Division of marital property through court and by agreement in 2021

The concept of joint property of spouses

Before understanding the types of regime for joint property of spouses, it is necessary to understand what joint property of spouses is.

In accordance with Part 1 of Art. 34 of the RF IC, property acquired by them during marriage is recognized as joint property of spouses.

What kind of property acquired during marriage does the legislator recognize as joint (part 2 of article 34 of the RF IC)?

any income (from labor, intellectual and entrepreneurial activities)
pensions, benefits and other payments that do not have a specific purpose (for example, maternity capital is a targeted payment and is not subject to division);
movable and immovable things;
securities, shares, shares in the capital of credit institutions and other commercial organizations;
other property acquired during marriage, regardless of which spouse it was acquired in the name of and/or which spouse contributed funds.

What real estate cannot be divided?

However, each spouse may also own real estate that is not subject to division. This includes:

Real estate that belonged to one of the spouses before marriage
Real estate received by one of the spouses by inheritance, as a gift, or as a result of other gratuitous transactions. Including premarital or inherited real estate exchanged for another object
Real estate acquired by either spouse after marriage, but using premarital savings. Such a case most often causes controversy. A spouse who insists that the property is not subject to division must prove to the court that the funds belonged to him personally. And vice versa - the one who insists on division must provide evidence that the purchase was made from the family budget
Real estate acquired by one of the spouses during the period when the husband and wife have already separated and separated, but have not yet dissolved their official marriage. This case is also controversial. Convincing evidence of long-term absence of joint farming is required. Otherwise, the court may consider such property to be common and divide it on a general basis.

Another property that is not subject to division is municipal housing. In fact, it is in perpetual use of the family, but is not the property of the residents. It can only be exchanged legally.

Legal regime of marital property

This regime applies not only to the division of property after the termination of marriage, but also during marriage. This regime determines the procedure for ownership, use and disposal of joint property, which property is considered joint property and which is not, in accordance with the law.

When dividing, the spouses’ shares in the entire amount of property are recognized as equal

, and all jointly acquired property is simply divided in half (Part 1 of Article 39 of the RF IC).

The law allows you to deviate from equality of shares in marital property under the following circumstances (Part 2 of Article 39 of the RF IC):

if the interests of minor children require it;
if one of the spouses did not have income for unjustified reasons;
if one of the spouses spent common property contrary to the interests of the family.

The allocation of shares and division of property under the legal regime is carried out by the court

(Article 38 of the RF IC).

What to do after receiving a court decision

The decision of the court of first instance comes into force after a month, unless appealed by the parties to the dispute - Art. 209, 321 Code of Civil Procedure of the Russian Federation. A judicial act that has entered into legal force is subject to execution. If the party refuses to comply with it, it is necessary to contact the FSSP.

How to appeal a court decision

A party that does not agree with the court decision has the right to file an appeal if the appealed judicial act has not entered into legal force - Art. 320 Code of Civil Procedure of the Russian Federation. A cassation appeal is filed against judicial acts that have entered into legal force - Art. 376 Code of Civil Procedure of the Russian Federation.

The complaint must indicate which circumstances were not taken into account by the court of first instance or which regulations were violated.

If the applicant also disagrees with the decision of the cassation instance, he has the right to appeal to the Supreme Court of the Russian Federation with a cassation or supervisory appeal - Art. 390.2, art. 391.2 Code of Civil Procedure of the Russian Federation.

Contractual regime of spouses' property

As the name implies, this regime applies if there is an agreement between the spouses. That is, the procedure for regulating the regime of joint ownership, property rights and obligations in marriage, and upon its dissolution, are determined by the marriage contract.

Marriage contract

must be in writing and notarized. It can be concluded before the marriage is registered and at any time during the marriage. A marriage contract can be concluded both in relation to existing property and in relation to future property (Article 41 of the RF IC).

This document may establish

(Article 42 of the RF IC):

regime of joint, shared or separate property of spouses;
regime of all property of spouses and/or only part of it and/or certain types of property;
property regime of each spouse;
order of mutual content;
ways to share in each other's income;
the procedure for bearing expenses by each spouse;

At the same time, the rights and obligations established by the marriage contract may be limited by time limits, or made dependent on the occurrence and/or non-occurrence of certain conditions.

After divorce, spouses can enter into an agreement on the division of property

, if they have not previously entered into a marriage contract. Such an agreement will be essentially similar to a prenuptial agreement in almost all respects, except for the ability to resolve property issues for the future.

Division of marital property using an example of a specific situation

Now let’s move from theory to practice and look at a specific example of how the division of spouses’ property occurs.

Suppose spouses who have a private house and land divorced and then decided to divide the property. If a marriage contract was concluded between the spouses, then the division of property occurs in accordance with the terms of this contract.

If a marriage contract has not been concluded, then two options are possible:

conclude an agreement on the division of property and set out conditions that suit both parties;
go to court if you cannot agree on the division of property.

There is another option - sell your existing property and split the money in half

. This is the easiest and fastest way to put an end to the issue of dividing jointly acquired property, if there is little of it.

Counterclaims

The plaintiff's opponent in accordance with Art. 137 of the Code of Civil Procedure of the Russian Federation has the right, in response to a claim, before a decision is made, to present counterclaims, which will be considered together with the original ones.

In this case, a counterclaim may be accepted if:

the defendant's claims imply a set-off of the plaintiff's claims;
the defendant's claim completely or partially excludes the plaintiff's claims;
there is a connection between claims, allowing for a faster and better resolution of the dispute.

Division of property in court

If the spouses were unable to reach an agreement and a dispute arose, then in this case the division will be carried out by the court

One of the spouses (former spouses) files a statement of claim with the court, in which he indicates his desired option for dividing the joint property. And here again you can find a compromise and conclude a settlement agreement.

Let's assume that the spouses have reached an agreement and entered into a settlement agreement. In this case, if its terms comply with the law, then the court approves this agreement and terminates the proceedings. The terms of the agreement are contained in the court ruling, which, of course, is also a judicial act, so it must be executed. This means that if one of the spouses decides not to comply with the terms of the agreement, the other can go to court

for the issuance of a writ of execution and to the bailiff service for the enforcement of the terms of the settlement agreement enshrined in the judicial act.

What financial costs await the parties with this option?

The spouse who filed the claim paid the state fee for the judicial review

. Its size depends on the amount of the claim (Article 333.19 of the Tax Code of the Russian Federation). Usually, when filing a claim, they are guided by the cadastral value of the property, and the amount of the state duty is calculated from this amount. The maximum possible amount of state duty is 60,000 rubles. The parties may also incur legal costs. When concluding a settlement agreement, the parties usually do not reimburse each other for legal costs, but this point can also be discussed and divided in half.

If a writ of execution was received and enforcement proceedings were initiated, and the debtor in the enforcement proceedings did not fulfill the terms of the agreement within the period specified by the bailiff (usually 5 days), an enforcement fee in the amount of 7% of the amount of the claim will be collected from him.

However, our spouses could not agree and continue the trial

. In this case, to make a decision it will be necessary to evaluate the property, and the court will appoint an appropriate examination.

The parties may try to persuade the court to deviate from equality of shares, although this is how property is to be divided in accordance with the law. This is quite difficult to do, although the law allows deviations from equality of shares, but the courts, for the most part, refuse such requirements.

What legal costs will the parties bear under this option?

payment of state duty by the plaintiff;
if the defendant files a counterclaim (its own version of the division of property), then it will also pay the state fee, but in a smaller amount (Article 333.20 of the Tax Code of the Russian Federation);
payment for legal services (drawing up documents and representation in court);
payment of state fees for registration actions when registering the division of property in Rosreestr.

So, the trial ended, each spouse received 1/2 shares in the ownership of the house and land.

That is, the division took place only on paper

. In real life, strangers are forced to “share” real estate. If the house is large enough and the layout allows it, then you can determine the procedure for using both the house and the land (in case of a dispute, go back to court). It’s not hard to imagine what life would be like side by side with your former “other half.”

Crib

Before filing a lawsuit, you need to determine which items of joint property you want to divide and their value.
Most often, the court distributes the property of the spouses equally. But the plaintiff can make demands for an increase in the share. For example, if there are minor dependent children.
The period for going to court is 3 years. Which is calculated from the day when one of the spouses learned about the violation of his right.
Before filing a claim, you must pay the state fee and send a copy of the claim with attached documents to the parties to the dispute.
The claim is filed in court at the location of the property. And if the division of property occurs simultaneously with the dissolution of the marriage, then at the place of residence of the defendant.

Do you decide to indicate in the statement of claim the requirements for an increase in the share in the property? Will you demand that the property be transferred to you in full, and the other party be awarded compensation?

Choosing an option for dividing property

The above example of possible options for dividing property clearly shows that the most profitable option is any compromise.

Of course, it is good if people were able to agree upon marriage and draw up a marriage contract. Of course, this is not a panacea. A marriage contract can also be challenged if one of the spouses considers that the conditions in the changed situation are no longer beneficial for him.

Litigation is long, expensive and not always satisfying

. Even ex-spouses can come to an agreement and do without an arbiter in the person of the judiciary, but decide everything on their own and come to exactly the result that suits both parties.

Documentation

The following documents must be attached to the claim:

Copies of spouses' passports
Copies of marriage and birth certificates
Certificate from the house register about family composition
Title documents for each property subject to division or documents confirming the fact of its purchase (when it is not real estate or transport)

Another important document is a receipt confirming that the state duty has been paid. The details for which the fee must be paid must first be obtained from the office of the court to which you will apply (each court has its own). The claim will not be accepted without the paid fee.