The most popular issue in divorce is the division of property jointly acquired in marriage.
As a general rule, the common property of the spouses should be divided, as in a children's song: "… half, half, half, lam, lam."
If the topic of property division is relevant for you now, I advise you not to waste time, be aware of your rights and do not procrastinate with the issue of property division.
Very often I hear a question from clients: "And when is it better to divide the property?", "It is better to divorce first, and then divide the property?", "You can divide the property and not dissolve the marriage?" I will share with you the answers and my own experience of solving these painful questions.
The common property of the spouses can be divided:
- In the process of its termination
- After divorce (statute of limitations 3 years, more in my article)
Keep in mind that divorce does not lead to division of property. Everything you have gained together during the marriage must be shared correctly and faster. Otherwise, you can sell such property only with the consent of the spouse, which creates additional inconvenience.
A lawyer will help divide the property
How can the property be divided?
- Agree - spouses can agree to whom and what property goes. For example, the wife has an apartment, and the husband has a garage and a car. Or spouses ½ apartments and ½ land. This can be recorded in writing in:
a) a contract for the division of property or
b) marriage contract.
Next - to the notary.
If no agreement is reached on the division of property, the property will have to be divided in court.
- Section through the court - if there is a dispute between the spouses regarding the size of their shares, the court determines the size of your share in the common property, as well as the division of property in accordance with the established share.
At section the court applies a rule: the shares of the property of the wife and husband are equal. That is, all property is divided equally, but there are exceptions.
You can prove it in courtthat you are entitled to a large share in the common property, and the share of the second spouse must be reduced:
The court may reduce the share of one of the spouses, if one of them did not take care of the material support of the family, hid, destroyed or damaged the common property, spent it to the detriment of the interests of the family. This list is not exhaustive.
For example, if your husband is constantly drinking and he has tried to start a fire in a shared apartment with the slogan: "You do not get to anyone", then when dividing the property, his behavior can be taken into account by the court and you can sue most of the apartment.
The court may increase the share in the right to property of the spouse with whom the children live, provided that the amount of alimony they receive is insufficient to ensure their physical, spiritual development and treatment.
How to determine if the property is shared? The legislation determines that such property: 1) is acquired after the registration of marriage and 2) for the common funds of the spouses.
For example, if one of the spouses had personal savings before the marriage and bought a car after the marriage, then in case of a dispute he can recognize it as personal property.
In addition, during the division of the property of the spouses it is necessary to determine what belongs to each of the spouses personally. After all, such property is not divisible.
The property, which is the personal property of the wife, the husband includes:
- Property acquired before marriage
- Donated or inherited property
- Property acquired during the marriage, but for personal funds
- Housing acquired during the marriage due to its privatization
- Land acquired during the marriage as a result of land privatization
Conversely, property that belonged to one of the spouses may be classified as joint property entered into by the agreement at the time of registration of the marriage or recognized by the court on the grounds that during the marriage its value increased significantly as a result of labor or financial expenses of the other spouse. For example, an apartment was renovated that was purchased before marriage.
The personal property of the wife and husband also includes:
- Items for individual use (including jewelry)
- Prizes, awards;
- Funds received as compensation;
- Sum insured.
So, there are general rules of division of property and many exceptions from them. And it is better to entrust such case to the family lawyer who will help to receive the decision in your favor.
The most popular questions during the division of property:
Is it possible to divide property if a man and a woman were in a civil marriage, that is, lived in the same family without registration of marriage?
The residence of a man and a woman in one family without registration of marriage is the basis for the emergence of the right of joint joint ownership of property.
Recognition of property as common joint property occurs by establishing the fact of living with one family in court.
Their jointly acquired property is joint property and the question of division of property is completely equated to division of property of spouses. It is important that the man and woman who lived together were not in another marriage and ran a household. Of course, this is a complex process of proof and it is better to entrust such a case on the division of property to an experienced lawyer.
What to do if the property is re-registered to other relatives or donated without the consent of one of the spouses?
As a general rule, the disposal of property that is common joint property is carried out by the co-owners only by mutual consent.
If there is no consent of one of the co-owners to dispose of real estate, then such an agreement can be declared invalid in court.
Thus, the case law shows that the consent to the disposal of real estate must be a notarized co-owner. This conclusion was reached in the decision of the Grand Chamber of the Supreme Court of 21.11.2019 in case №372 / 504/17-s.
In the framework of this article, only certain issues of the division of the common property of the spouses are considered. Of course, a comprehensive study of all the circumstances of a particular case is required, and only then can specific conclusions be drawn and the appropriate legal position chosen.
It is best to entrust the representation of interests on such an important issue as the division of property to a lawyer. This will save your time and nerves. A lawyer can gather evidence, prepare and file a lawsuit, request the seizure of property. It is not necessary to risk and conduct business on division of property independently. The slightest mistake can leave one of the spouses without property.