What property can be divided?
The Family Code of the Russian Federation establishes two types of property regimes for spouses: legal and contractual.
The legal regime of property, that is, the one that exists in a marriage in the absence of a marriage contract, is a regime of joint property, within which the husband and wife have the right to exactly 50% of the common property.
In accordance with the provisions of the family legislation of the Russian Federation, in the event of a divorce, jointly acquired property is divided, an approximate list of which is established by Article 34 of the RF IC:
- income of both spouses received under an employment contract or as an individual entrepreneur; various benefits and payments;
- any real estate, as well as movable property, if it was purchased with the common income of both spouses;
- deposits in various credit and other commercial organizations;
- capital of spouses in various joint-stock companies, LLCs, etc.
It is important to note that the law protects the spouse who, during the marriage, raised children, took care of the family’s daily life, but did not have his own source of income - he equally has the right to the common property of the spouses. Moreover, in exceptional cases, his share may be increased by the court.
But the other side of judicial discretion did not bypass spouses who avoided looking for work and thereby created difficulties for their other half: the court has the right to reduce their share.
Lawyer's advice: Remember that without a prenuptial agreement, the division of property during a divorce will occur regardless of which spouse the specific item is registered in, as well as which of them is a shareholder, member of an LLC, etc.
How is it certified and registered?
An agreement on residential real estate between spouses is subject to mandatory notarization. A husband and wife have the right to draw up the text of the document either in their own hand and present it to a notary officer for verification for compliance with the norms of current legislation, or use a ready-made template for such an agreement available to the notary. But it would still be preferable to draw up a document with the involvement of an independent lawyer, since this option involves a more specific and accurate reflection of the current property situation of the spouses, and also reflects in more detail the desires and preferences of the latter regarding the future fate of the divided property.
If the spouses do not provide for a different procedure, the agreement is considered concluded from the moment it is signed by the parties. Also, a transaction can gain legal force if, according to the contents of this document, the condition for this is the occurrence of a certain event, for example, a divorce.
To complete the procedure for dividing an apartment, spouses must contact the Rosreestr authorities to register their property rights to new shares of the apartment or to the housing itself as a whole, providing the appropriate agreement to the specified authority.
What property cannot be divided?
It is necessary to clarify that not all property will be considered common upon divorce. Thus, the property that each spouse owned before the marriage was registered, as well as that which he received as a gift or by inheritance, will be considered personal and not joint. Other obvious exceptions include those personal items that only one spouse used, such as clothing, jewelry, or a telephone, which are also personal property.
At the same time, the courts resolve this issue somewhat in two ways, based on the ratio of the value of this property and the standard of living and income of the spouses. For example, if during the marriage the husband bought an expensive iPhone on credit, which the spouses subsequently paid for many months from common funds, the court may return half of the payments to the spouse. This also includes luxury goods (you must admit, the term is also quite vague: what is a luxury for one person is an ordinary household item for another) and exclusive rights to the results of intellectual activity: they belong only to the author.
As for children, their personal belongings (including books, clothes, items necessary for various clubs) do not participate in the division of the property of their parents, but are transferred to the one with whom the children will live in the future. The same applies to bank deposits made by parents in the names of their children: this money belongs to the children.
Legal advice: It is very important to understand that in the division of the common property of spouses, not everything is so simple:
- on the one hand, the personal property of a husband or wife can be recognized as the common property of this couple if there is a fact that one of them invested their own or common funds in this property during the marriage, which in turn increased its price (for example, major repairs of real estate );
- on the other hand, property purchased by a husband or wife after the actual termination of the family relationship during their separation can be considered the personal property of that spouse.
It must be borne in mind that this state of affairs can be achieved both by contract and in court.
Design features
If the specified agreement was drawn up on several sheets, each of them must be signed by the parties, after which the pages must be sewn together and sealed. The specified agreement is signed with one’s own hand; in addition to the signature, experts recommend that the parties indicate their full names. The transaction must reflect information regarding the volume of property to be divided.
According to the general rule, the document can include both the entire property and its individual parts, but in the second case, several similar agreements will have to be drawn up. It is the latter option that is used by spouses when transferring rights exclusively to an apartment.
This agreement does not imply a mandatory division of the apartment equally. Housing can be divided between spouses into unequal shares, for example, 1/3 and 2/3. The law does not provide for the obligation to motivate one or another version of the section; however, such an approach may be appropriate to justify that a deviation from the principle of equality is not the result of a technical error.
In addition, in the agreement, spouses can establish the procedure for using the divided apartment. For example, in the case of dividing a three-room apartment, each spouse will have the right to use one pre-selected room, and the third, in turn, will go to the child.
When can property be divided?
As enshrined in Article 38 of the RF IC, division of property can be carried out both during marriage and after its official dissolution. This may be necessary, for example, in the case where a husband or wife has a creditor collecting a debt: to do this, he may demand a forced division of the property in order to then foreclose only on the share of his debtor.
Lawyer's advice: Remember that if the marriage has already been officially dissolved, then demands for the division of jointly acquired property, with rare exceptions, can only be made within three years.
Legal advice
After concluding this type of agreement, rights and obligations arise for each of the parties. It should be noted that objects of movable and immovable property subject to registration must be specified in detail upon transfer in the receipt.
They should indicate cadastral and registration numbers. If a dispute arises in the magistrate's court, this will make it possible to prove involvement in this object as property that was acquired or acquired during the marriage.
Do not forget about the statute of limitations for filing a claim. It leaves only three years for civil cases. When redistributing property, it is necessary to complete all operations within the specified period. It begins from the moment the receipt is signed. Within 3 years, each of the parties can appeal any of the points in the paper in the magistrate's court.
Video on the topic:
What is a property division agreement?
There are two procedures for dividing property: by mutual agreement and in court.
Nowadays, it is not as often (as lawyers would like) to meet couples who separate absolutely calmly and are able to independently make common important decisions, as well as agree on all the consequences of their separation. If this is your case, we may recommend concluding a property division agreement.
In essence, this is an agreement in which the husband and wife jointly determine and fix what property will belong to whom if the marriage breaks down.
Article 38 of the RF IC establishes the requirement for notarization of this agreement; without this, it will be invalid. Rosreestr, in its Letter dated March 31, 2021 No. 14-ref/04224-GE/16, also clarified that spouses have the right to divide property in kind or determine their shares; in addition, they have the right to enter into an agreement to determine shares in the common property, which must also be certified by a notary.
If it is not possible to agree on all the property, then part of it can be divided. In this case, the rest of the undistributed common property will remain common, and it will subsequently be divided according to the general rules of family law.
At first glance, it seems that an agreement on the division of property is quite simple to draw up, because the Family Code does not impose any serious requirements on it (except for notarization), but this is not entirely true.
Firstly, the terms set out in the contract should not contradict Russian legislation as a whole, and for a non-lawyer, identifying such contradictions can sometimes be problematic. Secondly, there is always a danger that one of the spouses is more legally savvy (or has already secretly consulted with a lawyer) and will ultimately offer conditions that are beneficial only to him.
Taking into account all the risks, it can be recommended to entrust the development of a draft agreement to specialists in the field of family law, who will explain to both parties all their rights and obligations, as well as the consequences to which each of the recorded conditions will lead.
But if there is an insoluble conflict between the spouses and all meetings and attempts to reach an agreement only end in a big scandal, it is better to immediately go to court with a demand for the division of common property. Judicial representatives will also come in handy in this situation, as they will relieve the parties of the need to meet face to face in the courthouse - in an obvious conflict situation.
Legal advice: Please note that when transferring expensive property to one of the spouses, the value of which is higher than the share of this spouse, the second spouse has the right to demand compensation in cash or other equivalent. Clarity is added by the explanations of the Ministry of Finance of the Russian Federation on this issue: in its Letter dated March 2, 2017 No. 03-04-07/11811, the Ministry of Finance indicates that in the event of division of property under an agreement, this amount of money will be considered income, and therefore, 13% must be paid on it. Personal income tax (in the case of a court decision, this amount of money is not taxed).
Legal validity of the receipt
Ownership of a real estate type of object must be documented. In this case, it is necessary to take into account the details of the person transferring the object for use and possession. When transferring ownership of an object, it is important to indicate its technical data, registration, as well as the region and republic where the property is located.
During the trial, this will help prove that the type of property being transferred was exactly what was described in the receipt. These aspects are considered important since the division requires accurate data for each object. If there were errors in the information, the receipt may be invalidated.
The family budget may also be divided. To do this, you need to note all the savings that were opened in the accounts during the marriage. An important fact when dividing money is that the receipt has legal force.
Here, the law establishes that when spouses leave a receipt, it does not require notarization. This means that the paper immediately after its signing becomes legally significant. As a result, users may not have it notarized when drafting it.
As for paternity, communication is carried out according to an agreement concluded through a notary. When concluding a peace agreement on alimony payments, the parties agree when the father will visit the children, and for what period and what amounts will be credited to their accounts as fulfillment of alimony obligations. They are prescribed in family law.
This agreement governs the relationship between the spouses. If the father violates the terms and does not pay child support, the mother can apply with a written receipt to the court to order forced collection of arrears on child support obligations.
What if we conclude a marriage contract?
Those couples that can come to an agreement after the actual end of the relationship usually choose the option of a prenuptial agreement to divide property outside of court. In general, the logic is clear: various types of property regimes can be fixed in a marriage contract, and most importantly, it is possible to determine and fix who gets this or that property after a divorce without any special problems.
However, it is important to know the difference between a marriage contract and an agreement on the division of property: a marriage contract can be concluded before marriage and during marriage, and an agreement on the division of property can be concluded after the official divorce.
What is easier: without trial or through court?
Definitely, without trial. Dividing property through the court is more expensive: the amount of the state duty depends on the cost of the claim (the price of the disputed property), and the trial can last for many months. In addition, by entering into an agreement by mutual consent, you reduce the risk of an unequal division of all your property.
What are the consequences of dividing property without court?
Of course, the agreement on the division of property can be amended, or simply terminated by agreement of both spouses. In the first case, the latest version of this agreement will be valid, and in the second, the situation will return to the one that existed before the agreement, that is, the general rules for the division of property established by law will again apply.
Lawyer's advice: Remember that even a notarized agreement can be challenged in court, although the chances of success in this case will be negligible.
Watch the video in which a lawyer briefly explains the distinctive features of dividing property without a trial:
Section with the formalization of an agreement
Spouses draw up and sign an agreement - without a notary and without extra costs. Such a transaction is not valid by virtue of Article 38 of the Code, but the parties fulfill this defective agreement, and thanks to this, the transaction is “cured”. This legal structure is based on the provisions of Article 166 of the Civil Code of the Russian Federation. This rule of law says the following:
A party whose behavior makes clear its will to maintain the validity of the transaction does not have the right to challenge the transaction on grounds that this party knew or should have known about when its will was expressed.
A statement about the invalidity of a transaction has no legal significance if the person referring to the invalidity of the transaction acts in bad faith, in particular if his behavior after the conclusion of the transaction gave grounds for other persons to rely on the validity of the transaction.
Thus, even if subsequently one of the spouses (who suddenly felt uncomfortable) wants to sue what was done, he will not be able to do so. Complex design, but doable.
