The division of property during a divorce is not a pleasant procedure, but it must be overcome if you want to start life from scratch. In the process, a lot of conflicts and disputes can arise, so you should prepare in advance for solving various problems by reading the legislation of the Russian Federation. For example, in it you can find the answer to the question of whether the gift apartment is divided when the spouses are divorced.
How to give property to newlyweds?
Before moving on to the question of whether donated property is shared during a divorce, it is necessary to study the basic terminology in order to understand the question of dividing a house or apartment in more detail. So, a deed of gift is a special legal document or contract that must be filled out in a specific form. A free statement of circumstances during the preparation of such a valuable document is unacceptable. The legitimacy and correctness of the transaction is guaranteed by this particular paper, so it must be drawn up according to a specific model.
A mandatory circumstance of the contract is the presence of all parties at the signing. They should carefully read all the points, and then put their signature on the document. There is no need to certify the agreement, however, to be sure of the correct conclusion of the transaction, you can visit the notary's office. If at least one clause of the contract is not respected, then the deed of gift becomes no more valuable than newsprint. So carefully monitor the conditions for signing the contract so that the donated property will truly become yours.
Why all this theory? Suppose that the parents of the groom decided to give the newlyweds a wedding apartment or a house, and a month later, the lovers filed for divorce and began the process of sharing property. In this case, the groom and his parents can remain at their own place, saying that when signing the contract one of the parties was not present on the spot. If someone can confirm such an incident, then the deed of gift is considered invalid, and the former owners of the apartment will be restored in all rights.
Who can not give property?
The division of donated property during a divorce may simply not take place, if some legal nuances were not taken into account when drawing up the contract. For example, the following persons cannot act as a donor:
- incapable citizens whose status is confirmed by a court decision;
- trustees, guardians and parents of young children who are not eighteen years old;
- citizens under the age of fourteen.
In addition, the status of the donee is an important factor. A state person, as well as a social or medical worker, cannot act in his role, provided that the property is obtained from his client or relative.
Also, the contract must be registered with the state registry. Many people very often forget about the need to carry out such actions, after which they cannot confirm the legality of the transfer of property in the event of the death of the donor.
Is all property divided after a divorce?
A person who thinks about whether a gift apartment is shared during a divorce should understand that any property that was acquired in a marriage belongs to the category of jointly acquired property, which each participant in the divorce process can claim.
However, there are still several objects that are not subject to division during a divorce:
- property acquired prior to the registration of marriage bonds;
- property donated or inherited from a relative;
- intellectual property objects;
- various household items;
- children's and personal items.
The division process can be carried out in two ways: during the trial or through the conclusion of an agreement between spouses (oral or written). As for the first option, a statement of claim from one of the parties will suffice. That is, if the husband opposes the division of property, the wife herself can initiate a trial.
Section of donated property
The legislation of the Russian Federation clearly states that the division of a donation apartment during a divorce is possible only if both citizens are the owners of the property. If only one of the spouses acted as the recipient of the gift, then the housing area becomes his property and cannot be divided. However, there are exceptions to any rule.
If during a joint residence one of the parties, which is not the owner of the housing property, invested most of the money in the purchase of building materials for the repair of a donated apartment, then it can claim a share of this property during a divorce. A submarine conclusion can be reached as a result of mutual agreement between spouses or during legal proceedings.
In all other cases, donations remain in the possession of the person for whom they were issued. In most cases, the relatives of the newlyweds include both the wife and the husband in the contract so that there are no disagreements. In the event of a divorce, each of the parties has the right to receive fifty percent of the value of the property upon its sale.
Save checks and receipts
In the event that the apartment is framed by two owners, no difficulties with the separation of property during a divorce should arise. It will be enough to provide a correctly filled gift certificate, after which the judge will decide on the division of property in equal shares into two spouses. But what if the housing area is registered for one owner, and you want to prove that you also have the right to receive a share? The following documents will need to be provided:
- receipts for the purchase of building materials;
- bank statement confirming the purchase;
- receipts for the delivery of goods in your name and other documents.
Therefore, be sure to keep any receipts after the acquisition of building materials so that you do not have to prove your case in court later.
The cost of the house in the gift contract
Also an important factor for the separation of property is the presence in the gift contract of an item indicating the value. If the plaintiff succeeds in proving to the court that during his joint residence he made a significant contribution to the increase in the cost of a house or apartment, then the judge will most likely make a decision on the division of property. However, without receipts, checks or other documents confirming participation in the repair work, there is nothing special to rely on.
Separation by marriage contract
If only one owner has the rights to a gift apartment during a divorce, this is not a reason to despair. If you have a prenuptial agreement, you can get a significant part of the funds from jointly acquired property. Such legal documents in recent years are far from uncommon. However, the utmost care must be taken when drawing up a prenuptial agreement.
For example, it must contain a clause stating that all donated and jointly acquired property must be divided in equal shares. Such a contract can serve as a weighty argument in favor of the plaintiff if he is trying to prove his rights to jointly acquired property. Do I need to certify a similar contract with a notary? Of course, since often the documents are filled in the wrong form.
Presence of minor children
Many people are also worried about the question of whether the gift apartment is shared during a divorce, if there are minor children in the family, because their rights should in no way be violated. In this regard, the legislation gives the following answer.
The child has the right to use the property of the parent even after the dissolution of the marriage in the presence of the following nuances:
- the former partner does not have the opportunity to rent housing for his child;
- a former family member is not able to acquire property;
- ex-husband or wife has no earnings.
In these cases, the state obliges the owner of the apartment to provide the husband or wife with accommodation. However, this option is possible only if there is a minor child in the family who has a consanguineous relationship with the owner of the property.
What about registration?
Is a donation apartment shared during a divorce, if the former spouse is registered in it? No, the separation of property will not happen. After a divorce, the owner of the apartment can use the house book and write out the objectionable tenant from the apartment. However, as long as the marriage remains valid, both owners have the right to use the property on an equal footing. Of course, the exception may be items in the prenuptial agreement.
By the way, if your plans include a divorce from your wife, but you want the children to stay with you, you can simply register them in your house or apartment, after which the court will be more loyal to your side. Of course, do not forget about the opinion of the child himself, however, if he has a residence permit, then your chances of winning a hearing on this matter will increase significantly.
They sold the apartment, but spent the money?
Now you know that an apartment is divisible by divorce in very rare cases. However, it also happens that in the process of marriage, you have to sell property, and with the proceeds to purchase a new house or car. What to do with a split purchase in this case?
In fact, the situation is as follows. If the former owner of the apartment has a contract of sale, then he is the full owner of the funds that were able to help out for the sale. Consequently, the acquisition of the next apartment or car is at the expense of the owner’s personal funds, so the purchase cannot be considered jointly acquired.
What then is considered jointly acquired property? This concept means those things that are purchased at the expense of the family budget. This includes all the money that the spouses managed to earn during the mating season. However, if the former owner of the donation house can prove that these funds are his personal, then nothing can be done about it. Is it possible to resolve the issue peacefully without resorting to the help of the judiciary.
Separation lawsuit
Not in all cases it is possible to agree with the former spouse on the equal sharing of property. If you want to share a donated apartment after a divorce, you must first file a lawsuit in court. To do this, prepare in advance all the necessary documents from the following list:
- written confirmation from witnesses that you participated in the repair;
- bank statement confirming the purchase of materials;
- acts of assessment of the condition of the apartment or house after repair;
- papers on property received at BTI;
- written testimony of witnesses;
- cadastre passport.
In addition, other documents may also be required in court, which the plaintiff will have to provide without fail. For example, a judge may request a check or statement on the purchase of goods from a hardware store.
Video clip
Now it’s clear whether donations are divorced. In the short video below, a professional lawyer tells his viewers what property is to be divided after a divorce. All information is presented as briefly, competently and succinctly as possible.
Conclusion
As you can see, in most cases after a divorce, received as a gift real estate will almost always remain with the person to whom they were presented. Luck rarely smiles at former partners, even in the event of a lawsuit. Is this fair? The state believes that yes. The gift should remain with the gifted. However, do not forget that there are exceptions to each rule. For example, if you can prove in court your participation in repair work or work to improve property, or you can prove that your child needs a separate living space, the judge can meet you. Although such issues are still better resolved peacefully, without a lawsuit.