Determination of shares when dividing the common property of spouses

Joint property of spouses

The procedure for dividing jointly acquired property is established by the Family Code of the Russian Federation.

The joint property of spouses is the property that they acquired during marriage.

According to the documents, one of the spouses may be the owner of the property, but the property will still be considered joint.

Please note : the right of ownership to jointly acquired property in marriage also belongs to the spouse who, during the marriage, ran a household, took care of children, or for other valid reasons could not work and receive income.

Joint property may include:

immovable property (apartment, house, land, garage);
real estate purchased with a mortgage;
movable items (vehicles, luxury goods, weapons);
income from work, pensions and social benefits;
funds in accounts with credit institutions;
securities.

The common property of spouses does not include:

property acquired by each spouse before marriage;
property that the spouse received as a gift or inherited during the marriage;
personal items;
exclusive rights to intellectual property results;
funds received under government programs for specific purposes.

It is important to know: if one of the spouses, at his own expense, makes major repairs or otherwise improves the property of the other spouse, then the court may recognize such property as joint property.

Spouses are obliged to perform any actions with common property only with the consent of the second spouse. If one of the spouses makes a real estate transaction (purchase and sale of an apartment, donation, etc.) and deliberately hides it from the second spouse, then such a transaction may be declared invalid by the court.

Statement of claim for determination of shares in the right of common ownership of an apartment

In _________________ district court

Plaintiff: ______________________________ ________________________________ (last name, first name, patronymic, address)

Defendant: ______________________ ________________________________ (last name, first name, patronymic, address)

Statement of claim for determination of shares in the right of common ownership of an apartment

“__”__________ 20__ between the Plaintiff, ________________, and the Defendant, ________________, a marriage was concluded, which is confirmed by a marriage certificate (a copy is attached). To date, the marriage has not been dissolved. During the marriage, namely “___”__________ 20__, a ___-room apartment with an area of _____ square meters was purchased in the name of the Defendant. meters, located at the address: _______________________, which is confirmed by an extract from the Unified State Register of Rights dated “___”________ 20__ (copy attached). The said apartment was purchased and renovated with funds that are the joint property of the spouses. In accordance with paragraph 1 of Article 39 of the Family Code of the Russian Federation, when determining shares in the common property of spouses, the shares of the spouses are recognized as equal, unless otherwise provided by the agreement between the spouses. An agreement that would have established a different size of shares in the common property of the spouses was not concluded between the Plaintiff and the Defendant. In this regard, the Plaintiff, as one of the participants in the joint property of the spouses, owns a share of 1/2 in the ownership of a ___-room apartment with an area of _____ square meters. meters, located at the address: ________________, a share in the same amount belongs to the Defendant. Therefore, based on the above and in accordance with Article 39 of the Family Code of the Russian Federation, Articles 254, 256 of the Civil Code of the Russian Federation, as well as Articles 131, 132 of the Code of Civil Procedure of the Russian Federation,

ASK:

Determine the shares in the common ownership of a ___-room apartment with an area of _____ square meters. meters, located at the address: __________________, establishing that the Plaintiff owns a share in the amount of 1/2 and the Defendant owns a share in the amount of 1/2.

Attachment: A copy of the statement of claim to determine shares in the right of common ownership of the apartment. Receipt for payment of state duty. A copy of the marriage certificate. A copy of the extract from the register.

Plaintiff: ___________________

“___”_____________ 20__

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Division of joint property of spouses: procedure for determining shares

In the event of divorce, spouses must determine shares in joint property. As a general rule, each spouse has equal rights to joint property and, accordingly, equal shares in the property.

The division of property can be carried out:

by agreement of the parties;
through the court;
at the request of the creditor if it is necessary to foreclose on the spouse’s share.

Spouses can divide joint property into shares by mutual consent by concluding a marriage contract or drawing up an agreement on the division of property.

A marriage contract and agreement are drawn up to establish the property rights and obligations of each spouse in relation to joint property.

If a marriage contract or agreement is concluded, spouses have the right to independently determine shares in property.

Both the marriage contract and the agreement on the division of property must be drawn up in writing and certified by a notary.

The above documents cannot be concluded against the will of one of the spouses. In addition, the provisions of the marriage contract and agreement cannot limit the property and other rights of the spouses, prohibit labor activity, as well as other provisions that may put the spouse in an extremely unfavorable position.

Amendments to the marriage contract or agreement must also be certified by a notary.

A marriage contract can be concluded before the state registration of a marriage or at any time during cohabitation.

The subject of a marriage contract is the property acquired during marriage or property that the spouses intend to acquire in the future.

A marriage contract can establish a regime of personal, joint or shared property.

An agreement on the division of jointly acquired property can be concluded during the marriage or after its dissolution.

The subject of the property division agreement is property acquired during marriage.

The property division agreement establishes the personal property regime of each spouse.

What facts must be taken into account in court?

There are certain nuances when dividing joint property between husband and wife in court. The legislation establishes the following rules:

all property that the spouses owned before entering into the marriage remains with each of the parties, respectively, after its dissolution;
the parties cannot share the property;
if there is a minor child in the family, then all his personal belongings, including those purchased with common funds, remain with the spouse with whom the child will live;
real estate that one of the spouses received under a gift agreement is not divided during a divorce;
The property of the spouses subject to division is valued at market value (how is the value of property assessed?).

When considering a case on the division of joint property in court, a decision may be made according to which the property acquired by each of the parties during their separation during divorce proceedings is recognized as the personal property of each of them.

When dissolving a family union, a husband and wife can resolve the issue of dividing existing property peacefully , but not everyone succeeds, so in many cases going to court is inevitable.

Unlike marriage contracts and agreements, when the parties can divide property at their own discretion, when considering a case in court, the principle of equality is taken as a basis, that is, everything acquired in a marriage is divided equally between husband and wife. But in some cases, shared ownership of property can be established in a different manner if there are significant circumstances for this that the court will take into account.

Determination of shares when dividing property in court

If the spouses did not enter into a prenuptial agreement or an agreement on the division of property, then, in accordance with family law, each of them has the right to claim half of all jointly acquired property.

If one of the spouses disagrees, the issue of determining shares in the division of property is resolved in court.

The statement of claim is filed by one of the spouses in the magistrate’s court (if the value of the joint property does not exceed 50,000 rubles and there is no dispute about the children) or in the district court at the defendant’s place of residence.

In the statement of claim, the spouse must indicate the arguments according to which the property should not be divided into equal shares, and attach documents confirming this.

The spouse may cite the following facts as such arguments:

After divorce, minor children will continue to live with the spouse;
the second spouse did not fulfill conjugal rights and obligations;
the second spouse led an antisocial lifestyle, abused alcohol and drugs, and did not engage in work activities for unjustified reasons;
other facts.

If the claim is drawn up in accordance with civil procedural legislation and all necessary documents are attached, then the court accepts the claim for proceedings and begins consideration of the case.

The second spouse has the right to submit an objection to the statement of claim, indicating his proposals regarding the determination of shares in the division of property.

During the court hearing, the court hears the opinions and wishes of the parties, evaluates and examines the evidence presented.

The court also takes into account the combination of the following factors:

the method of acquiring divisible property (whether it was acquired during marriage or before it, at whose expense);
the presence of minor children and with whom they will live after the divorce;
the contribution of each spouse to the family;
financial status of both spouses;
investment in improving the condition of the property of one of the spouses.

After examining all the facts, the court makes a decision to determine the shares in the right of common joint property of the spouses.

How are the parts identified?

Only the joint property of the parties to a family union is subject to division. Joint property means the wealth that was acquired by the spouses during marriage, regardless of who is the owner according to the documents (Article 34 of the RF IC).

If a husband and wife have decided to enter into a marriage contract between themselves (Article 40 of the RF IC), then the parties independently establish in it the procedure, grounds and size of shares when dividing joint possessions.

Attention! The parties may, at their discretion, agree to establish shares, both in relation to the entire property, and to establish shares in a specific type of property, which will be owned by the husband or wife.

All changes after signing the contract can only be made by mutual agreement of the parties.

Spouses can independently determine the shares for each of them when signing the agreement. It can be issued even after the dissolution of the marriage. Initially, the shares of husband and wife are recognized as equal, but the parties can specify other conditions in the agreement (Article 254 of the Civil Code of the Russian Federation (Civil Code of the Russian Federation)).

The agreement in which the spouses determined their shares of property rights should be certified at a notary office , since in the process of registering these shares, employees of the authorized body may ask to present a notarized document.

The parties have the right to come to such a decision when one of the spouses can receive not the established share, but monetary compensation for it (Article 252 of the Civil Code of the Russian Federation).

If the situation is controversial and the spouses cannot independently determine the shared ownership of joint property, then they can resolve the issue in court (Article 38 of the RF IC).

It is not always by court decision that equal shares of property ownership are established for spouses. The share of one of the parties may be reduced if:

the spouse spent income to the detriment of the family;
the husband or wife did not have income without a good reason (Article 39 of the RF IC).

During the trial, shares may be assigned in the following form: 1/2, 1/3, 1/4, etc. After establishing the shares, the spouses can continue to use the joint property each in their own part (if division of the object is impossible), or make a real division of it in proportion to the established parts.

During the consideration of a claim in court on the issue of division of common property, the parties can sign a settlement agreement in which they, by common agreement, will establish the size of the shares. Such a document will be considered the basis for termination of the trial (Article 220 of the Code of Civil Procedure of the Russian Federation).

When establishing the spouses' shares of ownership of each property, the court pays attention to a number of factors. So, for example, when dividing an apartment, the following points are taken into account:

when the property was purchased;
what funds were invested in the acquisition;
grounds that may cause unequal division of property.

In addition, if there are minor children in the family, the court has the right to deviate from the general rule of equality of shares of spouses in joint property, taking into account the property interests of the children.

Methods for forming shares in joint real estate

In Art. 38 of the RF IC states that the division of an apartment can be carried out both during marriage and after divorce at the request of one of the parties or at the request of creditors. This procedure can take place in the following ways:

Based on the terms of the marriage contract.
According to the agreement on the division of property.
In a court.

According to the rules of Art. 39 of the RF IC, when dividing real estate and determining shares in it, the parts due to each party are considered equal. At the same time, the judge has the opportunity to deviate from this order, based on special life conflicts, which will be discussed in more detail below.

What are the signs of general and personal property?

Roughly speaking, the main criterion for common property is the time of its acquisition. If a husband or wife acquired something during their official marriage, then this something is community property.

Common property includes:

Wedding gifts, gifts presented during cohabitation;
Items purchased during marriage;
Things acquired before marriage, but to improve the original condition of which, funds earned during marriage were used.

Personal property includes:

Gifts given before marriage;
Inheritance;
Property purchased before marriage.

In these cases, there is also a clause that if the spouses’ funds were invested in things considered personal property and their value increased, then they automatically cease to be personal.