Which court should I go to for division of property upon divorce?

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When declaring or challenging their rights to common property, spouses must not only correctly prepare a statement of claim, but also submit a petition for consideration to the appropriate government body. This does not mean that for the presentation of documents for the division of property during the divorce of a married couple, any court is chosen, which is closer to home or according to other criteria. Each government agency has its own jurisdiction over civil cases. In order to find out which court the spouses need to contact when dividing property upon divorce, it is worth reading this article.

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Normative base

When resolving issues related to property disputes between married couples, it is worth paying attention to the following legal documents:

• To determine the competence of the court regarding the division of property during a divorce, it is worth turning to the Civil Procedure Code of Russia, namely Chapter 3. It regulates the jurisdiction of government agencies. The concept of exclusive jurisdiction has also been defined, which also occurs when dividing real estate between spouses during divorce.
• The Family Code of our country also regulates the property issues of husband and wife. In particular, Chapter 7 distinguishes between the concepts of common and personal property, and also determines the size of shares when dividing real estate.
• The Civil Code of Russia in Section II defines the concept of “ownership right”, considers issues related to its acquisition, and also regulates the conditions and circumstances when the termination of this right occurs.
• The Russian Tax Code specifies the amount of the state duty, which is paid when filing a claim with a judicial authority.

What is the jurisdiction of cases on division of property during divorce?

When deciding to begin distributing acquired property, a husband and wife must first understand which court will hear the case. When determining jurisdiction for the division of property during a divorce, some points should be taken into account:

• property will be divided during the divorce process or separately;
• what is the total size of the property in monetary terms (assess the value of the property);
• Is there real estate among the divisible things?

It is from the resolution of the above issues that the state judicial body is determined, which is competent to consider cases of division of property of married couples upon divorce.

In this regard, tribal and territorial jurisdiction are distinguished when dividing property during a divorce. Generic is the competence of courts at different levels of the judicial system. In our country, magistrate and district courts deal with claims regarding the division of common property of spouses.

IMPORTANT

It is also important to determine the territorial jurisdiction of the government agency for the division of property upon divorce. After all, by filing a claim at the wrong address, the resolution of property issues may drag on for a longer period. Thus, federal courts are divided into territories according to city districts. Magistrates' courts are divided into sections. In each individual subject of the Russian Federation there is a certain number of such courts, depending on the number of population in a given territory.

An application for division of joint property during divorce is submitted:

• At the place of registration or location of the defendant (Article 28 of the Code of Civil Procedure of the Russian Federation);
• At the address of the location of the real estate (clause 1 of article 29, article 30 of the Code of Civil Procedure of the Russian Federation);
• According to the territory of residence of the plaintiff, if the consideration of disputes about property is resolved in the same proceedings with the case on the termination of marriage, in accordance with paragraph 4 of Article 29 of the Code of Civil Procedure of the Russian Federation and Article 31.

Spouses (parties to the case) have the right, by mutual consent, to change the jurisdiction at the place of consideration of their case before it is accepted for proceedings, with the exception of resolving issues of division of real estate ( Article 32 of the Code of Civil Procedure of the Russian Federation).

What does the court consider when considering a claim?

The courts have a long-established practice of considering cases of division of property, enshrined in law in Article 39 of the Family Code of the Russian Federation - all of it is divided in equal shares by each of the spouses. And if it is not possible to divide exactly in half, then compensation in a similar amount is collected from the one who receives the larger share in favor of the deprived.

There are cases when it is possible to convince the judge that one spouse has rights to more than half of the property. But such cases are rare and even unique. This is associated with raising common minor children or misuse of common funds during marriage (Article 39 of the RF IC).

When determining which spouse will receive what from their common property, the judge must hear both sides regarding which of them needs what more. The following will be taken into account:

• income of each spouse,
• accommodations,
• occupation,
• with whom the children remained to live after the divorce,
• health status,
• participation of each spouse in the costs of acquiring common property, etc.

The court will also divide the debts of the spouses that arose during the marriage, in proportion to the shares of property received by each of the spouses.

The ideal way to resolve a claim for division of property after a divorce is through a settlement agreement.

It can be concluded at any stage of the judicial consideration of the claim before the court retires to the deliberation room. A settlement agreement is concluded when the spouses, during the course of litigation, come to a common decision regarding the division of property, to an option that suits both parties. In this case, it is not at all necessary to divide the joint property strictly in half; it will be divided in a way that suits both spouses.

How to determine jurisdiction when dividing property?

To file a claim for division of property during a divorce, you need to determine directly to which court the documents should be sent.

Attention

The consideration of civil cases regarding the division of property during divorce is handled by the magistrate and district courts. The competence of the bodies is determined by the articles of the Code of Civil Procedure of the Russian Federation. According to the law, the magistrate court hears cases on property issues, the value of which does not exceed 50,000 rubles. Anything more than this amount is already under the jurisdiction of the district authority. At the same time, the amount of the claim should be understood as not just an estimate of the price of the divisible property. The determination of the amount also includes interest, fines, penalties, penalties for contractual legal relations (for example, those specified in the marriage contract). The price of the claim is determined by the amount claimed by the applicant (i.e. ½ of the total assessed value).

When determining jurisdiction, when considering in one claim not only the issues related to the division of general welfare, but also the issue of children in a divorce (where and with whom they will live, the order of meetings with the parent, etc.), this category of cases also is under the jurisdiction of the district court, regardless of the cost of the required material assets (Article 23 of the Code of Civil Procedure of the Russian Federation).

How to write a claim correctly

In form, the sample application for division of property during a divorce resembles a divorce claim, but it is very important to draw it up correctly and reflect the necessary information. Therefore, spouses often turn to the help of experienced lawyers on this issue. After all, one wrong word or phrase in a claim can distort the plaintiff’s demands and deprive him of the opportunity to get what he wants.

In the upper right part the name of the court, last name, first name, patronymic, residential address of the plaintiff and defendant, the price of the claim (the total value of all property that is supposed to be divided) are indicated.

The text of the application contains the following information:

• date of marriage,
• the date when the marriage was dissolved (or when the claim for its dissolution was filed, at what stage the divorce process is at),
• the division of property has not been made previously, no agreement has been concluded, the spouses cannot independently agree on the division of property,
• a list of property acquired during the marriage that is subject to division: name, distinctive features, links to acquisition documents, cost of each item, total value of all property,
• reference to Article 39 of the RF IC stating that property must be divided in equal shares, or a requirement for division in other shares with justification (living with common children, disability, etc.),
• a list of property that the plaintiff wants to receive into his ownership, name, total cost, giving reasons indicating that he needs it more and is interested in receiving it,
• list, names, total value of the property that should go to the defendant, an indication of the reasons why it should go into his ownership,
• reference to compensation in the event that the value of the share of property of one spouse exceeds the value received by the second,
• in the operative part – the plaintiff’s demands set out in the text of the application, a list of documents attached to the claim, signature and date.

You will find a sample application for division of property during divorce when you read the material to the end.

The claim is accompanied by a mandatory package of documents:

• marriage certificate (or a copy of the marriage record, if it has already been terminated),
• certificate of divorce (if already received), or
• court decision on divorce,
• documents for the property subject to division, specified in the claim (registration certificates, PTS, sales contracts, coupons, checks, etc.),
• report on an independent assessment of property (if carried out),
• receipt of payment of state duty,
• other documents at the discretion of the plaintiff or at the request of the judge.

What is territorial jurisdiction when dividing property in a divorce?

Territorial jurisdiction for the division of property of spouses during a divorce implies the determination of the government agency whose competence is to consider the case, according to location. Jurisdiction is determined by the Code of Civil Procedure of Russia and cannot be violated. Thus, district courts are divided according to the number of districts in the city; peace settlements - to court districts; their number is determined by the size and density of the population of the constituent entity of the Russian Federation.

You can file a claim for division of property during a divorce:

• At the place of residence of the defendant (main jurisdiction, Article 28 of the Code of Civil Procedure);
• At the location of the property (exclusive jurisdiction, paragraph 1 of Article 29, Article 30 of the Code of Civil Procedure of the Russian Federation);
• At the choice of the plaintiff (alternative, paragraph 1 of Article 29 of the Code of Civil Procedure of the Russian Federation)
• At the plaintiff’s place of residence (if it is physically impossible to bring a claim and attend court hearings at another address and if there are minor children, paragraph 4 of Article 29 of the Code of Civil Procedure of the Russian Federation).
• At the choice of the parties (negotiable, Article 32 of the Code of Civil Procedure of the Russian Federation).

Which court should I go to to remove the seizure of property?

As part of a civil or criminal case, as well as enforcement proceedings, property may be seized in order to ensure the execution of a court decision or sentence. Such property may turn out to be the common joint property of the spouses. Courts seize not only real estate, but also movable property, for example, investment shares, securities, bank deposits, cars. In order to release the share of the husband or wife of the defendant, defendant or debtor from arrest, the spouse must file a civil claim to determine the share in the common property of the spouses and release the share from arrest. In relation to claims for the release of property from seizure, the rule of exclusive jurisdiction applies to consideration of the case at the location of the seized property, both movable and immovable.

Which courts hear cases regarding the division of joint property of spouses?

In accordance with the articles of the Code of Civil Procedure of the Russian Federation, proceedings in property disputes between spouses are under the jurisdiction of the magistrate and district courts. The main difference is the amount of the claim. According to the law, the magistrate court considers property disputes worth no more than 50 thousand rubles, and district courts - over this amount. In addition, it takes into account the fact that a claim for the division of property of spouses during a divorce is considered separately or together with demands for payment of alimony, determination of the place of residence of children, the procedure for communication with offspring, etc.

How to ensure the safety of property before division

Let's consider what to do when, when dividing the property of spouses, there is some probability that one of the parties will carry out a transaction to alienate property. For example, a car in a marriage is bought with common money, and it is the joint property of the spouses, although it is registered in the name of only one. This means that the owner, according to the documents, can sell or give away the car at any time and so that the second spouse will not even know about it.

If there is such a possibility, then before taking the claim for division of property in 2021 to the court office, it is advisable to file a claim requesting interim measures. Its cost is 3 thousand rubles. If the judge decides to grant the demands, the car is seized. This mechanism of action can apply to any property.

How to keep property before divorce.

When interim measures are required long before the trial, you can proceed as follows. If we are talking about real estate, you need to submit a written application to Rosreestr. It indicates the fact of the presence of a property dispute regarding the object. In this case, the registration authority will not register alienation transactions.

Division of spouses' property in the magistrate's court

Magistrates' courts hear cases of division of property, the amount of the claim does not exceed 50,000 rubles (article of the Code of Civil Procedure of the Russian Federation). The application may be refused, or the petition may be redirected to the district court if, in addition to a property dispute, the plaintiff raises an issue that is not within the jurisdiction of the magistrate’s court (for example, disputes about children).

For your information

The cost of the claim when dividing the property of the spouses consists of all material claims specified in the application. At the same time, the financial value of the property must be real, taking into account the market value and percentage of depreciation. If the judge has doubts about the required and actual price of the property, the government representative has the right to give his assessment of the divisible property.

If the defendant proves that the property has a higher price than the plaintiff indicated, the magistrate has the right to redirect the case to the district court (if the value of the claim has become over 50,000 rubles) (Article 33 of the Code of Civil Procedure of the Russian Federation). The cost of the statement of claim is determined by the amount of material assets claimed, and not by their total value (clause 1 of Article 91 of the Code of Civil Procedure of the Russian Federation).

A claim for the division of property of spouses has a three-year statute of limitations from the moment of violation of property rights (Article 38 of the RF IC).

When filing an application with the court, the plaintiff must pay a state fee. Its amount depends on the price of the claim and is regulated by the Tax Code (subclause 1. clause 1 of article 333.19 of the Tax Code).

Actions of the court and the plaintiff after filing a claim

When a claim is received by a judicial authority, the judge makes one of the procedural decisions on its further fate provided for by the Code of Civil Procedure of the Russian Federation. In some cases, the plaintiff may be required to take additional steps or provide documents at the request of the court.

Acceptance of claim and preparation

If the claim meets the requirements of the Civil Procedure Code, the judge accepts it for trial and conducts preparations. A ruling regarding the preparation of the case for the court hearing is made and sent to the plaintiff for information and execution.

Often it is formal in nature, but even more often it contains a list of actions that the parties to the case, including the applicant, are asked to perform. It is also possible that the document will indicate mandatory actions.

Leaving an application without progress

Having discovered a failure to comply with the norms of the Code of Civil Procedure of the Russian Federation, the judge leaves the claim without progress and issues a ruling with a list of shortcomings and a list of actions that need to be taken to eliminate them.

The ruling is sent to the plaintiff, who can either fulfill all the specified requirements and file a new claim, or ignore them, appealing, for example, the judge’s ruling. To eliminate errors in the statement of claim for division of property during a divorce, a reasonable period of 10 to 25 days is allotted, taking into account the remoteness of the applicant’s place of residence. If the requirements are not met, the court returns the claim.

Return of claim

If the plaintiff does not meet the deadline for eliminating the deficiencies, the court returns the statement of claim.

So the claim can be returned in the following cases:

• the claim is not signed;
• the claim is not within the jurisdiction of this court;
• there is a lawsuit in court on the same subject;
• the claim was filed by an incapacitated person
• other cases specified in Art. 135 Code of Civil Procedure of the Russian Federation.

If a claim for division of property is returned, this does not prevent a repeated appeal on the same basis, provided that all the problems that initially prevented the claim from being accepted by the court are eliminated.

Division of property of spouses in the district court

The division of spouses' property in a district court is regulated by Article 24 of the Code of Civil Procedure of Russia. According to the law, this government agency has jurisdiction over cases of general jurisdiction that are not subject to other courts. Based on this, consideration of property claims by the district court occurs when the cost of all claims starts from 50,000 rubles.

If the application, along with the division of property of the spouses, raises the issue of children, then this dispute is also under the jurisdiction of the district court, regardless of the amount of the claims.

After determining jurisdiction over the division of property during a divorce, and before submitting documents to the district court, as well as to the magistrate's court, it is necessary to pay a state fee. The fee is calculated based on the value of the property claims of the husband and wife, according to paragraph 1. Clause 1 of Article 333.19 of the Tax Code. The receipt must be attached to the documents submitted to the court.

IMPORTANT

While a case on the division of property during a divorce is being processed in court, one of the spouses can hide jointly acquired material assets. To prevent this, the judicial authority, at the request of the second party, has the right to take measures to secure the claim in the form of seizure of property, a ban on conducting any transactions with real estate until the court decision on the claim comes into force (Article 140.141 of the Code of Civil Procedure of the Russian Federation) .

Definition of jointly acquired property

According to Art. 34 of the RF IC, any property acquired for money during marriage is common property. Let's take a closer look at what things are shared and not shared:

If the spouse did not work during the marriage, he still has the right to an equal share in the common property.

Court ruling for division of property upon divorce and state duty

For property matters of spouses, the jurisdiction of magistrates' and district courts, when filing a statement of claim, it is required to pay a state fee. According to paragraph 1. Clause 1 of Article 333.19 of the Tax Code, the amount of the fee is calculated as follows, depending on the cost of the claims:

Moreover, if the property claim cannot be assessed, then the fee for the applicant is 300 rubles (clause 3, clause 1, article 333.19 of the Tax Code). If previously the court made a decision to determine the spouses’ ownership of the common material good, then the state fee for its division, or allocation of a share, is paid in the amount of 300 rubles (subclause 3, clause 1 of Article 333.20 of the Tax Code).

Attention

When submitting an application, which resolves not only the issue of dividing the property of husband and wife, but also requires a divorce, payment of the state fee occurs both for a claim of a property and non-property nature (clause 1.1 of Article 333.20 of the Tax Code).

Algorithm of actions

Filing a claim requires careful preparatory steps. The content of the final court decision largely depends on how thoroughly they were implemented.

When there is an opportunity to communicate with a lawyer in advance, it should not be neglected. The specialist will always voice valuable advice from his side. He is also able to provide assistance in preparing a statement of claim.

Below is an analysis of the main actions that need to be taken. Without them, the court simply will not accept the case.

Determine the list of property

This is not as simple a task as it seems at first glance. It is required to conduct an inventory of those properties that are temporarily owned by third parties on a lease basis.

When the rights to assets imply their registration, current information is taken from state registers. The above applies to real estate or land.

The section of the spouses' business deserves a separate discussion. To check the current composition of the company’s participants, it is advisable to obtain a fresh extract from the Unified State Register of Legal Entities.

Order a market value assessment

Once the list of disputed property has been determined, it is necessary to conduct an assessment of the property. Its real value is determined at the time of preparation of the claim. Therefore, you can forget about the original purchase price.

Assessment is required for several reasons. Thus, the figure indicated by the specialist is the basis for calculating the state fee for filing an application. In addition, the final cost represents the cost of the claim.

In many situations, the provision of property is replaced by monetary compensation in favor of one of the spouses. Its value is also based on the expert’s opinion.

Which court should I go to?

Provided that the total value of the disputed property is within 50 thousand rubles, in accordance with Part 4 of Art. 23 of the Code of Civil Procedure of the Russian Federation, the magistrate has the right to accept the case. In other situations, the claim must be filed in the district court.

Usually the application is considered at the place of permanent registration of the defendant. But if the subject of the dispute includes real estate, land, a claim can be filed in the territory of their location.

Theoretically, contractual jurisdiction provided for in Art. 32 Code of Civil Procedure of the Russian Federation. It implies that the spouses can determine in the concluded agreement the court that will consider the property dispute. But for the objects mentioned in the previous paragraph, this rule does not apply (Article 30 of the Code of Civil Procedure of the Russian Federation).

Payment of state duty is mandatory. It is calculated on the basis of the estimated value of the property according to the scale given in paragraph 1 of Art. 333.19 Tax Code of the Russian Federation. Payment details for the competent court can easily be found on the Internet.

Make an application

When all the evidence is in hand, it’s time to file a claim. All arguments are presented in a logical sequence. In this case, references to available written sources and legislative norms are required.

Recently, a claim for division of property has been filed according to new rules. Thus, previously, a copy of the claim intended for the defendant with the available attachments had to be included in the general package of documents submitted to the court.

Now the plaintiff is obliged to send materials to the second party in advance. Accordingly, a postal receipt with a list of attachments and a return notification of delivery are attached to the main copy of the claim.

Jurisdiction for division of property upon divorce at the place of registration of the defendant

The place of registration of the defendant means the locality in which the person registered. When filing a claim for division of property in court, it is advisable for one spouse to have information about where the second participant in the marriage is registered. This factor will speed up the procedure for considering the case, since it will be easier for the government agency to notify the party about court hearings. If the plaintiff has doubts about where the defendant is currently registered, or if the husband or wife’s residential address changes frequently, the court has the opportunity to find out the last known place of registration of the person. But at the same time, you need to be prepared for a possible change in jurisdiction in considering a case on the division of property upon divorce.

Violation of jurisdiction rules

In a number of cases, the jurisdiction of the case is violated. In this situation, one of two scenarios will occur:

1. The fact of a violation is established during the consideration of the case on its merits. For example, a judge makes a request to the FMS about the location of the defendant and receives accurate information about him. In this case, the case is redirected by the judge to the authority in which it should be considered.
2. The jurisdiction of cases on division of property did not allow accepting the plaintiff’s statement of claim. In this case, it is returned to the applicant with an explanation of which authority to contact.

On our website you can read the statement of claim for the division of common property and, if necessary, download it.

Jurisdiction for division of property during divorce at the defendant’s place of residence

When filing a claim, the spouse can indicate the place of residence of the second participant in the marriage union, which he knows, and submit documents on the division of property to the court in accordance with this jurisdiction (Article 28 of the Code of Civil Procedure of the Russian Federation). Place of residence is understood as the territory where a person resides permanently or with preferential right (Article 20 of the Civil Code).

IMPORTANT

In cases where the defendant’s place of residence is unknown or is located outside Russian borders, an application for division of property is submitted to the court according to the last known address where the spouse lived (clause 1 of Article 29 of the Code of Civil Procedure of the Russian Federation).

If the place of residence of the defendant spouse changes, after filing a claim in court, the territorial jurisdiction for dividing property upon divorce does not change.

The Supreme Court explained where to divide the property of spouses if one of them is bankrupt

Andrey Portikov* owed money to Rosselkhozbank JSC, and therefore the court declared him bankrupt and introduced a procedure for the sale of property. After this, his wife Nina* decided to divide the jointly acquired property. She turned to her husband, but was refused. Then Nina filed a lawsuit in which she asked to divide the jointly acquired property and recognize the ownership of her share. They have no common minor children, as well as no common debts. The Mikhailovsky District Court of the Ryazan Region terminated the proceedings on her application, the Ryazan Regional Court agreed with it. They pointed out: the law does not allow a court of general jurisdiction to consider a case on the division of property between spouses after a citizen has been declared bankrupt; in this case, the second spouse can receive his share of the common property only in the form of money received from the sale of jointly acquired property. The courts proceeded from the fact that resolution of Nina’s claims was possible only through her participation in the bankruptcy case as a creditor.

Then Nina addressed similar demands to the Arbitration Court of the Ryazan Region. But there her application was returned, indicating that she had no right to participate in her husband’s bankruptcy case. The applicant was offered to go to a court of general jurisdiction for the division of jointly acquired property. The 20th AAS agreed with this and explained: during the bankruptcy procedure, the debtor’s spouse has the right, in a general manner, to apply to a court of general jurisdiction with a claim for the division of the common property of the spouses and the allocation of property due to the share of this spouse, or to demand recognition of the right of common ownership to the specified property. If a spouse’s claim for division of common property is considered after the sale of property during bankruptcy proceedings, the proceeds from the sale of property are taken into account when determining the shares of the spouses (No. A54-1301/2016).

CASE No. 6-КГ18-1

PLAINTIFF: Nina Portikova*

DEFENDANT: Andrey Portikov*

ESSENCE OF THE DISPUTE: On the division of jointly acquired property and recognition of the right of ownership to a share in jointly acquired property in the event of bankruptcy of one of the spouses

COURT DECISION: The rulings of the lower courts are cancelled, the case is sent for a new trial to the court of first instance

After such contradictory answers, Nina decided to appeal the acts of the courts of general jurisdiction in the Supreme Court. He pointed out: the jurisdiction of cases between courts of general jurisdiction and arbitration courts is determined taking into account the nature of controversial legal relations and their subject composition. Considering that the special rules of the bankruptcy law do not directly provide for the consideration by arbitration courts of disputes related to the division of the common property of spouses, one should be guided by the rules of civil procedural law. According to clause 1, part 1, art. 22 of the Code of Civil Procedure, the competence of courts of general jurisdiction includes, among other things, claims on disputes arising from family legal relations, like those of the Portikovs. The Supreme Court decided: the initiation of bankruptcy proceedings for a citizen does not mean that all disputes related to the formation of the bankruptcy estate are subject to consideration by arbitration courts. Nina’s claim is not filed within the framework of claims as a creditor on issues related to the sale of common property, but is based on the provisions of civil and family law. Under such circumstances, the Supreme Court believes, the lower courts did not have legal grounds to terminate the proceedings due to their lack of jurisdiction. Therefore, the Supreme Court canceled the previously issued acts and sent the case for a new trial to the court of first instance (No. b-KP 8-1).

Experts have differing opinions regarding this decision. “The Supreme Court quite rightly overturned the judicial acts of the lower authorities and clarified that the division of property with the participation of the bankrupt party is carried out on a general basis. The division of joint property is the protection of the rights and interests of the spouse, and bankruptcy procedures are the protection of the rights and interests of the creditors of the debtor spouse,” said Igor Zapolsky, project manager at S&K Vertical. “The approach of the Supreme Court is consistent with the explanations of the Plenum of the Supreme Arbitration Court No. 51, made back in 2011 regarding the division of marital property of individual entrepreneurs in bankruptcy. I hope that the Supreme Court’s ruling will correct the practice of courts of general jurisdiction, which still often refuse to consider claims for the division of marital property of citizens in respect of whom bankruptcy proceedings are ongoing,” said FBK Legal lawyer Anastasia Suvorova.

Other experts think differently. “Without a doubt, the desire to protect the applicant, who had previously been denied the right to defense by all courts, does honor to the Supreme Court. At the same time, vesting a court of general jurisdiction with the competence to divide the property of spouses in parallel with the production of a bankruptcy case against one of the spouses violates the main principle of the bankruptcy process - the principle of universality. According to this principle, a bankruptcy case is universal in nature and absorbs all other disputes regarding property that is included in the bankruptcy estate. By allowing spouses to deal with the division of common property in a court of general jurisdiction, the Supreme Court placed a time bomb under the institution of bankruptcy of individuals in Russia. With this approach, it cannot be ruled out that the courts will issue various judicial acts: a court of general jurisdiction can now deal with the division of the spouses’ property, ignoring the interests of the creditors of the bankruptcy estate, and the arbitration court is not deprived of the opportunity to resolve a dispute over the bankrupt’s property without taking into account the interests of the spouse. By destroying the principle of universality by allowing parallel trials, the Supreme Court provided the debtor with a loophole to withdraw property from the bankruptcy estate by initiating a dispute over the division of marital property,” noted Denis Bykanov, partner of the law firm MGP Lawyers. “The Supreme Court indicated that the initiation of bankruptcy proceedings against a citizen does not mean consideration of any disputes related to the formation of the bankruptcy estate by arbitration courts. This conclusion is in certain contradiction with the previously established judicial practice of arbitration courts, including the tendency of the Supreme Court itself (No. 305-ES17-12763),” said Oksana Peters, managing partner of Tilling Peters. She is also o.

*name and surname have been changed by the editors

• Alina Mikhailova

• Supreme Court of the Russian Federation

The court's ruling on the division of property during a divorce at the location of the property

In exceptional cases, claims that consider the issue of division of real estate (building, premises, structure, land plot, etc.) are filed with the judicial authority at the location of this property (Clause 1, Article 30 of the Code of Civil Procedure of the Russian Federation).

If there are several objects of divisible real estate of the spouses, the plaintiff has the right to choose which judicial body to submit an application to at the location of this property. However, in judicial practice this position is reluctantly accepted. Often this decision comes down to the fact that if there are several real estate objects and they are located in different territories, then the claim should be filed at the location of each of the objects.

IMPORTANT

In addition, the jurisdiction of the case at the location of the real estate is often applied by the courts, if not only a dispute arises about the division of property of the spouses, but also when the right to this property is claimed (Clause 1, Article 30 of the Code of Civil Procedure of the Russian Federation).

How much does it cost to file a claim?

It is the responsibility of the plaintiff to determine the value of the claim filed in court (the total amount of prices of divisible objects). First of all, this need is associated with calculating the amount of state duty, which is directly dependent on the claim price. To make the correct calculation, you need to refer to the Tax Code of the Russian Federation, where simple diagrams are given. Regardless of which judicial body the claim for the division of joint property is filed, the rules of calculation are the same.

Who should pay the state fee?

One of the spouses Share equally

If the second party is not satisfied with the value indicated in the statement of claim, it has the right to file a petition to appoint an examination in order to establish the value of the divided property. The judge can make such a decision on his own initiative if the price of the claim, and therefore the amount of the state duty, is significantly underestimated.

What is contractual and exclusive jurisdiction for the division of property upon divorce?

Contractual jurisdiction implies a change in the competence of the court on a territorial basis by agreement of the participants in the case under consideration (Article 32 of the Code of Civil Procedure of the Russian Federation). The concept is used when dividing property upon divorce, when it is convenient for the parties involved in civil proceedings to better ensure their interests. This agreement is concluded before the court accepts the case into its proceedings. Once a contract is concluded, it cannot be terminated unilaterally.

Contractual jurisdiction is applicable to issues of division of property, but cannot be used to change exclusive jurisdiction (Article 32 of the Code of Civil Procedure of the Russian Federation).

Exclusive jurisdiction means consideration of cases in courts determined by law. It was created for more convenient consideration and research of case materials, requests for documentation of divisible property, Art. 30 Code of Civil Procedure of the Russian Federation.

Exclusive jurisdiction is intended for claims related to any legal aspects in the field of real estate of spouses: ownership, right of use; determination of the order of use; division of real estate that is in shared or joint ownership, and the allocation of a share from it, etc. Art. 30 Code of Civil Procedure of the Russian Federation).

What is shared and what is not

Article 34 of the Family Code of the Russian Federation states that all property acquired by spouses during their marriage is their joint property. This includes income from work, cash deposits, securities, shares in business, as well as all material assets, from apartments and cars to glasses and spoons. It doesn’t matter whether they are registered in the name of the husband or wife, they will still be considered common. Even if one spouse did not work and did not receive his own income during the entire period of cohabitation.

Spouses also need to take into account that almost any family has property that cannot be divided during a divorce, because it will be the personal property of one of them, even if it was acquired during the period of their marriage (Article 36 of the RF IC):

• acquired under a gift agreement (for example, the question of whether a donated apartment is divided during a divorce worries many),
• left as a legacy
• personal items (clothes, shoes, hygiene products..), with the exception of jewelry and luxury items,
• the result of individual intellectual work.

The personal property of a spouse will also be considered everything that was purchased by him before marriage, but was used by both spouses in family life.

You cannot divide things that belong to children born in marriage - toys, clothes, school supplies, etc.. This property will not be taken into account when dividing property, but must be transferred to the spouse with whom the child will live. Even the money in bank accounts in the children's names will remain theirs.

The division of a privatized apartment during a divorce is possible only if certain conditions are met. If during your marriage your apartment was privatized, then you should figure out whether it can be divided between the spouses in your case, or whether it will remain your personal property.

All debts and credit obligations of the spouses that they incurred during the marriage are also subject to division in equal shares. If the loan was received by one of them before the marriage, and they subsequently paid it off together from common funds, then the spouse who did not apply for this loan will be able to demand to recover in his favor part of the funds paid to repay it. You can read more about who pays the loan after a divorce in our article.

What is the jurisdiction of cases on division of property in case of divorce with children?

When determining jurisdiction for a divorce with children, the plaintiff has the right to file a claim both at the defendant’s place of residence and at his own address if he has minor offspring with him (Article 28, paragraph 4 of Article 29 of the Code of Civil Procedure of the Russian Federation). However, if the consideration of cases is accompanied by the resolution of the property issue of the spouses, it will be necessary to take into account not only patrimonial jurisdiction, but also territorial jurisdiction.

• A divorce in the presence of offspring, even if the dispute about them is resolved by a pre-trial agreement about the children, if there are property claims in excess of 50,000 rubles in the statement of claim, will take place in a district court (Article 24 of the Code of Civil Procedure of the Russian Federation).
• Claims for the division of property of spouses and divorce can be considered at the place of residence of the defendant, or at the place of residence of the plaintiff, if there are minor children with him, in accordance with paragraph 4 of Article 29 of the Code of Civil Procedure of the Russian Federation. However, the jurisdiction of related cases does not cancel exclusive jurisdiction. In other words, even if there are young children, the case regarding the division of real estate between spouses (for example, rights to a land plot) is considered at the location of the property (Article 30 of the Code of Civil Procedure of the Russian Federation).

A claim for division of property: what happens if you apply to the wrong authority?

If a person unknowingly violated the rules on jurisdiction, there are 2 options for solving the problem. When the fact was discovered at the time the application was accepted, the court office staff will return the paper to the citizen and explain the rules for submitting documentation. To begin proceedings, a person must apply to another authority.

However, in practice, information can only be clarified during a court hearing. This is possible if, for example, it was not possible to immediately receive a response from the migration service, and it provided information after some time. In this situation, the court independently forwards the case to the competent authority.

The case may still be considered in the wrong place. The fact may become clear during the consideration of the appeal. In this case, a review of the case is announced. Therefore, it is recommended to immediately comply with the established legal norms.

If you find it difficult to choose an authority, contact MIP. We will not only tell you where to submit the application, but also help you complete it and provide comprehensive legal support. By working with us, you will protect your rights and increase the likelihood of a positive outcome to the proceedings.

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What is the jurisdiction of cases on division of property and alimony during divorce?

Upon divorce, the spouse may raise the issue of division of property and collection of alimony in the application. At the same time, it is worth paying special attention to the jurisdiction of state bodies in resolving these issues. According to Article 23 of the Code of Civil Procedure of the Russian Federation, the jurisdiction of the world courts allows the consideration of applications for divorce and division of property of spouses worth up to 50,00 rubles. But at the same time, alimony collections through the magistrate’s court are possible only by filing an application for a court order. Claim proceedings for alimony payments are possible only in a district court. Accordingly, if the plaintiff wants to resolve issues of divorce, provision of offspring and division of property, he should file a claim in the district court.

IMPORTANT

As for territorial jurisdiction, according to clause 4 of Article 29 of the Code of Civil Procedure of the Russian Federation, the plaintiff has the right to file a claim for division of property during a divorce not only at the defendant’s residence address, but also at his place of residence.

Appealing a court decision in controversial situations

If, in the opinion of one of the parties, the decision made by the judge is unfair, then he is given a period of one month to file an appeal. If it was issued in the magistrate's court, then the complaint is filed in the district court.

If the case was heard by the district court, the appeal must be filed there. And only the judge decides the issue of its redirection.

It should be noted that incorrect determination of jurisdiction is grounds for appealing a court decision.
Therefore, it is not worth deliberately misleading the court. When dividing jointly acquired property in 2021, it is important not only to draw up a claim in compliance with all legal norms, but also to correctly determine the court to which it should be filed. All these issues are regulated by Ch. 3 Code of Civil Procedure of the Russian Federation.

Problems and nuances

Determining generic and territorial jurisdiction when dividing common property upon divorce may be accompanied by some features and difficulties that should be paid special attention to and taken into account when drawing up and filing a statement of claim.

• When accepting a statement of claim for proceedings, the judge determines the jurisdiction of the case. If it turns out that the issue is not within the competence of this judicial body, the documents are returned to the plaintiff with a determination of where the applicant should apply. However, if the incorrect jurisdiction is revealed already in the judicial process, a representative of the authorities must make a determination on the direction of the case in accordance with the correct jurisdiction. A case sent from another court is accepted by the addressee; Disputes about jurisdiction between courts are unacceptable. (Article 33 of the Code of Civil Procedure of the Russian Federation).
• If there is a deliberate violation of territorial jurisdiction (for example, the plaintiff concealed the true location of the defendant), and the court has already made a decision, such a verdict can be canceled by a higher authority (Article 330 of the Code of Civil Procedure of the Russian Federation).
• In situations where the respondent spouse does not agree with the financial value of the divisible property (both common and individual), the husband or wife has the right to petition for an assessment of the value of the property during a divorce. It should be taken into account that after the event, the jurisdiction for consideration of the claim may change.
• The division of common property with a foreign spouse occurs according to the laws of the state in whose territory the disputed property is located (Article 161 of the RF IC).
• Difficulties sometimes arise when determining the jurisdiction of a property claim in a divorce when the defendant is serving a prison sentence. According to the Resolution of the Plenum of the Supreme Court No., if the claim is accepted by the court under Article 28 of the Code of Civil Procedure of the Russian Federation, then the application is submitted at the last place of residence of the defendant. When dividing real estate, exclusive jurisdiction for the consideration of the case is observed (Article 30 of the Code of Civil Procedure of the Russian Federation).

Protection of property rights during a divorce requires strict adherence to the principles of tribal and territorial jurisdiction. If the rules are not followed, it is possible to either return the application, transfer it to another government agency, or cancel an already made decision. All these actions will lead to a delay in the consideration of the case.

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Possible difficulties and problems

The person filing a claim sometimes has to deal with unusual situations. The main problems are difficulties in determining the place of residence and the inability to travel to a court hearing in another region.

Many questions arise about the need to divide common property with a person who is serving a prison sentence. In this case, the claim should not be sent to the place where the sentence was served. It is filed with the court at the last place of residence or the address of the location of the divided property. In this situation, the place where the sentence is served will simply receive a notice of the upcoming hearing. The prisoner himself, of course, will not be released to attend, but he has the right to use the services of his legal representative.

Difficulties await the plaintiff if the defendant lives abroad and the common property is located there. In this case, you will have to act according to the laws of the country where the property is located. Difficulties will arise at the stage of filing a claim. It will need to be drawn up in a foreign language according to the rules of foreign law. This means involving an international lawyer in the procedure. And this is a big expense.

Filing claims for division of property is easy if the parties are well aware of each other's location. Plus they have no significant contradictions. In this case, if the value of the property is low, you can limit yourself to a magistrate’s court. In all other situations, you must contact the district court at the defendant’s place of residence. If difficulties arise, the Code of Civil Procedure of the Russian Federation provides the right to file claims both at the location of the divisible objects and at the place of residence of the plaintiff himself.