Is a donated apartment divided during a divorce: how does this happen, and can a husband or wife claim housing donated to one of the spouses during marriage?

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Divorce is a complex legal procedure involving many different issues. Their list also includes the issue of division of property, which by law can be either personal or common. When a marriage is dissolved, the question is often raised as to whether the gifted apartment is divided during a divorce. We will touch on this topic in more detail in this article.

Basics of the regulatory framework

The regulatory framework of the family code provides in almost all cases the undivided right to the property of the person for whom the deed of gift was issued.

At the same time, it must be certified by a notary and have proper execution, since otherwise it is possible to challenge it in court. And this may already lead to the possibility of dividing real estate. Is the apartment divided in the absence of a main series of cases that may affect the division of property? The Family Code strictly regulates this issue - no. But in several cases, you can receive compensation or divide property. Such cases include:

incapacity of the donor at the time of writing the deed of gift or pressure exerted on him. There is also the possibility of errors in the deed of gift, which will affect the fact that it will be declared invalid;
increase in housing costs. This category includes both repair work that led to an increase in the cost of the apartment, and the purchase of expensive equipment and plumbing by the second spouse. For example, all repair work was carried out at the expense of the second spouse, who is not the owner, as a result of which the cost of living space increased. The same applies to increasing square meters due to extensions;
property under a gift agreement can be divided by amicable agreement between the spouses. This is possible if the second spouse has fair demands for reimbursement of funds invested in living space.

What you shouldn’t forget when dividing a donated apartment

The concept of limitation of actions remains relevant, because the division of property can occur both during the dissolution of a marriage and after the end of the divorce process. According to current legislation, it is three years from the date of divorce by the parties.

But nevertheless, the omission of the limitation period can be recognized as valid and restored. The main thing is to remember that the fact of your ignorance of the existence of the institution of limitation is not a valid reason.

In such a sensitive issue as dividing a deed of gift into real estate during a divorce, it is worth familiarizing yourself with the current legislation and its practical application in order to protect your legally acquired property.

Features of the division of property in the presence of a deed of gift

Most court decisions will be made strictly on whether there are secondary factors that may prevent one of the spouses from leaving their property for their sole use. If there are no such features or there are no compelling reasons for recognizing the deed of gift as illegal, then the property and housing remain at the complete disposal of the spouse who received the apartment or house under the deed of gift. There are a number of circumstances and rules that are always of interest during divorce proceedings and division of property:

after a divorce, children will not be allocated a share in the property, since the transfer of property to the heirs will occur only after his death;
The registration of the second spouse is absolutely unimportant. The owner of the property has the right to ask to vacate the living space at any time, and even the duration of the marriage does not matter;
all payments and compensation are resolved pre-trial or in court. In addition, the settlement agreement can be as follows - the owner of the property is the spouse, and he renounces his property in favor of his wife (already ex) and children, while the deed of renunciation of the property is officially certified by a notary in exchange for refusal to pay alimony;
the meaning of the deed of gift is the same, that is, there is no influence in the marriage; the deed of gift was issued to one of the spouses or before him.

Various situations

Now in more detail about typical situations:

What to do when privatization was carried out before the wedding? In this situation, ownership of the property is retained. Before marriage, it was the property of one of the spouses and as a result of divorce, ownership will be retained. True, in this situation there are options when such a decision can be challenged in court. It is believed that there are reasons for this. For example, significant funds may have been invested in an apartment. If there was a process of privatization of real estate before marriage, then the apartment after the divorce will remain with the spouse who became its owner.
If this took place during marriage, then there may be different options. When both spouses participate in privatization, they become shared owners in equal shares. But it could also turn out differently. One of the spouses has the right to refuse to participate in the privatization procedure. In such a situation, according to the law, he receives a lifelong right to reside in the apartment in question. In case of divorce, this right is not lost. After it, both spouses have the right to live in their previous apartment. How much this will suit them is another question.
During a divorce, parents decide in one way or another whether the children will remain with their mother or father. Regardless of the father's or mother's ownership of the apartment, they will live with the parent with whom they were placed. Regardless of who they lived with, in the event of the death of one or both parents, children have the right to receive an apartment, even if it does not belong to the parent with whom they lived. If the owner (for example, a mother) writes a deed of gift for one of the children, he will receive the entire apartment, while the other children will receive nothing.

In the situations considered, it is approximately clear who can claim the apartment after the end of the marriage.

Receiving compensation

In order to receive compensation, either a settlement agreement or a court decision will be required, in which it will be decided that the spouse-owner of the home must pay half the cost of compensation to the second spouse. Compensation will only be awarded by the court for compelling reasons. These reasons most often include:

the increased cost of housing after repairs, in which the second spouse paid for it or carried it out with his own hands;
an increase in square meters made during marriage, that is, an extension was created to a private house or an apartment was remodeled, as a result of which the number of square meters of housing was increased;
The second spouse purchased numerous expensive equipment at his own expense, and most often such moments are very important for built-in furniture and equipment, since they cannot be removed, and dismantling will be quite difficult. All these cases may require receipts and examinations, preferably independent ones. Since the maximum percentage of compensation can be half of the full cost, but the minimum compensation is not specified. This is due to the fact that despite the renovation work and personal investments, the second spouse still did not live in his own living space and enjoyed its benefits throughout the entire duration of the marriage.

There are several tips for those who live in the territory of the second spouse and do not have rights to it:

For any investment in living space, you are required to leave checks and receipts;
during renovation work, you should find out the preliminary cost of housing before the renovation begins;
it is possible to draw up a preliminary agreement on obligations with the second spouse in the event of a divorce and have it notarized;
It is better to carry out all decisions on the division with the help of a peace agreement, since litigation will only ruin your nerves, and besides, you can spend quite a lot on the court;
Much of what was given to the first spouse on the basis of a deed of gift will still remain his, since in the absence of violations in the form of the deed of gift and its registration, it completely assigns ownership to the owner and at the same time deprives everyone else of it.

A deed of gift for a house allows any spouse not to be afraid of losing property, which is why this form is most often used by the relatives of a particular person.

In almost all cases, the maximum that can be achieved is compensation, the amount of which will also depend on the evidence provided to the court to help make a decision. The only way to receive part of the owner's legal property in a divorce is through an amicable agreement, since in all other cases the court will leave the property in the hands of the person who has a deed of gift in his name.

Is the donated apartment divided in a divorce or not? If a deed of gift was issued for the property in the name of one of the spouses, then during a divorce this property is not subject to division. Divorce is a very difficult process that requires great emotional distress. Very often it is accompanied. It is especially painful if the husband and wife have been legally married for many years. Misunderstandings lead to the fact that in most cases the division of property occurs in court. The most often subject of dispute is living space.

Not every married couple has the opportunity to separate after a divorce and continues to live in the same living space. Therefore, it is very important to know whether the donated living space is divided upon divorce. Very often, the process of dividing property ends with one spouse continuing to use the housing, while the other ends up “on the street.” However, you need to know your legal rights.

In the event that residential real estate was purchased with the funds of the spouses at the time when they were officially married, or the property was inherited by one of them by will, then this is considered jointly acquired property and is subject to division. However, if a deed of gift was issued for the apartment, it will not be divided upon termination. More details about this can be found in Art. 36 of the Family Code of Russia.

Gift deed for an apartment and divorce, is it possible to divide the donated property?

Divorce is an unpleasant process for both partners. It is especially unpleasant when it comes to the division of property acquired during marriage. It is rare that spouses find a compromise on this issue and do not go to extremes when common property begins to be divided and a deed of gift for an apartment takes place.

In Western countries, marriage partners, in order to avoid conflicts, even before entering into a marriage, draw up a contract that stipulates all the nuances regarding the division of property during a divorce. In Russia, this trend is not yet so widespread, so controversial situations often arise about which property can be divided in half and which cannot. Thus, the question often arises: is property received under a gift agreement subject to division?

All property acquired during an official marriage and acquired with common funds is subject to division between married persons.

But if it was inherited or received as a gift by one of the partners during or before marriage, then such property is considered personal property, and no one has the right to claim it. The donation of an apartment is a gratuitous transaction in which the donor donates his property (house, apartment, land) to the recipient without reciprocal obligations. Most often, such transactions are carried out by close relatives (parents, children, grandparents).

Thus, in the event of a spouses’ divorce, the donated apartment is not divided between them, because the housing belongs to the owner as a personal property. According to Article 36 of the Family Code of the Russian Federation, personal property cannot be divided upon divorce of spouses, since the law confirms the undivided ownership of it.

There is a misconception that if both married partners lived in an apartment that was donated to one of them, then the deed of real estate in the event of a divorce is divided between the spouses, like all other joint property.

In fact, this is not so. No matter how many years the husband and wife live together in this living space, it will still belong as personal property to one of the spouses who received it as a gift under a gift agreement. It is not divided even if the second half was written in it. After a divorce, the owner has every right to evict the second spouse from the living space.

Another erroneous opinion: if children were born during the marriage, then the donated housing during the divorce process is also divided among the children. Based on the same Law “On Undivided Ownership of Donated Property,” real estate can be divided among heirs only after the death of the owner of the living space (donee) and only if it was not transferred by the owner to a third party (child, parents and other persons) under a gift agreement.

It is important to know here that if a deed of gift for any specific property belongs to one of the children, then other heirs cannot lay claim to it.

With such a problem, you can often hear the question: is there justice in this situation? Is it possible to challenge a deed of gift for real estate?

Of course, on the part of the partner who is the owner of the gifted property, everything is very fair. But what should the other half do in such a situation, how to defend their interests after a divorce, if a large amount of money was invested in housing in order to improve living conditions?

Thus, according to Article 37 of the Family Code of the Russian Federation, if one of the spouses invested in the donated living space an amount in such an amount that this real estate began to cost several times more, then during a divorce the deed of gift can be challenged and declared invalid. And then this property will be divided equally, because it will be considered joint property acquired during the marriage.

Housing improvements include:

redevelopment;
extension of premises;
construction of additional structures;
expensive repairs;
technical equipment of housing.

For example, the house originally had two rooms and cost 20 thousand dollars. But during the marriage, the couple added several more rooms, an extension in the yard, a garage, and the cost of housing increased to 50 thousand. Then this property, despite the presence of a deed of gift upon divorce, will be divided equally.

Only a judicial authority can make a decision to recognize the donated real estate as the joint property of the marriage partners.

If the apartment was purchased under a gift agreement

If parents or close people, using their civil rights, draw up a gift deed for real estate, then the living space will not be divided in the event of a divorce. If divorced citizens used living space that was donated to one of them, then after the divorce it will be his property. The second person cannot claim the property as a gift.

The deed of gift for an apartment in a divorce is not divided. If children were born during the marriage, they will be considered the heirs of the person in whose name the gift agreement was drawn up. The housing cannot be divided, but children will be able to receive it by inheritance. Moreover, the fact of registration of housing is also not a basis for division. For example, a husband registered his wife in the house. Even if they have been married for many years. As long as the parents are alive, children also cannot claim the donated housing.

Who will get the living space?

If the apartment was given as a gift during marriage, is it divided with the spouse upon divorce? Let's ask the Family Code of the Russian Federation about this.

Article 36 of the RF IC answers that the gift will remain to the person to whom it was given , in contrast to jointly acquired property.

This applies to personal, as well as in general all things that were acquired as a result of gratuitous transactions, such as donations, wills, rent, and also by court decisions.

There is, however, one caveat. If, after receiving a gift - in this case, it is living space - it was improved using the common funds of the spouses , then it can be divided.

Learn about the concept of a deed of gift for an apartment with an encumbrance.

If both spouses invested money to maintain housing

If, during the process of living together, repairs were made to the donated living space, this may complicate the situation. Let's assume that the property belonged to one of the spouses. During the marriage, repairs were made, sometimes more than one. Of course, both spouses invested money in the renovation.

If during a divorce the spouse decides to return the money spent, he will have to collect material evidence in the form of checks. The living space will go to the rightful owner. If the spouse can provide receipts that support the cost of repairs, then he or she will only be able to receive half of the funds spent. The fact is that, while living in the apartment, both spouses used the amenities.

Can the gift be shared?

Is a deed of gift divided during a divorce? This is one of the most pressing questions that worries many married couples going through the process of dividing their jointly acquired property.

The deed of gift is direct evidence that the spouses did not spend joint funds on the purchase of housing, and therefore it does not qualify as joint property.

However, as practice shows, during family life, spouses invest a large amount of money on furnishing the premises (repairs, replacement of plumbing, remodeling, etc.)

In addition to improving the appearance, all these processes also affect the cost of an apartment or house, significantly increasing it. If there were such investments, then the second spouse has the right to demand that this housing be recognized as joint.

There is no precise definition in the legislation in which situations donated premises can be taken into account as jointly acquired property, and therefore the final decision is made by the court after considering all the evidence.

Important! In conducting such processes, it is worth using the services of a professional lawyer specializing in this area of litigation.

In order to receive your share of a donated apartment or house, you must first file a claim with a request to recognize the housing as jointly owned, or rather, declare your right to the apartment or house, providing significant evidence of this.

In what cases can real estate be divided by deed of gift?

However, there are situations that make it possible to recognize an apartment as jointly acquired property.

To do this, you need to thoroughly study the Family Code of Russia, in particular Art. 37.

Real estate can be recognized as joint property if:

One of the spouses invested money in the apartment, as a result of which its market value increased.
Investments were made from the family budget.

Let's assume that one of them owned a home. But it was in such a state that it required major repairs. One of them contributed significant funds to this renovation. As a result, real estate became much more expensive. In this case, the spouse who invested more money in repairs has the right to file a lawsuit to recognize the apartment as joint property. From a legal point of view, this is possible. However, in Art. 37 there is no clarification of the minimum amount that allows such a claim to be made.

So, a document of donation for housing provides all rights to its legal owner. On the one hand, it cannot be divided upon divorce. On the other hand, there are exceptions that make it possible to recognize housing as joint property and demand its division.

How is the fate of donated property determined during a divorce? The question is quite complicated. The donated apartment and any other real estate is the personal property of one person (the donee), and accordingly cannot be divided equally.

The law in this case gives the following interpretation: an apartment is the full possession of one citizen, since it is not property acquired during marriage.

Privatized and inherited property is also not subject to division.

However, an exception can be made to these rules: if the spouse (not the donee) has invested a large sum of money in the donated property, he can claim a division, or, in extreme cases, compensation for his expenses.

How to achieve the division of real estate that was gifted to a spouse?

There are only two options, and both of them stem from the nuances that were listed above:

prove that the property has been improved using the general budget;
take advantage of the absence of a gift agreement, although from a moral point of view such a step looks very unsightly.

In a peaceful agreement on the division of property on a voluntary basis, the recipient of the gift can divide it in half, but the second spouse in this situation is not legally protected.

At any moment, the generous gesture can be withdrawn because the other half changes their mind and decides to file a lawsuit. You can also act on the principle “don’t let anyone get you” and try to challenge the gift agreement.

The success of the campaign will ensure that there is evidence that the previous owner signed it under threat to life and health, was mentally insane, or the notary made mistakes. The plaintiff himself will gain absolutely nothing from this, he will only deprive his spouse of the right to the donated property.

How to write a claim correctly?

The statement of claim states:

information about the court to which they are applying;
plaintiff's details;
the appeal itself. It indicates the time of marriage, the subject of the dispute that was given, and why it must be recognized as jointly acquired;
a list of articles on which the plaintiff relies in his claim;
list of documents attached to the statement of claim.

The last two points are perhaps the most important. In them, you explain which articles of the law give you the right to demand recognition of the gift as common and list your evidence base. The plaintiff clearly and distinctly explains to the court why it must satisfy his demands.

You need to work with special attention on the list of evidence, including any documents, checks, receipts that will confirm the plaintiff’s words. Otherwise, you will simply waste your and other people's time.

What arguments will help you win your case?

The plaintiff will need evidence, and it must be conclusive, since the percentage of precedents with a positive court decision on such claims is extremely low . First of all, checks and receipts can serve as confirmation of the plaintiff’s words: for the purchase of building materials, for the hiring of a team of workers.

In some cases, they resort to the help of professional appraisers, who make a verdict on the difference between the previous value of the property and its price after improvement.

You need to strengthen your position with testimony. To build a competent evidence base, it is better to seek help from professional lawyers.

Characteristics of the donation procedure

The concept of “Donation” implies a transaction that is gratuitous in nature. In this case, the donor does not receive any remuneration from the donee, the latter does not owe anything to the donor. The donee has the right to accept or refuse the property that should go to him. In frequent cases, such gifts are made among close relatives: they have the right to give each other property and not pay state taxes for it.

If the property was not given by a relative, the donor undertakes to pay a state fee in the amount of 13% of the value of the property.

If the donee decides to sell the received property before five years, after receiving it as a gift, he will need to pay a tax to the state, the amount is the same - 13% of the price of the property. It is worth noting that property worth up to one million rubles is not subject to tax.

Housing that a citizen receives in accordance with a gift agreement is his personal property, which cannot be divided during a divorce. The fact when the apartment was donated is not taken into account: during marriage or before marriage. The citizen who owns the apartment has the right to evict the former spouse, even if the latter was registered in it and lived for a long time. As for the gift agreement, it will be recognized as valid if it is drawn up and certified correctly.

Subtleties of registration of donation

The agreement must be drawn up with the direct participation of two parties: the donor and the donee; in some cases, their representatives are invited, acting as such under a notarized power of attorney. At the end of the document, both participants are required to sign. In some situations, the apartment is divided into parts, for example, one part belongs to the husband, the other to the wife. If one spouse decides to donate his share, the consent of the second spouse is required, which must be in writing. If children donate part of an apartment or any other real estate, the consent of their parents is also required.

If a parent gives shared housing to their child, the consent of the other parent is not required. If a part of an apartment is donated, divided into several shares, it is necessary to obtain consent from the remaining people in the share. The gift agreement should be drawn up correctly and competently; for this it is recommended to use a sample. The document must be registered with Rosreestr.

If the donor passes away on the eve of the transaction, it will not be possible to register the donation.

Is it possible to divide real estate during a divorce?

Let's return to the case when a gift in the form of real estate has the right to be called jointly acquired. The donated property rightfully belongs to one citizen - the donee, if the second spouse did not make significant financial expenditures on its repair, as a result of which the property greatly increased in price. If, as a result of the investment of the spouse (not the donee), the appearance of the premises has significantly improved and the property has increased in value, the spouse has the right to claim division. However, not in all cases it is possible to prove the fact of a significant investment in real estate. The second spouse should be provided with evidence that the apartment has increased in price thanks to his efforts.

If a spouse wishes to declare that he has rights to this property, he needs to submit an application to the judicial authorities: the decision on how the donated apartment will be divided is made by the court. During the hearing, the judge needs to interview both parties, carefully studying the evidence, and at the same time, it is necessary to interview witnesses. In some situations, it is still possible to divide the donated apartment in half if the spouse provides all the evidence in his favor. There are two ways to obtain the right to a donated apartment, the first is to obtain it peacefully, the second is through the courts. If during a divorce, spouses sign an agreement on the division of property, they have the right to divide the gifted property. In the event of a divorce, the citizen who is the donee can always return the apartment to himself.

Upon divorce, the following is not subject to division:

property that became the property of one of the spouses before marriage
real estate that has been donated, inherited or privatized
individual item, interior item, household appliances
intellectual property belonging to one of the spouses
child's property

Possibility to challenge the transfer of an apartment during a divorce

As was previously said, although the deed of gift determines who owns such an apartment, by filing a claim in court, in rare cases it is possible to challenge the fact that it belongs to one of the spouses and receive half of the housing in accordance with the court decision.

It is necessary to identify situations that provide some chances in such a lawsuit, when an apartment, not being a jointly acquired property, can be divided differently than indicated in the deed of gift:

When the agreement itself, according to which the apartment was donated, was drawn up incorrectly. If you hire a professional lawyer, there is a chance of building a lawsuit on this.
In a gift agreement, an important condition for its legal validity is the legal capacity of the recipient of the apartment. If this is not the case, then the contract can be challenged.
A similar condition exists in relation to the donor. If he was incapacitated at the time he executed this agreement, then the document itself has no legal force.
It is important that the decision to donate real estate is made in the complete absence of any pressure. If it is established that the apartment was donated as a result of the donor being forced to take this action, the agreement will lose its force.
At the time the marriage took place, the apartment was in very poor condition and was in dire need of repairs and improvements. If the property is in perfect condition during the divorce, you can conclude that a fairly large amount was spent on it. This allows lawyers to prove that a lot of money was spent on the apartment and that the money invested in improvement should be considered along with the distribution of the apartment between the spouses. If we are talking about a sufficiently large amount, then this may make it possible to achieve distribution of property, when square meters are divided equally between the former spouses.
This course of action is similar to the previous one. We are talking about increasing the area at the expense of the second spouse (husband or wife). This may apply, for example, to the fact that they bought a neighboring apartment to expand the existing one.
If the cost of the apartment upon divorce has increased significantly.

If there is a gift agreement, then it can be challenged only in very rare cases. This happens, but only under various special circumstances.

Property division option

There is another option: if one of the spouses has gifted property, he has the legal right to remain with it completely, that is, it will not need to be divided. Spouses may also have an apartment that was acquired jointly. In such a situation, there is one productive way out: the donated apartment remains with the recipient - its legal owner, and the joint one goes to the other spouse. If the parties do not agree to make such a decision, the issue will need to be resolved in court. Judicial practice shows that there is very little chance of receiving a donated apartment during a divorce.

In some cases, spouses go to extreme measures. There is an option - to try to prove that the gift agreement is invalid. It is possible to prove the fact of forced donation, the influence of moral and physical force to conclude an agreement. If the spouse, who is not the donee, manages to prove that the gift agreement is not correct and is not registered properly, the apartment may become the property of the donor again, so such an undertaking is pointless.

The best option is to prove that during the marriage, expensive repairs were made to the apartment, thanks to which it was significantly transformed and is currently worth more. However, this option is not always effective, because spouses, when making repairs, are unlikely to keep all the receipts for payment for building materials and repair services. It is really not easy to divide a donated apartment during a divorce; in order to increase your chances of receiving living space, it is recommended that you contact an experienced lawyer.

It’s great if a young family is given an apartment. At such a solemnly joyful moment, neither the husband nor the wife has a thought about divorce in their heads. Well, if discord does occur, the housing is divided between them in equal parts. When it comes to real estate inherited or received as a gift by one of the spouses, questions often arise. We will answer them today.

Gifts from spouses to each other

People connected by family ties often give each other gifts. If these are ordinary things, as a rule, no disputes arise during separation. But sometimes gifts can be very expensive, and then property disputes between those divorcing cannot be ruled out.

For these cases, the rule established by Art. 36 of the Family Code of the Russian Federation remains unchanged - if a couple, while married, gave something to each other, such a gift belongs to the donee and is not included in its composition when dividing property.

However, it is possible that during a divorce, the donating party will deny that it transferred the disputed property to the other spouse as a gift, citing arguments that the item was simply purchased for joint use. If such a situation arises, it is necessary to prove that, for example, the husband intended to give the apartment to his wife as a gift, and did not buy it for the whole family. Evidence may include the testimony of witnesses who were present when the gift was given or who knew about the intention to give, a deed of gift dedicated to a date (for example, a birthday, the birth of a child, an anniversary, or another date).

A case from judicial practice

Kovalkov I.L. asked the court to make a ½ division between him and his ex-wife Kovalkova A.R. apartment located in Bulgaria. Kovalkova A.R. She objected to this and explained to the court that this apartment could not be divided between her and her ex-husband, since it was given to her by I.L. Kovalkov. for her anniversary. Witnesses Prostyakova Zh.D. and Kuchakov P.G. It was explained to the court that they are friends of the Kovalkov family; three years ago they attended a family celebration on the occasion of A.R. Kovalkova’s birthday. At this celebration Kovalkov I.L. gave his wife an apartment in Bulgaria, informing everyone present about it, handing over the keys and documents for the property.

Court to Kovalkov I.L. refused, pointing out that the donated apartment during a divorce is not divided, despite the fact that it was purchased by the spouse using common funds.

Donation and inheritance of an apartment

Here we are talking about a gratuitous transaction, as a result of which the donor transfers the property to the new owner without asking for anything in return. Such a valuable gift is usually given by parents and other close relatives. Please note that in this case no tax is paid on the transaction. If the donor is an outsider, the recipient pays 13% of the cost of the apartment to the state in the form of a tax. Plus, if it is sold within three years from the date of receipt, you will have to make a contribution again.

Receipt and transfer of real estate (or other property) by inheritance are also considered a gratuitous transaction. Property passes to the heir according to the will (if this person is indicated in the papers), as well as in order of priority.

Grounds and conditions for division

The alienation of part of the property in favor of the second spouse from the owner of the house may occur under certain conditions. They are exceptions, and the ex-husband or wife must defend their rights in court or by preparing documentation with a notary by personal agreement. In most cases, division of property takes place in court.

Presence of a marriage contract

A marriage contract can be drawn up:

at the time of marriage;
at any time - as long as the married couple is in an official relationship.

The document has a number of advantages compared to the Family Code of the Russian Federation; it is a priority source. This condition is confirmed by Art. 40 IC RF.

The division of real estate can be legal provided that a clause on the possibility of this procedure is included in the marriage contract. During a divorce, all interested parties receive the corresponding shares, which are predetermined in the document.

General contribution to finishing, repairs

The donated apartment is not included in the jointly acquired property due to the absence of the fact that it was acquired with common marital income. The exceptions are situations when:

cosmetic or major repairs;
redevelopment;
reconstruction.

The procedures should not only change the appearance of the home, but also increase its final market value. That is, the owner can sell an apartment or house for much more than it was valued before the changes were made.

A wife or husband has the right to claim a share of ownership in the donated housing or its division, subject to:

saving receipts;
invoices;
other documents confirming the participation of the second partner in material costs.

If during the trial it is proven that the price of the property increased by 50% as a result of the purchase of furniture, plumbing, building materials and payment for the work of the contractor during their cohabitation, then the spouse has the right to make claims for half of the property.

Without official documents confirming the partner’s material costs for housing, executed under a gift agreement, the court will not take the claim into account.

Financial insolvency of husband or wife

When dividing property, one of the spouses can make compelling arguments about the lack of means of subsistence in the form of unemployment or a difficult financial situation. The court may decide:

carry out division of real estate;
oblige the owner of the house to buy the partner another premises for a place of permanent registration and residence.

As judicial practice shows, the majority of financially insolvent spouses are given the right to use the owner’s housing until his financial condition improves. This means employment and the possibility of moving to rental housing.

Presence of a minor

The division of an apartment owned by one of the spouses under a gift agreement becomes more complicated with children. The legislation establishes a priority in protecting the rights of minors: if their parents divorce, they cannot be deprived of the premises where they must live until they reach adulthood.

The nuances of questions about the division of real estate in the presence of children include:

a court order for the former spouse, who is the legal representative of the child, to live in an apartment donated to the husband or wife - until the age of 18;
If a share in the house belongs to a minor, then it cannot be taken away even if a peace agreement is signed between the parents.

The court always protects the rights of children under the age of majority . Attempts to expel or evict a child from an apartment donated to the parent may be considered not in favor of the owner and may result in administrative fines.

The property was presented for a wedding

During the divorce process, the following nuances are taken into account:

to whom the deed of gift was issued;
what share in the housing each of the newlyweds received - when registering property under a gift agreement.

In the first case, the owner is the one to whom the apartment was registered. In the second, each spouse has the right only to a certain part indicated in the papers.

What to do if the donated home was sold while married?

If the property received by gift was sold, then all proceeds belong to its owner and cannot be divided between spouses. In other cases, when a family lived in a donated apartment and decided to move to another housing due to its small size, inconvenient location or poor layout, the acquired property is divided:

if the new house had a similar value to the donated one, it refers to private property and not jointly acquired property (Article 34 of the RF IC);
if money from the family budget was spent on the purchase, then the difference in price must be divided in equal parts between the partners - subject to the availability of evidence.

This rule applies when selling an apartment and spending money for it on other needs that are valued higher than the cost of the donated housing.

In practice, the plaintiff rarely wins such cases - it is very difficult to prove that certain financial resources were invested in the process. A competent lawyer will recommend avoiding such a complex and losing trial in advance. The problem is solved by drawing up a mutual agreement when purchasing new real estate (or other property) or while maintaining a trust relationship during a divorce. The procedure is carried out in the presence of a notary.

The above actions may be limited by a pre-registered marriage contract. It initially spells out all the nuances of the division of property by agreement of both spouses during the divorce process.

Any issues with real estate registered under a deed of gift are best resolved with the help of a competent lawyer. The consultant will help you find the best way out of a difficult situation, correctly draw up claims documents, and solve most of the problems that arise. Attempts to independently understand the intricacies of divorce and division of property often end in failure and loss of legal rights to a share.

When does a personal apartment become joint property?

If joint funds of the spouses were invested in housing (for example, for repairs, equipment), then it makes sense to fight for recognition of the apartment as common property (especially if after the investment the property has risen in price). This can be done through court and filing a lawsuit. Of course, you cannot do without evidence that money was invested in the apartment on both sides (checks with contracts and other papers). It wouldn’t hurt to evaluate the apartment based on all the changes in it (after renovation, purchase of equipment, and so on). It’s even better if there are people ready to confirm the fact of the total costs. If the plaintiff wins the case, the apartment will be divided. True, such proceedings are quite lengthy and difficult, so before starting the process, it is worth talking with lawyers.

Gift deed for both spouses

During a divorce, the deed of housing recorded in the name of both spouses is usually divided into two.
If the deed of deed for the house was issued in the name of both spouses, then the divorce process clearly ceases to be painless.

Thus, by virtue of the law, this property will be considered joint and acquired during the marriage. If the deed of gift specifies the shares of each party separately, you will not have to make a division of the already divided world.

Otherwise, the procedure for dividing the house is inevitable. It’s good if it is possible to divide it by agreement of the parties. This fact clearly simplifies the situation. In addition, this agreement can be notarized in order to protect yourself for the future.

What else can you do?

First of all, come to an agreement with your ex-spouse peacefully. It happens that one of the parties is ready to divide the apartment in half so that the husband (wife) is not left without housing. Here it is appropriate to conclude an agreement with important points written down in it (but such a paper does not legally mean anything). It is best to draw up a gift deed for your spouse. Or sell the apartment, and divide the proceeds and purchase new housing for each participant in the transaction. If both spouses are the recipients or heirs (remember the wedding gift), the housing is divided between them in proportion to their shares.

During a divorce, it gives rise to many disputes and often leads to long proceedings. One of the important questions is whether property received by one of the spouses as a gift is divided. clearly defines that such property is not subject to the regime of joint ownership and, therefore, it is not subject to division during a divorce

. However, there are two conditions that can give things the opposite turn:

lack of evidence confirming the fact of donation;
increase in property value during marriage

How is donated property divided?

There are two types of gifts given during divorce:

under no circumstances will it be possible to separate;
can be divided under certain circumstances.

Not subject to division:

personal items with the exception of luxury items;
things given before marriage;
items transferred to one of the spouses for personal ownership that cannot be improved or repaired;
property already divided as a result of a marriage contract or voluntary agreement.

Under certain circumstances it is possible to divide:

property gifted to both spouses;
gifts that have been significantly improved, thereby receiving a higher value;
winnings or prizes received by one of the spouses, but as a result of joint actions.

For example, a couple bought a car in which the husband won a street race and he received a refrigerator as a prize. This prize will be considered a joint gift, since the competition involved a vehicle purchased with joint funds.

Some nuances of the section

If the court recognizes a gift from one of the spouses as community property, then it can be divided in different shares with a violation of equality. The smaller share will be received by the spouse who:

did not work and did not have income for no valid reason;
neglected the common property, which resulted in a deterioration of his condition.

On the contrary, a larger share will go to the spouse who:

paid general debts from personal funds;
took upon himself the upbringing of minor children;
other similar reasons.

If a voluntary agreement is drawn up, the shares of each spouse can be divided by agreement, at the discretion of the couple.

Wedding gifts

Often during a divorce, former spouses have a misunderstanding - how are wedding gifts divided? Often during division, disputes arise about who gave which gifts to whom and who will receive this or that property.

Most often, wedding gifts are given to the newlyweds as a family, that is, to both, and not to one of the spouses, and they are joint property, but not always.

For example, the groom's parents gave the newlyweds a car, but the deed of gift was issued only to their son. In this case, the vehicle is considered personal property.

If one of the former spouses proves that the gift was intended for him personally, then only he will have the right of ownership of this property; such a gift will not be divided. In all other cases, wedding gifts are considered personal property and are divided equally.

Lack of evidence confirming the fact of donation

To avoid division of property received as a gift, the court must provide compelling evidence that the “gift” was actually intended for a specific person and not a family, such as gifts for a wedding or anniversary. And, of course, it was not purchased with family funds.

As evidence, you need to provide donation agreements or ensure the appearance of witnesses who can confirm this fact. In the absence of both, the judge will most likely decide to satisfy the demands of the first party.

Registration of property rights

The deed of gift is not the final authority when registering housing received as a gift. In addition to a certificate confirming the donation process, ownership of real estate must be registered with special government services.

Important! If the owner of the property does not have a document confirming the ownership of the housing received as a gift, then during the trial, the apartment (house) can be taken into account as acquired property. Submitting a deed of gift in a divorce will not help you keep your gift from being divided.

It is especially important to carry out the procedure for registering property rights when receiving a deed of gift from relatives (parents, grandparents). According to the norms specified in the law, a correctly executed and notarized gift agreement does not make the recipient of the gift its owner.

To become the full owner of the received housing, it is necessary to prepare a fairly large package of documents and submit it to the Registration Chamber.

This list includes:

documents providing information about the housing itself and the persons registered in it;
a gift agreement and consent certified by a notary to carry out this procedure of the spouse, registered residents or guardians (if the donation process is carried out by a subject under 18 years of age);
a document evidencing the ownership of the party making the gift;
act on the assessment of the value of real estate;
receipts for payment of taxes for registration;
documents identifying the person (passport, birth certificate).

Important! The state has defined certain categories of people who do not have the right to receive housing as a gift. These include employees of government institutions: doctors, civil servants, teachers, social workers. employees in government agencies.

Increase in property value during marriage

If valuables received as a gift by one of the spouses have increased in value

as a result of investing funds from the family budget or the efforts of the second spouse, they
are subject to division
during divorce.

To illustrate this situation clearly, we can give an example that is quite common in practice.

The wife received a private house as a gift from her parents. During family life, it underwent expensive repairs and remodeling, as a result of which the price of the house increased significantly. During a divorce, this property will be divided between the parties, since the increase in value occurred due to joint efforts and the investment of common funds.

Apartment as a gift

A donation is an agreement between two entities that one of the parties transfers real estate (apartment, house, land) into the possession of the second, without requiring any payment.

Most often, such gifts can be received from loved ones: parents, children, grandmothers, etc.

But in the event of a family breakdown, one of the parties has to defend the rights to the donated property in court.
Important! If this gift is made by people who are related by blood to the recipient, then they are exempt from paying tax, otherwise the donor is required to pay 30% of the total cost.
Housing obtained in this way is considered personal property and is not subject to division after divorce. Regardless of whether the certificate was presented before marriage or during cohabitation with the other half, it retains ownership only for the entity indicated on it. Such methods are often resorted to by spouses who do not trust their chosen ones and doubt the honesty and reciprocity of their husband or wife.

A deed of gift in case of divorce is a guarantee that the received property will remain with its owner, both while living with the family and after a break in the relationship. In addition to the fact that the other half will not be able to sue for part of the housing, she may even be evicted from the apartment through a court order.

Neither registration nor evidence that the defendant lived on the premises for a long time gives him the right to remain in the apartment or house.

Important! For the gift deed to be valid, all documents must be completed correctly, otherwise the apartment can be divided between both spouses.

There are exceptions to this situation, in which the apartment is subject to division even if there is a gift agreement.

Compensation for investment in gifted property

There are often situations when the owner of the donated property does not want to part with it, but the court has determined that the property was improved or repaired at the expense of the family budget. In such a situation, he can pay the other party compensation for the invested funds in a single amount.

The second option for resolving such a situation is compensation for the invested funds with other property, at a price commensurate with the invested funds.