Ways to protect a car from division during a divorce. What will help and what will harm

As statistical data collected from an analysis of judicial practice show, when dividing property, a car is the third most common object of dispute between spouses during divorce proceedings. The first two places are reserved for residential real estate and land plots. Thus, spouses who own a vehicle and are planning to divorce need to know the ways to solve the problem, accumulated by judicial practice and legislation, in order to understand how to correctly divide a car during a divorce and get out of the divorce procedure without material losses.

How does the partition happen?

According to the peace agreement

During a divorce, a wife and husband can divide a car by mutual consent, without bringing the matter to trial. To do this, they need to formalize the division of the car in a written agreement, which must be certified by a notary to give it legal force. The agreement can be drawn up in the form of two documents:

• Marriage contract.
• Property division agreements.

What these documents have in common is that they determine the fate of property assets in the event of a break in the marital relationship between spouses, for example, they decide how the car will be divided after a divorce. The difference is in the time of compilation:

1. A marriage contract can be drawn up both before the official registration of the marital relationship and during the marriage.
2. An agreement on the division of jointly acquired assets is drawn up if the spouses are at the stage of ending their marriage or after the breakdown of family relations.

Possible options for dividing property under a voluntary agreement include:

1. Free transfer of a car into the ownership of one of the spouses.
2. Selling a car to split the proceeds.
3. Give a car to your son or daughter.
4. The owner of the vehicle keeps it for himself, paying the other spouse monetary compensation in return.

In a court

If the wife and husband could not peacefully decide who should get the car after the dissolution of the marriage, then they need to submit the dispute to the court.

Since a car is considered a movable thing under Russian law, you must choose a court according to the rules of territorial jurisdiction:

• By default, the case is heard in a court located in the same locality where the defendant lives.
• If the plaintiff is sick or has a minor child in his care, the case will be heard in court at the plaintiff’s place of residence.
• The plaintiff can agree with the defendant on the choice of the judicial body in which the trial of their case will take place.

The trial procedure consists of several stages:

1. The interested party writes a statement of claim in accordance with the norms enshrined in the one hundred and thirty-first article of the Civil Procedure Code.
2. The plaintiff attaches to it a list of official papers: Copies of the application according to the number of participants in the proceedings.
3. A copy of personal data taken from the passport.

4. 
   A certificate certifying the fact of official marriage with the defendant.

5. A document that confirms that the car is owned by one of the spouses.
6. If you bought a car using a car loan, you must attach a copy of the loan agreement with the banking institution to your application.
7. Evidence substantiating the plaintiff's claims.
8. A receipt or check certifying the fact of transfer of money to the state treasury as payment of state duty.

Division of a car purchased before marriage

One of the spouses may own a car before marriage. In this case, the car, like other “premarital” property, is not subject to division either by agreement or in court.

The second spouse will not have rights to the car, even if he used it regularly during the marriage.

Please note: during the marriage, one of the spouses can sell a car purchased before marriage and buy a new one with the proceeds from the sale of the old car.

The fact that a car purchased during marriage is owned by only one spouse, since it was purchased with the proceeds, will need to be proven.

Credit car

How is a car divided during a divorce if the spouses were forced to take out a loan to purchase it?

If the bride or groom borrowed money to buy a car before the wedding, it will be considered the personal indivisible property of the spouse who is the borrower in the transaction. According to family law, such a car cannot be divided during the dissolution of the marriage. The only exception is that if both future spouses acted as borrowers under a loan agreement with a banking organization and jointly purchased a car before registering the marital relationship, then it will be their common property.

If the loan funds for the purchase of a car were taken after the official conclusion of a family union, it does not matter who the agreement was concluded for: the husband, wife or both spouses. Both parties to the marriage are equally responsible for credit debts.

Before starting the divorce procedure, the wife and husband must agree with the banking organization on an acceptable option for dividing the car. Possible options are shown in the table below.

When a car was purchased with funds received as part of consumer rather than targeted lending,

then there are three possible ways to divide this property:

• Determine the shares by court decision that will belong to each of the former participants in the family relationship, and proportionately transfer the debt obligations to the spouses.
• Sell ​​the asset, close the debt, and divide the remaining money in half.
• Transfer the item to one of the spouses and oblige him to pay compensation to the other spouse or give part of other property for the car.

One car for everyone

Nowadays, it is not uncommon for a husband and wife to have their own car. If they were purchased before marriage, given as a gift or inherited, then it is most likely that each spouse will take their own car after the divorce.

Cars purchased during marriage will have to be divided in half. But this is not always possible due to the different prices of these cars. If the husband has an expensive foreign car, and the wife has a domestic Kalina, it would be unfair to leave everyone their car. Although this can be done by agreement or marriage contract. But the court will choose a different tactic. To begin with, each car will need to be valued at the time of the divorce, then divide this amount by two. After this, the spouse who owns a more expensive car is required to collect monetary compensation in favor of the second spouse so that the division is equal.

Example. The husband has a car worth 2,000,000 rubles, the wife has a car worth 500,000 rubles. Then you need: (2000000+500000):2=1250000 rubles. This is the amount to which both spouses are entitled. 1250000-500000=750000 rubles. The husband must compensate his wife for such a sum of money (or other property of a similar amount) upon divorce.

If the owner is a husband

Possible separation options are shown in the table.

When the car remains joint property

Family law determines that any property acquired during marriage using funds from the family budget is considered the common property of the husband and wife (Article 34 of the RF IC). To establish equality of shares, it does not matter which spouse invested more in the acquisition of things. It is even possible that one of them did not work at all, but was engaged in housekeeping and raising children. The principle of equality is established for both movable property and real estate.

After the dissolution of the marriage, the spouses retain equal rights of ownership of the joint property. They have the right to use it jointly or to make a division. Both options can be implemented with the help of a judicial decision or on the basis of a settlement agreement (Article 38 of the RF IC).

The most difficult issue is to resolve the issue of dividing some movable property, because it is simply physically impossible to do this. This applies primarily to the vehicle.

Decor

Expertise and assessment

A car is assessed for court during the division of property in order to determine its exact value. With the help of an expert opinion, the judge can understand how much the asset is actually worth and divide the property in accordance with the requirements of family law.

When during a trial there is a need to conduct an assessment or examination of a car, the judge makes a determination where he orders this event. In it, he indicates the institution that will conduct the examination, or a specific appraiser, and prescribes a list of questions, the answers to which must be given in the expert report.

The examination procedure consists of the following stages:

1. 
   The information specified in the documentation for the machine is studied.

2. The car is inspected for possible malfunctions or damage, and mileage readings are taken from the speedometer.
3. The appraiser checks the prices on the market that are set by sellers of similar cars in the same region of the Russian Federation where the car in question is registered.
4. The value of the asset is calculated, a conclusion is written, which indicates the answers to the questions asked by the court.
5. The conclusion is sent to the court that ordered the examination.

Required documents

The vehicle owner must provide the appraiser with the following documents:

• Contract for the purchase and sale of a car.
• Certificate of registration of the car with the traffic police.
• Vehicle passport, which contains technical information about the car.

Please be aware that providing an expert with false documents in order to deceive and reduce the value indicated in the report will result in criminal penalties if the offense is discovered.

Having children

If the spouses have a common minor child, then when dividing the car, the court will take into account the following factors:

• Is the car used to meet the child's needs, such as traveling to school?
• Does the parent who will live together with the child after the termination of the marriage have a driver's license?

If a combination of these factors is present, the court decides to transfer the asset to the parent who will live together with the child after the divorce, and in return transfer financial compensation or other property from the jointly acquired spouses to the other spouse.

If a car under a purchase and sale agreement belongs to a child who has not reached the age of majority, then dividing the asset is impossible. After a divorce, the parent with whom the child lives gets the right to use the car.

Selling a car during a divorce

If the car is sold, the proceeds from the sale will be divided during the divorce. Provided that the car was jointly owned, the second spouse had to give permission to the transaction. Then, for calculations, the purchase and sale agreement and the cost of the car indicated in it will be taken as the basis. This amount will simply have to be divided equally between the spouses.

The process becomes more complicated if the contract indicates an undervalued value of the car. In this case, you cannot do without an independent expert’s opinion on the average price for similar cars in the region. But even if it is available, the chances that the judge will divide the actual proceeds from the sale are minimal.

Expert assessment of car value

Contacting independent experts if you need to divide a car in 2021 during a divorce will be required in the following cases:

1. If the car was purchased more than 5 years ago.
2. If the car has been in an accident and/or needs serious repairs.
3. Provided that the car was officially operated as a taxi.
4. For cars purchased not in showrooms, but secondhand.

Car arrest

The car may be seized in the following cases:

• Large debt of one of the spouses.
• By judicial determination during divorce proceedings. With its help, you can prevent the other spouse from disposing of the car

  
  at your own discretion.

The arrest only imposes restrictions on the right to dispose of the asset, and therefore is not an obstacle to dividing the car on a general basis.

If the seizure was used by a banking institution as punishment for accumulated unpaid debt, then the issue of dividing the car should be considered in court with the mandatory participation of a bank representative. During the hearing, the judge evaluates the following facts:

1. Which spouse is the borrower under the agreement with the bank?
2. Which of the participants in the marriage donated personal funds to repay the loan and what is the share of each spouse in covering the debt.

Based on an assessment of the above facts, the court will make a decision on the proportion in which the car must be divided.

If the car was given to one of the spouses

According to Art. 36 of the RF IC, property received as a gift by one of the spouses remains his property even during a divorce. It does not matter in what period the gift was presented: during the marriage or before it. The main thing is that the gift deed is executed in compliance with all formalities and the new owner assumes his legal rights.

Division of a car given to one of the spouses during a divorce.

If the ex-spouses are concerned about dividing the car, then all of the above applies to them as well. There are often situations when relatives of one of the parties give a car for a wedding, declaring that it is a gift for both newlyweds. However, if the deed of gift and documents confirming ownership are issued in the name of one person, then it will not be possible to divide the car during a divorce. The exception, again, will be improvements for the car or its repairs, which were paid from the family budget or from the personal funds of the second spouse. Then the second party, if there is evidence, can claim compensation.

If there are two cars in the family

When both cars belong to the same price range, then the spouses, after the dissolution of the marriage, take one car each.

However, if the machines differ significantly in cost, then they must be divided as follows:

1. Order an assessment of both vehicles. Let's imagine, as an example, that one car costs 3 million rubles, and the other costs 800 thousand rubles.
2. We calculate the amount obtained from adding the prices of two cars and divide it by two. In our example, the result will be 1 million 900 thousand rubles.
3. From the resulting figure, subtract the price of the car with the lower cost. The result is 1 million 100 thousand rubles.
4. The figure indicated in paragraph 3 will be the compensation that the former spouse who owns a more expensive car is obliged to pay to the other spouse.

Expert assessment of car value

In cases where it is not possible to independently determine the market value of a car, spouses can turn to the services of an auto expert who will help calculate the real price of the car, taking into account its rating on the market, natural wear and tear, year of manufacture and other characteristics.

It is important to know : a car examination is also carried out in the event of a dispute about the procedure for determining the use of a car. If one of the spouses uses the car alone and does not provide it for use by the other party, then you should contact the judicial authorities to resolve the dispute.

Then the court may order an examination, during which the expert will assess the real value of the car based on the documents presented, since the car will not be available.

The examination also solves another problem in the event of a dispute: an unscrupulous spouse, agreeing to divide a car, may deliberately underestimate or inflate its value in order to obtain greater benefits.

The expert’s conclusion will establish the real value of the car and the interests of the parties will not be violated.

An assessment of the actual value of the car can be carried out after its sale. This happens when a spouse, not wanting to share joint property, sells a car.

Arbitrage practice

First thing

The spouses were unable to agree peacefully on the division of joint assets, and the husband filed a statement of claim with the court, in which he asked the court to dissolve the family union with his wife and transfer to him ownership of a car worth 400 thousand rubles. The wife sent counterclaims to the court against the plaintiff and demanded recognition of her right to 50% of the cost of the car.

The decision of the judicial authority partially satisfied the claims of the parties:

1. The marriage union between the spouses was annulled.
2. The court left the car in the property of the ex-husband.
3. The court ordered the owner of the car to give his ex-wife monetary compensation equal to 200 thousand rubles.

Second thing

The wife filed a lawsuit for dissolution of the marital relationship, in which she asked to transfer to her 50% of the proceeds from the sale of the car 3 years before the divorce.

The court refused to satisfy the applicant's claims, since the statute of limitations for claims for division of property in Russia is three years. They were overdue by the plaintiff, so she lost the right to judicial protection.

The legislative framework