Divorce results in ex-spouses having to decide how to divide what they acquired during their life together. And at least the following questions immediately arise:

In general, you can read more than one lecture on each of the listed issues. Many aspects are discussed in detail on the pages of the company’s website. In this article we will make a brief analysis of the main points of these problems.

Each of the former spouses always acts in their own interests

And this is reasonable and normal. It is worth considering that the property interests of the former spouses are opposite. That is, if one person benefits from a speedy division, then another, on the contrary, benefits from delaying it. Everyone has the right to care only about their own interests and benefits. If delaying the division of property benefits you, you have every right to use any measures to achieve your result. No one can punish you for this.

If your case is an exception to this rule, consider yourself lucky. But it might be worth considering the following: No one will provide you with guarantees that the other side will not change their mind.

Is it possible to save on paying court fees when filing a claim, and if so, how? The answer is yes, there are a number of useful solutions: a master class from Inyusta lawyers.

The court resolves civil cases with the goal of establishing formal (rather than objective) truth. This means that the winner is the one who presents more significant evidence, who knows the law and the dynamics of the trial better, and not the one who is “humanly” right or evokes sympathy. This is the principle of adversarial behavior of the parties, established by Article 12 of the Code of Civil Procedure of the Russian Federation.

The division of property through the courts makes up the majority of the litigation cases of lawyers and family lawyers. The need to specialize in these cases and deal with them professionally is caused by the complexity and imperfection of both family and procedural legislation. Conflict, the very fact that people are “on opposite sides of the barricades” leads to the fact that the parties use mistakes and gaps in legislation to their advantage. A lawyer must know (predict) the nature and type of abuse, think through countermeasures, or also use inaccuracies in the laws in the interests of his client.

Family disputes are also characterized by the fact that former spouses take advantage of each other’s weaknesses, which they became aware of when there was mutual trust between them. We are talking about psychological influence on an opponent with the goal of saying too much “out of emotion” and making a mistake. This is another reason to seek help from a professional who relies on sound judgment and knowledge of the law.

A timely and correctly filed claim, painstaking work in court - this is what is needed for the result - a court decision in your favor

The division by mutual consent is formalized by a special transaction called an agreement on the division of property. Such an agreement can be concluded at any time after the divorce (in some cases, also before or upon dissolution of the marriage).

In addition to the above, it is worth noting another option for resolving property issues of spouses - by concluding a marriage contract. This transaction can be concluded before the legal registration of divorce. A marriage contract has a number of advantages and disadvantages.

What happens if you don’t divide the property?​

Everything acquired during marriage has a special status - the common joint property of the spouses.

The law does not prohibit maintaining this property regime after a divorce. To simplify, we can say that until the division is made, the property remains common. The parties can file a claim or enter into an agreement on this property after a year, and after 5 and 10 years.

In 2019, however, it is advisable to take into account the following circumstances.

Firstly, after 3 years, one of the parties may declare that the statute of limitations has expired when filing a lawsuit with a demand to divide things.

Secondly, this form of ownership was developed specifically for the convenience of people living together, acting in everyday life by mutual consent and for the benefit of each other. Such co-owners are, as it were, at the same time full owners of things, and therefore each of them has an equal right to use (benefit), dispose of (let another person use it, pledge it, sell it) and own it. If you trust your ex-spouse or ex-wife, you can leave everything as it is and not share what you have acquired - until better times (option - until the relationship deteriorates or changes qualitatively in some other way). Many people are happy with this option.

But for many, uncertainty makes them feel uncomfortable and nervous. And it’s true, how can you remain indifferent if one day you unexpectedly meet the new wife (husband) of your ex-other half in your (but still shared) apartment! After all, the i’s are not dotted, which means that everyone does with the apartment what he considers necessary (in our case, he moves in whoever he considers necessary).

More information about the actions of our lawyers when conducting a case:

When conducting a case in court, we:

• We will understand the details of the case, assess the possible risks and advise you on the prospects of the case.
• We will draw up a statement of claim and a counterclaim (if you are the defendant), and provide explanations on the case.
• We will provide assistance in collecting evidence or collect it ourselves, secure the evidence, initiate an examination, alternative examination, or property valuation.
• We will submit documents to the court of appropriate jurisdiction, and speak in your defense at preliminary and court hearings on the merits in courts of all instances.
• Let us present objections regarding the argumentation and evidence of the opposing side.
• We will make sure that your position is properly reflected in the procedural documents.
• We will submit petitions and statements necessary to conduct the case and protect your interests.
• We will appeal court rulings made during the case if they violate your rights.
• We will receive a court decision, a writ of execution and transfer them to you, and we will carry out enforcement proceedings.
• If you have previously turned to an unqualified lawyer and the decision has already been made, but you are not satisfied with its content, we will appeal to the court of appeal, cassation and supervisory authority.

The world section includes the following work:

• We will draw up a draft settlement agreement.
• Let's consider the already drawn up draft agreement, transactions and their options and provide recommendations on their signing/non-signing.
• We will register the transfer of rights to real estate in the state. authorities, we will receive certificates of title and pass them on to you.INUSTA

  Tax authorities, arbitration courts, MAP, a number of other government agencies. bodies are specific regulators in the implementation of entrepreneurship. Handling them requires knowledge of a large number of regulations and procedures. Our specialists have extensive experience in communicating with government data. authorities and will best represent your interests.

Good evening! My husband and I have been divorced since 2003. after that he was married again, today he is divorced, now he demands the exchange of the apartment in which I live with our children (adults), he is not registered in the apartment and he does not have a share in the apartment, but the apartment was bought in our joint marriage. Does he have the right to divide this property, i.e. apartments?

Answer

According to paragraph 7 of Article 38 of the Family Code of the Russian Federation, a three-year statute of limitations applies to the claims of spouses for the division of common property of spouses whose marriage is dissolved. But this period begins to run not from the moment of divorce, but from the moment when the former spouse learned about his violated rights. Therefore, if the rights of your ex-husband were not violated, then this period did not begin to run.

Therefore, you should definitely file a motion to apply the statute of limitations. In this case, the court will most likely refuse to satisfy the claim for division of property. If you do not file this petition, then when the case is considered, the judge will have the right to grant it.

The division of real estate during a divorce is a frequently asked question among many couples divorcing a marriage. The division of property, and especially expensive real estate, often leads to conflict situations and lengthy litigation.

As evidenced by numerous judicial practices in divorce proceedings, most often divorcing spouses put forward demands relating to the division of real estate. In a statement of claim, as a rule, spouses include several items at once - demands for the division of a country house, apartment, cottage, plot of land or room.

The rules for dividing the common property of divorcing spouses are established in Article 39 of the Russian Family Code and Article 254 of the Civil Code of the Russian Federation.

In addition, when dividing marital property, other rules of law from family, housing, urban planning, civil and land legislation are also applied.

Real estate not subject to division

First of all, real estate received by one spouse as a gift, inheritance, or transferred to him through other gratuitous transactions is not subject to division. In addition, during a divorce, it is impossible to divide real estate purchased or received by one of the divorcing spouses before registering family relations in the registry office or acquired by him with financial assets acquired before marriage. However, in the latter case, if a controversial situation arises between the divorcing spouses, strong evidence of the acquisition of real estate using the finances available before marriage is needed.

If the spouses dividing the property did not live together for a long time, but the divorce was not officially filed with the registry office, the court has the right to recognize the property acquired by them during this time as the individual property of each of them. However, evidence is also needed here, since the judge in this case can make completely opposite decisions.

Terms of division of real estate during divorce

The general rules established by the Russian Civil Code apply to the division of matrimonial real estate, that is 3 years. The specified period can begin not only from the date of registration in the registry office of the divorce, but also after the dissolution of the marriage, when the spouse making the corresponding demand for the division of real estate learned or should have learned about the violation of his right.

It should be noted, however, that due to fairly strict requirements for registering rights to real estate, situations where the divorcing spouse does not know that the other spouse has any real estate acquired during marriage are minimized.

The procedure for dividing joint real estate

Joint real estate of spouses is those real estate objects that were acquired by spouses during a registered family relationship.

Family law allows several options for dividing marital property:

1. , containing the will of both parties regarding how the common property and other marital property will be divided;
2. divorced spouses. Family legislation of the Russian Federation gives former spouses the opportunity to divide real estate in any way at the discretion of the parties and even transfer all jointly acquired real estate to one of the spouses, leaving the second without housing. The main condition for such a division is the mutual agreement of the divorcing spouses regarding the procedure and conditions for the division of real estate. It is recommended that such an agreement be drawn up in notarial form. This guarantees compliance with the agreement by both parties and will avoid a situation where one of the divorced spouses subsequently changes their mind and refuses to fulfill the terms of the agreement.
3. Through the court - if there is a controversial situation.

The first two options for dividing real estate have an undeniable advantage over court proceedings, since the court, based on the equality of rights of divorcing spouses to joint property, usually divides everything in half, which does not allow considering some options for division. In addition, divorce proceedings are associated with long time costs, legal costs and not always pleasant emotional experiences.

Family law allows for the possibility of increasing the share of one of the spouses when dividing matrimonial property by a court decision, based on the interests and rights of minor children. This issue is left to the discretion of the judge hearing the divorce case.

The mere fact of children living with one parent is not considered a sufficient condition for increasing the share of one of the spouses and deviating from the legal principle of equality when dividing joint property. If the parent can justify and prove in court the need to increase his share in the marital property in order to ensure the interests of the child, then the judge can satisfy such a requirement.

It is also possible to reduce the share of one of the divorced spouses if during the common marriage he had no income at all without good reason or repeatedly spent common marital funds and property to the detriment of the interests of his family.

Section of privatized housing

The division of a privatized apartment, according to statistics, causes the greatest number of controversial issues and disagreements. However, the division of privatized housing is quite clearly regulated by Russian legislation.

If an apartment acquired during marriage was privatized for both spouses, they are both, from a legal point of view, the owners of the property. In this case, the division of real estate is carried out in accordance with the general procedure. After the dissolution of a marriage, divorced spouses become co-owners. Each of them becomes the owner of a share in the apartment.

A situation is possible when spouses, while still married at the stage of privatization, divided their housing into shares and recorded this section in the registration documents. In this case, divorcing spouses do not need to share a common apartment.

If joint housing was privatized for both spouses, but shares were not allocated, they can determine the size of the shares:

• under a voluntary agreement on the division of housing;
• by a court decision based on the principles of equality of spouses.

If, during a joint marriage, the apartment was privatized for only one spouse, the second spouse loses the right to claim as the owner of this housing after the divorce. It does not matter that when signing the refusal to privatize, the citizen was not aware of all the consequences of his decision.

Lack of legal literacy is not a reason to cancel a housing privatization transaction.

Another misconception that judges often encounter in divorce proceedings is related to registration. Many divorcing spouses believe that they have the right to part of a privatized apartment during a divorce only because they are registered in this residential premises. However, during the trial, an unpleasant fact is discovered - the housing will not be divided, since one of the divorcing spouses is not its legal owner.

Thus, when an apartment is privatized for one of the spouses, the housing becomes his individual property, transferred to him free of charge, since the privatization of an apartment is considered the same free transaction as inheritance and donation. In this case, the second spouse, who is not considered the owner of the privatized housing, can demand and defend in court his right to indefinite (or for a certain period of time) residence and use of the apartment.

Another option is also possible when the judge obliges the spouse, who is the sole owner of the privatized apartment, to provide other housing for the second spouse if he makes a corresponding request.

The right of a divorced spouse who refused to participate in the privatization of housing to use a privatized apartment after the divorce may terminate:

• upon expiration of the period established by the judge for the use of real estate owned by the former spouse;
• by agreement of both parties:
• with the cessation of the circumstances laid down by the court as the basis for maintaining the right to use someone else’s apartment (for example, a spouse who did not have housing at the time of the divorce subsequently acquired another apartment for himself).

Municipal housing section

The division of municipal housing also causes some difficulties, since such a division is impossible from a legal point of view before privatization.

To divide a municipal apartment registered under a social tenancy agreement during a divorce, spouses can:

• carry out privatization and divide the apartment into shares by agreement of the parties or in accordance with the legally established principles of equality of spouses in case of divorce;
• carry out only the actual division of the apartment without fixing it in legal documentation. This option, of course, is the least preferable, since it is impossible to officially record such a division of municipal housing, and any of the parties (former spouses) may refuse to fulfill the oral agreement;
• continue to share public housing after the divorce. In this case, the former spouses retain equal rights to use municipal housing, regardless of who is the registered tenant.

Divorce is an unpleasant and difficult procedure for most couples. If former spouses have property claims, the process becomes more complicated. The division of property after a divorce, the statute of limitations for which has not yet passed, may be less painful if there is a prenuptial agreement or good will of the parties. If there is neither one nor the other, you will have to go to court. But first, you need to understand what property is subject to division during a divorce and when it makes sense to seek help.

What is subject to division

The division of joint property after a divorce occurs according to established rules. All movable and immovable property acquired during the marriage is divided. The following will be divided between the parties:

• All real estate: apartment, garage, cottage, room, palace.
• Land plot, shared construction, share.
• Vehicles.
• Business, bonds, shares.
• Bank deposits.
• Household appliances and furniture.
• jewelry.

If the spouses separated but did not file a divorce, all property acquired by both parties during this period may be recognized as common and subject to division. The division of property after a divorce, the statute of limitations for which has not expired, will only include what was acquired before the official confirmation of the separation.

You cannot divide children’s furniture and clothing, items purchased for their needs, or deposits in their name. The children's property remains with the parent with whom the children remain. In addition, personal belongings other than jewelry are not included in the division of marital property after divorce. But there may be exceptions to this rule: if a fur coat is sold, the spouse has the right to demand a division of the funds received for it.

An apartment that belonged to one of the spouses before the start of family life cannot be included in the division of property after a divorce, like any other property received before marriage. If during the marriage one of the spouses received material assets as an inheritance, they are also not subject to division.

Loan section

Today, a loan is a very popular way to get money. And if a large sum can only be taken with the written consent of the spouse, then the bank provides small financial assistance to only one of them. When initiating the division of property after a divorce, the spouses do not want to divide the loans unless their signature is on the agreement. The court considers each situation individually. If the money is taken with the consent of both spouses and spent on family needs, the debt will be divided equally between the spouses.

But what if the loan was taken by one party to meet personal needs without notifying the spouse? More recently, courts have recognized such debts as common and divided them in half in most cases. However, as of April 13, 2016, loans are recognized as joint only when they were spent on the family. These expenses must be proven by the party who demands that loans be included in the division of property after a divorce.

Debt section

The division of property of spouses after divorce occurs in equal shares. If it happened otherwise and one of the parties received the majority, then the debt obligations will also be unequal. So, if the husband was awarded 2/3 of the total property, then 2/3 of the debts will be given to him.

Documents for the court

If less than 50,000 rubles, documents must be submitted to the magistrate’s court. If the cost is higher, the district court will deal with it.

The following documents must be attached to the application:

• Passport or other identification document.
• Divorce certificate (copy must be notarized).
• Documents for the disputed property: checks, orders, technical passports, receipts, certificates of ownership.
• Certificate of family composition.
• Paid state duty.

Witness testimony does not have a significant impact on the division of property after divorce.

Statute of limitations

Judicial practice in cases of division of property is not entirely clear. According to Art. 9, paragraph 7 of the RF IC, a lawsuit can be filed within three years. But the catch is that these years are not calculated from the moment of divorce.

Where does the countdown come from?

It seems that the division of property after a divorce, the statute of limitations for which has not expired, should occur no later than three years after receiving a document indicating the breakdown of the family. However, not everything is so simple with this issue.

Three years begin counting from the moment when one of the parties learned about the violation of its property rights. Also, the countdown date is the day when the spouse should have found out about it. This approach to the issue significantly changes the situation, because the division of property after a divorce, the statute of limitations (5 years, and 10, and even 30, rights may not be violated) of which is hypothetically extended, is a completely different matter. It often happens that a man leaves everything to his wife, reasoning that the property should go to the children and the abandoned wife. But over time and the appearance of a new family, his priorities may change; unresolved housing issues will require going to court for the division of property.

Do I need to rush through the section?

It is difficult to imagine that a modern person has no idea about deadlines. However, it is not uncommon for one or both spouses to be in no hurry to divide property.

Despite the possibility of dividing property even after three years, the reasons for this must be very compelling. Most experts recommend not delaying the division of property after a divorce. The statute of limitations ends after 36 months, and the fate of a lawsuit filed later depends on the judge. Moreover, strong evidence is required that the spouse did not previously know about the violation of his rights.

If, for example, after a divorce, a husband left an apartment to his wife, but after some time he learned that the property had been sold or other people had moved in, he has the right to demand division. Moreover, the countdown of three years begins from the day on which the ex-husband learned about the fate of the apartment.

It should be understood that when the division is postponed, not only the price of real estate increases, but also the amount of legal costs. In addition, the longer one of the spouses has sole use of the common property, the more difficult it will be to force him to divide the property. Laziness, nobility or national hope for “maybe” can cost a significant part of the total savings. You should not delay the division; it is better to file for it at the same time as the divorce.

Case studies

Judicial practice on the division of various property and debts of former spouses is very extensive. To understand the general trend, you should consider as many examples of similar cases as possible. Several cases will be discussed below.

Example with a loan

During the marriage, the spouses took out a loan for a car. The contract was concluded in the name of the wife, who used the car until the divorce. Loan payments were made from the family budget.

Some time later, the wife filed a claim for division of the loan. She testified that the debt was partially paid and demanded that the remainder be divided equally between her and her ex-husband.

Having studied the circumstances, the court decided to satisfy the claim in full and leave the car to the wife, but ordered her to give her husband an amount equal to the cost of the car.

During the trial, the former spouses entered into an agreement. Their agreement allowed the woman to keep the car and not pay the money, but the husband did not have to pay the loan. The agreement was approved by the court.

Example No. 2

During marriage, the spouses purchased an apartment, a car, and had children. After 20 years of family life, the wife announced that she was leaving for someone else and filed for divorce. The ex-husband, who was in a state of shock, moved in with his parents, forgetting about the shared apartment. I only took the car for myself.

After 4 years, the ex-husband found out that the apartment had been sold. He went to court with a demand to divide the funds received from the joint property transaction. However, the court rejected his request because the statute of limitations had expired.

Example No. 3

A married woman moved to another city because her father needed care. A year later, her husband sent her divorce papers, which she signed. She was able to return to her city 5 years later, after the death of her father. She could not get into the apartment she shared with her husband, because his new wife kicked her out of there.

The woman asked the court to restore the statute of limitations. An experienced lawyer was able to prove she was right, as a result of which the court restored the term, and the ex-wife was able to receive half of the common property.

Conclusion

No matter how difficult divorce may be from a moral point of view, you should not give in to emotions. First of all, you need to respect your interests and get everything that is required by law in such cases. The best way out is to make a list of common property and take it to a specialist who will calmly and competently draw up a voluntary agreement.

If a lawyer who is not clouded by feelings goes into negotiations with the other party, there is an opportunity to avoid litigation, additional expenses and peacefully divide everything acquired through back-breaking labor.

The division of jointly acquired property is always a complex issue, despite the principle of equality of shares of spouses, from which the court can deviate in exceptional cases. And even if the spouses agreed peacefully and without trial as to who keeps what after the divorce, it is possible that difficulties and redistribution of property will arise many years later. This is where pitfalls of stumbling blocks awaited the former spouses. And even a competent lawyer or advocate was unable to help, because... in practice, it turned out to be easier for the courts to apply the mechanism of skipping the statute of limitations rather than to delve into the essence of the case.

As often happens, the opinion of the Supreme Court of the Russian Federation expressed on a specific case can radically change the situation - and lower courts begin to take a different, more thoughtful approach to considering cases.

The law provides for the right of spouses to divide property both during divorce and after it. But if less than 3 years have passed since the divorce, then this is not difficult to do; the courts accepted statements of claim for the division of property acquired jointly during the marriage, made decisions on them, and the property was successfully divided.

However, if more than 3 years passed after the divorce, many judges for some reason believed that the statute of limitations had passed, satisfied the demands of the former defendant spouse in court to apply the statute of limitations, and the former plaintiff spouse was left broke. In such cases, it seems that the spouse has rights to property acquired jointly during marriage, but he could not protect it, and after the court refused to satisfy his claims and divide the property, such a spouse found himself in an unenviable position - his ex-other half boldly kicked him out of the apartment, etc.

This state of affairs was considered incorrect by the Supreme Court of the Russian Federation. Considering the case of spouses regarding the division of jointly acquired property, in which the courts had just applied the statute of limitations after the dissolution of the marriage between the spouses, the Supreme Court in its ruling considered this to be incorrect.

The main conclusion of the Supreme Court is that the 3-year limitation period should be calculated not from the moment of divorce between the spouses, but from the moment of violation of the law. This means, if the marriage was dissolved at least 10 years ago, and only now one of the spouses suddenly found themselves infringed on their right to own, use and dispose of property and immediately (or within 3 years from the date of discovery of the violation) went to court for protection of the violated right, then we cannot talk about any application of the limitation period.

The claim of such a disadvantaged spouse must be considered, and a legal, fair decision must be made on it, despite the fact that the marriage has long been dissolved.

How many citizens were deprived of their property due to incorrect application of the statute of limitations by the courts? Unfortunately, there are no such statistics. However, in the practice of many lawyers and advocates, such cases are not uncommon. And the position of the Supreme Court of the Russian Federation expressed in the ruling on a specific case will allow people to protect their rights, guided by the fact that the limitation period should be calculated from the moment the violation of the right is discovered, and not in relation to the date of divorce.