Division of property and determination of shares of spouses in the presence of children

1.What is shared between spouses?

The Family Code establishes a list of property that is jointly acquired and subject to division. So, in accordance with Art. 34 of the Family Code of the Russian Federation, it includes the income of spouses, except for those that have a designated purpose. For example, the amounts of financial assistance are not divided. In addition to the income itself, real estate purchased with it, cars, various securities, bank deposits and any other property, except personal belongings, are also subject to division. The main thing is that the property must be acquired using general income.

Important! Even personal property can be recognized as joint property if it is proven in court that during the marriage significant funds from the common property of the spouses were invested in it. Labor, monetary and property investments are taken into account. For example, if major repairs were made in the husband’s apartment, which he received by inheritance, at the expense of common funds, the court recognizes this apartment as common property.

Let's look at the situation: Andrey opened a bank account, and a year later he got married. During the marriage, due to the common funds of the spouses, the amount on it increased several times. In such a situation, the contribution will remain with Andrey, but he will have to reimburse his ex-wife half of the funds invested during the marriage.

As a general rule, all property belonging to the spouses remains with them; children have nothing to do with it. But there is an exception provided for in paragraph 5 of Art. 38 RF IC. Thus, items purchased exclusively for the child are not divided and are transferred to the spouse with whom the child remains. Such things include, for example, stationery for school, children's clothing, musical instruments, toys, laptop, etc. However, compensation in this case is not paid.

Important! A deposit opened in the name of a child, to which funds were deposited from the joint income of the spouses, is not divided after a divorce. He stays with the child. The child's property is excluded from the division. This also applies to real estate that was initially acquired into his ownership or was transferred during marriage.

Divorce if the child is disabled.

an application for divorce from adult children at any time.

But if you have a disabled child, even one who has reached the age of 18, everything is not so simple. Because he cannot provide for himself fully; he is entitled to alimony. But they are awarded not according to age, but according to health status.

According to Art. 86 of the RF IC, in addition to them, you can recover money for treatment, rehabilitation, and if the mother/father (with whom the adult remained) cannot work, because forced to sit with a disabled person, they can demand payment for their needs.

But in such cases, divorce can only be filed through the court. At the same time, the party with whom disabled children the age of majority remain the divorce must confirm financial difficulties - what documents are provided can be found out when filing a claim.

Usually these are documents confirming the costs of children, and if a separate area for living is necessary, they revise the standard rules for the division of property.

Statement of claim for child support for a disabled child. [12.66 KB]

2.1. IT IS IMPOSSIBLE TO AGREE WHILE INFRINGING ON THE INTERESTS OF THE CHILD

The ancient Romans had a saying - pacta sunt servanda, which literally means “agreements must be respected.” But this rule obviously does not apply to those cases where an agreement on the division of jointly acquired property leads to a significant deterioration in the quality of life of the joint child.

Therefore, an agreement on the division of property, according to which the ex-husband received everything, and the mother and the common child are forced to wander around rented apartments, will most likely be challenged.

Terms of division of property

For the division of family property from the date of dissolution of marriage, the law establishes a period of three years. However, by the decision of the plenum of the Supreme Court on November 5, 1998, clarifications were given that the meaning of this article should not be taken literally and the countdown of the period for division of property should begin from the date when one of the spouses was denied access to joint property. That is, if one of the spouses uses the apartment with the consent of the other, the countdown of the statute of limitations does not begin.

After three years, the owner of the property receives the right to dispose of it at his own discretion, and it is no longer subject to division. A citizen or citizen, having received a demand for division of property, may apply to the court with a request to apply the consequences that occur after the expiration of the statute of limitations on this demand. In this case, the court is obliged to make a refusal decision on the division of the spouses’ property.

The limitation period may be suspended for the period of force majeure. But, according to Russian legislation, for this, after its completion, it is mandatory to file a corresponding statement of claim.

“The timing of filing an application for division of property is quite vague - for example, similar processes occur ten years after a divorce,” says lawyer, specialist in divorce proceedings Margarita Polyakova.

2.2. THE COURT WILL TAKE CONSIDERATION OF THE PRESENCE OF CHILDREN WHEN DECIDING THE ISSUE OF AWARDING PROPERTY IN KIND

“In kind” in legal translation means that one of the spouses will become the sole owner of any property, and the second will only have the right to demand monetary compensation.

Courts take into account the interests of children when determining what property the parent living with the child receives. For example, if a family has several residential apartments or houses, the parent remaining with the child will have priority in obtaining housing located closest to the school.

What property is considered a child's personal property?

A child cannot claim what his parents acquired during marriage unless this is stated in the marriage agreement. He receives indivisible rights to the things purchased for him, regardless of their value:

• clothes and any personal items - books, games and toys;
• children's furniture;
• sports equipment - bicycles, scooters, skates, skis, exercise equipment;
• musical instruments;
• computers, laptops, tablets, if it is proven that only the child uses them or he received them as a gift.

The list can be supplemented with any things used to maintain a comfortable standard of living and development of children.

Example: The paternal grandfather gave his granddaughter, who is studying at a music school, a cello worth 700 thousand rubles. At the time of the divorce, the ex-husband demanded that his wife pay half of the price, since he considered it joint property. However, the court took into account two points: the instrument was received as a gift, the girl needed it to receive a musical education, and it was personal property. The child's father was denied compensation.

To avoid such conflicts, some families use the practice of preparing documents for expensive gifts. Most often this concerns real estate, which the older generation transfers to their grandchildren under gift agreements.

2.3. THE PRESENCE OF CHILDREN MAY AFFECT THE SIZE OF THE SHARE

As a general rule, jointly acquired property is divided in half between spouses. But the court has the right to deviate from this rule if it is necessary to protect the interests of the spouses’ common children. Courts may increase the share of the parent remaining with the child in the apartment or house where the child lives (or award this entire property); the share of such parent in the total debt obligations of the spouses may also be reduced.

But in exceptional cases (unscrupulous behavior of the second spouse or serious illness of the child), the court may award a larger share of the entire property to the one who remains to live with the child.

Paragraph 2 of Article 39 of the RF IC allows the court to deviate from the principle of equality when dividing property and allocate a larger share to one of the parents in the interests of the children. However, their mere presence as a dependent does not affect the size of the former spouse’s share. This is a right, not an obligation of the court. There is no uniform judicial practice on this issue, however, having studied court decisions, one can find a number of reasons why judges often deviate from equality of shares.

Let's consider the main ones:

How to claim your share of property through court?

Example: an apartment was purchased during marriage and is registered in the name of the husband; the documents are in his possession. What should the wife do, and what should she write in the statement of claim, if she wants to receive a share in the apartment, and not its cash equivalent? The woman will need to order an extract from the Unified State Register of Real Estate , where she will also be indicated as the owner (the apartment was purchased during marriage). After which, to divide the apartment, she will need to go to court at the location of the property. The statement of claim will need to indicate that she is asking the court to recognize her as ½ share of the apartment. Do not forget about paying the state fee for the claim and the appraisal of the apartment before filing the claim.

Documents attached to the claim for division of property during divorce

1. Statement of claim in several copies (according to the number of parties participating in the process).
2. Documents about marriage (if divorce has already occurred, then a certificate from the registry office stating that the marriage was previously concluded) and about divorce.
3. If there are minor children, then their birth certificates.
4. All title documents for joint property. These can be sales and purchase agreements, receipts, checks, bank statements, USRN extract , and any other documents that can prove the fact of acquisition of joint property.
5. If the plaintiff, even before filing the claim, assessed the disputed property - an act of independent assessment.
6. Receipt for payment of state duty.

Reasons for departure from the principle of equality

The presence of a dependent child is not a basis for increasing the share in community property for the spouse with whom he remains. The latter will have to provide compelling arguments to satisfy the claim:

• non-participation of the defendant in the life of the child: non-payment of alimony, etc.;
• the mother does not have her own home;
• the mother has children of different sexes: in this case, each child should have its own room;
• disability of a minor if he needs a separate room or special living conditions.

According to Resolution of the Plenum of the Armed Forces of the Russian Federation dated November 5, 1998 No. 15, deviations from the principle of equality are allowed in exceptional cases and taking into account the interests of minor children. After the divorce, they should be provided with equal living conditions as before the divorce.

If the defendant has other real estate and the disputed apartment is divided, this is not a basis for making a positive decision on the claim.

What does the judge pay attention to?

When determining shares, the court takes into account several factors:

• Who do the children stay with? The parent who takes his children has a much greater chance of increasing his share. However, the position of the Plenum of the RF Armed Forces is such that the increase in this case will not affect the child’s position in any way: he does not have property rights, but can live in his parents’ apartments at any time. The right of residence remains with him. The likelihood of the claim being satisfied is greater if the defendant does not pay alimony and has accumulated arrears.
• Method of purchasing real estate. If maternity capital or other government subsidy was used, the children’s shares are excluded from the division. Subsequently, the parent with whom they remain has the right to live in such real estate, but it is not registered as property.

The mortgaged apartment with maternal capital will be divided with the allocation of shares and the distribution of loan obligations. Children's shares do not participate in the division.

Division of property after divorce

Division of business upon divorce of spouses

How to draw up a statement of claim for division of joint property

A typical statement of claim for division of property during divorce contains:

1. Name and details of the judicial authority to which the claim is filed.
2. Information about all participants in the process (full name, residential address, telephone numbers, email).
3. Cost of claim. The value of the claim is the amount at which the plaintiff values ​​the property claimed during division.
4. A list of all property that is subject to division. A description of each item and each name of property to be divided is required.
5. Appeal to the articles of law on the basis of which the plaintiff demands partition. Therefore, it makes sense to study the law or contact a lawyer to file a claim.
6. Claim. In this paragraph, the plaintiff must indicate what property and in what order he demands to be divided.
7. A numbered list of documents attached to the claim.