Division of property during divorce. Is it that simple? Let's figure it out

The division of property during a divorce is a difficult process for spouses, and it is not always possible to divide property acquired during a marriage through peaceful agreements. The situation becomes even more complicated if there are children in the family. During legal proceedings, all rules of Family Law that protect the interests of the child must be observed. What should you remember when claiming family real estate and other valuables?

What is considered joint property?

According to family law, everything acquired by spouses during marriage is divided in half upon separation. The exception will be situations where there is a prenuptial agreement. The law includes the following as common property acquired by spouses during marriage:

• all income of the husband and wife (profit from doing business, wages, dividends on shares and deposits, etc.);
• acquired real estate, residential and non-residential;
• bank deposits, participation in business, other assets.

In addition to assets, a married couple may also have common liabilities - obligations to banks for loans and borrowings, mortgages, etc. During a divorce, both jointly acquired property and existing debts are divided between spouses.

The list of joint property subject to division during a divorce does not include things received as a gift , purchased with premarital funds, targeted payments (compensations), and personal belongings. The property of minor family members is not subject to division.

Principles of division of property during divorce

Family law describes in detail the process of distribution of property between divorcing spouses. The general procedure implies that everything acquired by them during marriage is divided in half upon separation, regardless of the financial contribution of each. If a family is childless, it is often possible to distribute what has been acquired over the years of cohabitation through a contractual procedure, and the divorce procedure is simplified and the divorce is carried out through the registry office.

An exception to the “50/50” rule will be situations where a marriage agreement was concluded between husband and wife, which detailed certain conditions for dividing property in the event of divorce.

Important! A marriage agreement (contract) is valid if it is notarized. Otherwise, the court will not take such a document into account. When compiling it, it is advisable to pay attention to legislative norms that should not be violated. That is, the marriage contract cannot indicate that personal property or property received by one of the spouses under a gift agreement is subject to division. To avoid fundamental mistakes, it is better to involve a family law specialist to draw up an agreement.

If the spouses have minor children, the marriage will have to be dissolved through the court. The child must be common or officially adopted by one of the spouses. In such situations, when dividing property, other schemes are used, and there will no longer be equal distribution. How is property divided in a divorce with children? There are two possible division options: by agreement of the parties, or through a court decision.

Appointment of alimony: features

Alimony can be paid voluntarily based on an agreement between the parties, as well as through the court. If the amount of deductions is determined by the court, then there are certain requirements for collection.

Table 2. Amount of alimony in Russia

Payment of alimony

It is worth understanding that the exact amount of salary deductions is decided in a particular case. For example, if the payer has a high income, they can set payments at 70% of total income. As for the unemployed or unofficially employed, the courts assign a fixed sum of money. That is, it is necessary to make a payment that is equivalent to the cost of living in Russia.

Important! The judge calculates the amount of payments based on the official amount of income. Thus, the plaintiff is interested in showing maximum profit from the payer. To do this, you can request an account statement, a 2-NDFL certificate, or provide other information.

How is alimony paid?

There are several ways to collect child support debt. If a citizen independently contacts a FSSP employee to draw up a payment schedule and contributes money voluntarily, then no sanctions are imposed. It is possible to submit the writ of execution to the accounting department at your place of work so that you do not have to transfer the money yourself. The accountant knows what types of payments must be transferred according to the writ of execution and can provide documentation confirming the reality of the accruals.

If a citizen does not want to make payments on his own, then sanctions may be imposed:

• seizure of bank accounts;
• seizure of property for the purpose of its sale to pay off debt;
• ban on traveling abroad if you owe more than 30,000 rubles;
• prohibition on driving a vehicle.

FSSP employee works with alimony obligations

In case of malicious evasion of payment, punishment is allowed on the basis of Article 157 of the Criminal Code of the Russian Federation. It provides for a fine, forced labor, and imprisonment. In this case, the debt amount is not written off, financial obligations continue to apply, and a penalty is charged for each day of delay. Today, bailiffs have received expanded powers. They quickly put debtors on the international wanted list, which impedes free movement around the world.

If the debtor is hiding from payment in another country, then it is possible to contact the equivalent of the Ministry of Justice of another state through consular or diplomatic channels to assist in debt collection. It should be understood that the state has the right to refuse. Everything depends on the existence of a bilateral agreement on mutual assistance in the collection of alimony debts and on the relations between the powers.

Important! Debt collection occurs regardless of the nationality of the alimony payer. If it is located on the territory of Russia, then the rules established in this country apply. However, when located on the territory of another power, collection occurs according to its laws. Thus, the size of the payment can increase significantly. In this case, the money is transferred in national currency. This means that the conversion occurs at the expense of the recipient. However, as practice shows, it is still in the black.

Division of property in case of divorce with children by agreement of the parties (settlement agreement)

When mutual understanding is reached between the former spouses and all property, including real estate, is distributed according to mutual agreements, it is enough to sign a settlement agreement. It must indicate:

• information about the parties to the agreement;
• presence of a minor child (children) in the family;
• a list of jointly acquired property subject to division - when including real estate and expensive things (for example, a car), it is better to indicate their value;
• shares of each spouse;
• information about property officially registered in the name of the child (received by inheritance, under a gift agreement, etc.);
• information about property allocated by parents to children;
• rights of the parties, any additional terms of the agreement.

When dividing property, the notary will need an extract from the Unified State Register of from Rosreestr. Order it on the EGRN.Reestr website. The report contains complete information about the property and its copyright holders. The document speeds up legal proceedings, even if a settlement agreement has been concluded.

If one of the parties refuses to fulfill the terms of the agreement, the second has the right to file a claim in court.

Arbitrage practice

Established judicial practice suggests that in order to respect the housing rights of minor children, the safest option is to transfer housing into the ownership of the parent with whom the child remains to live.

In addition to observing living conditions, this option of division is the most convenient and comfortable for children - they do not need to get used to their new place of residence, so the stress from their parents’ divorce is quickly neutralized.

The court most often transfers the remaining property (vehicles, other property) to the second spouse in order to compensate for the transfer of residential premises to the other party, or awards monetary compensation to the first spouse in the amount of the value of the real estate share.

If there are minors in the family, the courts resort to other methods of dividing residential premises in exceptional cases.

The presence of young children does not at all exclude the likelihood or possibility of dividing the living space. If the condition for observing the housing rights of minors during the division is met, the former spouses can proceed with the division using any of the above options and methods without the risk of challenging the transaction by the guardianship authorities.

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Division of property in case of divorce with children when filing a claim in court

The ideal option for dividing property if there are small children in the family would be to conclude a settlement agreement. However, judicial practice shows that not all spouses can reach mutual understanding even at the preliminary stage of negotiations. In such a situation, they have to divide the property through the court.

Certain nuances regarding the protection of the interests of minor children during parental divorce are stipulated in family law and the Civil Code and relate to the following issues:

• determining the size of the share of the spouse with whom the child remains to live;
• establishing the amount of compensation for indivisible objects to the parent and reducing it for the one who takes care of the child;
• allocation of a share of property (real estate) if maternity capital or funds belonging to the child by right of inheritance or gift were used for its purchase.

Divorce with division of property and a minor child does not have a single algorithm for making decisions on the size of shares of jointly acquired property for each party. The court will have to determine the fairness of the parents' demands and compliance with legal norms based largely on evaluative criteria:

• the child’s health status - if he has a confirmed disability or documented systemic diseases, the share of the caring parent may be increased;
• the presence of health restrictions, lack of income for objective reasons (the status of a caregiver - a person caring for them) of the spouse with whom the child lives;
• the need for increased funding aimed at supporting the development of the child - for example, expenses for sports clubs, payment for music education;
• the physical participation of the second spouse in the lives of the children - his involvement in their development, trips on vacation.

Example: When a couple divorced, a boy with cerebral palsy remained in the care of his mother. Due to the fact that his condition required regular travel to visit a rehabilitation center, the car purchased during marriage went to the child’s ex-wife. The husband received compensation, but the amount, taking into account the special condition of the child, was reduced and did not become a serious burden for the mother.

All this applies to property acquired in a joint marriage by parents. But there are things that the court will consider the personal property of a child, even a minor.

What difficulties will you face? Solutions

First difficulty: In case of divorce and division of property with children, you will have to communicate with the “Guardianship and Trusteeship Authorities”. They ensure that the children's living conditions do not worsen when their parents' marriage is dissolved.

It is better to be “friends” with guardianship representatives than to “fight.” If the apartment is divided, every step will need to be coordinated with them. Without their permission, you won’t even take a step.

We recommend that you consult with a lawyer and first develop a general strategy for dividing your property. And then, coordinate it with the guardianship and trusteeship authorities.

Second difficulty: Division of property in the presence of a mortgage with children, especially when using maternity capital.

In addition to the guardianship authorities, the difficulty lies in communicating with the bank that issued your mortgage loan. The bank sets the rules and methods for dividing a mortgaged apartment. He is the main character.

It will be necessary to analyze the mortgage agreement together with a lawyer and negotiate with the bank. And after that, approve the scheme for dividing the mortgage apartment, and also decide who will continue to repay the loan.

Our lawyers have gained good experience in resolving such issues. Consult us.

What property is considered a child's personal property?

A child cannot claim what his parents acquired during marriage unless this is stated in the marriage agreement. He receives indivisible rights to the things purchased for him, regardless of their value:

• clothes and any personal items - books, games and toys;
• children's furniture;
• sports equipment - bicycles, scooters, skates, skis, exercise equipment;
• musical instruments;
• computers, laptops, tablets, if it is proven that only the child uses them or he received them as a gift.

The list can be supplemented with any things used to maintain a comfortable standard of living and development of children.

Example: The paternal grandfather gave his granddaughter, who is studying at a music school, a cello worth 700 thousand rubles. At the time of the divorce, the ex-husband demanded that his wife pay half of the price, since he considered it joint property. However, the court took into account two points: the instrument was received as a gift, the girl needed it to receive a musical education, and it was personal property. The child's father was denied compensation.

To avoid such conflicts, some families use the practice of preparing documents for expensive gifts. Most often this concerns real estate, which the older generation transfers to their grandchildren under gift agreements.

Basic provisions

The basic rule governing the division of property between former spouses is contained in Article 34 of the RF IC. According to its provisions, all jointly acquired property, including movable and immovable property, and other material assets, are subject to division between former spouses in equal shares according to the principle of “equality.” At the same time, the law does not distinguish which of the parties actually made a contribution to the family well-being, and what is the ratio of actual financial support to the family budget during the marriage. Spouses have the right to claim equal property rights only to those valuables that were purchased during the marriage relationship, without claiming acquisitions made before and after marriage, as well as to things received by either spouse as a gift or by inheritance. Everyone's personal belongings and gifts are also excluded from the section. The same rule applies to valuables purchased for the needs of common children.

The main principle taken into account during division is that the interests of children should not suffer.

How to claim your share of property through court?

Example: an apartment was purchased during marriage and is registered in the name of the husband; the documents are in his possession. What should the wife do, and what should she write in the statement of claim, if she wants to receive a share in the apartment, and not its cash equivalent? The woman will need to order an extract from the Unified State Register of Real Estate , where she will also be indicated as the owner (the apartment was purchased during marriage). After which, to divide the apartment, she will need to go to court at the location of the property. The statement of claim will need to indicate that she is asking the court to recognize her as ½ share of the apartment. Do not forget about paying the state fee for the claim and the appraisal of the apartment before filing the claim.

If the apartment was purchased during marriage with maternity capital

If the apartment is mortgaged and maternity capital is used, then the share from the maternity capital is divided among all family members, and the remaining part is divided in half between the spouses.

So, if there are two adults and two children in a family, and 20% of the cost of the apartment is maternity capital, then this part is divided between four people. The remaining 80%, paid by the spouses’ common money, is divided in half.

It is unacceptable to divide the entire apartment equally between parents, leaving nothing for the children. Matkapital is intended specifically for children. At the same time, the legislation does not establish specific requirements for the rules for dividing shares - their size can be established for minors by voluntary agreement independently.

At the same time, giving each family member ¼ of the share is also not entirely correct, since the children did not pay for housing with joint or personal funds. But when drawing up a voluntary agreement, parents decide this issue on their own: one of the adults may even renounce their share in favor of a child or ex-spouse.

With maternity capital and mortgages, things become more complicated. The best solution would be to pay off the debt immediately after the divorce. Then the apartment can be sold and the proceeds divided in accordance with the shares allocated to each family member.

If borrowers do not have the funds to repay the loan early, they can go to court with a request to divide the debt, draw up a new payment schedule and procedure for fulfilling obligations. Another option is to ask the bank to split the mortgage into two separate loans that add up to the remaining balance of the mortgage.

How to draw up a statement of claim for division of joint property

A typical statement of claim for division of property during divorce contains:

1. Name and details of the judicial authority to which the claim is filed.
2. Information about all participants in the process (full name, residential address, telephone numbers, email).
3. Cost of claim. The value of the claim is the amount at which the plaintiff values ​​the property claimed during division.
4. A list of all property that is subject to division. A description of each item and each name of property to be divided is required.
5. Appeal to the articles of law on the basis of which the plaintiff demands partition. Therefore, it makes sense to study the law or contact a lawyer to file a claim.
6. Claim. In this paragraph, the plaintiff must indicate what property and in what order he demands to be divided.
7. A numbered list of documents attached to the claim.

Increasing the share of one of the spouses

During the trial, the share of one of the former spouses in an apartment or house may be increased if the following circumstances are established:

1. The former spouses have children together who are under 18 years of age.
2. After a divorce, children remain in the care of one of the spouses.
3. Some exceptional circumstances have been identified that establish the need to take into account the interests of a minor when dividing property.
4. The petition to take the child into account when determining the shares is filed simultaneously with the general claim for division.

Of particular interest is the moment of determining exceptional circumstances. This requirement means that it is impossible to apply this rule to all cases of division. During the consideration of the case, the court will proceed from the ability to maintain the level of maintenance of a minor son or daughter properly.

An important point when transferring the consideration of the case to the court is the fact that property rights are taken into account not by allocating a separate share of the child when the parents divorce, but by increasing the share of one of the former spouses with whom the son or daughter remained to live until adulthood. The judge, when establishing exceptional conditions, will make a decision in favor of the parent with whom the young children will remain, ensuring that their needs are fully met. This rule does not apply if common children have reached the age of majority.

Documents attached to the claim for division of property during divorce

1. Statement of claim in several copies (according to the number of parties participating in the process).
2. Documents about marriage (if divorce has already occurred, then a certificate from the registry office stating that the marriage was previously concluded) and about divorce.
3. If there are minor children, then their birth certificates.
4. All title documents for joint property. These can be sales and purchase agreements, receipts, checks, bank statements, USRN extract , and any other documents that can prove the fact of acquisition of joint property.
5. If the plaintiff, even before filing the claim, assessed the disputed property - an act of independent assessment.
6. Receipt for payment of state duty.

Options for dividing property if there is a child in the family

The most complex legal processes arise during the division of property if there are minor children in the marriage.

First option. When a child has a legally allocated share of real estate

• when using maternity capital to purchase housing, the child is allocated a share of the property. It is not subject to division at the time of parents' divorce. Moreover, this share remains with him regardless of which relative he subsequently lives with;
• when a share in an apartment or house is registered in the name of a child under a gift agreement from older relatives;
• when funds belonging to a minor by right of inheritance or under a gift agreement were invested in the purchase of real estate.

Examples

1. 1. At the time of purchasing an apartment, ownership rights are assigned to the spouses in equal shares. A year before the divorce, the mother executed a gift agreement and, with the consent of the child’s father, transferred her share of the living space to her son. During the divorce, only half of the property belonging to the father was divided. In this situation, it is important to provide documents confirming the fact that the child owns a share of the property. This information can be found in the EGRN extract from Rosreestr, which contains information about all actions that have ever been performed with the apartment.
2. 2. When purchasing an apartment, funds from his account, which he received as an inheritance from his deceased grandfather, were used to improve the child’s living conditions. The guardianship authorities gave permission to use the money of a minor family member, and the child was allocated his share during registration. A few years later, my father tried to sue half of the purchased housing, but in the end he was refused. As you know, a child’s share of housing is not subject to division. It is not necessary to prove the fact that the apartment was purchased with money that belonged to the minor. The EGRN extract from Rosreestr will already indicate information that the child owns a share of the property.

In both cases, the documents provided by the participants in the proceedings were important to the court.

An important point is that if a child owns a share of housing, he cannot independently dispose of it until he reaches adulthood. In this regard, any action performed with the real estate of children occurs only with the permission of the guardianship and trusteeship authorities.

The state has one requirement here: when exchanging, selling or re-registering an apartment or house, the child’s rights guarantee him living conditions (or ownership) that do not worsen those that exist. This is why difficulties often arise with the physical division of an apartment during a divorce if part of it is registered in the name of a minor.

Example

In a two-room apartment subject to division, 1/3 of the share belongs to the husband, wife and 10-year-old son, who has a separate room. Only 2/3 of the area falls under the court decision, and a third remains the child’s asset. Exchanging such housing is problematic due to the need to provide the child with similar living conditions, so most often the spouses agree to pay compensation or replace part of the apartment with some other property.

In addition, the court may even order the division of real estate during a divorce for the following reasons:

• In addition to spouses and children, other relatives who have shares in the property (grandparents, brothers) also live in the apartment;
• the apartment in which the minor lives is very small, and its size will not allow social space standards to be met.

Second option. Property in which children do not have an allocated share is subject to division.

A parent with whom minor children remain to live can apply and increase the size of the share of real estate allocated to him up to 10% for each child, but there are exceptions. Thus, if there are two children, in the event of a divorce, he will receive not half, but 70% of the apartment or house.

This applies to any property that is subject to division in a divorce. The mother of a minor remaining in her care may receive an increased share if she points out special circumstances in court:

• she is on maternity leave and is unable to earn money to support the child;
• a disabled child in need of care remains in the care of the mother;
• if the divisible property is the only one, and its exchange worsens the living conditions of the children, then it goes to the one who takes care of the children (most often the mother). At the same time, the compensation that she will have to pay to her husband for his share of the apartment, under certain conditions, the court may reduce by 30-40%.

Important! When determining the amount of compensation due to one of the spouses, it is advisable to involve an independent expert before filing a claim in court. This will help avoid disagreements, speed up the process of making a judicial decision and allow the interests of both parties to be respected.

How can you avoid being left homeless with your children if your husband owns the apartment?

In this case, the apartment is the personal property of the husband and is not divided during the division of property. Neither children nor wife can claim it. Accordingly, a woman has questions: “Where to go, where to live? What will happen to the children?

We hasten to calm you down. If the wife does not have another home or does not have the financial ability to buy a new home, the court may allow her to continue to live in her husband’s living space. Or give her a period of six months to a year to find a new home.

As for children, the guardianship and trusteeship authorities will not allow the husband to “worse” the children’s living conditions. And they will continue to live in their father’s apartment.

Plus, minor children have the right by law to use the living space of both spouses after a divorce.

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