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Property rights of spouses: common property. How is property divided during a divorce if the husband is the owner

Divorce and the subsequent division of property is one of the most problematic and controversial cases that lawyers and ordinary citizens have to deal with. Despite the fact that the main provisions regarding the division of property are enshrined in law in article 38 of the Family Code and article 256 of the Civil Code, this does not reduce the number of difficulties.

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Property is divided and not divided

According to the law, it is divided jointly acquired property. A lot of difficulties are caused by the need to establish what exactly is subject to division and what is not.

Jointly acquired property is considered to be property acquired by the spouses during their marriage.

However, there are a few exceptions where the property is personal property and not subject to division if:

  • received by one spouse as a gift or purchased with funds received as a gift;
  • was inherited by one spouse;
  • belonged to the spouse before marriage;
  • was acquired after the divorce.

Moreover, do not share personal property, for example, clothing, footwear, personal hygiene items, etc., as well as tools for professional activities. For example, it can be a car for a taxi driver.

Children's property is not divided or purchased for their use, such as clothing, musical instruments, children's books, school supplies, etc. They are transferred without compensation to the spouse with whom the children remain to live.

Also, funds that are on a bank account opened in the name of the child are not subject to division.

About what is shared and what is not, the lawyer says:

Thus, any property is subject to division:

  • real estate (apartment, garage, house);
  • movable property (including a car);
  • Appliances;
  • income received from commercial, labor, investment or intellectual activity;
  • untargeted benefits;
  • securities and shares in various investment funds;
  • bank deposits;
  • luxury items, jewelry, jewelry.

Main condition: property must be recognized as jointly acquired.

When dividing property, it is necessary to proceed from the understanding that not all objects can be divided physically. For example, it is impossible to divide an apartment, house or car in half without losing their functionality. Therefore, the law provides for several possibilities for how physically inseparable property can be divided.

The first option: the property is transferred to one of the spouses, and he pays compensation to the other party in the form of half the value of this property. Compensation can be both monetary and in-kind - that is, in the form of transferring other property to the former spouse.

The value of the property is calculated based on its current market price. The spouses can agree on the amount of compensation themselves, or they will have to call an appraiser. This option is most often used if the value of the disputed property is small, and it is quite possible to compensate for it.

This is how a car, household appliances, jewelry, etc. are usually divided. Compensation does not have to be paid immediately. Spouses can agree on a phased repayment of debt.

The second option - the property is sold, and the spouses receive half of the proceeds. This is how most often large property is divided, as a rule, real estate: an apartment, a private house, a land plot.

The second option, with its apparent simplicity, is not always realistic for application. So, one of the spouses may insist on the sale of property, and the other on the transfer with subsequent compensation. And there is no law that would oblige spouses to divide property according to the second option. In fact, it will not be the property itself that will be divided here, but the cash proceeds from its sale.

Another important point: property should be divided in an ideal proportion: 1/2. Thus, when dividing a country house with a land plot, it is unacceptable for one spouse to be awarded a plot, and the second a house. If this happens in court practice or in accordance with the agreement of the spouses, then this can lead to big problems in the future. So, it is not possible to sell the house and the plot separately. In this case, half of the plot and half of the house should go to one spouse, and the other half of the house and plot to the second.

The stumbling block is often inherited property. For example, a family lives in an apartment that the husband inherited from his deceased parents. In this case, you must carefully read the text of the will. If the property was left to only one spouse, then it is not divided after the divorce.

Another thing is if the will states that the spouses are bequeathed shares in an apartment or house. In this case, the division occurs strictly in accordance with the shares. For example, the husband - 3/4, and the wife - 1/4, and nothing else.

If there is no will, and only one of the spouses is recognized as the heir, then he will be the owner of the property after the divorce.

Debts and mortgages of spouses

Debts, like property, are divided between divorcees strictly in half. The same applies to loans. Spouses will need to renegotiate the contract with creditors. The previous contract will be terminated, and each of them will be individually signed with its own, which provides for the repayment of the debt on the same terms (duration and interest rate), but the amount of payments will be recalculated.

However, by mutual agreement, the spouses can continue to repay loans or debts jointly in the same proportion. In this case, renegotiation of the contract is not required.

It is also possible that one of the spouses fully takes care of the loan. For example, if a car becomes his property, he can reissue a loan for himself. Wherein:

  • the new owner of the car must compensate the second spouse for half the market value of the transport;
  • after repayment of the loan, he must pay the second spouse half of all those contributions that were paid jointly by them during the marriage.

If the mortgage apartment is divided, then three options are possible:

The first way is the division of the apartment into shares, therefore, mortgage payments are also divided by shares. In this case, the spouses sign additional agreements to the main one, according to which they undertake to pay certain amounts to the bank.

After the mortgage is paid, the spouses become homeowners in the shares established by additional agreements. In practice, this method is rarely used, since spouses do not always have the same income and can divide payments strictly in half.

If payments (and shares in the apartment) are not divided in the same proportion, then this may meet with resistance from both the bank and one of the spouses.

The second way is to re-register a mortgage for one of the spouses. In this case, the second is completely released from any obligations to repay the loan, but at the same time is deprived of the right to own housing. After the mortgage is paid off, he must compensate the spouse for half of all mortgage premiums paid during the duration of the marriage.

The third way is to sell the apartment and pay off the mortgage debt with the proceeds.. The remainder is divided between the spouses in half. At the same time, the bank undertakes to sell the apartment, the spouses themselves do not take any part in this.

It is important to understand that in any scenario, the consent of all three parties is required: both spouses and the bank. In the case of a judicial division of property, the last word most often remains with the bank, and usually banks choose the third option, as the most hassle-free.

There are two ways to dissolve a marriage: voluntarily and through the courts. The division of property can also take place voluntarily (by mutual agreement) and in court.

If the spouses were able to agree on what will belong to whom after receiving a certificate of divorce, then they can conclude. It details exactly what property will belong to whom. In this case, it is necessary to take into account some subtleties:

  • in the agreement, you need to describe the item as accurately as possible, indicate its name, brand, color, etc.;
  • it is desirable to indicate the approximate market value of the property;
  • if the division is carried out with the involvement of a specialist appraiser, then the price must be indicated;
  • the agreement must be signed by both spouses;
  • the agreement is recommended to be certified by a notary.

To draw up an agreement, you can involve specialists: appraisers, lawyers, a notary, etc., as well as in the judicial division of property.

Important: property not included in the agreement is divided in court in accordance with the law.

Through the court, the property is divided in an ideal proportion of 1/2, if the property cannot be physically divided, then it is transferred to one of the spouses with the condition of payment of compensation.

If the spouses have concluded, then the division of property takes place in accordance with this document. Spouses can conclude a prenuptial agreement at any time of the marriage, even immediately before the divorce.

In fact, the agreement on the division of property and the marriage contract duplicate each other, but additional issues can be raised in the marriage contract, for example, the order of residence of common children and maintenance obligations of the spouses.

When concluding a voluntary agreement or a marriage contract, the parents themselves determine what shares in the property they will own, regardless of the presence of children or their absence. If they agree that the parent with whom the children will live will get more property, it will be so. If they divide the property in half, then this is also their decision.

But if the case is being considered in court, then the presence of minor common children can play a key role in the distribution of property. The matter is that the court is obliged to consider first of all interests of minors. And he can meet the needs of the parent with whom the children remain, and transfer to him most of the property, for example, an increased share in the apartment.

When resolving controversial issues, priority will also be given to the parent with children. For example, the court can give a car to a mother with two children, provided that she knows how to drive a car and she needs transport to take the children to school.

How to apply for the division of jointly acquired property in court?

In which court to file a claim?

Before filing a lawsuit, you need to decide where to file a lawsuit, in which court. As a general rule, the court hears cases at the place of residence of the defendant. So, if the former spouses have already divorced and, after receiving a certificate of divorce, decided to divide the property, then the case will be considered at the place of residence of the defendant.

At the place of residence of the plaintiff, the court will sit only if he:

  • has minor children in care;
  • due to health reasons, cannot attend a meeting in another city or district.

If the amount of the disputed property does not exceed 30,000 rubles, then an application must be submitted to the world court. If the issue price is higher, then the application is submitted to the city court.

The statute of limitations for the division of property is 3 years. This means that one of the spouses can apply for the division of property within three years after the divorce, namely after receiving a court decision on the dissolution of the marriage.

More details about the statute of limitations and from when it is considered are written.

Claim Form

The claim is filed with the court office. There are recommended forms of filing a claim, they can be found at the information stand in the courtroom or requested from the office. You can also entrust the preparation of a court statement to a specialist.

The claim must include:

  1. the name of the court;
  2. information about the plaintiff and the defendant;
  3. information about marital status;
  4. data on property, grounds for possession of the disputed property;
  5. the price of the claim (the total value of all property);
  6. specific requirements.

You can use this sample application for the division of property: Download.

Required documents

The following documents will need to be submitted along with the application:

  1. your passport;
  2. passport or birth certificate of the child or children;
  3. a document certifying marital status - a certificate of marriage or divorce or a court decision or an extract from a court decision, if the certificate has not yet been ordered;
  4. information about the composition of the family;
  5. valuation of the disputed property (ordered from an independent appraiser);
  6. receipt for payment of state duty.

Payment of state duty

The amount of the state duty is established by Article 333 of the Tax Code and depends on the value of the claim. The higher the value of the claim, the higher the amount of state duty. It will need to be paid before filing an application with the court, if desired, it can be included in the claim of a claim for reimbursement of legal costs. If the claim is filed with the mutual consent of the spouses, then they must pay the amount of the state duty in an equal amount.

Conclusion

In order for all the information presented in the article to form a big picture, we recommend that you review it again in this structured form:

This is a kind of cheat sheet on the division of property. Case Studies.

23.09.2014

Increasingly, divorce is becoming the only way to resolve family conflict. According to Rosstat, the number of divorces has been increasing in recent years, and their number in relation to marriages in 2013 was approximately 50%.

This disappointing statistics suggests that every year several hundred thousand divorced couples are faced with the issue of property division and are forced to deal with complex legal issues related to this process: when should property be divided; what property is to be divided; Is it necessary to go to court? whether a marriage contract saves from the division of property, etc. We will try to answer these and many other questions further.

1. Who owns property acquired during marriage?

The law provides for two regimes of property for a couple who have registered a marriage:

  • law;
  • negotiable.

legal mode. As a general rule, all property acquired during marriage is the joint property of the spouses. This means that both husband and wife have equal rights to the property, no matter in whose name the property is registered. For example, in marriage, a car was purchased and registered in the name of the husband. In this case, the wife has the right to use the car on an equal basis with her husband, and the husband can dispose of (sell, donate, etc.) this car only with the consent of his wife.

To common property in accordance with Part 2 of Art. 34 of the RF IC include, in particular:

  • income received as a result of labor, entrepreneurial and intellectual activity;
  • pensions, benefits, other payments that do not have a special purpose;
  • movable and immovable things bought with common money, etc.

And if the marriage is not dissolved, but the spouses live separately, and they do not have a common budget?

Acquired property in a registered marriage, despite separation, is still considered joint property. And only the court can establish that those things that were acquired by each of the spouses during the period of separation are the property of each of them.

Example.

The Moscow City Court refused to satisfy the claims for recognition as joint property - lease payments that were received by the defendant during the period when he and the plaintiff already had no family budget, but the marriage was still registered (appeal ruling dated October 2, 2013 on case N 11-24680).

Consent of the spouse to the transaction on the disposal of common property. In order to sell, donate or otherwise dispose of joint property, the consent of both spouses is required.

Notarial consent of the spouse to the transaction is required in the following cases:

  • real estate transaction;
  • the law requires notarization and (or) registration of the transaction.

In all other cases, it is not necessary to obtain documented consent; the law emphasizes that the consent of the second spouse is assumed.

But, unfortunately, spouses are not always honest towards each other, and one of them can dispose of common property without the consent of the other. What to do in this situation? How to protect your rights?

When a spouse disposes of property against your will, you must go to court to invalidate the transaction under which this property was transferred to another person. To do this, it will be necessary to prove that the second party who acquired the property knew or should have known that the other spouse did not agree to the transaction.

Example.

The wife went to court to invalidate the contract for the sale of vehicles concluded by her husband. At the same time, she referred to the fact that her husband did not receive notarized consent from her to sell the car. But the court pointed out that such a transaction does not require obtaining a notarial consent, since this agreement does not need to be certified by a notary or registered. In addition, the court noted that in making such claims, the wife had to provide evidence that the buyer of the car must have known or knew that she opposed the sale. But the spouse did not provide such evidence, therefore the Moscow City Court refused to satisfy her requirements (Appeal ruling of March 20, 2014 in case N 33-2336).

contract mode. This regime involves the conclusion of a marriage contract, which must be certified by a notary. If a couple chooses such a regime of property, then the property that is acquired during the period of marital relations is no longer considered joint, but is distributed between the spouses in the manner and amount determined by the marriage contract. If desired, a married couple can conclude a marriage contract both before marriage and during family life.

The agreement may provide for separate, shared or joint regimes for all property, its individual types or for the property of each of the spouses.

If you want to own not only the property that you own at the time of the conclusion of the contract, but also that which will be acquired in your name during the marriage, then this condition must be reflected in the contract. The law allows extending the effect of a marriage contract to property that will be purchased in the future.

When concluding a marriage contract, it is worth observing the requirements of the law, since the court may invalidate the contract, for example, if it is proved that its terms put one of the spouses in an extremely unfavorable position.

Example.

The husband under the marriage contract received significantly less property than the wife. According to this document, the spouse received 2 land plots, a residential building and 3 apartments. And the husband, according to the marriage contract, during the divorce, remained only with the car and the money that would be in the bank account during the divorce. But by the time of the divorce, he had sold the car and spent the money on his family, but there were no other funds in the account. Taking into account such an unequal position of the spouses, the court declared the marriage contract invalid (Moscow City Court, appeal ruling of April 30, 2013 in case No. 11-17943).

If, under a marriage contract, all the property of a married couple is divided or registered in shared ownership, then there is no need to divide the property. This is one of the advantages of the contractual regime. After all, a pre-arranged agreement between spouses regarding property rights significantly reduces the risk of future conflicts regarding this issue.

2. What property should not be divided?

Not all property acquired during marriage is common. According to the law, property belongs exclusively to one spouse and is not subject to division if:

  • the property went to the spouse free of charge, for example, as a gift, by inheritance or by way of privatization;
  • property is of an individual nature (clothes, shoes, etc.), with the exception of jewelry and luxury items;
  • the right to the results of intellectual activity.

Based on judicial practice, it should be borne in mind that not all property received by one of the spouses in marriage free of charge is his personal property. According to the law, in this case we are talking about property that passed to the spouse as a result of the transaction. Therefore, it is impossible to attribute to the property of one of the spouses the property that was received free of charge on the basis of an act of a public authority. Such property, taking into account other circumstances (family composition, purpose of property, content of the act), may be recognized as joint property.

Moreover, things that were purchased for kids, also will not be shared, but will go to the parent with whom the child will remain.

It should be taken into account that the property that is the property of one of the spouses (received free of charge during marriage or acquired before marriage), the court, at the request of the other spouse, may refer to common property. To do this, it is necessary to prove that during the period of marriage, the value of this property was significantly increased due to:

  • common property;
  • property of each spouse;
  • work of one of the spouses.

Example.

The husband filed a claim regarding the recognition of a residential building, received by his wife by inheritance, as joint property. The wife inherited a house, the condition of which was improved in marriage. The husband in court set out in detail the entire list of work carried out by him for the reconstruction and overhaul of the house. The court was also presented with a certificate that reflected the value of the house at the time of its purchase, and a report on its market value at the time of applying to the court. Also, in order to prove his words, the husband invited witnesses who confirmed the fact that repairs were carried out during the marriage. At the same time, the court noted that home ownership is all property located on a land plot, including a residential building, as well as outbuildings. Satisfying the demands of the spouse for recognition of the residential building acquired by the wife by inheritance, the court took into account the improvements made not only in relation to the residential building, but also to the outbuildings (Appeal ruling of the Volgograd Regional Court dated March 28, 2014 N 33-1457 / 2014)

3. Is it necessary to divide the property in a divorce?

It is possible to divide property not only simultaneously with the divorce, but also before this moment, as well as after the dissolution of the marriage.

It is necessary to take into account some features of the division of property before and after a divorce.

When dividing property even before a divorce, it must be remembered that the property that remains undivided, as well as that will be acquired after the division, refers to joint property. And if it comes to a divorce, then this property will have to be divided.

If, when filing a divorce, you do not want to deal with the issues of division of property yet, then it is worth remembering the statute of limitations. The law provides an opportunity to apply for a section within 3 years. At the same time, this period does not begin to run from the moment you filed for a divorce, but when you found out or should have found out about the violation of your rights. What does this mean? Suppose that after a divorce, you and your spouse still have a common apartment, but you did not want to live in it and found yourself another place of residence. Within 5 years after the divorce, you did not try to exercise your right to live in this apartment, and after this period, when trying to exercise this right, the second spouse began to obstruct you. In this situation, it turns out that you learned about the violation of your right to live in a joint apartment only 5 years after the divorce. Therefore, you have every right to apply to the court for the division of the apartment.

Example.

After the divorce in 2007, the former spouses had a residential building in joint ownership, but the wife did not go to court for a long time to divide the property and did not live in this house. And after 6 years (in 2013), the former spouse wanted to deprive the former spouse of the right to use this house in court. In response to such demands, the ex-wife asked the court to recognize the house as joint property and allocate her a share in this property. Despite the fact that much more than 3 years have passed since the divorce, the Omsk Regional Court indicated that the woman found out about the violation of her rights (the right to use the house) only when her ex-husband tried to deprive her of the right to use this house in 2013. Therefore, the limitation period has not expired (Appeal ruling of April 16, 2014 in case N 33-2055/2014).

Despite the fact that the law does not establish the statute of limitations from the moment of divorce, nevertheless, it is better not to delay the division of property after the dissolution of the marriage. After all, if more than three years pass after a divorce, you will have to prove in court the fact that you did not know about the violation of your rights for a long time.

4. What methods of division of property exist?

The law distinguishes two options for the division of property:

  • by agreement of the spouses, by concluding an agreement;
  • through the court.

The agreement of the spouses on the division of property is a simple written document, which, unlike the marriage contract, is certified by a notary only at the request of the couple themselves. In it, it is also possible to divide not all family property, but only part of it. Everything else will remain jointly owned.

Litigation is more complex and lengthy. When choosing it, the couple risks spending a lot of time, nerves and money. If you could not agree with your spouse on the division, then you need to determine which court will hear your dispute. With claims, the price of which does not exceed 50 thousand rubles, it is necessary to apply to the world court. If the price is higher, then the case will be considered by the district court. As a general rule, cases are heard in court at the place of residence of the defendant. But when a dispute arose over real estate, it is necessary to apply to the court at the location of this property. In addition, it is necessary to calculate and pay the state duty, the amount of which will depend on the value of the property being divided. Also an important point is the collection of documents that will confirm the ownership of the disputed property.

It should be noted that both by agreement and in court, property can be divided both before a divorce and after it.

5. How is property divided?

Usually the property is divided in equal shares. But sometimes the court can award one party a large share of the family property. The reasons for this decision may be the following:

  • taking into account the interests of minor children;
  • lack of income from one of the spouses for disrespectful reasons.

Example.

In one case, the Moscow City Court pointed out that the joint residence of minor children with one of the former spouses is not in itself a basis for derogating from equality of shares and increasing the share in the common property for the spouse with whom the children live (2 minor children lived with the plaintiff, appeal ruling dated March 18, 2014 in case No. 33-8089). In another situation, the Primorsky Regional Court awarded the ex-wife ¾ of the share of the common property. At the same time, the court took into account the fact that 5 minor children remained with her, she herself does not work, but is on parental leave (Decree of the Presidium of 04.22.2013 N 44g-38).

When the division has taken place in equal shares, but it is not possible to divide the property equally, the spouse can count on compensation from the second spouse.

In conclusion, I would like to note that just as the relationship of each married couple is unique, so its separation and issues related to this have their own characteristics. Despite the fact that the law contains general rules for all when dividing family property, in a particular situation they can be interpreted differently. The same facts, which the court in one situation considers insufficient to satisfy the claim, in another situation, in the presence of additional circumstances, the court may take into account. Therefore, before making a decision regarding the division of property and building tactics for its conduct, it is advisable to consult with a specialist.

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Many have already received certificates for financial capital from the state. However, questions about how they can be used do not become less. One of the topical topics for discussion is the fate of the certificate received during the breakup of the family. We will talk about whether maternity capital is divided during a divorce.

Maternity capital - what is it and to whom does it belong

One of the directions of our country's policy is to support the family, fertility and childhood. Families with two or more children are entitled to special assistance.

Since 2007, the state has provided special material payments to such parents, which are called maternity capital. In fact, these are targeted funds aimed at providing assistance to married couples, as well as single parents with children. They were meant to motivate them to have more than one child.

It is not the cash itself that is issued to the recipient, but only a certificate certifying their provision. It is registered, issued at the local branch of the Pension Fund.

You can spend them only for strictly defined purposes:

  • improve family living conditions;
  • put on the funded part of the pension;
  • pay for the education (of different levels) of children;
  • rehabilitation of children with disabilities.

Affiliation

By the name of this state program, some believe that capital funds can only be allocated to mothers. Indeed, most often the recipient of the certificate are women who have given birth to a second or next child. But other persons can be the recipient of the certificate in certain cases. For example, an adoptive parent or father, if the mother has died or is deprived of rights in relation to her children.

Despite the fact that these funds are allocated to help families (single parents) with children, the certificate is nominal. It is issued only to the recipient of funds without indicating the rest of the family members. It turns out that the purpose of providing a mat. capital support for the whole family. But in fact, the one who is indicated by the owner of this document can dispose of it. Therefore, even if the spouses wish otherwise, it will not work to divide these funds.

Is maternity capital jointly acquired property

By law, everything that is received or acquired during the marriage period belongs to the property common to the spouses. This applies not only to purchased items, but also to income received by the family. Any types of official earnings, income from entrepreneurial and creative activities, pensions are considered common. Other payments and things may also be considered jointly acquired.

In determining the ownership of payments, one must proceed from their nature. If they do not have a designated purpose, they will be joint. Otherwise, they belong only to their recipient.

Because mat. capital refers specifically to targeted payments, then it does not belong to the number of general income. If the certificate is issued to the wife, then the husband will not have any rights to it. And they will not share it in the event of a divorce.

Does the father have the right to maternity capital after a divorce

As it was already clarified earlier, the certificate certifies the transfer of targeted funds to a specific person. In fact, only the owner of the certificate can dispose of it. But spouses who are married usually decide on its use jointly. But this by no means relates the funds of capital to their common matrimonial property. Therefore, neither during the divorce nor after it does the father have rights to this capital.

Exceptions are cases when he himself was its recipient.

Division of property with the participation of mat. capital

The certificate and the funds that are listed on it are not considered joint for spouses. Therefore, it is impossible to separate them during the breakup of the family.

But in most cases, the funds are used to solve the family's housing problems. The certificate can be used to pay for an existing loan, make a down payment for its registration, purchase a home, or repair it.

Instead of targeted funds, the members of this family only own the property acquired with these funds.

During divorces, the division of an apartment purchased at the expense of a certificate raises many questions. Is it possible to divide housing acquired with the participation of financial capital and how to do it correctly, we will consider further.

How is an apartment bought for a mat. equity in divorce

Many do not understand whether an apartment bought with maternity capital is divided or not during a divorce. In order to answer this question, you need to know the following.

The condition for the allocation of funds for the purchase of housing or a mortgage is the subsequent registration of rights to it for all family members. After it is held, each of them, including children, will have their part.

In fact, they have shared ownership of this property. And the rules of her section are as follows:

  • it can be divided by agreement between all co-owners;
  • one of the co-owners may demand the allocation of his share;
  • if no agreement is reached on this issue, the dispute is resolved in court;
  • if the allocation of one share is impossible, then compensation is paid to its owner.

It turns out that each co-owner has the right to rely only on his share. Surprisingly, but usually in kind it is impossible to single out your part of the apartment. Therefore, you can get compensation for it or sell it to someone.

Is the mortgage housing purchased with mat. capital, divorce

Certificate funds help many to buy housing only in mortgage. The purpose of using the funds is to improve the living conditions of the family. They can buy housing without borrowing or with their participation. Regardless of whether mortgage funds were raised to purchase it or not, it is required to issue it for the whole family. This means that everyone will have the right to a part of the purchased apartment. And, as a result, he can only claim his share.

How to share if the funds were spent on housing repairs

The certificate means must be used properly, i.e. by appointment.

It is important to understand what to use mat. capital for normal repairs is not possible. We are only talking about reconstruction.

Its concept includes the improvement of existing housing, for example, an extension, an increase in area, strengthening of load-bearing structures. You can get a certificate for the specified purposes. But then you will also have to re-register the ownership of housing for parents and child (children). This means that each of them will be entitled to a part of it. How property is divided in such cases has been described earlier.

What to do if the certificate is used as a down payment when buying a house or apartment

Acquire housing with mat. capital can be different. One way involves making these funds as a down payment on the loan. In this case, funds can be used in full or in part.

But according to the law, even partial use of capital obliges their recipients to re-register housing for the whole family. Consequently, divorced spouses can only count on their shares. Parts of other co-owners are not subject to division.

By family property, it is customary to mean private property that belongs to all family members on a common basis.

Within the framework of the law on family property, each of the spouses has equal rights to the property that was acquired by them during the legal family life, as well as to income from the professional activities of their other half. As for the rights to property that was acquired before marriage or received as a gift, they are initially assigned to the original owner of the property.

From the moment of marriage, all material things and valuables that the spouses acquire are considered their common family property. The financial income of each of the parties is also common, and both husband and wife can claim them (on terms of equal shares). There are no exceptions to this - even if one of the spouses has a heavy workload or housekeeping, he still cannot have a large share.

Outside the jurisdiction of the law on family property is the right of each of the spouses to dispose at their own discretion of the property that was received by them as a gift or inheritance. In addition, it is forbidden to claim the things of a family member if they belong to the category of things for individual use (shoes, clothes, etc.). The exception is jewelry and luxury goods.

The property of a minor child is fully controlled by the parents. When a child reaches the age of majority, parents can use the things and valuables of their offspring with his permission, but they cannot perform any inconsistent operations with them. The child, in turn, does not have the right to claim the property of the parents and commit illegal actions against him.

In general, the law on family property is considered to be a rather controversial law, therefore, many situations that have arisen on the basis of the division of property are usually considered on a purely individual basis.

Disposition of family property

The right to dispose of family property is established on the basis of a general agreement that is formed between the spouses in the course of marriage. One member of a married couple can use this or that family property at his own discretion only after discussing this issue with his partner. If consent to the disposal of property has not been obtained, then the actions committed by the spouse can be challenged as a result of the injured party going to court.

The notarized consent of the second spouse is required only when it is planned to conclude any transaction involving real estate or requiring the intervention of lawyers. If consent is not obtained, and the actions are committed, the second spouse can also go to court to challenge the legality of the transaction. Contestation of the transaction is possible within one year from the moment the injured party learned about its conclusion.

The process of jointly acquired property implies an equal division of property between spouses. The only exceptions are those cases where property relations are regulated by a previously concluded marital agreement.

In some situations, the judicial commission may refuse to comply with the rule of equality of marital shares regarding marital property. So, for example, as one of the reasons that led to an increase in the share of a spouse, a child’s illness or upholding children’s interests can become. A reduction in the share can be made if one of the spouses began to irrationally dispose of joint property, refused to pay alimony, etc. Refusal to comply with the principle of equality of shares can be made only justified and with the provision of all evidence.

Property that was acquired or received by one of the spouses before marriage does not fall under the family property regime, which means that all rights to it always remain with the owner. In addition, when dividing property, you cannot claim personal items (except for luxury items)

Most often, problems in the division of family property are observed when there are attempts by each of the spouses to become the full owner of residential real estate. As a rule, such litigation lasts a very long time, so each of the disputing parties incurs large financial losses caused by paying for various kinds of lawyer services. That is why the best option for the division of housing is a peaceful agreement.

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In most cases, people entering into do not think that someday they will have to get divorced. Therefore, they do not bother with the study of legal divorce, but with the questions “how to be?” and "what to do?" begin to attack lawyers when faced with all the pitfalls of the divorce process.

Meanwhile, in order for the divorce process to be as painless as possible, you need to know some legal subtleties, which we will tell you about.

Legal regime of property

The first thing to be determined when proceeding with the division of property is the regime of its legal regulation, that is, the rules applicable to it. The Family Code of the Russian Federation (SC) provides for two legal regimes for the property of spouses:

Law;
- contractual;

Legal - this is the general, most common version of the regulation of marital property. According to Art. 34 of the UK, property acquired by spouses during marriage is their joint property. In other words, everything that you acquire during marriage (from a spoon to a family estate) will be the common joint property of the spouses and will be divided equally during a divorce, unless otherwise provided in the marriage contract (if any), or other legal document.

Negotiated is a regime that is less common, but gives much greater guarantees when dividing property. In the contractual regime, two main instruments are usually used - and an agreement on the division of property.

A marriage contract can be concluded both before the registration of marriage, and at any time during the state of marriage. An agreement on the division of property is usually concluded before the dissolution of the marriage or immediately after it.

Where to start "dividing"?

So, the procedure for the division of property between former spouses begins with the establishment of the fact - whether a marriage contract or an agreement on the division of property was concluded.

If there is a marriage contract, then the difficulties will be minimized. After all, as a rule, in a well-drafted prenuptial agreement, everything is prescribed in great detail (who gets what color pan, and who gets what brand of car). The only thing that will need to be focused on is whether all the acquired property is covered by the contract and whether the clauses of the contract violate the rights of any party.

If there was no marriage contract, an agreement on the division of property was not reached and signed, and there is no hope for reaching a compromise, then there is only one option - the division of property in court.

What property is to be divided?

As you already understood, if during a divorce it came to the division of property, then the property jointly acquired during the marriage will be divided. Jointly acquired property includes: salary; business income; income from the results of intellectual property (a written book, a song article, a film made); pensions; allowances; acquired at the expense of common funds movable and; acquired shares, deposits, securities. At the same time, the right to common property is also enjoyed by the spouse who did not have income for good reasons. For example, if the wife did not work and was engaged in housekeeping and raising children, she has the right to common property.

spouses in common property

As a general rule, spouses have the right to receive equal shares of their marital property. It does not matter to whom things and property are registered or registered. Property is divided in court precisely on the principle of equality. Acquired is divided by establishing shared ownership of it, or by transferring to each different things of the same value, or by transferring objects to one with payment of compensation to another. What and to whom to transfer, the judges decide, taking into account the established procedure for using things and the needs of the parties. Acquired can be divided into parts - separately, money, cars, etc. or all at once. You can not divide into categories like "I need real estate in Moscow, and you in Uryupinsk."

In addition, there are some other nuances:

Property that was received before marriage, as well as received by one of the spouses as a gift or by inheritance during marriage, is his property. In other words, if your spouse had an apartment before marriage, and your beloved aunt gave you a yacht on February 23 (already married), then after the divorce, everyone will remain with their apartment and yacht. But there is one "but"! If the court recognizes that during the marriage, investments were made in this property at the expense of the joint property or personal property of the other spouse, and they significantly increased the value of the property, then the property may be recognized as joint property. For example, if your wife had a small house in the village before marriage, and you built a castle out of it at your own expense and managed to confirm this in court, then the castle will be recognized as joint property.

Things for individual use (clothing, shoes, etc.), with the exception of jewelry and luxury items, although acquired during marriage at the expense of the joint funds of the spouses, are recognized as the property of the spouse who used them, i.e. your wife's Versace dresses and your Zarya suits will not be shared.

Exclusive rights to the results of intellectual activity (inventions, computer programs, written books, paintings, etc.) will be recognized as the personal property of their author, but this does not apply to income. As they say, the name on the cover of the book you wrote will be yours, and share the income with your spouse.

The property acquired by each of the spouses after the actual termination of family relations while living apart may be recognized by the court as their personal property. But again, you have to try hard and prove in court that you bought the car with your personal funds only after you left your wife (or left your husband)

Finally, children's things are recognized as belonging specifically to children and remain with the parent with whom the children will live.

We must not forget about the common debts of the spouses, which reduce the common property and are distributed among the spouses in proportion to the shares awarded to them, i.e. if the spouse lost 100 thousand rubles in cards, then the court may reduce the share due to him in the division of joint property by this amount.

Of course, far from everything can be divided in kind, according to the principle: half for you, and half for me. For example, a one-room apartment, a car, a painting, an airplane, etc. are not divided into two. In this case, it is possible to replace the share due to one of the spouses with monetary compensation calculated on the basis of the average market value of the divisible item. If the former spouses fail to voluntarily agree on the amount of such compensation, it is determined by the court.

Such specific property, as a spouse's share in the ownership of an object, is also included in the total property mass during a divorce.

In fact, when separating the joint property of the spouses from their personal property, much more difficulties can arise, on which the former spouses themselves, and lawyers, and judges stumble. Therefore, when drawing up a marriage contract and when dividing property in court, we advise you to use the services of notaries, whose experience in drafting marriage contracts in Russia is the largest.

the union of a man and a woman registered with the civil registry offices. Unregistered actual marital relations (civil marriage) do not give rise to legal consequences - that is, the rights and obligations of spouses in accordance with the Family Code of the Russian Federation, as well as a marriage concluded according to a religious rite. Registration is carried out only with the personal presence of those entering into marriage, representation in this case is not allowed.legal entities and individuals who enter into or have concluded an agreement with each other. A party to the agreement may be a state (the Russian Federation, its subjects), which act on an equal footing with other participants in civil law relations.this is an agreement of persons entering into marriage, or an agreement of spouses, defining the property rights and obligations of spouses in marriage and (or) in the event of its dissolution. The marriage contract is concluded in writing and is subject to notarization.land plots, subsoil plots and everything that is firmly connected with the land, that is, objects that cannot be moved without disproportionate damage to their purpose, including buildings, structures, construction in progress, as well as parts of buildings intended to accommodate vehicles (vehicles -places). Immovable things also include aircraft and sea vessels, inland navigation vessels subject to state registration.part of the property belonging to the owner, owned by two or more persons (common property).