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.
Division of property during divorce
Under civil law, all property acquired jointly during marriage must be divided in half. We are talking about real estate, vehicles and even money in bank accounts. The exception is cases when spouses have minor children.
According to Article 39 of the Family Code, the interests of this category of citizens must also be taken into account. As a result of divorce, the child does not have ownership rights to the apartment. But the court may agree and allocate a larger share to the parent who will live with the minor.
Methods for dividing property during divorce
Article 38 of the Family Code provides for two options for dividing property: judicial and extrajudicial. Moreover, the division can be made both during the marriage and after its dissolution. There are no clear restrictions for this.
Extrajudicial division of property
The simplest option to divide all property acquired during marriage is by agreement. This document must be certified by a notary.
The presence of common children between spouses cannot be a basis for refusing to issue this document. This is not possible for several reasons:
- According to the provisions of Article 34 of the Family Code, the subject of such an agreement is the common real estate of the spouses, which they acquired during their marriage.
- The property rights of a minor child cannot extend to property owned by their parents. Even if the apartment is jointly owned by spouses, this does not apply to children.
- If a minor has a share in the apartment, the settlement agreement should not affect it. The document must stipulate only the shares of the spouses.
The settlement agreement may stipulate that after the divorce procedure is completed, the child will be allocated a share in the apartment.
Another way to divide property peacefully is to draw up a prenuptial agreement. This document is drawn up before the marriage or during its validity. In the text of the agreement, the spouses specify how exactly the property will be divided in the event of a divorce, what shares will go to whom.
Division of an apartment in court
If the parties fail to reach a peaceful resolution of the issue, then the division of property is carried out in court.
According to the provisions of Article 39 of the Family Code, when dividing jointly acquired property, the shares in the ownership of the apartment will be equal. But in paragraph 2 of the same article there is a clause on the division of property in the presence of minor children. The parent with whom the child will permanently live has the right to demand a larger share in the apartment.
If the court makes such a decision, the rule of family law that the difference between the sizes of shares must be compensated in monetary terms does not apply.
At the same time, deviation from the generally accepted rules for the division of property in the presence of children is the right of the judicial authority. If the judge makes his decision without taking into account the interests of the minor child, this will not be considered a violation.
What if we conclude a marriage contract?
Those couples that can come to an agreement after the actual end of the relationship usually choose the option of a prenuptial agreement to divide property outside of court. In general, the logic is clear: various types of property regimes can be fixed in a marriage contract, and most importantly, it is possible to determine and fix who gets this or that property after a divorce without any special problems.
However, it is important to know the difference between a marriage contract and an agreement on the division of property: a marriage contract can be concluded before marriage and during marriage, and an agreement on the division of property can be concluded after the official divorce.
How to help increase the child’s share in an apartment
You can show the court your need to increase your share. The need to allocate a larger share for a child can be confirmed by providing the following evidence:
- A document confirming that the parent does not own any other property. This means that living with a child in another apartment is impossible.
- Certificate of income, which confirms the low level of financial support of the parent.
- Documents confirming that the second parent has no income or his behavior is antisocial. According to Article 39 of the Family Code, if a spouse’s behavior is detrimental to the interests of the family, his share in the ownership of the apartment may be reduced during a divorce.
Where to file a claim
An application for division of an apartment is submitted to the court at the location of the property. If spouses have several real estate properties located in different places, they can apply to the court at the location of any of them.
Since the cost of the apartment exceeds fifty thousand rubles, the application must be submitted to the city or district court.
The statute of limitations for filing a claim is three years. The calculation of this period begins from the moment when the spouse learned that his right to use jointly acquired property was violated.
As practice shows, this moment does not always coincide with the day of divorce.
Division of property in the presence of maternity capital
Maternity capital funds are not the property of the spouses. The money under the certificate is divided equally between several family members:
- Mother.
- Minor children.
- Spouse if he is the father of the children.
Upon divorce, part of the apartment purchased with maternal capital is divided between these family members in equal shares. The remaining portion is divided in half between the spouses.
How is maternity capital divided during divorce?
What to do if your spouse does not pay compensation
If the defendant does not comply with the court decision, bailiffs are responsible for collecting payments. They may apply the following measures:
- Seize or seize property.
- Draw up a protocol on administrative detention.
- Put the fugitive spouse on the wanted list.
- Put him under arrest.
- To collect money forcibly - from earnings or from an account, as well as to sell part of the property.
There may be situations where bailiffs seize the defendant’s only home. This is acceptable if the price of the apartment completely covers the debt and there are funds left to purchase housing of a smaller area.
Are children's belongings divided in a divorce?
If things were purchased to satisfy the needs of a minor, then after the parents’ divorce they remain his property. The spouse with whom the child will live receives all these items in personal possession, and the second parent cannot claim monetary compensation for part of their value.
If the property was acquired during the marriage of the spouses, but is owned by a child, it is also not divided. For example, if parents made a deposit in the name of their son or daughter, then during a divorce they cannot divide the money in it, since it is open in the name of another person. Despite the fact that virtually all the funds stored on it were earned by them.
Payment deadlines and form
The timing of payment of compensation is established in a written agreement of the spouses or a court decision. The transfer of money can be one-time or gradual. It depends on the capabilities of the parties and the amount of compensation.
Payment terms can be agreed upon in writing. If they are not reflected in the agreement or court decision, the date of fulfillment of obligations is considered to be the day the document enters into force.
If the payer does not comply with the court decision, compensation is withheld from his salary in installments. In this case, the one-time amount should not exceed 50% of income.
When can you contact the guardianship authorities?
If, as a result of the judicial division of property, the situation of a minor child has become worse, his mother has the right to apply to the guardianship authorities. When studying the circumstances of the case, the commission evaluates the living conditions of the children. Based on the results of such an assessment, a conclusion is made.
Subsequently, this document is submitted to the court as a basis for revising the previously made decision and changing the size of the allocated shares.
You will also need to visit the guardianship authorities if the child has a disability, since this circumstance contributes to the allocation of a larger share.
In the second case, the following documents must be provided to the authority:
- Certificate of disability.
- Passport.
- Birth certificate.
The parent is assigned a day for a visit, during which the commission examines the documents provided and issues its conclusion.
Arbitrage practice
Situation 1. Smirnova A.V. filed a claim in court for the division of property acquired jointly in marriage with G.I. Smirnov. apartment, and also demanded that she be given a larger share of this real estate, since after the divorce the children would live with her. During the trial, it was established that the apartment was privatized by G.I. Smirnov. during marriage.
Since privatization implies the gratuitous transfer of property into ownership, then Smirnov G.I. is its sole owner. The transaction is subject to the norms of the legislation on donation, which means Smirnova A.V. and common minor children cannot claim allocation of property rights.
The court refused to divide the ownership of real estate, but retained A.V. Smirnova. and children the right to use residential premises for an indefinite period, since they had no other apartment to live in.
Situation 2. As a result of an accident, Golubeva’s child A.N. received disability. In her statement of claim for the division of the apartment during a divorce, she pointed out this circumstance, as it is the reason for the possibility of increasing her share. Based on the results of the assessment of the evidence presented, the court found that dividing the property in equal shares would worsen the situation of the minor child, since access to the apartment may be limited.
Since Golubeva’s daughter A.N. has a disability, and this is documented, the judge made a decision to increase her share in the ownership of the apartment. Otherwise, the child might experience unnecessary inconvenience.
Situation 3. Derevianko A.P. and his wife Derevyanko E.V. went to court to dissolve the marriage and provided a settlement agreement on dividing ownership of the apartment into three equal shares: 1/3 for each of the spouses and for a common minor child.
As a result of the trial, it was established that the ownership of real estate belongs only to the child. Derevianko's claim was denied, since they are not the owners of the property, and it is in full possession of their son.
Property of spouses subject to division and considered jointly acquired
Before starting the procedure, you should understand what will be considered common. This is the name given to property that a couple acquired while they were married. Moreover, it does not make much difference what financial contribution each spouse made. Even if only one person works in a couple, everything purchased by him will be considered common. You can read more about this in Art. 34, RF IC.
Almost any financial or material benefit is considered common, including salary, pension and various fees. This applies to luxury items, such as fur coats or jewelry, if they were used exclusively by the spouse.
Sometimes the law may allocate a larger share to one of the spouses, provided that the other did not work without a good reason. But the concept of “disrespectful” is quite narrow and individual in each case. Often, even addiction to alcohol or drugs is not such a reason. Usually the court divides everything in half.
