Property division procedure
The Family Code of Russia provides for the division of property of spouses upon divorce in pre-trial proceedings. By mutual consent, a husband and wife while still married can agree on the division of jointly acquired property. The main goal of negotiations between them is an agreement that takes into account the interests of each party and eliminates uncertainties on key issues. Successfully conducted and legally competent negotiations will allow you to save on legal fees, attorney fees and other expenses.
In the process of dividing property, it should be taken into account that the court decision may differ significantly from the expectations of the divorcing spouses. The court has sufficient powers to do this.
It is not always possible to reach mutual agreement during the divorce process, especially if it is necessary to take into account the interests of not only the spouses, but also the children. In this case, a claim for division of property is filed through the court. The case is considered within three years after the divorce.
The interests of one of the spouses are given priority by the court if:
- the spouse thoughtlessly spent the jointly acquired property;
- the spouse has no income (only if the reasons are valid, for example due to health).
To divide property through the court, you must follow a similar scheme:
— it is necessary to determine the entire composition of the property with precision. It is advisable to make an inventory of things. In this case, you must indicate the year of purchase and the price of the item;
— Next you need to prepare documents for the court. Their list can be obtained from any lawyer or from the court itself;
- you will need to fill out a statement of claim confirming the division of property. A sample of filling out an application can also be obtained from a lawyer or in court;
- after this, all that remains is to submit an application to the court and take part in the trial, where a decision on the case will be obtained.
Change and termination of the marriage contract
The marriage contract can be amended and/or terminated at any time by agreement of the spouses. An agreement to amend or terminate a marriage contract is made in the same form as the marriage contract itself.
Unilateral refusal to execute a marriage contract is not allowed (Clause 1, Article 43 of the Family Code of the Russian Federation).
At the request of one of the spouses, the marriage contract can be changed or terminated by a court decision on the grounds and in the manner established by the Civil Code of the Russian Federation for changing and terminating the contract (Clause 2 of Article 43 of the Family Code of the Russian Federation).
The validity of the marriage contract terminates from the moment of termination of the marriage, with the exception of those obligations that are provided for in the marriage contract for the period after the termination of the marriage (Clause 1 of Article 44 of the Family Code of the Russian Federation).
Agreement on division of marital property
Drawing up a notarial agreement between those divorcing can significantly facilitate the process of dividing property. It helps determine the shares of the wife and husband in jointly acquired property on mutually beneficial terms.
Important!
It is necessary to have the contract certified by a notary. Without this, the document has no legal force. Moreover, in such a document all issues related to the property must be resolved, otherwise the notary will not certify this document and it will not have sufficient significance during the process.
After the spouses have discussed the details of the division of property, they need to visit a notary with the following package of documents:
— purchase and sale agreements;
— all sales and cash receipts;
— documents confirming ownership;
— certificates of registration of property rights;
— PTS (if we are talking about a car) and other documents;
- passports of husband and wife.
The cost of notary services for concluding a voluntary agreement on the division of property is 0.5% of the valued property + 5 thousand rubles. with the right to transfer ownership or 10 thousand rubles. without the right to transfer ownership.
You should not prepare the agreement document yourself. It is drawn up by a notary on a special form; the spouses are only required to present their wishes regarding the subsequent ownership of the property.
Peace agreement as a pre-trial stage of property division
During the negotiation process, the contracting parties make compromises that allow them to draw up a final agreement on the division of jointly acquired property, a marriage contract, etc. Such division of property can be agreed upon in marriage.
In cases where a peaceful pre-trial agreement cannot be reached, it is necessary to file a claim for division of property.
However, even in such cases, working on a pre-trial agreement can bring significant benefits. The very initiative to conduct them characterizes the contracting parties from the best side, which in court can become an additional argument in favor of each of the parties. The document itself, even if not signed by the spouses, will show the court the true motives of the parties to the property dispute. This will help the judge make the right decision when dividing jointly acquired property. In addition, the text of the agreement can serve as confirmation of the existence of property.
A peace agreement can be concluded during the divorce process during court hearings. The judge often acts as a peacemaker and helps those divorcing to reach a mutually beneficial compromise.
Checking the marital status of the other party to the transaction
When making a major transaction (buying a share in a business, purchasing real estate, etc.), it is better to find out in advance whether the other party to the transaction (counterparty) is married in order to protect yourself as much as possible from possible negative consequences.
Unfortunately, there is no way yet to reliably establish the marital status of any counterparty. However, a number of measures can be taken to reduce the risk of adverse consequences:
- ask the counterparty to obtain a certificate from the registry office indicating that the marriage has not been registered.
- require from the counterparty a statement that the alienated property was paid for during the period when the participant was not married, and (or) a statement that there was no registered marriage.
- use social networks: in some cases, researching the seller’s pages on social networks can help - it may directly indicate that he is married.
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If the marriage is registered abroad, information about it will not be reflected in such a certificate. If you have any suspicions that the counterparty could have entered into a marriage abroad, try to obtain information from foreign countries through the Ministry of Foreign Affairs or the Ministry of Justice. Keep in mind that this verification will take a long time.
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In the case of a notarial transaction, such statements are requested by the notary.
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In the near future it will be possible to use the Unified State Register of Civil Status Acts. True, it will be possible to obtain information only through a notary or counterparty. In addition, the registry may not have all the information about foreign marriages.
Terms of division of property
For the division of family property from the date of dissolution of marriage, the law establishes a period of three years. However, by the decision of the plenum of the Supreme Court on November 5, 1998, clarifications were given that the meaning of this article should not be taken literally and the countdown of the period for division of property should begin from the date when one of the spouses was denied access to joint property. That is, if one of the spouses uses the apartment with the consent of the other, the countdown of the statute of limitations does not begin.
After three years, the owner of the property receives the right to dispose of it at his own discretion, and it is no longer subject to division. A citizen or citizen, having received a demand for division of property, may apply to the court with a request to apply the consequences that occur after the expiration of the statute of limitations on this demand. In this case, the court is obliged to make a refusal decision on the division of the spouses’ property.
The limitation period may be suspended for the period of force majeure. But, according to Russian legislation, for this, after its completion, it is mandatory to file a corresponding statement of claim.
“The timing of filing an application for division of property is quite vague - for example, similar processes occur ten years after a divorce,” says lawyer, specialist in divorce proceedings Margarita Polyakova.
Privatization of land plots by citizens is the registration into the ownership of citizens of land plots previously provided to them for permanent (indefinite) use or lifelong inheritable possession (clause 3 of Article 3 of the Law of October 25, 2001 N 137-FZ). Privatization is possible if the land plot is provided before October 29, 2001 (clause 9.1 of Article 3 of Law No. 137-FZ).
The division of a privatized land plot by spouses has features that should be taken into account. These include the moment of marriage registration, the ownership of the building on a given land plot, the content of the act of the local government body, according to which the plot was allocated. 1. A plot of land was received and privatized by a spouse before registration of marriage, and the building was built during marriage. If a plot of land was received and privatized by one of the spouses before marriage, namely, state registration of the transfer of ownership from the state to an individual was carried out, then it is personal property spouse and is not subject to division (clause 1 of article 36 of the RF IC). In this case, only the building (structure) will be subject to division between the spouses if it was erected at the expense of the spouses’ common funds (Clause 2 of Article 34 of the RF IC). In this case, the interested party will need to prove that on the date of marriage there was no building (structure) on the land plot. Such evidence can serve as a technical passport of a building (structure) or a technical plan, which will indicate the year of its construction (paragraph 4, paragraph 2 of the Procedure, approved by Order of the Ministry of Economic Development of Russia dated August 17, 2006 N 244; part 7 of article 24 of the Law dated 07/13/2015 N 218-FZ). 2. The land plot was received and privatized by the spouse after registration of the marriage, the building was built during the marriage. The specified property is jointly acquired property of the spouses, since the personal property of the spouse is only property received by him during the marriage as a gift, by inheritance or through other gratuitous transactions ( Clause 1 of Article 36 of the RF IC). It should be taken into account that the rights and obligations of citizens arise (clauses 1, 2, clause 1, article 8 of the Civil Code of the Russian Federation): - from contracts or other transactions provided for by law, as well as from contracts and other transactions, although not provided for by law, but not contradicting it; - from acts of state bodies and local governments, which are provided by law as the basis for the emergence of civil rights and obligations. Thus, the legislator distinguishes between contracts (transactions) and acts of government bodies and does not classify the latter as transactions, including gratuitous ones. This means that a plot of land received by a spouse during marriage in accordance with an act of local government is not the personal property of that spouse. The determining role in the division of a land plot obtained in this way is not the gratuitous nature of its transfer to an individual, but the composition of the family, which was taken into account when allocating it. Receipt by one of the spouses of a land plot with the right of permanent (indefinite) use during marriage and its subsequent privatization lead to the formation of common joint ownership of this land plot by the spouses (Clause 2 of Article 34 of the RF IC). A building (structure) built during the marriage on such a plot is also the common property of the spouses and is subject to division. Documents confirming the fact that the property was acquired (acquired) during the marriage are the resolution of the head of the local administration on the allocation of a land plot, as well as a document confirming the date of construction of the building (technical passport, technical plan) (paragraph 4, paragraph 2 of the Procedure, approved by Order of the Ministry of Economic Development of Russia dated August 17, 2006 N 244; Part 7, Article 24 of Law N 218-FZ). 3. The land plot was received before the marriage was registered, and was privatized by the spouse after the marriage was registered. In this case, its division will depend on when the building (structure) was built on it. Until October 29, 2001, all land was in state ownership, and land plots could be provided to citizens on the basis of the right of permanent (perpetual) use or lifetime inheritable ownership (Article 265, paragraph 1 of Article 268 of the Civil Code of the Russian Federation). 3.1. The building was built by one of the spouses before the marriage was registered. A plot of land privatized during the marriage, on which there is a building owned by one of the spouses before the marriage, is not common joint property. Such a plot is the property of the spouse who had the right to use the land plot before marriage (Clause 1 of Article 36 of the RF IC). However, in practice, courts do not always take into account the previously arisen right to use the land plot of the owner of the building, which entailed the privatization of the plot. The interested party must prove to the court who owned the building before marriage, the time of construction of the building, and the existence of the right to use the land plot before marriage. 3.2. The building was built after the registration of the marriage, but before the privatization of the land plot. The land plot privatized during the marriage, on which the building (structure) acquired or erected by the spouses after the registration of the marriage is located, may be recognized by the court as the common joint property of the spouses, if it is established that in During the marriage, investments were made at the expense of the common property of the spouses or the property of each of the spouses or the labor of one of the spouses, significantly increasing the value of this property (Article 37 of the RF IC). In this case, the court needs to determine the actual (market) value of the property before and after investments made in it, which will allow assessing the significant or insignificant nature of the increase in its value (Definition of the Supreme Court of the Russian Federation dated May 6, 2003 N 5-B03-41). 3.3. The building was built after the marriage was registered and the land was privatized. In practice, courts assess this situation differently. Some take into account that one of the spouses acquired the right to use the land plot before marriage, and only he has the right to privatize this plot. In this regard, the land plot is not the common property of the spouses and is not subject to division. Other courts proceed from the fact that a land plot, the ownership of which arose during the marriage as a result of privatization, cannot be considered property received under a gratuitous transaction. Consequently, it is included in the common property and is subject to division between spouses (Clause 1, Article 36 of the RF IC). In this regard, it is assumed that if, during the marriage, investments were made at the expense of the common property of the spouses, as well as the property and (or) labor of the other spouse, significantly increasing the value of this property, then the other spouse can apply for a division of the land plot (Article 37 RF IC).
