How to divide property after divorce without court by agreement

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Property can be divided both before the divorce and after it. If we consider only the option without trial, then we should pay attention to a voluntary agreement. This document can be concluded at any time and include any clauses and positions. The main requirement is that both parties agree with all provisions.

What property can be divided?

The Family Code of the Russian Federation establishes two types of property regimes for spouses: legal and contractual.

The legal regime of property, that is, the one that exists in a marriage in the absence of a marriage contract, is a regime of joint property, within which the husband and wife have the right to exactly 50% of the common property.

In accordance with the provisions of the family legislation of the Russian Federation, in the event of a divorce, jointly acquired property is divided, an approximate list of which is established by Article 34 of the RF IC:

income of both spouses received under an employment contract or as an individual entrepreneur; various benefits and payments;
any real estate, as well as movable property, if it was purchased with the common income of both spouses;
deposits in various credit and other commercial organizations;
capital of spouses in various joint-stock companies, LLCs, etc.

It is important to note that the law protects the spouse who, during the marriage, raised children, took care of the family’s daily life, but did not have his own source of income - he equally has the right to the common property of the spouses. Moreover, in exceptional cases, his share may be increased by the court.

But the other side of judicial discretion did not bypass spouses who avoided looking for work and thereby created difficulties for their other half: the court has the right to reduce their share.

Lawyer's advice: Remember that without a prenuptial agreement, the division of property during a divorce will occur regardless of which spouse the specific item is registered in, as well as which of them is a shareholder, member of an LLC, etc.

What can be shared

The answer to the question of what property can be divided by spouses voluntarily without involving a court will depend on the stage of the divorce. If the parties have just planned it, they can divide all the property. If the divorce process has already begun, only jointly acquired property will be subject to division. And the property of each spouse, if the parties decide to change the owner, can be re-registered only on the basis of a gift agreement.

Jointly acquired property includes all property that was purchased by spouses during the existence of an official marriage. It does not matter to whom the certificate of ownership is issued. This could be one of the spouses. The property is still considered common. When establishing legal status, they do not take into account the fact which spouse earned the bulk of the money. Almost all income received during the marriage is considered joint income. Even if one of the spouses did not work at all, but was only involved in housekeeping.

The following are considered as common property subject to division:

Real estate, as well as movable property, including cash and securities.
Bank deposits, shares in business.
Labor income, pension payments, scholarships, rental income.

What property is not subject to division?

The following types of property cannot be divided between spouses:

Property acquired before marriage.
Property that one of the spouses began to own as a result of gratuitous transactions (received as a gift, by inheritance, etc.). This rule also applies to property acquired during the marriage.
Property of your minor children.
Items purchased for the personal use of each family member.

Personal property can be recognized as jointly acquired property if one condition is met, which is enshrined in Art. 37 RF IC. If such property was improved during the marriage (for example, renovations were made to the apartment). Moreover, this must be a significant improvement, as a result of which the value of the object has increased significantly (i.e., simple gluing of new wallpaper is not taken into account).

What property cannot be divided?

It is necessary to clarify that not all property will be considered common upon divorce. Thus, the property that each spouse owned before the marriage was registered, as well as that which he received as a gift or by inheritance, will be considered personal and not joint. Other obvious exceptions include those personal items that only one spouse used, such as clothing, jewelry, or a telephone, which are also personal property.

At the same time, the courts resolve this issue somewhat in two ways, based on the ratio of the value of this property and the standard of living and income of the spouses. For example, if during the marriage the husband bought an expensive iPhone on credit, which the spouses subsequently paid for many months from common funds, the court may return half of the payments to the spouse. This also includes luxury goods (you must admit, the term is also quite vague: what is a luxury for one person is an ordinary household item for another) and exclusive rights to the results of intellectual activity: they belong only to the author.

As for children, their personal belongings (including books, clothes, items necessary for various clubs) do not participate in the division of the property of their parents, but are transferred to the one with whom the children will live in the future. The same applies to bank deposits made by parents in the names of their children: this money belongs to the children.

Legal advice: It is very important to understand that in the division of the common property of spouses, not everything is so simple:

on the one hand, the personal property of a husband or wife can be recognized as the common property of this couple if there is a fact that one of them invested their own or common funds in this property during the marriage, which in turn increased its price (for example, major repairs of real estate );
on the other hand, property purchased by a husband or wife after the actual termination of the family relationship during their separation can be considered the personal property of that spouse.

It must be borne in mind that this state of affairs can be achieved both by contract and in court.

What can be shared

Almost everything that was acquired during marriage and even some objects received as an inheritance or as a gift are subject to division, if they are recognized as joint property, but this is not relevant in our case, since joint property is recognized only in court. Within the framework of a voluntary agreement, everything that belongs to the spouses can be divided, regardless of ownership. If they agree with this, there are no restrictions.

When can property be divided?

As enshrined in Article 38 of the RF IC, division of property can be carried out both during marriage and after its official dissolution. This may be necessary, for example, in the case where a husband or wife has a creditor collecting a debt: to do this, he may demand a forced division of the property in order to then foreclose only on the share of his debtor.

Lawyer's advice: Remember that if the marriage has already been officially dissolved, then demands for the division of jointly acquired property, with rare exceptions, can only be made within three years.

Costs of division and timing of its implementation

It should be understood that dividing property without court is not a free service. You will need to pay:

Notary services will cost an average of 5 thousand rubles.
Payment of the state duty is 0.5% of the agreement amount (it is affected by the overall assessment of the property), but not more than 20 thousand rubles.
Services of an appraisal company - you will need to pay from 1 thousand rubles (the exact amount depends on the type and quantity of property).

An agreement on the division of property can be concluded even after the statute of limitations has expired. The document is voluntary. The only condition for its signing is the consent of both spouses. There is no need to go to court for this. You need to visit a notary, certify the paper and wait for it to come into force in order to legally divide everything.

What is a property division agreement?

There are two procedures for dividing property: by mutual agreement and in court.

Nowadays, it is not as often (as lawyers would like) to meet couples who separate absolutely calmly and are able to independently make common important decisions, as well as agree on all the consequences of their separation. If this is your case, we may recommend concluding a property division agreement.

In essence, this is an agreement in which the husband and wife jointly determine and fix what property will belong to whom if the marriage breaks down.

Article 38 of the RF IC establishes the requirement for notarization of this agreement; without this, it will be invalid. Rosreestr, in its Letter dated March 31, 2021 No. 14-ref/04224-GE/16, also clarified that spouses have the right to divide property in kind or determine their shares; in addition, they have the right to enter into an agreement to determine shares in the common property, which must also be certified by a notary.

If it is not possible to agree on all the property, then part of it can be divided. In this case, the rest of the undistributed common property will remain common, and it will subsequently be divided according to the general rules of family law.

At first glance, it seems that an agreement on the division of property is quite simple to draw up, because the Family Code does not impose any serious requirements on it (except for notarization), but this is not entirely true.

Firstly, the terms set out in the contract should not contradict Russian legislation as a whole, and for a non-lawyer, identifying such contradictions can sometimes be problematic. Secondly, there is always a danger that one of the spouses is more legally savvy (or has already secretly consulted with a lawyer) and will ultimately offer conditions that are beneficial only to him.

Taking into account all the risks, it can be recommended to entrust the development of a draft agreement to specialists in the field of family law, who will explain to both parties all their rights and obligations, as well as the consequences to which each of the recorded conditions will lead.

But if there is an insoluble conflict between the spouses and all meetings and attempts to reach an agreement only end in a big scandal, it is better to immediately go to court with a demand for the division of common property. Judicial representatives will also come in handy in this situation, as they will relieve the parties of the need to meet face to face in the courthouse - in an obvious conflict situation.

Legal advice: Please note that when transferring expensive property to one of the spouses, the value of which is higher than the share of this spouse, the second spouse has the right to demand compensation in cash or other equivalent. Clarity is added by the explanations of the Ministry of Finance of the Russian Federation on this issue: in its Letter dated March 2, 2017 No. 03-04-07/11811, the Ministry of Finance indicates that in the event of division of property under an agreement, this amount of money will be considered income, and therefore, 13% must be paid on it. Personal income tax (in the case of a court decision, this amount of money is not taxed).

How to properly divide property during and after divorce without court

Property can be divided either directly upon divorce or after some time has passed. Let's consider both options, since they actually do not differ from each other.

Division of property during divorce without trial

A significant part of spouses divide property immediately upon divorce, so that no controversial situations arise in the future. They simply do not plan to intersect with each other in any way in the future and want to immediately resolve all possible disagreements. In this case, they enter into an agreement in which they describe the property, and also indicate into what shares it is divided and to whom they go.

Procedure

Conduct an assessment of all property subject to division. You can do this yourself, as long as both parties agree with the specified cost. If for some reason the price cannot be determined, you will have to pay for the services of an appraisal company, since the application must contain the total value of all property. This is important for determining the amount of state duty.
Discuss all the features of the agreement with the other party.
Draw up an agreement*.
Contact a suitable notary to certify the document.
Act in accordance with the terms of the concluded agreement.

*Notaries usually still charge money for their services. It makes sense to draw up the agreement directly in the notary’s office, using the form and example that the notary will provide.

Agreement

The main element of the agreement is a list of property with a clear definition of who gets what part. It is very important that the document does not contain phrases that suggest double interpretation, otherwise it can be challenged in court. Otherwise, there are no special requirements for the form. You can use this example as an example:

Documentation

The main document is a passport. The spouses signing the agreement are required to provide them so that the notary understands that these are the people whose agreement he is certifying. There are usually no other documentation requirements because the husband and wife are expected to share their property and they both agree on how each property will be divided. However, it is recommended to always have all title documents on hand, as they may be required at any time.

Expenses

State duty: 0.5% of the agreement amount, but not more than 20,000.00 rubles.
Notary services: about 5 thousand rubles.
Services of an appraisal company: from 1 thousand rubles and above, depending on the type of property to be appraised.

Example of calculations : The spouses plan to divide an apartment worth 2 million rubles, a car worth 500 thousand rubles and household appliances worth a total of 200 thousand rubles. The total amount of the agreement is 2,000,000+500,000+200,000=2,700,000.00 rubles. 0.5% of this amount will be 13,500.00 rubles. This is a state fee. Separately, you need to pay 5 thousand rubles to the notary and about 4 thousand to the appraisal company. Total expenses will be 13,500 + 5,000 + 4,000 = 22,500.00 rubles. This amount within the framework of the agreement can also be divided into two parts.

Deadlines

An agreement is a voluntary document and can be concluded at any time, even if the statute of limitations has passed. The main thing is the consent of both former spouses. Unlike a lawsuit, there is no need to wait for a court hearing or decision. Everything is decided immediately by the notary, from the moment the agreement is certified or from the moment it comes into force.

Example : An agreement may have a deferred expiration date. For example, spouses can sign this document, but it will only come into force after certain events occur. Let’s assume that while still married, the couple purchased an apartment in a building that is still under construction. There is no point in dividing something that doesn’t even exist yet. And therefore they decided that the division agreement would begin to take effect from the date the property was put into operation in order to immediately divide the property into two parts or sell it.

Division of property after divorce without court

In this case, the option with agreement is also used. It can be concluded at any time and therefore in this case it does not matter whether the division occurs before or after the divorce. However, one must take into account the fact that all property acquired by either spouse after a divorce is not subject to division under any circumstances. The exception is when either party voluntarily agrees to include their personal property in the agreement. This usually occurs as a concession or exchange of a share for another property.

What if we conclude a marriage contract?

Those couples that can come to an agreement after the actual end of the relationship usually choose the option of a prenuptial agreement to divide property outside of court. In general, the logic is clear: various types of property regimes can be fixed in a marriage contract, and most importantly, it is possible to determine and fix who gets this or that property after a divorce without any special problems.

However, it is important to know the difference between a marriage contract and an agreement on the division of property: a marriage contract can be concluded before marriage and during marriage, and an agreement on the division of property can be concluded after the official divorce.

Conditions for dividing property without court

Russian legislation gives spouses the right to independently resolve issues with the division of property. They have the right to act through the courts or divide property without involving a third party:

Before the wedding.
During the period of existence of the marriage union.
During the divorce process.
After divorce.

Most married couples think about dividing property during a divorce. If a husband and wife have disagreements regarding the further ownership of property assets, naturally, they cannot do without a court. If the spouses have no claims against each other, it is better to divide the property voluntarily. This option is cheaper and takes little time.

You can divide property without court in the following ways:

Draw up a marriage contract.
Sign the separation agreement.

The choice will depend on the type of property being divided and the time period.

A marriage contract between husband and wife can be signed before the wedding and during the existence of the official marriage. If the parties are in the process of divorce, i.e. filed appropriate applications with the court or the registry office, such an agreement may be declared invalid. And if the parties only intend to divorce, you can choose this option.

On our website, everyone can get a sample marriage contract if necessary.

It is convenient because in a marriage contract you can fix the ownership rights to any property belonging to the spouses. For example, add a condition to its text that all personal property remains the property of the owners on whom the certificates of ownership are issued. And changing its status is prohibited.

The validity of the marriage contract must be certified by a notary. Without such certification it has no legal force.

What property is divided during divorce?

What is easier: without trial or through court?

Definitely, without trial. Dividing property through the court is more expensive: the amount of the state duty depends on the cost of the claim (the price of the disputed property), and the trial can last for many months. In addition, by entering into an agreement by mutual consent, you reduce the risk of an unequal division of all your property.

What are the consequences of dividing property without court?

Of course, the agreement on the division of property can be amended, or simply terminated by agreement of both spouses. In the first case, the latest version of this agreement will be valid, and in the second, the situation will return to the one that existed before the agreement, that is, the general rules for the division of property established by law will again apply.

Lawyer's advice: Remember that even a notarized agreement can be challenged in court, although the chances of success in this case will be negligible.

Watch the video in which a lawyer briefly explains the distinctive features of dividing property without a trial:

Consequences of partition

Once the agreement has been certified, it is no longer subject to revision. The exception is situations in which both parties are ready to change the original document, draw up an additional agreement, or even a new agreement in which previous agreements will be revised.

In addition, either party can invalidate the agreement in court, but given the fact that it is concluded solely on a voluntary basis, very convincing evidence must be provided for this.

An agreement is the best way out of a difficult situation with the division of property during a divorce. But even despite the voluntary nature of this document, the agreement must be drawn up very carefully so that neither party has the desire to violate it or change it in their favor. To achieve this effect, we offer to discuss the text at our free consultation. In addition, our lawyers can fill out the document for you, taking into account all the wishes of the parties and the specifics of the law.

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What cannot be divided

When wondering how to divide property without going to court during a divorce, it is important to understand that some items and objects are not subject to division. Usually this is children's property, namely:

cloth;
toys;
shoes;
hygiene products;
educational supplies.

In addition, after the dissolution of a marriage, it is impossible to divide everything that is recognized as the product of the intellectual activity of one of the spouses. These can be books written personally, articles, research conducted, patents received, etc. The exception is a joint decision made about their division.