Collection of monetary compensation upon division of marital property

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Divorce of spouses rarely proceeds without division of property. To implement it, most turn to the courts. The division of property during a divorce will require the collection of a voluminous package of documents. To clarify the list, it is advisable to contact a professional lawyer. If this is not possible, then you should focus on the articles of the Code of Civil Procedure of the Russian Federation, the IC of the Russian Federation, the Civil Code of the Russian Federation and a number of federal laws, depending on the situation. This may be Federal Law No. 117 “On Military Mortgage” or Federal Law No. 256 “On Maternity Capital”.

Is it possible to receive monetary compensation and in what cases?

The possibility of receiving monetary compensation is regulated by Art. 38 RF IC.

Payments are applied in the following cases:

• jointly acquired property cannot be divided into equal parts;
• one of the spouses is against the sale of property and division of funds;
• the share in the property of one of the spouses is greater (for example, the wife receives an apartment, the husband receives a car + compensation up to the cost of the apartment).

If the divorce spouses were unable to resolve the issue peacefully, the property dispute is considered in court. Receiving a material payment deprives the spouse of the right of ownership (use, disposal) of the thing.

Alternative to monetary compensation:

• provision of service;
• completing of the work;
• transfer of property for temporary use;
• exchange for personal property.

What is subject to division in a divorce?

The process of division during divorce covers property acquired with common funds after the registration of the marriage relationship.

Art. 34 of the RF IC defines the following list:

• cash (deposits, income of a married couple, pension savings);
• real estate;
• movable property (household appliances, furniture, electronic equipment);
• transport;
• debt (credit) obligations;
• joint rights.

If there is no marriage contract or voluntary agreement, the division is carried out in accordance with the norms of current legislation:

• RF IC (Article 34);
• Civil Code of the Russian Federation (Articles 252-256);
• Code of Civil Procedure of the Russian Federation.

Changes for 2021

Starting in 2021, the State Duma began to say that actual marriage relationships will be equal to official ones. Citizens must live together for at least 5 years, but if there is a common child, then this period is reduced to two years.

If the conditions under consideration are met, then citizens already bear legal responsibility to each other identical to that which occurs in an official marriage. This means that it is up to the Family Code to resolve conflicts regarding the division of property, the assignment of alimony, and the determination of who the child will live with. But this project was not approved, which continues to complicate the division of property of couples who were not officially married.

Calculation of monetary compensation

An expert assessment of joint property will help you find out the amount of monetary compensation. The principle of calculation is to determine the difference between shares when dividing property in kind. The spouse who received the smaller portion has the right to receive compensation.

In judicial proceedings, the power of settlement lies with the court. If the amount of payment is significant, the consent of the parties to the process is required.

Example of a section with compensation through the court

The Karpachov couple applied to the court with a request for a divorce and division of jointly acquired property: a car, furniture and household items. To determine their value, the judge ordered an expert assessment. Taking into account the interests of the spouses, the car was transferred to the man, and the rest to the woman. As a result of the division, the Karpachovs’ shares turned out to be disproportionate, because the cost of the car turned out to be significantly higher than the price of furniture and household appliances.

The court calculated the difference between the parts and determined the amount of monetary compensation. Karpachov agreed and undertook to pay Karpachova the money on time. This is how the court resolved the property dispute between the spouses, restoring equality of shares with the help of a legal instrument - monetary compensation.

Violation of general rules for division of property

When dividing property, the court distributes joint property in equal shares between the spouses. Ownership of a particular thing is assigned to a specific party. If there is a difference in the estimated value of the shares, one form of compensation is applied at the discretion of the judicial authority.

The general rule of section may be violated in the following cases:

• signing a marriage contract defining property relations;
• conclusion of a voluntary agreement on the division of joint property;
• have minor children;
• the husband or wife is unable to work;
• misuse of funds by the spouse (outside the interests of the family), lack of income without good reason.

The amount of earnings of a husband or wife does not matter unless it is specified in written agreements. The lack of individual income does not deprive the right to an equal share in the division of property. Deviation from the principle of equality must be justified.

Minor children do not have the right to claim the property of their parents and vice versa. The division of joint property during a divorce does not involve taking into account the child’s share. The child's belongings are transferred in full to the parent with whom the child will live. They are not subject to division.

Property valuation

Property valuation – determination of market value, taking into account wear and tear and current prices. This information is needed when considering a property dispute in court:

• to calculate the amount of state duty when filing a claim;
• determination of shares (compensation payments) during division between spouses.

The plaintiff declares the price of the property based on information from Rosreestr. If such information is missing, the exact cost will be determined by an appraiser or expert institution.

Participants in the process have the right to challenge the expert’s conclusion. The reason may be overestimated or underestimated data. To carry out the examination, the interested person must contact another company. If the result does not satisfy the spouses, the court independently appoints an expert. His decision becomes a priority when dividing joint property.

Statement of claim for division of jointly acquired property of spouses

Agreement on the division of debt and credit obligations of spouses

Legal basis and types of property for division

The procedure for dividing property through the court or by agreement of the parties is regulated by two basic legislative acts - the Family and Civil (Part 1) Codes of the Russian Federation. They determine what documents are necessary for the successful implementation of the event.

Equally important to the issue at hand is the type of property owned by the spouses. It is important to understand that the common property of husband and wife acquired during marriage is divided. Not subject to division:

• property acquired before marriage;
• property received as a gift or as an inheritance by one of the spouses;
• personal belongings and items of no particular value;
• patents and copyrights, as well as other types of intellectual rights;
• property acquired after the official divorce;
• children's property and funds placed in accounts opened in their names. In any case, such property is transferred to the spouse with whom the children remain.

Important

. Do not forget that not only property is subject to division, but also the debts of the spouses created during the marriage. They are also distributed equally between the ex-husband and wife. The exception is loans taken without the knowledge of the spouse or to meet personal needs.

All other property that is common to the spouses is subject to distribution between them. The answer to the question of what documents are needed for the division of property depends on the chosen option for carrying out this difficult event.

Monetary compensation by agreement

The agreement is concluded on a voluntary basis by mutual consent during a divorce.

Peaceful division presupposes:

• determining the volume of the property mass for division;
• indication of cost;
• distribution between spouses;
• calculation of monetary compensation.

The deadlines for fulfilling obligations under the agreement are set by the spouses independently. In this case, the method of transferring compensation payments is indicated: transfer to a bank account, cash, postal transfer, etc.

Form and content of the agreement

Drawing up an agreement requires written form (oral is allowed if the value of the property is no more than 10 thousand rubles). Notarization is not required.

The structure of the document should include the following points:

1. Parties to the agreement (personal data).
2. Family status.
3. Subject of agreement.
4. A clear distribution of things between spouses.
5. Determination of monetary compensation.
6. The moment of acquisition of legal force.
7. Place and date of signing.
8. Personal signatures of the parties (with full name decrypted).

If the agreement consists of several sheets, they must be numbered and the document is bound. When writing an agreement, specificity is required - indicating the thing with full characteristics. An individual document can be drawn up for each item.

Sample agreement

Agreement on division of property with compensation

Bryansk12.03.2020

Malysheva Marina Aleksandrovna, born on June 4, 1986, passport series RK No. 87645, registered at the address: Bryansk, st. Pushkina, house 26, apartment 114, on the one hand, hereinafter referred to as the wife, and Malyshev Roman Stepanovich, born on April 30, 1984, passport series MK No. 34876, registered at Bryansk, st. Artema, 28-a, on the other hand, hereinafter referred to as the husband, who registered the marriage relationship on 04/09/2010 in the Central Branch of the Civil Registry Office of the city of Bryansk, act record - 6589578/ar-25, hereinafter referred to as the spouses (parties), signed this Property division agreement:

1. The spouses, by mutual agreement, decided to divide the jointly acquired property in the following order:
   

   Name	Cost, rub.)
   Malysheva M. A.	1. Apartment (Bryansk, Perevalnaya st., building 11, apartment 209, total area 109 sq.m., living area - 88 sq.m.)	4 million
   	2. Gas oven (Beko)	2 thousand
   	3. Bedroom set “Dream”	34 thousand
   	4. TV “Oreon” 32′	45 thousand
   Malyshev R. S.	1. Passenger car VAZ 2111, registration number AB 345 A 99, manufactured in 2010	120 thousand
   	2. Truck (Euro 6 spring/air 480 hp), manufactured in 2017	4.5 million

2. The husband is obliged to pay his wife monetary compensation in the amount of 539,000 rubles. within 4 months from the date of conclusion of the Agreement.
3. The parties are responsible for fulfilling the agreements and are required to notify of changes in residential address, as well as other circumstances affecting the terms of the Agreement.
4. Changes are permitted by decision of both parties. There is no unilateral procedure.
5. Disputes are resolved in court.
6. The agreement is valid from the date of signing.

Malysheva Marina Aleksandrovna Malyshev Roman Stepanovichsignature

Declaration of compensation

The declaration of compensation is made in the presence of an official document:

• court decisions,
• voluntary agreement confirming the payment of funds.

If this is not done, the tax office will learn about the division of property from Rosreestr information. Information is provided annually for real estate and income tax calculations. Data on the transfer of ownership is open to the executive authority. You can find out about monetary compensation from the application for a deduction.

The absence of a declaration is a reason for the Federal Tax Service to contact the recipient of funds for clarification.

Arbitrage practice

In practice, cases of property division take a long time and are difficult, because the parties insist that they are right. The court is guided by legal norms and documents; the presence of common children of the couple is important. After all, it is impossible to deprive them of their only home without providing an equivalent or better option.

Example 1 – Sidorova N. insists on dividing the car purchased by the spouses during their marriage. She is ready to receive compensation for ½ of the transport, after recognizing the object as common property. The court, having considered the case, accepted the plaintiff’s demands, ordering Sidorov to pay his wife half the cost of the car.

Example 2 – Ivanov O. demands from the court the division of the house and apartment that the spouses acquired during their cohabitation. After the divorce, his wife evicted him to a room in a communal apartment, where the man lived before the wedding. Ivanova explained her position: the house was given to her by her parents, and she provided a deed of gift. And the couple actually purchased the apartment with common money, but their common adult daughter, 25 years old, lives there, for whom the property was registered. After studying the case, the court rejected the plaintiff's claims. Donated real estate is not common if no significant changes have been made there at the expense of the family budget during the period of marriage. And the apartment transferred to the daughter’s ownership no longer belongs to the spouses.

Compensation through court

Going to court is the most used way to resolve a property dispute.
Spouses have the right to resort to it if the terms of the agreement on the division of joint property or the marriage contract are not observed. Stages of trial:

1. Collection and preparation of a package of documents.
2. Determining the value of the property to be divided.
3. Drawing up a statement of claim.
4. Payment of state duty.
5. Registration of claims.
6. Opening of production.
7. Preliminary examination of the case.
8. Court hearing (conducting additional examinations).
9. Calculation of compensation payments.
10. Announcement of the decision.

The court verdict is subject to mandatory execution. Evasion of obligations is the basis for activating the powers of the FSSP.

Is it possible for the plaintiff not to be present during the division of the apartment and the determination of monetary compensation?

Determination of monetary compensation is allowed with the consent of both parties. If the calculation of the amount is already provided for in the application, the approval of the defendant is required. In this situation, the plaintiff may not be present.

Jurisdiction

The plaintiff submits an application to the court office at the defendant’s place of residence. If the list of disputed property includes real estate, then jurisdiction is determined taking into account the location of the object (Article 30 of the Code of Civil Procedure of the Russian Federation). A claim with claims of a different nature is filed at the discretion of the applicant.

This category of cases provides for 2 levels of authorities competent in resolving property issues:

Contents of the statement

The form and content of the procedural document are regulated by Art. 131-132 Code of Civil Procedure of the Russian Federation. The use of arbitrary text structuring is unacceptable.

Basic techniques in the process of filing a claim:

• business style;
• chronological sequence;
• absence of obscene phrases and phrases;
• objective reflection of reality;
• specification.

Inaccuracies or violation of procedural requirements are grounds for the court not to accept the application for consideration and send it for revision.

Structure of the claim:

1. "A cap":
   name of the judicial authority (address);
2. personal data of the plaintiff and defendant (co-owners of the subject of the dispute): full name; registration (registration); contacts;
3. claim price.
4. Essential summary:
   registration events (time, place);
5. minor children (born, registration);
6. information about property subject to division: list; characteristic; expert opinion on cost; registered ownership;
7. list of agreements;
8. legal framework.
9. The plaintiff's demands for division of property with payment of compensation.
10. Applications.
11. Date of.
12. Personal signature.

Sample statement of claim

Leninsky District Court of Ekaterinburg, st. Central, 87

Plaintiff: Fedorova Tatyana Vasilievna,

Address: 620567, Ekaterinburg, st. Uralskaya, 98, tel. (7394) 09876

Defendant: Dmitry Maksimovich Fedorov,

Address: 620576, Ekaterinburg, st. Prazdnichnaya, 87, apt. 234, tel. (7394) 65238

Cost of claim: 2.24 million rubles.

Statement of claim for division of property

On 02/05/2000, a marriage was registered between T.V. Fedorova, born on 08/23/1980, and Dmitry Maksimovich Fedorov, born on 02/09/1976.

As of March 10, 2020, we are in divorce proceedings, claim No. 8698686/p-04 dated January 10, 2020.

The issue of dividing property when filing a claim for divorce did not arise - there was an oral agreement that the apartment purchased during the marriage would be registered in my name for further residence with children: Polina Dmitrievna Fedorova, born on September 09, 2006, and Alexander Dmitrievich Fedorov, Born on October 10, 2010.

The defendant violates the agreement and does not transfer title documents for re-registration of ownership. There are no shares of children in real estate.

The apartment was purchased under purchase and sale agreement No. 34 dated 04/09/2002, the market value today is 2.1 million rubles.

In 2010, a Hyundai Sonata passenger car (sedan) was purchased for the needs of the family, registration number U 505 VO 196, price - 640 thousand rubles.

In 2012, a summer cottage plot with outbuildings was purchased at the address: Ekaterinburg, Central Settlement, st. Lugovaya, location 490, cost – 1.6 million rubles.

Considering the above, guided by Art. 34, 36, 38, 39 RF IC, art. 213, 254 Civil Code of the Russian Federation, art. 131-132 Code of Civil Procedure of the Russian Federation, I ask: To divide jointly acquired property in the following order:

1. Recognize Dmitry Maksimovich Fedorov's ownership of:
   vehicle Hyundai Sonata (sedan), registration number U 505 VO 196;
2. summer cottage plot with outbuildings at the address: Ekaterinburg, Central Settlement, st. Lugovaya, place 490.
3. Recognize Tatyana Vasilievna Fedorova's ownership of a residential apartment at the address: Ekaterinburg, st. Osipova, 76, apt. 108.
4. Oblige Dmitry Maksimovich Fedorov to pay Tatiana Vasilievna Fedorova monetary compensation in the amount of 140 thousand rubles.

Applications:

1. Receipt for payment of the court fee.
2. Certificate of registration of ownership of real estate, registration certificate (copy).
3. Technical documentation for the vehicle.
4. Certificate of registration (copy).
5. An expert's conclusion about the market value of an apartment, a car and a summer cottage.

10.03.2020T. V. Fedorova

List of documents

For an objective consideration of a property dispute, the following documents are required:

• receipt of payment of the court fee;
• passport data of the parties to the process;
• certificates of registration of marriage, birth of children;
• title documents and technical documentation for the disputed property;
• conclusion of the subject of valuation activities;
• official confirmation of belonging of things:
• will;
• contractual obligations;
• certificate of ownership;
• checks (payments).

Copies of applications must be certified. The list of documents is not exhaustive.

State duty amount

The procedure for paying the court fee for filing an application for division of property is regulated by the Code of Civil Procedure of the Russian Federation and the Tax Code of the Russian Federation. The amount of the state duty depends on the value of the claim. The amount varies from 400 to 60 thousand rubles. The calculation features are determined by Article 333.19 of the Tax Code of the Russian Federation:

Calculation of the court fee assumes the use of 1/2 of the value of the disputed property. Combining diverse claims in one claim (property, non-property) entails paying a fee for each separately.

Payment details can be obtained from the court. You can deposit money in several ways:

• postal (bank) cash desk;
• terminal;
• Internet services (online banking).

Collection of court fees is possible from the defendant if there is a corresponding clause in the claim.

The court's decision

By a court decision, claims can be satisfied in full, partially, or rejected. The document comes into force one month from the date of issue. There is a time limit for appeal.

A court decision is the basis for state registration of the right (share in the right) to the received property. The result is the transformation of ownership from common joint property to individual or shared property.

Evasion of a spouse from executing a court verdict on the division of property and payment of funds is the basis for the use of coercive measures. We are talking about the initiation of enforcement proceedings by the territorial branch of the FSSP.

Arbitrage practice

The procedure for considering property disputes during divorce is regulated by the RF IC, the RF Civil Code, the RF Civil Procedure Code, decisions and clarifications of the RF Supreme Court.

Judicial practice is varied. Every situation is unique. Often the dispute is resolved by transferring the property to one spouse with the obligation to pay compensation to the other. A mandatory factor in this case remains the balance of interests of the parties.

Proof

But the court will not assign a share of ownership for lack of evidence. And as proof of who is right, the following set of documents and testimony can be used:

• cohabitation (people lived together for a relatively long time and built their own family);
• maintaining a common life (having a common budget, where expenses and income were carried out jointly);
• the purchase of property was carried out with the money of both (payment documentation from the bank where the joint loan was taken out, documents from the bank indicating the income and expenses of each member of the couple will help to prove);
• the property was used jointly (photos or videos can be provided as evidence, testimony of witnesses: relatives, friends can also be used);
• common-law spouses made the purchase together, and there is an indication of each person’s share in the transaction.

It is important that the court accepts the couple’s evidence as sufficient. Judicial practice has many precedents that show how to fairly undress a former common-law spouse by dividing property if it was purchased during a common-law marriage.

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

Form and term of payment of monetary compensation

The procedure for monetary payments is determined by a written agreement or a court decision. The sequence of payments (stage by stage, one-time) is established taking into account the individual characteristics of the situation, including the financial situation of the parties.

If the form and period of monetary compensation are not officially provided, the moment of fulfillment of obligations is considered to be the date the document acquires legal force.

Withholding the compensation amount from the payer's salary is possible in order to enforce a court decision. The amount of the penalty cannot exceed 50% of income.

Personal income tax for monetary compensation

Monetary compensation established by the court during the division of property is not included in the list of taxable income (as are transactions between family members). The situation with signing an agreement in marriage is considered in Art. 217 Tax Code of the Russian Federation. Receipt of compensation during divorce proceedings by agreement is taxable. (We are talking about paying personal income tax.)

Article 220 of the Tax Code of the Russian Federation provides an opportunity for a spouse to avoid payments to the state - to receive a tax deduction provided that the property meets the following conditions:

• cost no more than 1 million rubles;
• ownership arose more than 3 years ago.

The use of the right to tax preference for personal purposes involves the formalization of contractual relations between spouses (purchase and sale). In this case, one acquires the subject of the dispute, and the other receives money and the opportunity not to pay personal income tax.

If the defendant does not pay monetary compensation

In the absence of established payments, the FSSP has the right to apply:

1. Seizure (seizure) of the debtor's property.
2. Limitation of rights:
   administrative detention;
3. preparation of admin. protocol;
4. wanted notice;
5. deprivation of freedom of movement.
6. Forced collection of funds:
   valuation and sale of property;
7. debiting from accounts;
8. deduction from earnings (other types of income).

The seizure of the defendant’s only home is permissible in the case when the amount received from the real estate purchase and sale agreement covers the amount of the debt, and funds remain for the purchase of an apartment, taking into account the norms of the Housing Code of the Russian Federation.

If the amount of compensation is unaffordable for the defendant

The solution in this situation is for the debtor to submit an application for deferment/installment plan of the debt to the court that determined the obligation to pay monetary compensation.

If the defendant has no property or any income as an object of recovery, the FSSP has the right to terminate enforcement proceedings in the case. But this does not deprive the plaintiff of the right to repeatedly contact the bailiff service on this issue.

If an agreement on the division of property is signed, the parties can use legal mechanisms to secure monetary obligations:

• definition of penalty;
• involvement of third parties: guarantee, guarantee of a banking institution;
• pledge;
• deposit as part of monetary compensation;
• conditions for unilateral waiver of obligations.

Documents on the value of the joint property of the spouses

In addition to the statement of claim, the plaintiff must submit a voluminous package of documents to the court. In particular, those that confirm the value of property at the time of divorce or going to court, if they do not match.

A list of documents informing about the value of the spouses’ property.

Provided that the property was acquired recently (approximately within a year) and no serious manipulations were carried out with it, contracts of sale, gift or inheritance are suitable as such documents. If a significant period has passed since the acquisition, then the plaintiff will have to order an independent appraisal examination. To do this, you should contact an appraiser who is a member of the SRO. It should be borne in mind that the specialist who will evaluate the property will not be able to evaluate the car. Therefore, it is possible that during the process you will have to resort to the services of different appraisers.

To carry out the procedure in compliance with all requirements, they will request title documents that indicate the original price, conduct a visual inspection, determine the degree of deterioration and correlate all amounts received with the inflation rate for the period while the property was owned. Based on the results of the examination, a certificate is issued, which will record a detailed description of the object, its market value and the calculation procedure.

The received certificate, together with documents on ownership, which contain the original value of the property, are attached to the statement of claim. Both are necessary for the judge to calculate the amount of compensation or ownership shares.