Division of shared property upon divorce of spouses

Monetary compensation during the division of property helps when the thing cannot be divided in kind, for example, a one-room apartment. Divorce of spouses, inheritance of common property by several heirs, these are just a few situations when it is not possible to use common property jointly, then the question of compensation for the share arises.

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When is monetary compensation beneficial when dividing marital property?

The profitability of owning a share in property or receiving monetary compensation for such a share is determined by each person independently.

As a rule, it is beneficial to receive money for a share in property when dividing it if:

♦ it is impossible to divide property in kind, for example, a room in a communal apartment;
♦ if one of the owners will actually use the property, for example, only the ex-husband will use the car, because his ex-wife does not have a driver’s license;
♦ one of the owners does not want to use the property together with the other, for example, to live together in an apartment;
♦ one of the owners interferes with the use of common property.

MORE DETAILS : about the situation of selling a share in common property and the difficulties in this regard, follow the link.

When is jointly acquired property divided unequally?

The division of joint property in half is not always fair. In the comments of lawyers to Art. 39 of the RF IC often indicates circumstances that led to a disproportionate division of property after a divorce due to objective reasons. These reasons are described in paragraphs 2 and 3 of Art. 39 RF IC:

Presence of young children. A child must grow and develop in suitable conditions. If, after a divorce and division of property, he is left without a roof over his head or without a desperately needed means of transportation (for example, the child is disabled or lives in a remote area), then the court will most likely try to leave most of the property to the parent with whom the child will remain. The legislation of our country places the interests of minors above all else.

If there are two children in a family, and after a divorce one of them lives with each parent, then the property will be divided strictly in half.

Dishonesty of one spouse in terms of financial investments for the benefit of the family. There are often situations when a husband or wife alone bears all the financial burdens of family life on their shoulders. And at this time, their significant other spends time idly, spends money earned with blood and sweat and does not even think about starting to work. Such behavior is fraught, firstly, with divorce, and secondly, with the division of property in favor of the workaholic spouse. This fate does not apply to wives on maternity leave or mothers with many children.
One of the spouses has debts. Debts are legally divided during a divorce in proportion to the shares of the property. But if the ex-husband or wife wasted money aimlessly and took out loans for everything, then they will get most of the debt and a smaller part of the property, which is quite fair.

How is compensation paid after division of property?

After the participants in common property have divided the property voluntarily or through the court, if there are grounds for payment of compensation, it can be paid voluntarily or collected forcibly based on a court decision.

► When voluntarily paying compensation after the division of property, it is necessary to record certain facts, namely, draw up in writing an agreement on the division of property, which includes, among other things, the conditions for the procedure for paying monetary compensation.

ATTENTION : The agreement must be notarized.

Taking into account the prescribed procedure for paying compensation, it is necessary to perform certain actions, for example, transfer funds to the account specified in the agreement.

In case of transfer of cash, it is necessary to obtain a receipt from the person to whom the funds are transferred, stating that he received the money in the form of compensation for the value of the share in the property. If a receipt is not received, the person will have no evidence of payment of compensation.

► In case of recovery of compensation through the court, after the court makes a decision in favor of the plaintiff, the plaintiff must wait until it comes into force and receive a writ of execution, according to which the bailiffs will initiate enforcement proceedings and will forcibly collect monetary compensation.

Share in the common property of the spouses

In most cases, people who get married do not think about the fact that they will someday have to get a divorce. Therefore, they do not bother themselves with studying the legal side of divorce, but with questions “what to do?” and “what should I do?” begin to attack lawyers when they are faced with all the pitfalls of the divorce process.

Meanwhile, in order for the divorce process to be as painless as possible, you need to know some legal subtleties, which we will tell you about.

Legal regime of property

The first thing that needs to be determined when starting to divide property is the regime of its legal regulation, i.e. the rules applied to it. The Family Code of the Russian Federation (FC) provides for two legal regimes for the property of spouses:

– legal; – contractual;

Legal is the general, most common option for regulating marital property. According to Art. 34 of the Family Code, property acquired by spouses during marriage is their joint property. In other words, everything that you acquire during marriage (from a spoon to a family estate) will be the common joint property of the spouses and upon divorce will be divided equally, unless otherwise stated in the marriage contract (if any), or other legally executed document.

Contractual is a regime that is less common, but provides significantly greater guarantees when dividing property. In the contractual regime, two main instruments are usually used - a prenuptial agreement and a property division agreement.

A marriage contract can be concluded both before the marriage is registered and at any time during the marriage. An agreement on the division of property is usually concluded before the divorce or immediately after it.

Where to start “dividing”?

So, the procedure for dividing property between former spouses begins with establishing the fact - whether a marriage contract or an agreement on the division of property was concluded.

If there is a prenuptial agreement, then difficulties will be minimized. After all, as a rule, in a well-drafted marriage contract, everything is spelled out in great detail (who will get what color pan, and who will get what brand of car). The only thing you need to focus on is whether all acquired property is covered by the contract and whether the clauses of the contract violate the rights of any party.

If there was no prenuptial agreement, an agreement on the division of property was not reached or signed, and there is no hope of reaching a compromise, then there is only one option left - division of property in court.

What property is subject to division?

As you already understood, if during a divorce it comes to the division of property, then the property acquired jointly during the marriage will be divided. Joint property includes: salary; income from business activities; income from the results of intellectual property (written book, song article, filmed film); pensions; benefits; movable and immovable property acquired at the expense of common funds; purchased shares, deposits, securities. At the same time, the spouse who did not have income for good reasons also has the right to common property. For example, if the wife did not work and was engaged in housekeeping and raising children, she has the right to common property.

Share of spouses in common property

As a general rule, spouses have the right to receive equal shares of what they acquired during marriage. It does not matter to whom things and property are registered or registered. Property is divided in court precisely on the principle of equality. The acquired property is divided by establishing shared ownership of it, or by transferring different things of the same value to each, or by transferring items to one with payment of compensation to the other. Judges decide what to transfer and to whom, taking into account the established procedure for using things and the needs of the parties. The property can be divided into parts - separately real estate, money, cars, etc. or all at once. You cannot divide into categories like “real estate for me in Moscow, and for you in Uryupinsk.”

In addition, there are some other nuances:

Property that was received before marriage, as well as property received by one of the spouses as a gift or by inheritance during marriage is his property. In other words, if your wife had an apartment before marriage, and your beloved aunt gave you (already married) a yacht on February 23, then after the divorce everyone will remain with their own apartment and yacht. But there is one “but”! If the court recognizes that during the marriage investments were made in this property at the expense of joint property or the personal property of the other spouse, and they significantly increased the value of the property, then the property may be recognized as joint property. For example, before marriage, your wife had a small house in the village, and you built a castle from it at your own expense and were able to confirm this in court, then the castle will be recognized as joint property.

Items for personal use (clothes, shoes, etc.), with the exception of jewelry and luxury items, although acquired during marriage at the expense of the spouses’ common funds, are recognized as the property of the spouse who used them, i.e. your wife's Versace dresses and your Zarya suits will not be shared.

Exclusive rights to the results of intellectual activity (inventions, computer programs, written books, paintings, etc.) will be recognized as the personal property of their author, but this does not apply to income. As they say, the last name on the cover of the book you write will be yours, and the income will be shared with your spouse.

Property acquired by each spouse after the actual termination of family relations during separation may be recognized by the court as their personal property. But again, you have to try hard and prove in court that you purchased the car with your personal funds only after you left your wife (or left your husband)

Finally, children's things are recognized as belonging specifically to the children and remain with the parent with whom the children will live.

We must not forget about the common debts of the spouses, which reduce the common property and are distributed between the spouses in proportion to the shares awarded to them, i.e. If a spouse loses 100 thousand rubles at cards, then by this amount the court can reduce his/her share due when dividing joint property.

Of course, not everything can be divided in kind, according to the principle: half for you and half for me. For example, a one-room apartment, a car, a painting, an airplane, etc. cannot be divided into two. In this case, it is possible to replace the share due to one of the spouses with monetary compensation calculated on the basis of the average market value of the item being divided. If the former spouses are unable to voluntarily agree on the amount of such compensation, it is determined by the court.

Such specific property as the spouse's share in the ownership of any object is also included in the total property mass during a divorce.

In fact, when separating the joint property of spouses from their personal property, much more difficulties can arise, which can cause ex-spouses, lawyers, and judges to stumble.
Therefore, when drawing up a marriage contract and when dividing property in court, we advise you to use the services of notaries, who have the greatest experience in drawing up marriage contracts in Russia. union of a man and a woman registered with the civil registry office. Unregistered de facto marital relations (civil marriage) do not give rise to legal consequences - that is, the rights and obligations of spouses in accordance with the Family Code of the Russian Federation, just like a marriage concluded according to a religious rite. Registration is carried out only in the personal presence of those entering into marriage; representation in this case is not allowed. Legal entities and individuals who enter into or have entered into an agreement with each other. A party to the agreement may be the state (the Russian Federation, its constituent entities), which act on an equal footing with other participants in civil law relations. This is an agreement of persons entering into marriage, or an agreement of spouses, defining the property rights and obligations of spouses in marriage and (or) in case of its termination. The marriage contract is concluded in writing and is subject to notarization. land plots, subsoil plots and everything that is firmly connected to the ground, that is, objects the movement of which is impossible without disproportionate damage to their purpose, including buildings, structures, unfinished construction objects, as well as parts of buildings intended to accommodate vehicles (machines) -places). Immovable property also includes aircraft, sea vessels and inland navigation vessels subject to state registration. a part of property belonging to the owner that is owned by two or more persons (common property). land plots, subsoil plots and everything that is firmly connected to the ground, that is, objects the movement of which is impossible without disproportionate damage to their purpose, including buildings, structures, unfinished construction objects, as well as parts of buildings intended to accommodate vehicles (machines) -places). Immovable property also includes aircraft, sea vessels and inland navigation vessels subject to state registration.

Deadlines for payment of compensation upon division of property

If compensation for the division of property is paid on the basis of a concluded agreement, in this case such an agreement must contain a condition on the timing of payment of compensation.

If compensation is recovered by a court decision, then initially, when filing a claim, it is better for the plaintiff to indicate the deadline for payment of compensation, for example, oblige the defendant to pay compensation within 2 weeks after the court decision comes into force.

If the court decision is not executed voluntarily, then the further receipt of money from the defendant will depend on the work of the bailiffs, who do not always properly perform their official duties, formally performing some actions within the framework of enforcement proceedings that do not bring the desired result.

Calculation of compensation for division of marital property

When calculating compensation for a share in property acquired during marriage, you need to know:

the size of such share;
to whom and what property becomes sole property during division, and what is the difference in the value of the property received by each of the spouses (depending on the size of the share of each spouse, the value of the corresponding share is determined proportionally, taking into account the total value of the property);
the market value of the property at the time of calculation of compensation, since, as a rule, compensation is made at the market value of the property.

The value of property is most often determined on the basis of an expert opinion. This conclusion is especially relevant when resolving a dispute in court.

As a general rule, the spouses' shares in property are recognized as equal, but the marriage contract may provide otherwise.

ATTENTION : in certain cases, the court may deviate from the principle of equality of shares of spouses in their common property.

General principles for the division of marital property after divorce

The concept and rules for dividing the property of a husband and wife during a divorce are regulated by the Civil Code of the Russian Federation and the IC of the Russian Federation. According to Art. 34 of the RF IC, property that spouses acquired during marriage is their joint property. Common property includes:

all income received by the husband and wife that is not related to targeted payments;
real estate purchased during family life;
movable property acquired during marriage;
cash deposits;
shares in business;
securities.

This is important to know: Ownership rights and other proprietary rights to residential premises

The general principles of division of joint property of spouses are described in Art. 38 SK and Art. 254 Civil Code. According to the law, the following rules apply:

division can be made upon marriage, during family relations, upon divorce or within 3 years after it;
spouses have the right to determine the procedure for distribution of property themselves or go to court;
when dividing property through the court, the principle of equality of property rights of spouses is applied;
things and funds of children under 18 years of age are not subject to division;
The personal property of each spouse is not divided.

In case of divorce they do not divide:

property owned by spouses before marriage;
property received during marriage as a gift or inheritance;
personal items.

However, deviations from the basic rules are possible. The legislation establishes that personal property is recognized as property that was acquired before the official breakup of relations, but during separation, and personal property that has been significantly improved through the joint or personal funds of the other party can be recognized as common property.

The court also has the right to reduce or increase the size of the share of one of the spouses in the following circumstances:

intentional infliction of material harm to a family;
refusal to participate in financial contributions to the general budget for unjustified reasons;
the need to take into account the interests of the minor child(ren).

Agreement on division of property with payment of compensation

If a decision is made to enter into an agreement on the division of property with payment of compensation, such an agreement will determine:

what property belongs to the parties or what property they inherit;
what are the shares of the parties to the agreement in the property;
how the parties agreed to divide the property;
which party is subject to compensation;
what actions should the parties take after concluding the agreement, for example, one of the spouses must provide documents to register the transfer of ownership;
other provisions of the agreement will concern, inter alia, general issues such as the entry into force of the agreement, the emergence of property rights, etc., and contain details of the parties and signatures.

How to divide housing that is joint property?

How is an apartment divided during a divorce? There are several ways to divide joint property:

conclude a marriage contract;
draw up and notarize a division agreement;
judicially.

A spouse has the right to sign a marriage contract before marriage, during marital relations, and before the start of divorce proceedings. In the agreement, the parties have the right to indicate which real estate and in what proportions will be transferred to each spouse. Upon reaching mutual agreements, the husband and wife can divide the apartment in equal shares or establish a different division procedure. For example, the apartment goes to the wife, who will raise the children, while the car and cash savings will remain with the husband.

The marriage contract must meet the following criteria:

made in writing;
concluded without coercion according to mutual agreements;
signed by both parties;
certified by a notary;
drawn up before the official divorce.

An agreement on the division of property between the parties is drawn up at any time during the marriage relationship or within 3 years after a divorce (for more details, see the article: is it necessary to notarize an agreement on the division of property of spouses?). Housing can be divided by agreement in any ratio. If spouses want to assign ownership of an apartment to one family member, they can indicate this in the agreement.

It is allowed to divide property in a way that suits both spouses. Often a man leaves joint housing to his wife to pay alimony. A document acquires official status only when it is certified by a notary office. When concluding an agreement, it is necessary to take into account that the specified division procedure will apply only to the property described in the document. Property acquired after the conclusion of the agreement or not included in the list of divided objects will be divided according to the general rules.

However, the described methods of dividing housing are possible only when the spouses manage to reach a consensus on the distribution of property. If the parties cannot reach an agreement, the division of the apartment during a divorce occurs in court.

Division in court takes place according to general rules. The property of the spouses is divided in equal parts. However, the plaintiff may request a different distribution of property. The right to receive a larger share must be justified with evidence (witness testimony, receipts for payment for construction materials, statements from a personal bank account, etc.). A sample statement of claim for the division of marital property can be downloaded below.

This is important to know: The procedure for acquiring property into municipal ownership