While in a registered marriage, one of the spouses registers the acquired apartment as their property. What pitfalls can await him during a possible division of property? How can legislation protect his interests and the interests of other family members? We will tell you about the most important points that every owner should know in this material.
Registration of purchased real estate
There are different ways to purchase real estate during marriage:
- for one of the spouses;
- into joint ownership without allocating a specific share to each;
- with the allocation of shares - in equal proportions or divided by agreement of the spouses according to the invested funds.
While the family lives in marriage, these moments do not play a big role. But if it comes to divorce and division of acquired property, the principle of registration of property will play a decisive role. How will property issues be resolved in the event of a family breakdown?
Important! Let’s make a reservation right away that we are talking about real estate acquired during marriage. If the apartment was owned by one of the spouses before the marriage, it is considered premarital property and is not subject to division under any circumstances. estate received as a gift or inherited, regardless of the time of its receipt, during marriage or earlier, is also not considered joint property
Limitation period for division of property after divorce
The couple can get by with a settlement agreement, but if this fails, they will have to go to court. But in this case, you need to pay attention to the deadline for dividing the common property of the spouses.
Since cases are supervised by the Civil Code, the terms are regulated according to the same procedure as other civil claims. It is three years. But there is a nuance here regarding the starting point. It begins not from the moment when the spouses divorced, but when the plaintiff realized that his rights were violated.
An example would be a situation where ex-spouses used a joint dacha for many years, but one day the wife found out that her ex-husband had sold the common dacha without asking her permission. As soon as the wife finds out about the violation, the statute of limitations begins to count.
Registration of an apartment for one of the spouses
Most often, the purchase of an apartment or house is registered in the name of one of the family members, the husband or wife. The reason is a simpler registration process (there is no need for both spouses to complete all the necessary formalities).
Regardless of whose income was the source of funds for the purchase of housing, it will be joint property if acquired during a legal marriage. It should be taken into account that when registering with Rosreestr, you will have to provide a document confirming the consent of the second spouse to purchase living space.
Important! Such a document will not be required only when registering real estate when:
- the apartment is purchased as shared ownership;
- there is a marriage contract, which spells out in detail in what situations and how spouses have the right to dispose of property;
- There is a power of attorney from the second spouse to draw up a purchase and sale agreement.
You can obtain permission from your husband (wife) to purchase an apartment in advance. In this case, two options for such a document are allowed:
- indicating the specific housing (address, other technical data);
- consent to purchase real estate without specifying the object.
Consent from the spouse must be certified by a notary. This is done in order to protect the seller from terminating the transaction through the court if the buyer’s husband (or wife) wants to challenge the purchase and sale agreement and seek a refund.
Skipping the statute of limitations for division of property
There are situations when division of property is required after the statute of limitations has passed. Such circumstances are also not hopeless. If there is a significant reason, you can file a lawsuit in order to restore the statute of limitations, and only after that begin the main procedure.
Serious reasons for reinstating the deadline for dividing the common property of spouses may be:
- the plaintiff himself was ill or one of his relatives was ill;
- business trips;
- illiteracy or ignorance of Russian.
If the terms are seriously overdue, it will be almost impossible to file a claim against the joint home unless they are reinstated.
Features of dividing an apartment purchased during marriage
An apartment purchased during marriage can be registered to one owner. However, you need to remember that registering property rights for only one spouse has its pitfalls. We are talking about the possible division of jointly acquired property.
This situation most often arises in the process of divorce, but even if the family is preserved, it is quite likely that the second spouse will want to secure his right to real estate. And it is not at all necessary that the apartment or house will be divided equally.
If the spouses fail to reach an agreement through negotiations, the size of each share will be determined by the court. The interests of minor children, the existence of a marriage contract and other legally established nuances will be taken into account.
However, an owner who bought real estate while married and registered ownership only in his own name, in certain cases may well claim its indivisibility. There are several reasons for this decision.
Housing was purchased with money inherited or donated by a relative
In such a situation, you will need to take care of two things:
- record the fact of donation by agreement with a notary or make copies of documents on bank transfer of funds from the donor to the recipient. In an inheritance situation, you will need an appropriate notarial certificate;
- record the fact of transfer of funds for the purchased housing from the buyer’s personal account.
If the apartment was purchased in cash, you must have a document confirming the origin of the amount spent on the purchase. This will help subsequently prove that the purchased housing was, in fact, given to one of the spouses and the second cannot claim a share in it.
The apartment was purchased entirely with the owner’s income
The fact that the second spouse is fully supported by the owner of the property without good reason may result in the housing purchased during the marriage going to the person who purchased it.
It should be borne in mind that the court may recognize the following as valid reasons for lack of income:
- the need to care for a sick relative, confirmed by a doctor’s conclusion (certificate of disability);
- the presence of minor children who are being raised by a non-working spouse;
- a serious illness that does not allow the second spouse to work and earn their own income.
Sample claim for division of property after divorce
The court accepts claims when the divorce has already been completed, but they must be drawn up according to certain rules. This applies to the content of the document. For example, it should contain information about which authority the claim is being filed and who is filing it (full name and passport details).
It is also important to describe the essence of the appeal and references to regulations that allow you to demand division of property. It is also important to calculate what amount should be divided. This is the price of the claim, on which the state duty will depend. Therefore, it is impossible to do without calculation. It is necessary to indicate a list of documents that are attached to the claim. The date and signature are also indicated.
In order to correctly divide the property of spouses after a divorce, a sample document is needed. It will allow you to correctly navigate and draw up a document without errors.
In addition to the fact that there must be a claim itself, a set of documents is required to confirm the legality of the request when the divorce has already been filed. The following documents must be attached:
- a copy of the receipt for the state duty (will confirm that you paid it);
- copies of participants’ passports;
- birth certificate of children who are also owners of the property;
- papers to confirm rights to divisible property.
You can add additional documents that you think can prove your right to some property. As for the state duty, its size is not a fixed amount. This is a percentage of the value of the property being divided, which must be calculated using the formula presented in Art. 333.19 Tax Code of the Russian Federation. But this amount cannot be less than 400 rubles and more than 60 thousand rubles.
Where to apply to receive an inheritance
In the Russian Federation, notaries handle cases related to the inheritance of the property of a deceased person. After the death of the testator, interested parties must contact such a specialist with an application to accept the inheritance. Which notary should I contact when entering into an inheritance?
The notary will determine in what order the inheritance will be carried out: by law or by will, determine the shares due to each heir, and issue them with the appropriate documents.
When disputes arise between potential recipients of inheritance, most of them are resolved in court. Thus, in order to allocate the marital share from the personal (premarital) property of the deceased on the basis enshrined in Art. 37 of the Family Code of the Russian Federation, the surviving spouse must file a claim in court for the allocation of the marital share from the inherited property.
You can submit an application to accept an inheritance within 6 months from the date of death of the testator. If this deadline is missed, in exceptional cases it can be restored, but only by court decision and if there are good reasons.
When carrying out significant repairs
Significant repairs are those after which the living space has become much more expensive. To receive a share of this housing, the spouse must provide evidence in court that will certify his participation in the renovation.
But it usually happens that a spouse simply cannot complete their participation in the major repairs being carried out. It is impossible to simply say in court that major repairs took place: this will not be taken into account.
It is necessary to provide evidence that the work was performed during the marriage, as well as certify the fact of participation in them.
The following may serve as significant evidence:
- Testimony of witnesses.
- Receipts and receipts for materials purchased and services provided.
- Agreements with companies that did the repairs.
- Other documents that certify the participation of spouses in this procedure.
In some situations, a court may order an examination, during which it is possible to establish the nature of the repair and the period for its implementation.
If all the evidence provided by the plaintiff is confirmed, then the distribution of property purchased before marriage will be made in accordance with the general norms of the legislation that governs these events - the parties will receive equal parts of the apartment.
Passive valuation of property that will be divided
In the event of a divorce, existing property before marriage can be divided if it has increased in value. Consider an example where a spouse uses RUB 1 million in non-marital property to make a down payment on a marital home during the marriage, and that spouse takes out a RUB 3 million mortgage. The couple pays off the mortgage payments on the home for 30 years, after which they pay off the mortgage and own the home. After 35 years of marriage, the spouse files for divorce. During their married life, real estate has risen in price and the house can now be valued at 7 million rubles. Passive rating is calculated as follows:
