How to seize the property of spouses upon divorce, interim measures during division

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Sometimes, in the process of dividing marital property, it becomes necessary to apply special measures to protect property rights. For example, by seizing property.

Seizure of property is a measure that is used to prevent deception or abuse by one of the spouses when dividing common property (for example, when trying to hide or destroy, donate or sell property, forge or create fictitious documents). This measure implies a complete ban on the disposal, and in some cases even on the possession and use of disputed real estate, transport, and things.

The seizure of property is carried out at the request of one of the spouses or according to a court order.

The plaintiff spouse files a petition, on the basis of which the court issues a writ of execution, which is sent to the bailiffs for immediate execution. The bailiffs, in turn, determine the location of the property, draw up an inventory report and issue a decree on seizure.

1.1. Common property

Common property or, as it is also called, jointly acquired property of spouses is the property that the spouses acquired together during the period of marriage.

Article 34 of the RF IC provides an approximate list of common property that is subject to division in the event of a divorce:

1) wages under an employment contract, profit from activities as an individual entrepreneur or self-employed;

2) profit from the results of intellectual activity;

3) pensions of spouses, various payments and benefits;

4) cars, apartments and other movable and immovable property;

5) deposits in credit institutions, contributions to the capital of companies, securities, various shares, etc.

Important! All this is considered common property, regardless of who owns a particular item. That is, if an apartment purchased during marriage is registered in the name of a spouse, and a car is registered in the name of a spouse, this property will be considered jointly acquired and will be divided in the event of a divorce.

Russian family law protects a spouse who does not bring in income from work, but is involved in raising children and arranging the family’s daily life: he has the same right (50%) to jointly acquired property. The RF IC also allows other valid reasons for the lack of a contribution to the general family budget.

Legal advice: Remember that in the event of a judicial division of jointly acquired property, the court has the right to determine the personal property of the spouses as community property if it turns out that during the marriage the spouses significantly increased the price of this property at the expense of common funds or other investments. This applies to major repairs, various types of reconstruction, etc.

The Supreme Court of the Russian Federation, in Review of Practice No. 2 (2018) dated July 4, 2021, indicated that if during the marriage one of the spouses was provided with a free plot of land by decision of local government, then this land will be considered jointly acquired property and will have to be divided in case of divorce.

1.2. Personal property

Of course, not all property of spouses is divided during a divorce. For example, things purchased by partners before marriage are not divided between the spouses, but remain the personal property of one of them. The same applies to property that was given to one of the spouses (under a gift agreement) or that was received by inheritance.

With personal items, however, not everything is so simple. On the one hand, such things as certain clothes, a toothbrush, jewelry are used by one of the spouses and these things remain with him after the divorce. On the other hand, the law provides for an exception for luxury goods. And this concept is vague and means different things depending on the income and lifestyle of the family. So, in one case, the court may consider expensive jewelry to be items of ordinary use and transfer it to the wife as items for her personal use. In another family, a ring for 100 thousand rubles, purchased on credit and with a small family budget, may be recognized by the court as common property.

The exclusive right to the result of intellectual activity is also not subject to division. This right remains only with the author of a literary work, photograph, etc.

The Supreme Court of the Russian Federation, in Review of Practice No. 2 (2017) dated April 26, 2017, clarified that if an item was purchased, even during marriage, but with the personal funds of one of the spouses, then such an item will not have to be divided in the event of a divorce.

It is also important to note that in the event of division of property through the court, things purchased by a specific spouse after the actual end of the relationship and separation may be declared personal property.

1.3. Physically indivisible property

Very often the question arises: how to divide an apartment or a car, because they cannot be physically divided and each part given to both spouses, as is easily done, for example, with money.

As the Moscow Regional Court clarified in its Appeal ruling dated June 29, 2015, it is impossible to divide the apartment in kind without significant damage to this property. Consequently, in this case, when dividing the apartment, the share of each spouse is determined and allocated. The same applies to the car section.

In addition, a situation may arise in which one of the partners offers the other to give up his share in the apartment in exchange for compensation in cash or other equivalent. This can be done in accordance with Art. 38 RF IC.

Important! The Ministry of Finance of Russia in its Letter No. 03-04-07/11811 dated 03/02/2017 explained that if the division of property is carried out according to an agreement under which one of the partners is provided with an item the price of which is less than his share, then his received compensation in cash equivalent is necessarily taxed Personal income tax 13%. But if the property is divided in court, then this compensation is not subject to personal income tax of 13%.

There is a second option - sell your apartment or car and split the proceeds. However, this option is not always possible, because no one can force the second spouse to agree to such a sale.

Seizure of household items

A number of citizens express confidence that it is impossible to seize household items. However, such a statement is not true. These property objects cannot be foreclosed on for debts. The judge and SSP employees have the right to take measures to preserve this type of property during division in order to avoid its alienation.

The procedure for seizing household items is carried out on a general basis. Those. with the preparation of an act and inventory. In some cases, seized property is then allowed to be used, but not always. In some circumstances, items are confiscated and given to third parties for storage.

1.4. Debts

Many people forget that when dividing property in the event of a divorce, not only property is divided, but also family debts. Moreover, according to Art. 38 of the RF IC, common debts are distributed in proportion to the shares of each spouse in jointly acquired property.

A fairly common situation is the need to divide an apartment purchased with a mortgage loan. If the loan is not fully repaid, then it will be necessary to divide the debt obligations.

In addition, spouses can change the mortgage payment procedure: how much each of them will repay the loan after a divorce. It is necessary to take into account that for this you need to obtain the consent of the bank that issued the mortgage loan (Appeal ruling of the Moscow City Court dated May 14, 2015).

As for consumer loans, the situation is a little more complicated, because the law does not oblige you to provide the consent of your other half. As a result, during a divorce, a situation may arise in which it turns out that the spouse accumulated several loans, which the second spouse knew absolutely nothing about.

There is no definition of “common debt” in the law, however, according to judicial practice, a loan formally taken by even one spouse, but used for the needs and needs of the family, will most likely be recognized as common (Definition of the Supreme Court of the Russian Federation No. 75-KG15-12 dated 03/01/2016 ).

However, if one of the spouses declares and proves in court that he did not consent and knew nothing about this loan, and the money was spent on the personal needs of the borrower, then the court may recognize this debt as the personal debt of the borrower, and it will not need to be divided ( Appeal ruling of the Moscow City Court dated December 14, 2018).

Removal of interim measures

The Civil Procedure Code gives spouses the right to initiate premature lifting of restrictions. Either spouse can submit an appeal, confirming that there is no risk of unauthorized use of the property.

Algorithm of actions:

preparation of an application by the interested party;
filing an appeal during a court hearing;
consideration of the application by the court;
issuing an order to terminate the restrictions;
transfer of the document to the FSSP;
practical cancellation of encumbrances.

1.5. Kids' things

As a rule, after a divorce, children remain to live with one of the parents. In this case, the children's personal belongings are not subject to division. This could be clothes, various items for school and educational clubs (books, soccer ball, swimming fins, etc.). These children's things are simply transferred to the parent with whom the child remains to live.

If the parents have opened a bank account in the name of the child, the funds deposited in this account will belong to the child and will not be divided during a divorce. Thus, family law protects the interests of children.

Questions

My husband and I filed a lawsuit for division of property. During the trial, the court decided to seize the property and car. My husband and I recently reconciled and do not want to divide our property. What should I do?

The Code of Civil Procedure allows you to cancel encumbrances by mutual decision of the spouses or at the request of only one participant. The interested spouse prepares a petition to the court, which he submits to the chief judge at the next hearing. The petition must contain a request to terminate the civil proceedings due to the reconciliation of the participants.

Property division period

Art. 38 of the RF IC states that the division of jointly acquired property can be carried out both during marriage and after divorce.

It must be remembered that not only one of the spouses can make a demand for the division of property and the allocation of a share in it. This can also be done by a creditor of one of the spouses in order to collect the debt from the share of the common property that belongs to this particular spouse.

Legal advice: Do not forget that in the case of a judicial division of property, the claim in the statement of claim can be filed within three years from the moment you learned or should have learned about the violation of your right, and not from the moment of divorce.

In addition, the mere omission of the limitation period does not lead to the court’s refusal of the claim. To apply the rules on the statute of limitations, the defendant must tell the court that he missed it.

Foreclosing on the common property of spouses in court

The court interprets the provision differently. If the borrowed amount of money was used for common needs, then foreclosure on the common property of the spouses is executed in full. In this situation, repayment is possible in the amount of property that belongs to the spouses on the basis of common ownership rights.

In some situations, the procedure for foreclosure on the property of the spouses is aimed at the second spouse, but only after the adoption of an appropriate resolution and analysis of the property available to the debtor, which can be used to pay off the debt. The allocation of a part of the property is made taking into account the people living on its territory.

If this is the only property where the debtor’s dependents and spouse live permanently, such property cannot participate in the repayment of debts. The sale of a share is carried out taking into account its market value and is carried out with the consent of the people living there. Collection is made only after collecting the necessary information confirming this fact.

Property division procedures

The process of dividing property depends on the type of property regime of the husband and wife. The Family Code establishes two modes of ownership to choose from: legal and contractual. The legal regime is the one that exists by default within the framework of the law, that is, in the absence of a concluded marriage contract. In this case, the husband and wife claim the jointly acquired property equally (50/50). A marriage contract allows you to change this ratio by agreement of both parties.

There are 3 procedures for dividing property. Let's look at each of them in more detail.

Lawyer for recovery of property of spouses in Yekaterinburg

Guarantees of the rights of creditors when concluding a marriage contract are provided for by the relevant provisions and are regulated by this document.

If the amount from the sale is not enough for repayment, bailiffs may require the couple to review and re-register the document, clarifying the procedure for repaying debts.

If the debts arose before the marriage, then the one who issued them and used them without involving joint property is responsible for them.

If the debt being collected arose at the initiative and with the participation of both family members, then it will also be collected from both.

3.1. Property division agreement

If the husband and wife can come to an agreement and make important decisions about who will get what specific things after the divorce, then an agreement on the division of property can be concluded.

In practice, spouses also enter into an agreement to determine shares in their common property. Rosreestr in its Letter No. 14-ref/04224-GE/16 dated March 31, 2016 equates it to an agreement on the division of property.

Family law establishes mandatory notarization of these agreements. During this procedure, notaries are required to check the ownership of the property, any rights of third parties to this property, the presence of a seizure, encumbrances, etc. (Order of the Ministry of Justice of Russia No. 156 of August 30, 2017).

Important! In an agreement on the division of property, partners can determine who will own what property after a divorce (divide property in kind) or assign certain shares of this property to each of the spouses. In addition, it is not necessary to divide the property equally; you can assign a larger share to one of the spouses, for example, based on the interests of small children who remain to live with this spouse.

To enter into an agreement on the division of property, you can contact a family law lawyer to get advice about the rights and options, the consequences of this agreement for each of the spouses, and also to draw up the text of the agreement itself. And then contact a notary to certify it. Or you can immediately contact a notary and, for a fee, he will help you draw up an agreement (usually using a template) and certify it.

However, you need to keep in mind that the notary’s task is still to certify the agreement between people who have come to full agreement, and if the spouses or at least one of them is not sure about something or does not agree with something, it is better to contact a family lawyer for conducting negotiations and drawing up an agreement.

Undoubtedly, for notarization you will need to pay a state fee (500 rubles, according to the Tax Code of the Russian Federation) or a notary fee when applying to a private notary. And if the notary himself conducts a consultation and draws up an agreement, you will have to pay for the so-called legal and technical services, according to the tariffs established by the Fundamentals of Russian legislation on notaries.

Legal advice: The agreement on the division of property can be changed if both parties mutually agree, and can also be challenged in court. However, it is important to remember that it is understood that the agreement is entered into voluntarily by both parties, and it will not be so difficult to prove in court that this was not so difficult.

Special cases. Arbitrage practice

Seizure of household items

According to Article 446 of the Code of Civil Procedure of the Russian Federation, household items (that is, household items) are prohibited from being recovered under a writ of execution. Household items include furniture, kitchen utensils, lighting fixtures, plumbing fixtures, small household appliances, and bedding.

Some spouses believe that this provision of the law makes it impossible to seize household items. However, in this case, the seizure is imposed not for the purpose of further recovery of property, but for the purpose of preserving it from abuse by the co-owner. This means that the seizure of household items is completely legal and is carried out in accordance with the general procedure.

Seizure of a car during division of property

There is Decree of the Government of the Russian Federation No. 1764 “On state registration of vehicles” dated December 21, 2019, according to which a car is subject to mandatory registration with the traffic police. Registration must be carried out by vehicle owners.

Based on this, the arrest of a car in a lawsuit on the division of property should be carried out with the participation of the registration authority - the traffic police.

Therefore, the procedure for seizing a car has some features:

The seizure order, which is issued by the bailiff, is sent to the traffic police on the same day;
Traffic police officers who have received the relevant resolution make a note in the electronic register indicating that the vehicle is under arrest. This will not allow you to deregister it and make a transaction;
The bailiff establishes the location of the car and draws up an act of transfer to the plaintiff spouse or a third party for storage. Without determining the location of the car, it is impossible to draw up a transfer act.

Seizure of property during division of debts

Family law provides that the common debts of the husband and wife are subject to division in proportion to the division of common property (Clause 3 of Article 39 of the RF IC). This means that until the judicial division of property is carried out, the division of debts is possible only by contract - by drawing up an agreement.

As part of a claim for division of property, a claim for division of debts may also be considered.

Seizure of property in this lawsuit will only make sense to secure claims for division of property . The fair division of common property affects the division of common debts, and the preservation of property from illegal attacks ensures the legality of the fulfillment of debt obligations.

Read about all the details in the articles “Division of debts during a divorce” and “Is it possible to divide a loan during a divorce?”

What you need to know:

If a spouse wants to protect property from being sold by the second spouse during a divorce, it is necessary to request that the property be seized.
The petition is submitted in the form of a petition to secure the claim (in free written form).
The petition is addressed to the court simultaneously with the claim for division of property.
The application will be considered on the same day as the main claim.
Before submitting the petition, the spouse needs to make an inventory of the property and make an assessment of it.
If the court makes a decision on the arrest, the writ of execution will go to the bailiffs - they will take further actions, for example, they will send the decision to Rosreestr or the traffic police.
Seizure means that the property cannot be disposed of: sold, donated, bequeathed, pledged or exchanged.
The arrest can be lifted after completion of the division of property, about which a court order is issued.

The sooner you file a petition, the higher the chances of preserving joint property before its division.
Otherwise, the second spouse can withdraw money, donate an apartment, pawn a car, etc. This is often what happens. Therefore, in a number of cases you will have to petition the court about these facts and demand a fair division of property. The petition itself is not difficult to draw up. But you need to take into account related activities, for example, inventory and valuation of property. Many people do not know where and how to do it, as well as in what form to attach it to the arrest petition. If you have questions, need a competent assessment of the situation, editing petitions and other statements, contact the lawyers of our website for advice. Expert help will save you from searching for information on your own and making frequent mistakes. A lawyer will correct your actions, give up-to-date advice and select the latest legislative framework. Attention!

Due to frequent changes in legislation, information sometimes becomes outdated faster than we can update it on the website.
All cases are very individual and depend on many factors. Basic information does not guarantee a solution to your specific problems.

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Author of the article

Irina Garmash

Family law consultant.

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3.2. Marriage contract

To divide property, some couples use a marriage contract, and this is understandable; as a rule, it can be broader in content. Its essence lies in the fact that then the property is divided depending on its conditions.

Unlike an agreement on the division of property, a prenuptial agreement can be concluded both before marriage and at any time during the marriage.

In such an agreement, it is possible to establish different ownership regimes for different things and other parts of the property. In addition, you can regulate who will own the property that will be purchased in the future. For example, a marriage contract often establishes a rule under which property will belong to the spouse to whom it is formally registered. Even in a marriage contract, it is possible to recognize the personal property of one of the spouses, purchased before marriage, as common property. An agreement on the division of property can only regulate the ownership regime of already acquired property.

In addition, in a marriage contract, you can define the responsibilities of the husband and wife to support each other, fix what property will belong to each of them after a divorce, etc.

Important! Neither the agreement on the division of property nor the marriage contract can establish the non-property rights and obligations of the spouses, for example, methods of raising children, etc.

What do bailiffs do with seized property?

Property that has been seized is subject to sale at auction . An exception is real estate and items costing more than 500,000 rubles. They are also sold at auctions, which are held in the form of an auction. Additionally, the law provides for the possibility of transferring seized property into state ownership. This applies to items that are seized under a judicial forfeiture order. Then such items are used by government agencies or organizations.

On a note!

The money received from the sale of seized property goes to the deposit account of the FSSP unit in which enforcement proceedings are opened. And already the bailiffs transfer them to the collectors in order to pay off the debts.

On average, the sale of property lasts from 2 to 12 months. The procedure time increases if the debtor appeals the actions of the bailiffs. There are also situations when third parties send a petition to exclude property from seizure (for example, if it does not belong to the debtor, but to his parents, grandchildren or friends).

Division of common property during bankruptcy proceedings

As a general rule, in a bankruptcy case of an individual, his personal property, as well as jointly acquired property, is sold.

The Supreme Court of the Russian Federation, in its Resolution of the Plenum No. 48 of December 25, 2021, emphasized that a spouse (former spouse) has the right to go to court to divide property before its sale as part of bankruptcy proceedings. Valid reasons for this requirement may include the compelling interests of the spouse or former spouse, as well as the presence of dependents (for example, small children).

In this case, the financial manager of the debtor spouse is involved in the case of division of property, and the debtor's creditors also have the right to participate in this trial as third parties.

Consequently, the disputed property will not be sold within the framework of the bankruptcy case until the case regarding the division of property between the spouses (former spouses) is resolved.

Features of establishing jointly acquired property

Bankruptcy of individuals is caused by a large amount of debt - from 500 thousand rubles. If the procedure is initiated by the debtor independently, he has the opportunity to propose his own arbitration manager. It is natural that he will act in the interests of the client and his family. Division of marital property may not be necessary during bankruptcy. Bank lenders often take a passive approach to the issue of establishing the property of spouses, which cannot be said about creditors - individuals who actively study the file and use all resources. State authorities and banking structures may be on the side of the debtor and his family, since they are reluctant to disclose information about the property of the spouses. Legal advice on how to preserve jointly acquired property in the event of bankruptcy of individuals, and will provide comprehensive practical support. Regardless of the complexity of the situation, it is important to ensure a reliable legal position and minimize all risks.