When divorcing is often the most difficult problem is the division of acquired property. It can occur both by voluntary agreement of the husband and wife, and in court.
In addition, not everyone knows that it is quite possible to carry out this procedure without dissolving the marriage - in the process of family life. But still, the division of property after a divorce is practiced more often.
Let's take a closer look at the basic terms.
Common property as a concept
According to the interpretation of the Family Code, only property acquired by the husband and wife during the existence of the marriage is considered common. These are incomes received by each of them from any legal type of activity, all social payments - benefits, pensions, etc. In addition, material assets acquired from these very common incomes belong to common property.
This category includes movable and immovable objects, bank deposits, shares, securities and much more, as well as an erected house and other buildings.
At the same time, it does not matter at whose name one or another material value was acquired. An exception can only be a situation when a different regime of ownership of property is officially prescribed in a marriage contract.
Rights of spouses
If there is a division of joint property, you should be aware that the rights of husband and wife are equal in this situation. In no case should one be prejudiced by one of them (usually his wife) who raised children at some point in time, did household work, or did not have an independent income for other completely valid reasons.
When the division of the common property of the husband and wife is made, it is required to determine the share of each in it. By default, these shares are taken equal, unless otherwise specified by the prenuptial agreement.
In practice, disputes often arise about who invested how much money in, for example, an apartment bought. Husbands often focus on their higher earnings, especially if the wife is sitting with the baby on maternity leave. But these arguments are completely unsound. The rights of spouses in this case are equal.
What is to be shared?
Section shall be subject to the common property available to the spouses, as well as to that which is held by third parties at the time of the division procedure. The requirements for general family obligations are also taken into account.
The Family Code of the Russian Federation (more specifically, its article 34) provides a list of property subject to division. This list is not final, it may include any "good" that can be acquired during the period of family life - both movable and immovable.
Any spouse before marriage could have their own property. If it is proved that in the process of family life investments were made in it, which significantly increased its initial cost (consumer value), then it can go into the category of joint ownership.
What is meant? Most often it comes to real estate. Suppose, before marriage, the husband owned a small house. Over the years of family life, through joint efforts, the dwelling was thoroughly repaired, an extension was built, and engineering equipment was updated. Such a house will be considered common even if the husband worked and earned money for repairs mainly, and the wife was engaged exclusively in raising children.
Personal property
This is something that belongs separately to each of the spouses and cannot be divided. What applies to him? The answer is given in Article 36 of the RF CC. This is all that everyone had before the moment of marriage. Another category of personal property is a gift or inheritance (i.e.on the so-called gratuitous transactions) by one of the spouses. This includes residential premises that have become the personal property of one of the spouses as a result of privatization. Why? Yes, because according to the law, privatization (that is, free transfer to ownership) of any housing is a gratuitous transaction.
You will also not have to share property received by the husband or wife under the contract in favor of third parties. Since it was not acquired at the expense of general family income. For example, parents buy an apartment at their own expense and transfer ownership to the married daughter. The wife of this daughter has no rights to this apartment.
What else is not subject to section?
It is not necessary to divide property purchased in marriage at the expense of the husband or wife. It means personal funds available before marriage.
Similarly, items for individual use are not subject to division. These include shoes, clothes, etc., except for luxury goods and jewelry. All necessary personal items, although purchased in a marriage, remain the property of the person who uses them.
If the property was acquired by the husband or wife after the family relationship has actually ceased (as is the maintenance of a common household), it also belongs to the category of personal property.
And what is not considered personal property?
This, for example, the so-called exclusive right that arises as a result of any intellectual activity carried out during marriage. We are talking about inventions, selection achievements, the development of new industrial designs, etc. There is a difference between the result of such an activity and its material embodiment - a painting, sculpture, model of technology. These things, like the income of the author, relate to common property.
This general rule does not apply if the prenuptial agreement provides for a different regime for disposing of property.
An exception may be the situation when the cost of copyrighted works is very significant, which is determined by experts.
Children's property
All that is acquired to fulfill the needs of minor family members cannot be shared in a divorce. Children's things (shoes, clothes, toys, school supplies) remain at the disposal of the spouse with whom the child will live after the divorce.
If in the name of the child a contribution was made by one of the spouses at the expense of their common property, it belongs only to the minor owner and cannot appear in the section.
Let us now consider how this very division of property takes place.
There are three options for the procedure. The first two of them relate to peaceful means of settlement - without going to court. The third option is a section in a judicial proceeding.
Marriage contract
This concept is a novelty in domestic legislation and so far is not particularly popular in Russia. We are only interested in its property part. From this point of view, a prenuptial agreement is the agreement of the spouses regarding their property rights and obligations.
Its main purpose is to clearly distinguish between the rights of husband and wife in material terms in the event of a divorce. For such purposes, a marriage contract can be concluded at any time (before the wedding, during marriage). The main thing is to write it in writing and be sure to notarize.
If the terms of the contract put one of the spouses in knowingly unfavorable conditions, the court may invalidate it. You should be aware that you can always challenge his conditions - there is no statute of limitations for claims in this matter.
A marriage contract is not concluded after the dissolution of the marriage - only during the period of its validity.
Spouses Property Sharing Agreement
This is the second peaceful option. Spouses may divide property by agreement at any time, both in marriage and after its completion.This is the difference from the marriage contract mentioned above, in which the division of property after a divorce is not possible. The agreement is certified by a notary at the request of the spouses.
Such an agreement provides for a large degree of freedom under the law. Spouses can stipulate almost any variant of the ratio of property shares. It is quite difficult to challenge such a voluntary agreement from a legal point of view.
Since the division of property (in marriage or in the process of divorce) peacefully is most preferable in any situation, the first two options for the division are optimal. And only when a compromise cannot be reached, does it make sense to refer the matter to court.
How are cases considered in court?
The choice of the competent court depends on whether the division of property takes place simultaneously with divorce proceedings or regardless of how much the disputed property is valued and whether the property is to be divided.
If the price of the claim is 50,000 rubles, such a dispute can be resolved by the justice of the peace. If it is a larger amount, the case is referred to the district court.
The territorial jurisdiction of the case depends on whether the property will be shared simultaneously with the divorce proceedings. In this case, the same court should deal with both claims.
A lawsuit regarding the division of property shall be considered at the place of residence of the defendant. When dividing real estate, you should file it with the court at its location.
But back to the voluntary agreement on the division and try to consider some of its nuances.
When is it?
An agreement on the division of spouses' property can be drawn up both in marriage and after a divorce, over a three-year period, which begins to begin from the moment when one of the spouses finds out that his rights are being violated.
Spouses (former spouses) - subjects of the agreement. Its subject is their jointly acquired property.
It should be noted that the concept of joint ownership also includes obligations of a property nature with respect to third parties, for example, bank loans. These negative assets are also subject to division. This does not include personal obligations that arose before marriage, such as hereditary debts, as well as child support for children from previous marriages, etc.
Common are debts arising in a marriage in the interests of the needs of the whole family. For example, a loan to purchase a shared apartment.
Form and content of the agreement
Before drafting such a document, it is required to determine the list of personal and the list of common (subject to division) property.
An agreement on the division of spouses' property must necessarily include determining the shares of each, securing specific objects for the husband or wife, developing a procedure for using and owning them.
The form of the document depends on the type of divisible property. Its movable part can be divided by a simple written contract. Notarization is optional.
Items should be described with the possibility of further identification and an indication of the cost, for which a property valuation will be required. As a rule, spouses themselves determine the market value adjusted for depreciation. It is advisable to indicate the date of purchase of a particular item.
It is possible to divide property worth up to 10 minimum wages and orally.
Real Estate Section
This issue is an order of magnitude more serious, and such an agreement on the division of spouses' property is made only in writing and is subject to state registration. It should contain all information about the object similar to transactions for the alienation of real estate.
First of all, a detailed assessment of the property should be made, according to existing market prices, taking into account all possible factors.
If we are talking about residential premises, it is immediately necessary to establish the procedure for using them in order to avoid further disputes.
How to make an agreement? Is there a specific pattern for this? The division of property by agreement may be executed in a document of any form. However, he must contain the surnames, first names, patronymics of the spouses, their passports and information about the place of residence. The agreement lists the property available and indicates what is transferred from it to the husband and what to the wife. Signatures of the parties and the date of the transaction must be present.
