Division of property of spouses during a divorce in 2021: how to divide jointly acquired and personal property

The division of marital property is always one of the most difficult and problematic stages of a divorce. Although sometimes it is possible to divide property without entering into divorce proceedings. Simply distribute everything acquired between spouses according to the need and degree of investment. Including deciding how, in the event of a rupture, something that cannot be physically cut will be divided.

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.

Form and content of the application

The legislation does not establish the form of the petition, but in order for the document to be accepted by the court, it must contain the following information:

• name of the court;
• plaintiff's details;
• information about the defendant;
• number of the case under consideration;
• property subject to valuation;
• the reason for filing the application;
• date and signature.

Sample application for appointment of an appraisal examination

Division of property: what is considered personal property

The division of common property of spouses means all items that were purchased during marriage, and personal property means what the spouses had before marriage. Although even during the period of marriage it is possible to obtain personal property - this is what was given to the spouse, he inherited or managed to privatize in his own name. In addition, the following things are called personal:

• Items that a person used. This includes clothing and shoes, hygiene items, etc.
• Target type payments. For example, money that was paid as compensation for an injury. They cannot be separated, because the direct purpose of the payments in question is to cover some goals, and transferring them to a stranger is clearly not included in this list. Even if with the allocated money we managed to achieve what we wanted, and there is still a certain amount left. The same applies to maternity capital. If real estate was bought for it, you can claim a share in it, but not the finances. But when it comes to payments to military personnel, they are divided because they are equal to the standard salary.
• Remedies for the fruits of intellectual activity. This applies to copyrights, which cannot be transferred upon termination. But money from the sale of books and other works of authorship will be divided.
• Everything purchased before marriage. Even if the shape is changed (an old dacha was converted into a modern cottage), but only if the official owner of the property has not changed. The same scheme works if you sell your old pre-marital apartment and invest the money from it into a new one. If at the time of purchase the price of the new apartment was half paid back by the invested funds, upon divorce the spouse will receive half of the housing, and not compensation for the invested amount.
• Inheritance and gifts. This is the personal property of the recipient, even if the gift was from a spouse to his wife. It’s another matter if the car was bought for the spouse to use, but the gift was not documented as a “gift”; after the breakup, it will have to be divided on a general basis.

Also, during a divorce, they will not divide the children’s things, even if the child was bought a very expensive car or designer pants. Also, the funds in the child’s accounts remain inviolable, regardless of who deposited them and with whom the baby lives.

Division of joint property of spouses and its assessment

Valuing divisible items is difficult in terms of determining an adequate value. If they were purchased recently and you still have the receipts, you can bring these pieces of paper. In this case, the court will take into account the original price without taking into account the degree of wear and other parameters.

It is more difficult to evaluate real estate, but the division of jointly acquired property of spouses cannot be carried out if you do not know this indicator. The cadastral price can be used as a base. This option is perfect if you have only one apartment, as it will allow you to calculate the state duty. If there are several objects, then you will need to use the services of an appraiser. He will be able to determine how much the object is worth during the division period. This will be rational if the market price of the objects in question does not correspond to the cadastral price.

The appraiser can also calculate how much all the property located in the apartment will cost. For example, household appliances and furniture. To do this, you need to collect receipts for all items and search for similar objects on the Internet.

As for car valuation, the scheme is quite similar. They only check the general condition of the car, how many times it has been repainted, and whether the vehicle has been involved in an accident (checked on the traffic police website). After the overall assessment, you can begin preparing a report on the overall price, according to the current state of the market.

At the same time, items that cannot be divided for technical reasons are compensated financially. For example, the husband gets to keep the car, but the wife is compensated for part of her share.

The legislative framework

Division of property purchased before marriage

You can only share items that were purchased after the marriage was registered. Items purchased before marriage cannot be divided. But to protect yourself, it is advisable to make sure that you have documents confirming the fact of purchase. Especially if it was committed recently.

This is especially important for real estate, which after the breakup will be only yours. Provided that the property has not changed its status to “common”. Also, any item that was purchased under the following circumstances will not be considered joint:

• The funds for the property were earned by the wife or husband before marriage, although the purchase was made after registration;
• Inherited money or an item;
• It was a gift.

Sometimes the situation can change if one of the spouses has invested well in the object under discussion. For example, he performed expensive renovations, thanks to which the cost of the apartment increased significantly. But here, too, one cannot do without a serious evidence base.

Voluntary division of property

The division of property during a divorce can be voluntary, when the couple independently chooses who gets what. In this case, a special agreement is drawn up. It can be discussed orally or determined in a more reliable, written form.

The oral form can be used if the claims have little financial significance, within 10 thousand rubles. If the amount of claims is greater, it is recommended to conclude a written agreement and have it certified by a notary. This document can be drawn up not only during marriage, but also after it is dissolved. In any case, drafting a document requires details. Be sure to consider the following:

• Describe divisible objects in as much detail as possible. For example, if we are talking about a car, indicate its model, color and other important factors.
• When talking about real estate, indicate the address and technical parameters. This way, in the event of a conflict, the offended spouse will not be able to damage the repairs or do any other dirty tricks. If there are several objects, indicate and describe everything (including offices).
• Describe the technique, parameters and characteristics.
• If there are jewelry and other luxury items, they also need to be described.

A well-drafted agreement will make the division of jointly acquired property calmer and fairer. There will be no need to enter into conflicts, which already exist, given that the spouses are not going for divorce out of a good life.

At the same time, debts are not divided, and the structure of the document itself is extremely simple. For example, when dividing property, you need to mention who the parties are, the purpose of signing the agreement, the place and date. It is also necessary to indicate the relationship between the parties and under what circumstances the agreement will come into force (when).

Many people confuse a marriage contract and an agreement, although these documents have completely different natures:

Forced division of common property of spouses

Community property legally belongs to both spouses, even if it was purchased during marriage with the money of only one. Everything that has some financial value will be divided. For example, the following items have such value:

• Real estate, including not only apartment meters, but private houses and country houses;
• Commercial real estate (shops, cafes, offices);
• Shares and valuable documents;
• Income of spouses, including not only non-targeted purposes, but also targeted ones;
• Income that was received from the use of the intellectual property of the husband or wife (although this does not apply to the right to use the developments in question);
• Movable property (car for example);
• Jewelry and other valuables.

According to standard practice, the division takes place in court, where everyone receives half. But circumstances may arise that make it possible to change the distribution of shares. The reason for such a preponderance may be an attempt to protect the interests of a common child. Also, an overweight can happen if one of the spouses needs a larger share, even if the property of the spouses is divided during the marriage.

Sometimes if someone gets the majority, they will have to compensate their ex for the loss. This usually happens when something indivisible needs to be divided. But it’s impossible to determine the price out of thin air. You will need the services of an experienced appraiser, whose task is to adequately assess the current value of the property.

Going to court involves filing a claim by one of the spouses. It must indicate claims, but they must be supported by documents. Then the body will not only begin to act in accordance with current legislation, but will also take into account the objective interests of each party.

In addition to filing a claim, it would be a good idea for the parties to find a lawyer who will protect their interests. This is especially important in situations where the case promises to be complex.

Who evaluates

The assessment can be carried out either by spouses personally or by specialized companies. In the first case, the husband and wife simply determine the approximate price of the objects and indicate it in the statement of claim or agreement. The main thing is that both parties agree on the price.

If the court finds that the value is too high or too high compared to the market value, it may order a compulsory valuation.

Example : Spouses cannot agree with each other regarding the division of property, but having a rough idea of ​​its price, they agree that the state duty will be too high when trying to resolve the case in court. They agree with each other that they will not dispute the price of the claim and indicate the price for the objects several times less than the market price (suppose that the apartment, in the “opinion” of the spouses, costs not 3 million rubles, but 200 thousand). The court clearly sees the discrepancy and forces the parties to evaluate the property in a specialized company.

Most often, property is assessed by an independent appraisal company that has a license to engage in its activities and all the necessary certificates to determine the value of the disputed objects.

Division of marital property in court

The court procedure provides for a 50% to 50% division for each spouse. But sometimes there is a possibility that the decision may be with an advantage up or down. Moreover, everything can be divided not only during a divorce, but while still in a marital relationship or after nothing officially binds the exes anymore.

Sometimes a trip to the court office can be avoided. To do this, you should try to resolve the conflict peacefully. It is enough to draw up a voluntary agreement, which describes in detail what things go to whom.

When the conflict is so serious that it is impossible to resolve it on your own, you should go to court. To minimize risks, it is advisable to seek help from qualified lawyers. Their tasks include not only collecting and correctly drafting documents, but also identifying the evidence base that can maximize your chances of achieving your goals. Moreover, the procedure will not differ regardless of whether the division of the spouses’ property occurs within or outside of marriage.

State duty when dividing jointly acquired property of spouses

The division of marital property involves some legal costs . In particular, you will have to pay a state fee. This is a fairly significant amount, the exact amount of which depends on the price of the claim (total value of the property). If the amount of the claim is large, then the state duty will be substantial. The exact size of this unit is indicated in Article 333.19 of the Tax Code of the Russian Federation. Although it is much easier to calculate it yourself - on the courts’ website there are almost always state duty calculators that allow you to quickly and accurately obtain the required amount.

It is interesting that the state duty is charged for each claim, so if there are several of them, then there will be more than one duty. Moreover, if the claim does not have a monetary value, there is no need to calculate the state duty for it - it is already determined by law and is 300 rubles.

If you doubt the correctness of your calculations, you can pay as much as you think is sufficient. If the calculations are incorrect, the court will definitely notify you of this and you will be able to pay part of the money or receive the balance in your account (provided that you paid more than necessary).

Sometimes the amount of state duty seems too large. In this case, you can pay a thousand rubles and apply for a deferment of full payment. You can indicate a difficult financial situation as the reason. But in order for the court to accept such a petition, you need to show documents that confirm financial problems. Then it is even possible to recover part of the fee from the defendant.

Division of property between spouses: list of documents

Collecting papers is an important part of the work when dividing property. You need papers on ownership, as well as documents confirming claims against these objects. Each line of requirements must be confirmed by relevant papers. In addition, when filing an appeal to the court after having already completed a divorce, you need to collect a list of the following documents:

• A receipt confirming that the state duty has been paid;
• Copied claim;
• Record of marriage in the deed and divorce certificate;
• Personal account;
• Papers for property that confirm ownership (checks, agreement, etc.).

If the plaintiff cannot submit documents himself and a representative does this for him, it is necessary to add a power of attorney to the general list.

How to check an appraiser

Division of property in a mortgage

Sometimes the property of the spouses was bought on credit, and if the apartment is still under mortgage, special options may be used on how to divide it. When dividing, it is important to take into account the following factors:

• To whom is the mortgage issued? For example, only for the wife or husband, or for both.
• When was the mortgage taken out? Before the marriage was officially registered or already when the spouses were married.

Mortgage real estate during a divorce is quite problematic, because even if the real estate goes to one of the spouses, the bank sometimes demands that the second one pay his share, since he is a joint and several debtor. To prevent this from happening, it is important to think through this outcome in advance. For example, when drawing up documents, indicate that after a divorce the person to whom this property will go will pay the debt, or divide the property of the spouses during marriage.

As for judicial practice in this matter, it is ambiguous . Sometimes the conflict is resolved peacefully. Each spouse receives their share of the debt and apartment. It’s another matter if there are several debts. Then, to make the situation less problematic, you should seek help from a professional lawyer.

Division of marital property after divorce: how a car is divided

The division of jointly acquired property involves not only real estate, but also movable assets. For example, cars. The vehicle is usually transferred to one person. The calculation takes into account who used the car more often, whether he needs it for work, whether he has a license and how much interest there is in receiving it.

After transferring the car to one of the spouses, the second receives financial compensation in the amount of his share. That is, if the car is divided in half, half is compensated. Financial compensation implies an accurate assessment of the price of transport. In order to draw it up, a professional appraiser is invited.

Division of property and business

Business is a flexible concept, but when it comes to dividing it between spouses, not only real estate is taken into account, but also any things that were used in commerce. For example, the transport you use to transport goods, storage facilities, the goods themselves, money, shares and other assets.

The division of the property in question is a rather complex task that requires the development of an individual strategy. But over the years of practice, professionals have managed to develop several quite successful schemes, so it is likely that at least one of them will work in your case:

• Carry out the division of the business, like any other property of the spouses in marriage. Depending on the circumstances, receive half or another share.
• One of the spouses of the company leaves it, after which he orders an appraisal of the property and divides it depending on the current value. When the cost is determined, its financial equivalent is reimbursed.
• The owner can give compensation in the form of some other value.
• The business can be put up for sale, and after receiving the money, you can divide it among yourself.

Usually only one of the spouses is involved in the business, so he does not want to share his brainchild. Especially if this could cause its profitability to drop significantly. In this case, you should seek help from lawyers who will draw up the right strategy of behavior.

Division of jointly acquired property in the presence of children

The division of joint property of spouses is a complex process in itself, but the presence of children can complicate it even more, especially if the children are adults. In addition to the fact that it is necessary to determine with whom the child will live, the parent with whom he remains can claim a larger share. This is due to the presence of greater responsibility and the need to provide the heir with better conditions. That is why the parent with whom the child will live gets the only shared apartment, etc.

The share will be even greater if the child has a disease. Then the parents must provide him with special living conditions, quality food, money for treatment and other expenses. In the realities of buying a home with parental capital, the child will have his own share in the apartment, therefore it will not be divided in half either, but all owners will be taken into account. Including minors.

Terms of division of jointly acquired property of spouses: the concept of limitation

Division of property of former spouses is possible only if a certain period has not passed.

Important! The ex-husband or wife can claim marital property within three years. This is the statute of limitations.

If the designated period has not yet passed, you can safely file for division of jointly acquired property - the court will accept your claim. Although the limitation period begins to count from the moment the plaintiff learned that his rights were being violated. This could be either immediately after the divorce or a year later. Sometimes the procedure can be started while still married if you find out that your spouse is trying to deprive you of your fair share through fraudulent means. The connection between the point in question and the moment of divorce is very conditional

During this time, the property can be divided. In this case, from the moment one of the parties learned of a violation of their rights, the statute of limitations begins to count, for which compensation for damages for improper division of property can be demanded.

How to make a division of property after a divorce if 3 years have passed

Sometimes property has to be divided not immediately after a break in ties, but after several years. If more than three years have passed, you will not be accepted in court (unless you find out about a violation of rights). We will have to negotiate, since the property will be common, without allocating a share in it. If you cannot reach an agreement on your own, the court will do it for you.

Petition for appointment of an appraisal examination

A petition to appoint an appraisal examination is submitted after the court accepts documents for consideration and before a court decision is made.

The petition can be filed by either the plaintiff or the defendant.

The plaintiff files a petition if:

• did not conduct the assessment on his own initiative;
• doubts the value of the property indicated in the assessment carried out by the defendant.

The defendant files a petition if he does not agree with the value of the property to be divided.

How to formalize the division of property if claims are refused

The division of property during a divorce may be accompanied by the refusal of one of the parties to claim in favor of the second spouse. In order for such an agreement to be valid, it is necessary to draw up a notarial agreement. But there are circumstances that will prevent you from drawing up such a document. For example, one of the spouses has debts. Then even if he agrees to give up his share to his wife, it will not work. The court will refuse to satisfy the claims, since this way the creditors will not be able to recover compensation from the debtor.

You can get legal assistance on property division issues on our website.

What documents are issued by hand?

The specialist draws up the assessment conclusions in the form of a report, which contains the following information:

• The date this document was produced.
• His number.
• Basis for performing appraisal work.
• Information about the specialist or the organization in which he works.
• The purpose of completing the ordered work.
• Description of the asset that was assessed.
• Standards and methodology used by the expert.
• Sequence of steps to determine the value of the subject of assessment.
• List of official papers used by the specialist.

When you receive the report in your hands, you should make sure that it is bound and has the expert’s signature and seal. In addition, the document must have numbering on each page.

For a notary certifying an agreement providing for the division of property between a wife and husband, or for a court hearing a case regarding the division of marital assets, this document has the force of written evidence. They must be guided by it when making decisions.

A sample assessment report can be found by following this link.