When family life ends in divorce, this can threaten not only mental trauma, but also financial losses. We tell you how ex-spouses can divide property, financial assets and debts.
It is not always the case that spouses have a prenuptial agreement, the divorce proceeds peacefully and it is possible to amicably agree on who will get what. If the contradictions are insurmountable, either spouse can file a claim in court for division of property.
Courts always consider the situation of each family separately, take into account many factors, and it is impossible to predict their decisions in advance. But it’s better to at least have a rough idea of what you can expect.
The division of property should be carried out within three years after the divorce. Later, the court may reject the application for separation if one of the spouses refers to the expired statute of limitations.
The property that a husband and wife acquired during marriage is considered their joint property and upon divorce must be divided in half. But if one spouse left in a shared car after the divorce, and the other was left with only a shared cat and did not object to this state of affairs, then after three years he most likely will not be able to defend his right to the car.
What is considered joint property?
As a rule, all the money that spouses receive while living together is considered family income:
- salaries, bonuses and any other work-related payments;
- income from business activities;
- royalties and other income from intellectual activity;
- pensions, benefits, compensation and other social payments, with the exception of targeted payments. For example, maternity capital can be used for an additional pension of one of the parents - in this case, this money will turn out to be his personal property during a divorce. However, if you buy real estate using maternity capital, it must be registered in the name of all family members, including children, and will be divided during a divorce, taking into account their interests.
Everything that the spouses bought with this income or invested it in is also considered community property:
- real estate, cars and other transport;
- furniture, appliances and other things that the whole family uses;
- bank deposits, securities, shares and other financial assets.
It does not matter in the name of which spouse this property is registered or which of them contributed the money.
How to divide your winnings
Your spouse’s winnings are jointly acquired property in accordance with paragraph 2 of Art. 34 RF IC. As is known, property acquired during marriage includes the income of each spouse from work, entrepreneurial activity and the results of intellectual activity, pensions, benefits received by them, as well as other monetary payments that do not have a special purpose (amounts of material assistance, amounts paid in compensation for damage due to loss of ability to work due to injury or other damage to health, and others).
My husband won a fairly large amount of money in the lottery. Is his winnings jointly acquired? He claims that under Article 36 of the Family Code he is not obliged to share his winnings with members of his family. Is it so?
What is considered personal property rather than community property?
The list of things that do not apply to joint ownership is quite long. For example, personal property includes:
Property purchased before marriage
If you already owned real estate, cars, expensive items and financial assets before marriage, they do not become community property and are not divided during a divorce. But you may need documents confirming your property before marriage.
If personal property is changed or improved using family money and its price increases significantly, then during a divorce the court may recognize it as community property.
For example, you bought an apartment before your wedding, and then together with your spouse you made major renovations to it. In such a situation, it happens that the court recognizes the property as joint property and determines what share belongs to each spouse. Or, say, if a husband changes all the parts in his wife’s old Zaporozhets and turns it into a Mercedes, during a divorce he will be able to claim part of the cost of the car.
Gifts and inheritance
If during your marriage you inherited or received an apartment, a car or a bank deposit as a gift, you will not have to divide them during a divorce. They are considered your personal property. It is only important to save documents - for example, a certificate of inheritance or a gift agreement. In some cases, eyewitness accounts are also suitable.
But again: if the property inherited or received as a gift was completed or improved at the expense of common funds or the personal money of the second spouse and, as a result, greatly increased in value, the court may consider it common.
Target payments
Direct payments in case of divorce are not divided. For example, if one spouse is injured due to an accident or illness, disability payments are considered his money and not family income.
Personal items
Clothes and shoes, razors and curling irons, as well as other personal items remain with the person who used them. But jewelry and luxury items are considered common property. That is, inexpensive jewelry remains with the wife, but gold jewelry with diamonds purchased during marriage will need to be divided equally or half of its value must be paid to the spouse.
At the same time, the concept of luxury goods is very vague. For example, a court in Norilsk may consider a mink coat to be clothing—in a northern climate one cannot live without warm clothing. And a fancy, expensive fishing rod can be considered a luxury item, since it is quite possible to do without it. The court examines all the circumstances each time before making a decision.
If the luxury item was a gift, it may be considered personal property. But you will need to prove that the item was given as a gift. Not only the notarization of the gift is suitable, but also witness testimony. For example, in the case when a husband presented his wife with a necklace at a family holiday, relatives will be able to confirm this.
Intellectual property
If you invent something, write a book, compose a song, or make a movie, those works are your intellectual property. The spouse cannot claim them during a divorce.
Royalties and royalties paid to you during the marriage are considered joint income and will be divided. But only the author can count on all deductions after the divorce.
Children's things and money
Clothes, shoes, school supplies and sports equipment, musical instruments, children's books and other things of children are not divided during a divorce. They are transferred to the parent with whom the children remain to live.
Deposits in the name of children are also not divided, regardless of which parent opened and replenished them. They are considered to belong to children, not parents.
What the couple bought while living separately
It happens that people do not formally get divorced, but actually live separately and do not maintain a common household. If during this period the husband or wife acquires some property, the court may recognize it not as common property, but as personal property.
Winning in - lottery - - common property of spouses
For example, in one legal dispute, the wife was unable to win half of her husband’s winnings, which he transferred to his retired mother. The court indicated that children are obliged to support their parents who are disabled and in need of help, therefore the funds transferred to the mother do not constitute her unjust enrichment
- it was bought using the common money of the spouses, then the winnings are their joint property and not the personal property of one of the spouses. The latter includes only gifts, personal items, “premarital” and inherited property. A gift (property received under another gratuitous transaction) is not considered a win.
- the ticket was given to the spouse or was purchased by him with personal funds (in particular, with donated, “pre-marital” or inherited money), then the winnings are the sole property of the spouse. But only if the spouse can prove it. For example, he will have a written agreement on the donation of a ticket or money for its purchase.
Are financial assets divided?
If one of the spouses opened a bank account or deposit during family life, then the money in it is considered common property (with the exception of some cases, for example, when the amount received as a gift or inheritance was deposited into the account).
It happens that an account or deposit was opened before marriage, but then it was replenished from family money. In this case, only those income and interest on them that occurred during the period of marriage will be divided.
The same rules apply to accounts held with a broker or trustee and securities. If the purchase of assets occurred during the marriage and money from the family budget was invested in it, this is joint property, and it does not matter which spouse it is registered in the name of.
But insurance policies, as a rule, are not divided in a divorce. In this case, insurance payments usually become the joint property of the spouses if the insurance compensation was received during the marriage.
This rule also applies to investment and savings life insurance contracts that are concluded for several years. While the money is in the insurance company's account, it legally belongs to the insurance company, not the person who deposited it. And until the payment is made, the second spouse has no right to them.
If the contract ends during the marriage, then the payment under it will become common property. If this happens after the divorce, then the second spouse will be able to challenge his share through the court, but it is also worth taking into account the three-year statute of limitations.
The money that one of the spouses decided to save for an additional pension and transferred to a non-state pension fund also legally belongs to the fund, as is the case with insurance companies. Typically, these savings cannot be withdrawn early and divided between spouses, unless such a possibility is expressly stated in the rules of the fund and the pension agreement.
Is property always divided exactly in half?
Usually yes. And it doesn’t matter what financial contribution each spouse made. Even if only the husband earned money, and the wife ran the household and raised children, they have the same rights to property. The only important thing is that the spouse did not have independent income for good reasons.
If one worked hard, and the other was simply idle, then the court may not divide their property equally.
Through the court, you can achieve justice even if one of the spouses spent the common budget to the detriment of the interests of the family. For example, he spent money on gambling.
It also happens that one spouse entered into transactions without the consent of the other. For example, he invested family savings in a dubious project and went broke. In such a situation, the court may declare the transaction invalid or take into account your losses from such an investment when dividing property.
The court can also take into account the interests of minor children and allocate more than half of the property to the spouse with whom they will live.
In addition, the shares may be completely unequal if the husband and wife entered into a marriage contract
and stipulated special conditions in it.
Statement of claim for division of spouses' funds
The procedure for drawing up a claim and the requirements for it are prescribed in Articles 131-132 of the Code of Civil Procedure of the Russian Federation and are required to be observed when filing a statement of claim for the division of spouses’ funds.
Failure to comply with the requirements in the above articles will result in the claim being left without progress, with a deadline provided for correcting the deficiencies.
In some cases (for example, in case of violation of jurisdiction), the claim will be immediately returned to the person who filed it. The claim is also subject to return if the applicant does not comply with all instructions within the period established by the judge.
The statement of claim must contain the following information:
- Addresses and name of the court, full names of the parties, their addresses and contact information.
- The name of the third party - this will be the bank in which the disputed deposits are located.
- Information about the circumstances of the dispute: date of marriage, period of marriage, date and reason for divorce; absence (or partial presence) of consent to the division of property, etc.
- Information about deposits and funds, their amount, nature of origin, location, etc.
- Position regarding the order of division and the shares due to each of the spouses, as well as the rationale for this position.
- Links to legislation and regulations (preferably).
- The requirement to recognize contributions as jointly acquired property and the requirement to divide this property.
- Signature, date of signing and list of attachments to the claim.
The list of documents attached to the application for division of the deposit is specified in Art. 132 of the Code of Civil Procedure of the Russian Federation, however, it is of a general nature and is applicable to all claims.
As for the application for the division of funds, the following must be attached to it:
- A copy of the applicant's passport.
- A copy of the claim for the defendant and the third party (if any).
- A copy of the marriage certificate, as well as its divorce (or the corresponding certificate from the registry office).
- Certificates from the bank about the flow of funds, copies of agreements for opening deposits and other documents confirming the amount and availability of funds.
- Certificates of income of the applicant (if required to confirm his participation in replenishing the deposit).
- Original receipt for payment of state duty.
The claim is submitted to the court at the defendant’s place of residence in person or sent by registered mail through a postal service.
Sample claim
The presented statement of claim demonstrates a typical and extremely simple situation without possible disputes and disagreements. In reality, every dispute is a huge field of activity for lawyers on both sides.
The form of the claim will be significantly different if not only deposits are subject to division, but also, for example, a car or an apartment. All this property will need to be indicated in one statement of claim.
When drafting a statement of claim on your own, it is strongly recommended that you consult with an experienced lawyer. Our website specialists are ready to answer all your questions right now for free.
When and how can you conclude a marriage contract?
You have the right to enter into a marriage contract both during marriage and before it - then the contract will come into force as soon as you officially become husband and wife. It can spell out in detail what of the current and future property of the spouses will remain the personal property of one of them, and what in the event of a divorce will go to the other. And we can talk not only about bank accounts, houses and yachts, but even about pets, a collection of family greeting cards and general photographs.
It is permissible to draw up a marriage agreement not for all, but only for part of the property. For example, during family life, one of the spouses will want to buy a car and take out a car loan for this. You can conclude a marriage contract stating that the loan debt will become his personal obligation, but the car will also be considered his personal property. If the contract does not include the remaining property, it will still be considered community property.
At the same time, you must inform the creditor if you enter into, change or terminate a prenuptial agreement. Otherwise, he will simply not take it into account, and the spouses will be liable for loan obligations regardless of the content of the marriage contract.
For a marriage contract to have legal force, it must be certified by a notary.
This agreement can be changed or terminated at any time (also through a notary) - but only if both husband and wife agree to this. If the marriage contract no longer suits one of the spouses, he can change or terminate it only through the court.
You can also go to court if, according to the marriage contract, you are completely deprived of the property that you acquired together during marriage. Such an agreement essentially contradicts the Family Code; the court will almost certainly declare it invalid. As a result, the shares of the spouses may turn out to be unequal, but it is impossible to completely deprive one of the spouses of the right of ownership of jointly acquired property.
Judicial division of deposit in case of divorce
Legislation protects the property rights of husband and wife in the event of a divorce, and judicial practice confirms that the chances of achieving the division of funds in deposits, current and savings bank accounts are high. The main thing is to file a claim in court in a timely manner and provide convincing documentary evidence.
Let's look at how to correctly draw up a statement of claim and what documents need to be prepared for the court procedure.
Statement of claim for division of spouses' funds
The statement of claim must include the following information:
- The name of the judicial authority to which the claim is filed;
- Information about the plaintiff and defendant (full name, registration address, contact information);
- Cost of claim;
- The title of the document is “Statement of Claim for the division of joint property (deposit, funds in a bank account)”;
- Circumstances of the case: when the marriage was concluded and dissolved, when the bank account was opened, the amount and origin of funds (joint, personal) - with links to supporting documents;
- Requirement to the court - how the funds should be divided;
- List of applications;
- Date of filing the claim;
- Plaintiff's signature.
The following documents should be attached to the statement of claim:
- Copies of the statement of claim for the court and the defendant;
- Passport;
- Certificate of registration and divorce;
- A copy of the agreement on opening an account concluded between one of the spouses and the banking institution;
- Other documents – certificates, statements, receipts;
- Receipt for payment of state duty.
A sample claim looks like this:
Use sample documents and, based on them, draw up your own version of an agreement or claim.
Conclusions from the article:
- Money and bank deposits are subject to division upon divorce.
- It is easier to track the movement of money in a bank account, but with cash it is more difficult. Unscrupulous spouses can use this for selfish purposes.
- If the deposit was opened during the marriage, then the money is shared and divided equally. If the deposit was opened after marriage, this is the personal property of the spouse. Such a contribution is not subject to division. You cannot divide deposits opened in the name of joint children of a husband and wife.
- There are two options for dividing money and contributions during a divorce - by agreement or in court.
- The agreement is a voluntary version of the division, drawn up in free written form. Spouses may deviate from the principle of equality, for example - less for the husband, and more for the wife and children.
- The judicial method involves filing a claim for the division of joint property of the spouses.
The main difficulty of this section is the relationship between the spouses.
In an effort to get more, each of them will insist that they are worthy of all the contribution. This is especially acute with cash. It is very difficult to establish who owns them and on what basis. The second difficulty can be called withdrawing money before dividing property. This is what unscrupulous spouses do. Their goal is to leave their partner with nothing and take away the entire contribution themselves. If you encounter such problems and there is no solution, ask the site’s lawyers. Expert help will allow you to assess your chances of success. The lawyer will advise you on how to divide deposits, seize an account, prepare an agreement or claim for the division of property. You don’t have to delve into the laws yourself and look for judicial practice. The lawyer will provide all the necessary information! Attention!
- Due to frequent changes in legislation, information sometimes becomes outdated faster than we can update it on the website.
- All cases are very individual and depend on many factors. Basic information does not guarantee a solution to your specific problems.
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Author of the article
Irina Garmash
Family law consultant.
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Are debts also divided in half?
Not always. If a husband and wife are co-borrowers on a loan, this is their joint debt. A loan taken by one of the spouses is considered his personal debt.
Total debts
distributed between spouses in the same proportion as shares in joint property. For example, if a husband and wife took out a mortgage loan for an apartment together, then after the divorce each of them will receive half of the living space - and half of the remaining loan.
If, according to the marriage contract after the divorce, the spouse receives, say, a quarter of the common property, then under the common credit or loan he will have to pay only a quarter of the debt. But this is provided that the creditor knew about the prenuptial agreement. Otherwise, the former spouses will be answerable to the creditor on equal terms.
Moreover, if the spouses acted as co-borrowers, the creditor may require both of them to repay the debt in full at once, and not in half. But the spouse who has paid the creditor for both can go to court and demand that the second spouse pay him his share.
For personal debts
each one responds with his own property. Creditors, debt collectors or bailiffs have no right to demand payments from the spouse of such a debtor - either during or after the marriage.
However, in cases where a person took out a loan for himself, but spent the borrowed funds on the needs of his family, the debt can be recognized as general. Only the court can do this - the debtor spouse will have to prove that he spent the money specifically for family purposes. If this succeeds, when dividing the property, the debt will also have to be divided.
Lottery and division of property
There is no such thing in the law, this is just a commentary on an article by the RF Investigative Committee from the Internet, your advice can easily harm a person. The ticket was not provided free of charge. In fact, the court will by default consider that the ticket was purchased with common money. The lottery is not free.
For example, this could be winning a lottery
y, finding a treasure and receiving a reward for it, privatization of an apartment (privatization of housing is free, and if only one of the spouses participated in the privatization process, then such housing will not be jointly acquired).
