Often the question of how property is divided during a divorce is considered very relevant. Not everyone understands how everything should happen, and during the divorce process, emotions take over. As a result, various mistakes are made, which leads to financial losses. There are several features of how property issues are resolved during divorce.
You can read about how to file for divorce through State Services in our article - here.
Division of property in the presence of a contract
In case of divorce, joint property is divided in equal shares with a few exceptions:
- personal belongings cannot be divided;
- things belonging to minor children: they are transferred to the spouse with whom the child will subsequently live (how to sue a child in a divorce?);
- property acquired by one of the parties before marriage.
If the husband and wife entered into a marriage contract, then the division of property will occur differently, namely as indicated in the document. It stipulates not only the types of jointly acquired property, but also the timing when it should be transferred to one or the other party.
In addition, a marriage contract will allow you to resolve issues regarding the division of obligations that arose during family life. This is especially true in the case where the family purchased housing with the help of a mortgage loan.
Judicial perspective on contract review
It will be possible to challenge certain provisions of the marriage contract or even declare it void only if there are real grounds. To do this, the injured party needs to file a claim asking:
- cancel the marriage contract, which has no legal force on the basis of the provisions of paragraph 3 of Art. 42 IC RF. Then all property will be considered jointly acquired and divided between the spouses;
- invalidate certain provisions of the contract that infringe the rights of one of the parties. In this case, by a court decision, some of the provisions will be excluded from the document. The remaining clauses of the contract will have to be fulfilled.
It is possible to change the procedure for dividing property if, since the signing of the document, the circumstances of the spouses have changed significantly, or if the husband or wife does not fulfill the terms of the contract. It is quite possible to annul a marriage contract if it can be proven that it was signed under pressure or one of the parties was deliberately misled about the legal consequences of their actions.
When to enter into an agreement?
The law allows you to sign a marriage contract at any time , including before the official registration of marriage. Another thing is that it will come into force only on the wedding day.
Before parting
The document can be drawn up and signed at any time during the marriage.
If the spouses realized that things were heading towards divorce, and at the same time they amicably decided how they would divide the acquired property, then it makes sense to conclude an agreement before the divorce itself.
If the contract was signed immediately after the wedding or even before it, then by the time of the divorce the property status of the spouses could have changed. Therefore, it is advisable in this case to make changes to the document or draw up a new one.
During divorce proceedings
This option is also not excluded. In this case, the document will be drawn up in court during the hearing. A contract drawn up during a court-ordered divorce will be similar to a property division agreement.
However, unlike the mentioned document, the marriage contract will determine not only what will go to each of the parties . It can indicate exactly when this property will be transferred. For example, if the spouses currently have a debt on a mortgage loan, then you can specify the procedure for paying it and further dividing the housing. You can also establish what will belong to the child after he reaches adulthood.
In addition, property can be divided within three years – the statute of limitations. But even after this time, the division can be carried out without trial, if, of course, the ex-husband and wife can peacefully resolve all issues.
After the breakup
It is impossible to conclude an agreement after divorce . The fact is that a marriage contract regulates the property relations of a married man and woman. If their status has already changed, then there can be no talk of an agreement.
Article 40 of the Family Code of the Russian Federation states that a contract is an agreement between persons who intend to enter into marriage or are already in it, but who are not divorced.
How we came up with the idea of a prenuptial agreement
We met my future wife through friends, they invited her and her friends to a party at my house. I really liked her, and it was mutual. We quickly began to live together, and a year later we got married.
Before marriage, she had a share in her parents’ apartment, but I had nothing. We both worked. Her dad is a businessman. She only worked 8 hours a week for him, but she earned a little more than me.
In the first year of our marriage, we rented an apartment. Then we decided to buy our own because we were expecting our first child. We chose a 100-meter apartment in Moscow for 12.5 million rubles in a panel house near the Shchelkovskaya metro station. They paid an additional 2.5 million rubles for repairs. The ownership of this property was, of course, registered in the name of the spouse.
4 years after this, the wife’s parents bought themselves an apartment near the Pervomaiskaya metro station. They offered to buy it for us in the same house. Then they asked 45 million rubles for it.
The new apartment was also registered in his wife’s name. But even before the purchase, she offered to conclude a marriage contract. I think this idea came from her parents in case of divorce, to make it easier to divide property. I reacted to the idea extremely calmly and immediately agreed. Both her and my parents were even surprised at this reaction. My father-in-law gave me almost all the money, and I understood that it was not my property.
A prenuptial agreement can be drawn up at any time during your married life and before. Without it, property acquired during marriage is divided in half upon divorce (with the exception of inheritance and donation). Once the document is signed, it cannot be terminated unilaterally. But if both want to make changes, then the old contract is terminated and a new one is concluded.
Is it possible to challenge a document in the Russian Federation and how to do it?
One of the reasons why a marriage contract may be challenged is the incapacity of one of the parties. Therefore, when signing a marriage contract, it is necessary to present a certificate of legal capacity , even if the notary does not require it.
If one of the parties is dissatisfied with the way property is divided under the marriage contract, she can challenge it during the divorce hearing. You can challenge a marriage contract after a divorce by following the law and adhering to certain rules.
Deadlines
To resolve this issue, the statute of limitations is set at one year . Its countdown begins from the moment when the circumstances leading to the dispute became known, or these facts should have become known. If we are talking about recognizing the contract as void, then this can be done within three years.
Filing a claim
Cases challenging a marriage contract are heard in courts of various jurisdictions, depending on the total value of the property listed in it.
If it does not exceed 50 thousand rubles, then you should contact the World Court. In other cases, the dispute will be resolved in the district court.
Usually it is necessary to submit documents to the court at the place of registration of the plaintiff . If the place of registration does not coincide with the place of actual residence, then, if there are good reasons, you can contact the authority at the place of residence. In some cases, it is allowed to file a claim based on the location of the property.
Based on the provisions of the Civil Procedure Code of the Russian Federation, the statement of claim must contain the following information:
- full name of the court, its address;
- details of the plaintiff and defendant: full name, passport details, registration, date of birth;
- cost of claim;
- a detailed statement of the essence of the dispute;
- references to legal provisions;
- links to documents that confirm the plaintiff’s position;
- direct claims;
- date of application;
- plaintiff's signature;
- list of documents attached to the application.
State duty
The amount of the state duty depends on the total amount of property specified in the marriage contract. It is calculated as follows:
- for an amount less than 20 thousand rubles. – 4%, but not less than 400 rubles;
- from 20 to 100 thousand rubles. – 3% + 800 rub.;
- from 100 to 200 thousand rubles. – 2% + 3200 rub.;
- from 200 to 1000 thousand rubles. – 1% + 5200 rubles;
- more than 1 million rubles – 0.5% (but not more than 60 thousand rubles) + 13200 rubles.
Required documents
The following documents are required:
- marriage contract;
- plaintiff's passport (copy);
- marriage certificate;
- divorce certificate;
- documents confirming ownership of the property specified in the marriage contract;
- receipt of payment of state duty.
In addition, the documents that were listed in it as evidence of the plaintiff’s position should be attached to the application. Photographs and videos are also considered evidence.
Depending on the specific situation, the court may request additional documents.
On our website you will find other articles about divorce:
- Where to apply?
- What documents are included in the procedure?
- One-sided divorce.
- Grounds for termination.
- Features of divorce from a foreign citizen.
- Timing of the procedure.
- State fee for divorce.
- Especially if there are minor children and during pregnancy.
Modification and termination of the contract
The possibility of adjusting or canceling written agreements is provided. According to its norms, a document can be changed and canceled voluntarily or compulsorily. The first option involves the spouses jointly applying to a notary to sign an additional agreement to the contract or cancel it completely.
It is impossible to refuse to fulfill the terms of the contract unilaterally. If there is a need to revise the agreements reached, but it is not possible to reach a consensus, the parties will have to go to court.
Purchasing an apartment in a building under construction
Let's imagine a couple in love, newlyweds. Ivan, the head of the family, earned money for an apartment and signed for a house under construction, located in St. Petersburg Kupchino. Ivan’s money, the two-room apartment and the keys will be received in six months, and the wedding is the other day. When Ivan takes ownership, the apartment will be shared. So that Ivan is not left without real estate, and at the same time he invests personal funds, since Marina (wife) does not work, this nuance will need to be spelled out in advance in the marriage contract.
Methods for drawing up a marriage agreement
There are three options:
- Find a template on the Internet and draw up an agreement yourself to suit your needs;
- use the services of a lawyer;
- find a notary. The notary's office cannot be ignored; the contract must be certified.
State The fee for concluding an agreement is 500 rubles. Of course, during periods of romantic love, it seems that you have found the one. Life presents its own adjustments, often not the most pleasant ones. We cannot take responsibility for the actions and decisions of another person, so in certain situations we should think through everything in advance in order to protect ourselves from possible financial risks.
Situation No. 2
The situation is identical, but Ivan is engaged in business and works tirelessly. At the start it was impossible to earn anything, but as soon as he planned to get married, dividends began to flow. Marina is a student, not working, studying.
The guys have a plan:
- marriage;
- buying a property;
- buying a car.
Only Vanya will receive the money, since Marina is not working yet. To avoid controversial issues, they sign an agreement stating that in the event of a divorce:
- apartment – Vanina;
- car – Marinina.
Further acquired property will be divided in half.
Will I enter into a prenuptial agreement in the future?
For now, I don’t even want to officially register my next marriage. For what? If people want to be together, they will be.
It seems to me that a prenuptial agreement is not needed in partnerships when the spouses have approximately the same income. And it doesn’t have to be concluded when both have nothing - for example, the family lives in a rented apartment.
But it is worth drawing up when one of the parties has significantly more values than the other. It is needed for safety. Both sides must understand and accept this. Then this is normal and will not cause any damage to the marriage.
Read on topic: Financial protection: do it before the wedding
