A claim for division of a car between spouses, how to divide a car after a divorce, documents + examples of judicial practice

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Rarely does a divorce proceeding proceed without a dispute over the division of the partners' common property. If household items, household appliances and furniture can be divided “by eye”, then expensive things or objects give rise to a serious conflict that can only be resolved by the court.

One of the most important objects that spouses seek to obtain as their property during a divorce is a vehicle. Let's look at how not to divide a car during a divorce.

Is a car subject to division upon divorce?

Content

The answer depends on the circumstances of the vehicle purchase. The car is definitely divided:

• acquired by spouses after marriage registration;
• purchased before the wedding, but registered as a common property.

Car sharing is required regardless of whether both family members work. A housewife spouse, including one caring for a small child, claims an equal share of the cost of the car.

Physically dividing the car is impossible; in practice, the following options are used:

• the spouse receives a car, the spouse receives monetary compensation equal to half the cost of the car (or vice versa);
• one party receives a car, the second - property equal to half the cost of the car;
• The car is sold, the money is divided between the former spouses.

In what cases is the car not divided?

The law defines a list of circumstances preventing division:

• the car was purchased by one of the spouses before the wedding;
• acquired by one party on the basis of a non-cash transaction (donation, inheritance, lifelong maintenance agreement);
• is a means of obtaining the main income (for example, when the husband is engaged in transport or passenger transportation);
• is personal property (for example, purchased for a spouse with a disability and equipped with special equipment).

The situation changes if the car is taken over by a child. In this case, it goes into the use of the parent with whom the minor will live. In this case, compensation or compensation to the second spouse is not provided.

A similar situation arises if the car is issued to a disabled child and is registered in the name of one of the parents. The vehicle goes to the one who will live with the child.

Are cars subject to division?

To clarify this issue, it is necessary to determine the status of ownership.

There are 4 types of it:

1. Spouses' shares are not fixed . The car was purchased with common money and is jointly owned.
2. The shares due to the husband and wife are regulated in the relevant legal document (marriage contract, document certified by a notary). We are talking about shared ownership.
3. The car was purchased before marriage, given as a gift , or the funds invested in its purchase were not the common funds of the spouses, but represented the personal property of one of them.
4. A vehicle (vehicle) was purchased during a joint family life, but the car is registered in the name of the husband or wife, which is stated in the marriage contract . In this case it is separate ownership.

Please note that in the case of personal ownership, the owner is not required to obtain official consent from the other half for the sale or other form of alienation of the car. If we are talking about joint or shared property, then the issue cannot be resolved without the approval of the former spouse.

Forms for car division during divorce

The car is divided equally, unless the spouses draw up a document providing for a different division procedure. In particular, spouses have the right:

• conclude a marriage contract (during marriage or before its registration);
• draw up an agreement on car division (at any time).

The decision on the division of values ​​and the allocation of shares is made by the court on the basis of the submitted documents.

Property acquired during marriage is recognized as common property, regardless of the size of the contribution of each spouse when acquiring it.

In exceptional cases, spouses receive different shares.

For example, the parent who has custody of the child may receive a larger share.

The decision to divide is made based on the estimated value of the property.

A car is an indivisible property. If there are two of them in a family, division in kind is possible. But even then the cost of each vehicle is taken into account.

An alternative way is to sell the car. The proceeds are divided in half. The following rules apply when selling:

• sale only by mutual consent;
• re-registration of the car at the general request;
• Income tax is first calculated on profits.

A common situation is the transfer of a vehicle to one spouse with payment of monetary compensation to the second. If the couple had nothing other than a car, the division order will be as follows:

• assessment of the value of the object;
• dividing the price in half is the amount of compensation.

Compensation is subject to taxation - 13% in favor of the state treasury.

Car valuation

The procedure is necessary to calculate the state duty when filing a claim in court and to determine the size of the shares of each party.

Principles and rules for carrying out appraisal examination:

1. The verification is carried out at the initiative of one of the spouses.
2. You can contact a private or government organization. It is important to check whether you have a license to carry out appraisal work on vehicles.
3. The cost of appraiser services depends on the number of objects, locality, competition, and affiliation of the office (public, private). The approximate cost will be 2 - 5 thousand rubles.
4. A contract for the provision of services is concluded with a specialist. He arrives at the site and checks for the presence of objects, inspects them and photographs them. Based on average market prices, sets the cost and prepares an official conclusion.

During the judicial division of property, in the event of distrust of a previously compiled report, one of the parties to the dispute may request a new independent examination. When granting the request, the judge will independently appoint a responsible appraiser.

Car assessment by an expert

During the consideration of the claim for division, an assessment of the value of the car may be required. Determining it is necessary to calculate the amount of compensation paid to the second party.

If the car was purchased recently and has not been in an accident, there is no need to evaluate it. The price specified in the purchase and sale agreement is taken into account as the cost. In other cases, you may need to contact an appraiser.

Should the car go to the parent with whom the children stay?

Not really

You can only choose a specialist who is a member of the SRO. Before concluding a contract for the provision of a service, you should check whether it has:

• documents confirming receipt of specialized education;
• a valid professional activity insurance contract;
• documents confirming membership in the SRO.

A car assessment can be carried out in one of the following ways:

• based on the technical documentation for the machine;
• based on visual inspection and testing.

Upon completion of the work, the expert draws up a report indicating the cost of the object and its justification. This document serves as the basis for calculating compensation.

Car division by agreement

Signing a settlement agreement is a right of the participants, which they may not exercise. Table “Principles of dividing a car peacefully”

Sample agreement

Settlement agreement on car sharing

February 12, 2020 Magnitogorsk

Citizen Kaseinov Anton Adamovich, born in 1988, living at the address: Magnitogorsk, st. Liteinaya, 124, (hereinafter, husband) and Citizen Kaseinova Klavdiya Andreevna, born in 1990, resident: Magnitogorsk, Dalnee Shosse, 79, (hereinafter, wife) registered an official marriage on April 14, 2014 in the Central Civil Registry Office of the city of Magnitogorsk ( entry entered into the civil registration book on April 14, 2014 No. 458/2014).

During their marriage, the husband and wife, using their shared savings, purchased a Lexus car worth 1,500,000 rubles. The vehicle is registered with the traffic police in the name of A. A. Kaseinova.

On January 15, 2020, the couple filed for divorce by mutual consent, which is confirmed by divorce certificate No. 549587 dated January 15, 2019. Taking into account the dissolution of the marriage, the termination of cohabitation, guided by the articles of the Family Code, the husband and wife signed a settlement agreement on the division of joint property.

Accepted terms:

1. Carry out the division of a shared Lexus car purchased on October 25, 2015, with a total cost at the time of drawing up the agreement of 1.5 million rubles.
2. The order of division - the car completely passes into the possession of the husband A. A. Kaseinova, who undertakes to pay the second party - K. A. Kaseinova - monetary compensation in the amount of half the cost of the car - 750,000 rubles.
3. The transfer of money will occur in stages - in three payments of 250,000 rubles. Until the 15th of April, June and August. Transfer method: to Sberbank bank card No. 1256 2354 8575 8965, issued in the name of Klavdiya Andreevna Kaseinova.
4. The document comes into force after signing by the participants.
5. 3 copies of the agreement have been drawn up, one of which is submitted to the traffic police to confirm the owner.
6. In case of violation of the terms of the contract (in the absence or delay of monetary payments), Kaseinova K. A. reserves the right to apply to the court with a statement of claim for forcibly withholding money.

Husband’s signature __________ confirm that the agreement was drawn up voluntarily Wife’s signature __________ confirm that the agreement was signed voluntarily

How to compose it correctly?

A statement of claim is a document that is a form of expression of a claim, which is drawn up in accordance with Art. 131 and art. 132 Code of Civil Procedure of the Russian Federation. The application shall indicate:

• location and name of the court;
• details of the plaintiff;
• details of the defendant;
• plaintiff's claims;
• evidence supporting these claims;
• financial component;
• information about pre-trial settlement;
• list of attached documents.

The court makes a decision to initiate proceedings in the case within 5 working days .
The statement of claim usually consists of three parts:

• The introductory part of the statement of claim is usually located in the upper right segment of the sheet, and the subject of the claim is directly under the heading “statement of claim.” The descriptive section of the statement usually includes the specific facts and circumstances of the violation of the plaintiff’s interests and his claims, as well as the evidence on which the plaintiff bases them. If there were attempts to resolve the problem pre-trial, then information about this is indicated here.
• The motivational part is often combined with the introductory part. This section identifies the facts and circumstances of the case that support the plaintiff's claims.
• The final part sets out the specific demands of the plaintiff.

Information provided in the application

In addition to basic information, the claim for car division must also include the following information:

• vehicle make;
• date and place of purchase of the car;
• year of issue;
• frame, body and engine number;
• state license plate;
• registration with the traffic police;
• to whom the car is registered and who actually uses it;
• market price of the vehicle.

The following documents are attached to the claim:

• passport scan;
• a copy of the marriage or divorce certificate;
• act of independent expert assessment of the vehicle;
• paper certifying ownership of the car;
• loan document if the vehicle was purchased on credit;
• check for payment of state duty.

The period during which spouses can file a claim for division of a car is three years (Part 7, Article 38 of the RF IC).

Car division through court

The algorithm of actions of participants during the trial is as follows.

1. Filing a claim by the interested spouse. The claim is prepared independently or by a specialized lawyer.
2. Collection of necessary documents. Copies of documents are attached to the claim, but the applicant must have the originals when applying to court.
3. Transfer of the claim at the defendant’s place of residence to a magistrate’s court (if the plaintiff’s expected share is up to 50 thousand rubles) or a district court.
4. The wait for a court decision is 3-4 months, depending on the authority involved.
5. The decision entered into legal force is 1 month after the end of the process.
6. Implementation of a judicial verdict, which is binding on all participants in the proceedings.

Documents and state duty

The amount of the state fee for consideration of a property claim depends on the price of the disputed property. A detailed algorithm for calculating deductions is here.

The court will refuse to accept the application if the plaintiff submits an incomplete package of documents. Mandatory are:

• participants' passports;
• marriage/divorce certificate;
• title documents for the car;
• technical documentation for the vehicle;
• conclusion of the appraisal examination;
• receipt of payment of state duty;
• confirmation that the defendant received a copy of the claim before submitting the petition to the court (guarantees that the period for consideration of the dispute will be reduced).

Sample statement of claim

Judge of the District Court of Solnechny, Krasnodar Territory

Plaintiff: Oleinik Marta Fedorovna, born in 1992,

Address: Solnechny, st. Raduzhnaya, 14

Defendant: Krasnov Artur Georgievich, born in 1987,

Address: Solnechny, Mirny Ave., 14/8

Cost of claim: 1,000,000 rubles

Statement of claim for division of joint property of spouses

On November 29, 2020, an official marriage was concluded between me, Oleinik Marta Fedorovna, and the defendant, Artur Georgievich Krasnov, registered in the Central Civil Registry Office of the city of Solnechny (registry record 4585/2017).

During our time together, thanks to mutual savings, we purchased a 2009 Audi passenger car, body number 1254GH1458BD1254, registered with the traffic police.

When purchased, the car was registered in the name of the defendant. At the moment, the vehicle is in the use of Krasnova A.G. During my marriage, I have driven the car several times and used it for its intended purpose.

Guided by Art. 34, 38, 39 of the Family Code of Russia, as well as Art. 98 of the Civil Procedure Code, I ask:

1. Recognize the car as the joint property of the spouses and approve dividing the car in half - 500,000 rubles to each spouse.
2. Considering that the transport cannot be divided in kind with the transfer of a full share to one participant, I ask you to leave the car for further use by the defendant, but withholding monetary compensation in my favor in the amount of 500 thousand rubles.
3. I ask you to transfer the money to a Sberbank bank account 4578 2568 8457 6235, opened in my name, in one payment.

Oleinik M. F. Signature

01.04.2019

Arbitrage practice

Example from judicial practice:

Before his marriage, Karpov S.K. inherited from his father a car that was faulty and unsuitable for its intended use. After the wedding, Karpov invested significant amounts of money monthly in repairing the car, which subsequently ensured its full repair and the possibility of operation.

During the divorce, the wife filed a lawsuit with a request to recognize the vehicle as common, citing the joint costs of repairing the car (according to financial documents, the investment amounted to 800 thousand rubles), which resulted in a significant improvement in the condition of the car. The woman also requested monetary compensation in the amount of 400 thousand rubles, which were spent on repairs.

The judge granted the claim in full.

When is a car purchased before marriage still divided in a divorce?

The following rule is important: property can be recognized as joint property if, during the marriage, one of the spouses made a significant contribution to the repair and operation of the property. Thus, if a car was purchased by one of the citizens before marriage, but during the marriage, the second spouse repaired the car, invested large sums of money in the reconstruction or maintenance of the car, during a divorce, the property can be recognized as joint property in court. This rule is reflected in Part 2 of Art. 256 of the Civil Code of the Russian Federation.

Interestingly, the same rule applies to property transferred by inheritance or gift. If during the marriage one of the partners made a significant contribution to the property or improved it, it can become common. Improvements mean:

1. Material investments in a car are personal funds or joint money of the spouses.
2. Personal participation in car repairs. For example, my wife inherited a car, but it did not work due to engine failure. The husband, in turn, repaired the engine, as a result of which the car increased in price and became operational. It is likely that the property will become common property.
3. Machine maintenance.

At the same time, improvements do not mean:

1. Payment of taxes and fees associated with owning a vehicle. These are taxes, insurance premiums, insurance and more.
2. Payment for gasoline, oil and other types of fuel that allow you to travel by transport.
3. Incurring current costs includes regular inspection and maintenance.

In a court hearing during a divorce, one of the spouses who made a significant contribution to the car needs to prove this by providing a package of documents. This may be testimony of witnesses, conclusions of expert appraisers, orders and receipts indicating the incurrence of expenses, sales receipts, etc.

Lawyer's answers to frequently asked questions

Is it possible to sell a car before divorce and buy it back after?

Yes, you can sell a car, but only with the written notarial consent of the second spouse. Profits are divided in half. If there was no permission, then the transaction is invalid and the car is returned to the family. You will be able to buy the car later. If a spouse makes a purchase after a formal divorce, the transport will not be divided.

My wife and I divorced, but due to circumstances we did not divide our joint property. Can I sell my car?

No, until the division of joint goods, all property is considered common. Therefore, alienation transactions are carried out only by general consent.

After the divorce, the children remained with their mother. Will this fact have an impact when dividing the car?

No, according to the law, children cannot claim their parents' property during a divorce. It is extremely rare for a court to increase the share of one spouse due to the transfer of children into custody, but this is the exception rather than the rule.

Is a car shared in a civil marriage?

No. Without official registration of family relations, mutual obligations and rights do not arise. An exception is registration of a purchased car as joint ownership.

I bought a car after a divorce from my wife, but the property had not yet been divided. Will such a purchase be subject to division?

No, all valuables purchased after a divorce are personal property. And the benefits acquired during marriage must be divided.

When married, my wife and I purchased a car using consumer loans. A year later it was sold, the loan debt remained. Is it subject to division in a divorce?

Yes, debt obligations are divided in the same way as property.