Not a single family is safe from divorce. The division of property is a controversial and controversial process. It is regulated by the Family and Civil Code, but it does not become easier from this fact. There is no single sample of the division of property. Each case is individual and there are many complicating factors. How is the division of property of spouses going, what is divided and what is not, and how do children and some other important issues affect the procedure? We will discuss all this in the article.
Ways
The division of acquired property may occur in the same way as a divorce :
- By mutual agreement.
- Judicially.
- Through a prenuptial agreement.
If mutual understanding can be found, then an agreement is concluded on the division of property of the spouses. This document details the share of each. There are a number of important points to consider:
- The maximum specificity is needed when describing the property (for example, make of the car, its color, year of manufacture).
- Another recommended item that is desirable to prescribe is the market price. If the assessment was conducted by an expert, then the cost is a must.
- Be sure to affix two signatures from the former spouses.
- Experts recommend notarizing the document.
An agreement on the division of property can be drawn up both independently and with the help of specialists. These may be lawyers, appraisers, lawyers, as well as other experts. Another important point: all property that is not covered in the agreement will be divided in accordance with the legislation of the Russian Federation. The section of property is governed by the Family Code, namely, article 34.
Marriage contract
You can put an equal sign between the marriage contract and the property sharing agreement, since these documents, in fact, duplicate each other. But in the prenuptial agreement, you can also reflect some additional points that are not taken into account in the agreement on the division of property. This may be child support payments, meeting arrangements and some other marital responsibilities.
The peculiarity of a prenuptial agreement as a legal document is that it can be executed at any time, both before the wedding and immediately before the division of joint property.
A property sharing agreement can be filed while in a family relationship. When the separation occurred, but after some more acquisitions were made, they pass into the category of jointly acquired property purchased in marriage. If family life has ceased, then the court will require evidence of the independent acquisition of things. Therefore, experts recommend keeping checks for expensive purchases and luxury items such as fur coats and jewelry.
Where to go
Before planning the division of spouses' property, you need to understand which court to appeal to. According to the rules, consideration takes place in court, which is territorially related to the defendant's place of residence. However, there are a number of exceptions that allow holding a court hearing where the plaintiff resides:
- In case the plaintiff has small children.
- The physical condition of the plaintiff does not allow him to come to another city or district.
Magistrate's Court
Sometimes during divorces, the division of property can be carried out in a magistrate's court. This is done with insignificant property value, which does not exceed 50,000 rubles. If the issue price is higher, the application is considered in the city court.
What can not be divided
To begin with, what is not divided. The following shall not be subject to division of property upon divorce:
- Items for personal use. This includes clothing, hygiene items, professional tools for work. For example, a taxi driver’s car.
- Children's things or what was purchased for them: a guitar, toys, consoles, books and so on. All things are transferred to the child’s place of residence and remain with him.
- If the child has a bank account in which a certain amount is stored, he also does not apply to the division of property.
- The property that the spouse received under a gift agreement or purchased for the amount of money donated.
- Section is not subject to what is inherited from relatives.
- Spouse's things purchased before marriage. This includes real estate.
- Acquisition after divorce.
Personal property
Let us dwell in more detail on what is called personal property from a legal point of view. These include:
- What was owned by each of the spouses before family relations took shape from a legal point of view, and not social. In a civil marriage, it is difficult to prove that the property was acquired jointly, and not at the expense of one of the spouses.
- If the apartment is privatized in marriage, but only by one of the spouses, then it is also considered personal property from a legislative point of view.
- Clothing and personal items, but not jewelry and luxury goods.
Before or after
Very often, when the family breaks up, the question arises when it is possible to share what belonged to both. You can start the division of property in a divorce. In this case, two applications are submitted to the court: one of them concerns directly the division of property, and the other concerns divorces. A judge may consider both claims together or separately, depending on the particular case.
Expiration date
The well-known truth that everything has its own term has not bypassed jurisprudence. The maximum period by which ex-spouses can file a lawsuit regarding the division of property does not exceed three years from the date of divorce. Three years is counted from the court's official decision that the marriage was dissolved, and not from the start of the divorce proceedings.
How to file a lawsuit
The lawsuit on the division of property is made according to the model, which can be requested in the judicial office. They are also posted in the information sector. It should reflect the following points:
- The full name of the judicial authority.
- Information about the plaintiff and the defendant.
- Marital status.
- Information about the property. What are the rights to possession of the disputed property.
- The total value of the property.
- The requirements are.
The attached application shall reflect the date of marriage with the defendant and the date when the decision to divorce entered into force by order of the district court. The following is the reason why the lawsuit was filed for the division of property. This can be, for example, a spouse's bank account hidden by the spouse on which common family savings were discovered. Specific numbers are indicated. After justification, a list of requirements of the plaintiff is prescribed. This may include the requirement to recover state duty from the defendant. Then comes the list of documents attached to the lawsuit.
Documents
In addition to the lawsuit on the division of jointly acquired property, the following documents will be required:
- Passport of the plaintiff.
- Birth certificates of each child or passport, if any.
- A document that can confirm the status of the family. This may be a certificate of marriage or its dissolution, a court decision or an extract from it.
- Help on how many people are in the family.
- Property valuation from an independent appraiser.
- A receipt confirming the payment of state duty.
State duty
How much does the state duty cost when dividing property? This issue is regulated by Article 333 of the NKRF. Its value directly depends on the value of the claim. It is paid before the application goes to court. Although it is possible to include a state duty in a claim for compensation. If the claim is filed by mutual agreement, it shall be paid in half.
What is subject to section
In case of divorces, the following shall be subject to division of property:
- Real estate. This includes an apartment, country and land plots, garages.
- Movable property. Including a car.
- Income derived from intellectual, commercial or other work.
- Various types of securities, bank deposits, shares.
- Jewelry, jewelry.
- Equipment.
- Benefits that relate to non-targeted.
Section and children
With divorces, the division of property cannot but affect the children. A voluntary agreement or prenuptial agreement implies that parents independently choose property shares. If the agreement on the division of property stated that the majority of the share is received by the mother with whom the child lives, or, in rare cases, the father, then this decision will be executed. Also, the law does not prohibit dividing everything into two equal parts.
The judicial division of property follows a slightly different principle. First of all, the courts must take into account and respect the interests of children, and only then - the parents. The court has the right to leave most of the property to the one with whom the children remain. This may not always be an apartment, but for example, a vehicle for the mother, if she has rights so that she can pick up children from a kindergarten or school. However, if there are no rights, it is more likely that the car will remain with the spouse. Each case is considered separately, and there are no repeated cases.
Split shares
The shares of the husband and wife regarding joint property are considered equal. There are exceptions when the opposite is stated in the marriage contract. The court has the right to derogate from this rule in favor of children who are under the age of 18 at the time of the division of property. A judge may side with one of the spouses if one of them has no serious reason not to search for work or in case of property wasting to the detriment of family and children.
Debentures
All debt obligations between spouses during the division of property after a divorce are divided strictly into two parts. The same goes for a mortgage loan. To do this, you need to visit the bank office and draw up new contracts. A separate copy will be concluded for each spouse. Loan parameters (interest rate and its duration) will remain unchanged. Only the size of the monthly payment will change.
How is the car divided
Not all jointly acquired property can be divided in half. This category includes a car or, for example, real estate. There are several separation options in this case:
- That property that cannot be divided, say a car, is physically transferred to one of the spouses. And the second receives material compensation in the form of half the cost. Or you can exchange for another property. You can calculate the cost through an appraiser or simply agree on the required amount. This is usually the section of equipment, cars, jewelry, and so on.
- The second option for the division of spouses' property is the sale and division of the amount received into two equal parts. This option is used in the division of real estate: apartments, villas.
The second option, despite its simplicity, is somewhat more difficult to implement. One of the spouses may insist on the sale, and the second - on the transfer with compensation. Legislation is not enshrined in law that would oblige to carry out the division of property according to the second option. In this case, not things are separated, but their monetary value.
Important: all property must be divided strictly into two parts. For example, spouses need to share a country house with a plot of land. It is impossible to award a house to an ex-wife, and to give land to a spouse. Otherwise, it will lead to legal complications. If in the future a house or land is put up for sale, it is impossible to purchase one without the second. How can I buy a house without a piece of land on which it is located? In case of divorce, the division of property is carried out in such cases in a strict order: both the land and the house are divided in half.
Inheritance
The fact that one of the spouses inherited from the deceased parents, grandmothers and other relatives, is often the subject of controversy in the courtroom. As mentioned above, the division of property during a divorce does not apply to what is inherited. However, there is one exception. If the will says that both spouses have the right to property, then the section will occur as described in the document. For example, shares may be allocated in an apartment. If the second spouse does not appear in the will, he does not have rights to this property.
Copyright
With intellectual property, everything is clear and unambiguous. For example, one of the spouses published a novel, wrote a song or a picture. All rights will be assigned to the author. When divorced, it cannot be divided. Compensation is also not required.
Business section
Unfortunately, in the business sphere it is rarely dispute. Offended feelings are reflected in monetary losses, crises in companies, layoffs, and this is not a complete list. How to split a common business during a divorce? Specialists recommend drawing up a prenuptial agreement, which will spell out all the conditions of the section. If there is no agreement or agreement, then the business will be divided by a judicial decision in accordance with the legislation of the Russian Federation. Also, as in matters with apartments, cars and equipment, it is understood that profit, shares of authorized capital, and technical means are divided equally between husband and wife, regardless of the activity and interest of the second spouse in the matter. In practice, it is difficult to implement this, and there are a number of reasons for this:
- If a prenuptial agreement is drawn up with an infringement of the honor, dignity, interests and reputation of one of the spouses, it can be challenged by a court decision. This provision is spelled out in article 44 of the Family Code.
- If the business was owned by a spouse before marriage, this does not give grounds for the sole disposal of property and capital. Everything that the spouses acquired during family life, including income, is a joint property and is divided into equal parts.
- For example, the spouse did not carry out any activity at the husband’s company, but kept a house or worked in another field. In this case, she has the right to claim a share in the division of property.
Experts note that there is no single “recipe” for dividing a business. It all depends on the specifics of a particular work area. From a legal point of view, a business is the same property or right to property. It can be sold, divided or transferred to the management of another person. Intellectual property is involved. From the point of view of the law, there are several options for separation:
- Transfer of ownership of one of the spouses and cash equivalent for the other.
- The division of a large enterprise into several small companies.
- Reorganization. She can follow two scenarios. In the event of a separation, the company discontinues operations, and property rights transfer to new companies. Selection. As a result, a new enterprise is created, to which some of the powers and rights will be transferred. At the same time, the company created earlier does not cease operations.
How is a court decision made?
Let’s clarify the judge’s logic in the division of property:
- The court divides all property into two broad categories: personal items and general, that which belongs to both spouses.
- By default, shares between spouses are considered equal. In the event that there is a prenuptial agreement in which a different ratio is prescribed, the assigned shares may be different. One of the spouses may receive a large share in the interests of children.
- In cases where the joint property cannot be divided without losing its physical properties, the object receives one of the spouses, and the second receives its cash equivalent in the amount of half the value or other agreed amount.
The division of property of spouses is not a reason to become enemies. We hope that the material in the article will help you carry out this procedure wisely.