Sample counterclaim for division of jointly acquired property

The division of jointly acquired property through the court is quite a common thing, because only every second couple manages to voluntarily agree on the procedure for dividing jointly acquired property.

But what to do if the other party not only disagrees with the demands presented in the statement of claim, but also has its own towards the plaintiff?

In this case, the plaintiff has the right to file counterclaims, especially if the rights of the defendant are significantly infringed or the joint dispute can be quickly and effectively considered within the framework of one case.

When to file a counterclaim

According to the rules enshrined in the Civil Procedure Code, counterclaims can be presented:

• Until the court makes a final decision on the case.
• Only the defendant.

The judicial authority has the right to accept a counter-statement with a request for its consideration if the following conditions are met:

1. A mutual connection between the initial and counterclaims has been discovered, and this, from the point of view of the court, will help to quickly resolve the property disputes of spouses who want to divorce.
2. The counterclaim presents claims that are completely opposite to the original one, and their satisfaction precludes recognition of the plaintiff’s claims, partially or completely.
3. The purpose of a counter-statement is to offset the claims made in the original statement.

If the counterclaims formalized in the application do not correspond to any of the conditions of the above list, then the judge is obliged to issue a ruling that provides for the refusal to accept the claim. According to legislative norms, it cannot be appealed, since the refusal does not deprive the defendant of the opportunity to transfer his application to another court for separate consideration.

Reasons

The right for the defendant to file a counterclaim for the division of marital property and consideration of this claim simultaneously with the main, initial claim is provided for in Art. 137 Code of Civil Procedure of the Russian Federation.

The right to file a counterclaim is provided if, in the process of considering a dispute related to family or civil legal relations, a claim arises aimed at offsetting or excluding the original claim made by the plaintiff.

When can you file a counterclaim when dividing marital property?

Thus, one should take into account the conditions under which it is permissible to file a counterclaim for the division of joint marital property.

Let's consider what are the grounds for filing counterclaims:

1. A counterclaim may offset the main (initial) claim. According to Article 410 of the Civil Code of the Russian Federation, the obligation under the initial claim may be partially or fully extinguished by a homogeneous counterclaim. According to Art. 411 of the Civil Code of the Russian Federation, the only exceptions are obligations for which the statute of limitations has expired, as well as obligations to compensate for damage caused to health and to collect alimony.
2. The court's satisfaction of a counterclaim means that it is impossible to satisfy the initial claims - if the counterclaims are filed during the trial to recognize the ownership of one of the spouses in the disputed property.
3. There is a relationship between the initial and counterclaims for the division of matrimonial property, which allows them to be considered simultaneously, to reduce time and increase the productivity of the legal process. As a rule, this is the most common basis for filing a counterclaim for the division of marital property when considering disputes in family legal relations.

A counterclaim is filed with the court according to the same rules as the main, initial claim. However, there is a limiting rule: this must be done before the court makes a final decision on the case.

The court issues a ruling on acceptance or refusal to consider a counterclaim. If a counterclaim for division of marital property is filed groundlessly (does not meet any of the above conditions) or untimely, the court issues a ruling to refuse to accept it. Alas, this ruling cannot be appealed, but it does not prevent the defendant from filing a new independent lawsuit with the same claims.

If the court accepts a counterclaim, the consideration of the claims of the plaintiff and the defendant occurs simultaneously, as a result of which a decision is made on all stated claims.

Example Citizen Silantyev filed a claim in court for divorce from citizen Dementyeva. In addition to the demand for dissolution of marital relations, the plaintiff filed a demand for division of property. A husband and wife had a disagreement regarding the ownership of an apartment, which was purchased during marriage partially with funds from the plaintiff, which he inherited from his parents. The spouses failed to reach an agreement. Defendant Dementieva decided to file a counterclaim and thus divide the rest of the joint marital property (a deposit opened in the name of her husband and a car), since there is a mutual connection between the claims in accordance with Article 138 of the Code of Civil Procedure of the Russian Federation.

The court accepted the counterclaim for consideration, and issued a ruling according to which the simultaneous consideration of the case of divorce and division of matrimonial property should contribute to a quick and objective resolution of disputes.

Document structure

A sample counterclaim for the division of jointly acquired property, which can be found on the Internet, and forms for filling out a counterclaim, issued to an interested party in court, have a certain structure enshrined in the norms of the Civil Procedure Code.

The statement of counterclaim consists of three blocks:

1. Top or cap. Here the name of the court to which the application is sent is indicated, the personal data of the defendant making the claim and the plaintiff are written. Then the price of the claims is indicated.
2. The descriptive and motivational part sets out the defendant’s justification for why the plaintiff’s application cannot be satisfied, and provides evidence confirming the correctness of the defendant’s judgments. In addition, references are provided to articles of regulations that prove the applicant’s position.
3. The operative part contains a complete list of objections that the applicant plans to satisfy by court decision, a list of official papers attached to the application, and the date of preparation and the signature of the originator.

Drawing up a counterclaim

Since, in accordance with stat. 137 of the Code, a counterclaim is drawn up according to all the same rules as the initial one, then the defendant, when filing it, must take into account the regulatory provisions presented in Art. 131 and 132 of the Code.

That is, everything is according to the standard:

• the “header” indicates the name of the court, surnames, first names and patronymics of the parties participating in the case, their residence addresses, contact numbers (if known);
• the title of the document is written in the center, with the obligatory indication that the claim is a counterclaim;
• then the “background” is described - that is, it is written when the marriage was concluded between the defendant and the plaintiff, where and under what circumstances, as well as where and how it was dissolved (the details of the certificates of conclusion and dissolution must also be indicated);
• then it is written when the plaintiff filed his claim and in which court, a note is made that the said claim is still under consideration by the court and a final decision on it has not been made;
• Next, the essence of the counterclaims is described directly - to include some thing in the common property, on the contrary, to exclude it, or to consider the case of division of property, if initially only a claim for divorce, etc. was made;
• at the end the date of compilation and the signature of the defendant are indicated.

DOWNLOAD Counterclaim for division of jointly acquired property (Sample 2021)

The application must indicate the price of the claim and attach relevant documentary evidence (purchase and sale agreements for certain property, extracts from Rosreestr, etc.).

List of attached documents

The following documents are attached to the original application sent by the defendant for proceedings to the judicial authority:

• Several copies of the document containing counterclaims, depending on the number of plaintiffs.
• A copy of the data taken from the applicant's passport.
• A certificate confirming the existence of a registered marriage between the parties to a legal dispute.
• Documents indicating that real estate and other material assets are jointly owned by the wife and husband, for example, a certificate of ownership of residential premises.
• Papers proving the defendant's claims to property, for example, extracts from the technical inventory bureau, certificates from the cadastre authorities, an appraiser's conclusion, invoices or checks.
• If the dispute is not limited to property claims, but concerns the determination of the future fate of common children and the issue of collecting alimony, then it is necessary to provide evidence certifying the fact of the birth of common children of a married couple.
• A receipt, check or other document certifying the transfer of money to the treasury for payment of the state duty.

State duty

Due to the fact that the document being sought, submitted for trial to a judicial authority, puts forward claims of a property nature, the cost of the claim is the criterion by which the amount of the state fee is calculated.

In order to justify the price indicated in the application, it is necessary to provide written evidence confirming the value of the disputed joint property. It can be:

1. Any invoices, receipts, checks, sales contracts, which clearly state the amount of money that was paid for the item.
2. To estimate the value of real estate assets, you can use the assessment of the cadastre authorities or information from the BTI.
3. Conclusion of a professional appraiser.

Having completed the assessment of the disputed property, you should proceed to the procedure for calculating the state duty. It is calculated according to the rules indicated in the table below.

Where and how to serve (step by step instructions)

Within the meaning of Article One Hundred and Thirty-Seven of the Civil Procedure Code, counterclaims are sent with jurisdiction to the same judicial body that accepted the requirements for the initial statement of claim for consideration.

The procedure for filing a counterclaim is as follows:

1. It can be sent for consideration only from the moment when the defendant learned from the statement of claim about the property claims on the part of the plaintiff, and until the moment when the court makes a final decision on the dispute.
2. An application with attached documents and a receipt for payment of the state fee can be submitted both during the court hearing to consider claims, and outside it during the working hours of court officials.
3. To submit a counterclaim for trial, the defendant must appear in person at the trial or to the secretary of the judge considering the dispute between the spouses and submit an application with a package of documents.

How to submit a counter-application for division of marital property

Even at the preparatory stage of the process of divorce without division of property or the actual division of property, the judge must notify the defendant of his right to make a counterclaim.

Where is it served?

A counterclaim is always submitted to the court where the main application was filed. It is also acceptable to hand over the document in person to the judge during the next hearing of the case, but not before making a decision on the original claim.

It happens that the main and counterclaims have different jurisdiction. That is, one of them should be considered by the magistrate court, the other by the district court. In this case, they are combined, and only the district (city) court will deal with their further consideration.

Required documents

As when filing the main application, the counterclaim is accompanied by a package of documents - copies not certified by a notary. The originals, if necessary, are presented to the court during the hearing.

The package includes the following documents:

• passports of the plaintiff and defendant;
• certificate of marriage or divorce;
• receipt or check for payment of state duty;
• birth certificates of children or their passports (if children are minors);
• documents confirming ownership of the divisible property;
• expert opinions on the current value of the property to be divided;
• other documents confirming the validity of the plaintiff’s claims.

If instead of the plaintiff, his attorney will be present at the trial, a power of attorney for the representative, executed by a notary, is attached to the package of documents.

Submission deadline

A counterclaim can be filed at any stage of the legal process. There is only one restriction: the court will not accept the claim if the judge has already retired to the deliberation room to make a final decision. The logic of such a requirement is extremely clear - the court needs time to familiarize itself with the application.

Lawyers recommend that when filing a counterclaim through the court office, you immediately notify the judge presiding over the case. This makes it easier to avoid unpleasant surprises, because accepted applications are not always received by the judge on the same day.

If the defendant learned about circumstances that infringe on his rights in relation to property only in court, he has the right to demand a postponement of the hearing. Typically, judges in such cases adjourn the hearing and give the defendant time to prepare a counterclaim.

Important! If a counterclaim is filed, the court begins the consideration of the case anew, taking into account the circumstances of both statements. Therefore, filing a counterclaim immediately before a decision is made may be perceived by the court as an attempt to delay the process. In this case, the authority may return the application without consideration.

State duty

Payment of state duty is carried out in accordance with general requirements. Its size is determined by the cost of the claim and is calculated according to the instructions of Art. 333.19 of the Tax Code of the Russian Federation.

On a note! The minimum and maximum amounts of state duty are established by law. They are 400 and 60,000 rubles, respectively.

Subtleties in various situations

Loans

Family law establishes that the joint assets of spouses are divided in half, unless they have specified other conditions in the marriage contract. These rules also regulate how common debts are divided.

However, during the dissolution of the marriage through the court, the husband or wife may try to transfer part of their debt obligations to the other spouse. To defend your rights, you need to understand which loans are considered joint and which are personal, and legally substantiate your position in a counterclaim.

Funds received under loan agreements will be considered general if:

• The loan money was taken by one of the participants in the marriage relationship, but it was spent on family needs.
• Both spouses borrowed funds and are official borrowers under the loan agreement.

Debts are recognized by law as personified in the following cases:

1. Borrowing finance for transactions that are personal in nature, for example, paying for dental treatment at a dental clinic.
2. Receiving credit money to pay for damage caused by one of the spouses when he committed an administrative or criminal offense.
3. Borrowing money to cover debts arising from obligations on the spouse’s personal business.

Thus, in a counterclaim you need to describe the current situation and provide evidence confirming the defendant’s point of view if:

• The plaintiff is trying to convert some of his personal debts into joint debt.
• The plaintiff formally took money from a targeted loan for the joint needs of the spouses, for example, to purchase a family car, but in fact spent it on satisfying personal desires.

Real estate

According to the legal norms enshrined in Article 30 of the Civil Procedure Code, statements of claim, the subject of which is real estate, must be submitted for consideration to a court located in the same locality as the disputed real estate. These rules also apply to counter-objections from the defendant.

But, if the defendant adds to the list of his own claims in the counter statement real estate located in another city and of greater value, then he is obliged to send it to the district court of the locality where the most expensive property of all the real estate included in the subject is located spore.

For example, if a wife, acting as a plaintiff, demands the division of an apartment located in Nizhny Novgorod and valued at 2 million rubles, then, according to the rules of jurisdiction, she submits an application to one of the district courts of this city. However, if the defendant wants to include in the subject of the proceedings the personal residence of his wife in Moscow, which is estimated at 6 million rubles, and wants to divide it, then he needs to send a counterclaim to the Moscow district court, because the most valuable real estate asset for which division The spouses are arguing among themselves, located in this city.

Having children

Based on the analysis of Russian judicial practice, the presence of a minor child in a married couple affects the division of joint property as follows:

1. The parent, who, after the termination of the marriage, will live with the child and raise him, usually acquires more when dividing assets than could be due to him by law.
2. The other parent, usually the ex-husband, bears the child support burden.

Since in most divorce proceedings wives are on the plaintiff’s side, and husbands are on the defendant’s side, in order to ensure that when dividing things the defendant does not allow significant property losses, it is necessary to provide evidence (written or testimonial) in the counterclaim, if the circumstances below are actually present in your situation:

• 
  The spouse does not care about the child, about his socialization, education and moral development.

• The wife abuses parental power, namely, prevents the child from studying in an educational institution, inclines him to illegal behavior.
• Your other half abuses your children, beats them, insults them and humiliates them.
• The spouse is addicted to drugs or alcohol and because of this does not take care of the children.
• The wife suffers from a disease that does not allow her to properly care for and raise the children.

If the defendant manages to convince the judge of the truth of his point of view, then he will be able not only to independently raise his own children, but also to receive additional property, which the courts allocate to the ex-spouse living with the children, in order not to violate the child’s housing rights and his rights to decent living conditions.

As for alimony payments, you can reduce their amount awarded for monthly payment by court decision as follows:

1. If the defendant is employed, then it is possible to agree at the place of work in the accounting department to reduce the official (“white”) salary and transfer part of the earnings to the “gray” range. Then, in the counterclaim, write its reduced size and attach a certificate of income received from the employer to confirm your words.
2. If the defendant does not have a regular income or is engaged in business, then he can reduce the amount of income indicated in the tax return, according to information from which the judicial authority will calculate the amount of alimony payments in the form of a fixed amount of money, and write a reduced amount of income in the counterclaim. It should be understood that manipulation of tax documents may result in criminal prosecution. However, an entrepreneur has no legal ways to reduce alimony payments.

Disagreement with the assessment

In this case, the defendant should do the following:

• Before filing counter-objections, order an assessment of the joint property from a professional appraiser in order to understand whether the plaintiff’s assessment is fair.
• If the assessment of the value of assets indicated in the plaintiff’s statement and given in the conclusion drawn up on your order differs, then you need to check what the assessment of the other party to the lawsuit is based on. If based on your own conclusions, then it is necessary to attach the appraiser’s conclusion to the counterclaim. It will be significant evidence of the value of the counterclaim. If the conclusions of a qualified specialist, then, in addition to submitting the result of the work of your property appraiser to the court, it is necessary to convince him to attend a court hearing in order to testify and explain the methods he used to estimate the value of the disputed items.