Property division: everything you need to know before divorce

When the division of property occurs

You don't have to wait for a divorce to do this. It is also possible to divide property during marriage. Moreover, this does not always happen on the initiative of the spouses. If one of them is in debt to someone, then the creditor has the right to go to court with a demand for the allocation of the defaulter's share. In this case, the lender will return his money from the property of the debtor, and not his family.

The limitation period is three years from the moment when the person became aware of the violation of his rights.

Konstantin Kondalov Director of the law firm "Vector"

For example, in the event of a divorce, the spouses agreed not to share a three-room apartment at once, but to do it if necessary. Five years pass, the ex-husband marries, he has a child, and the question of living space arises. The ex-wife refuses to share the apartment. It is from this moment that the three-year limitation period begins.

How can property be divided without trial

There are two options: a prenuptial agreement and a property division agreement.

According to Konstantin Bobrov, director of the legal service of the United Center for Defense, their fundamental differences are as follows:

A marriage contract can be concluded both during marriage and before it. Property division agreement - during marriage, as well as after its dissolution. In this case, a marriage contract cannot be signed after marriage, and a division agreement cannot be signed before it.
The agreement applies only to the property of the spouses. In a prenuptial agreement, you can divide not only what is, but also what will appear.

One in a pair receives a salary of 20 thousand, and the other - 120. It is obvious that over the years of marriage, the contribution to the common boiler will be uneven. In this case, the spouses can agree in advance that in case of a possible divorce, the money will be divided in proportion to income.

Theoretically, everything can be solved in words, without any papers. But it’s better not to do that. An oral agreement will not be valid if one of the spouses changes his mind and decides to divide the property through the court.

And the marriage contract of the RF IC, article 41. The conclusion of the marriage contract, and the agreement of the RF IC, article 38. The division of the spouses' common property on the division of property must be notarized.

Konstantin Bobrov Director of the Legal Service "United Center for Defense"

If the spouses want all the acquired things to be shared in advance, then they need to choose a marriage contract. If there is an interest in the division of a specific property, then it is better to conclude an agreement.

The divorce agreement can be challenged in court, but the Supreme Court is inclined Determination No. 88-KG16-1 to the fact that the agreements must be respected. With a prenuptial agreement, everything is more complicated: if the court decides that the rights of one of the spouses are infringed, then the contract will be declared invalid. In this case, the property will be divided in half. Therefore, it is important that the conditions are fair.

How is the division of property going through the court

If the parties could not agree, the disputed issue will be decided by the court. By default, jointly acquired property (about what relates to it, below) is divided in half by the RF IC, article 39. Determination of shares in the division of the spouses' common property, if there was no marriage contract.

In some cases, the court may change the size of the shares in the interests of the children, or if one of the spouses did not earn anything without good reason, spent property to the detriment of the family's well-being.

In our practice, there was a case when the court changed the size of the shares, because the spouse was selling common property and spending money on the purchase of alcohol. This was recognized as an expense to the detriment of the family.

Konstantin Bobrov Director of the Legal Service "United Center for Defense"

Not always everything can be divided strictly in half.

If one of the spouses receives property worth more than the share due to him, he must pay the former partner compensation.

The husband received a car worth 500 thousand rubles, and his wife received an apartment for 1.5 million. The monetary shares are not equal, so the owner of the living space must pay her spouse 500 thousand. So in material terms, both will receive equally.

According to Konstantin Kondalov, an amicable agreement can be concluded in the trial on conditions acceptable to the parties. If you violate the approved terms of such an agreement, you do not need to file a claim again. Get a writ of execution and bring it to bailiffs for enforcement.

What property is divided

Common property includes:

The income of each of the spouses from labor, business and intellectual activities - salaries, fees, and so on.
Payments that do not have a special purpose - pensions, benefits.
Items purchased from general income.
Deposits, securities, shares contributed to commercial organizations.

And this is not the whole list. Exceptions are those that are not divided according to the law (more on this later).

By the way, not only property is distributed between spouses. According to the lawyer of the European Legal Service Olga Shirokova, the total debts are divided between the spouses in proportion to the shares awarded to them. But here it is necessary to prove that the spouse knew about the loan, and the money was spent on general needs.

What property is not divided

Not everything is considered joint property. By law, the RF IC remains yours, article 36. Property of each of the spouses:

Personal items like clothing and shoes. But this does not apply to luxury goods and jewelry. If in marriage you acquired cufflinks with diamonds or a sable fur coat, you will have to share.
The right to the result of intellectual activity created by you.
Maternal capital.
Property that belonged to you prior to marriage. If you bought an apartment or those same diamond cufflinks before meeting with your spouse, then you won't have to share them. But the time of their appearance must be proved. In the case of an apartment, a sales contract will help you out. Cufflinks are more difficult - keep receipts or look for witnesses.
Items received during marriage as a gift, by inheritance or as a result of other gratuitous transactions.

Olga Shirokova is a lawyer of the European Legal Service

The court may recognize personal property as joint property if, due to the common property of the spouses or their labor, its condition has improved and it has become much more expensive.

The materiality of your contribution will need to be proven. Checks, account statements, eyewitness statements, photographs showing the changes, a sales contract with an initial price tag, and up-to-date results of the property's appraisal will do - everything that allows you to confirm your case.

One of the spouses had a grandmother's rickety house in the village. During the marriage, through joint efforts, the couple turned it into a country cottage. Naturally, a lot of money was invested in it. In this case, the court may allocate to the second spouse a share in this property, which is considered personal, but not necessarily 50%, but in proportion to the initial value and confirmed expenses.

If you prove that you have not been running a joint household for a long time, although you are only getting divorced now, the property purchased during the period when the family did not actually exist will also remain yours.

In addition, the things of minor children are not subject to division. Clothes, shoes, toys, sports equipment, musical instruments go to the person with whom the child lives. The second spouse is not compensated for this.

Deposits in the name of children are also not divided - they are their property.

How to protect property from partition

It happens that not everything acquired in marriage, you want to share. For example, after the wedding, you sold your bachelor apartment in order to buy more housing with a small surcharge. In fact, the bulk of the money is earned before marriage and should not be distributed between the parties.

In such a case, there is a prenuptial agreement and an agreement on the division of property, which it is better to conclude in advance. When there is no offense, it is much easier to look at things fairly.

Another option is to store receipts and transfer money through easy-to-trace channels. So you can prove in court that you spent premarital money on the family apartment or the funds that your parents gave you.

How not to protect property from division

Let's leave aside the moral side of the issue. There are methods that will go badly for you in the first place:

Record the property to a third party. The owner will have full authority to dispose of it, so you can easily be left without everything. And if something happens to a third party, then the property will be inherited

Sell the property before partition. Such a deal is easy to challenge, since the jointly acquired property is sold with the consent of the second spouse - we are primarily talking about expensive things like an apartment or a car. As a result, the court will still take half of you if a good lawyer intervenes

Things to Remember

It is better to discuss the issue of the division of property in advance and sign the appropriate papers while peace reigns in the relationship.
If you are spending large premarital savings on family purchases, keep proof.
When it comes to court, look for a good lawyer to help restore justice. There are not many loopholes for unscrupulous spouses, and they are well known.
Loans will also have to be divided, so it is better to be aware of your spouse's debts. Collect evidence that he took out a loan without your consent and spent the money on himself.