How to start dividing marital property Application for divorce with division of property

The divorce process is often accompanied by the division of property. A spouse who wants a divorce files an application with the court and specifies two requirements in it. How to apply for a divorce with division of property? The plaintiff must collect a package of documents, know the rules for filing a claim and calculating the state duty.

Conditions and methods of division of property in a divorce

Family law establishes a list of property to be divided in equal shares between spouses.

What property can be divided in a divorce?

securities;
Appliances;
other things of common use;
deposits and loans.

Expert comment

Kamensky Yuri

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It doesn't matter who is the owner. An exception is property received by a spouse as a gift or inherited. If the parties concluded, determining the procedure for the division of property acquired jointly, the division is carried out on the basis of the provisions of the agreement.

Items belonging to a child and intended to meet the needs of a minor cannot be divided between spouses. and other debts are not subject to division if the second spouse proves that he had no relation to the funds and did not use them for his own needs. Otherwise, there is a chance that the loan will be split in half.

Important! If the property cannot be divided equally between the spouses, one of the parties has the right to demand monetary compensation.

Spouses can divide property in a divorce in the following ways:

Peacefully, by concluding.

When the spouses managed to agree, there is no need to go to court. It is enough to draw up an agreement fixing the agreements. If there are disagreements, for divorce and division of property, you will have to go to court. Property acquired during marriage is divided between the spouses in equal shares.

Voluntary agreement

When the spouses come to a compromise on the division of property, a voluntary agreement is drawn up between them. The document requires mandatory certification in a notary's office. When drawing up an agreement, the parties agree on what part of the property passes to each of them.

The voluntary agreement states:

description ;
determination of the shares that remain in the ownership of each party.

The agreement also contains the personal data of the parties, the signatures of the spouses and a notarization mark. It is impossible to challenge the agreement, since it is concluded on a voluntary basis and cannot violate the interests and rights of the parties.

Both spouses are eligible to file a claim. The division of common property takes place simultaneously with the divorce procedure. Spouses can share property and.

Which court to apply to

Before filing an application, the plaintiff should know which court is competent to hear such cases.

The jurisdiction of the case is determined by the value of the claim:

The Magistrate's Court accepts cases of divorce and division of property for consideration if the value of the claim does not exceed 50,000 rubles.
If the value of the claim is more than 50 thousand rubles, then the application is submitted to the district court.

During the years of cohabitation, the spouses acquire movable and immovable property, the cost is much more than 50 thousand rubles. Therefore, most often the claim is sent to the district court.

Expert comment

Gorchakov Vladimir

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The application is submitted at the place of residence of the defendant. The law provides for exceptions in the form of health problems or the upbringing of minor children, which allow you to apply to the court in the place of residence of the plaintiff.

How to file a claim

The statement of claim is filed personally by the plaintiff or his representative. You can also file a claim with the court by mail.

A claim with "double" claims must contain:

name of the court, full name judges;
personal data of the plaintiff and defendant;
information about marriage;
grounds for divorce and division of property;
list of property;
the value of each unit of property;
evidence supporting the grounds for claims;
claim to the court;
application list;
the date the claim was filed;
applicant's signature.

The application must indicate the full list of property that is subject to division. It is also necessary to prescribe the estimated value of the property, which is necessary for the calculation.

The real value of the property matters a lot. For example, the court may decide to leave the vehicle to the wife, then she will have to return half of its value to the former spouse.

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Potapova Svetlana

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The statement of claim must fully disclose the circumstances of the case and the essence of the requirements. It is better to indicate references to legal acts that are the basis for making demands. To properly file a claim, you can contact an experienced lawyer.

Required documents

The following documents must be attached to the claim:

two copies of the statement of claim;
certificate of conclusion (dissolution) of marriage;
title documents for property subject to division;
conclusion of an expert appraiser on the value of the property;
receipt of payment of state duty;
other documents relevant to the case.

The statement of claim and the documents attached to it shall be submitted to the judicial authority in two copies. The first remains with the judge, and the second is sent to the defendant for review.

The court's decision

If the plaintiff's claims are put forward on legal grounds and have documentary evidence, the court makes a positive decision. In this case, the property is divided between the spouses in equal shares.

The defendant has the right to put forward counterclaims. In this case, the court will appoint an additional hearing and will make a decision based on the information provided by the parties. If the division of property affects the interests of minor children, they are taken into account by the court in the first place.

Calculation of the state duty

A claim for divorce with division of property requires the payment of a state fee. Without a supporting document, the court will refuse to consider the documents.

When making double claims, two types of state duty must be paid:

A fixed fee for divorce, which is 600 rubles.
State duty for the division of property, which is calculated based on the value of the claim.

The minimum amount of the state duty for the division of property is 400 rubles. Depending on the value of the claim, the amount can reach impressive sizes.

The following rules apply to the calculation of state duty:

Cost of a claim	Fixed fee	Percent	Amount used in interest calculation
up to 20 thousand rubles			the cost of the claim
from 20 to 100 thousand rubles.			exceeding 20 thousand rubles.
from 100 to 200 thousand rubles.			exceeding 100 thousand rubles.
from 200 thousand rubles up to 1 million rubles			exceeding 200 thousand rubles.
more than 1 million rubles			exceeding 1 million rubles.

An example of the calculation of the state duty:

The wife filed an application to the court, demanding the dissolution of the marriage and the division of property. The cost of the claim in terms of property amounted to 450 thousand rubles. To accept the application for consideration, a woman must pay a fixed state duty for divorce in the amount of 600 rubles, as well as a duty for the division of property, which is calculated as follows: 5,200 + 1% * (450,000 - 200,000) = 5,200 + 2,500 = 7 700 rub. The total amount that will have to be paid will be 600 + 7,700 = 8,300 rubles.

Taking into account the poor financial situation of the plaintiff, the court has the right to reduce the amount of the state duty, grant the applicant a deferment or installment payment. To do this, the plaintiff must submit an appropriate application to the court.

How to determine the price of a claim

The most difficult thing in the process of dissolution of marriage and division of property is the determination of the price of the claim. To do this, it is necessary to determine the value of each unit of property to be divided.

Over the years of living together, husband and wife acquire many different things: apartments and garages, cars and bicycles, computers and telephones, refrigerators and microwave ovens.

In addition to shared items, spouses also acquire personal items, for example, a husband buys expensive sports equipment for himself, and gives his wife a piece of jewelry.

Spouses invest personal funds in a common cause. For example, a wife sells an apartment inherited from her parents and gives money to her husband to open a family business.

As a rule, none of them thinks about how all this property will be divided when a strong marriage cracks. Equally?

Private or shared?

Not all property acquired during marriage is subject to division between spouses. The law distinguishes between the concepts of personal and joint property.

personal - not subject to division and remains the property of the owner,
joint - subject to division on legal or contractual grounds.

To determine which category - personal or joint - this or that type of property belongs to, read our articles: and?

What does the marital property law say?

Family law provides two legal regimes of property spouse:

contractual;
law.

Negotiated regime implies the existence of a marriage contract concluded between the spouses: both before marriage (and entered into force at the time of marriage registration), and during married life.

The presence of a marriage contract greatly simplifies the divorce process and the procedure for dividing property. The court will not have to divide the property of the spouses, since an agreement has already been reached between them on all property issues.

Marriage contract- This is a civil law transaction, which is concluded by mutual consent of the spouses and can be challenged by them. In a marriage contract, a husband or wife can provide for any provisions of a property nature, for example, determine the shares of joint property, the procedure for using housing, material maintenance and alimony obligations. The marriage contract requires mandatory notarization.

legal regime means that the joint property belongs to the spouses on equal terms. However, the division of property of the spouses can be carried out both extrajudicially and judicially.

Spouses have the right to divide their joint property independently, by concluding a written agreement, it does not matter - during married life, in the process of divorce or after the dissolution of marriage. And after the conclusion of the agreement, they must comply with its provisions. In this case, the procedure for the division of property will be painless and quick.

Note! Sometimes one of the spouses initiates the conclusion of an agreement, pursuing the goal of misleading the other spouse and making illegal transactions with common property. To minimize any risks, it is advisable to draw up and sign an agreement with a spouse with the participation of a lawyer specializing in divorces and divisions of property.

Division of joint matrimonial property through the court

If the spouses do not have a marriage contract or an agreement on the division of property, the court will decide the disputed issues between them. At the same time, the ideal (arithmetic) shares of each of the spouses are established and a list of specific property to be transferred to each of them is determined.

The division of joint matrimonial property is a step-by-step procedure:

applying to the court with a statement of claim and documents confirming the right of ownership (personal or joint) to the property acquired during the marriage. For information on how to properly file a claim and collect documents, read the article "";
Establishment by the court of the right of personal and joint property of each of the spouses;
Determination of shares in joint ownership;
Division of joint property in proportion to the shares;
Determination of compensation for uneven distribution of property.

Determination of the shares of spouses in joint ownership

According to Art. 39 of the Family Code of the Russian Federation, the principle of equality of the shares of husband and wife in joint ownership applies. Therefore, in the vast majority of cases, the court divides the property equally.

But there are exceptions to the general rule. For example, if there are good reasons, the court may increase or decrease the share of one of the spouses.

Share increase

The basis for increasing the share of a husband or wife may be:

Living with minor children;
Severe or chronic disease, especially if the disease condition arose during the period of family life and is directly related to the performance of family responsibilities. For example, in order to earn money for his own housing or to pay for the education of his child, the husband worked two hard jobs, as a result of which he acquired a chronic disease requiring expensive treatment;
Bearing debt obligations by only one of the spouses.

Reducing the share of the spouse

Reasons for reducing the share of a husband or wife may be:

Non-receipt of any income by one of the spouses;
Employment evasion;
Careless attitude of one of the spouses to joint property, which led to its breakdown, loss, reduction in price;
Immoral behavior, alcohol or drug addiction, the consequences of which were family debts.

How are indivisible things divided?

Sometimes there are things in the joint property that each of the spouses would like to have at their disposal. If it is not possible to separate them, the court proceeds as follows:

The spouses voluntarily agree on which of them will get the indivisible thing;
If an agreement cannot be reached, the future sole owner of the thing is determined by the court. This takes into account such factors as occupation, place of work, need for things, frequency of use, and so on;
An assessment of an indivisible thing is made;
The spouse who became the owner of the thing is obliged to pay monetary compensation to the second spouse - half of the value of the thing.

In addition, the court can transfer a thing from joint ownership to shared ownership - to determine the share of each of the spouses. And appoint the order of use of the thing by both spouses.

How is joint property valued in a divorce?

The appraisal of marital property can be...

voluntary (to accurately determine the value of property and a fair division);
mandatory (to determine the price of a claim and calculate the state duty, to determine monetary compensation, to pay off debts or loans).

Spouses can evaluate their joint property themselves, using sales contracts, sales receipts and receipts for payment. If an independent assessment of the property is difficult, you have to turn to the services of an expert assessment. The court can also initiate an expert assessment if a dispute arose over the value and division of common property during the trial.

An expert assessment may be entrusted to a forensic expert institution or an independent expert appraiser.

The procedure for the division of certain types of property

Housing section (apartments, houses, cottages)

If an apartment, house, dacha is the joint property of a husband and wife, then it is subject to division between them. There are several common ways to share housing:

Sell housing and divide the proceeds in half;
Leave housing in the ownership of one spouse, and give the rest of the joint property to the other;
The apartment, house, dacha remains in the ownership of one spouse, who undertakes to pay the second spouse monetary compensation equal to half the cost of housing.

In the process of division of housing, the interests of minor children must be taken into account.

Read more about the housing section in our articles "" and ".

Section of land

If a land plot was acquired during family life, it is also subject to division. In this case, there is a certain advantage - the site can be divided in half in kind. In addition, there are other ways to divide the land:

Transfer the site from joint ownership to shared ownership and determine the procedure for using common land;
Transfer the land plot to the ownership of one of the spouses, obliging him to pay monetary compensation to the second spouse or transfer other equivalent property;
Sell the land and share the proceeds.

You will find more about the division of land in the article "".

Mortgage Section

The division of an apartment or other housing purchased with a mortgage loan is quite complicated. Many factors play a role - when the mortgage was issued, how the mortgage agreement was executed, who paid the mortgage loan, and so on.

In some cases, the mortgage agreement with the bank is re-registered - the loan is transferred from one spouse to both. After that, everyone pays their part of the loan. But since banks are extremely reluctant to take this step, the division of mortgage housing is different. Housing goes to one spouse (as a rule, to the one for whom the mortgage agreement is issued), he undertakes to compensate the second spouse for the loan payments made.

Not every marriage is a happy one. In some situations, conflicts arise between the couple, which ultimately lead to divorce.

Dear readers! The article talks about typical ways to solve legal issues, but each case is individual. If you want to know how solve exactly your problem- contact a consultant:

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In some situations, the question arises of how the division of property takes place. Usually this procedure takes some time and requires knowledge of legal aspects.

The reasons

If, after the divorce process, the former spouses do not have any claims against each other, then they may not share anything.

However, in cases where there is disagreement over jointly acquired property (acquired during married life), a division operation may be required.

There are different ways to divide property:

through the court
through an agreement;
by marriage contract.

Law

Family law 2020, namely 34 Art. The RF IC makes it clear that it is possible to share objects acquired in marriage.

Article 39 of the RF IC states that when dividing property, the process itself is governed by the principle of equality between husband and wife.

All issues related to the division of common property must be resolved within a 3-year period after the divorce.

What is to be divided?

In accordance with family law, the following property can be divided after the breakdown of a marriage:

real estate;
securities;
auto;
furniture;
jewelry;
luxury items;
fees, etc.

It is noteworthy that the former spouses after the divorce process can also divide the debts.

The wife and husband have an equal right to the property that was acquired during the marriage.

There are, however, a number of objects that cannot be separated. So, they include personal items of the spouses, items belonging to their minor children and household items.

How is property divided?

The division of property is an operation associated with the allocation of the shares of the wife and husband and the division of property purchased during marriage, in accordance with these shares.

Between spouses

Property can be divided between husband and wife even while their marriage is not dissolved. In this situation, you can draw up a division of common property by drawing up a marriage contract or.

In the event that the husband and wife have made a division of property and ceased cohabitation with each other and the conduct of a common household, then they will need evidence of personal ownership of the acquired property.

In the absence of such, the objects will already be considered, and in the event of a divorce, they will be subject to division.

Jointly acquired

on the division of property;
about divorce.

Both these claims will be considered together or in turn.

After divorce

In some situations, spouses do not share property along with the divorce.

In this case, even after the divorce proceedings, they retain the right to divide the common property.

If there are children

Property acquired for a child under the age of 18 remains with him after the division of the property of his parents. Parents have no right to take any part of their property from a child.

Likewise, the child himself also has no right of ownership of property belonging to his parents in the absence of their consent.

Loans and debts

In the event of a divorce, debts are also divided between husband and wife. They depend on the shares that the court will assign to the spouses. However, this section does not include personal debts.

Mortgage apartment

This document must include the following information:

information about husband and wife;
data on the conclusion and dissolution of marriage;
a list of objects purchased in marriage;
evidence that the property belongs to the general.

State duty

When submitting documents to the court, you must pay a state fee. Its size depends on the value of the property claimed by one of the parties.

In some cases, the judge may establish a discrepancy between the data and offer the plaintiff to pay part of the state duty.

The court's decision

How does the court act in such matters:

Identifies among the property personal and common.
Determines the shares for each spouse. Initially, the shares are considered equal. But if there is a marriage contract, and it provides for other conditions, then the shares may not be assigned equally.
The court awards property to the spouses in accordance with the assigned shares. In most cases, there are indivisible objects that are awarded to one of the spouses, and he undertakes to pay compensation to the other.

Limitation period

Spouses are given a 3-year period to resolve issues related to the division of property.

The decision to divorce is not easy. It can be even more difficult to implement, especially if children are born in the marriage or valuable property is acquired. Sometimes spouses just don't know where to start?

This article offers a step-by-step divorce plan with the division of property.

Methods for dividing property

The documents

Perhaps no less important than the preparation of a statement of claim is the stage of collecting documentation. Your task is to find documentary evidence of the right of joint or personal ownership on all property that is acquired during family life and will be divided in court. It can be:

Title documents (certificate of inheritance, act of privatization, contract of sale, donation, exchange);
Purchase receipts, bank payments and statements, checks, receipts, loan and deposit agreements;
Registration documents for real estate, land, cars (Certificates and extracts from the USRN);
Appraisal documents that confirm the value of the property (cadastral documents of Rosreestr, inventory documents of the BTI, an act of assessing the market value);
Other Documents.

Try to stop your spouse's possible attempts to hide or destroy certain documents, as this will deprive you of evidence and complicate the trial.

Filing a claim with a court

The last step is to go directly to the court.

If the price of the claim is below 50 thousand rubles, you can apply to the world court.
If the price of the claim is more than 50 thousand rubles, you will have to apply to the city or district court.

Which court? As a general rule - at the place of residence of the defendant, but if the property contains real estate and other valuable property - at the location of the property. And if the plaintiff has minor children, he has the right to apply to the court at his own place of residence.

Divorce leaves ex-spouses having to decide how to share what they have gained during their life together. And at least the following questions immediately arise:

In general, more than one lecture can be read on each of these issues. Many aspects are discussed in detail on the pages of the company's website. In this article we will make a brief analysis of the main points of these problems.

The court resolves civil cases, aiming to establish formal (rather than objective) truth. This means that the winner is the one who provides more weighty evidence, who knows the law and the dynamics of the trial better, and not the one who is “humanly” right or sympathetic. This is the principle of competitiveness of the parties, established by Article 12 of the Code of Civil Procedure of the Russian Federation.

The division of property through the courts makes up the bulk of the court cases of lawyers and family lawyers. The need to specialize in these cases, to deal with them professionally, is caused by the complexity and imperfection of both family and procedural legislation. Conflict, the very fact that people are "on opposite sides of the barricades" lead to the fact that the parties' mistakes and gaps in the legislation are used to their advantage. A lawyer must know (predict) the nature and type of abuse, consider countermeasures or use inaccuracies in laws in the interests of his principal.

Family disputes are also characterized by the fact that former spouses take advantage of each other's weaknesses, which they became aware of when there was mutual trust between them. We are talking about the psychological impact on the opponent in order to "emotionally" say too much, make a mistake. This is another reason to seek the help of a professional who relies on good judgment and knowledge of the law.

A timely and correctly filed claim, painstaking work in court - this is what you need for the result - a court decision in your favor

The division by mutual agreement is formalized by a special transaction, called an agreement on the division of property. Such an agreement can be concluded at any time after the divorce (in some cases, also before or at the dissolution of the marriage).

In addition to the above, it is worth noting another option for resolving the property issues of the spouses - by concluding a marriage contract. This transaction can be concluded before the legal registration of the dissolution of the marriage. A marriage contract has a number of advantages and disadvantages.

What happens if you do not share property?

Everything acquired in marriage has a special status - the common joint property of the spouses.

The law does not prohibit the preservation of this regime of property after a divorce. Simplifying, we can say that until the division is made, the property remains common. The parties can file a claim or conclude an agreement on this property in a year, and in 5 and 10 years.

In 2019, it is desirable, however, to take into account the following circumstances.

Firstly, after 3 years, one of the parties may declare the expiration of the statute of limitations when applying to the court with a demand to divide things.

Secondly, this form of ownership was designed specifically for the convenience of people living together, acting in everyday life by mutual agreement and for the benefit of each other. Such co-owners are, as it were, at the same time full owners of things, and therefore each of them has an equal right to use (benefit), dispose of (let another person use, pledge, sell) and own them. If you trust your ex-spouse or ex-wife, you can leave everything as it is and not share what you have acquired - until better times (option - until the relationship deteriorates or otherwise changes qualitatively). Many people are happy with this option.

But for many, uncertainty makes them feel uncomfortable and nervous. And it’s true, how can you remain indifferent here if one day you suddenly meet in your (but still shared) apartment the new wife (husband) of the former second half! After all, the dots over the i are not dotted, which means that everyone does with the apartment what he considers necessary (in our case, he inspires the one he considers necessary).

Learn more about the actions of our lawyers in the conduct of a case:

In the course of litigation, we:

We will understand the details of the case, assess the possible risks and advise you on the prospects of the case.
We will draw up a statement of claim, and a counterclaim (if you are the defendant), we will present explanations on the case.
We will assist in the collection of evidence or collect it ourselves, fix the evidence, initiate an examination, alternative examination, property valuation.
We will submit documents to the court of the relevant jurisdiction, we will speak in your defense at preliminary and court hearings on the merits in courts of all instances.
Let us present objections to the arguments and evidence of the opposing side.
We will make sure that your position is properly reflected in the procedural documents.
We will make petitions, statements necessary for conducting the case and protecting your interests.
We appeal court rulings issued in the course of the case if they violate your rights.
We will receive a court decision, a writ of execution and hand them over to you, we will conduct enforcement proceedings.
If you have previously turned to an unqualified lawyer and the decision has already been made, but you are not satisfied with its content, we will appeal to the court of appeal, cassation and supervisory instance.

The world section includes the following work:

We will draft a settlement agreement.
Let's consider the already drawn up draft contract, transactions and their options and provide recommendations on their signing / non-signing.
We will register the transfer of the right to real estate in the state. authorities, we will receive certificates of law and give it to you. INJUSTA
Tax authorities, arbitration courts, MAP, a number of other state. bodies are specific regulators in the implementation of entrepreneurship. Handling them requires knowledge of a large number of regulations, features of procedures. Our specialists have extensive experience in dealing with government data. authorities and represent your interests in the best possible way.