Bankruptcy of a spouse: division of joint property in case of bankruptcy of husband and wife

Things happen in life. It happens that one of the spouses sharply loses income, and the whole family suffers from this: the children still want to eat, utilities need to be paid, and if there are also loans... If previously the money issue pushed such a family into a debt hole for many years, now people have a real and legal chance to free themselves from debt and breathe easy. You just need to file bankruptcy for one of the spouses. In this article we will describe in detail what happens when a husband or wife files for personal bankruptcy.

What is important to know when one of the spouses goes bankrupt?

Most citizens who have already filed for personal bankruptcy have children, husbands or wives. And now these families live happily: their descendants, in addition to the inheritance, will not receive thousands of debts, and creditors will not pursue them for the rest of their lives. But it is difficult for a person who has just found himself in a difficult situation to evaluate all the possible pros and cons of bankruptcy. There is little information on the Internet, and it is often false. The first thing a potential bankrupt should think about is to assess all the risks that the procedure carries and protect property. However, first the citizen is faced with another question: how will my bankruptcy affect my family? Wouldn't it be worse?

What to do if after a divorce you received property, and now they plan to take it away

This article is about the difficulties that can arise if you have been divorced for a long time, are living your life calmly, and then your ex is declared bankrupt. And where there is bankruptcy, there are risks of loss of assets.

If you are still in a strong marriage, then it is better to read about the difficulties of bankruptcy of your other half here.

So, we bring hypothetical heroes onto the stage: Pavel is the owner of the business and also the general director, Marina is his wife. Marina and Pavel decided to divorce. Really get a divorce, not for the purpose of protecting assets. Like a noble knight, Pavel left Marina a car, an apartment and a small yacht. Cool? Very!

It was only a couple of years later that Pavel’s creditors filed for bankruptcy. What are Marina’s chances of being left without the property she received?

The answer depends on a lot of nuances. We will analyze each of them in a separate block, but first, let’s find out which assets and for what period fall into the risk zone.

How bankruptcy affects a family

Bankruptcy of an individual is a legal procedure. Therefore, it simply cannot have a negative impact on the reputation of relatives. But property issues should be considered in more detail. The most concerning issue for potential bankrupts is jointly acquired property. It’s worth noting right away that according to the law, it can actually end up in the bankruptcy estate. For example, if during marriage the family managed to buy a dacha, then it will go for sale. After the sale, half of the funds will go to creditors and the other half to the other spouse. We'll talk about this in more detail later.

How are debts and mortgages divided?

General debt obligations and loans, if the money was spent on the family, when dividing property, are divided fifty to fifty or in proportion to the shares of the awarded property, if the shares are unequal.

Everyone pays their personal debts for themselves.

It's more difficult with a mortgage. The spouses can agree that the one who remains to live in the apartment or in whose name the mortgage is issued will pay, and the other will transfer part of the money to the one who pays. Then sell the apartment and divide the money.

Many people prefer to sell their mortgaged apartment. Another option is to contact the bank and conclude 2 loan agreements - each for 50% of the total debt (or in another ratio). This way, everyone will be responsible only for their share, without being responsible for the delay of the other.

The fastest option for dividing a mortgage is when one spouse buys out the other’s share.

I want to divide my debts/mortgage, I need expert help

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Bankruptcy and joint property

According to the Law “On Insolvency (Bankruptcy)”, in the procedure all personal property of the debtor is subject to sale. In addition, the bankruptcy estate includes things, cars, real estate that belong to both the potential bankrupt and his spouse, including the former, as common property.

Related materials

Federal Law “On Insolvency (Bankruptcy)” dated October 26, 2002 N 127-FZ

Community property is property acquired during marriage and is the joint property of the spouses

This includes the income of each spouse from labor and intellectual activity (that is, wages and other types of earnings), pensions, benefits and other monetary payments, unless they have a special purpose. Also, jointly acquired property includes real estate and all things purchased with joint income, as well as securities, bank deposits, and shares in capital. All this is joint property, regardless of whose name is entered in the “owner” column.

The following are not jointly acquired: material assistance, payments in connection with loss of ability to work and other targeted monetary tranches. For example, an inheritance or winning the lottery. As well as property acquired before marriage or with premarital funds.

Presumption of equality during division

The spouse of a debtor citizen receives half the value from the sale of bankruptcy property in bankruptcy if he is subject to the joint ownership regime. The right of 50/50% is a presumption of equality of shares, unless otherwise specified in an out-of-court agreement or marriage contract and the obligations are not joint. The financial manager applies the general implementation procedure. If marital property is included in the bankruptcy estate, the debtor's spouse is obliged to transfer it upon request and not to interfere. In the event of a preliminary sale of such property, funds for it are transferred. Obstruction allows the financial manager to file a lawsuit to recover property from someone else's illegal possession. Creditors retain the right to appeal in court the redistribution of property between spouses, for example, by drawing up a division agreement after the repayment period has expired.

What property will be taken away in bankruptcy?

It is important to understand that all of the debtor’s property falls into the bankruptcy estate. A procedure for the sale of property is introduced in relation to all things, real estate and vehicles. Let us remind you that debt write-off is possible only as a result of this procedure. But there is one important nuance: there is a list of property that is not subject to sale in the procedure. A penalty cannot be imposed on him. For example, the only housing.

What cannot be sold against debts

The financial manager cannot include in the bankruptcy estate:

the only residential premises or part thereof available to the debtor and his family members, except in cases where the property is pledged under a mortgage;
a plot of land on which the only housing suitable for the debtor’s family is located, if it is not a condition of the mortgage;
household items and ordinary home furnishings, children's things, personal items. Exceptions include luxury items and precious jewelry;
property for the professional activities of a bankrupt individual and his family members, if the value does not exceed 10 thousand rubles;
domestic animals, livestock, poultry, bees, feed and outbuildings for their maintenance, if they are not used in business activities;
food and a sum of money that is the minimum subsistence level for the debtor and all members of his family;
state prizes, awards, honorary titles;
a vehicle for a disabled debtor that allows him to move around.

Bankruptcy and marriage contract

In theory, an arbitration manager who receives control over all the property of a potential bankrupt for the duration of the procedure must sell all joint assets and give 50% of the funds received to the debtor’s spouse. And this can be avoided only in one case: no later than three years before the start of the procedure, the spouses managed to conclude a marriage contract, which clearly states what belongs to whom. In this case, only the bankrupt’s belongings will be sent for sale. Everything else will remain untouched.

We recommend that you read Financial Manager. One of the key figures in the bankruptcy case

Who can challenge the deal

Financial Manager

He submits an application to challenge the transaction after analyzing in detail the financial situation of the debtor. The manager does this on his own initiative (for example, if he discovers a suspicious transaction) or by decision of a meeting of creditors.

Creditor

By law, he has the right to file an application to challenge the bankruptcy debtor’s transactions if the amount of debt owed to him is more than 10% of the total amount of unfulfilled debt obligations included in the register of creditors’ claims.

On a note

However, those creditors whose debt claims amount to less than 10% of the total register can make a statement to declare any transaction invalid, but only through the financial manager.

How to save the maximum when your spouse goes bankrupt?

Above we described how everything should happen in theory. However, in practice the situation does not look so bad.

The property of the bankrupt's spouse is not examined as part of the procedure

Provided that the bankruptcy process of an individual is initiated by the citizen himself, he himself chooses the arbitration manager with whom he will be comfortable working. Thus, if you do not wait for creditors to sue, but initiate bankruptcy proceedings yourself, you can save the maximum. The arbitration manager will act in the interests of the debtor, which means he will not be as zealous in searching for property through registers and organizations as a manager hired by the bank will do. Problems in this case can only arise with individual creditors. However, in the hands of competent lawyers, such situations can also be resolved. The National Bankruptcy Center has extensive experience in successfully completing such cases.

Dmitry Tokarev
General Director of the National Central Bank “Usually, if one of the spouses goes bankrupt, the property of the other is not taken into account. But there are also exceptions. In practice, we had a similar case: a creditor, who is an individual, after the court decided to completely write off the client’s debts, filed an appeal and asked to check all the property again. The judges' opinions were divided. But NCB lawyers foresaw this scenario and provided all the necessary information. As a result, the creditor was refused, and the client was completely freed from his debts.”

What transactions can be declared invalid in bankruptcy proceedings?

Donskov Dmitry Igorevich

Project Manager “Debt.NET”;
Practicing lawyer, arbitration manager

It is important to understand that transactions that can be challenged in bankruptcy proceedings for an individual are any actions of the debtor that lead to a change (reduction) of the property (bankruptcy) estate:

sale, donation, exchange, compensation;
conclusion of a settlement agreement, a marriage contract;
agreement on the division of property, on the voluntary payment of alimony;
withdrawal from the founders, etc.;

as well as selective repayment of debt to one or more creditors to the detriment of others.

The right to challenge transactions is vested in both the arbitration (financial) manager and creditors whose amount of accounts payable included in the register of creditors' claims is more than ten percent of the total amount of accounts payable included in the register of creditors' claims.

Classification of transactions and statute of limitations for challenging them in bankruptcy proceedings

Transactions that can be challenged in bankruptcy proceedings can be divided into 2 types:

Preferential debt repayment (preferential satisfaction of claims)

before one or more creditors
(transactions with preference) - this is when the debtor, on the eve of bankruptcy, pays off debts to his “chosen” creditors to the detriment of others.
2

Transactions that worsen the debtor’s property position (reducing the bankruptcy estate of a potential bankrupt)

– actions of the debtor on the eve of bankruptcy, aimed at reducing the property (bankruptcy) estate, which could be realized during the bankruptcy procedure for partial or full settlement with creditors.

The prospects for challenging these types of transactions in bankruptcy proceedings depend on how much time has passed since its completion (the more time has passed, the less likely it is to challenge), as well as on the parameters of the transaction and the financial condition of the debtor at the time of its completion.

1 type

Preferential satisfaction of creditors' claims (transactions with preference)

Transactions for preferential repayment of debt on the eve of bankruptcy are not so often challenged in bankruptcy proceedings for individuals. The main reason is the short statute of limitations: in accordance with Art. 61.3 of the Bankruptcy Law, transactions with preference are contested if they were completed no earlier than 1 or 6 months before the date of acceptance of the bankruptcy petition for proceedings. Moreover, the 6-month statute of limitations is applied extremely rarely: if it is proven that the creditor who was given preference knew about the deplorable financial condition of the potential bankrupt (about the presence of signs of insolvency).

Examples of transactions with preference:

The debtor sells the car to a stranger at market value for 300 thousand rubles and after 2 weeks files for bankruptcy. In court in a bankruptcy case, the question: “Where is the money from the sale of the car?” answers: “I distributed the debts to my friends!” The names of friends will have to be revealed (otherwise there is a risk that the court will not write off the debts), and friends will have to return the money, because... preferential repayment of debts to “selected” creditors (friends) are transactions with preference.
The debtor stopped settlements with all creditors, except for one bank, which independently debits money from the salary card to pay for the loan on the basis of a direct debit agreement. In bankruptcy proceedings, such deductions made within the period for challenging transactions with preference will be challenged.

The presence of transactions with preference is not a contraindication to going through bankruptcy proceedings. But still, before filing for bankruptcy, we recommend waiting a month (and ideally 6 months) after making any preferential payments to “selected” creditors, unless, of course, your situation requires an early start of the bankruptcy procedure (to for example, if your bankruptcy can be initiated by a creditor and approved by its financial manager). In such cases, it is better to consult with specialists.

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Type 2

Transactions leading to a decrease in the property (bankruptcy) estate of the debtor

Most often, in bankruptcy proceedings for individuals, transactions with property are disputed, as a result of which the bankruptcy estate has decreased (i.e., the value of the property that is sold in the bankruptcy procedure has decreased), and thereby the interests of creditors who could have received more money have been infringed if this deal would not have happened.

Such transactions are subject to challenge:

less than a year has passed from the date of the transaction to the date of acceptance of the bankruptcy petition for proceedings and the transaction was completed at a price below the market price, free of charge, or no settlements were made for such a transaction at all (transaction with unequal counter-fulfillment of obligations) ;
less than 3 years have passed from the date of the transaction to the date of acceptance of the bankruptcy petition , the second party to the transaction was a close relative of the debtor or a business partner, and at the time of the transaction the debtor had financial difficulties (a transaction made with the aim of causing harm to creditors) .

Calculation of the period for challenging transactions in bankruptcy of individuals

The date of acceptance of the bankruptcy application for proceedings is not the date on the bankruptcy application, but the date of the court’s decision to accept the application for proceedings:

For real estate transactions, the date of the transaction is the date of its registration in Rosreestr. For other property, courts can also rely on the date of registration of the transaction with a government agency (State Traffic Safety Inspectorate, Federal Tax Service, Gostekhnadzor, etc.) if the date specified in the agreement is in doubt.

Donskov Dmitry Igorevich

Project Manager “Debt.NET”;
Practicing lawyer, arbitration manager

In the bankruptcy procedure of an individual, the financial manager, when conducting a financial analysis of the debtor’s condition and preparing a conclusion on the presence (absence) of signs of deliberate and fictitious bankruptcy, necessarily analyzes the parameters of transactions with property made by the debtor over a 3-year period. Moreover, the financial manager relies not only on the data provided by the citizen when submitting the application, but also on information and documents received from government agencies (Rosreestr, State Traffic Safety Inspectorate, GIMS, Gostekhnazdor, Federal Tax Service, etc.).

For transactions completed within a one-year period, the financial manager checks the compliance of the transaction price with market conditions;
For transactions completed within a three-year period, the manager checks the existence of interest (the fact of close relationship) between the parties to the transaction, and also assesses the financial condition of the debtor at the time of the transaction.

Based on the information received, creditors or the financial manager may apply to the court to challenge the debtor’s transactions made in the run-up to bankruptcy.

Challenging transactions in bankruptcy proceedings is an extremely difficult topic even for lawyers. It cannot be revealed in “two lines.” If our material seemed voluminous and complex to you, but is “vital” for you, call 8-800-333-89-13 and get a free consultation with lawyers specializing in protection against challenging transactions in bankruptcy proceedings. Get a free consultation

Examples of transactions with unequal counter-fulfillment of obligations:

9 months before bankruptcy, the debtor sells a car for 200 thousand rubles. From publicly available sources it follows that the price of cars of a similar make and year of manufacture is 1 million rubles. Such a transaction will most likely be challenged in bankruptcy proceedings unless the bankrupt and the buyer of the car (he will act as a defendant in the dispute) prove that at the time of the transaction the car was in a deplorable condition: it was after a serious accident; there is an appraiser's conclusion on the market value at the time of the transaction, or a certificate from a car service center confirming the presence of serious breakdowns in the car.
Less than a year before bankruptcy, the debtor sells his cottage, worth 10 million rubles, to a young man aged 20. Such a transaction will be contested if the buyer cannot confirm that he has the funds for such an expensive purchase.

Transactions with unequal counter-fulfillment of obligations are contested on the basis of clause 1 of Article 61.2 of the bankruptcy law, even if the buyer (the second party to the transaction) is a complete stranger to the debtor (organization). The only thing that needs to be proven to challenge a transaction on this basis is that the transaction price is not market price, or that settlements for the transaction were not actually made (a non-cash transaction).

Examples of transactions made with the aim of causing harm to creditors:

2.5 years before bankruptcy, the debtor gives his mother a car and approximately during this period of time stops servicing the loans. Such a deal will most likely be challenged in bankruptcy proceedings.
The former owner of the business is going through bankruptcy proceedings as an individual. As part of the bankruptcy procedure, it was established that during the 3-year period he left the founders of the LLC. Upon leaving the LLC, he was paid a symbolic amount corresponding to the nominal value of this share. A transaction to exit an LLC will most likely be challenged if the LLC is currently active, and at the time of the transaction the real value of the share was significantly higher.

IMPORTANT! The presence of transactions within a 3-year period made with close relatives or business partners can serve as a serious contraindication to going through the bankruptcy procedure. These transactions may be challenged in bankruptcy proceedings, and the existence of such transactions may serve as a basis for non-exemption from debts upon completion of the bankruptcy procedure.

Do other lawyers convince you otherwise?

During free consultations, we often hear from people that other law firms do not attach serious importance to transactions:
“We have our own financial managers, and they will not challenge your transaction”;

“Let your mother resell the car and the deal will not be disputed, because... the car will not be available";

and we are “latching on to the deal” and don’t want to bankrupt anyone.

Even if we assume that the financial manager will approach your case negligently and will not challenge the transaction, there are always creditors who have the same right to challenge transactions. Failure to challenge the transaction by the financial manager is also fraught with claims of losses against him. Do you think the manager will be willing to pay the transaction amount from his own pocket?
Further alienation of the disputed property (mom's sale of a car to someone else) will not protect against challenging the transaction. The deal will still be contested. And if by the time a judicial act is issued to cancel the transaction, the property will belong to another owner, then there are 2 ways: - challenge subsequent transactions with the disputed property; — demand the market value of the property from the other party to the disputed transaction. In this case, not the disputed property, but receivables will appear in the bankruptcy estate. This way, “your mother will be on the list of your debtors,” and your bankruptcy procedure will be significantly delayed, because challenging transactions usually takes three months or longer; It will take time to “work” with receivables (try to collect them, or evaluate them and put them up for auction). In addition, the judge will have an extremely negative impression of what is happening, and there will be a high probability of an unfavorable outcome of the case - the debts will most likely not be written off.

We do not strive for immediate benefits, but are aimed at long-term work and strive for impeccable quality of services and consultations provided. That is why we soberly assess each person’s situation and have an impeccable reputation.

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“I’ll just transfer everything to my wife!” or the main mistake of a family bankrupt

Finding himself in a difficult financial situation, a person begins to panic and goes to great lengths to save his property. Panic is not logic's best friend. This is where the main mistakes of a potential bankrupt are made. Husbands transfer apartments to their wives, wives transfer cars to their husbands. People quickly enter into prenuptial agreements and hope that this will help them resolve the situation and leave creditors with nothing. As practice shows, such stories quickly become apparent, and the family loses property. Even children are not spared: property donated even to small children before bankruptcy is easily seized and sent to the bankruptcy estate.

During the bankruptcy process of an individual, all transactions over the last three years are checked. And if any of them look suspicious, they are immediately disputed, and the property is confiscated

Therefore, the first thing a family who wants to preserve their property in the event of bankruptcy of one of the spouses should do is contact a reliable company that can effectively carry out the procedure at minimal cost. You can always contact the National Bankruptcy Center for a free consultation.

There is no point in shelving: if the creditor goes to court first, you will be unable to save almost anything.

Algorithm of actions to protect interests

The law allows the division of marital property in bankruptcy. To do this you need:

seek advice from a qualified lawyer;
allocate personal property;
claim rights to the shared property of the spouses;
collect evidence to support it;
draw up and submit a statement of claim;
claim your rights and defend your position in court.

It is possible to appeal the decisions of the financial manager to include this or that property in the bankruptcy estate, and it can be reclaimed. The substantiation of the requirements is based on arguments regarding what particular interests of the debtor’s spouse are affected, and whether the rights of persons who are dependent on the spouses have been violated. In this category of cases, creditors may be involved as third parties. In such a process, full legal support is important. If you do not react in a timely manner, losses from sold property will be difficult to make up.