How to sue for property during a divorce, how to win the division of property

In the process of living together, many married couples acquire property, including real estate. For various reasons, women are the first to file a claim for divorce. If there is real estate, the matter is not limited to this. You have to think about how to win an apartment from your husband during a divorce, bought during marriage?

It would seem that the current legislation of the Russian Federation provides a specific answer. However, additional factors play a role. These include the presence of minor children and the lifestyle of one of the spouses. In some cases, the source of the funds for which the property was purchased matters.

This material provides a brief analysis of the main typical situations that arise in families that have decided to separate. The picture will be completed by answers to frequently asked questions and examples from judicial practice. Practical recommendations will certainly come in handy.

How to sue an apartment from your husband during a divorce: features of the section

Due to the uniqueness of physiology, ex-spouses experience separation in different ways. Representatives of the fair sex usually invest more effort into the family, raising children and being responsible for housekeeping. Accordingly, divorce for many women is fraught with mental trauma.

However, there are some men who are not able to appreciate maintaining a family home. Some go even further, and by hook or by crook they strive to deprive their ex-wife of the roof over their head.

Therefore, it does not hurt wives to arm themselves with legal knowledge in order not to lose their apartment. And the main tips are easy to find in the RF IC.

In accordance with the provisions of Chapter 7 of the Code, all property of the spouses is divided into joint and personal. Real estate is no exception. When an apartment is purchased or received during marriage under other compensated transactions, the square meters go to the spouses equally.

It happens that it is impossible to physically distribute living space, as is the case with a small apartment. In such a situation, monetary compensation equal to the market value of the relevant share is provided.

Read more in the article: How to divide a one-room apartment . The same thing happens when there is a need to share a car.

Apartment during divorce

To the category of joint ownership, according to Art. 34 of the Family Code applies to any property acquired during the marriage.

The list of common property owned by both spouses includes the following items:

total labor income earned by each spouse;
results of entrepreneurial and intellectual activity;
pensions, subsidies and benefits paid by the state;
payments that do not fall into the category of targeted benefits (including financial assistance, compensation in connection with loss of ability to work due to deterioration of health, injury, etc.).

If common funds were used to purchase property, it is also recognized as joint. This can be real estate, material assets, financial assets, deposits, shares in capital, funds in the accounts of credit institutions and other forms of property acquired during marriage.

In this case, it does not matter which of the spouses is the formal owner in whose name certain property rights are registered.

Property rights apply not only to working spouses, but also to those of them who, during the marriage, were engaged in housekeeping, caring for young children, or the lack of their own income was due to another valid reason.

From the above it follows that property acquired during marriage, including real estate, is common, regardless of who is its nominal owner.

The legislation (in particular, Article 39 of the Family Code of the Russian Federation) provides for equal distribution of shares between spouses, except in cases where the division procedure was agreed upon in advance in the marriage contract.

The principle of equality of shares can be relegated to the background if, when dividing property, the interests of children or special circumstances affecting the share of one of the spouses are additionally taken into account.

For example, if the lack of income of one of the spouses was not due to a valid reason or the fact of spending common funds was proven, causing harm to family interests.

Guided by these legislative norms, the court, in most cases, grants each spouse the right to ½ of an apartment or house.

The share can be increased for the wife if the child remains with her after the divorce process is completed.

When renting an apartment, according to a social tenancy agreement, after a divorce, the spouse retains the right to be a tenant of the residential premises.

You can learn more about these and other nuances related to property conflicts during divorce by consulting with a lawyer.

Only a specialist can give an individual recommendation, taking into account specific family circumstances.

If the husband is the owner, what rights does the wife have?

In such a situation, one must proceed from the fact that this is the personal property of the husband. The legislator, with some exceptions, protects it from division and does not allow the interested party to take the apartment.

First you need to determine what real estate is personal. An indication of this is contained in Art. 36 IC RF.

Personal property:

an apartment that belonged to the husband or wife before the formalization of the relationship;
any real estate received during marriage by gift, by inheritance;
privatized housing or part thereof.

Personal property is considered to be that property that, although it was acquired during family life, was acquired with funds accumulated by one of the spouses before the wedding. Naturally, this fact must be proven in court if a dispute arises.

However, during the divorce process, lawyers find opportunities to wrest the apartment from the ex-husband, which lead to the desired result.

In theory, there are 2 options in which the wife can claim, if not part of the apartment, then a certain amount.

In the first case, the conversation is about the accumulated large alimony debt, as well as penalties.

Here, the ex-wife has the right to seize the property and obtain a forced sale by court of the apartment purchased by the husband before marriage, if it is not his only one. Accordingly, the proceeds are used to pay off the alimony debt.

The second situation is spelled out in Art. 37 SK. The point is that when, at the expense of the wife or both spouses, major repairs or redevelopment, as well as inseparable improvements that increase its market value, were carried out in personal real estate, then the court has the right to recognize this property as common.

Here you need to document the costs of home improvements. The proof will be receipts for the purchase of building materials, built-in furniture, equipment, as well as contract agreements and certificates for work performed from master finishers.

The apartment is registered to the husband. Wife's rights during divorce

Real estate is in most cases the most valuable asset that the average family can acquire.

That is why the issue of dividing an apartment is quite difficult during the divorce process.

Often one of the spouses insists that he should be recognized as the sole owner for one reason or another.

Next, we will look in more detail at the nuances associated with the division of real estate.

What real estate cannot be divided

Existing legislative norms are designed primarily to ensure equality of rights of spouses, including property rights.

Following the results of the divorce process, the common property should be divided in half between the spouses.

If an apartment was purchased during the marriage, it is also divided into equal shares, regardless of which spouse is the nominal owner.

However, this rule has several exceptions, separately described in the Family Code of the Russian Federation. If at least one of the following conditions is confirmed, the property will not be divided into shares:

If the apartment was purchased by one of the spouses before marriage, ownership will remain with him after the divorce.
The property was acquired by one of the spouses as a result of privatization before the marriage was registered. This rule also applies in cases where one of the spouses refused to participate in the privatization process.
The property was received as a gift or as an inheritance.
The property was purchased for the child and decorated accordingly.

If, as a result of the divorce process, one of the spouses was determined to be the sole owner of the property, the other spouse has the right to continue to live in the apartment for a certain period, provided that he does not have the opportunity to move to another apartment.

Property that cannot be divided during a divorce according to the law, can still be divided if the spouses voluntarily draw up an appropriate agreement.

For example, such housing can be sold and the proceeds divided, or the apartment can be physically divided with separate entrances and walls built.

The other spouse can claim a share in real estate that is classified as undivided, to which the sole rights of the owner of one of the spouses apply, if he manages to prove that his personal funds were spent on the maintenance of such property, which resulted in a significant increase in property value.

If the arguments presented were considered by the court to be compelling, then the disputed property will be transferred to the category of joint property with all the ensuing legal consequences.

How is a mortgaged apartment divided during a divorce?

Read here how to divide an apartment during a divorce.

For legal advice on the division of property during divorce, read the link:

Features of a marriage contract

Despite the significant simplification of the division of property during the divorce process, the preparation of a marriage contract is not yet very often practiced among citizens.

This agreement is most often drawn up before marriage, although it is not uncommon for it to be concluded while being married or immediately before its dissolution.

A properly drafted agreement reduces the risk of conflicts during the division of property if it contains a clearly defined procedure for transferring ownership shares.

Sections are also added to the contract to stipulate ownership rights to property that may be acquired in the future.

If over time one of the spouses has comments on one or more clauses of the agreement, the document can be changed.

Any adjustments to the terms of the contract must be carried out by mutual agreement, as a result of consensus, followed by certification of the new version of the contract by a notary.

Also, changes to the contract can be made in court after one of the spouses files a lawsuit expressing disagreement with the text of the contract regarding the division of common property.

If one of the spouses is dissatisfied with the result of the division of common property carried out during the divorce, he has three years to protest it.

Division of property on a voluntary basis

The purpose of drawing up such a voluntary agreement is to divide the ownership rights to existing property. The subject of the agreement can be any property, including inherited, gifted, etc.

This document is concluded between persons in a marital relationship who wish to designate their rights to existing property, including living space.

Also, the agreement can be concluded immediately before the divorce, being the result of voluntary negotiations on the division of rights to real estate.

You can entrust the drafting of a settlement agreement to a professional lawyer or develop it yourself.

The document comes into force after it is signed by each spouse, and it is advisable to have the agreement certified by a notary in order to subsequently avoid litigation and conflicts.

The division of real estate in a settlement agreement may describe a sequence of actions in which divorced spouses will no longer live in the same living space.

In particular, a shared apartment can be sold with a subsequent division of the proceeds, or the living space can go entirely to one of the spouses, who is obliged to pay the cash equivalent of the received share as compensation to the former partner.

When drawing up an agreement, spouses have the right to choose any order of division of real estate, however, the rights of their minor children must be taken into account.

Similar to a prenuptial agreement, sections of a settlement agreement can be changed over time or challenged in court.

Division of property as a result of litigation

Sometimes spouses are unable to come to an agreement on the division of an apartment. In this case, there is nothing left but to take this issue to court.

The disputed living space may be jointly owned or its owner may be one of the spouses.

According to Art. 39 of the RF IC, housing acquired during marriage will be divided into equal shares, except for those cases when it was inherited by one of the spouses, as a gift, or was privatized before the marriage was registered.

Although by default each spouse can expect an equal share, it can be increased in some cases.

In particular, if one of the spouses did not receive income during the marriage, and their absence was not due to any valid reasons (these do not include being on sick leave, raising a common child, disability, or housekeeping).

Also, the parent with whom the children will live in the future can count on a larger share.

To increase his share, the interested spouse should go to court, using the above circumstances as justification.

The size of the share in real estate is determined based on a number of additional factors, including the plaintiff’s financial situation, his state of health, the number of children in care, etc.

How does the presence of children affect the court's decision?

The task of the judicial authorities when resolving material disputes during divorce proceedings is to provide housing for the children in such a family and to preserve the conditions and quality of their life.

The parent who will subsequently raise them can count on a larger share in the shared living space. If the child owned his own share of the apartment, it will be added to the custodial parent's share, and the rest will be transferred to the other parent's ownership.

The presence of a minor child’s share in a shared apartment significantly complicates the process of selling it.

It can be carried out only in the case when the child becomes a shared owner in the new apartment, while maintaining the number of square meters in his ownership.

If the apartment is shared

When the need arises to decide the fate of the property, the husband and wife have the right, in the presence of a notary, to voluntarily sign an agreement on the division of the apartment among themselves. It stipulates the size of shares and the conditions for payment of counter monetary compensation.

If there are no agreements, the courts are guided by Art. 39 of the RF IC, according to which, as a general rule, assets are distributed in half. But there are exceptions.

Thus, the wife is given the opportunity to seize the apartment from her husband in a larger share if the latter does not provide for the family for a long time for unjustified reasons.

The above does not apply:

housekeeping;
child care;
having a serious illness or disability.

Accordingly, the court does not have the right to limit a woman’s rights if she took care of the house or child.

The chance for a wife to receive her husband’s share, part of it, also arises when he irrationally used the general budget, causing damage to the family. By his actions, the negligent husband gives his wife a reason to act within the framework of the law, namely paragraph 2 of Art. 39 RF IC.

As an illustration, we can cite a fairly common life situation: an alcoholic husband began to take things out of the house in order to earn money for another portion of alcohol.

In practice, it happens that housing for a family is purchased in combination - through general and personal savings. Then, during a divorce, the apartment is divided between the spouses in appropriate proportions.

Or here’s another everyday situation. Two family members have a cottage purchased during marriage. Using the husband's personal funds accumulated before the wedding, the household acquired an extension. In this case, when dividing the house, the spouse’s share will be increased. It is therefore not surprising that courts pay close attention to the source of finance.

How to challenge a marriage contract in an apartment?

Drawing up a marriage contract is a legal option for resolving any problems related to the possible division of marital property. Moreover, the contents of the agreement may apply not only to existing real estate, but also to any types of future assets acquired during marriage. If the parties have a valid prenuptial agreement, property will be divided in a divorce strictly according to its terms.

In order to sue part of the real estate, the specified document must be terminated. The procedure takes place by mutual agreement of the parties or through the court. When contacting a judicial authority, please note the following:

Each partner can bring a claim;
the grounds can only be a significant violation of the interests of one of the spouses when signing the agreement;
If the marriage contract is annulled, the distribution of assets occurs according to the general rule of equality of shares.

It will be almost impossible to completely seize the apartment, since the RF IC provides for forced deprivation of the right to a share only if the second spouse did not receive income for unjustified reasons, or spent common money contrary to the needs of the family.

How to get an apartment if you have children

If the spouses have children growing up, the picture changes radically. After all, when distributing shares, the courts take into account which parent the children will continue to live with.

Therefore, if the child remains with the mother, she has every right to claim the majority of the jointly acquired property (clause 2, article 39 of the RF IC). But here everything is individual; we note that courts rarely apply this rule.

Moreover, housing, together with family law, protects the interests of minors. Minimum guarantees on the size of living space have been introduced for them, depending on the region of the Russian Federation. This applies to cases of subsidies under the young family program and other government support measures.

In turn, the alienation of even a share belonging to a child requires the consent of the guardianship authority. It is given only if there are alternative square meters that can realistically be provided.

With maternity capital

In the Russian Federation, there are several ways to support families raising two or more children. Among them is the provision of maternity capital for the purchase or even construction of their own housing.

However, the division of real estate in the event of a divorce occurs according to the following rules. The part that is spent on maternal capital is not involved in the dispute and is distributed in shares between parents and children.

All information is presented in detail in the article: Section of an apartment with maternity capital.

However, here you need to be aware that maternity capital in many cases is not enough to solve the housing problem. Then the spouses are forced to add their own, borrowed funds. In this case, the division will affect only the part of the property that falls under the surcharge.

Is it possible to sue for a mortgaged apartment?

It's no secret that a loan for many families is the only way to solve problems with their apartment. But there is one significant circumstance - the presence of debt to the bank.

In this case, mortgage divorce has its own characteristics. Until the loan is repaid, the financial institution has the final say. And if the bank is against it, you need to file a statement of claim for the division of property. In this case, the court will divide the apartment 1/2 for each person.

There are several options for solving the problem and they all directly depend on the will of the creditor. For example, the main mortgage can be divided into two independent agreements, but not every bank will take such a step. Read more in the article: How to renew a mortgage during a divorce.

In practice, the scheme according to which the purchased apartment is sold is justified (of course, you must first obtain the consent of the bank). The loan is repaid with the proceeds, and the remaining money is divided in half by the ex-husband and wife.

It is worth adding here that if one of the spouses paid off most of the loan for the other, then he has the right to file a recourse claim for this money. The ratio of shares does not change.

Municipal apartment, and husband is the employer

Municipal, as well as service, residential premises cannot be the subject of division. After all, it belongs by right of ownership to the state, territorial entity, or organization.

In order for such real estate to become the property of citizens, it must be privatized. But here too there are legal subtleties.

Provided that only the husband will participate in privatization, the entire apartment will become his personal property by virtue of Art. 36 IC RF. True, the ex-wife will retain the right to live in it. In addition, she has the right to prove that she invested money in repairs. And if the amount is significant, the court may consider such property to be joint.

When both spouses, including children, have privatized housing, each will have their own share. In such a situation, the need for division will disappear by itself.

You can take a share if the apartment is shared ownership

Everything here is more or less clear, since common property speaks for itself. The parts are defined, and there is nothing special to divide.

Another thing is that it is possible to buy out a part of it from your spouse, provided that he agrees to sell it. The mechanism is spelled out in basic detail in Art. 250 Civil Code of the Russian Federation.

In particular, the ex-husband must offer his wife to purchase a share, announcing the price in advance. If there is no response within a month or a refusal follows, the husband has the right to sell it to any buyer.

Is it possible to take an apartment from a husband during a divorce if there is a prenuptial agreement?

By virtue of Art. 41 of the RF IC, such a transaction is formalized both before the registration of the marital union and during its existence. Naturally, after a divorce, there can be no talk of a prenuptial agreement.

The full text of the document stipulates the entire property component of family life. The above also applies to the property that will go to the husband and wife in the event of a divorce.

Another thing is that the agreement can subsequently be invalidated. To do this, it is enough to find reasoned grounds provided for by the Civil Code of the Russian Federation for challenging transactions.

An additional argument is the deliberate worsening of the position of one of the parties. When a court annuls a marriage contract, the division of assets occurs on a general basis.

How to win a share in an apartment?

Housing purchased during marriage is registered as the joint property of the spouses (Article 34 of the RF IC). Under this ownership regime, the separate shares of the husband and wife are not determined, and the disposal of real estate occurs only with mutual consent. This regime can be changed both in marriage and in divorce.

If the living space is jointly owned, then the meters can be awarded in court. To do this, it is worth considering the following nuances:

the right to file a claim belongs to each of the partners;
under standard conditions, equal shares will be determined for all common property, including real estate;
Deviation from the principle of equal distribution of shares is allowed if there is a child in the family and he is transferred to be raised by one of the parents.

As already noted, everything acquired jointly is divided in half, but there are exceptions:

A prenuptial agreement can be drawn up both before marriage and at any time during marriage. The document clearly states all questions regarding the responsibilities of the spouses, as well as what, to whom and under what conditions remains after the divorce.
A peaceful agreement between the parties on the division of common property comes into force when inappropriate spending by one of the spouses to the detriment of the family is proven (playing cards, pawning valuables, abuse of alcohol or drugs, etc.).

Examples of judicial practice

Recent judicial precedents indicate that when making decisions, the norms of the RF IC are observed. However, the consideration of certain categories of cases has its own characteristics.

Judges check when the property was acquired and at whose expense. If repairs or other improvements have been made to the property, the costs are determined.

Sometimes during the proceedings, examinations are appointed on the value of the disputed property and the work performed to improve it. Here are some illustrations of what has been said.

Investments in an apartment that increase its value

The Dzerzhinsky District Court dealt with the primary and counterclaim. In particular, the woman asked to recognize the apartment as common property, citing the fact that current and major repairs were done at her expense.

But the judge was critical of the arguments presented. The decision dated May 25, 2020 in case No. 2-903/2019 noted that the built-in kitchen furniture present in the apartment is classified as movable property. Therefore, its installation cannot be considered as capital work that increases the cost of housing.

According to the expert opinion, the cost of major repairs amounted to approximately 50,000 rubles. This is only 2.7% of the cost of housing. Therefore, in this situation, Art. 37 of the RF IC cannot be applied.

Dispute over house and land

Panteleeva turned to Lukyanov with a claim for the division of property, which included a private house with land. In turn, the defendant filed counterclaims.

In particular, he was against the division of real estate. In the statement, the ex-husband indicated that the house was built using funds received from his mother through postal orders. The plaintiff did not work during this period and had no income.

However, the Guryevsky District Court of the Kaliningrad Region found these arguments unconvincing. After all, from applications for the transfer of money it cannot be concluded that they were sent specifically for construction. As a result, by decision dated May 26, 2020, in case No. 2-2062/2019, the court recognized the home ownership as common and divided it.

When spouses have several cars

Spouses may own two cars as common property. And then, during the division, everyone usually gets a car with compensation equal to the difference in cost.

An example is the decision of the Dzerzhinsky District Court of Volgograd dated May 28, 2020 in case No. 2-77/20. In addition to other property, the parties to the dispute shared 2 cars, different in price.

A market assessment of the value of vehicles was carried out. The spouse who received the more expensive car paid his opponent compensation equal to half the difference in price.

Purchased via NIS

Nikiforova filed a lawsuit against her ex-husband for the division of the house along with the land on which it is located. This property was purchased as part of a mortgage program for military personnel with the notarial consent of the plaintiff. At the time of the conclusion of the transaction, the spouse was serving under a contract.

By the decision of the Guryevsky District Court dated May 15, 2020 in case No. 2-689/2020, the requirements were satisfied in full. Household ownership and land are divided between the parties in equal parts.

The reasoning part of the document states that the acquisition of real estate using a bank loan and funds from a military serviceman’s personal savings account does not give grounds to consider it personal property. And if property was acquired during marriage, it is divided on a common basis.

How this happens in reality, read the article: Military mortgage during divorce.

What belongs to whom in marriage

Before initiating the division of property, it is necessary to understand what is personal property and what is joint property. Clear regulation of this issue is contained in the Family Code. Let's look at each type of property.

1. Joint property

This type of property includes everything that the spouses acquired during the marriage:

Apartments, vehicles, houses, plots.
Financial resources (salary, business income, fees, scholarships, pensions and benefits).
Funds in bank accounts, shares, investments, etc.

All material resources acquired during marriage belong to the spouses in equal rights. In addition, it does not matter at whose expense the property was acquired, by whom it was earned and to whom it was registered. In other words, if a family is supported by, say, a man, and the wife did not work for a good reason (caring for a child, running a household, etc.), then all the property is still divided into equal shares between the spouses.

It is worth noting that there are some deviations from the standard 50/50. When concluding a marriage contract, property can be distributed in the established manner agreed upon by the spouses. When dividing property, the provisions of the contract are taken into account. Therefore, when drawing up, be careful, as you may be left without property at all.

2. Personal property

According to family law, personal property includes:

Personal items (wardrobe, medications, printed publications, cosmetics, personal items). Exceptions include jewelry and luxury items.
Movable and immovable property acquired before marriage or during the marriage, but with one’s own resources.
Movable/immovable property, the ownership rights to which were acquired as a result of a gift, inheritance or received by will.
Copyright and intellectual rights, prizes, awards and orders.

The above property is not subject to division, however, there are exceptional situations that we will consider further.

Controversial nuances of classifying property as personal:

If property was acquired for a child, it is neither personal nor jointly acquired property. Whether it is children's clothing, household appliances, real estate or a bank account, this property is inviolable for division between spouses. After the divorce process, the property of the children remains at the disposal of the parent with whom the child will live.
If the spouses remain husband and wife purely legally, but do not live together for many years. During such a period, spouses acquire property, which is formally considered joint. In this case, when dividing property, each owner must provide evidence that family life is a thing of the past. Property acquired jointly will be subject to division.
The joint exploitation of the personal property of a spouse during the marriage, as well as its improvement through the contribution of common finances, time and labor. As a result of these investments, the property increased in value. The standard situation is a major renovation of an apartment, which is the personal property of the spouse. If you prove in court that you invested a lot of money, did the repairs yourself and spent time on it, there is a possibility of receiving a share of the apartment or compensation from the owner. Evidence may be in the form of appraisal documents, photographs, receipts for the purchase of tools, materials, and testimony from a party not interested in the divorce.
When privatizing real estate. A difficult issue that requires careful consideration. If the property was privatized during the marriage, but was registered in the name of only one spouse, it is almost impossible to recoup the share of the privatized property. At best, you can only qualify for living in an apartment.

Thus, despite the list of personal and jointly acquired property being clearly established in legislation, controversial situations requiring legal analysis are not uncommon. Therefore, in order not to be left without resources, it is worth consulting with specialists.