Personal experience: how I got divorced with a prenuptial agreement

How we came up with the idea of a prenuptial agreement

We met my future wife through friends, they invited her and her friends to a party at my house. I really liked her, and it was mutual. We quickly began to live together, and a year later we got married.

Before marriage, she had a share in her parents’ apartment, but I had nothing. We both worked. Her dad is a businessman. She only worked 8 hours a week for him, but she earned a little more than me.

In the first year of our marriage, we rented an apartment. Then we decided to buy our own because we were expecting our first child. We chose a 100-meter apartment in Moscow for 12.5 million rubles in a panel house near the Shchelkovskaya metro station. They paid an additional 2.5 million rubles for repairs. The ownership of this property was, of course, registered in the name of the spouse.

4 years after this, the wife’s parents bought themselves an apartment near the Pervomaiskaya metro station. They offered to buy it for us in the same house. Then they asked 45 million rubles for it.

The new apartment was also registered in his wife’s name. But even before the purchase, she offered to conclude a marriage contract. I think this idea came from her parents in case of divorce, to make it easier to divide property. I reacted to the idea extremely calmly and immediately agreed. Both her and my parents were even surprised at this reaction. My father-in-law gave me almost all the money, and I understood that it was not my property.

A prenuptial agreement can be drawn up at any time during your married life and before. Without it, property acquired during marriage is divided in half upon divorce (with the exception of inheritance and donation). Once the document is signed, it cannot be terminated unilaterally. But if both want to make changes, then the old contract is terminated and a new one is concluded.

Negotiate and don't go broke

The state fee for registering an agreement with a notary is 500 rubles. But it’s rare that a notary will agree to certify the document you bring without any corrections. He may not like the wording, lack of supporting documents, etc. For their services in drawing up the “correct” document, notary offices charge from 3 to 10 thousand rubles, depending on the region and the scope of the contract.

To complete the contract, you may need the following documents:

certificates for all types of property that are included in the contract.
technical passports (car, apartment, dacha, etc.);
if the property was inherited, then the corresponding certificate;
extracts from registers for shares or securities. Check the full list in advance with the notary office that will draw up the paperwork.

A sample agreement can be downloaded from this link.

How divorce under a prenuptial agreement took place in practice

We lived together for 8.5 years. During this time, we had two children. The reason for the divorce was different expectations from each other. She wanted me to solve all the issues for her, and I expected a partnership in which we would decide everything together. She thought I was a bad husband and filed for divorce. We didn’t have any property disputes, but we got divorced not through the registry office (this is possible when there are no children), but through the magistrate’s court.

From the documents we needed:

our passports;
statement of claim for divorce;
marriage registration certificate;
marriage contract;
children's birth certificates;
receipt of payment of state duty (600 ₽).

The divorce process took two months, during which two meetings took place. The ex-wife still has a car and an apartment. I didn’t get anything because I sold my motorcycle during my marriage.

I also went into a serious minus in terms of expenses. I had to take out a loan for an apartment, the mortgage payment was 40,000 rubles per month, and I started paying 33.3% of my salary as alimony. So, despite the fact that we had a prenuptial agreement and there were no property disputes, the divorce undermined my financial condition.

Lawless Heart

The hero of the popular American TV series “How I Met Your Mother” lost his fiancée because of a prenuptial agreement that regulated literally every step of her, including Sunday pillow fights, regular breast augmentation and a ban on her parents visiting their home. In real life, according to Russian law, such an agreement, although it could offend the girl, would not have any real force.

The agreement can only regulate the financial relations of the spouses, i.e. You can prescribe which part of your salary should be given to the general budget and which part should be left as a nest egg. But it is impossible to prohibit going to corporate events with colleagues of the opposite sex. As a rule, lawyers advise to include in the document:

The fate of property that the parties acquired before marriage or will appear as an inheritance or gift from third parties.
Determine the shares in the purchased housing and draw up several options for its implementation in the event of a divorce.
Determine in advance the fate of property that has not yet been purchased (cars, fur coats, jewelry). As a rule, things go to the person who used them.
Register shares of ownership of bank accounts, securities or businesses.
Assign financial compensation to the spouse who: remains with children after a divorce / tried to save the family / turned out to be the injured party when the fact of the other half’s infidelity was proven / lost his legal capacity.
Determine the procedure for inheriting property if spouses have children from other marriages. A prenuptial agreement cannot predetermine the fate of children after their parents’ divorce. This issue is resolved in court, taking into account the interests of the child and his wishes, if he is already ten years old.

Will I enter into a prenuptial agreement in the future?

For now, I don’t even want to officially register my next marriage. For what? If people want to be together, they will be.

It seems to me that a prenuptial agreement is not needed in partnerships when the spouses have approximately the same income. And it doesn’t have to be concluded when both have nothing - for example, the family lives in a rented apartment.

But it is worth drawing up when one of the parties has significantly more values than the other. It is needed for safety. Both sides must understand and accept this. Then this is normal and will not cause any damage to the marriage.

Read on topic: Financial protection: do it before the wedding

Forgive me, my love

The proposal to draw up a marriage contract in Russia is almost like an insult. It just so happens that we are accustomed to believing in beautiful fairy tales, including those about “living happily ever after and dying on the same day.” So we know about prenuptial agreements mainly from American films and magazines about social life. Moreover, reading how the wife of an oligarch received a country villa and half of the business after a divorce, we invariably sigh and console ourselves: they are all about money, but there is no real love.

Meanwhile, family psychologists remind that divorces are not about the fact that “love has passed,” but about the lack of their own home, lack of money, problems with alcohol and other very prosaic problems. Their words are confirmed by depressing statistics from Rosstat. The notorious “incompatibility of characters” was not even included in the top ten real causes of divorce. Divorcing couples talked about the unaffordable mortgage, annoying relatives with whom they have to live, the constant separations they have to endure to earn money in other cities, and the unfair distribution of income within the family, where the husband works and the wife stays at home with the children.

In terms of the number of divorces, Russia ranks 4th in the world, behind Belgium, Belarus and the Maldives.

A prenuptial agreement, of course, is not a panacea for divorce, but at least it can make this process more civilized. In addition, it helps to avoid the situation in which 26% of Russian families find themselves, when a couple actually ends their marital relationship, but formally maintains the marriage due to difficulties in dividing joint property.

What cannot be included in a marriage contract

If you stipulate in the agreement that in case of betrayal, all the property goes to the second partner, then such an agreement can be declared invalid, according to the Pravocard service, citing the decision of the Supreme Court of the Russian Federation (clause 3 of article 42, clause 2 of article 44 RF IC, Determination No. 5-KG16-174 dated December 20, 2016).

“Due to the fact that the fact of infidelity cannot be objectively confirmed by any official documents, the condition of the marriage contract that in the event of infidelity all property goes to the second spouse will be unenforceable,” confirms lawyer Andrei Knyazev from the Knyazev and Partners board.

According to Andrei Knyazev, a marriage contract can only be concluded in relation to the property of the spouses; it cannot stipulate the conditions for the division of children’s property or the conditions for paying alimony for the maintenance of children. Also, the marriage contract cannot indicate unenforceable conditions or conditions that are contrary to the law, and cannot divide the personal property of the spouses, which is not common.

HOW TO CONCLUSION A MARRIAGE CONTRACT WITH AN APARTMENT MORTGAGE

If the husband and wife want to take out a mortgage, when concluding a marriage contract, they will need to draw up a separate chapter dedicated to the mortgage. If the agreement has already been concluded, you can make appropriate changes to it. In any case, you will have to provide the marriage contract to the bank, so you can also use its help in this part. Banks, as a rule, provide ready-made sample documents, but in order to insure against potential risks, in this case it would be a good idea to contact a lawyer who will check the bank’s option to protect your interests.

If you enter into a marriage contract at the same time as obtaining a mortgage, you can immediately add information about the property being purchased, about the bank, as well as basic information about the loan itself.

A large number of conditions will have to be included in the marriage contract. In particular, the following must be specified:

Specify the borrower and co-borrower.
Determine the status of the apartment. Who will be the owner, in what shares. Can a spouse who does not purchase a share in the apartment receive compensation?
Amount and procedure for making a down payment.
Procedure for incurring loan costs. You can decide who will pay the loan body, who will pay the interest, in what order.
Determine the sources of income that will go towards the mortgage. Here you can indicate your salary, income from business activities, etc.
Responsibility of husband and wife for failure to fulfill their obligations to make payments.
What happens to the debt if the spouses divorce.
Grounds for changes to the marriage contract and mortgage terms.

On what grounds can a marriage contract be challenged?

Pravocard cites several grounds for terminating a marriage contract through the court. This is possible if the agreement was concluded:

a person whose legal capacity is limited by the court (Article 176 of the Civil Code of the Russian Federation);
a person who, at the time of concluding the contract, was unable to understand the meaning of his actions or manage them (Article 177 of the Civil Code of the Russian Federation);
under the influence of delusion, deception, violence, threat or unfavorable circumstances (Articles 178, 179 of the Civil Code of the Russian Federation);
with conditions that place one of the spouses in an extremely unfavorable position, for example, depriving him of the right of ownership to all property acquired during marriage (Clause 2 of Article 44 of the RF IC);
when the court declares the marriage of the spouses invalid;
the marriage contract is not certified by a notary;
the marriage contract was concluded with the aim of covering up another transaction (sham transaction) or without the intention of creating the legal consequences that a marriage contract entails (sham transaction) (Article 170 of the Civil Code of the Russian Federation);
a marriage contract contains conditions that limit the legal capacity or capacity of the spouses, the right to go to court, the right of a disabled spouse in need to receive maintenance or regulate relations that cannot be the subject of a marriage contract, for example, personal non-property relations of spouses, their rights and obligations in relation to children (p 3 Article 42, paragraph 2 Article 44 RF IC).

From love to divorce: who needs prenuptial agreements and why?

Every year in Russia, almost 100 thousand couples enter into marriage contracts - the Federal Notary Chamber has spoken about this trend over the past two years. Alexandra Stirmanova from S&K Vertical S&K Vertical Federal rating. group Bankruptcy (including disputes) (mid market) group Arbitration proceedings (major disputes - high market) group Dispute resolution in courts of general jurisdiction group Family and inheritance law group Private capital 3rd place By revenue per lawyer (more than 30 lawyers) 10th place By revenue 24th place By A number of lawyers associate this with the fact that the general idea of a marriage contract is changing. If earlier it was perceived more as a way to protect the rights of a non-working spouse, now it is an effective protection mechanism for both. According to Olga Puchkova, leading expert of the family and inheritance law group of Pepelyaev Group Pepelyaev Group Federal rating. group Antimonopoly law (including disputes) group Arbitration proceedings (medium and small disputes - mid market) group Foreign trade/Customs law and currency regulation group Land law/Commercial real estate/Construction group Intellectual property (Registration) group Compliance group Tax consulting and disputes (Tax consulting) group Tax consulting and disputes (Tax disputes) group Labor and migration law (including disputes) group Digital economy group Intellectual property (Protection of rights and litigation) group Intellectual property (Consulting) group Natural resources/Energy group Pharmaceuticals and healthcare group Financial /Banking law group Environmental law group Bankruptcy (including disputes) (mid market) group Corporate law/Mergers and acquisitions (high market) group International arbitration group TMT group (telecommunications, media and technology) the media, or rather scandalous stories, could push some to an agreement division of property and, conversely, successful examples: those who understood the advantages of concluding such an agreement. Now, according to Kira Coruma, partner at AK Asnis and Partners Asnis and Partners Federal Rating. family and inheritance law group, the portrait of those who enter into a contract looks like this: 50 years old, above average income, have property, married for 20-30 years, want to get a divorce.

Despite the growing popularity of prenuptial agreements, many are still wary of them. In Puchkova’s practice, there are cases when a wedding was canceled after one of the future newlyweds proposed to conclude an agreement.

Perhaps this is for the best: financial issues in the family are very sensitive, and if the couple is not ready to talk about it right away, “on the shore,” then it will be even more difficult later.

Olga Puchkova, leading expert of the family and inheritance law group Pepelyaev Group Pepelyaev Group Federal rating. group Antimonopoly law (including disputes) group Arbitration proceedings (medium and small disputes - mid market) group Foreign trade/Customs law and currency regulation group Land law/Commercial real estate/Construction group Intellectual property (Registration) group Compliance group Tax consulting and disputes (Tax consulting) group Tax consulting and disputes (Tax disputes) group Labor and migration law (including disputes) group Digital economy group Intellectual property (Protection of rights and litigation) group Intellectual property (Consulting) group Natural resources/Energy group Pharmaceuticals and healthcare group Financial /Banking law group Environmental law group Bankruptcy (including disputes) (mid market) group Corporate law/Mergers and acquisitions (high market) group International arbitration group TMT (telecommunications, media and technology)

The rules and procedure for such an agreement are regulated by Chapter. 8 SK. The agreement can be drawn up before marriage, then it will acquire legal force with a “stamp in the passport,” or it can be concluded by a married couple. In this case, it is considered concluded from the moment it is certified by a notary. This procedure is mandatory. The notary will check the legality of the conditions and “weed out” unacceptable clauses.

The Supreme Court allowed spouses to divide personal property

Previously, Stirmanova says, notaries refused to include provisions on the spouse’s personal property in the marriage contract. When, for example, a husband decided to transfer to his wife an apartment that he had bought long before marriage. Disputes on this issue were resolved by the Supreme Court in 2021. Having considered case No. 2-1070/2018, the “troika”, chaired by Alexander Klikushin, gave the couples freedom, indicating that spouses can not only change the regime of assets acquired during marriage, but also decide the fate of personal assets. Svetlana Ivanova from FTL Advisers FTL Advisers Federal rating. Group Family and Inheritance Law Group Compliance Group Corporate Law/Mergers and Acquisitions (mid market) Group Private Capital Group Tax Consulting and Disputes (Tax Consulting) believes that if previously the courts considered the issue differently, now the practice will become uniform.

Marriage contract: expectation and reality

Prenuptial agreements in Russia are not as common as in the West. The media cite the most incredible points of agreement between stars and public figures. Tom Cruise and Katie Holmes have as many as 900 clauses in their contract, one of which is that the wife must agree with everything her husband says. And Bill Gates prescribed the right to cheat once a year. Another famous couple, Catherine Zeta Jones and Michael Douglas, estimated their infidelity at $5 million. Russian couples also tried to bring Hollywood scenarios to life. Thus, a family from the Moscow region entered into an agreement that if the husband cheats, he will lose his property. But later the Supreme Court declared this clause illegal. He noted that compensation for infidelity is not allowed in a marriage agreement (case No. 2-6102/2013). According to Stirmanova, everything related to personal relationships must be deleted from the contract.

What a marriage contract does not regulate:

responsibility for treason or insults;
the right to choose a profession;
getting an education;
duration of marriage;
the birth of a child of a certain gender;
who will the child stay with after the divorce?

As for the recognition of the entire marriage contract as invalid, this will happen if it “puts one of the spouses in an extremely unfavorable position” (according to Article 44 of the Family Code). In judicial practice, starting with the Resolution of the Plenum of the Supreme Court of November 5, 1998 No. 15, an approach has been formed according to which we are talking specifically about “deprivation of all property.” Thus, in case No. 2-2637/15, the Supreme Court declared the marriage contract invalid because the person was left without anything.

But unequal division of assets is not a reason to cancel the agreement, the courts come to this conclusion. So, the ex-wife received an apartment, and her ex-husband only received a garage and a car, and the Supreme Court did not find anything illegal here (case No. 2-96/2015).

What to include in a prenuptial agreement?

A prenuptial agreement can solve several problems, according to Denis Golubev, advisor in the judicial and arbitration practice of AB Egorov, Puginsky, Afanasyev and Partners Egorov, Puginsky, Afanasyev and Partners Federal Rating. group Antimonopoly law (including disputes) group Arbitration proceedings (major disputes - high market) group Compliance group Corporate law/Mergers and acquisitions (high market) group International arbitration group Maritime law group Tax consulting and disputes (Tax consulting) group Dispute resolution in courts general jurisdiction group Capital markets group Sanctions law group Family and inheritance law group Insurance law group TMT (telecommunications, media and technology) group Transport law group Labor and migration law (including disputes) group Criminal law group Pharmaceuticals and healthcare group Financial/Banking law group Private capital group Environmental law group Bankruptcy (including disputes) (high market) group Foreign trade activities/Customs law and currency regulation group PPP/Infrastructure projects group Land law/Commercial real estate/Construction group Intellectual property (Protection of rights and litigation) group Intellectual property ( Registration) group International litigation group Tax consulting and disputes (Tax disputes) group Natural resources/Energy group Digital economy group Intellectual property (Consulting) 1st place By revenue 1st place By revenue per lawyer (more than 30 lawyers) 1st place By number of lawyers Company profile:

protection of personal property of spouses acquired before marriage;
termination of the regime of joint ownership of new property;
protection of the personal assets of one of the spouses in the event of financial difficulties or claims against the other spouse;
resolving inheritance planning issues.

The exact wording of the prenuptial agreement depends on the couple: “There is no single solution for newlyweds and spouses with multiple marriages and significant assets.” But the expert recommends that all couples enter into contracts. According to Puchkova, a marriage contract is a flexible and universal instrument; in practice, not all of its capabilities are used.

What to include in a prenuptial agreement:

changes in the composition of the property of each spouse depending on the number of children: as a rule, two or three children born one after the other do not allow the mother to fully build a career, and therefore over time her financial situation becomes dependent;
provision for the maintenance of an economically weak spouse upon divorce. As a rule, this is a spouse who did not have an independent income and devoted his time and effort to children and the household. The agreement will help take into account his services to the family;
procedure for incurring family expenses during marriage. This will help maintain mutual respect, especially when the family is financially dependent on one person.

The spouses themselves decide what expenses to include in the agreement: from paying for housing and communal services to purchasing vouchers and expenses for the education of children. The main thing, Puchkova notes, is that both clearly understand what legal consequences may arise.

Protect your business

Now, according to Natalya Kotlyarova, partner of MGP Lawyers MGP Lawyers Federal rating. Group Bankruptcy (including disputes) (high market) Group Corporate Law/Mergers and Acquisitions (mid market) Group Land Law/Commercial Real Estate/Construction Prenuptial agreements are very popular among businessmen. The agreement gives entrepreneurs freedom in marriage, says Natalya Patseva, managing partner of FTL Advisers FTL Advisers Federal Rating. group Family and inheritance law group Compliance group Corporate law/Mergers and acquisitions (mid market) group Private capital group Tax consulting and disputes (Tax consulting). You do not need to obtain your spouse’s consent to make transactions with shares in an LLC, and in the event of a divorce, you can avoid splitting the company. That is, in fact, to separate business and family. Otherwise, if such a contract is not concluded, in the event of a breakup, the ex-husband or wife will receive part of the shares in the company. He or she can either sell it or try to exercise his corporate rights: interfere in the affairs of the company, including for revenge.

Personal or joint: division of property during divorce

Often the business partners of one of the spouses insist on concluding a marriage contract - they do not want family affairs to affect the common business. Koruma recommends including in the contract a provision on the transfer of the business to the spouse who runs it, and on the payment of maintenance or compensation to the other spouse. This should suit both parties.

The spouses share not only income, but also debts. That is, if a husband or wife took out a loan to develop a business, then debt collection can be applied to joint property. So, a marriage contract is also convenient for the other party in order to protect themselves from business risks. To do this, you need to include a clause on the personal responsibility of the businessman for debts associated with his work.

Lately, Puchkova admits, her colleagues have often been involved in comprehensive estate planning for entrepreneurs. Having grown their own business, they want their business to continue. Together with testamentary dispositions, a prenuptial agreement can help with this.

If it's a mortgage?

Mortgage debt is not common regardless of who the loan is issued to. Now, according to Puchkova, banks themselves often offer to conclude a marriage contract. This is also necessary for their convenience: it is easier to deal with one borrower than with two. Koruma believes that this is how banks insure themselves against non-repayment of loans and division of mortgage housing. A prenuptial agreement will help you agree in advance on how to return money to the bank in the event of a divorce and who will ultimately get the property. Then after the breakup there will be no questions.

The banks themselves recommend specifying several points in the agreement:

who is responsible for the down payment;
who will pay for the loan;
determine shares in real estate;
indicate the amount of compensation in case of relinquishment of the share;
how to divide property during divorce.

Puchkova says that in some cases banks will not approve a mortgage without a prenuptial agreement, for example, if one of the spouses has a “white” salary, and the other is semi-officially engaged in freelancing. The expert advises couples to first consult with specialists. It is possible to draw up an agreement under which one of the spouses acquires the property as personal property and assumes the entire debt. Even if his partner helps with payments, he will not receive legal rights to purchase.

There is no general recipe here, says Puchkova, you need to take into account all the details of the family’s financial situation.

There are also those who view the marriage contract as a tool for illegal actions. Thus, potential bankrupts use such agreements to hide property from creditors. But Coruma believes that the jurisprudence has already matured, and these attempts are often futile. Ivanova agrees with her. According to her, transactions involving the alienation of the debtor’s property are quite successfully challenged by creditors or financial managers. A prenuptial agreement is no exception. The Plenum of the Supreme Court in 2021 indicated that the spouse who received common property under a division agreement must return it to the bankruptcy estate (“On some issues related to the peculiarities of the formation and distribution of the bankruptcy estate in cases of bankruptcy of citizens”). One of the latest examples is case No. A51-12465/2018, in March 2021 the cassation declared the marriage contract invalid.

Family transactions in bankruptcy: do's and don'ts

Conscientious spouses will turn to prenuptial agreements even more often, Golubev believes. He attributes this to both the growth of mortgage lending and the abandonment of the prejudice that “a prenuptial agreement is a sure sign of a future divorce.”

Some people are still prejudiced against, say, televisions, Puchkov says ironically, but they are in almost every home. The same will happen with prenuptial agreements.

Anastasia Sinchenkova

Business
Supreme Court of the Russian Federation

Hand, heart and contract

To prevent the proposal to draw up a marriage contract from sounding offensive, you need to prepare for it. Psychologists advise, even at the stage of forming a relationship, to follow several rules that will help in the future to avoid conflicts based on money:

Choose a partner with similar views. Ideally, you should be from the same social environment and have the same attitude towards the institution of family as a whole.
Discuss your relationship model. Do not hesitate to ask your partner what role: sponsor, partner or sponsored he is comfortable with. Consider whether this model is right for you and don't expect it to change over time.
When preparing for your wedding, start the conversation first about less controversial legal issues: about taking out insurance or forming a joint pension, and only then move on to the topic of the prenuptial agreement.
In advance, ask the employees of the registry office or the agency (an outside authoritative person) organizing the wedding to raise the topic of the marriage contract in the presence of your other half and describe in detail all the advantages of this document.

conclusions

In the absence of a marriage contract, controversial issues during the division of property will have to be resolved in court.
The agreement must be notarized and must regulate only financial relations.
Children cannot be “divided” through a prenuptial agreement.
If the court finds the contract invalid, all property will be divided in half.
There is no need to be shy about offering your other half a prenuptial agreement; this is a common practice all over the world that helps maintain peace even after separation.

When is the best time to draw up an agreement?

Article 41 of the Family Code allows you to draw up a contract at any time - before or after marriage. If the couple signed the contract before the wedding, it will come into force only on the day of registration at the registry office.

Attention! After the dissolution of the union, a marriage contract cannot be concluded - only an agreement on the division of jointly acquired property.

Thus, a couple can draw up a prenuptial agreement for the purchased apartment at any time:

in advance before the wedding, specifying in the text that it applies to any real estate purchased during marriage;
immediately before the purchase, indicating both simply “real estate” and a specific apartment;
draw up a special marriage contract for prenuptial agreements, mortgages or maternity capital;
draw up a contract after the purchase - immediately or after many years, as it sees fit. In this case, the resulting shares of the spouses will need to be registered in the Unified State Register of Real Estate by making changes to the record of the purchased apartment.

The legal validity of a marriage contract does not depend on the moment of its preparation. However, if the contract is drawn up for the purposes of a residential loan, a housing loan or for government support, it is better to conclude it before purchasing an apartment.

Features of registering real estate during marriage

As mentioned earlier, all real estate purchased from the moment of registration of the marriage until the divorce is considered the joint property of the spouses. If the husband bought an apartment and registered it in his name, this does not matter: during the division, the wife will be able to receive her part.

Even if the second spouse was not working at the time of purchasing the apartment, the court will divide everything equally (Article 39 of the RF IC). They can allocate a larger share, acting in the interests of the child if he remains with him.

Conclusion: some people are offended if only one person tried to do everything for the family and earn money, and the second spouse did not make any efforts, but upon division receives half of the property. By law, it is considered public property. But there are several ways that will allow you not to divide and preserve your property after a divorce.

How we came up with the idea of ​​a prenuptial agreement