Application for divorce with division of property between spouses

Application for divorce with division of property between spouses

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When writing a statement of claim for divorce and division of property in 2020, compliance with the rules and regulations set out in the Code of Civil Procedure of the Russian Federation is required. In addition, the plaintiff needs to familiarize himself with the articles of the RF IC on the common property of spouses, and with a number of articles of the RF Tax Code to calculate the state duty. Also, during the court hearing, certain federal laws and regulations may be required. These may be Federal Laws on military mortgages or maternity capital, as well as the charters of credit institutions.

How to correctly write an application for divorce and division of property

A correctly drafted statement of claim is half the battle. When the court can immediately determine all the features of the case, clearly understand the existing relationship with the spouses and identify for itself the property rights of each of them, it will be more likely to make the right decision (from the point of view of the plaintiff). Therefore, when drawing up a document, it is very important to describe in detail all the features of cohabitation, which became the cause of the dispute over the division of property, and be sure to confirm them with documents.

Example : If the plaintiff wants to divide an apartment received by the defendant by inheritance, he must prove that this property became jointly acquired as a result of major renovations carried out by the family during the marriage. This fact must be confirmed by receipts from construction stores, statements from the spouses’ accounts, video and photographic materials, as well as an agreement with the repair team.

Rules for drawing up an application

The rules for drawing up statements of claim are regulated by the Code of Civil Procedure of the Russian Federation (Code of Civil Procedure). In particular, Article 131. This document must contain the following information:

1. Name of the court to which the application is being filed.
2. Information about the plaintiff and defendant.
3. Information about marriage (moment of conclusion and dissolution).
4. Information about children (if any).
5. The price of the claim and the amount of the state duty (to determine them, you need to conduct an assessment of the disputed property).
6. The essence of the appeal, which indicates the characteristics of life in marriage and the reasons that led to divorce. It is also indicated on what basis this or that object can be joint or personal property and why its division is required, as well as in what form.
7. A list of objects, including real estate and transport, that are subject to division.
8. The plaintiff's demands (for example, to dissolve the marriage and divide the specified property).
9. Document attachments.
10. Signature and date.

Features of document preparation

When drawing up a statement of claim, the following features must be taken into account:

• If there is a prenuptial agreement, when preparing a claim, you need to rely on exactly the provisions that are specified in this agreement.
• According to general rules, personal property (became property before marriage, gifted or inherited) is not subject to division. However, under certain conditions, it can be recognized as joint property and then divided.
• Things, school supplies, toys and other items belonging to minor children are not subject to division. They remain with the parent with whom the child remains.
• Not only joint property, but also the debts of the spouses are subject to division.
• Before filing a claim, it is necessary to evaluate all the disputed property. The appraisal must be carried out by a licensed company that has the right to determine the market value of these objects.

Procedure

1. Determine the list of property that is planned to be divided. It is understood that it was not possible to carry out the division on a voluntary basis.
2. Conduct an assessment of the specified property.
3. Select the court to which the application will be filed.
4. File a claim.
5. Pay the state fee.
6. Get a court decision.
7. Act in accordance with the points of the decision.

Advantages of filing a double claim

Personal life, even after the birth of children, does not always proceed successfully. Sometimes people who previously loved each other come to the conclusion that divorce is the only way out. During their long-term cohabitation, they acquire real estate, the division of which most often takes place in court. If one of the parties wants to resolve these two issues at the same time, then a “double” claim is filed. The advantages of this solution are the following:

• resolving several problems at once within the framework of one trial;
• fewer meetings during court hearings (if there were two claims, then the case for each of them would be examined separately);
• faster consideration of the circumstances of the case and, as a result, a decision.

However, sometimes drawing up such a claim is impractical. For example, if there are no obstacles to a peaceful divorce (the children have already grown up or did not exist, and both spouses agree to the divorce), then it would be more logical to carry out the divorce procedure through the registry office, and only then resolve property issues. Such a decision would not be advisable either when the former spouses do not have a question about the division of property - in this case they simply enter into an agreement. This right is reserved to them in paragraph 2 of Art. 38 RF IC.

The disadvantage of resolving the issue through the court in these situations is explained not only by the time costs, but also by the payment of state fees.

Attached documents

Each statement of claim, in addition to a receipt for payment of the state fee, must be accompanied by all documents confirming the text of the appeal to the court. In this case, this may be a marriage certificate, certificates of ownership of the disputed property, receipts, checks, wills and other papers that in one way or another can influence the court's decision.

The defendant also receives the right to provide his own versions of the specified documents, which can confirm that he is right.

Preparing a claim and filing it

The requirements for the content of the claim are regulated by the provisions of the Code of Civil Procedure of the Russian Federation, in particular Art. 131-132 Code of Civil Procedure of the Russian Federation.

Compliance with the requirements listed in them is mandatory, otherwise a document drawn up in violation of these articles is left without movement to eliminate the deficiencies or is returned to the applicant in a number of cases.

These articles establish requirements for claims of any category, listing the general requirements for the document. In relation to claims for divorce and division of property, the requirements for maintenance are not established by law.

The following information must be included in the claim:

1. Name of the judicial authority and its location;
2. Full names of the defendants, their addresses and contact information;
3. Circumstances for filing a claim: date of marriage; actual termination of marital relations, etc.
4. Reasons for divorce.
5. Information about the presence of children, if any;
6. An indication of the consent or disagreement of the second spouse to divorce, an indication of the impossibility of saving the marriage;
7. List of property that needs to be divided and information about it: date of purchase; price; details of title documents;
8. A reference to the position of the second spouse on the issue of division of property, his consent or the essence of the objections. If partial agreement is reached, indicate this.
9. Proposals for the division of property, motivated by evidence;
10. Request to the court for dissolution of marriage and divorce;
11. List of attachments, date of compilation and signature.

The statement of claim is submitted in person to the court reception or sent by registered mail to the court. A claim can also be filed by a representative of the plaintiff, who has a duly issued judicial power of attorney.

Since January 1, 2020, it is possible to file a claim via the Internet, but for this the plaintiff must have an electronic digital signature. Submission of documents is carried out through the ESIA system, which is part of the State Services service.

In relation to the rules for filing a claim, each situation of division of property is individual. Only an experienced lawyer can correctly determine all the circumstances to be indicated in the application. Before drawing up a statement of claim, it is strongly recommended to enlist the support of an experienced lawyer, having first consulted with him.

State duty

Division of jointly acquired property refers to property claims. The amount of the state duty is regulated by subparagraph 5 of paragraph 1 of Art. 333.19 Tax Code of the Russian Federation. At the same time, divorce through the court is a separate action, payment for which is regulated by subparagraph 5 of paragraph 1 of Art. 333.19 Tax Code of the Russian Federation.

In total, the plaintiff will pay 600 rubles for divorce, and for the division of property - from 400 to 60 thousand, depending on the price of the statement of claim.

Example : If an apartment costs 3 million rubles, but the plaintiff claims only half, 1.5 million is taken into account. At the same time, according to the last paragraph of subclause 1 of clause 1 of Article 333.19 of the Tax Code of the Russian Federation, if the value of the claim is over 1 million, the calculation is made on the basis of 0.5% of the excess amount, to which a fixed payment of 13,200.00 rubles is added. In our case, it will be 0.5% of 500 thousand = 2500.00 + 13200.00 = 15700.00 rubles.

Required documents

Copies or originals of the following must be attached to the application:

1. Receipt for payment of state duty.
2. Certificate or certificate of marriage.
3. Documents on the birth of children.
4. Documents indicating the impossibility of preserving the family. For example, certificates of beating by a spouse, sentences or decisions on bringing to administrative responsibility.
5. Confirming rights to property: for real estate - certificates, extracts from the Unified State Register/Unified State Register of Real Estate; for other things - contracts for their purchase, checks, receipts.
6. Valuation documents for property subject to division (from the BTI, Rosreestr, specialist’s report).
7. Loan agreements or receipts for existing debts.
8. Bank certificates about the debt as of the date of filing the claim or independent calculation.
9. Medical documents about the disability or health status of the spouse or common child, in case of demands to increase the plaintiff’s share.
10. Confirming the improvement during the marriage of the sole property of one of the parties to the other or at the expense of family funds (expert opinions, spending money).
11. Evidence of the spouse’s spending not for the needs of the family (use of drugs or alcohol, gambling, etc.), in case of demands to reduce the defendant’s share.
12. Power of attorney for a representative, with his participation in the case.
13. A copy of the claim and its attachments for the defendant, a third party.

Depending on the specifics of the situation, additional documents may be required. If other demands are also made, for alimony or children, it is necessary to attach evidence justifying them.

Deadlines

The consideration of a divorce case and the related division of property takes 2 months. In practice, this period can increase significantly, especially in the presence of difficult circumstances or a high workload of the court. On average, before the preliminary hearing, from the moment the claim is filed, it usually takes about 1 month. Then, after another 1-1.5 months - the main meeting. And only based on its results, if it was possible to resolve all controversial issues, after 5 days a decision is issued to the plaintiff and defendant.

From this moment, either party has 1 month to appeal it, after which it comes into force and nothing can be changed.

According to general rules, disputes of this kind have a statute of limitations of 3 years, however, given the fact that spouses divide property simultaneously with the divorce, in our case this period is not relevant, since it begins to count from the moment of divorce.

Drawing up a statement of claim

To initiate a lawsuit, one of the spouses must draw up and file a statement of claim.

You can get a sample of this document on the Internet or ask a lawyer for help. If you decide to file a claim yourself, its form must contain the following:

1. Name of the court.
2. Details of the plaintiff and defendant - full name, addresses and telephone numbers.
3. Information about the third party (name, location). If debts are divided, then it is necessary to involve a creditor - a bank or other legal entity or individual.
4. Cost of claim.
5. Amount of state duty.
6. The title of the document is “Statement of Claim.”
7. Information about the marriage - when and by what registry office it was concluded.
8. Indication of the presence of minor children - their full name, date of birth.
9. Information about whether the spouse agrees or not to divorce.
10. If the defendant does not want to dissolve the marriage, it must be indicated that maintaining and continuing further family relationships is impossible. Describe the reasons (for example, alcohol or drug abuse, rude attitude, betrayal, etc.).
11. A list of joint property acquired during the marriage, its value.
12. A list of those things that the plaintiff claims.
13. Data on debts, loans, receipts, including mortgages. It is necessary to provide evidence that the funds taken were used for family needs. Indicate the amount of unpaid debt subject to division, with interest, fines, penalties.
14. Justification for increasing the plaintiff's share in the presence of the circumstances specified in paragraph 2 of Art. 39 of the Family Code of the Russian Federation.
15. A proposal for compensation, monetary or by transfer of any thing, if one of the parties to the dispute loses property in a smaller amount or it is indivisible.
16. The requirement and arguments for recognition of any property of the defendant as jointly acquired and subject to division, in accordance with Art. 37 of the Family Code of the Russian Federation.
17. References to legal norms (Articles 22, 23, 34, 37, 38, 39 of the Family Code of the Russian Federation).
18. The pleading part is a demand to dissolve the marriage, to make a division, transferring specific property to the plaintiff and defendant.
19. List of attached documents.
20. Date, signature.

This statement, in addition to property issues and divorce, may also include other requirements, such as:

1. Collection of child support.
2. Receipt by one of the spouses of maintenance from the other.
3. Determining the place of residence of children.

When making any of these claims, the claim must include the relevant information.

Rules for filing a claim for divorce and division of property

If the value of the claim exceeds 50 thousand rubles, the issue of divorce and division of property (as well as any other issues related to this procedure) are considered in the district court. If the value of the claim is less than 50 thousand, the decision will be made by the magistrate court at the place of registration/residence of the plaintiff or the location of most of the disputed property.

When considering a case, decisions may be made simultaneously regarding other factors related to it. For example, establishing the amount of alimony or determining the child’s place of residence. It is recommended to provide for all of them when filing a claim.

Settlement agreement

If during the consideration of the case in court, but before the decision was made, the parties were still able to agree and come to an agreement that suits them, they can enter into a “Settlement Agreement”. In fact, this means that instead of a court, the decision is made by the parties to the conflict, and the judicial authorities only approve it. Of course, this is only possible if the parties have a desire to negotiate and the ability to find “common ground.”

Example : Initially, the wife planned to demand that her husband pay her monetary compensation for half of the apartment owned by the former spouses as joint property. However, the husband could not afford to make such a payment. At the same time, he doesn’t really need this property. In such a situation, the spouses agree that the wife takes the apartment for herself, and the husband also becomes the personal property of the jointly acquired car and dacha.

Judicial practice and court decision on the claim

The practice of making court decisions on issues related to partition and divorce is extensive. But it rarely deviates from the principle of equality of shares.

Example: citizen R.M. Cherkasova filed a claim with the Zamoskvoretsky Court of Moscow. In it, the woman insisted on dissolving the marriage with her husband and dividing the jointly acquired property. A two-room apartment and a Peugeot car, issued on credit, for which the spouses had to pay another 250 thousand rubles, were designated as common property. debt.

The judge reviewed the terms of the case and made a decision, having previously agreed upon it with representatives of the bank where the loan was issued.
In accordance with it, both spouses received equal shares in the apartment. The remaining debt on the loan was transferred to the husband, with the subsequent registration of the car as his personal property. The man was ordered to pay his ex-wife monetary compensation in the amount of 320 thousand rubles. (half the amount paid on the loan). Divorce and division of jointly acquired property in 2020 must be taken very seriously. It is advisable to obtain preliminary legal advice on drawing up a statement of claim.

Features of civil marriage

A civil marriage is currently not recognized as equal to an official one, and therefore all property purchased by one of the “spouses” is considered his personal property, regardless of how and under what circumstances it was acquired. The main problem when dividing such property is to prove that a particular object is truly joint property. More often than not, it is almost impossible to prove this. In practice, when trying to divide property between people living in a civil marriage, both parties usually remain with their own. That is, with those objects that are registered personally to them.

The difficulty of dividing property is primarily due to the lack of evidence that it was acquired during marriage. This is not a problem when all the receipts, contracts and agreements are available, but many married couples rule out the possibility of divorce until the last moment and do not keep such documentation. We recommend discussing all the specifics of your case during a free consultation with our lawyers. They will help develop the basic rules and position of the plaintiff, and will also act as representatives in court, thereby significantly increasing the chances of a successful resolution of the case.

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How to file an application for division of property in court during a divorce?

When filing a claim, it is advisable to adhere to a certain algorithm of actions. Procedure for preparing and filing a claim:

1. Drawing up a statement of claim . At this stage, it is advisable to contact an experienced lawyer; he will help you draw up a legally competent document and advise the plaintiff’s further actions.
2. Collection and preparation of required documents and evidence . It is necessary to find and collect all the documents mentioned in the claim, restore lost ones if necessary, obtain the consent of witnesses, if any, and their testimony can help in the process. The court requires that if the applicant mentions any fact in the claim, it must be supported by documents or with reference to the testimony of a specific person named in the claim as a witness.
3. Determination of the cost of the claim, calculation and payment of state duty . As mentioned above, the value of the claim is taken to be only the value of the property claimed by the plaintiff. But in the application, in addition to the value of the property claimed by the plaintiff, the value of all joint property must be indicated.
4. Formation of a package of documents . It is necessary to check again whether all the documents required and mentioned in the application have been collected, and if necessary, add any missing ones. It must be remembered that as many copies of statements of claim are submitted to the court as there are parties involved in the case.
5. Filing a claim in court . The plaintiff must either personally bring the entire package of documents to the court office, or send them by registered mail with return receipt requested. The second option is preferable, since if the plaintiff made any inaccuracies or mistakes, the court will send a ruling to the plaintiff indicating all the mistakes made in a list. When independently visiting the office, these shortcomings will be indicated to the plaintiff orally; he may forget something, hear something wrong and, accordingly, make a mistake again.
6. Elimination of defects . Often, plaintiffs still forget to attach some paper; often, while documents are being collected, some certificate becomes invalid; there may be errors or inaccuracies in the text of the statement of claim. In such cases, the court returns the statement of claim to the plaintiff with a requirement to correct the shortcomings within a certain period of time. It is necessary to meet the correction of all errors and inaccuracies within the time period specified by the court.

Separately, it is necessary to dwell on the formation of a package of documents.

The following must be attached to the statement of claim:

• copies of the statement of claim in accordance with the number of participants in the process;
• a copy of the marriage certificate or registration record from the registry office, if you do not have the marriage document on hand;
• if the marriage is dissolved - a copy of the divorce certificate;
• receipt for payment of state duty (original);
• all title documents, as well as sales receipts for the purchase of this or that property proposed for division.

State duty

To pay the state duty, the plaintiff must contact the court to which he will subsequently file a statement of claim with a request to provide him with the details for paying it. The plaintiff must calculate the amount of payments himself or with the help of a lawyer if he is not sure that he can calculate it correctly.

The amount of the state duty depends on the value of the claim and is calculated according to a combined principle: a fixed part and a percentage of the cost of the claim.

Table 1. Calculation of the state duty for filing a claim for division of property depending on the price of the claim

If the plaintiff files a so-called combined claim in court, that is, he simultaneously demands a divorce and division of property, then the state fee will also consist of two parts: 600 rubles for divorce and the amount calculated from the table for the division of property.

For example, Natalya I. decided to file a claim for divorce and division of property in the district court, the cost of the claim was one and a half million rubles. Natalya will have to pay a state fee for divorce on a loan in the amount of 600 rubles and an additional amount in the amount of (13,200 + 500,000 * 0.5%) = 15,700 rubles. The final amount of the state duty will be 16,300 rubles.

The court will not accept the statement of claim if the original receipt for payment of the state duty is not attached to it, or its amount does not correspond to the stated price of the claim.

Limitation of actions

The statute of limitations for filing a claim for division in court is three years after the date on which he learned of his right to property. Most often, the reference date is considered to be the day of divorce or the day the court decision entered into force if the spouses were divorced in court.

But there are situations when the statute of limitations is extended, sometimes by years.

For example, the P. spouses divorced in March 2010, and five years later (in June 2020) the ex-wife found out that during the marriage, her ex-husband took out a loan to buy a summer cottage, which he did not notify her about, but secretly paid off the loan from joint money, explaining the decrease in salary by the fact that he was not paid a bonus. In this case, the statute of limitations begins at the moment when the plaintiff learned about the secret purchase of her ex-husband, that is, in June 2020, and she has the right to file a claim for the division of the dacha plot until June 2020.

Time limit for consideration of the claim

The legislation establishes a period of two months for the consideration of cases on the division of joint property, which is exactly how long must pass from the date the application is accepted for consideration until the day the decision is made in court.

But the division process may take much longer if court hearings are repeatedly postponed, the defendant delays the consideration of the case, demanding any assessment procedures, inviting more and more witnesses and experts to the court. Therefore, the plaintiff must be prepared for a lengthy trial.

Interim measures for division of property

If there is a threat of loss or damage by the defendant to the property declared for division, the plaintiff may apply for the application of measures to secure the claim to the disputed property.

These measures may be requested by the plaintiff and imposed by the court:

1. Seizure of property with a ban on its disposal and transactions.
2. Prohibition of use of property.
3. Seizure of bank accounts.

A request for interim measures can either be indicated immediately in the claim or stated in a separate document if it is necessary to present additional evidence of the threat of loss of property.