Common joint property of spouses - sample agreement 2021

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The legislation provides for a common procedure for owning an object when it is included in the common property mass of the spouses.

In practice, this means that a land plot, a separate residential property and any types of property belong to the parties on equal rights. The features specified in the law will be explained in detail below. At the same time, the procedure for making transactions with such property, as well as options for disposing of it, will be discussed.

Can spouses have personal funds?

According to the general rules of current legislation, funds, including wages, income from business, pensions and benefits (if they do not have a designated purpose) are classified as jointly acquired property. And it doesn’t matter where they are stored, in a bank account or in cash at home, or in whose name the account is opened.

However, the law provides for exceptions when money can be considered personal. So, for example, if the account was opened before marriage, then everything that is there belongs to the spouse who opened it. However, when replenishing the deposit during marriage, only the part that was contributed jointly by the spouses can be divided.

Also, funds will be considered personal if they were donated, inherited, or received from the sale of donated and inherited property.

There are often cases when a husband and wife separated, but did not formalize the divorce, and during this period one of the spouses opened a deposit. All money on it will be considered the personal property of the citizen who opened the account, but on the condition that personal money is deposited there, and not saved jointly.

As for pensions, benefits and other payments, you should be careful here, since not all income is recognized as joint property, but only those that are not earmarked. So, for example, personal money can include:

• social pension for disabled people of group 3
• compensation payments for causing harm to health or moral harm;
• pension for disabled people of groups 1 and 2 since childhood;
• survivor's pension for children under 18 years of age;
• social pension for a disabled person of group 2;
• amounts of financial assistance.

All of the above payments have a designated purpose, therefore they belong personally to the citizen and are not subject to division.

MORE DETAILS : about the division of marital property via the link on our website

Common property of spouses and mortgage

Separately, it is worth mentioning the case when the apartment was purchased with a mortgage before marriage (it seems to be the personal property of the spouse), but part of the loan was paid by both spouses already in marriage .

Here, the case law comes down to the fact that the non-owner spouse has the right to half of the money that was paid towards the mortgage debt during the marriage. As a rule, when dividing property, the court obliges one spouse (the owner of the apartment) to pay the second spouse half of the mortgage payments. But another court approach is theoretically possible - recognition of the spouses’ joint ownership of the apartment, due to the large share of joint loan payments.

The buyer of such an apartment would benefit from additional legal advice on this issue.

What does the Buyer risk by purchasing an apartment previously purchased with maternity capital - see this note.

The procedure for recognizing property as the personal property of a spouse

The Family Code provides for two ways to recognize a spouse’s property as personal:

• by agreement;
• through the court.

The first option is less expensive, both financially and in time. The agreement is concluded in writing. Notarization is not required, but is recommended. In case one of the parties subsequently objects to its execution, it will be easier to defend their rights.

Spouses who have reached an agreement have the right to specify all the conditions at their own discretion. Such an agreement must indicate absolutely all property that is subject to division and recognized as personal.

If the spouses cannot reach a common opinion or one party is against entering into an agreement, the other party will have to file a claim in court.

How to prove that the apartment was purchased with parents’ money?

Nowadays, it is very difficult for newlyweds to independently acquire their own housing. And parents often come to the rescue by purchasing real estate with their own funds. This is all great until the couple gets divorced.

It is very difficult to prove that the apartment is not jointly acquired property, but was acquired by the parents of one of the spouses. As judicial practice shows, when considering such cases, the court does not have enough explanations from the spouse and his parents, since they are interested parties. And without compelling reasons, the property will be recognized as jointly acquired.

In order for the court to recognize an apartment purchased with parents’ money as personal property, it is necessary:

1. The transfer of funds should be formalized by a gift agreement or a receipt. A win-win option is a gift agreement. It is better to have everything notarized so that the court has no doubt about the authenticity of the document;
2. The contract or receipt should indicate that the money is being transferred specifically for the purchase of an apartment; it is advisable to indicate the location address.

In court, it is necessary to prove the fact that the parents transferred money to their child, and not to the family. For example, they sold an apartment and put the proceeds in the bank. Then they transferred them to the child’s account, and the latter paid for a new apartment with them in the coming days. Here, the evidence will be: an agreement confirming the sale of the apartment by the parents, statements from their account and the child’s account, as well as an agreement on the purchase of the apartment by one of the spouses. But you will also need to provide documents confirming that the parents did not have any major transactions during this period, and also that the couple did not have joint money to purchase real estate.

You can also use as evidence witness testimony, for example, a realtor who handled the transaction or a citizen from whom the disputed housing was purchased.

In general, it is difficult to prove that the apartment was bought with the parents’ money, but it is possible. And, of course, you can’t do this without the help of an experienced lawyer.

How to prove that property was purchased from the sale of premarital property?

Most often, courts refuse to satisfy requests to recognize property as the personal property of a spouse. This is due to the fact that the party cannot prove the connection between the sale of personal property and the acquisition of the disputed property. But still, the practice of recognizing property as personal exists. To satisfy the requirements, the following conditions must be met:

• a minimum period of time has passed between the transaction for the sale of property acquired before the wedding and the transaction for the purchase of the disputed property;
• the money received from the sale is transferred in full to purchase other property. It is best if the movement of money is carried out in a non-cash manner (account statements will serve as evidence);
• there is no evidence that the spouses have money to purchase the disputed property (certificates of income of the spouses);
• the other party has not provided evidence that the property was purchased with joint funds;

• In addition to the above, proof of acquisition can include the testimony of a realtor or lawyer who accompanied the transaction, as well as bank employees.

In addition, the spouse also needs to prove that he had premarital property that he was able to sell. Evidence may include purchase and sale agreements, donation agreements, privatization agreements, and a certificate of inheritance.

It is more difficult to prove when the sale and purchase are carried out in different ways.

For example, if a spouse sold an apartment for cash using a safe deposit box in a bank, and bought a new one using a bank transfer, it is almost impossible to prove that they were transferred to the account. Accordingly, if a safe deposit box is used when purchasing an apartment, then the seller of the disputed apartment must have access to it, and if the sale is carried out by bank transfer, then the purchase must be carried out as well.

In other words, it is necessary to prove that personal property was transformed into money, and that in turn was transformed into new property.

Common joint ownership of an apartment by spouses during a divorce

By default, the property will be divided into equal parts. This is done both in kind and in the form of a monetary equivalent.

If the parties disagree, the issue will be resolved through judicial review. Shared ownership of spouses when purchasing an apartment together, on the contrary, implies that the property belongs to each party in certain shares.

In this case, each subject has the right to do almost whatever he wants with his share. At the same time, it is always worth remembering the rules of priority purchase in relation to the second owner.

Claim for recognition of property as personal property of a spouse

In order to exclude property from joint property, it must be recognized as personal. For example, during a divorce, one of the spouses filed a claim for division of property, the second spouse has the right to file a counter-claim to recognize the property as personal property. The claim can be filed at any stage of the legal process before the judge makes a decision. An independent claim is filed at the place of residence of the defendant.

In order for the application to be accepted by the court for consideration, it must comply with the requirements of the Code of Civil Procedure of the Russian Federation.

The claim must indicate:

1. applicant details;
2. information about the court and the defendant;
3. information about the disputed property;
4. marriage information;
5. circumstances of the case;
6. requirements.

The application is accompanied by a receipt for payment of the state duty, an assessment of the property, as well as documents that confirm the fact that the property is personal property.

Evidence may include:

• certificates and bank statements
• purchase agreements
• certificate of inheritance
• checks
• witness statements
• audio recordings
• photos
• video recordings
• correspondence by email or phone
• other means of proof that are discussed with our lawyer in the process of protecting your rights and legitimate interests

USEFUL : watch a video on how to file a lawsuit and write questions about the video

When making a decision, the judge will have the discretion to evaluate the evidence presented. If there are enough of them, then the court will satisfy the plaintiff’s demands; if not, then it will refuse. Also, the court may satisfy the claim in part. For example, a contribution was made before marriage, but joint money was received there, then the court will recognize the money that was received before marriage as personal, and the rest will be recognized as joint property.

Tax deduction for joint property of spouses - changes 2021

The current tax legislation in this regard has not undergone any changes this year.

Accordingly, the tax deduction is a separate preference, for which each entity must submit an application separately. And the same rule applies to the sale of real estate. The amount of the deduction remains the same, and the general procedure for applying for it will be explained further.

How to get a tax deduction for joint property of spouses?

Receiving a deduction is provided only in relation to one subject, if the conditional apartment is purchased during marriage, and only one person appears on the certificate. In this case, wages and a fixed tax base will be taken into account only in relation to one subject.

To do this, you must contact the territorial tax authority with a formal application, in which you must indicate your intention to receive a tax deduction. This is done within one tax year, and the deadline is April 30th.

Inheritance disputes regarding recognition of property as personal

Disputes in inheritance cases are quite common. It is also not uncommon for court cases to be considered regarding claims for the exclusion of property from the inheritance mass. Persons interested in this have the right to exclude property. Thus, a spouse can ask the court to exclude an apartment from the inheritance estate if it was acquired during marriage, but at the expense of the funds she received from the sale of personal property.

Accordingly, such property is personal and is not subject to inclusion in the inheritance of the deceased spouse. But in order for property to be recognized as personal, it is necessary to provide the judge with significant evidence.

Such a statement of claim is filed with the district court at the place where the inheritance was opened. The claim must indicate the property to be disputed and evidence supporting the applicant’s arguments.

The judge considers the case with the obligatory summons of the heirs to establish all the circumstances of the case.

READ MORE : make an appointment with an inheritance lawyer to find out all the nuances of the case