Institutions 

Family property. How property is divided in case of divorce, if the husband is the owner

Married citizens have personal property (both within and within the framework of property), which not subject to division and to whom they are responsible for their obligations. It includes things acquired by each spouse before marriage as well as property, received by a husband or wife as a gift or by inheritance or privatization... In addition, the personal property relations of the spouses can be settled in an extended manner.

Under certain conditions, the spouse's personal property can be recognized as joint, in which case it will be subject to division on general terms.

Property of minor children is not divided because it is not the common property of the spouses. In addition, when dividing joint property, the court takes into account the interests of minor children, allocating a large share to the parent with whom the minor child will live.

Types of spouses' personal property

By types of personal property spouses (in accordance with Article 36 of the RF IC) are:

  • things that a citizen owned before marriage;
  • donated property, things inherited through gratuitous transactions. An exception is wedding gifts, they are usually presented to a couple;
  • individual items (clothes, shoes, etc.);
  • exclusive rights to the results of intellectual activity created by the spouse - the author of the work;
  • prizes, medals, awards;
  • one-time benefits, material assistance;
  • monetary funds paid as compensation for moral damage.

Acquired before marriage property, regardless of its value, type (whether movable immovable), is personal property. This fact is confirmed by sales contracts, checks, certificates of ownership and other documents, the date of which is earlier than the date of marriage registration.

If a husband (wife) bought (exchanged) a thing while married, but he made this transaction with his personal money, which belonged to him before marriage, then such property will be recognized as personal. This rule is applied by the courts and in cases of imprisonment exchange agreements when the spouse exchanges his personal property for another thing, but provided that the condition of such an agreement is not an additional payment from the general income of the family. The property received under the exchange agreement shall be transferred to the personal property of the spouse who entered into the agreement.

In case of death (loss, damage) of the insured personal property, insurance compensation that is paid to the husband (wife) goes into his personal property.

Property, received as a gift, can be considered a one-time prize received by a spouse for outstanding achievements in the field of science, art, literature. For example, the Nobel Prize. Unlike them, bonuses paid by the employer on a regular basis cannot be considered such property. This type of bonus is part of the salary and, therefore, the joint property of the spouses.

The residential premises privatization agreement is gratuitous agreement. In accordance with such an agreement, the dwelling is transferred free of charge into shared ownership of persons entitled to use the dwelling under a social tenancy agreement.

Acts of state bodies or local self-government bodies, on the basis of which a land plot is granted on the basis of ownership or other property rights to one of the spouses, are not a gratuitous transaction and do not entail the emergence of personal property of one of the spouses.

The results of intellectual activity in accordance with Art. 1225 of the Civil Code of the Russian Federation (Civil Code of the Russian Federation) are works of science and literature, musical works, inventions, utility samples, industrial models, databases, etc. The author of these objects has, as a rule, the exclusive right to use them. A spouse can independently dispose of this right without obtaining the consent of the other spouse. But the income from the use of the exclusive right will be the joint property of the spouses.

In accordance with Part 4 of Art. 38 of the RF IC, the court can recognize as personal property acquired by each spouse during their separation upon termination of the relationship.

Recognition of personal property as joint property of spouses

The legislator in Art. 36 of the RF IC established a list of property non-personal:

  • jewelry, luxury items;
  • income from the use of exclusive rights to the results of intellectual activity.

The legislation of the Russian Federation defines “ jewelry". These are products made of precious metals (gold, silver, platinum, etc.) and precious stones (natural diamonds, rubies, sapphires, etc.), the list of which is established in the Federal Law of March 26, 1998 No. 41-FZ " About precious metals and precious stones».

Luxuries(expensive clothing, accessories) are determined in each specific case, taking into account the level of income of the spouses.

The personal property of the husband (wife) can be recognized as joint, if the plaintiff proves that during the period of his marriage, the price of such a thing was significantly increased in comparison with the original one. This price increase was due to the use of common property or personal belongings of the husband (wife). Such improvements include reconstruction, major repairs, and re-equipment of property.

The wife owned the house before marriage. During the marriage, she was engaged in housekeeping and raising a young son. During this time, the husband made major repairs to the house, completed the second floor. He made these improvements at the expense of his wages. After the dissolution of the marriage, the husband demanded that the house be recognized as joint property, since he had made repairs to the house at the expense of joint property. The court satisfied her husband's claims.

The recognition of personal property as joint occurs by a court decision. To do this, it is necessary to file a claim for the recognition of joint property of property belonging to one of the spouses.

The statement of claim must contain following:

  • surnames, first names, patronymics of the plaintiff and the defendant, their place of registration and place of actual residence, telephones;
  • the cost of the claim (the value of the disputed personal property);
  • the amount of the paid state duty;
  • the circumstances on which the plaintiff bases his claims (the fact of marriage, a description of the disputed property, the absence of a marriage contract, etc.);
  • evidence confirming the claims of the plaintiff (an indication that the property does not belong to the individual use of the defendant, documents and facts confirming that the value of the property was increased due to joint property or the contribution of the personal property of the plaintiff);
  • claim.

You must pay for the consideration of the statement of claim state fee, the size of which is determined depending on the price of the disputed property according to the rules of subparagraph 1 of paragraph 1 of Art. 333.19 of the Tax Code of the Russian Federation (Tax Code of the Russian Federation). The value of the property is determined by the plaintiff independently, but in the event of a dispute in court, an expert can be involved in the assessment.

The statement of claim is filed with the magistrate's court at the cost of the disputed thing no more than 50,000 rubles, if the specified value is exceeded - to the district court, at the place of registration of the defendant, and if the property is immovable, then at the location of the property. The limitation period is 3 years from the moment when the plaintiff learned about the violation of his rights in relation to the disputed property.

Levy of execution on personal property of spouses

In accordance with Art. 45 of the RF IC, a married person is liable for his obligations with all his personal property and in case of default or improper performance of obligations, creditors can foreclose on him.

A surety agreement secures the fulfillment of obligations by another person. By virtue of this, it is not a transaction for the disposal of the joint property of the spouses. It also does not need to be certified by a notary and in this regard, the notarized consent of the spouse for the transaction is not required. For these reasons, under the contract of suretyship, the guarantor personally bears responsibility and collection under this contract can be applied to any things and property rights belonging to this person.

In case of insufficient personal property, the creditor may require allotment of the spouse's share from the common property, which would have been owed to the debtor in the event of the division of the joint property.

If a citizen, being married, is listed as the sole owner of real estate in the Unified State Register of Rights to Real Estate and Transactions with It, then the creditor can foreclose on this property, considering the specified property as the personal property of the debtor. In this case, the debtor's spouse must go to court with a claim for the division of the common property and the allocation of the share due to the debtor, or demand the acceptance of the right to common ownership of the disputed property.

Property of children

In accordance with Art. 38 of the RF IC, things acquired by parents for meet the needs children are not subject to division and are the personal property of minors. These things are transferred to the parent with whom the minor will live. These things include:

  • clothes, shoes;
  • musical instruments;
  • sport equipment;
  • school supplies;
  • children's library.

Things do not belong to the child's property, although they are used by the child, but which can be used by the parents. Such things include furniture (with the exception of a nursery), a computer. This property to be divided on an equal basis with another joint property of the spouses.

Deposits in credit institutions opened by parents in the name of common minor children do not belong to the joint property of the spouses, are not subject to division and belong to the children. A parent who has made a contribution in the name of a child has the right to dispose of it only in the interests of the child. Otherwise, he may be charged minor action child.

Based on the interests of minors, the court in the division of property may deviate from the principle of equality of shares of the spouses, and distribute a large share to the parent with whom the child stays.

Questions from our readers and the consultant's answers

My husband took out a loan for personal needs, pledging our apartment. He could not give the funds on time, and now the trial is underway. He has no personal property with which he could repay the loan. Only my husband is listed on the Title Deed for the apartment, but it was purchased during the marriage. Will foreclosure be levied on our apartment?

In order for the court not to foreclose on your apartment, you need to divide your real estate in court or by agreement of the parties. The foreclosure will be levied on your husband's share in the apartment.

I am divorcing my husband and sharing our property, including a four-room apartment. Our minor daughters stay with me. Can I claim a larger share when dividing an apartment?

Yes, the court is obliged to allocate you a large share in the apartment, since in accordance with Part 2 of Art. 39 of the RF IC, the court has the right to deviate from the equality of the spouses' shares in their common property, based on the interests of minor children.

My ex-husband filed a lawsuit to have my personal property joint. Such property, in his opinion, includes a bedroom set, a washing machine, a bookcase, my astrakhan fur coat, which I have been wearing for 10 years. Will the court decide in his favor ?

With regard to furniture and household appliances, the court will most likely recognize them as joint property, unless you prove that you purchased these things with money received before marriage, or gave them to you or you inherited them. In relation to a fur coat, the court may dismiss the claim, since it is not a luxury item.

There are two widespread misconceptions among citizens that relate to how one of the spouses can dispose of real estate. The first is that you must have the consent of the second half for any deal. Second, if the certificate is written for the husband, then the wife has nothing to do with the house or apartment. Both, as mentioned above, are delusion.

What is considered joint property

On this score, there is a clear definition that the family code gives us. Without going into legal details, we will refer to it everything that is acquired by people who are married, that is, a husband and wife. What the common money was spent on. Shared property does not include only personal belongings. For example, the wife's evening dresses or the husband's razor.

An apartment or a country house that the spouses are buying is jointly acquired. Of course, you can draw up a prenuptial agreement, write down in it what and whose property is, but this will not be a guarantee that in the event of a divorce, one of the parties will not claim more. For an experienced lawyer, there are many ways to prove why a wife has the right to claim what is clearly attributed to her husband's property in the marriage contract.

In all other cases, that is, in the absence of a marriage contract, the property acquired in marriage will belong to both the wife and the husband, no matter who is entered in the registration certificate as the owner. That is why, when submitting documents for registration, one should stock up on the consent, and notarial, of the second spouse for the purchase or sale. And not to blame the employee of Rosreestr or the MFC for excessive curiosity when he asks the question "Are you married?"

When the apartment is only mine

The joint ownership regime stops working when the property is acquired before the happy wedding day. But there is also a small "but" here. It is quite possible to prove that joint money was invested in an apartment or house after the wedding. And these investments have greatly changed not only the appearance, but also the value of the property. In this case,

Unambiguously personal property is what was not bought, but received free of charge. It is something that is inherited, donated, or acquired through privatization.

Which property is better

If you trust each other infinitely, then it makes no difference who is officially considered the owner of the property. But, just in case, it is useful to know that ownership can be shared or shared. In the first case, the so-called marital share stands out. The fact is that the husband cannot give the jointly acquired to his wife, she already has a share in this property. First you need to divide it, and then give or sell it.

But after such a transaction, the property passes into the undivided possession of one of the spouses. Even without donation, if marital shares are allocated, then husband and wife can dispose of them independently from each other.

A common joint is not much different from a simple property registered in one of the spouses. Simply in this case, but without the share due to everyone.

By family property it is customary to mean private property, which 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 they have acquired during their legalized family life, as well as to the 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 values ​​that 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 the 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 spouse to dispose at his own discretion of the property that was received by him as a gift or by inheritance. In addition, it is forbidden to claim the belongings of a family member if they belong to the category of things for individual use (shoes, clothes, etc.). Exceptions to this are jewelry and luxury goods.

The parents are in full control of the property of a minor child. When the child reaches the age of majority, parents can use the things and valuables of their offspring with his permission, but they cannot perform any uncoordinated operations with them. The child, in turn, has no right to claim the property of the parents and to commit unlawful acts against him.

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

Disposal 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 during the marriage process. One member of a married couple can use this or that family property at their own discretion only after discussing this issue with their partner. If the consent to the disposal of the property was not obtained, then the actions committed by the spouse may be challenged as a result of the appeal to the court of the injured party.

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

The process of jointly acquired property implies an equal division of property between the spouses. The only exceptions are those cases when property relations are governed by a pre-concluded matrimonial agreement.

In some situations, the Judicial Commission may waive the rule of equality of marital shares regarding family property. So, for example, one of the reasons that led to an increase in the share of a spouse may be the child's illness or the defense of children's interests. A decrease in the share can be made in the event that 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 only be made on a justified basis and with the provision of all evidence.

Property that was acquired or acquired 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 the property is divided, it is impossible to claim personal items (except for luxury goods)

Most often, problems in the division of family property are observed when each of the spouses attempts to become the full owner of residential real estate. As a rule, such litigation takes a very long time, therefore, each of the parties involved suffers large financial losses caused by the payment of various types of lawyer services. That is why the best option for dividing housing is a peace agreement.

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Many have already received from the state certificates for financial capital. However, the questions about how they can be used continue to grow. One of the topical topics for discussion is the fate of the certificate received during the disintegration of the family. We will discuss further whether the maternity capital is divided upon divorce.

Maternity capital - what is it and who owns it

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

Since 2007, the state has allocated 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 designed to motivate them to have more than one child.

The recipient does not receive the cash itself, but only a certificate confirming its provision. It is personalized, registered at the local branch of the Pension Fund.

They can be spent only for strictly defined purposes:

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

Affiliation

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

Despite the fact that these funds are allocated to help families (single parents) with children, the certificate is personal. It is issued only to the recipient of funds without specifying the rest of the family members. It turns out that the purpose of providing mate. capital support for the whole family. But in fact, it can be disposed of by the one who is indicated by the owner of this document. Therefore, even if the spouses want the opposite, it will not be possible to divide these funds.

Is maternity capital a joint property

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

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

Since mate. capital refers specifically to targeted payments, it does not belong to the total income. If the certificate is issued for 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 a father have the right to maternity capital after a divorce

As it was already found out 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 to use it together. But this does not at all classify the means of capital as part of their common marital property. Therefore, neither during the divorce, nor after it does the father have rights to this capital.

The exceptions are cases when he himself was its recipient.

Section of property with the participation of mat. capital

The certificate and the funds that are on it are not considered joint for the spouses. Therefore, it is impossible to separate them when the family breaks up.

But in most cases, the funds are used to solve the family's housing problems. The certificate can be spent on payment of the existing loan, making the first installment for its registration, purchase of housing, its renovation.

Instead of earmarked funds, the members of this family only have the property acquired with these funds in their possession.

In case of divorces, the section of an apartment purchased with the funds of a certificate raises many questions. Is it possible to divide housing purchased with the participation of financial capital and how to do it correctly, we will consider further.

How an apartment bought on a mat is divided. divorce capital

Many do not understand whether an apartment bought with maternity capital is divided or not in the event of 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 the registration of a mortgage is the subsequent registration of rights to it for all family members. After it is held, each of them, including the children, will have their part.

In fact, they have shared ownership of this property. And the rules for its 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 not possible, then compensation is paid to its owner.

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

Is the mortgage housing purchased from the mat. capital, in case of divorce

The means of the certificate 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 attracted to purchase it or not, it is required to register 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 divide if funds were spent on home renovation

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

It is important to understand what to use mate. capital for ordinary repairs is not possible. It is only about the 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 these purposes. But then you will also have to re-register the ownership of housing for the parents and the child (children). This means that each of them will be entitled to a part of it. How the property is divided in such cases was described earlier.

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

To acquire housing with mat means. capital can be done in different ways. One way involves making these funds as the first installment on the loan. In this case, the funds can be used in whole or in part.

But according to the law, even partial use of capital obliges their recipients to re-register housing for the whole family. Therefore, divorcing spouses can only count on their own share. Parts of the remaining co-owners are not subject to division.

23.09.2014

Increasingly, divorce is becoming the only way out in resolving a 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 annually several hundred thousand dispersed couples face the issue of dividing property and are forced to deal with complex legal issues related to this process: in what time frame should the property be divided; what property is subject to division; is it necessary to go to court; Does a marriage contract save you from division of property, etc. We will try to reveal these and many other questions further.

1. Who owns the property acquired in marriage?

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

  • law;
  • contractual.

Legal regime. As a general rule, all property acquired in marriage is 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 her husband. In this case, the wife has the right to use the car on an equal basis with her husband, and the husband can only dispose of (sell, donate, etc.) this car with the consent of the 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, business and intellectual activities;
  • pensions, benefits, other payments that do not have a special purpose;
  • movable and immovable things bought with common money, etc.

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

The acquired property in a registered marriage, despite the 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 of joint property - rent payments that were received by the defendant during the period when he and the plaintiff no longer had a family budget, but at the same time the marriage was still registered (appeal decision dated October 2, 2013, No. case no.11-24680).

Consent of a spouse to a deal for the disposal of common property. To sell, donate or otherwise dispose of joint property, the consent of both spouses is required.

The notarized consent of the spouse for 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 with 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 your spouse has disposed of the property against your will, you need to go to court to invalidate the transaction by which this property was transferred to another person. This will require proving 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 transport, concluded by her husband. At the same time, she referred to the fact that the spouse did not receive from her notarial consent to sell the car. But the court pointed out that for such a transaction it is not required to obtain 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 spouse had to provide evidence that the buyer of the car should have known or knew that she was opposed to the sale. But the spouse did not provide such evidence, therefore the Moscow City Court refused to satisfy her claims (Appeal ruling of March 20, 2014 in case No. 33-2336).

Contractual regime. This regime involves the conclusion of a marriage contract, which must be certified by a notary. If a couple chooses such a property regime, then the property that is acquired during the marriage relationship no longer belongs to joint property, but is distributed between the spouses in the manner and amount that is determined by the marriage contract. If desired, a married couple can conclude a prenuptial agreement both before marriage and in the process of family life.

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

If you want you 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 the effect of the marriage contract to be extended 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 conditions put one of the spouses in an extremely unfavorable position.

Example.

The spouse received significantly less property than the wife under the prenuptial agreement. According to this document, the wife got 2 land plots, a residential building and 3 apartments. And the husband under the marriage contract during the divorce was left only with the car and money, which will be in the bank account during the divorce. But by the time of the divorce, he sold the car and spent the money on the family, but there were no other funds on 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 formalized into shared ownership, then there is no longer a need for the division of property. This is one of the advantages of the treaty regime. After all, a pre-arranged agreement between spouses regarding property rights significantly reduces the risks of future conflicts regarding this issue.

2. What property does not need to be divided?

Not all property acquired in marriage is shared. 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 character (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, the property that has been received cannot be attributed to the property of one of the spouses. free of charge on the basis of an act of a public authority... Such property, taking into account other circumstances (the composition of the family, the purpose of the property, the content of the act), can be recognized as joint property.

Besides, things which were acquired for kids, will also not share, but will go to the parent with whom the child will remain.

It should be noted that property that is the property of one of the spouses (received free of charge in marriage or acquired before marriage), the court, at the request of the other spouse, can be attributed 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 of the spouses;
  • labor of one of the spouses.

Example.

The spouse made demands for the recognition of the dwelling house inherited by the wife as joint property. The wife inherited a house, the condition of which in marriage was improved. The spouse in court detailed the entire list of the work he had done on the reconstruction and capital repairs of the house. A certificate was also presented to the court, which reflected the value of the house at the time of its acquisition, and a report on its market value at the time of going to court. Also, in order to prove his words, the husband invited witnesses who confirmed the fact of repair work during the marriage. At the same time, the court noted that home ownership is all property that is located on the land plot, including a residential building, as well as outbuildings. Satisfying the requirements of the spouse for the recognition of the dwelling house acquired by the wife by inheritance, the court took into account the improvements made not only to the dwelling house, but also to the outbuildings (Appeal ruling of the Volgograd Regional Court dated March 28, 2014 N 33-1457 / 2014)

3. Is it obligatory to divide property in case of divorce?

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

Some features of the division of property before and after divorce should be taken into account.

When dividing property, even before the divorce, it is necessary to remember that the property that has not been divided, as well as that will be acquired after the division, belongs to joint property. And if it comes to divorce, then this property will have to be divided.

If, while filing a divorce, you do not want to deal with the issues of the 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 begins to flow not from the moment you filed a divorce, but when you learned or should have learned about the violation of your rights. What does this mean? Suppose that after the divorce, you and your spouse still have a shared apartment, but you did not want to live in it and found another place of residence for yourself. For 5 years after the divorce, you did not try to use your right to live in this apartment, and after this period, when trying to use 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 go to court for the division of the apartment.

Example.

After the divorce in 2007, the former spouses had a jointly owned residential building, 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 ex-spouse wanted to deny the ex-spouse 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 to 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 in 2013 to deprive her of the right to use this house. Therefore, the limitation period has not expired (Appellate ruling of April 16, 2014 in case N 33-2055 / 2014).

Despite the fact that the law establishes the course of the limitation period not 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 the divorce, then 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 identifies two options for the division of property:

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

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

The judicial procedure 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 consider your dispute. With claims, the price of which does not exceed 50 thousand rubles, you must go to the magistrate's court. If the price is higher, then the case will be considered by the district court. As a general rule, cases are considered in court at the place of residence of the defendant. But when a dispute arose over real estate, it is necessary to go to 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 divisible property. 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 and after divorce.

5. How is property divided?

Usually the property is divided equally. But sometimes the court can award one party a large share of the family property. The reasons for that decision may be the following circumstances:

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

Example.

In one case, the Moscow City Court indicated that cohabitation with one of the former spouses of minor children in itself is not a basis for derogation from equality of shares and an increase in the share in common property for the spouse with whom the children live (2 minor children lived with the plaintiff, appeal ruling dated 03/18/2014 in case N 33-8089). In another situation, the Primorsky Regional Court awarded the ex-wife ¾ of the common property. At the same time, the court took into account the fact that 5 minor children were left with her, she herself does not work, but is on parental leave (Presidium decree of 22.04.2013 N 44g-38).

When the division has occurred 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 their separation and the issues related to this have their own characteristics. Despite the fact that the law contains general rules for the division of family property, in a particular situation they can be interpreted in different ways. The same facts that the court in one situation will consider insufficient to satisfy the claim, in another situation, in the presence of additional circumstances, the court may take into account. Therefore, before deciding on the division of property and building tactics for its conduct, it is advisable to consult with a specialist.

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