Divorce is an unpleasant and difficult procedure for most couples. If the former spouses have property claims, the process is complicated. The division of property after a divorce, the statute of limitations of which has not yet passed, may be less painful if there is a marriage contract or the goodwill of the parties. If there is neither one nor the other, you have to go to court. But first you need to understand what property is subject to division during a divorce and in what time period it makes sense to seek help.
What is subject to section
The division of joint property after a divorce occurs according to the established rules. All movable and immovable property acquired during the period of matrimony is divided. Between the parties will be divided:
- All real estate: apartment, garage, cottage, room, palace.
- Land, shared construction, share.
- Vehicles.
- Business, bonds, stocks.
- Bank deposits.
- Household appliances and furniture.
- Luxury goods, 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 of which has not expired, will include only what was acquired before the official confirmation of the separation.
It is impossible to divide the furniture and clothing of children, objects purchased or their contributions in their name. Children's property remains with the parent with whom the children remain. In addition, personal items other than jewelry are not included in the spouses' property division after a divorce. But there can be exceptions to this rule: if a fur coat is sold, the spouse has the right to demand a division of the money received for her.
An apartment belonging to one of the spouses before the start of family life cannot enter the property division after a divorce, just like any other property obtained before marriage. If, during the period of matrimony, one of the spouses inherits material assets, they are also not subject to division.
Loan section
Today, a loan is a very popular way to get money. And if a large amount can be taken only with the written consent of the spouse, then the bank provides small financial assistance only to one of them. Initiating the division of property after a divorce, spouses do not want to share loans if their agreement is not signed. The court considers each situation individually. If the money is taken with the consent of both spouses and spent on the needs of the family, 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, the courts recognized such debts as general and divided them in half in most cases. However, from April 13, 2016, loans are recognized as joint only when they have been spent on the family. The party that requires the inclusion of loans in the division of property after the divorce must prove these expenses.
Debt Section
The division of property of spouses after a divorce occurs in equal shares. If it happened differently 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 common property, then 2/3 of the debts will be given to him.
Documents for the court
If the price of the claim is less than 50,000 rubles, it is necessary to submit documents to the magistrates 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 card.
- Divorce certificate (a copy must be notarized).
- Documents for disputed property: checks, warrants, technical passports, receipts, certificates of ownership.
- Certificate of family composition.
- Paid state duty.
Witness testimony does not have a significant effect on the division of property after a divorce.
Limitation period
Judicial practice in cases of division of property is not entirely clear. According to Art. 9, p. 7 of the RF IC, the court 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 of which has not expired, should occur no later than three years after receipt of a document indicating the breakup of the family. However, not everything is so simple with this question.
Three years begin their countdown from the moment when one of the parties found out about the violation of his property rights. Also, the reference date is the day when the spouse should have learned about it. Such an 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, the rights may not be violated), which is hypothetically extended, is a completely different matter. It often happens that a man leaves everything to his wife, judging that the property should go to the children and the abandoned wife. But over time and the emergence of a new family, its priorities may change, unresolved housing issues will require going to court for a division of property.
Do I have to rush to the section
To imagine that a modern person has no idea of the statute of limitations is difficult. Nevertheless, it is not uncommon that one or both spouses are in no hurry to share property.
Despite the possibility of sharing what was acquired after three years, the reasons for this should be very good. Most experts recommend not delaying the division of property after a divorce. The statute of limitations ends after 36 months, and the fate of the 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, the husband left the apartment to his wife, but after some time found out that the property was sold or other persons settled there, he has the right to demand a division. Moreover, the countdown of three years begins on the day on which the ex-husband found out about the fate of the apartment.
It should be understood that when postponing the section, not only the price of real estate rises, but also the amount of legal costs. In addition, the longer one of the spouses solely uses the common property, the more difficult it will be to force him to share the property. Laziness, nobility or national hope for “maybe” can cost a significant part of the total savings. You should not pull with the section, it is better to file on it simultaneously with the divorce.
Case studies
Litigation on the division of various property and debts of former spouses is very extensive. To understand the general trend, consider as many examples of similar cases as possible. Several cases will be considered below.
Credit example
During the marriage, the spouses took a loan for the 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.
After some time, the wife filed a lawsuit on the division of the loan. She testified that the debt was partially paid, and demanded to divide the balance equally between her and her ex-spouse.
Having studied the circumstances, the court decided to satisfy the claim in full, leave the car to his wife, but obliged her to give her husband an amount equal to the cost of the car.
In the trial, former spouses entered into an agreement. Their agreement allowed the woman to keep her car, not to pay money, but the spouse should not pay the loan. The agreement is approved by the court.
Example No. 2
In marriage, the spouses purchased an apartment, a car, and children were born. After 20 years of family life, the wife announced that she was leaving for another, and filed for divorce. Staying in a shocked state, the ex-husband moved to his parents, forgetting about the common apartment. He took only a car.
After 4 years, the former spouse found out that the apartment was sold. He appealed to the court with a request to divide the funds received under the joint property transaction. However, the court refused his request because the statute of limitations has expired.
Example No. 3
The married woman left for another city because her father needed care. A year later, her husband sent her the divorce documents that she signed. She was able to return to her city 5 years after the death of her father. She could not get into the apartment she had acquired with her husband, because his new wife had kicked her out of there.
The woman asked the court to restore the statute of limitations. An experienced lawyer was able to prove her innocence, as a result of which the court restored the term, and the ex-spouse was able to get half of the common property.
Conclusion
No matter how difficult the divorce is from a moral point of view, you can not give in to emotions. First of all, you must comply with your interests and get everything that is prescribed in such cases by law. The best way is to make a list of common property and go with him to a specialist who will calmly and competently draw up a voluntary agreement.
If a lawyer will take part in negotiations with the other party, whose head is not obscured by feelings, there is an opportunity to avoid litigation, additional expenses and to peacefully share everything acquired by overwork.