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How to apply for a division of property. How to draw up a statement of claim correctly? Divorce with division of property: general provisions and legislative principles

Divorce and the subsequent division of property is one of the most problematic and controversial cases that lawyers and ordinary citizens have to face. 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.

Dear Readers! Our articles tell about typical ways of solving legal issues, but each case is unique.

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The property is divided and not divided

According to the law, it is divided jointly acquired property. It is quite difficult to establish what exactly is subject to division and what is not.

Jointly acquired property is the property acquired by the spouses during their marriage.

However, there are a few exceptions when the property is personal property and not subject to section if it:

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

Besides, personal property is not shared e.g. clothes, shoes, personal hygiene items, etc., and tools for the implementation of professional activities... For example, it can be a taxi driver's car.

Property owned by children 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 stay.

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

The lawyer tells about what is shared and what is not:

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 activities;
  • inappropriate 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 items can be physically divided... 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 of how to divide physically inseparable property.

First option: the property is transferred to one of the spouses, and he pays compensation to the other party in the form of half of the value of this property. Compensation can be either monetary or 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 realistic to compensate for it.

This is how cars, household appliances, jewelry, etc. are usually divided. Compensation does not have to be paid immediately. The spouses can agree on the phased repayment of the debt.

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

The second option, with its seeming simplicity, is not always realistic for use. So, one of the spouses can 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, not the property itself will be divided here, but the money received 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 that one spouse be assigned a plot, and the other 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 a house and a 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.

Inherited property often becomes a stumbling block. 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.

It's another matter if the will stipulates that the spouses are bequeathed shares in an apartment or house. In this case, the division takes place 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 break of the marriage.

Spouses' debts and mortgages

Debts, like property, are divided strictly in half between divorces. The same goes for loans. The spouses will need to renegotiate the contract with the creditors. The previous agreement will be terminated, and each of them will individually conclude its own one, 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 together in the same proportion. In this case, there is no need to renegotiate the contract.

It is also possible that one of the spouses fully undertakes the loan servicing. For example, if a car is transferred to him, he can re-register a loan for himself. Wherein:

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

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

The first way - dividing the apartment by shares therefore, mortgage payments are also split by share. 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 an 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 the 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 payments paid during the marriage.

The third way is to sell an apartment and pay off mortgage debt using the proceeds... The remainder is divided in half between the spouses. 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 case, 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 problem-free.

There are two ways to dissolve a marriage: voluntarily and through a court. 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 the divorce certificate, then they can conclude... It describes in detail what kind of property will belong to whom. In this case, it is necessary to take into account some subtleties:

  • the agreement must 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 section is made 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 accounted for 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. The spouses can conclude a marriage contract at any time of the marriage, even just before the divorce.

In fact, the agreement on the division of property and the prenuptial agreement duplicate each other, but additional issues can be raised in the prenuptial agreement, for example, the order of residence of common children and the alimony 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 stay, will get more property, so it will be. If the property is divided in half, then this is also their decision.

But if the case is considered in court, then the presence of minor common children can play a key role in the distribution of property. The fact is that the court is obliged to take into account, first of all, the interests of minors. And he can go to meet 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 a parent with children. For example, a court may transfer 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 file a lawsuit for the division of jointly acquired property?

Which court should the claim be filed with?

Before filing a claim, you need to decide where to file a claim, to 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 the 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 if only that:

  • has minor children on support;
  • for health reasons cannot attend a meeting in another city or region.

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

The statutory limitation period 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 to dissolve the marriage.

More details about the limitation period and from what moment it is considered is written.

Sample statement of claim

The statement of claim is submitted to the court registry. 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.

It will be necessary to indicate in the statement of claim:

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

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

Required documents

Together with the claim to the court, you will need to provide documents:

  1. your passport;
  2. passport or birth certificate of a child or children;
  3. a document certifying marital status - a certificate of the conclusion or dissolution of marriage or a court decision or an extract from a court decision, if the certificate has not yet been ordered;
  4. a certificate of the composition of the family;
  5. assessment of the disputed property (ordered from an independent appraiser);
  6. a receipt for payment of the 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 price of the claim. The higher the cost of the claim, the higher the amount of the state duty... It will need to be paid before filing an application to the court, if you wish, you can include in the claim a claim to reimburse 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 look through it again in this structured form:

This is a kind of cheat sheet for the division of property. Examples from judicial practice.


Filing a statement of claim is sometimes the final decisive step for those spouses who have tried but failed to reach a compromise regarding the division of joint property. Most often, this process is fraught with many misunderstandings and disputes - who owns what, who gets what. And only the court can dot the i's.

Before starting a long and troublesome trial, spouses need to analyze the situation, assess their chances of a successful outcome of the case, think over their actions, and inquire about procedural procedures. This article is devoted to all the relevant issues of filing a claim for the section of joint ownership.

What can and cannot be divided

During family life, husband and wife acquire a lot of different property. First of all, it is necessary to find out which property can be divided and which cannot be divided.

The Family Code of the Russian Federation determines that everything acquired by a husband and wife during marriage is joint property. These are salaries / pensions / scholarships, apartments and houses, vehicles, money savings, household items. It does not matter who acquired the property, whose money was spent for this, in whose name the property was registered - it is all common.

The only exception is personal property - it is not shared. Personal property includes everything purchased before marriage, as well as all donated and inherited property, even if the gift or inheritance procedure took place during the marriage. Personal items (clothes and shoes, hygiene items, etc.) are also not shared.

The property that was purchased for minor children (toys, clothing, educational supplies, sports equipment) is also not divided.

You can read more about this in articles "and" ".

When to Divide Joint Property?

Family law does not establish requirements for the period of division of joint property. It is possible to divide property both during the divorce and after the end of the divorce procedure.

But, as practice confirms, it is better to do it as soon as possible. And for good reason:

At first, the more time passes after the divorce, the less convincing any evidence becomes: checks or receipts are lost, witnesses forget important details of their testimony, life circumstances change and arguments weaken.

Secondly, inflation, depreciation, amortization. At the time of divorce, the market value of the property is assessed. The more time passes after that, the more it loses in value.

Thirdly, statute of limitations. 3 years after the dissolution of the marriage, the presentation of property claims against the spouse will be difficult.

Fourth, the duration of the lawsuit of the division of property is several months, and with deliberate delay - even longer. The longer the issue of the division of property is postponed, the longer it will take until the property dispute is resolved.

Fifth, there is a risk of unfair behavior of the spouse (for example, illegal transactions with common property before its division). Conscientious behavior of the spouse can also play against him (for example, the court may not take into account the repayment of the loan made after the divorce before the division of property and debt obligations).

When to file a claim for division of property

It is clear that one should not delay too much with the beginning of the division process. But what is the legal time frame for this?

In family law (clause 7 of article 38 of the RF IC) it is established for filing a claim for the division of matrimonial property. It is three years old. True, it does not specify from what moment the statute of limitations begins. But article 9 of the RF IC, dedicated to the timing, refers us to the norms of civil law, in particular, to clause 1 of Art. 200 of the Civil Code of the Russian Federation, according to which the course of the period during which a claim for the division of matrimonial property can be made begins from the moment when the plaintiff learns of the violation of his rights by the defendant. This is also indicated by the resolution of the Plenum of the Supreme Court of the Russian Federation No. 15 of 05.11.1998.

Thus, the three-year limitation period starts counting not from the day of the divorce, but from the day when one co-owner learned about the violation of his rights by the other. This can happen many years after the divorce, if there are reasons for it.

Is it possible to file a claim for the division of property after a divorce?

So, the law allows you to go to court with a claim for the division of property ...

  • during marriage;
  • simultaneously with the divorce proceedings;
  • after a divorce, and not even immediately, but many years after the dissolution of the marriage, if the 3-year limitation period is observed.

It often happens that spouses divorce by mutual consent through the registry office - this procedure is faster and easier than divorce in court. And after the divorce, sometimes after a long period of time, they divide the property acquired during their married life. Sometimes, after a divorce, spouses continue to peacefully use the property acquired in marriage (living quarters, cars, furniture and appliances, land and a country house), and the reason for the division of property after a divorce may be abuse or violation of the rights of one of the co-owners by the second co-owner.

Example:

The married couple Gordienko lived in marriage for many years, during this time they built a house in which they lived with their adult children. When the divorce occurred, the former spouses did not go to court for the division of property, but made it on their own, “in words,” since they continued to live in the house together and use everything they owned together. And only when the ex-husband decided to leave, and to lease the half of the house belonging to him to his relatives, a dispute arose between the co-owners and the need to divide the joint property became obvious.

As mentioned above, a claim for the division of property must be filed no later than 3 years after the plaintiff became aware of the violation of his rights to joint property.

The law does not prohibit going to court with a claim for the division of matrimonial property even after a 3-year period. But it does not guarantee that the statement of claim filed so late without good reason will be accepted and considered by the court.

The possibility of dividing property after a divorce, if more than 3 years have passed, depends on what are the grounds and reasons for such a step. If, more than 3 years later, the plaintiff learned about the violation of his property rights by the co-owner, ex-husband or wife, then the limitation period begins exactly from the moment when he learned about such illegal actions. But if there were no violations of his property rights, he has no grounds for extending the expired 3-year limitation period.

Example:

The Antonovich spouses divorced, but continued to use the summer cottage together, bought during marriage and registered in the name of her husband. Subject to the rules of joint use of a summer cottage, there is no reason to divide it after 3 or more years. It's another matter if the husband decided to sell a summer cottage plot in his name without taking into account the interests of his ex-wife, who is a co-owner of the matrimonial property. At this moment, it is possible and necessary to file a claim with the court.

Procedure for filing a claim

So where do you start filing a claim? Going to court with an application for the division of property is necessary if the spouses could not agree and divide the acquired by mutual agreement. The judicial order presupposes:

  1. Submitting an application for the division of property.
  2. Submission of claims.
  3. Presentation of evidence.
  4. Trial.
  5. Issuance of a judicial act with a detailed indication of who and what property is transferred.

Which court considers the division of property in case of divorce?

The case on the division of matrimonial property is considered either by a district (city) court or by a magistrate's court.

The magistrate's court is considering a claim, the price of which does not exceed 50 thousand rubles. Claims with a price of more than 50 thousand rubles are considered by the district (city) court.

The case on the division of matrimonial property will be subject to jurisdiction by the district (city) court even if the cost of the claim is less than 50 thousand rubles, but the claim contains other claims that are subject to consideration in this court (on divorce, on determining the place of residence of the child , on the recovery of alimony).

The cost of the claim is the value of the joint matrimonial property that the plaintiff claims upon division in court. The cost of the claim also includes the amount of money to be collected and specified in the statement of claim - alimony, forfeit (fine, penalty), debt.

As a general rule, a claim for the division of matrimonial property is filed at the place of residence of the defendant. You can submit an application at your place of residence if, in addition to the requirement for the division of property, the claim contains requirements for divorce or the recovery of alimony.

Submission of documents to court

The result of its consideration depends on how legally correct, complete and detailed the statement of claim will be, how well-reasoned the arguments and convincing evidence will be.

How to draw up a statement of claim correctly?

  1. The so-called "cap" consists of the name of the court, the data of the plaintiff and the defendant (full name, place of residence), as well as the price of the claim;
  2. Then follows the title of the document - "Statement of claim on the division of joint property of spouses";
  3. The main body of the claim includes data on ...
  • date and place of marriage and divorce;
  • minor children born in wedlock;
  • whether there was a division of property earlier, whether a marriage contract or an agreement on the division of joint property was concluded;
  • a list of property that is the subject of the dispute (name, location, technical characteristics, distinctive features, date and place of acquisition, ownership - personal or joint);
  1. Reference to the norms of legislation on the procedure for dividing joint property (Article 39 of the Family Code of the Russian Federation);
  2. Claims for the division of joint ownership:
  • to divide property in equal or unequal shares with justification of the reasons for the inequality of shares - living with minor children, incapacity for work;
  • a list of property that the plaintiff intends to receive into his ownership and property that he proposes to transfer to the ownership of the defendant;
  • the amount of compensation if the property cannot be divided equally in kind;
  1. Date of filing of the claim;
  2. Plaintiff's signature.

In addition to the statement of claim, you will need to submit:

  • passport;
  • documents on the conclusion and dissolution of marriage;
  • birth documents of common children;
  • documents confirming the presence of common property: copies of technical passports for cars, extracts from the USRN for real estate, purchase and sale or contract agreements, checks and receipts;
  • documents confirming the exclusion of property from the general;
  • other documents;
  • a receipt for payment of the state fee. The calculation of the amount of the state fee is based on the value of the claim (the total value of the joint property).

State duty

When filing a claim for the division of matrimonial property, a state fee is paid. The statement of claim must be accompanied by a document confirming its payment. Due to the absence of such a supporting document, the claim will remain without progress, and if a check or receipt for payment of the state duty is not attached within the prescribed period, the court will return the statement of claim.

The amount of the state fee is calculated based on the price of the claim - the value of the property and the amount of money to be recovered, which the plaintiff claims in case of divorce (as a rule, half of the total value of the property). A special formula by which the state duty is calculated is set out in Art. 333.19 of the Tax Code of the Russian Federation. It consists of a fixed amount and an interest rate.

You can read more about the calculation of the state duty in the article, and if you still have questions or need help, contact our lawyer for a free consultation.

Since the amount of the state duty can be quite impressive, a deferred payment, installment plan or a reduction in the amount of the state duty is possible.

Trial and judgment

During the consideration of the case, the court listens to the arguments of the parties, considers the evidence provided, if necessary, ensures the protection of property by imposing an arrest and prohibition on the alienation of property, appoints an independent assessment of all property of the spouses or a certain part of it.

There is an established judicial practice of considering claims for the division of matrimonial property, based on the norms of family law (Articles 34, 37-39 of the Family Code of the Russian Federation). In the overwhelming majority of cases, the court divides everything equally. And if the division is equally impossible, then the spouse who gets the most part must pay monetary compensation to the second spouse who is left with a smaller part.

In exceptional cases, an unequal partition is possible. One of the spouses can receive the most part in such cases as single-handed upbringing and maintenance of common minor children, unfair and inappropriate spending of family budget funds by the second spouse.

When determining what property each of the spouses will get, the court takes into account factors such as occupation, living conditions, place of work, income level, health status, and so on.

Example:

Two years after the divorce, Orlova went to court with a claim to share the car. The car was purchased on credit by her ex-husband, citizen Vasiliev, even before marriage, but during her married life, the balance of the loan was paid from the family budget. In addition, after the accident, the restoration of the car was required, which also included family funds. After the divorce, the spouses agreed to share the car, but since a year later Vasiliev moved to another region, the implementation of the agreement became impossible. Later, Orlova found out about the unhindered sale of a car registered in the name of her ex-husband and went to court with a claim for the division of property. Having considered the claim, having examined the documents submitted by the plaintiff (a loan agreement, bank statements and receipts, an administrative protocol, an expert assessment of damage to a car, a receipt for the purchase of spare parts, an agreement on carrying out maintenance and repair of a car), the court decided to oblige Vasiliev to pay his ex-wife half of the proceeds from car sales sum of money.

Settlement agreement

Even during the trial, the spouses have a chance to divide the joint property at their own discretion. They may conclude - until the judge leaves the courtroom to make the final decision in the deliberation room.

If the court is convinced that the Amicable Agreement was concluded voluntarily, its conditions do not infringe on the property rights of the husband or wife, it confirms it by its decision.

Enforcement proceedings

If the division of property took place simultaneously with the dissolution of the marriage, the spouses must register this act with the registry office and obtain a divorce certificate.

Next, they will have to enter into ownership of the awarded property and register the right to real estate. If one of the spouses is prevented from enforcing the court decision, it is necessary to apply for the compulsory collection of property.

Ask an expert lawyer for FREE!

Divorce is unpleasant and difficult for most couples. If the former spouses have property claims, the process becomes more complicated. The division of property after a divorce that has not yet expired can be less painful if there is a marriage contract or the goodwill of the parties. If there is neither one nor the other, you will have to go to court. But first, you need to understand what property is subject to division in case of divorce and when it makes sense to seek help.

What is to be divided

The division of joint property after a divorce occurs according to the established rules. All movable and immovable property acquired during the period of marriage is divided. The parties will share:

  • All real estate: apartment, garage, cottage, room, palace.
  • Land plot, shared construction, share.
  • Transport vehicles.
  • Business, bonds, stocks.
  • Bank deposits.
  • Household appliances and furniture.
  • jewelry.

If the spouses separated, but did not file a divorce, all property acquired by both parties during this period can be recognized as common and subject to division. The division of property after a divorce, the limitation period of which has not expired, will include only what was acquired before the official confirmation of the separation.

It is impossible to share furniture and clothes of children, items purchased for their needs or contributions in their name. The child's property remains with the parent with whom the children remain. In addition, personal belongings other than jewelry are not included in the division of property of spouses after divorce. But there may be exceptions to this rule: if a fur coat is sold, the spouse has the right to demand the division of the funds received for it.

An apartment belonging to one of the spouses before the start of family life cannot be included in the division of property after a divorce, like any other property received before the marriage. If during the period of marriage one of the spouses inherited material values, they are also not subject to division.

Loan section

Today, a loan is a very popular way to get money. And if a large amount can be taken only with the written consent of the spouse, then the bank provides a small financial assistance only to one of them. When initiating the division of property after a divorce, the spouses do not want to share the loans if their signature is not signed under the agreement. The court considers each situation individually. If the money is taken with the consent of both spouses and spent on the needs of the family, the debt will be divided equally between the spouses.

But what if the loan was taken by one party to meet personal needs without notifying the spouse? More recently, the courts recognized such debts as general and divided them in half in most cases. However, since April 13, 2016, loans are recognized as joint only when they have been spent on a family. These expenses must be proved by the party that requires the inclusion of loans in the division of property after the divorce.

Debt section

The division of the spouses' property after divorce occurs in equal shares. If it happened otherwise and one of the parties received a large part, then the debt obligations will also be unequal. So, if the husband was awarded 2/3 of the common property, then 2/3 of the debts will be given to him.

Documents for the court

If less than 50,000 rubles, documents must be submitted to the magistrate's court. If the cost is higher, the district court will deal with it.

The following documents must be attached to the application:

  • Passport or other proof of identity.
  • Divorce certificate (copy must be notarized).
  • Documents for disputed property: checks, warrants, technical passports, receipts, certificates of ownership.
  • Help on the composition of the family.
  • Paid state duty.

Testimony does not have a significant impact on the division of property after a divorce.

Statute of limitations

Judicial practice in property division cases is not entirely unambiguous. According to Art. 9, clause 7 of the RF IC, the court can be filed within three years. But the catch is that these years are not counted from the moment of divorce.

Where does the countdown come from?

It seems that the division of property after a divorce, the statute of limitations of which has not expired, should take place no later than three years after the receipt of the document testifying to the breakup of the family. However, not everything is so simple with this question.

Three years begin their countdown from the moment when one of the parties learned about the violation of his property rights. Also, the countdown date is the day when the spouse should have found out about it. This approach to the issue significantly changes the situation, because the division of property after a divorce, the statute of limitations (5 years, and 10, and even 30, the rights may not be violated) which is hypothetically extended, is a completely different matter. It often happens that a man leaves everything to his wife, judging that the property should go to the children and the abandoned wife. But over time and the emergence of a new family, his priorities may change, unresolved housing issues will require going to court for the division of property.

Do I need to rush to section

It is difficult to imagine that a modern person has no idea about the timing. Nevertheless, it is not uncommon for one or both spouses to be in no hurry to divide property.

Despite the possibility to divide the acquired even after the expiration of three years, the reasons for this must be very compelling. Most experts recommend not delaying the division of property after a divorce. The statute of limitations ends in 36 months, and the fate of a later claim is up to the judge. Moreover, strong evidence is required that the spouse did not previously know about the violation of his rights.

If, for example, after the divorce, the spouse left the apartment to his wife, but after some time he found out that the property was sold or other persons settled there, he has the right to demand division. Moreover, the countdown of three years begins from the day on which the ex-husband learned about the fate of the apartment.

It should be understood that postponing the division increases not only the price of real estate, but also the amount of legal costs. In addition, the longer one of the spouses single-handedly uses the common property, the more difficult it will be to force him to divide the property. Laziness, nobility, or national hope for "maybe" can cost a significant part of the total savings. You should not pull with the section, it is better to file it at the same time as the divorce.

Case studies

Judicial practice on the division of various property and debts of former spouses is very extensive. To understand the general trend, consider as many examples of similar cases as possible. Several cases will be considered below.

Example with a loan

During the marriage, the spouses took out a loan for a car. The contract was signed in the name of his wife, who used the car until the divorce. Loan payments were made from the family budget.

After some time, the wife filed a lawsuit for the division of the loan. She showed that the debt was paid in part, and demanded that the remainder be divided equally between her and her ex-spouse.

Having examined the circumstances, the court decided to satisfy the claim in full, to leave the car to his wife, but ordered her to give her husband an amount equal to the cost of the car.

In the trial, the former spouses entered into an agreement. Their agreement allowed the woman to keep the car, not to pay the money, but the spouse does not have to pay the loan either. The agreement was approved by the court.

Example No. 2

In the marriage, the spouses bought an apartment, a car, and had children. After 20 years of family life, the wife announced that she was leaving for another, and filed for divorce. The ex-husband, who was in a state of shock, moved out to his parents, forgetting about the shared apartment. I took myself only a car.

After 4 years, the ex-husband found out that the apartment was sold. He went to court with a demand to divide the funds received under the joint property deal. However, the court dismissed his claim as the statute of limitations had expired.

Example No. 3

The married woman moved to another city because her father was in need of care. A year later, her husband sent her divorce papers, which were signed by her. She was able to return to her city 5 years later, after the death of her father. She could not get into the apartment she shared with her husband, because his new wife kicked her out.

The woman went to court with a request to restore the statute of limitations. An experienced lawyer managed to prove her innocence, as a result of which the court restored the term, and the ex-wife was able to receive half of the common property.

Conclusion

No matter how difficult a divorce is from a moral point of view, you cannot give in to emotions. First of all, you need to respect your interests and get everything that is required in such cases by law. The best way out is to draw up a list of common property and go with it to a specialist who will coolly and competently draw up a voluntary agreement.

If a lawyer, whose head is not clouded by feelings, goes to negotiations with the second party, there is an opportunity to avoid litigation, additional expenses and peacefully divide everything acquired by back-breaking labor.

Each spouse has every right to receive his share of what was acquired during the marriage..

After a divorce, it is more convenient for parties who have disagreements in property and non-property disputes.

This right is regulated by Article 38 of the Family Code of the Russian Federation entitled "Division of the common property of spouses".

In accordance with this article, common property can be divided during marriage, after its dissolution at the request of either of the spouses, as well as at the request of the creditor for the requirement to divide the common property of the spouses in connection with the need to recover the share of one of the spouses.

Terms of the statement of claim

Simply put, the sooner an application for division of property is filed, the more likely it is to get what you need. The further the divorce date becomes, the more and more necessary evidence disappears, including witnesses, cashier's checks, receipts and other legally significant documentation. Therefore, do not tighten!

Another reason is that the division of property is carried out at market prices at the date of the trial, which means that over time things will lose their value, plus everything will become outdated.

The limitation period for the division of property after a divorce in accordance with Article 38, Clause 7 of the RF IC is 3 years from the date. Nevertheless, the Plenum of the Supreme Court of the Russian Federation in one of its Resolutions pointed to paragraph 1 of Article 200 of the Civil Code of the Russian Federation.

This part of the article stipulates that the limitation period should be considered not from the date of divorce, but from the day from which the person learned or should have learned about the violation of his right.

That is, after the dissolution of the marriage, the spouses can use the common property equally and jointly, but if on some day one spouse prevents the other from exercising his rights to property, then it is from that day that the 3-year countdown will begin for presenting claims to the court.

How to properly file a claim for the division of property?

In its form, a claim for the division of property is very similar to, however, it is very important to draw up it correctly and reflect all the necessary information in it.

Therefore, spouses often have to seek help from professional lawyers on this issue.

Just one wrong word or not properly chosen phrase in the statement of claim will distort the plaintiff's requirements and deprive him of the opportunity to get what he needs.

In the upper right corner, the name of the court, the full name and address of the place of residence of the plaintiff and the defendant, and the price of the claim are indicated. The cost of the claim is calculated at the total price of the entire property to be divided.

The following information is prescribed in the text of the application:

  • The date of divorce (or the date of filing a claim for dissolution, the stage of the trial);
  • It is indicated that there was no division of property before, an agreement was not concluded, the parties are not able to divide the property on their own;
  • The list of property that was acquired during the marriage relationship, subject to division: its name, distinctive properties, links to documentation confirming the acquisition, the price of each property, its total value are prescribed;
  • Reference to article 39 of the Family Code of the Russian Federation on the mandatory division of property in equal shares or the requirement for division in other proportions with justifications (living with common children, disability, etc.);
  • The list of property that the plaintiff claims for his ownership, its name, value, justifications proving that he needs to receive this property to a greater extent;
  • The list of property (its name and value), which should be given to the defendant with justification that it should be he who should get it;
  • A link to receive compensation if the share of the property of one spouse is more expensive than the share of the second;
  • The plaintiff's claims, based on the entire text of the claim, a list of documents attached to the application, as well as the date and signature.

Mandatory documentation must be attached to the statement of claim:

  • or its copy of the entry in the marriage certificate, if it has already been terminated;
  • Divorce certificate, if it has already been received or a court decision on divorce;
  • Documents for property that is subject to division in the claim. These can be registration certificates, receipts, checks, sales contracts, vehicle passport;
  • Expert opinion, if they have been independently assessed;
  • Receipt of payment ;
  • Other documents at the discretion of the plaintiff or at the request of the court.

What will happen if you do not divide the property after the divorce?

Jointly acquired property in marriage has special legal protection.

Until the division is made, such property will retain the status of a common property.

You can file a claim for division or conclude an agreement on joint property at any time after the divorce. However, after the expiration of the limitation period of 3 years, one of the spouses can declare this to the court if they have applied for a division there.

The legal concept of "jointly acquired property" did not appear by chance and is intended, first of all, to secure the rights of spouses to equal possession, use and disposal of this property.

Since such property will be problematic to divide, in many families the question arises of the trust of the spouses to each other and the possibility of preliminary agreement between themselves, which is already causing concern for both. As you know, you never know how relations between people will turn out tomorrow.

Can lawyers help?

Property disputes, including the division of spouses' property, are the most difficult cases in court.

The legal proceedings on them can twist for months ahead. And often the final decision is delayed due to insufficient knowledge of the legislation, inability to correctly state their requirements, to draw up a statement of claim.

In this case, you can contact lawyers. They will help you file a claim for property and will even represent the interests of the plaintiff in court on the basis of a power of attorney.

Lawyers will provide that the shared property is not sold, lost or destroyed by the other spouse before the court makes a decision, they will assess the real shares of the spouses and will not allow the price to be overstated or understated.

On average, the cost of services for complex participation in a property division case ranges from 40 to 60 thousand rubles.

Single services:

  • Consultation (1 hour) - 1-2 thousand rubles;
  • The work of a lawyer at the pre-trial stage: will examine in detail the materials of the case, documents, draw up inquiries, interview witnesses and other participants in the case, conduct negotiations, clarify the details of the case (1 hour) - from 3 thousand rubles;
  • Drawing up a statement of claim (1 page) - 3 thousand rubles.

Thus, filing a statement of claim in court is a way out for those spouses who failed to reach an agreement in the pre-trial procedure. If you are not sure that everything will be done correctly, it is better to seek professional help.