How to intelligently divide property after a divorce: 9 simple steps
JOINT YOU OR CONGRATULATE - In any case, after a divorce, the problem of division of property arises. How to solve it with minimal losses, we understand together with a lawyer Julia Sakunova.
Remember whether there is a marriage contract
If so, congratulations: there will be no problems with the section. Having taken such a step at one time, you saved yourself a huge amount of energy, time and nerves in the future. Now the property will be distributed according to what is specified in the contract. To do this, you with your copy (the marriage contract was certified by a notary at the conclusion) go to the registering authorities and reissue the property. Please note that a marriage contract involves the division of property only between spouses, so, for example, it is impossible to provide for the transfer of things to children (art. 40-42 of the Family Code of the Russian Federation).
If there is no marriage contract and you were able to agree on who gets what, you can go to the notary and conclude a property sharing agreement. With mutual consent, there are no restrictions - the notary only documents this. Then, on the basis of it, you need to contact the registering authorities (traffic police, Rosreestr) and reissue what is necessary.
If there is no marriage contract and you do not agree about the section, then you will have to understand in court and by law. Prepare a claim on the division of property. There is a general limitation period: three years from the date of the divorce, or rather, from the moment you learned or could know about it. Be sure to open the Family Code and study art. 34 ("Joint property of spouses"), Art. 38 ("Section of the common property of spouses"), Art. 39 ("Determination of shares in the division of common property"), as well as Art. 256 ("Common Property of Spouses").
Determine what you are applying for.
Be guided by the fact that by law the spouses are entitled to half of the property acquired during the marriage. This means that everything that belonged to you before the wedding remains with you. Also, when you remain property acquired as a result of gratuitous transactions - that is, for example, inherited or transferred under the contract of donation. Please note: if an apartment was given to you by your parents after the wedding, but you signed it through a contract of sale and not a gift, then the ex-spouse has the right to qualify for half. Indivisible are personal belongings - both yours and your children. That is, your clothes, a laptop (if only you use them), the smartphone will stay with you. The personal belongings of children — clothes, books, toys, a computer — remain with them and, accordingly, with the parent with whom they will live. Unfortunately, diamonds and other luxury items are not considered personal items, so they will have to be shared.
Non-property rights do not share: if any of you, for example, a writer, then he will receive royalties, and the divorce will not affect it. Jointly acquired property (everything that was bought during the marriage: real estate, cars, household appliances, and even dogs and cats) is subject to division. As well as the money earned by both spouses, stored in the bank. It is clear that to divide an apartment or car in half is problematic, so often the object goes to one of the spouses, and he pays the second half of the cost.
Keep in mind that the date of commencement of residence in marriage is, of course, the date of the wedding, but the date of termination is the date of the actual termination of cohabitation and joint farming. That is, if you actually parted with your spouse long before the formal divorce, then this is exactly what is considered the date of the end of the marriage relationship.
In some cases (listed in article 39 of the Family Code), the court may decide that more than half of the jointly acquired property is assigned to one of the spouses. For example, if one spouse has two or more minor children, or if the second spouse did not receive income for disrespectful reasons during their marriage. The disrespectful reasons must be compelling - that is, the person did not just not work, but did not work and was on a narcological register or was in prison. In any case, the court will decide how much to deviate from the usual division of property equally, but you can offer your own version.
Deal with debts
Yes, "in sorrow and in joy," extends here too. If you have an apartment under a mortgage and it is framed by one of the spouses, it is possible to divide it, but only with the consent of the bank. The bank must divide up the payments, but, as a rule, does not want to do this. Therefore, most likely, the apartment, as well as the obligation to pay for it, will remain on the person to whom it was originally issued.
When a consumer loan obligations are considered personal - that is, who took it, he must pay. But if it is possible to prove that the borrowed funds were spent during the marriage period for general needs (they did repairs in the apartment, went on family leave, etc.), then it can be divided between the spouses in recourse order, and then the second spouse should return the first part of the payment. Moreover, the calculation is also made on the basis of the date of termination of cohabitation. For example, in 2014, A and B got married, in 2015 they took a consumer loan, in 2016 they left, and divorced in 2017. In 2018, A, for which the loan was issued, repaid it in full. Question: half of what part of the loan, he can recover from B? Answer: half of the amount paid by him since the departure in 2016 until the full repayment of the loan in 2018.
Make a list of property and prepare evidence
Evaluate all jointly acquired property in monetary terms and indicate how you propose to divide it. For example, you want to stay in the apartment, but pay your spouse half of its value, and leave him a car, half of the cost of which you will receive from him.
Then collect the documents confirming that the property (including cash) was purchased during the marriage. Purchase agreements, bank statements, registration certificates, checks and so on. If you can’t get a document anyway, include it in the list anyway - later you will ask the court to claim this document.
Evidence also includes evidence. With their help, you will prove exactly when your marriage ended, if you parted before the divorce, and also, for example, that the dog should stay with you, since you are attached to it more and engaged in it. Testimony will be given by your witnesses right in court, but as a last resort, if a person cannot come to court, he can notarize his testimony at the notary. In this case, it is necessary that the notary public warned him about the responsibility for giving false testimony, otherwise the court may not accept the document.
Decide on the court
If the amount of your claim is less than 50 thousand rubles, go to the world court. If more than 50 thousand - go to the district. As for the place, contact either at the location of the property or at the place of residence of the defendant. Remember that you have the freedom to choose the court - after he accepts the lawsuit, you will be able to clarify it, and it will still be considered there. That is, if your lawsuit about the division of spoons and pockets took the court at the place of residence of the ex-spouse, and then you suddenly found out or remembered that the dacha plot located in another area should also be divided, bring the law clarification to the court will already be here.
Pay the fee
Do not forget that when filing a claim on the division of property you have to pay a fee, and it is calculated depending on the size of the claim itself. So the more you demand, the more you pay at the beginning, and if you lose, no one will refund you the fee. So get down to business carefully and responsibly.
Go to court
If your opponent does not appear at the trial, the decision will be made in your favor without any special proceedings.
If your opponent suddenly declares that he agrees with the proposed version of the section, the judge will ask you both to prepare a draft amicable agreement, which he will then approve. It can happen at any stage of the trial - even at the preliminary, very first, hearing.
In case of disagreement, your opponent may file a counterclaim in which he sets out his vision of the situation. Both your claims will be considered in one session. He may not file a counterclaim, but simply participate in the proceedings and defend his (other than yours) property division scheme. Of course, he will also present evidence, bring witnesses and prove his case by all available means.
Beware of fraud
Remember that not only property is divided, but also debts - this concerns debts not only to banks, but also to other creditors. Some "resourceful" citizens are trying to use this for unjust enrichment. It is done this way: A brings to court a receipt from her sister (mother, friend, hairdresser) that this sister gave A such sum for a certain number (during the actual residence of A and B in marriage). The “creditor” himself also comes to the court and confirms: yes, that was the case, she gave a loan. On this basis, asserts A, B must return half of this amount to him.
Of course, the courts are familiar with this practice and, with an adequate level of investigation of the circumstances, should disclose such an abuse of right, but there are no guarantees on this point. So keep in mind this danger and be careful.
Learn how to appeal a court decision.
Stages and appeal procedures are standard. After the decision is made by the court of first instance, it is necessary to appeal it in case of disagreement within a month. After the passage of the second (appeal) instance, the decision is considered to have entered into force, so I agree, I do not agree, it must be implemented.
The execution of the decision, especially if the defendant himself is not in a hurry, must be provided by bailiffs, but for this you need to go to them with a court decision and a writ of execution. They will open enforcement proceedings and collect debts from the debtor in various ways: prohibition of going abroad, seizure of property and accounts, compulsory deductions from salaries and pensions (they can withhold up to fifty percent of monthly income) and so on.
At the same time, it is possible to appeal against the court decision. If it is subsequently changed, the respondent will be returned what he has transferred in pursuance of the previous decision. Also, the defendant may file an application with the bailiffs with a request to suspend the proceedings, since the decision is appealed in cassation.
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