Division of property after divorce, statute of limitations for loans, apartment, car and other material assets. Division of property after divorce, statute of limitations for loans, apartment, car and other material assets Where does the countdown come from?

Good evening! My husband and I have been divorced since 2003. after that he was married again, today he is divorced, now he demands the exchange of the apartment in which I live with our children (adults), he is not registered in the apartment and he does not have a share in the apartment, but the apartment was bought in our joint marriage. Does he have the right to divide this property, i.e. apartments?

Answer

According to paragraph 7 of Article 38 of the Family Code of the Russian Federation, a three-year statute of limitations applies to the claims of spouses for the division of common property of spouses whose marriage is dissolved. But this period begins to run not from the moment of divorce, but from the moment when the former spouse learned about his violated rights. Therefore, if the rights of your ex-husband were not violated, then this period did not begin to run.

Therefore, you should definitely file a motion to apply the statute of limitations. In this case, the court will most likely refuse to satisfy the claim for division of property. If you do not file this petition, then when the case is considered, the judge will have the right to grant it.

Last updated July 2019

According to statistics, about 40% of divorces occur in the first 4 years of marriage. More than 15% occur at the very beginning of married life and, unfortunately, young families do not have time to live together even for 1 year. And one of the very first questions that arises during a divorce is how to divide property.

Division of joint property after divorce

Joint property- based on the norms of Article 256 of the Civil Code of the Russian Federation, we can conclude that all property that was purchased by spouses at the time of marriage is jointly acquired (except for circumstances when the marriage contract signed by them establishes a different regime for these things). Cm. .

Article 34 of the Family Code of the Russian Federation states that all income received by each spouse in any way is their joint property. Property that is common also includes: securities, shares, shares in the authorized capital of enterprises, real and movable things, deposits and other property acquired by the wife and husband. In this case, it does not matter at all to which of them this property is registered.

The division of property during a divorce can occur:

A conflict-free solution - an amicable agreement between the spouses

If both parties agree to an out-of-court settlement of the issue and there is no conflict between them, then they enter into a corresponding written document (), in which they indicate the shares of each party and notarize it. If the agreement is left in simple written form, it will not have legal force. Such a document will not work anywhere, including in court. Since December 29, 2015, Federal Law No. 391-FZ established that it is mandatory must be notarized.

Through the court

If, however, the former spouses cannot independently agree on who takes what things, then the matter comes to court. When resolving a conflict in court, the court initially determines the composition of the property suitable for division, and then allocates a part of each spouse.

But if one of the parties receives property, the price of which significantly exceeds its legal share, then the court may oblige this party to pay the former spouse material compensation (compensation) in cash or other form.

Example: At the time of marriage, the husband bought a rare painting by a famous artist, which cost more than 1,500,000 rubles. The wife was not against the transfer of this property to her ex-husband, provided that the court ordered him to pay compensation to his ex-wife in the amount of 200,000 rubles.

Division of property in court

Stages of division of jointly acquired property in court:

• Establishment of the property of each of the former spouses.
• Determining the share of each of them.
• Separation from the common property of those things that each party wants to take for themselves.
• Determining the amount of compensation to either spouse in case of unequal distribution.

The list of things is determined in accordance with the interests of the spouses and their children. When dividing, the principle of equal division of property is observed. However, taking into account life circumstances, the judge may deviate from equality (cases where children remain after marriage with one of the parents or one of the parties does not have a job without specifying good reasons). In these situations, the principle of decreasing or increasing the share applies, which must be justified in court.

Increasing the spouse's share

The reasons for increasing the share of one of the spouses may be:

• minor children who were left to live with him,
• his illness or permanent disability, especially if it arose during marriage and is associated with the performance of duties as a family member. For example, the husband took two jobs to raise money for the child’s expensive operation, as a result of which, due to general fatigue and overwork, he developed a heart disease and is now forced to undergo constant treatment.
• fulfillment of obligations by one spouse for common debts. Example: The family received a loan from a private person, but due to their unsatisfactory financial situation, they were unable to repay it. In order to avoid litigation, the accrual of interest and fines, the wife, who is a painter, performed finishing work in the creditor's home to repay the debt.

The domestic work of a spouse who is not working at the time of marriage and is running a household or caring for children, who due to extenuating circumstances could not have his own income, will be the basis for receiving a share in the joint property.

Reducing the spouse's share

A reduction in the share is possible if unjustified reasons are established:

• non-receipt of income by the spouse due to unwillingness to find a job;
• careless and negligent attitude of the husband or wife towards the property, which led to a decrease in its value, complete or partial destruction;
• irresponsible, antisocial behavior of the spouse, leading to common family debts. Eg: The couple checked into the hotel on a package tour. The husband, while drunk, damaged property in the room for a large sum. Reimbursement of hotel administration expenses was made from general money.

What about debts?

If the former spouses have debts, then they will also be divided in proportion to the awarded shares (see details and).

But it should be borne in mind that if we are talking about an administrative, criminal or other offense, then responsibility for debts arising due to such acts is assigned personally to the culprit.

How to divide indivisible things

It often happens that common property includes things that spouses want to keep for themselves (see). In such situations, the court acts in the following order:

• Former spouses are invited to determine for themselves who will get this item. Further:
  • the parties determine the value by mutual agreement or on the basis of the appraiser’s conclusion (if there is no agreement);
  • the court, based on the price, assigns monetary compensation to the spouse left without the property from the funds of the other spouse.
• If there is no compromise, then the object of division is transferred to shared ownership with a share assigned to everyone, and if necessary, the judge determines the procedure for using it.
• When it is impossible to allocate a share in the property, the court forcibly decides who will own the subject of the dispute. In this case, the following circumstances are taken into account:
  • the need of each spouse for things;
  • the ability to actually use the controversial item.

For example, spouses cannot share a car. The court found that the ex-wife does not have a driver's license and for health reasons cannot drive a vehicle. While the other spouse works in a remote place from residence. The judge is more likely to leave the property to the husband.

Terms of division of property of spouses

As a general rule, the statute of limitations in cases regarding the division of property between former spouses is 3 years (clause 7 of Article 38 of the RF IC). However, many do not know from what moment this period begins.

The Plenum of the Supreme Court of the Russian Federation in its Resolution No. 15 of November 5, 1998, in Article 19, indicated that it is necessary to calculate the limitation period not from the very moment of divorce (entry into force of a legal court decision or registration of an entry in the book of dissolution of marriage unions in the registry office) , but from the moment when the person should have become or became aware of the fact of a violation of his right. This provision is also indicated in paragraph 1 of Art. 200 Civil Code of the Russian Federation.

Example: 5 years after the end of the marriage, the husband learned about the real estate that was purchased at the time of his cohabitation with his ex-wife, but this building was not indicated in the list of common property.

The spouse, whose rights were not respected, is obliged to prove the fact of evasion from the division of jointly acquired property, but it is sometimes extremely difficult to justify such circumstances.

To restore the missed deadline, the spouse must file a claim for renewal of the missed deadline with the judicial authorities.

What property is not divided during divorce?

Everything that was acquired before marriage

In Part 2 of Art. 256 of the Civil Code of the Russian Federation states that property that was owned by each of the spouses before the marriage, as well as property given to one of the spouses or passed to one of the parties by inheritance, is not jointly acquired, but belongs to the personal property of the corresponding spouse.

Personal items

Items for individual use, namely: clothing, shoes and other individual property (except for precious items and luxury items), purchased even with joint funds, belong to the property of the spouse who uses them.

Rights to the result of intellectual activity

The right to the result of intellectual activity is also not divided during a divorce like other property. It is exclusive and belongs only to the author. And the income received from the use of this result is jointly acquired property (unless the document between the spouses (nuptial agreement) indicates otherwise).

Belongings of minor children

The rights and things that belong to minor children are not divided between the parties to the process. These include things purchased only to meet the needs of children and deposits made in their names.

Items purchased after leaving

Things acquired by spouses after the end of cohabitation (in the event of a long divorce process) are also not divided. This is one of the most sensitive issues in divorce proceedings, since it is difficult for one of the spouses to resist the temptation to declare their right to someone else’s property, despite the fact that there are formal signs for this. Therefore, such property must be separated from the general property, and confirmed in court:

• separation of residence;
• lack of a joint budget;
• the presence of conflict, incompatibility of life positions, etc.

Division of property during divorce if there are children

The property of adult children, namely: an apartment, a car, a summer house or shares, is not subject to division. They must remain the personal property of the child.

If in , then the divorce process occurs only through court. This action is used to ensure the personal property rights of children.

In the event of a divorce, adult and minor children, at the time of division of the spouses' property acquired jointly during marriage, do not have the right to it, just as parents do not have rights to the children's things purchased for their needs. These include:

• clothes, shoes
• Sports Equipment
• school supplies
• furniture, books
• instruments for music practice
• as well as material deposits issued for children.

The listed items are transferred to the parent with whom the children will remain. Another person does not have the right to count on appropriate monetary compensation, even if it becomes known that the children’s property was sold.

Sometimes the fact that the child needs these things is disputed:

Example 1: The computer, which was purchased more than 4 years ago, was purchased for general use, and not just to meet the needs of the child. Here the issue is controversial and the court may rule in favor of one side or the other. Because the computer can hardly be attributed exclusively to children's use.

Example 2: A claim has been made for a piano. The ex-husband stated that the purpose of this tool is not intended only for children. However, the wife presented evidence that their child is studying piano at a music school and this musical instrument was bought for him. Such a piano will not be subject to division.

If real estate that is the property of a minor child or his place of residence is alienated, then a representative of the guardianship and trusteeship authority must be present at the court hearing. The consent of the authority to allocate the child’s share is mandatory.

If there is a minor child in a family that is involved in divorce proceedings, then the spouse with whom the child does not live is obliged to pay alimony for his maintenance (see). Then the court will divide the parts of the jointly acquired property equally.

How to draw up an agreement on the division of property

Initially, it is necessary to indicate that an agreement (agreement) on the division of property can be drawn up at the time of marriage, upon its dissolution, or after this process. However, the best part of drafting it is somewhere between the beginning and the end of the divorce.

After filing an application for divorce, the spouses can draw up an agreement and avoid losing money when paying the state fee, the amount of which is calculated from the total value of the property and can amount to more than 10 thousand rubles.

After concluding such an agreement, the spouses peacefully divide the joint property, informing the court about the settlement of the disputed relationship.

Part 2 art. 38 of the Family Code of the Russian Federation states that an agreement of this kind is concluded in writing and is subject to notarization. Since December 29, 2015, Federal Law No. 391-FZ has established the procedure for mandatory notarization of a settlement agreement on the division of property.

Notary services are paid. He charges the spouses a state fee, the amount of which is calculated based on the total price of the property to be divided. This percentage may not be small and it is better to know it in advance.

• Preamble. It should indicate the place (city) and date of drawing up the document, as well as indicate the parties to the agreement (Party 1 - Full name, Party 2 - Full name)
• Item. Here the spouses describe their civil status and indicate all the property in their jointly acquired property.
• The procedure for dividing property. In this part it is necessary to indicate what property goes to whom.
• Conditions for transfer of property. This indicates exactly how the transfer of property from spouse to spouse will take place. For example: If there is a division of real estate - when one of the parties goes to the appropriate registry with title documents to re-register the property to the other party.
• Personal property that will not be shared. This point is quite important. It lists all property that is not divided or will not be divided (property that was not jointly acquired property, personal belongings of one of the spouses, or items that one of the spouses does not claim). This must be done to avoid claims that may occur in the future.
• The procedure for the entry into force of a contract (agreement). Here it is necessary to indicate that this document will come into force from the moment of its notarization.
• Final provisions. In this paragraph, you must indicate information about the number of copies of this agreement, the procedure for making additional changes to this agreement and the consideration of disputes regarding the execution of the agreement.
• Signatures of the parties. This is quite important! After drawing up the agreement, it must be signed by the spouses

Question:
What to do if a separation agreement is concluded, but after that the other spouse changes his mind and avoids notarial actions.

The answer is simple: The interested spouse should fulfill that part of the obligations that was assigned to him. And then you can go to court to recognize the agreement as valid without notarization. Subsequently, the intractable spouse can be required to fulfill his part of the agreement on the basis of a court decision.
But this method is not always effective. Sometimes it is easier to go to court with a regular division of property.

How to hide a spouse's property

Statistics show that during a marriage, many spouses think about the possible consequences of divorce. Therefore, they play it safe and use all possible means to divert property from the regime of joint ownership of husband and wife.

The most common methods:

• registration of property in the name of relatives. This mainly concerns large things: real estate, transport, etc.;
• concealment about existing values. Most often these are bank deposits, shares, cash, etc.;
• buying things with donated money from relatives.

For example: My husband buys a car, which he wants to register in his name. The day before the purchase, the spouse turns to a notary to certify the agreement of donation of money from the spouse’s father for the purpose of buying a car. The agreement, of course, is non-monetary, but it is difficult to prove this, since it is notarized. It turns out that a car purchased with that kind of money is a gift and will not be counted as common property during division.

• acquisition of material assets through loans from friends and acquaintances. The bottom line is that during the division, the spouse can present to the court a loan agreement, supposedly for the purchase of an item, drawn up shortly before the purchase, as well as a fake receipt or other payment document on behalf of this spouse about the repayment of the loan, dated after the divorce. Formally, this gives grounds to demand that the property remain with oneself without compensation to the other spouse, since he alone paid the common debt.
• There are other methods that are singular in nature.

How to divide property registered in the name of another person

It is not uncommon for one of the spouses (as a rule, the main breadwinner in the family), showing worldly “wisdom,” to register all acquired property in the name of their relatives (parents, grandmothers, brothers, sisters, etc.) or in general to strangers (isolated cases ).

However, such property can still be included in the total estate and divided fairly.

To do this, it is necessary to separately (under a new claim) challenge fictitious transactions in court, that is, invalidate the transaction with dummies and transfer ownership to the spouses. True, this process is not simple, but if the controversial item is expensive, then the work will not be in vain.

When considering the court, they provide information that:

• funds for the purchase of the item were taken from the general budget (no matter which spouse or from what sources);

For example: Before buying an apartment, the husband withdrew money from his bank account in the exact amount that corresponded to the price of the home.

• the person in whose name the property is registered does not actually have sufficient finances.
• the one in whose name the registration is made does not have the skills and needs to use this property.

Eg: The motor boat was registered in the name of a grandmother, who has neither the rights nor the means to maintain a watercraft.

• the disputed objects were used by the family and incurred the costs of maintaining these objects.

Example: the dacha plot, which was listed on the spouse’s brother, was at the disposal of the family, which will be confirmed by neighbors, the board, payment documents on membership and target contributions, etc.

It is important not to miss the deadline for appealing - 3 years from the moment such a pseudo-transaction was made or when the deprived spouse became aware of it.

During a dispute over false registration of property, the court case on division must be suspended, since the results of challenging the transaction will make it clear whether the spouses’ common property will increase or not.

If the spouses decide to get a divorce, then it is necessary to take into account several rules that will help them get through the divorce process faster.

• To avoid unnecessary expenses, it is best to correctly draw up an agreement on the division of property and not go to the courts at all. This document should contain all necessary information. But notarization is sometimes quite an expensive process.
• If the case comes to court consideration, then do not forget to file a claim for the division of property and documents for the deduction of alimony (for the spouse with whom minor children remain living). The presence of minor children is also a basis for increasing the share of joint property.
• After the divorce process is completed, save all documents related to the marriage, as they may be needed in the future. (If the spouse finds out about the undivided property and wants to claim it).

If you have questions about the topic of the article, please do not hesitate to ask them in the comments. We will definitely answer all your questions within a few days. However, carefully read all the questions and answers to the article; if there is a detailed answer to such a question, then your question will not be published.

In order for the law to be carried out after divorce, statute of limitations needs to be installed accurately. The issue is covered in Art. 199 “Application of the limitation period” of the Civil Code, which clearly states during what time after that a claim for the division of property between former spouses can be filed. However, courts often make decisions that are then appealed by higher courts.

The time during which family property can be divided is determined by Art. 38 three years from the day when a. arises between the former spouses.

What is the statute of limitations?

The limitation period begins from the day when the person interested in resolving the property issue received information about the violation of rights to this property. From this moment on, the statute of limitations begins in this case. Its end in most civil cases ends in three years.

How can property rights be violated? For example, one of the spouses has the keys to an apartment in which the second spouse has a share, and does not allow the co-owner into it. Puts up for sale a car that is common property, without taking into account the interests of the other half.

The law prescribes circumstances when the period changes up or down. An interested party in the family's property affairs can be not only the spouse, but also representatives of the judicial system, guardianship service employees and other persons.

So, if the statute of limitations has expired, then the court will accept the claim, but when considering the case, it will refuse the plaintiff on the basis of the expiration of his time.

It is important to file a claim on time: from the practice of court cases

A claim for division of property against a former spouse can be filed within all three years after the start of the statute of limitations. Another thing is that for a long time this point was subject to different interpretations - from what moment does the countdown begin?

Background

The courts, guided by Art. 199 of the Civil Code of the Russian Federation, which clearly states that the period for resolving all issues of division of property of former spouses ends with a three-year period, often “by definition” the date was considered the starting point. And this despite the fact that in 1998 the Plenum of the Supreme Court created Resolution No. 15, where in paragraph 19 it was once again explained that the starting point does not have to be the moment of divorce. There are many circumstances where the statute of limitations begins many more years after service of the document terminating the marriage.

What circumstances lead to the issue of property division being raised in court 5, 7, 10, 20 years after the official end of the marriage? So, 3 years have passed since the divorce: division of property with two case studies.

• An example of a positive decision for a plaintiff

The ex-husband believed that he had a “by default”, acquired during marriage and registered in his wife’s name. However, when he decided to sell this share seven years after the divorce, he was denied such a right by his former other half.

The court established in this case the limitation period from the day when the plaintiff was denied the right to dispose of the property, and not from the date of delivery

• Example of refusal due to expiration of time for filing a claim

The couple built a house while they were married, which they registered in the name of the husband. After the divorce, the husband sold the house, which became known to the ex-wife. However, she did not then declare her right to ½ of the house. Five years later, the woman decided to file a claim to restore the right to her share through the court, which rejected her on the basis of Art. 38 SK. RF and Art. 199 of the Civil Code of the Russian Federation. In this case, the fact that information about the sale was communicated to the plaintiff was confirmed, thus the statute of limitations was determined to be three and a half years, which is more than the time limit allowed by law.

Important: cases where the statute of limitations was missed due to legal illiteracy or carelessness does not give the court grounds to restore the property rights of the other, violated by one of the spouses.

Thus, violation of the statute of limitations when resolving property issues between former spouses may deprive one of the parties of the right to dispose of property, if she has delayed the time for filing the relevant claim.

Good afternoon. I am 45 years old. Officially divorced for 8 years (since 2009). In fact, I haven’t lived with my (ex) wife since 2003. Divorced without division of property. He left a 2-room apartment in Moscow to his ex-wife. But in 2005 (before the official divorce) he bought himself a 3-room apartment in the Moscow region. Since the divorce, no property issues have arisen, but now the ex-wife has decided to divide the property (and only the apartment in which I live; she doesn’t talk about the 2-room apartment in Moscow and, of course, is not going to divide it. The question is: does it work? In this situation, there is a 3-year statute of limitations, can the ex-spouse file for division of property? If so, then it turns out that it will be necessary to divide not only the apartment in which I live, but also her apartment in Moscow?

Hello! Divorced from my husband 8 years ago! We divided our property through the courts! But the object that he bought with me in marriage for his LLC remained indivisible! Since we decided to use it together! More precisely, he paid me money from the rental of this property! Now I want to share it! What will happen in this case! I didn’t divide the time as it wasn’t arranged! It was registered by his ex-husband 1 ago

Good afternoon Divorced since 2004, the ex-husband, when leaving, said that he was leaving his share in the apartment to the children
We have two kids. The property is registered in my name. After the divorce in 2004, we visited a notary, who told him that in order to register his share for the children, he must first receive this share - by dividing the property through the court, or allocated by me voluntarily. I decided to give him a share voluntarily, prepared the necessary documents, but in the presence of my daughter I asked him to give his word that after registering his share, he would not blackmail us with this, but would immediately make a donation to the children. To which he rudely replied that he would see later what to do about it. I was afraid to voluntarily give him his share, but he did not sue for division. Now I am a pensioner, my children have their own home, I decided to sell this three-room apartment and exchange it for a one-room one. Buyer with a mortgage, the bank insists on obtaining consent for the sale of the ex-spouse. The ex-husband refused to give consent and threatens with trial and division. Help me figure it out - can he really win such a trial and get 1/2 of the apartment?
Thank you. Svetlana

Is it possible to file for division of property several years after a divorce? This question is one of the most pressing for people whose marriage has cracked and a division of joint property has emerged. Is it necessary to rush to file a claim, or, on the contrary, is it more profitable to delay the division?

Statute of limitations

The legislation of the Russian Federation determines the period during which the court is obliged to accept applications from divorced spouses who decide to share spoons, forks and apartments. The statute of limitations is three years. That is, spouses are given 3 years to divorce, and after that the court will refuse to proceed on formal grounds.

However, not everything is so simple! An experienced lawyer will immediately tell you where there is not just a gap in the legislative field, but a huge hole. The countdown of three years does not start from the moment of divorce! In case of divorce, 3 years are given from the moment when the spouse filing the claim learned about the violation of his property rights by his former significant other.

What does this mean in practice?

Division of property ten years after divorce

Cases concerning the division of property of spouses who have not been married for more than three years often come to the courts. The basis for such a claim is a violation of property rights committed by the former spouse.

For example, for five years the ex-husband lived in another city without reminding his ex-wife of his existence. But then the husband returned to his hometown and appeared on the doorstep: “There is a crisis in the country, I lost my job and will live here!” And the ex-wife understands that it was necessary to divide property, delineate property rights... However, it’s not too late! This is exactly the case when the countdown of the three-year limitation period begins from the moment the ex-spouse appears at the door of the apartment.

This is, of course, just one example. Sometimes a person is prompted to violate property rights by a feeling of jealousy that suddenly flares up five to ten years after a divorce. The reason is a new relationship that the ex-husband or wife starts. That is, during a divorce, the spouses agreed to separate peacefully and agreed on the division of property orally. But, as they say, circumstances have changed... “I won’t let you live in our apartment with your boyfriend!” - this kind of motivation, unfortunately, occurs quite often... And an apartment that is not divided in a timely manner, as well as other property, becomes a subject of contention.

However, with a new love relationship, the ex-spouse may be motivated to do so for practical reasons: for example, if the plaintiff is concerned about respecting the property interests of the children. This can also become a reason for the division of property many years after the divorce, especially if a professional lawyer takes over the matter.

But, perhaps, the most common reason for dividing property after several years of separation is the sale of property by one of the spouses. For example, an ex-wife or husband decides to sell an apartment, violating your rights. This means that the three-year period during which you can file a claim in court begins to be calculated from this moment.

Your spouse hasn’t talked about dividing property during a divorce for 3 years, and now he’s filed a claim? Or, on the contrary, violated your property rights several years after the divorce? Be sure to contact a lawyer to prepare for trial!

Chances of dividing property a few years after divorce

What are the chances of a fair division of property if 3 years or more have passed since the divorce? Here the principle of dialectics comes into force: for one of the parties this option is beneficial, for the other - vice versa. For example, a car that was used by an ex-spouse for several years will lose its market value, and upon division, the other party will receive pennies. One is in the plus, the other is in the minus!

What conclusion follows from this? When getting a divorce, consult with an experienced lawyer - maybe it’s worth dividing the property, as they say, without leaving the cash register, and not wait until your property rights are violated? Although there are situations when it is better to wait a little so that the emotional storm subsides after a divorce. Each case is individual.

A lawyer is your assistant in the division of property

The more years have passed since the divorce, the more complicated and confusing the property division case usually becomes. After all, over the years, former spouses could acquire new property or lose checks and receipts confirming their rights to joint property. Witnesses may have moved away or forgotten details. The car could have been in an accident or sold; the apartment could have undergone a new major renovation, masking the traces of irreversible improvements that had increased the cost of housing. Therefore, you should go to the court with a lawyer whose professionalism and experience allows you to competently represent your interests in court.

But, again, do not forget about the law of dialectics: a lawyer who helps one side plays against the other. So if your ex-spouse uses the services of a lawyer, you shouldn’t fight for your property alone either.

It is difficult to defend your position in court if not only your ex-spouse is against you, but also his lawyer! The opposing lawyer will use all his professional skills to decide the case against you. This means that you, too, must place a powerful piece on this “chess field” - your lawyer!

Divorce is an unpleasant and difficult procedure for most couples. If former spouses have property claims, the process becomes more complicated. The division of property after a divorce, the statute of limitations for which has not yet passed, may be less painful if there is a prenuptial agreement or good will of the parties. If there is neither one nor the other, you will have to go to court. But first, you need to understand what property is subject to division during a divorce and when it makes sense to seek help.

What is subject to division

The division of joint property after a divorce occurs according to established rules. All movable and immovable property acquired during the marriage is divided. The following will be divided between the parties:

• All real estate: apartment, garage, cottage, room, palace.
• Land plot, shared construction, share.
• Vehicles.
• Business, bonds, shares.
• Bank deposits.
• Household appliances and furniture.
• jewelry.

If the spouses separated but did not file a divorce, all property acquired by both parties during this period may be recognized as common and subject to division. The division of property after a divorce, the statute of limitations for which has not expired, will only include what was acquired before the official confirmation of the separation.

You cannot divide children’s furniture and clothing, items purchased for their needs, or deposits in their name. The children's property remains with the parent with whom the children remain. In addition, personal belongings other than jewelry are not included in the division of marital property after divorce. But there may be exceptions to this rule: if a fur coat is sold, the spouse has the right to demand a division of the funds received for it.

An apartment that belonged to one of the spouses before the start of family life cannot be included in the division of property after a divorce, like any other property received before marriage. If during the marriage one of the spouses received material assets as an inheritance, they are also not subject to division.

Loan section

Today, a loan is a very popular way to get money. And if a large sum can only be taken with the written consent of the spouse, then the bank provides small financial assistance to only one of them. When initiating the division of property after a divorce, the spouses do not want to divide the loans unless their signature is on the agreement. The court considers each situation individually. If the money is taken with the consent of both spouses and spent on family needs, the debt will be divided equally between the spouses.

But what if the loan was taken by one party to meet personal needs without notifying the spouse? More recently, courts have recognized such debts as common and divided them in half in most cases. However, as of April 13, 2016, loans are recognized as joint only when they were spent on the family. These expenses must be proven by the party who demands that loans be included in the division of property after a divorce.

Debt section

The division of property of spouses after divorce occurs in equal shares. If it happened otherwise and one of the parties received the majority, then the debt obligations will also be unequal. So, if the husband was awarded 2/3 of the total property, then 2/3 of the debts will be given to him.

Documents for court

If less than 50,000 rubles, documents must be submitted to the magistrate’s court. If the cost is higher, the district court will deal with it.

The following documents must be attached to the application:

• Passport or other identification document.
• Divorce certificate (copy must be notarized).
• Documents for the disputed property: checks, orders, technical passports, receipts, certificates of ownership.
• Certificate of family composition.
• Paid state duty.

Witness testimony does not have a significant impact on the division of property after divorce.

Statute of limitations

Judicial practice in cases of division of property is not entirely clear. According to Art. 9, paragraph 7 of the RF IC, a lawsuit can be filed within three years. But the catch is that these years are not calculated from the moment of divorce.

Where does the countdown come from?

It seems that the division of property after a divorce, the statute of limitations for which has not expired, should occur no later than three years after receiving a document indicating the breakdown of the family. However, not everything is so simple with this issue.

Three years begin counting from the moment when one of the parties learned about the violation of its property rights. Also, the countdown date is the day when the spouse should have found out about it. This approach to the issue significantly changes the situation, because the division of property after a divorce, the statute of limitations (5 years, and 10, and even 30, rights may not be violated) of which is hypothetically extended, is a completely different matter. It often happens that a man leaves everything to his wife, reasoning that the property should go to the children and the abandoned wife. But over time and the appearance of a new family, his priorities may change; unresolved housing issues will require going to court for the division of property.

Do I need to rush through the section?

It is difficult to imagine that a modern person has no idea about deadlines. However, it is not uncommon for one or both spouses to be in no hurry to divide property.

Despite the possibility of dividing property even after three years, the reasons for this must be very compelling. Most experts recommend not delaying the division of property after a divorce. The statute of limitations ends after 36 months, and the fate of a lawsuit filed later depends on the judge. Moreover, strong evidence is required that the spouse did not previously know about the violation of his rights.

If, for example, after a divorce, a husband left an apartment to his wife, but after some time he learned that the property had been sold or other people had moved in, he has the right to demand division. Moreover, the countdown of three years begins from the day on which the ex-husband learned about the fate of the apartment.

It should be understood that when the division is postponed, not only the price of real estate increases, but also the amount of legal costs. In addition, the longer one of the spouses has sole use of the common property, the more difficult it will be to force him to divide the property. Laziness, nobility or national hope for “maybe” can cost a significant part of the total savings. You should not delay the division; it is better to file for it at the same time as the divorce.

Case studies

Judicial practice on the division of various property and debts of former spouses is very extensive. To understand the general trend, you should consider as many examples of similar cases as possible. Several cases will be discussed below.

Example with a loan

During the marriage, the spouses took out a loan for a car. The contract was concluded in the name of the wife, who used the car until the divorce. Loan payments were made from the family budget.

Some time later, the wife filed a claim for division of the loan. She testified that the debt was partially paid and demanded that the remainder be divided equally between her and her ex-husband.

Having studied the circumstances, the court decided to satisfy the claim in full and leave the car to the wife, but ordered her to give her husband an amount equal to the cost of the car.

During the trial, the former spouses entered into an agreement. Their agreement allowed the woman to keep the car and not pay the money, but the husband did not have to pay the loan. The agreement was approved by the court.

Example No. 2

During marriage, the spouses purchased an apartment, a car, and had children. After 20 years of family life, the wife announced that she was leaving for someone else and filed for divorce. The ex-husband, who was in a state of shock, moved in with his parents, forgetting about the shared apartment. I only took the car for myself.

After 4 years, the ex-husband found out that the apartment had been sold. He went to court with a demand to divide the funds received from the joint property transaction. However, the court rejected his request because the statute of limitations had expired.

Example No. 3

A married woman moved to another city because her father needed care. A year later, her husband sent her divorce papers, which she signed. She was able to return to her city 5 years later, after the death of her father. She could not get into the apartment she shared with her husband, because his new wife kicked her out of there.

The woman asked the court to restore the statute of limitations. An experienced lawyer was able to prove she was right, as a result of which the court restored the term, and the ex-wife was able to receive half of the common property.

Conclusion

No matter how difficult divorce may be from a moral point of view, you should not give in to emotions. First of all, you need to respect your interests and get everything that is required by law in such cases. The best way out is to make a list of common property and take it to a specialist who will calmly and competently draw up a voluntary agreement.

If a lawyer, whose head is not clouded by feelings, negotiates with the other party, there is an opportunity to avoid litigation, additional expenses and peacefully divide everything acquired through back-breaking labor.