Divorce and division of jointly acquired property. How it goes and where to start the division of property in court

Tens of thousands of marriages are registered in Russia every year. Unfortunately, many couples officially end their relationship through divorce.

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If you need to figure out how to file a divorce with the division of property in 2020, then this procedure is possible, both on the basis of the mutual consent of the spouses, and through litigation at the initiative of one of the members of the couple.

The divorce procedure itself can be carried out in two ways:

The first way is possible when the decision to divorce is mutual. In such a situation, the spouses submit a joint application to the registry office, after which they receive a certificate of divorce.

In situations where one of the spouses does not agree to a divorce, the other has the right to apply to the court for recognition of the marriage as invalid.

The division of property that accompanies any divorce procedure, regardless of the method, can be carried out both on the basis of a mutual agreement between the parties, and through the courts.

Right to apply statement of claim with the requirement for the division of property is assigned to both spouses.

The legislative framework

Divorce with the subsequent division of joint property is regulated by the following legislative documents:

• Code of Civil Procedure of the Russian Federation (Civil Procedure Code);
• RF IC (Family Code).

The first document regulates the procedures for divorce and division of property, both in court and on the basis of an agreement between spouses.

The Family Code regulates the property rights of spouses in a situation where a marriage contract has not been concluded between them.

How to start a divorce with the division of property?

The divorce procedure with the division of property should begin with a search for a possible compromise between the parties.

If the decision to break off relations is mutual, and the spouses agree to come to a general agreement on the division of property, then you can do without litigation by concluding a mutual agreement.

When a compromise is not possible, one of the spouses can file a lawsuit.

Jointly acquired

By law, each spouse owns an equal share of the jointly acquired property. At the same time, if the spouses have children, then most of the property can be transferred to the spouse, who will continue to live with the children.

The following are considered joint property:

• All items;
• real estate objects;
• vehicles;
• financial assets;
• family businesses acquired at the expense of the family budget, that is, during the period of marriage.

What is shared and not shared?

All property that was acquired by the spouses during marriage and was family property is divided between them during the divorce procedure, with the exception of such things:

• property that one of the spouses received as an inheritance;
• property acquired by one of the spouses prior to the registration of the marriage;
• things bought for common children, as well as those in their use.

If there is a division of real estate between spouses, then each party can be assigned ownership of a part of the object.

If the spouses do not plan to live together, then it is possible both to sell the object for the division of funds, and to buy out one of the parties' share of the opposite.

Quite often, before registering a marriage, spouses draw up a marriage contract, which regulates the property rights of the parties in the event of a divorce.

In the presence of a marriage contract, property rights may be regulated not by domestic legislation, but directly by the clauses of the drawn up contract.

How to file a claim for the division of hereditary property? Look here.

Credits

Obligations to repay loans assigned to one of the spouses may either be subject to division upon divorce or be retained by one party.

If the second spouse of the loan acts as a guarantor, and the funds were taken for family needs, then both parties pay the loan.

However, credit card debt and other consumer loans remain with the party that issued the loan.

The division of credit obligations is possible only in a situation where the debt for the purchase of property subject to division is repaid.

How to arrange?

Divorce is filed through the registry office. To do this, the spouses submit a joint application, after which they receive a certificate of divorce.

You can even apply for a divorce via the Internet using the State Services website.

After receiving a divorce certificate, an agreement is concluded between the people who were married on the division of property.

If the spouses do not know how to properly file a divorce with the division of property, where to start the procedure, then it is best to contact the registry office.

Conclusion of an agreement

The division of property on the basis of an agreement between the spouses is possible only in a situation where both parties find a compromise on the procedure for the division of jointly acquired property.

In such a situation, the parties simply agree among themselves on who receives what part of the property, after which the agreement is documented.

An agreement on the division of property is an official document, where:

• a description of all joint property is indicated;
• shares are registered, which become the property of each party.

The agreement is drawn up at the notary, and the spouses put their signatures on it.

It is impossible to challenge this agreement if it does not violate the legitimate rights and interests of one of the parties.

The conclusion of an agreement is the most common form of division of property. In such a situation, there is no need to pay a state fee for the trial, and the basis for the division of property is the mutual consent of the parties.

A sample agreement on the division of property between spouses is here.

Judicially

When people fail to find a compromise solution on the procedure for dividing joint property, then this issue can be resolved through the courts. Both spouses can file a claim.

The division of joint property may occur along with the divorce procedure. Also, spouses can carry out the division after the dissolution of the marriage.

Required documents

To file a lawsuit, you will need the following documents:

• two samples of the statement of claim;
• certificate confirming the conclusion or dissolution of marriage;
• property rights documents;
• results of expert appraisal of property value;
• document on payment of state duty;
• other documents constituting the evidence base.

The statement of claim, as well as other documents, must be submitted to the court in two copies. The first copy is used by the court to familiarize itself with the case, and the second is sent to the defendant.

Claim Form

The resolution of the dispute in court is possible only in a situation where one of the parties submits a statement of claim with requirements to the other party to the dispute.

This application can be submitted by one of the spouses. It states:

• a detailed list of joint property;
• claims against the defendant, who has the right to file a counterclaim with an indication of his own claims.

Compilation of the statement of claim must be carried out in accordance with strictly established rules.

Studying samples or using the services of qualified lawyers will help to draw up an application correctly.

Click here for a sample application for division of property.

The court's decision

In situations where the claims have legal grounds, the claim will be approved. At the same time, the court, as a rule, simply divides the property in equal parts between the parties without regard to their interests.

In situations where the process of division of property affects the interests of children, they are also taken into account by the court.

Can I sue for division of marital property? Information here.

What is the time limit for the division of jointly acquired property? Details in this article.

Is it possible to divide after divorce?

Cases related to the property of the spouses after a divorce have a fairly long limitation period, during which the case can be considered in court, it is 3 years.

After filing a divorce, the spouses have three years to find a compromise, as well as prepare for a court hearing.

If claims are made after the statute of limitations, they may be grounds for dismissing the claim.

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Usually, after the spouses decide to divorce, they immediately begin to share everything that was bought during the marriage. And here they often face problems. They cannot figure out where is personal property, where is joint property, what should be done for division in the first place, and what should not be done under any circumstances, how to draw up a statement of claim, what documents are needed for division. Questions grow like a snowball.

The main factors affecting the division of property

At present, when divorce and division of property have long become commonplace, lawyers have developed certain algorithms for actions in various circumstances that simplify this procedure. The division of jointly acquired property in a divorce depends on a number of factors:

• mutual consent or vice versa, disagreement of one of the spouses for divorce and division;
• conditions of the marriage contract (if any);
• minor children;
• the procedure for acquiring property;
• some other conditions.

In case of simultaneous divorce and division of property:

1. The divorce process can drag on indefinitely - this is a minus.
2. Former spouses will not have time to hide or sell part of the joint property in order to hide from the division - this is a plus.
3. Both processes take place in parallel, so the costs of lawyers and other legal costs are reduced - this is a plus.

When dividing property after the completion of the divorce proceedings:

1. You can safely start collecting documents and preparing for the partition procedure - this is a plus.
2. It is important not to miss the statute of limitations - this is a minus.
3. Some unscrupulous spouses try (and sometimes they succeed) to sell (sell, donate) part of the joint property in order not to divide it, as a result, the second spouse remains deprived - this is a minus.

How property is divided in a divorce

But there are a number of circumstances in which the court departs from the equality of shares and determines the share of one of the spouses more than the share of the other. Such an unequal division is possible in cases where:

• minor children remain with one of the spouses, and his financial situation leaves much to be desired, in which case his share may be larger;
• one of the spouses led an immoral lifestyle, spent joint funds to satisfy their unseemly needs (drank or lost money, spent it on drugs), in which case the court may reduce his share.

The legislation defines two main ways of dividing joint property, depending on which legal regime they choose, these are:

1. Legal regime for the division of joint property.
2. contract mode.

Let's consider each of them.

Legal Partition Mode. It is based on the legislative definition of the equality of the parties, in which all joint property must be divided equally, except for the personal property of each of them.

contract mode. It involves the conclusion of a marriage contract or a voluntary agreement on the division of joint property. Both in the first and in the second document, the spouses can deviate from the equality of the parties and determine what property and to what extent will go after the dissolution of the marriage to one or another spouse.

What property is divisible, what property is not subject to division

Often, when dividing joint property, the spouses do not know what property can be divided and what cannot be divided and make mistakes.

What is shared

If you look at the judicial practice, it becomes clear that most often expensive property is divided:

• real estate;
• vehicles;
• luxuries;
• antiques.

What can't be shared

The legislation determines that all personal property of the spouses is not subject to division. What can be considered as personal property? This:

• all property acquired by each of the spouses before marriage;
• real estate, vehicles, other types of property purchased in marriage, but personal funds husband and wife;
• property received by one of the spouses as a gift or inherited;
• personal belongings of each, with the exception of expensive ones, for example, antique jewelry;
• property bought for children, such as a computer bought for a child's practice or an expensive musical instrument bought for a child's practice.

How to start a divorce with the division of property

To begin with, consider when is the best time to start the process of divorce and separation.

When to Start Divorce and Partition

As practice shows, as soon as the spouses realized that living together becomes impossible, you need to start the process of divorce and a parallel division of joint property. The sooner you start the divorce process and division, the more likely you are to save and receive the property that is due to you later.

The second reason why you should not delay the partition is that things, real estate or a vehicle wear out, age, and therefore lose value.

The third reason is the statute of limitations. Of course, the legislation gives a certain time period for filing a claim for division (three years), but situations are different, you can miss this period, then the division will not be possible.

How to start a divorce with a section

The process of divorce and separation begins, of course, with the official dissolution of the marriage. You can get divorced in three ways:

1. At the registry office. Divorce is possible if the couple has no children, or they are already adults. The application is submitted to the department where the couple registered the marriage or at the place of residence of any of the spouses.
2. In the world court. Divorce is possible if there are no disputes about the place of residence of the children after the divorce, and the disputed property costs no more than fifty thousand rubles.
3. In the district court. The court will not only dissolve the marriage, but also decide with which parent the children will remain, and if a parallel lawsuit is filed on the division of joint property, it will also divide the property.

How to start a divorce in court

First you need to collect all the documents and evidence. You will need receipts, checks for goods, contracts of sale. At this stage, the main task is to collect all evidence of your contribution to the acquisition of the disputed property.

There are several nuances associated with the partition procedure:

1. All property purchased by a married couple after marriage and before the actual termination of marital relations is considered joint property. If the spouses separated long before the application for divorce was filed, and during this time one of them acquired an expensive property, then he must prove that they did not live together during the period of its acquisition and the purchase was made with personal funds.
2. If the wife did not work during the period of marriage, ran the household and took care of the children, she does not lose the right to half of the joint property. An exception to this rule may be evidence that she led an asocial lifestyle, did not take care of children, or spent joint funds on her own needs to the detriment of her family.
3. Those things that only one of the spouses used cannot be attributed to joint ownership.
4. Gifts that were intended separately for a husband or wife, even those received during the marriage, are considered personal property.

Conclusion of a voluntary agreement

A voluntary agreement is the most civilized way to divide if a marriage contract has not been concluded. It is possible only if the spouses have retained the ability to negotiate and find compromises. Spouses simply agree on the division: to whom what part of the property goes. After consensus is reached, they visit a notary's office, where they sign the relevant document, which is then certified by a notary.

The document is drawn up in free form, but there are items that must be completed, namely:

• a detailed list and description of each item of all divisible property;
• how it is supposed to divide the joint property (by shares, or some items of property are transferred to the husband, others to the wife).

Sample agreement on the division of property

How to file for divorce and division of property

So, to agree on the division did not work and the trial is inevitable. Required documents and the evidence is collected, it remains:

• draw up a claim;
• pay the fee;
• file a claim;
• take part in the trial.

Statement of claim

The document must be drawn up in accordance with all requirements, the application must be written legally correctly and must not contain grammatical errors.

The claim must contain the following information:

1. Name and details of the court to which the claim is filed (with obligatory observance of jurisdiction).
2. Personal data about the parties to the process.
3. The price of the claim.
4. Information about the place and date of marriage.
5. Data on all minor children or other incapacitated family members.
6. A list of all the objects that the plaintiff asks to share with an indication of their value and a description of each of them.
7. Plaintiff's claims. In this paragraph, the plaintiff describes what property and how he asks to be divided.
8. List of attached documents.
9. Signature and date.

1. Copies of the statement of claim according to the number of participants in the process.
2. Copies of the parties' passports and birth certificates of minor children.
3. Marriage document.
4. All title documents for joint property.
5. Receipt for payment of state duty.
6. Other documents that can help win the process.

Claim Form

State duty

When filing a statement of claim, the plaintiff is obliged to pay a state fee, the amount of which depends on the value of the claim. The state duty is calculated independently in accordance with Table 1.

Table 1. Calculation of the amount of state duty depending on the price of the claim

How to seize property in a divorce

If the plaintiff has fears that his opponent will dispose of the joint property in his favor even before the division, he may apply to the court for the arrest of the joint property. such a step is necessary for the implementation of an interim measure to preserve the disputed property.

The petition is declared either when filing a statement of claim, or already in the trial. If the court considers the grounds for the seizure of property essential and there are conditions for the seizure, the court will satisfy the request of the plaintiff.

Arbitrage practice

Judicial practice has enough examples various options judicial division of joint property. Below is one such example.

circumstances of the case. Kirill O. bought an apartment before marriage. Immediately after the wedding, his wife Natalya O. decided to renovate the living quarters, purchased the necessary building materials from her own funds and hired a construction team. In addition to personal funds, joint money earned by a married couple during the marriage was also spent on repairs, but the joint contribution was small. Two years later, the couple divorced, and Kmirill issued a donation for an apartment for his brother.

Plaintiff's claims. Since Kirill did not recognize Natalya's right to housing, she was forced to file a lawsuit in court demanding:

1. Recognize the premises as jointly acquired. Natalya motivated this demand by the fact that thanks to her efforts the apartment was significantly improved and its price increased.
2. Recognize her right to own half of the dwelling.
3. To invalidate the donation agreement of the apartment, as it was concluded in order to hide the property from the division.

Natalya attached receipts, checks and budget documents to the claim, as well as bank statements, which confirmed the materiality of her expenses.

Cyril took the opposite position and did not agree with any of Natalia's demands. At the trial, he stated that the dwelling was his personal property, as it was bought before marriage. He also stated that he did not consider the improvement of the apartment to be significant, especially since his funds were also spent on repairs. As for the gift, he has the right to dispose of his property as he wants.

The court appointed an independent examination, which concluded that the cost of the dwelling after the reconstruction was increased, but not significantly.

Kirill could not prove that he spent personal funds on repairs, but Natalya was able to provide all the evidence of her expenses.

The court's decision. Having considered all the materials of the case, the court ruled:

1. The property cannot be recognized as jointly acquired, since the defendant acquired it before marriage.
2. The court refuses to recognize the plaintiff's ownership of half of the dwelling.
3. The court refuses to recognize the donation agreement as invalid.
4. The defendant is obliged to reimburse the plaintiff for the funds spent on the repair of the dwelling.

Where to start the divorce process and the division of property, what steps to take first, what steps to wait - these are just a small part of the questions asked by couples who decide to divorce.

The solution of family disputes often depends on the knowledge of all legislative nuances and the ability to convey one's position to the court. An ordinary citizen, inexperienced in jurisprudence, is unlikely to be able to comply with all the rules and regulations, he will need legal support both at the stage of preparing a lawsuit and at a court session.

If you are not confident in your abilities and doubt that you can win the litigation on your own, contact a competent lawyer, entrust the process to professionals.

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Everything you need to know about the division of property in a divorce. Jurisdiction of the case and paperwork

In a divorce, the former spouses share the jointly acquired property. The partition procedure can go peacefully, but sometimes you have to go to court.

In this case, the case can drag on for up to 1.5 years, so it makes sense to draw up a prenuptial agreement in advance or limit yourself to an agreement on the division of property between spouses.

Dear readers! Our articles talk about typical ways to resolve legal issues, but each case is unique.

Is it possible to divide jointly acquired property before, during and after the dissolution of the union?

The division of common property is regulated by Art. 28 RF IC. Husband and wife can discuss the division procedure in advance - in the marriage contract. This agreement is drawn up before marriage or at any time after the registration of the relationship. After the divorce, the parties distribute the assets as agreed in advance.

If there is no marriage contract, then what was purchased during marriage is divided in half according to the requirements of family law (except for things and bank deposits of common children).

If there are disputes, you will have to go to court. within three years after the divorce (we wrote about the limitation period here). In this case, everything is divided by a court decision or an amicable agreement between the plaintiff and the defendant.

The division of common property can also be made during the marriage at the request of one of the spouses or a creditor, for example, in case of bankruptcy.

Read more about what is and is not subject to division here.

Ways to do it

There are two ways to divide family assets, which can be conditionally called voluntary and compulsory.

In the first case, a division agreement is drawn up (if a marriage contract has not been drawn up). The spouses discuss all the controversial points about who and what will belong after the termination of family relations, and reach a mutually beneficial compromise.

In the second, property issues are dealt with by the court, where one of the parties applies with a claim for the division of jointly acquired property. The court determines:

• what property is to be transferred and to which of the spouses;
• whether monetary compensation is required and whether any assets purchased during the period of separation can be recognized as personal and not subject to division.

The court also decides on the issue of derogation from general rule equality of shares (if the money was spent by one of the spouses on drugs, casino games, etc.). How the shares of spouses are determined is described in this material.

Registration of the agreement

How to properly file a divorce between spouses, in the presence of disputes? The common property of the spouses can be divided according to a notarized agreement. The document is drawn up during the marriage or at its end.

The agreement lists in separate lists which property is transferred to the personal property of the husband, and which - to the wife. From the moment the agreement is concluded and executed, these assets can no longer be the subject of a dispute. The parties put signatures stating that they have no claims against each other.

You can share everything or only part of what you have acquired, in equal or unequal parts. It is also allowed to combine methods of division (example: transfer a car to personal ownership, and an apartment to a common share). For other property purchased after the signing of this document, the legal regime for spouses usually applies (everything purchased during marriage is divided in half).

In addition, an agreement can be drawn up on the determination of shares in the right (for an apartment, business, land, etc.).

Which spouse should go to court?

To compile it, it is necessary to study the requirements of the Code of Civil Procedure of the Russian Federation and determine the composition, cost and desired division order.

How it happens: procedure algorithm through a public authority

An application to the court for partition can be filed before the divorce, at the same time as the divorce claim, or after receiving a certificate of divorce. There is a three-year statute of limitations for such cases.

Property can be divided before and after the official dissolution of family relations. If the issue is resolved during the divorce, then the claim of one of the parties is treated as a regular property dispute relating to common property.

If a statement of claim is filed for divorce in court and simultaneous division, then the issue of divorce is first resolved, and then a property dispute.

After the divorce, the former spouses can each dispose of their share. If there are disagreements regarding common property, then the issue is resolved in court by filing a civil lawsuit.

In court, it is possible to determine the shares of a husband and wife in common property, as well as determine what property should be transferred to each of the parties.

What to include in the application?

A separate claim for division is drawn up in accordance with Art. 131 Code of Civil Procedure of the Russian Federation. The document indicates the contacts of the plaintiff and the defendant, the dates of marriage and divorce (if there has already been a divorce), the presence of children and common property.

The price of the claim is determined independently, based on the value of the jointly acquired property. At the conclusion of the application, the plaintiff usually asks to recognize his ownership of specific assets and recover legal costs from the defendant.

Jurisdiction of the claim

Where is the claim filed? To the district court at the place of residence of the defendant or to the justice of the peace (if the amount of the claim is up to 50 thousand rubles).

Do I need to pay stamp duty?

If the price of the claim is up to 100 thousand rubles, then the state duty will be 3.2 thousand rubles + 2% of the amount that exceeds this limit.

If the issue of an apartment or other expensive property worth more than 1 million rubles is being resolved, you will have to pay 13.2 thousand rubles + 0.5% of the amount that exceeds a million (but not more than 60 thousand rubles).

How long is the case being considered?

Usually the case in court is considered from 1 month to 1.5 years depending on the complexity of the case.

The procedure for dissolution of marriage in property disputes

What is the procedure for dividing property in a divorce? If it is decided to file one claim for divorce and at the same time for the division of property, then it is necessary to carefully prepare for the process. The claimant needs:

1. Evaluate everything jointly acquired (independently or with the involvement of an appraiser).
2. Identify disputed assets and try to reach a compromise with the spouse on the division.
3. If it was not possible to reach an agreement, then draw up the text of the statement of claim (on your own or by contacting a law office).
4. Pay a double state fee (for divorce and for partition) and file a lawsuit.
5. Participate in the scheduled court session, present evidence, argue your position.
6. Get a court decision on the dissolution of marriage and the division of jointly acquired property.

The verdict of the court may be appealed by the other party on appeal or cassation. If the appeal is not filed, then the documents are transferred to the executive service. Further the defendant is given a time limit for voluntary compliance court decisions, and if this does not help, then there is a forced partition of assets.

Where to send documents?

The lawsuit is filed with the district court or with the judicial district of the justice of the peace at the place of residence of the defendant (if the amount of the claim is up to 50 thousand rubles).

How to compose them?

The claim for divorce with simultaneous division of property consists of two parts. First, the plaintiff needs to convince the court of the need to dissolve the marriage, and then retell the reasons for the property disputes. Be sure to indicate the reason for the breakup of the family(did not agree on the characters, alcohol abuse of one of the spouses, etc.).

Then everything jointly acquired is listed and a request is made: to dissolve the marriage, and then recognize the claimant's ownership of specific assets.

Existing assets (real estate, furniture, cars, etc.) must be listed in a list, stating what the dispute is about.

List of additional papers

Attached to the application:

• a copy for the defendant;
• receipt of payment of state duty;
• a copy of the certificate of marriage, divorce (if any);
• copies of title documents on jointly acquired property (extract from the USRN, sales and purchase agreements, bank deposit agreements, etc.);
• motions for arrest, demand for evidence;
• power of attorney for a representative;
• claim costing.

What needs to be paid?

When filing a lawsuit, the state duty is paid both for the very fact of divorce and for the division. In other words, two receipts must be attached. For the first one you will have to pay 650 rubles, and for the second - an amount that depends on the price of the claim (but not less than 400 rubles). The amount of the fee must be calculated by the applicant himself. You can apply for a deferred payment of state duty.

How long does the process take?

The case can be considered from several months by a justice of the peace to 1.5 years in a district court. It all depends on the number of disputed assets and other nuances.

The division of jointly acquired property can be made at the same time as filing a lawsuit, or before or after a divorce. Usually, everything acquired jointly is divided in half, but there are exceptions if the spouses have not lived together for a long period of time.

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Any divorce involves the division of property acquired by the spouses during the marriage. This process is simply inevitable. Another question is how the divorcing spouses will approach the division of jointly acquired property after a divorce: will they divide everything equally, honestly, or leave it as it is.

This is for me, this is for you

Before deciding the fate of common property, the spouses need to try to agree and determine who and what will get after the divorce. And for this you need to remember when, in time, under what circumstances, and by which particular spouse the property was acquired. Whether they have debts or credit obligations that arose after marriage.

Article 34 Family Code The Russian Federation states that all property that the spouses acquired during the marriage will be considered their joint property. This is the income from labor activity, and cash deposits, and securities, and shares in a business, as well as all material assets, from apartments and cars to plates and spoons. It does not matter in whose name they are issued, they will be considered general. Even if one of the spouses did not work constantly and did not have his own personal income.

Spouses also need to take into account what property is not subject to division upon divorce, and even if acquired in marriage, according to Article 36 of the Family Law, will remain the property of one of them:

• received under a donation agreement,
• inherited (read more about how Is inheritance divided in divorce? read ),
• items for personal use (clothes, shoes, hygiene products..), excluding jewelry and luxury items,
• the result of individual intellectual labor.

Personal belongings acquired to meet the needs and necessary needs of minor children are given to the parent with whom the children will live.

Everything else (both property and debts) is divided by the spouses voluntarily or involuntarily. With a voluntary division, the spouses themselves decide how to divide the property during a divorce. In most cases, they conclude, in which they indicate which things will remain for which of them. Compulsory division occurs in the case of a property dispute in court. It is the judge who will decide what property after the divorce will go to the wife, and what will go to the husband.

If the marriage bonds of the spouses are no longer tied, then it is rarely necessary to talk about caring for each other, more often each of them tries to act in their own interests and get a larger share after the division.

When dividing jointly acquired property after a divorce, spouses often fall into two tricks:

• remove the disputed property from the "joint ownership regime", proving to the court that they do not have common things, and never had, or they were sold, stolen, bought before marriage,
• they try to reduce the share of common property of one spouse, referring to cohabitation with a child, to common debts that only one pays, underestimate the value of common property and overestimate the price of other things.

Agreement on the division of property

Spouses who managed to agree even before the divorce on who and what from the jointly acquired property can conclude an agreement on the division of property. This document is like a marriage contract. Only the latter is drawn up by the spouses before marriage or during the period of their cohabitation, and the need to conclude an agreement arises when the spouses are about to get divorced, are in the process of divorce or have already dissolved the marriage.

In the agreement, the spouses must indicate what specific things, real estate and money, which of them will get. Sometimes one of the spouses refuses his share in favor of the other or agrees to a smaller part. Do not forget about debt obligations and indicate whether both spouses or one of them will pay off the debt. The agreement can take into account even such difficult moments as section of a mortgage apartment during a divorce - read about this in the article

The main feature of the agreement is that each spouse must agree with the procedure for the division of property upon divorce specified in it.

If the spouse took and disposed of the property without obtaining the consent of the second spouse, then such a transaction can be declared invalid.

An agreement on the division of property is drawn up by the spouses in any form and signed by both.

It is advisable to use the services of competent lawyers when drawing up this document, after all, the issue of division of property during a divorce is very complex and ambiguous.

The agreement will receive exclusive legal force only after it has been certified by a notary.

The judge, having familiarized himself with such a document, which came to him in the process of divorce or when contested by one of the spouses, will necessarily take into account the interests of the parties and common children (if any), and, having discovered any violations, has the right to cancel it.

How is the division of property in a divorce in court

The division of property through the court can be made after the filing of an appropriate statement of claim. You can submit it:

• along with the divorce petition,
• during the divorce proceedings,
• after divorce.

It is necessary to take into account when filing an application-claim for the division of property after a divorce, the statute of limitations. After registering the dissolution of marriage, the spouses have only three years, during which they have the opportunity to file a claim for the division of common property. Then the limitation period expires, and the court simply will not accept such a statement from them.

Disputes about the division of property are resolved by a justice of the peace, if the value of the claim is not more than 50,000 rubles. In other cases, it will be considered by a court of general jurisdiction (city or district) at the place of residence of the defendant or the location of the disputed property.

According to the judicial practice that has developed over the years, the division of property during a divorce occurs in equal shares between the spouses. A rare judge will go into details of the financial difficulties or needs of the spouses, in most cases, he, according to the law, will divide the jointly acquired property in half. If this is not possible, then the spouse who received a larger share will have to pay compensation to the second.

Do you know that

The right to joint property is not determined by the person to whom the property is registered and acquired. If the spouse (s), for good reasons (housekeeping, childcare, etc.), had no income, then he can also claim joint property.

All the property indicated by the plaintiff and the defendant will be divided, with the exception of what is the personal property of the spouses, which is not subject to division.

The property of the spouse is assessed independently, based on the market value of each item at the time of filing the claim. If this is difficult to do, then you can apply for an independent assessment to the competent authorities.

The duration of the litigation for the division of property depends entirely on the pliability of the spouses: the sooner they agree with the division proposed by the judge, or they can agree on their own, the sooner the lawsuit will end. Question, how to quickly file a divorce and whether it is possible to speed up this process, we tell.

There are times when it drags on for long months, and sometimes it drags on for more than one year. This is not always in the interests of spouses. Although for some of them - at hand. During the protracted process, property can be sold, lost, destroyed. And when there is no subject of division, then there is nothing to divide.

That is why it is advisable to hurry up with the division of jointly acquired property after a divorce or resolve the issue of seizing it in court so that an unscrupulous spouse cannot turn it in his favor before a court order.

Documents for the division of property after a divorce

When considering the issue of division of property, you will need to provide the court with the following documents:

• statement of claim indicating the date of divorce, a list of common property and its value,
• claimant's passport
• certificate of dissolution (conclusion) of marriage,
• common children metrics,
• documents for property that is subject to division (certificate of registration of ownership - for real estate, vehicle passport - for a car, copies of a passbook, account statements - for cash savings, etc.),
• act of valuation of property for division (if any),
• other documents at the discretion of the plaintiff or at the request of the judge.

How is the division of property in a divorce after a court decision

Spouses who agree with the court decision on the division of property can themselves begin to turn it in their favor and draw up documents for it, if necessary.

Some facts

A bad peace is much better than a good quarrel. If "peace talks" are not possible, then only go to court, since legal costs are somewhat higher than the notary fee. may be a few percent of the value of the entire property.

If one of the spouses is not satisfied with the procedure for the division of property established by the court, and he does not comply with his decision, then the intervention of bailiffs will be necessary. They will be able to take actions to alienate the property awarded from the dissenting spouse or to arrest this property, and they will also be able to seize and sell his other property for a similar amount, sell it and turn the proceeds in favor of the plaintiff.

Let it be as it is

The law does not provide for the mandatory division of jointly acquired property after the divorce of the spouses. They may not share or re-register anything. But sooner or later the question will still arise. After all, most divorced spouses start new relationships and remarry, and therefore they have new property rights and obligations. And the limitation period had already expired by that time, and the court would no longer accept the application for the division of property.

Therefore, it is necessary to resolve the issue of the division of property in a timely manner and put all the dots over the “i” in order to avoid problems in the future.

If you have any questions about how to divide property in a divorce, then ask them in the comments.

According to statistics, approximately forty percent of officially concluded marriage unions break up within the first four years. family life. Moreover, more than fifteen percent of such breakups occur almost immediately after the wedding - during the first year. But divorce procedures do not always go smoothly. Often, many issues have to be resolved through the courts. First of all, during a divorce, disputes arise regarding the division of property, which are resolved only through the courts. It is this problem that will be discussed in this article.

Division of property acquired jointly

Many are interested in the question: what is jointly acquired property? The answer to it is extremely simple. If we start from the norms of Article 256 of the Civil Code of the Russian Federation, then the property acquired jointly includes everything that was bought during the time when the couple was in an official family union. But even here there are small exceptions. When the newlyweds, when registering their relationship, conclude an agreement, which indicates what property and to whom it will belong after the divorce. In this case, the division does not make any sense, since there is an official contract signed by the spouses.

Paying attention to article 34 of the RF IC, it becomes clear that any income received by any of the spouses, regardless of the method and size, is a joint property. Property acquired jointly and being common also includes such property as shares, real estate, deposits, securities and any other movable things that were acquired by the spouses while they were officially married.

If we talk about such property as real estate or a car, which are often issued only to one of the family members, then it does not matter who is the owner according to the documents. If property is bought in marriage, it is joint.

But the problem of how to properly divide property in a divorce still remains relevant. The division of common property often occurs in one of two ways:

• a joint marital agreement allows you to avoid going to court (when the husband and wife decided in advance, peacefully, what property will remain for whom, it is necessary to draw up an agreement that will indicate the shares of each property, certify it with a notary);
• division of property acquired jointly (when the parties cannot agree peacefully, you need to file an application with the court, which will help divide the common property by setting its composition and then allocating its parts for each of the spouses).

An appraisal of property in a divorce is mandatory. When the division of jointly acquired property occurs in such a way that one of the spouses remains with property whose value is many times greater than his share under the law, it is possible that the court will oblige the other party to compensate this difference. Compensation can be not only in cash, but also in some other form.

The law establishes the following procedure, according to which the division of property acquired jointly takes place through the court:

• the court is obliged to establish the property of the spouses (the property of each of them);
• the court determines the shares of the established property for each of the spouses dissolving the marriage;
• further, the law obliges the court to separate from the common property the property that each party wants to keep.

The law also states that when dissolving a marriage with a division of property, its list must be determined according to the interests of not only the spouses, but also their children. The division is carried out on an equal basis. But the law also defines some exceptions. For example, children remaining after marriage or the lack of employment of one of the spouses, while good reasons the fact that a person does not work, no. Such situations contribute to the application of the principle of increase or decrease in shares, which the court must justify.

The law provides for several reasons why the court may increase the share of jointly acquired property in favor of one of the former spouses. This may be the presence of underage children left with him, the recognition of the party as disabled or a serious illness. If the party does not have good reasons for the lack of sources of income or it disposes of the jointly acquired property irrationally, the law provides for a reduction in the share in the division of property.

When, during the dissolution of a marriage with the division of property, it is discovered that the spouses have debts, for example, bank loans, the court will also divide them.

It is also worth noting that if, before the decision to dissolve the marriage, the spouse did not work, but at the same time kept house and looked after the children, this may become the basis for awarding him a legal share in the jointly acquired property. Any other circumstances that are valid for non-receipt of income while married, the court will also take into account. It must be said that not all property acquired jointly is divided during the divorce proceedings. There are things that are not subject to division.

Partition process statute of limitations

Since the law provides for the division of property upon divorce, it is worth discussing the statute of limitations. By the way, speaking directly about the timing, the procedure may end already at the first court hearing. Then it will be necessary to draw up and file two claims at once with the court: the first for divorce, the second for the division of property. In such a situation, the law provides for consideration of both the first and second lawsuit at once, if the former spouses have come to a mutual agreement.

Sometimes it is easier to file and file a divorce suit first. When the family ties are officially terminated and the relevant certificate confirming the breakdown of the marriage has been received, it is possible to draw up and file a claim already for the division of joint property. According to the general provision provided by law, the limitation period for a claim concerning the division of property is three years. But in this matter it is important to know exactly the beginning of this period. It begins from the moment of notification of the violation of the rights of one spouse by another.

For example, four or five years after the dissolution of the marriage, the wife becomes aware of the presence of any property acquired by the husband during his residence with her. But it is not listed in the general list. The law defines this fact as non-observance of the rights of the wife. At the same time, she must prove that this is jointly acquired property, from the division of which the spouse evades. But in practice, this is quite difficult to do. It is necessary to restore the period that has already expired. To do this, you need to draw up and file a claim with the court for the renewal of the term for the division of property, indicating the relevant grounds and evidence.

Additional nuances of the division of property

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It is definitely worth adding that things that were donated to a specific family member, received as an inheritance, as well as personal items are not joint and are not included in the list of shared in court. This also includes shoes and clothing, any items used by the same person on a daily basis.. The law does not provide for their division, even if they were bought at the expense of the general budget, with the exception of luxury goods and jewelry. If you want to file a claim for the division of property, you should also know that any things of children, both adults and those under this age, are not divided between spouses.

Contributions opened in the names of children are also not subject to division between parents after the dissolution of the marriage. And when the divorce process drags on for a long time, then those things that were purchased after the paperwork for divorce were not subject to division are also not subject to division. Any property of minor children, which their parents bought for their needs while married, remains with the spouse living with them. If there are adult children in a broken family who own cars or real estate, they are also not subject to division.

If the child owns only part of the property, for example, half a house, then he must take part in the division process together with his parents.

The procedure for dividing property acquired during marriage is such that a case may not end with one court hearing. Therefore, when the spouses decided to divorce, it is better to prepare for this in advance and resolve all issues peacefully. This will avoid unnecessary costs not only financially, but also in terms of time.

• When, after a divorce, it was decided to divide the acquired property, it is better to draw up a peace agreement. In it, the spouses can indicate all the available items of property acquired in marriage, paint what things are left for whom. It is preferable to certify such a document with a notary, but for general information, his services can be quite expensive.
• If there is such an agreement, you can not go to court at all, since everything has already been divided in it.
• If the decision to file a claim for the division of property is still inevitable, then it is also better to file for alimony immediately. This will allow the spouse with whom the children remain to receive most of the property.

It is definitely worth adding that any documents relating to the dissolution of a marriage between spouses and the division of property should be kept. If there is property that one of the spouses does not know about, then they may be needed in case of filing a second claim for its division.

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Tens of thousands of marriages are registered in Russia every year. Unfortunately, many couples officially end their relationship through divorce.

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In such a situation, it becomes necessary to divide the jointly acquired property. Next, we will consider in more detail how the divorce procedure with the division of property is carried out.

General information

If you need to figure out how to file a divorce with the division of property in 2020, then this procedure is possible, both on the basis of the mutual consent of the spouses, and through litigation at the initiative of one of the members of the couple.

The divorce procedure itself can be carried out in two ways:

• through the registry office;
• through the court.

The first way is possible when the decision to divorce is mutual. In such a situation, the spouses submit a joint application to the registry office, after which they receive a certificate of divorce.

In situations where one of the spouses does not agree to a divorce, the other has the right to apply to the court for recognition of the marriage as invalid.

After receiving a divorce certificate, an agreement is concluded between the people who were married on the division of property.

If the spouses do not know how to properly file a divorce with the division of property, where to start the procedure, then it is best to contact the registry office.

Conclusion of an agreement

Between spouses is possible only in a situation where both parties find a compromise on the procedure for dividing jointly acquired property.

In such a situation, the parties simply agree among themselves on who receives what part of the property, after which the agreement is documented.

An agreement on the division of property is an official document, where:

• a description of all joint property is indicated;
• shares are registered, which become the property of each party.

The agreement is drawn up at the notary, and the spouses put their signatures on it.

It is impossible to challenge this agreement if it does not violate the legitimate rights and interests of one of the parties.

The conclusion of an agreement is the most common form of division of property. In such a situation, there is no need for litigation, and the basis for the division of property is the mutual consent of the parties.

Judicially

When people fail to find a compromise solution on the procedure for dividing joint property, then this issue can be resolved through the courts. Both spouses can file a claim.

The division of joint property may occur along with the divorce procedure. Also, spouses can carry out the division after the dissolution of the marriage.

Required documents

To file a lawsuit, you will need the following documents:

• two samples of the statement of claim;
• certificate confirming the conclusion or dissolution of marriage;
• property rights documents;
• results of expert appraisal of property value;
• document on payment of state duty;
• other documents constituting the evidence base.

The statement of claim, as well as other documents, must be submitted to the court in two copies. The first copy is used by the court to familiarize itself with the case, and the second is sent to the defendant.

Claim Form

The resolution of the dispute in court is possible only in a situation where one of the parties submits a statement of claim with requirements to the other party to the dispute.

This application can be submitted by one of the spouses. It states:

• a detailed list of joint property;
• claims against the defendant, who has the right to file a counterclaim with an indication of his own claims.

Compilation of the statement of claim must be carried out in accordance with strictly established rules.

Increasingly, divorce is becoming the only way to resolve family conflict. According to Rosstat, the number of divorces in last years increases, and their number in relation to marriages in 2013 amounted to approximately 50%.

This disappointing statistic suggests that every year several hundred thousand divorced couples are faced with the issue of dividing property and are forced to deal with complex issues. legal matters related to this process: in what time frame it is necessary to divide the property; what property is to be divided; Is it necessary to go to court? whether a marriage contract saves from the division of property, etc. We will try to answer these and many other questions further.

1. Who owns property acquired during marriage?

The law provides for two regimes of property for a couple who have registered a marriage:

• law;
• negotiable.

legal mode. As a general rule, all property acquired during marriage is the joint property of the spouses. This means that both husband and wife have equal rights to the property, no matter in whose name the property is registered. For example, in marriage, a car was purchased and registered in the name of the husband. In this case, the wife has the right to use the car on an equal basis with her husband, and the husband can dispose of (sell, donate, etc.) this car only with the consent of his wife.

To common property in accordance with Part 2 of Art. 34 of the RF IC include, in particular:

• income received as a result of labor, entrepreneurial and intellectual activity;
• pensions, benefits, other payments that do not have a special purpose;
• movable and immovable things bought with common money, etc.

And if the marriage is not dissolved, but the spouses live separately, and they do not have a common budget?

Acquired property in a registered marriage, despite separation, is still considered joint property. And only the court can establish that those things that were acquired by each of the spouses during the period of separation are the property of each of them.

The Moscow City Court dismissed the claims for recognition as joint property - lease payments that were received by the defendant during the period when he and the plaintiff already had no family budget, but the marriage was still registered (appeal ruling dated October 2, 2013 on case N 11-24680).

Consent of the spouse to the transaction on the disposal of common property. In order to sell, donate or otherwise dispose of joint property, the consent of both spouses is required.

Notarial consent of the spouse to the transaction is required in the following cases:

• real estate transaction;
• the law requires notarization and (or) registration of the transaction.

In all other cases, it is not necessary to obtain documented consent; the law emphasizes that the consent of the second spouse is assumed.

But, unfortunately, spouses are not always honest towards each other, and one of them can dispose of common property without the consent of the other. What to do in this situation? How to protect your rights?

When a spouse disposes of property against your will, you must go to court to invalidate the transaction under which this property was transferred to another person. To do this, it will be necessary to prove that the second party who acquired the property knew or should have known that the other spouse did not agree to the transaction.

The wife went to court to invalidate the contract for the sale of transport, concluded by her husband. At the same time, she referred to the fact that her husband did not receive notarized consent from her to sell the car. But the court pointed out that such a transaction does not require notarial consent, since this agreement does not need to be certified by a notary or registered. In addition, the court noted that in making such claims, the spouse had to provide evidence that the buyer of the car must have known or knew that she opposed the sale. But the spouse did not provide such evidence, so the Moscow City Court refused to satisfy her claims (Appeal ruling of March 20, 2014 in case N 33-2336).

contract mode. This regime involves the conclusion of a marriage contract, which must be certified by a notary. If a couple chooses such a regime of property, then the property that is acquired during the period of marriage is no longer considered joint, but is distributed between the spouses in the manner and amount determined by the marriage contract. If desired, a married couple can conclude a marriage contract both before marriage and during family life.

The agreement may provide for separate, shared or joint regimes for all property, its individual types or for the property of each of the spouses.

If you want to own not only the property that you own at the time of the conclusion of the contract, but also that which will be acquired in your name during the marriage, then this condition must be reflected in the contract. The law allows extending the effect of a marriage contract to property that will be purchased in the future.

When concluding a marriage contract, it is worth observing the requirements of the law, since the court may invalidate the contract, for example, if it is proved that its terms put one of the spouses in an extremely unfavorable position.

The husband under the marriage contract received significantly less property than the wife. According to this document, the spouse received 2 land plots, a residential building and 3 apartments. And the husband, according to the marriage contract, during the divorce, remained only with the car and the money that would be in the bank account during the divorce. But by the time of the divorce, he had sold the car and spent the money on his family, and no other Money was not on the account. Taking into account such an unequal position of the spouses, the court declared the marriage contract invalid (Moscow City Court, appeal ruling of April 30, 2013 in case No. 11-17943).

If, under a marriage contract, all the property of a married couple is divided or registered in shared ownership, then there is no need to divide the property. This is one of the advantages of the contractual regime. After all, a pre-arranged agreement between spouses regarding property rights significantly reduces the risk of future conflicts regarding this issue.

2. What property should not be divided?

Not all property acquired during marriage is common. According to the law, property belongs exclusively to one spouse and is not subject to division if:

• the property went to the spouse free of charge, for example, as a gift, by inheritance or by way of privatization;
• property is of an individual nature (clothes, shoes, etc.), with the exception of jewelry and luxury goods;
• the right to the results of intellectual activity.

Based on judicial practice, it should be borne in mind that not all property received by one of the spouses in marriage free of charge is his personal property. According to the law, in this case we are talking about property that passed to the spouse as a result of the transaction. Therefore, property that is received free of charge on the basis of an act of a public authority cannot be attributed to the property of one of the spouses. Such property, taking into account other circumstances (family composition, purpose of property, content of the act), may be recognized as joint property.

In addition, things that were purchased for children will also not be shared, but will go to the parent with whom the child will remain.

It should be noted that the property that is the property of one of the spouses (received free of charge during marriage or acquired before marriage), the court, at the request of the other spouse, may refer to common property. To do this, it is necessary to prove that during the period of marriage, the value of this property was significantly increased due to:

• common property;
• property of each spouse;
• work of one of the spouses.

Example.

The husband filed a claim regarding the recognition of a residential building, received by his wife by inheritance, as joint property. The wife inherited a house, the condition of which was improved in marriage. The husband in court set out in detail the entire list of work carried out by him for the reconstruction and overhaul of the house. The court was also presented with a certificate that reflected the value of the house at the time of its purchase, and a report on its market value at the time of applying to the court. Also, in order to prove his words, the husband invited witnesses who confirmed the fact that repairs were carried out during the marriage. At the same time, the court noted that home ownership is all property located on a land plot, including a residential building, as well as outbuildings. Satisfying the demands of the spouse to recognize the residential building acquired by the wife by inheritance, the court took into account the improvements made not only in relation to the residential building, but also to the outbuildings (Appeal ruling of the Volgograd Regional Court dated March 28, 2014 N 33-1457 / 2014)

3. Is it necessary to divide the property in a divorce?

It is possible to divide property not only simultaneously with the divorce, but also before this moment, as well as after the dissolution of the marriage.

It is necessary to take into account some features of the division of property before and after a divorce.

When dividing property even before a divorce, it must be remembered that the property that remains undivided, as well as that will be acquired after the division, refers to joint property. And if it comes to a divorce, then this property will have to be divided.

If, when filing a divorce, you do not want to deal with the issues of division of property yet, then it is worth remembering the statute of limitations. The law provides an opportunity to apply for a section within 3 years. At the same time, this period does not begin to run from the moment you filed for a divorce, but when you learned or should have learned about the violation of your rights. What does this mean? Suppose that after a divorce, you and your spouse still have a common apartment, but you did not want to live in it and found yourself another place of residence. Within 5 years after the divorce, you did not try to exercise your right to live in this apartment, and after this period, when trying to exercise this right, the second spouse began to obstruct you. In this situation, it turns out that you learned about the violation of your right to live in a joint apartment only 5 years after the divorce. Therefore, you have every right to apply to the court for the division of the apartment.

After the divorce in 2007, the former spouses had a residential building in joint ownership, but the wife did not go to court for a long time to divide the property and did not live in this house. And after 6 years (in 2013), the ex-husband wanted to deprive the ex-husband of the right to use this house in court. In response to such demands, the ex-wife asked the court to recognize the house as joint property and allocate her a share in this property. Despite the fact that much more than 3 years have passed since the divorce, Omsky regional court pointed out that the woman found out about the violation of her rights (the right to use the house) only when her ex-husband tried in 2013 to deprive her of the right to use this house. Therefore, the limitation period has not expired (Appeal ruling of April 16, 2014 in case N 33-2055/2014).

Despite the fact that the law does not establish the limitation period from the moment of divorce, nevertheless, it is better not to delay the division of property after the dissolution of the marriage. After all, if more than three years pass after the divorce, then you will have to prove in court the fact that you did not know about the violation of your rights for a long time.

4. What methods of division of property exist?

The law distinguishes two options for the division of property:

• by agreement of the spouses, by concluding an agreement;
• through the court.

The agreement of the spouses on the division of property is a simple written document, which, unlike the marriage contract, is certified by a notary only at the request of the couple themselves. It is also possible to share not all family property, but only part of it. Everything else will remain jointly owned.

Litigation is more complex and lengthy. When choosing it, the couple risks spending a lot of time, nerves and money. If you could not agree with your spouse on the division, then you need to determine which court will hear your dispute. With claims, the price of which does not exceed 50 thousand rubles, it is necessary to apply to the world court. If the price is higher, then the case will be considered by the district court. As a general rule, cases are heard in court at the place of residence of the defendant. But when a dispute arose over real estate, it is necessary to apply to the court at the location of this property. In addition, it is necessary to calculate and pay the state duty, the amount of which will depend on the value of the property being divided. Also an important point is the collection of documents that will confirm the ownership of the disputed property.

It should be noted that both by agreement and in court, property can be divided both before a divorce and after it.

5. How is property divided?

Usually the property is divided in equal shares. But sometimes the court can award one party a large share of the family property. The reasons for this decision may be the following:

• taking into account the interests of minor children;
• lack of income from one of the spouses for disrespectful reasons.

Example.

In one case, the Moscow City Court pointed out that the cohabitation of minor children with one of the former spouses is not in itself a basis for derogating from equality of shares and increasing the share in the common property for the spouse with whom the children live (2 minor children lived with the plaintiff, appeal ruling dated March 18, 2014 in case No. 33-8089). In another situation, the Primorsky Regional Court awarded ex-wife¾ share of common property. At the same time, the court took into account the fact that 5 minor children remained with her, she herself does not work, but is on parental leave (Decree of the Presidium of 04.22.2013 N 44g-38).

When the division has taken place in equal shares, but it is not possible to divide the property equally, the spouse can count on compensation from the second spouse.

In conclusion, I would like to note that just as the relationship of each married couple is unique, so its separation and issues related to this have their own characteristics. Despite the fact that the law contains general rules for all when dividing family property, in a particular situation they can be interpreted differently. The same facts, which the court in one situation considers insufficient to satisfy the claim, in another situation, in the presence of additional circumstances, the court may take into account. Therefore, before making a decision regarding the division of property and building tactics for its conduct, it is advisable to consult with a specialist.