How to file for division of property if there are no documents?

How do spouses divide property and debts in a divorce?

On November 29, an article about the division of unpaid family loans in a divorce appeared on Klerk, which caused a stir and discussion. Unfortunately, this is what often happens: that the drama of divorce is aggravated by disputes over property division. Even recently, close people are forced to have long disputes about material claims against each other.

Together with a partner in this issue, the Moscow Board of Lawyers “Kniazev and Partners”, we look at the most typical situations and disputes

Why is it sometimes difficult to divide jointly acquired property?

It is necessary to divide the problems into several stages. If the spouses have decided to divorce without division of property or its value (determined by the price of the claim), does not exceed fifty thousand rubles, and there is no dispute about the children, it is enough for them to apply to a justice of the peace in the location of the defendant for divorce.

If the spouses have decided to divide property (jointly with or without a divorce) and if there is a dispute about children, then it is necessary to submit the documents to the district court at the place of registration of the defendant.

Sometimes it is allowed to file a lawsuit at your place of residence. For example, if you have a minor child, or for health reasons it is difficult to travel to the place of residence of the second spouse. Also, this can be done, if at the same time with the claim for dissolution of marriage is a claim for the recovery of alimony.

But when submitting a claim only for division of immovable property (land, house, apartment), the claim is filed at the place of location of this immovable property (part 1 of art. 30 of the Civil Procedural Code). If several real estate objects are subject to division, territorially belonging to different courts, then the court at the location of one of the objects is chosen for filing a lawsuit.

The words court, division, article, divorce process sound intimidating. Is there any way to get around without court?

It is possible to get around without a court, if it is the good will of the spouses. In accordance with the Family Code (Article 19) provides that the dissolution of marriage may also be held in the registry office. But only in certain circumstances, which are clearly stated:

– At the mutual consent of the spouses, if both spouses agree to dissolve the marriage and do not have common minor children;

– At the initiative of one of the spouses, if the other spouse is recognized by a court as missing, legally incapable or convicted for committing a crime to imprisonment for a term exceeding three years. It does not matter, if the spouses have common minor children.

The list is far from exhaustive. Let’s go to court. What documents should be prepared? The case is very unpleasant, you do not want to go to court only because of the lack of the necessary papers.

To avoid unnecessary red tape, when going to court for a divorce spouses need to prepare the following documents:

  1. A statement of claim, which sets out the grounds for divorce, information about the relationship between the spouses, information about the children. When dividing property, it is also necessary to specify a list of property with information about it.
  2. Marriage certificate.
  3. Birth certificates of children.
  4. Power of Attorney (if a representative will represent you in court).
  5. Agreement on the procedure for exercising parental rights, on payment of alimony (if any).
  6. Documents for property subject to division.
  7. Documents, confirming the value of the property (if any).
  8. Receipt about payment of a state duty.

The statement of claim may submit directly to the court or by mail to the claimant or his legal representative.

And what documents are needed to determine the value of the property?

The most reliable way to determine the value of the property is an expert opinion. It can be ordered from specialized companies that have this authority. You can also do without experts, if the spouses are in solidarity in the valuation of the property to be divided.

At the same time, even at the stage of collecting documents for the court, it is important to make a list of marital property, as well as determine what property is to be transferred to each of the spouses.

If the marriage is long, the property and liabilities of the spouses have accumulated enough. Is it even possible to provide for everything?

1. Also take into account the common debts of the spouses and the right of claim for obligations arising in the interests of the family.

2. In the event that the court finds that one spouse has alienated common property or has spent it at his or her discretion against the will of the other spouse and not in the interests of the family, or has hidden property, then that property or its value is taken into account in dividing the property.

3. The value of the common property of the spouses subject to division, is determined as of the date of consideration of the case.

If one of the spouses is transferred property, the value of which exceeds the share due to him/her, the other spouse may be awarded appropriate monetary or other compensation.

Does the division of property have to take place immediately along with the divorce?

As the examples show, it doesn’t have to. A divorce can be before, during or after the property division. Moreover, if the property division is done before the divorce is recorded, new joint property, again acquired before the divorce, can also be divided at a later date.

It is important to remember that division of property claims are subject to a three-year statute of limitations. And here is an important nuance: this period of limitation requirements for the division of property of divorced spouses, should be calculated not from the date of termination of marriage (day of state registration of the marriage divorce Registry office or the entry into force of court decisions about the divorce), but from the date when the person knew or should have known about the violation of their right.

Is it possible to specify to whom, and what shares of joint property are due?

This procedure is strictly defined. According to Article 254 of the Civil Code of the RF the division of property is possible only after each of the participants has determined his share of the right to the common property.

As a general rule, the shares of the spouses are considered equal, but exceptions are possible. The court has the right to deviate from the principle of equality of shares of the spouses in their common property on the basis of the interests of minor children and (or) on the basis of a noteworthy interest of one of the spouses. In particular, in cases where the other spouse has not received income for unreasonable reasons or has spent the common property of the spouses to the detriment of the interests of the family.

Also, the noteworthy interests of one of the spouses should, in particular, be understood in cases where one of the spouses for health reasons or other circumstances beyond his or her control is unable to receive income from work.

The court is always obliged to indicate in its decision the reasons for departing from the principle of equality of shares of the spouses in their common property.

Are there any differences in the types of property in division (personal and gifted). How to prove what is common and what is personal?

  • The property belonging to the spouse before the marriage is the personal property of this spouse and is not subject to division (clause 1 of Article 36 of the Family Code);
  • the Property presented to the spouse, received as an inheritance or under other gratuitous transactions, is the personal property of this spouse and is not subject to division (clause 1 of Art. 36 of the Family Code);
  • the property of a spouse is the property acquired by that spouse during the marriage, but for the funds that belonged to him (her) personally;
  • children’s property is not only not subject to division between the spouses, but is transferred without compensation to the spouse with whom the children live (clause 5 of article 38 of the Family Code)
  • contributions made by the spouses at the expense of the common property in the name of their common minor children, are considered to belong to these children and not taken into account when dividing the common property of the spouses (paragraph 2 of clause 5 of article 38 of the Family Code).

And if one of the spouses did not work, for example, fully devoted himself to the home and child care?

The right to the common property of the spouses also belongs to the spouse, who during the marriage was engaged in housekeeping, child care or for other good reasons, did not have an independent income.

11. a frequent cause of disputes is the division of the apartment. What are the peculiarities of this process?

If we are talking about the privatization of the apartment during the marriage, but in the name of one of the spouses, such property is recognized as his property and is not subject to division.

This is explained by the fact that all persons registered in this residential premises at the time of privatization take part in privatization. If the spouse (or spouse) was registered in the disputed residential premises, the privatization is possible without her only in case of her written refusal. In this case she herself renounced her share of the premises. If she (he) was not registered in the premises at the time of privatization, she does not participate in the privatization and her waiver is not required.

And how to prove that the property is personal in general?

To prove that the property belongs to the general or personal can be done by all means of proof, which are enshrined in the law. There are many, let’s list some: the contract of donation of funds; statement of a bank account of the third party, according to which the third person (the donor) the day before the conclusion of the contract of donation of funds withdrew from his account a certain amount; bank statement, which confirms that the money paid for the property were on the account of the Respondent before the marriage registration with the Plaintiff; certificate of right to inheritance and other documents.

The testimony of witnesses and other legally admissible evidence should also be taken into account.

Property to divide, although unpleasant, but useful. But what about the debts of spouses?

For the obligations of a spouse recovery may only be applied to the property of that spouse (clause 3 of Article 256 of the Civil Code). If the property is not enough, the creditor may demand that the share of the debtor’s spouse that would have been due to the spouse-debtor under the matrimonial property distribution may be divided and seized (Article 255 of the RF Civil Code).

That is, it is important to understand that in the case of partition of property between spouses in the divorce debts of one of them shall not be distributed between the spouses.

However, if we are talking about common debts, in the case of partition of the common property they are distributed between the spouses in proportion to their awarded shares (clause 3 of Article 39 of the Family Code)

Accordingly, the value and amount of property allocated to each spouse in a divorce must be taken into account when allocating debts between them.

When the court considers a case for division of marital property and mortgage debt, the bank that issued the loan is involved as a third party in the case. The bank’s opinion is considered in court. It should also be taken into account that spouses have the right not to divide the debt, but, for example, to set off a larger share of the property of one of the spouses.

Thus, to divide debts incurred during the marriage by one spouse, it is necessary to prove that these debts are common, and division of property between spouses without taking into account such debts will lead to unfair distribution of benefits, violation of rights of one spouse and getting unreasonable benefits for the other.

What are some common “tricks” to get more out of an estate?

The property of each of the spouses may be recognized by the court as their joint property, if it is established that during the marriage at the expense of the common property of the spouses or the property of each of the spouses, or labor of one of the spouses were made investments that significantly increase the value of the property.

For example, one of the spouses received as an inheritance or under the contract of donation of a residential house, which is the property of this spouse and not taken into account in the case of partition of the common property of the spouses. However, if during the marriage the spouses at the expense of common funds made major repairs or reconstruction of a residential house, the court may recognize the house as common joint property of the spouses.

With whom do they leave most children and why, why not leave with one of the parents?

Under the law, both spouses have equal rights and responsibilities regarding the child, neither one has an advantage over the other. However, most often children are left with their mother. But if the parents have several children, the fate of each child will be decided individually.

If the child is 10 years old, the court will ask the child’s opinion about where he wants to live, which parent he prefers to stay with, which parent he loves more, and which relative (mother or father) he is more attached to.

However, there are exceptions – cases of severe illness, addiction or immoral lifestyle of the parent, when it is in the interest of the child to stay with the other parent. However, these circumstances must be proven so that the court would have grounds to find them convincing in order to rule in favor of one of the parents.

In addition, you can refer to the attachment of a parent and child to each other. It is often believed that the early father plays a lesser role for the child. Or point to the fact that the other parent is not interested in the life of the child, not caring for the child properly. There may be other circumstances that show that one parent can better handle these responsibilities.

Property division in a divorce: five main rules for an amicable separation

After the breakup of the family, former spouses, despite all the worries and emotions, have to deal with practical issues. The main problem is the division of property in a divorce .

Rule 1: Do not confuse your own with someone else’s.

In order to separate more or less peacefully, you need to take your own, without claiming someone else’s. So let’s figure out how to divide property after a divorce, which things and objects belong to both spouses, and what is personal property.

So, the law on divorce and division of property does not exist as a separate legal act. The Family Code regulates the division of property in a divorce, as well as other relationships between spouses. What is divided in a divorce?

Divide all property acquired during the marriage for compensation transactions, that is, securities, cash, movable and immovable property, etc.

Not divided property acquired outside the marriage, that is, personal, as well as those acquired through transactions without compensation. Non-gratuitous transactions include gifts, inheritance, and privatization.

“All of the property acquired during the marriage, acquired under compensated transactions, under the law can be divided, absolutely everything, down to the nail,” explainsAnton Paizansky, an expert at Azbuka Zhilya. – Even if the apartment was acquired before marriage, the spouses made repairs on the joint funds, consider that there is already a tiny fraction of the spouse, who seems to have had nothing to do with this property.

Oksana Ivanova, head of urban real estate NDV-Supermarket gives examples of situations where the property is not divided. For example, if the wife had a car, which was given to her by her mother during marriage, then after divorce in the division of property the car will remain with his wife. If the husband married with an apartment, the apartment will remain his property in case of divorce. If after marriage someone of the spouses has inherited real estate, the divorce process for the division of the inherited property, too, will not affect.

We should add that during a divorce personal belongings (for example, clothes, shoes, electric razor, hair dryer, etc.), tools and materials for professional activities are not divided. Also, “children’s” property, including bank accounts opened in the name of the children, is not divided.

Rule 2: Personal property sometimes becomes common property

The division of jointly acquired property in a divorce does not always fit neatly into the scheme discussed above. Sometimes an item or property can be considered common, even though it originally belonged to someone alone.

“For example, an apartment or house originally belonged to someone alone. But already during the marriage, the dwelling was remodeled, renovated, a floor added, etc. And all of this was done at the expense of the second spouse’s funds from the sale of it. As the value of the property has increased significantly, it may recognize the common property”, – says Tatiana Saksontseva, managing partner of the “MIEL-Network of real estate offices.

And the opposite happens – property that is formally considered common, in a divorce will not be divided equally, if one of the spouses will prove that invested in it personal funds.

“Let’s say a husband and wife jointly purchased an apartment for 6 million rubles. In it invested money – 5 million rubles, proceeds from the sale of the husband’s personal apartment, which he had before marriage. The division of property of spouses at divorce will occur taking into account it: only 1 million rubles is divided (probably, in the form of a share in the apartment), that is the total amount which was invested in purchase during marriage”, – tells Elena Mishchenko, the head of Northeast branch “NDV-Supermarket real estate”.

Rule 3. For the mortgage and debts are responsible for both

Dissolution of marriage and division of property these days is often complicated by the fact that the spouses have an outstanding mortgage. What to do? How do you divide a mortgage and an encumbered apartment?

“It is necessary to divide the mortgage in a fraternal manner,” advises Anton Paizansky. – Spouses are jointly and severally liable for obligations incurred during the marriage. They can agree on who will get the apartment and who will pay the credit. The main thing is not to miss any payments. If the payments on the loan stop, the bank can lay hands on the apartment and there will be nothing to divide.

Since marital status is an essential condition of the loan agreement, former spouses should inform the bank of their changed marital status, because there is a risk for the lender that payments after a divorce will not be as steady.

How do you handle property division in a divorce if the home has a mortgage?

There are several ways out of the situation, experts advise “NDV-Supermarket Real Estate”:

  1. sell the mortgage apartment, repay the loan, and divide the remaining money equally between the spouses;
  2. One spouse can give up his or her part of the apartment. If the parties have agreed that one spouse will pay his/her share of the mortgage and transfer the debt on the loan to himself/herself, then the spouses should apply to the bank with an appropriate application;
  3. The loan payment is divided between the ex-spouses, and the apartment also remains in common ownership. After paying off the loan you can sell or exchange the apartment. If the disagreements are not settled by negotiation, the case is settled in court.

Rule 4. The apartment after divorce should not turn into a communal apartment

If the spouses have only one apartment, then after divorce, some people have to divide rooms in the apartment. Sometimes the former husband and wife even divide personal accounts and allocate shares in kind, that is, in fact, turn the apartment into a communal apartment. Of course, this is not the best way to solve the problem.

“Often such an apartment turns into “a small branch of hell on earth,” says Anton Paizansky.-One way out – separation. If you need a loan, take it. If they don’t, take a smaller, farther away, in a lower class house. Money can be made, but health – no.

How to divide the real estate in a divorce, if the spouses have one room apartment and divide it in kind it is impossible?

Such situations often occur in life and in the housing market. Realtors advise to sell the apartment and divide the money. Then, for example, adding the credit funds, everyone can buy a separate house. Or one spouse can pay off the other its share, and the second will dispose of the funds on their own. As Taatiana Saxontseva reminds, a fairly common practice – the one owner who owns a larger part of the apartment, just gets a smaller share from the former spouse.

Of course, much harder divorce process and division of property, when the husband or wife simply refuses to sell the apartment or pay money for the share of the second party. However, for the stubborn, it can turn into problems – because part of one room can be sold to strangers at a discount, that is cheaper by about 25-30% than the average market.

“Perhaps someone will agree to buy such a share, for example, for registration with a hope to sell the whole apartment in the future and make money on it,” – warns Elena Mishchenko.

Rule 5. The marriage contract or agreement is better than the court

Many people think that a marriage contract can only be signed before the wedding, and do not do it out of superstition or in order not to spoil relations with a future husband or wife. And then there is the Russian mentality: “So you don’t trust me? This is wrong. First, a prenuptial agreement can be signed during marriage. Second, with this document, you will have less to worry about how to keep the property in a divorce.

“During the marriage, spouses can divide property by drafting an appropriate prenuptial agreement. It may provide for the distribution of property in shares, including not equal, for example, one spouse 9/10, and another 1/10, – says Elena Mishchenko. – Or even divide all the property into individual ownership, for example, a cottage and a car to one spouse, and an apartment to another.

According to the expert, on the basis of the marriage contract a corresponding registration record is made in the USRN. For example, the apartment was purchased during the marriage in the name of her husband. Subsequently, the spouses in the marriage contract defined that the apartment belongs only to his wife. In this case, it is necessary to submit an application to the Registry Office, attaching a marriage contract. The apartment will be re-registered into the personal property of the spouse.

The way of division of property after a divorce, depends largely on the ability of spouses to negotiate. Experts advise to solve all problems peacefully, not to bring to court, because the services of divorce lawyers is quite expensive.

Many are interested in the question, whether you can claim the property after a divorce? Yes, it is possible. Signed an agreement on the division of jointly acquired property, with its help, everything can be divided. If you fail to agree amicably, that is, did not make an amicable agreement, the spouses will have to resolve the issue through the courts, and the consideration of the case will be held at the location of the defendant.

Keep in mind – the court will divide everything acquired during the marriage equally, regardless of the fact that one spouse worked and the other did not (for example, took care of a small child or simply could not find a suitable job for several years).

“If there is no prenuptial agreement or property division agreement, everything will be divided equally in a divorce – both passive and active. Responsibility in case of non-payment of the loan the spouses have the same – the debts in the divorce will also be divided in half”, – reminds Tatiana Saxontseva.

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