How land is divided between spouses during marriage and after divorce

On what principle is the division of a land plot carried out?

When a married couple who has been married for a long time decides to separate and divide the property acquired together, there are two ways to resolve the situation. Firstly, you can reach an agreement peacefully and do without involving third parties. Secondly, not wanting to give in to each other, the parties go to court.

Legal costs become a minor obstacle in the resulting process. Mainly, each spouse wants to keep more for themselves than the other side of the dispute. In such situations, the court adheres to some basic tenets:

conflict situations are regulated using the Family Code and the branch of legislation responsible for public relations in such proceedings - Land Law;
plots obtained through joint acquisition during a joint life, privatized, or acquired for perpetual use are subject to division;
the right to property remains with the person if he acquired it before the official marriage, even if the privatization of the plot was carried out already during cohabitation.

At the same time, the Family Code gives a clear picture of the ownership of plots in relation to spouses. They are considered common if they were acquired by the husband, wife or jointly during marriage. Land Law is used to guide the need for property registration and land surveying. The division is carried out into one or more parts, subject to a number of necessary obligations. Shares during division can be equal or proportional, in accordance with ownership - a third, a quarter.

How land plots are divided during divorce

The division of a plot of land belonging to divorcing spouses, as well as the division of other joint property, can be carried out in two ways:

by agreement of the spouses;
through the court.

In the first case, the spouses who have agreed on the procedure for dividing the land should draw up an agreement. The signed agreement specifies all the conditions for dividing the plot of land on which mutual agreement was reached.

This document will allow you to accurately determine the rights of the parties to shares of the land plot. As practice shows, this option for dividing a plot of land between divorcing spouses is less expensive and complex compared to judicial division.

However, here too there are a number of controversial issues and legal nuances, so before signing an agreement it is better to consult with an experienced lawyer specializing in this particular legal area.

If the divorcing spouses cannot reach an agreement regarding the division of a plot of land during the negotiation process, the procedure for allocating a share of this plot or dividing it will be carried out through the court. At the same time, the main rule, following from the Family Code, which the judge is guided by when dividing, is that joint land should be divided between the owner-spouses into equal shares.

Quite often, according to judicial statistics, the division of plots of land during the divorce of spouses occurs precisely through going to court. Such a judicial procedure also has a number of difficulties and often takes a long time.

In addition, the division of property in courts, as is known, causes a lot of trouble for the parties, since both the plaintiff and the defendant need to become at least a little familiar with family and procedural law or consult with a specialist.

Then follow the mandatory procedures - collection and transfer of certain documentation to the court office, competent preparation of the statement of claim, participation in court procedures and other procedural actions.

Regardless of whether the division of a plot of land was carried out by agreement of the spouses-owners or in court proceedings, it is subject to further state registration.

Can all land plots be divided during a divorce?

Initially, the division of the land into equal parts is determined for each of the former spouses, but the parties can enter into a settlement agreement with their own conditions, according to which the division is made in unequal proportions.

When it is not possible to reach an agreement, either spouse has the right to involve the court so that the plaintiff’s requests are satisfied by the decision of the authority. At the same time, it is quite natural that the allotment is not subject to natural division into any parts.

If after the division there are independent plots:

cannot be used in the mode in which they were used before separation;
are divided into parts that do not comply with the minimum adopted by regional legislation;
have controversial objects;
do not have their own approach or entrance;

they are recognized as indivisible, and no court will be able to satisfy the demands of divorcing spouses. Therefore, before starting a division in a divorce, it is worth consulting with a lawyer and collecting all the documentation on the property. Any little thing that actually is not important can be important:

ownership of property;
number of documented owners;
satisfaction of urban and rural construction regulations;
compliance with environmental and sanitary standards;
rules of technical operation.

Sometimes, in order to carry out the correct distribution of plots, a special examination will be required to confirm the possibility of division, as well as to check the plot for compliance with all norms and requirements. If the results of the examination recognize the property as indivisible, then the court offers an alternative option.

Firstly, ownership is not subject to division, but goes to one of the spouses, while the second has the right to claim property equal in importance to the allocated land plot, or to monetary compensation. Secondly, you can formalize joint ownership with rules for use by each party. In the end, the subject of the dispute can be sold, the proceeds divided between the spouses in equal proportions, after which mutual claims are eliminated.

It is always easier for the court to divide land on which there are no buildings. However, it is difficult to imagine a plot on which not a single building was built during our life together. How does the division occur in this case?

Division of a privatized land plot and, if there are buildings on it

When there are any buildings on the territory that serve various needs, the division of such property may be accompanied by significant difficulties. Ideally, two spouses receive equal territories and parts of buildings, which they can use at their discretion - half of the house, a greenhouse and their own “three hundred square meters”. In fact, it turns out that the court has to determine the share of each party, as well as distribute rights to ownership in various ways.

It is not uncommon to find a building that is not finished. In this case, the court considers the possibility of resolving the situation using the following features:

is it possible to divide the building from a technical point of view;
whether the parties will have the opportunity to complete the building on their own after the division;
at what stage is the construction process - foundation, external work, lack of roof, communications.

Having dealt with all the characteristics, the court can make a decision in favor of division, while the land plot and the building located on it are transferred to the use of the new owners on the rights determined by the authority. Each party disposes of the portion at its own discretion.

If a piece of land is privatized, several factors are taken into account. In what year was the privatization of the plot completed, was the process carried out during the marriage or before it? Buildings and direct ownership rights to them will play an important role.

If, for example, one of the spouses owned a plot of land before entering into an official relationship, but privatization was carried out after marriage, everything depends on the result of privatization:

the second spouse cannot claim division of this property if he is not allocated a share;
in the event of privatization and the spouse is determined to be a co-owner, he can put forward his claims to the division;
buildings completed using common family funds can be divided; those located on the site before marriage remain with the original owner.

When all processes have been carried out during family life - obtaining land, buildings, all property is subject to equal division, subject to the necessary conditions. In this case, the documentary component of all ongoing processes is taken into account.

As for land plots that are in full ownership of spouses, everything is quite clear. What to do if the land is leased?

General principles for the division of plots upon divorce

The Russian Civil Code establishes that the shares of husband and wife in jointly acquired property are equal. The same approach applies to land plots. However, determining what property was acquired during marriage is not so simple.

The division of marital property is accompanied by disputes related to the fact that each claims a larger share. Finding out which plot of land is jointly owned is not easy. For example, one of the spouses received a plot of land before marriage, but privatized it after the marriage relationship was formalized. Judicial practice shows that such a plot is the personal property of the spouse who received it and is not subject to division.

The second similar case: a plot of land was transferred by municipal authorities free of charge to one of the married spouses. According to the Civil Code of the Russian Federation, property received as a result of gratuitous transactions is the personal property of its recipient. But the courts refuse to consider such a transfer of land as a gratuitous transaction. They separate the transfer of property by transaction and by government acts. As a result, such a land plot is recognized as the joint property of the spouses and is subject to division.

In addition to the intricacies of property rights, when dividing land after a divorce, problems arise that are determined by the Land Code. Not every area can be subdivided. If after the division it turns out that the new plots cannot be used for their intended purpose - for example, there will be no approaches or entrances to them - the division of the land plot will be impossible. Then the plot can be retained in the joint ownership of the former spouses or transferred to one of them. In the latter case, the second spouse is entitled to compensation for the part of the plot he lost.

In general, the rules are:

A plot of land jointly owned by spouses is subject to division in a ratio of 50 to 50.
Property received by one of the spouses before marriage or as a result of gratuitous transactions (donation, inheritance, etc.) during marriage belongs to him personally. Such plots cannot be divided upon divorce.
The Civil Code of the Russian Federation allows the court to decide to recognize the share of spouses as unequal. Typically, this will involve the other spouse receiving compensation from other property or money, but this is not a hard and fast rule.
The characteristics of land plots, determined by the Land Code of the Russian Federation, may prevent their division. When deciding to divide a plot of land during a divorce, it is often necessary to conduct an examination to determine the possibility of such division.
If there is a marriage contract between the spouses, and it establishes rules for dividing the plot that differ from the generally accepted ones, then they are guided primarily by the contract.

The division of land after divorce is a complex legal procedure. Very often it requires the involvement of lawyers in the case.

Division of a land plot obtained under lease rights

Divorce proceedings can happen under different circumstances. The spouses could live carefree, accumulating joint property; at one point it was decided to rent a plot of land. At the same time, the necessary crops were grown on it, and even buildings were erected.

Suddenly, family life reached the stage of rejection, and the couple decided to divorce with the corresponding consequences of division of property. Firstly, the leased plot is the property of a third party and cannot be considered for division. Secondly, the court sees the property of divorcing people only as buildings for various purposes, erected during the use of the plot.

The options for considering the case are as follows:

the lease agreement is renegotiated for the former spouses separately;
rights are transferred to one of the spouses in the absence of claims from the other;
property in the form of buildings is divided on a general basis;
everything is transferred to one party, the other receives financial compensation.

Having come to an agreement in this way, the former spouses can calmly separate, both physically and documented. We will consider the general situation of dividing a land plot during a divorce and the necessary documents required for various situations.

Land division options

But similar situations also happen. At the time of marriage, the husband owned a plot of land in the Moscow region. After several years of marriage, the couple decided to build a house on the site and move out of town for good. To do this, the wife sold her one-room apartment in one of the residential areas of the capital. At the time of the divorce, the family owned a large country house, but the husband categorically refused to divide the property, arguing that the plot where the residential building was erected was acquired by him before the wedding and there could be no question of any division.

My wife came to a lawyer with a question about how to divide this plot of land during a divorce. He, having assessed the situation, drew up a claim for division of property, attaching to it evidence that the woman had invested her own funds in the construction of the house and improvement of the site. Having considered the case materials, the court decided to divide the land plot and the buildings on it between the spouses in equal shares. The spouses were also given options for possible division of the subject of the dispute.

Retain the land and house for one of the parties, who will pay the ex-spouse an amount equal to half the price of the property.
In the event of a divorce, keep the land plot with the buildings on it for the spouse, and leave the city apartment and car as the property of the wife.
Selling a plot after a divorce and dividing the amount received in equal shares.

Peaceful resolution of the situation or lawsuit?

As mentioned above, there are two ways to divide any property during a divorce. The first of them is an agreement between the former spouses on an independent basis. In this case, an oral, or better yet, a written agreement is drawn up, which stipulates the necessary points, the distribution of rights and the waiver of mutual claims in the future. For greater persuasiveness, it is worth inviting a notary to confirm the legality of the agreement being concluded.

On the other hand, there are often cases that accompany any conflict situation. Marriage itself is a rather complex process that affects the relationships of people who were a family, but decided to separate for some reason. The divorce process can be soft and quiet, or noisy, with scandals. The second direction may be accompanied by the involvement of the court and lengthy proceedings.

One of the parties, dissatisfied with the development of events in the division of property after a divorce, may well act as follows:

a claim is filed;
the necessary supporting documentation is collected;
takes part in court hearings;
in the process, the circumstances surrounding the ownership of land plots, the rights of owners, and the claims of the parties are clarified;
Additional assessment activities are carried out, examination of the condition of buildings and compliance of property with all standards.

The result of manipulation may be the satisfaction of the plaintiff’s claims, or the division is not in his favor. In any case, it is necessary to comply with all legal norms and regulations for the preparation and submission of documentation on claims.

Claim in court for the division of a land plot and accompanying documentation

According to the Family Code, division is carried out at the request of one of the parties to the process, if a peace agreement could not be achieved. At the same time, there are general principles for drawing up an application to the court.

The court will not consider the document (and the statement of claim will be considered as a full-fledged document) if it is incorrectly drawn up or describes the situation with details that do not correspond to reality. A fixed period is given for correction and revision of the statement of claim, after which this document is not subject to consideration.

To avoid mistakes, you can invite a lawyer for consultations. A properly drafted claim must contain the necessary information - the name of the court to which the claim is being filed, as well as information about the parties to the dispute with addresses and contacts. Since the situation under consideration involves the division of property (land) during a divorce, it is necessary to provide information about the acts of marriage and divorce, with copies.

Among other things, the claim contains:

information about the subject of the claim with ownership rights, date of acquisition, as well as characteristics (area, documentary purpose, location address) and buildings erected on it;
reasons for filing a claim - claims, dissatisfaction with the division or other circumstances that prompted the plaintiff to file an application;
demands and claims must be accompanied by substantiated evidence (financial and physical participation in the construction of buildings, improvement of the land);
if you want compensation, indicate the amount, reasons and justifications;
information on expert assessment of the possibility of a division with new areas and boundaries.

If the claim is supported by a lawyer, he can help draw up the part that will contain justifications with references to normative documents of judicial practice and current legislation. Attachments may be provided to the document.

Upon completion of the paper, the plaintiff puts the date and his own signature, or the signature of the person representing the interests of the plaintiff’s party. The text of the document must be written in a business style, without spelling errors and lyrical digressions. A brief and accurate statement of facts will make it easier for the court to understand the submitted supporting documentation package.

You can draw up a claim in draft form, and then retype it using a computer and printing device. This will help avoid mistakes and blots. The attachments may contain copies of additional documents that provide a greater understanding of the situation:

identification documents of the plaintiff, defendant;
certificates of registration and divorce;
all information regarding property rights;
in case of privatization of a plot - the corresponding act;
technical documentation for the land plot;
results of expert assessment.

You should also not forget about such things as the number of copies - since there are three parties involved in the case, including the court, it is necessary to provide the same number of copies of the documentation in question to the claim. The court will begin consideration only after payment of the state fee.

Sample statement of claim for division of land between spouses

The financial side of the issue when dividing a land plot

As with any application to the court, filing a claim for the division of a land plot after a divorce is filed is accompanied by a fee, as well as possible financial costs by the plaintiff. In this case, the amount of the duty paid is determined strictly based on the claims.

Before making a payment, it is necessary to order an assessment of the divided property by a special, independent commission. This can happen by a court decision, or when the plaintiff independently contacts the relevant companies. The assessment is carried out using cadastral characteristics, or in relation to the value of the property on the market.

The calculation of the state duty is determined by several components, the formula includes:

the amount of assessment of the claim itself;
the rate accepted by law as fixed;
percentage of the amount of the claim.

For example, the couple owned a plot of land, valued by an expert commission at one million rubles. Based on the results of the plot's compliance with the necessary standards, it was declared unsuitable for division, and therefore the plaintiff made claims of the following nature - the plot remains with the defendant, but he pays the opposite party monetary compensation of half the estimated value.

The claim price is five hundred thousand rubles, to which a percentage must be added, since according to the law, claims exceeding an amount of two hundred thousand rubles are subject to additional interest. There is a fixed rate, determined at five thousand two hundred rubles, and the result is:

five thousand two hundred rubles – rate;
five thousand rubles – a percentage of the amount of the claim;
The result is the payment of ten thousand two hundred rubles to the budget as a fee.

This amount is paid if there are no buildings on the land plot. If there are any buildings, then the assessment is carried out with their participation, which increases the amount of claims.

As for the remaining costs, the plaintiff needs to take into account not only the payment of the fee, but also the assessment being carried out. It is also worth including in the expenses payment for the services of legal representatives and, if necessary, work carried out when filling out cadastral documentation, land surveying services and other accompanying activities. In order not to spend extra money, it is best to immediately agree with a lawyer who will draw up a cost estimate.

A statement of claim is submitted to different authorities, which depends on the amount of the claims. The World Court considers cases whose estimated value does not exceed fifty thousand rubles in total. If this amount is exceeded, the statement of claim is transferred to the district court to which the land plot that is the subject of dispute is attached.

What cannot be divided

But not every territory is divided. In each region of the country, minimum plot sizes are established depending on their purpose - growing crops, individual housing construction, summer cottages, and so on. If the division of a land plot after a divorce leads to the fact that the resulting half is less than the established minimum, then such land is indivisible.

It will be impossible to divide the land even if it was allocated for individual housing construction of a certain area, and the division does not allow the construction of a building. Example. A married couple received an allotment of 400 square meters. m, on which it was planned to erect a building with an area of 300 sq. m. Through simple arithmetic calculations, it becomes clear that upon division, the share of each party will be 200 sq. m. m, which contradicts the conditions for the intended use. Therefore, it is physically impossible to divide the land. But there is still a solution to the separation issue.

The couple sells the land, and distributes the proceeds from the sale among themselves into two equal parts.
The plot goes to one party, and the second receives monetary compensation equal to half the appraised value of the plot.

An example of the division of land during a divorce

As statistics show, citizens at different stages may encounter difficulties when it comes to the need for judicial division of property. This can happen at any stage - assessment of a land plot, determination of property rights, the possibility of natural division. In any case, the participation of lawyers will smooth out troubles and help deal with various situations.

Let us give an example of a trial that takes place in the court practice of one of the regions of the Russian Federation. Before marriage, the spouse owned a plot of land in a non-privatized state. The privatization process was carried out after official relations were formalized and documented. For some time, the couple carried out the following work:

fencing a plot of land;
construction of a residential building;
development of land for sowing;
tree planting.

The finances spent on these activities were allocated from the joint budget. When the spouses decided to break off official relations, the land plot remained with the original owner, while the ex-wife made no claims to the property.

After the divorce, the owner decided to sell the land to his neighbors, which was done according to all the rules. The ex-wife found out about the event and decided to file a claim asking the court to invalidate the deal carried out by the ex-husband. The justification for the claims was the lack of payment of part of the proceeds received by the ex-wife, because the improvement of the allotment was carried out through joint efforts.

Although more than three years have passed since the sale, the court accepted the statement of claim, since the citizen learned about the transaction from her neighbors and the legal starting point is not the date of the divorce, but the time when the plaintiff receives information about the violation of her own rights.

The court considered all the circumstances and took into account the following:

the land plot was privatized after marriage, but the original owner was the spouse, and therefore claims that the transaction was illegal are unfounded;
the price of the land plot has increased relative to the original cost due to the improvement;
the funds invested in the arrangement were taken from the budget of the existing family.

It was proposed to conclude a settlement agreement, according to which the ex-wife was entitled to a payment in the amount of half the value of the proceeds from the sale. The former spouses decided not to enter into conflict and signed an agreement. As a result, each of them received half of the proceeds from the sale.

The situation is quite simple, but rare. Often people are reluctant to share the funds received and agree to amicable agreements. In any case, involving the court helps to deal with the situation when a simple agreement will not solve the problem. The division of a land plot when filing a divorce is sometimes accompanied by significant difficulties, which can be avoided if you approach the situation with full responsibility.