glasses and spoons. It doesn’t matter whether they are registered in the name of the husband or wife, they will still be considered common. Even if one spouse did not work and did not receive his own income during the entire period of cohabitation.

Spouses also need to take into account that almost any family has property that cannot be divided during a divorce, because it will be the personal property of one of them, even if it was acquired during the period of their marriage (Article 36 of the RF IC):

• acquired under a gift agreement (this is a question that worries many people),
• left as a legacy
• personal items (clothes, shoes, hygiene products..), with the exception of jewelry and luxury items,
• the result of individual intellectual work.

You cannot divide things that belong to children born in marriage - toys, clothes, school supplies, etc.. This property will not be taken into account when dividing property, but must be transferred to the spouse with whom the child will live. Even the money in bank accounts in the children's names will remain theirs.

When to file a claim for division of property

There is no need to delay the division of property! Time is money, and the more time passes from the moment of divorce, the more elusive the chances of successfully suing for property become.

Some spouses, already divorced, are in no hurry to decide the future fate of the property acquired together: they cannot agree on the division, they still hope for reunification, they do not want to deal with paperwork, etc. Each has their own reason. Meanwhile, the law (Article 38 of the RF IC) does not prohibit filing a claim for division of property:

• after a divorce, when the dissolution of the marriage has already been registered, but the property is still shared,
• during the divorce process, when issues of divorce and division of property are simultaneously resolved in court hearings,
• at any time during the marriage.

When filing an application, spouses who have already divorced must take into account the statute of limitations for dividing property during a divorce. It lasts for three years and does not prohibit filing a claim in court regarding the division of property even after its completion, but does not guarantee its acceptance by the judge for proceedings.

Limitation period for division of property after divorce: from when

As a general rule, it is customary to count it from the moment of registration of divorce. That is, after three years have passed from the date of receipt of the divorce document, it is too late to file a claim for division of property in court.

It is worth considering: the statute of limitations begins to count when access to property is obstructed. Only from now on!

In paragraph 19 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 15 “On the application of legislation by courts when considering cases of divorce” dated November 5, 1998, the moment when the statute of limitations begins to run is recognized as the time when one of the spouses learned or could have learned that his the right to own joint property has been violated. And in practice, when calculating the limitation period for a claim, courts refer specifically to this Plenum.

Sometimes the moment of divorce coincides with the moment of violation of the right to property, but not always. Then the spouses have the opportunity to file a claim for division of property after the divorce and more than three years later, if they prove that they learned about the violation of their rights much later.

Where to file a claim

The statement of claim for the division of property is sent by territoriality to the judicial body in the area in which the defendant lives. If real estate is planned to be divided in court, then the application is written at the location of this property.

Some facts

If you have filed a statement of claim and it contains a demand for divorce or alimony, then you can determine the territorial jurisdiction of this case yourself. That is, you can take the statement of claim to your place of residence. (this is regulated by paragraphs 3, 4 of Article 29 of the Code of Civil Procedure of the Russian Federation)

All claims for division of property worth up to 50,000 rubles are accepted and considered by magistrates. More “expensive” claims are dealt with in courts of general jurisdiction of a district, city or constituent entity of the Russian Federation.

How to write a claim correctly

In form, the sample application for division of property during a divorce resembles a divorce claim, but it is very important to draw it up correctly and reflect the necessary information. Therefore, spouses often turn to the help of experienced lawyers on this issue. After all, one wrong word or phrase in a claim can distort the plaintiff’s demands and deprive him of the opportunity to get what he wants.

In the upper right part the name of the court, last name, first name, patronymic, residential address of the plaintiff and defendant, the price of the claim (the total value of all property that is supposed to be divided) are indicated.

The text of the application contains the following information:

• date of marriage,
• the date when the marriage was dissolved (or when the claim for its dissolution was filed, at what stage the divorce process is at),
• the division of property has not been made previously, no agreement has been concluded, the spouses cannot independently agree on the division of property,
• a list of property acquired during the marriage that is subject to division: name, distinctive features, links to acquisition documents, cost of each item, total value of all property,
• reference to Article 39 of the RF IC stating that property must be divided in equal shares, or a requirement for division in other shares with justification (living with common children, disability, etc.),
• a list of property that the plaintiff wants to receive into his ownership, name, total cost, giving reasons indicating that he needs it more and is interested in receiving it,
• list, names, total value of the property that should go to the defendant, an indication of the reasons why it should go into his ownership,
• reference to compensation in the event that the value of the share of property of one spouse exceeds the value received by the second,
• in the operative part – the plaintiff’s demands set out in the text of the application, a list of documents attached to the claim, signature and date.

You will find a sample application for division of property during divorce when you read the material to the end.

The claim is accompanied by a mandatory package of documents:

• marriage certificate (or a copy of the marriage record, if it has already been terminated),
• certificate of divorce (if already received), or
• court decision on divorce,
• documents for the property subject to division, specified in the claim (registration certificates, PTS, sales contracts, coupons, checks, etc.),
• report on an independent assessment of property (if carried out),
• receipt of payment of state duty,
• other documents at the discretion of the plaintiff or at the request of the judge.

What does the court consider when considering a claim?

The courts have a long-established practice of considering cases of division of property, enshrined in law in Article 39 of the Family Code of the Russian Federation - all of it is divided in equal shares by each of the spouses. And if it is not possible to divide exactly in half, then compensation in a similar amount is collected from the one who receives the larger share in favor of the deprived.

There are cases when it is possible to convince the judge that one spouse has rights to more than half of the property. But such cases are rare and even unique. This is associated with raising common minor children or misuse of common funds during marriage (Article 39 of the RF IC).

When determining which spouse will receive what from their common property, the judge must hear both sides regarding which of them needs what more. The following will be taken into account:

• income of each spouse,
• accommodations,
• occupation,
• with whom the children remained to live after the divorce,
• health status,
• participation of each spouse in the costs of acquiring common property, etc.

The court will also divide the debts of the spouses that arose during the marriage, in proportion to the shares of property received by each of the spouses.

The ideal way to resolve a claim for division of property after a divorce is through a settlement agreement.

It can be concluded at any stage of the judicial consideration of the claim before the court retires to the deliberation room. A settlement agreement is concluded when the spouses, during the course of litigation, come to a common decision regarding the division of property, to an option that suits both parties. In this case, it is not at all necessary to divide the joint property strictly in half; it will be divided in a way that suits both spouses.

Legal help wouldn't hurt

Court cases on property disputes, including cases on the division of property of spouses, are the most complex category of cases. Judicial proceedings on them can drag on for many months. And often the reason for this is insufficient knowledge of the laws, the inability to see the nuances, and simply a lack of practice.

Therefore, it would be a good idea to seek help from experienced lawyers when filing a claim for division of property. Or you can even issue a power of attorney for the right to represent your interests in court in a case.

There is a lot that needs to be taken into account: so that the divisible property does not end up being sold, lost, or destroyed by an unscrupulous spouse before a court decision is made; so that the value of the second spouse’s share of property is not artificially underestimated or his share is overestimated due to cohabitation with common children, etc.

Spouses, although former, sometimes continue to have good feelings for each other, and one of them will be able to play on this, trying to get what they want from the common property. The participation of a representative in the case will help avoid such situations.

If you still have questions about how to correctly file a claim for division of property during a divorce, then ask them in the comments