An agreement on the division of marital property is a voluntary document, and its conclusion between husband and wife (even if they are already ex-wife) is possible only with the mutual consent of both.
Only a married couple who can peacefully agree on who will own what property alone should draw up and sign such a document.
Drawing up a voluntary agreement saves spouses from having to go to court regarding the division of jointly acquired property and from long delays before making a decision. In addition, the agreement does not have to strictly follow the rule of equal division of the property of the spouses, when everything acquired must be divided in equal shares. You can divide everything in a way that suits both.
When to enter into an agreement
At what point in their joint family life (or after its termination) should spouses be puzzled by the issue of dividing their jointly acquired property? Only they can decide for themselves.
Division agreements can be concluded:
- within the framework of family life,
- simultaneously with the decision on the issue of divorce,
- after the dissolution of the family union.
Each married couple must decide for themselves whether there is a need in their family to share the common good. And the law does not prohibit drawing up an agreement at any stage of a family union.
It is impossible to draw it up only before the conclusion of a legal marriage, when the young couple still has nothing in common, and, accordingly, there is nothing to share. At this stage, it is more advisable to conclude a marriage contract, within the framework of which it is possible to determine the fate of what the future spouses are planning to acquire.
A voluntary agreement concluded by spouses must be distinguished from a settlement agreement on the division of property. If the first is concluded between husband and wife at any time in their family life voluntarily and independently, then the second is the result of resolving the case in court and reaching an agreement on the division already in the courtroom. The first document is drawn up and signed by the spouses, the second is prepared in court and presented to the spouses for signature.
How is the property of spouses divided under a settlement agreement?
Before drawing up a settlement agreement on the division of property, it is necessary to keep in mind that the norm of Article 39 of the RF IC obliges spouses to divide common property in equal shares when controversial issues arise. An exception to this rule may concern an increase in the share of one of the spouses in favor of a minor child.
If a marriage contract is concluded, the parties can establish the distribution of shares in it in any proportion. The main thing is that in this case the rights of minor children are not violated. The same rules apply to an agreement on the division of common property.
How the agreement is concluded
The method of drawing up and concluding an agreement on the division of joint property is quite simple and unsophisticated. The main requirement is that the document must be in writing.
Spouses can draw it up themselves or seek help from a law firm. Of course, the document must be drawn up legally, contain factually and grammatically correct information, and reflect the legal consequences of fulfilling or failing to fulfill its conditions.
Another important requirement is that the agreement must contain the signatures of both parties to confirm that both spouses agree to the terms of the division set forth in it.
Do I need to contact a notary?
The subject of much debate is whether a “separation” agreement is required to be notarized. No, not required. It is enough that both spouses, having read and agreed with all points of the document, sign it. After this, it will have sufficient legal force as a contractual document, which can subsequently only be challenged in court.
However, most legal scholars still advise the parties to the agreement not to ignore the notary’s office and to certify it with a notary’s signature. And that's why:
- This lawyer will definitely have legally correct templates for drafting an agreement, which will be more difficult to challenge if the spouses later have any disagreements.
- The notary will definitely explain to the parties in detail the procedure for drawing up, the conditions and consequences of concluding the agreement, so that none of them will be able to say in the future that they did not understand the essence of the agreement.
- The notary's employee will act as a guarantor that the agreement was not drawn up using threats, blackmail or deception by one spouse against the other.
Whether it is necessary to contact a notary office, each couple must decide for themselves. Some are stopped by the need to pay for notary services (although the cost is not so high), some are confident in the correctness of drawing up the document without the help of a specialist, others have other reasons. We indicated the advantages above, but the document will not lose its legal force in any case.
Addition from 12/20/2016: Due to changes in the family code, the rules for concluding an agreement have changed. Notarized consent is now mandatory!
What property should be included in the agreement?
It would seem that such an easy question, but when drawing up an agreement on the division of jointly acquired property, it confuses many. And the answer is simple: they must determine the list of things that spouses need to include in the text of the agreement themselves.
Some will think that everything needs to be included - from the apartment to spoons and pots. And that's their right. Although the volume of the document can turn out to be quite impressive after all the enumeration. Others will indicate in the document only the procedure for dividing a residential building and a car, and they will be able to agree orally on the fate of the rest of the property and divide it without paperwork.
In any case, divisible property must be indicated correctly:
- Name,
- make or model (if available),
- size,
- color,
- distinctive features,
- address or registration number (if it is an apartment, house or car),
- indication of the registration document (certificate of ownership, title, etc.),
- approximate cost (purchase value at the time of division).
If the apartment is on a mortgage, then you also need to make a note about this, and also indicate not only who will own it, but also who will bear the burden of paying the remaining loan amount.
The agreement has two types:
- document on division of property and
- document on the allocation of shares.
It is logical that in the first option any property can be indicated, even very small ones. And the second provides for the procedure for dividing something into shares. More often these are apartments, dachas, businesses, etc.
Items for individual use (cosmetics, underwear, etc.) and products of intellectual labor are not subject to division, and therefore not to be indicated in the agreement.
According to the law, property that was acquired by one of the spouses before marriage, gifted to him, inherited or privatized by him even during the marriage is not divided and is considered sole property (see deed of gift for a car, donation of an apartment). Therefore, the agreement must particularly carefully determine the future fate of such things. If the spouses nevertheless decide to divide them, then in the event of a future dispute, the winner will be the one who is the sole owner by law.
Is it possible to conclude a settlement agreement on the division of property if there is a prenuptial agreement?
If a husband and wife, before registering their marriage or during the process of living together, entered into a marriage contract, this does not prohibit them from exercising the right to conclude a settlement agreement on the division of jointly acquired property.
Despite the similarity of both documents, they have two significant differences.
Terms of imprisonment
A prenuptial agreement is drawn up not only before the wedding, but also during the marriage. A separation agreement can be signed both during the marriage and during or after a divorce.
Nature of property and property relations
The settlement agreement allows for the division of only those types of property that were acquired jointly. In order for one spouse to transfer his personal property to the other, he must draw up a deed of gift.
A marriage contract makes it possible to redistribute rights to not only jointly acquired property, but also to the personal property of each spouse. The parties can transfer ownership of property that will be acquired during their cohabitation. In addition, a marriage contract allows you to regulate non-property relations related to the maintenance and upbringing of children.
Contents of the agreement
Although an agreement on the division of common property is a voluntary and arbitrary document, its execution must still meet certain requirements and contain mandatory sections and norms.
The document includes:
- Preamble (or header). Contains an indication of the calendar date, the place of drawing up the document (locality) and personal data of the parties to the agreement (last name, first name, patronymic, date and place of birth, residential address and passport number).
- Subject of the agreement. This part of the document indicates the civil status of the parties (are they married or divorced, since when, a link to the registration document), and also provides the entire list of common property that is planned to be divided.
- Section order. This part reflects how the above property will be divided between the parties: in shares or to each spouse certain things and household items.
- The procedure for transferring property (optional). It can indicate how, where and within what time frame the property will be transferred by one spouse to the other, how it will be re-registered, etc.
- Indication of personal property. This clause is needed if the husband and wife have personal indivisible property (donated, inherited, purchased before marriage, etc.).
- Entry into force of the document (optional). Typically, an agreement becomes legally binding from the moment it is signed. But sometimes spouses can specify a different period: after registration of divorce, etc.
- Conclusion. It indicates the number of copies produced and the location of their storage. If the agreement is certified at a notary office, then one copy must be prepared for its employee. This part also provides the procedure for resolving disputes and making changes to the document.
- Signatures of the parties. A very important point. Without the signature of at least one of the parties (and a notary when certifying it), the document will be considered invalid. And it’s good if you put not only a signature with your own hand, but also a transcript of the surname and initials.
Sample agreement on division of property
For clarity, we present one of the typical from a huge variety of sample agreements.
Property division agreement
Turgan 08/03/2020
Sergeev Nikolay Petrovich, born December 23, 1972, Russian Federation passport series 37 06 No. 255544 issued by the Federal Migration Service of Russia for the Turgan region in Turgan on October 15, 2006, registered at the address: Turgan, Selezneva St., 15-2, referred to as hereinafter “Spouse-1” and Sergeeva Elena Vladislavovna, born on February 15, 1980, Russian passport series 37 06 No. 356456 issued by the Federal Migration Service of Russia for the Turgan region in Turgan on October 25, 2006, registered at the address: Turgan, 7 microdistrict, 23-3, hereinafter referred to as “Spouse-2”, and collectively referred to as the “Spouses”, have entered into this Agreement as follows:
On October 5, 2006, the Spouses entered into marriage
On October 05, 2006, a marriage was concluded between the Spouses, about which registration entry No. 1345 was made in the Civil Registry Office of the city of Turgan. By the time the Agreement was concluded, the marriage between the Spouses was dissolved on the basis of the divorce certificate 45 BS No. 345678; the marriage between the Spouses has not been dissolved.
During the period of marriage
During the period of their marriage, the Spouses acquired the following property, which is considered their joint common property:
- apartment located at the address: Turgan city, 7 microdistrict, building 23, apartment 3, located on the 8th floor of a residential building, consisting of 3 rooms, with a total area of 62.2 sq.m., Certificate of state registration of ownership dated April 28, 2011, series: 45-AA 928921 issued by the Office of the Federal Service for State Registration, Cadastre and Cartography for the Turgan Region, worth 2,200,000 rubles;
- land plot with an area of 2400 sq.m. cadastral number 45:16:02024:115, with a one-story residential building located on it with an area of 42.2 sq.m., located at the address: Turgan, SNT "Ivolga", Rechnaya St., 25, worth 1,200,000 rubles;
- passenger car "AUDY Q-7" manufactured in 2013, license plate A 345 UA, worth 1,000,000 rubles.
The spouses, by this Agreement, shall:
The spouses hereby divide the property specified in paragraph two in the following order:
Spouse 1 receives in his property:
- an apartment located at the address: Turgan city, 7th microdistrict, building 23, apartment 3, consisting of 3 rooms, with a total area of 62.2 sq.m., worth 2,200,000 rubles.
Spouse 2 receives in his property:
- land plot with an area of 2400 sq.m. cadastral number 45:16:02024:115, with a one-story residential building located on it with an area of 42.2 sq.m., located at the address: Turgan, SNT "Ivolga", Rechnaya St., 25, worth 1,200,000 rubles;
- passenger car "AUDY Q-7" manufactured in 2013, license plate A 345 UA, worth 1,000,000 rubles.
In order to fulfill clause 3 of the Agreement
In order to fulfill clause 3 of the Agreement, the Spouses undertake, within 3 working days from the date of conclusion of the Agreement, to re-register ownership of the above property with the authorities of Rosreestr.
The couple determined
The spouses have determined that the following items are the personal property of each of them and are not subject to division:
Spouse 1 retains ownership of the property:
- LCD TV “SONY-V56CY” screen diagonal 80 cm, worth 20,000 rubles, gifted by my grandmother in 2014.
Party 2 reserves the right of ownership of the property:
- a set of power tools “BOCH-345VN” worth 18,500 rubles, inherited under a will from my grandfather.
This Agreement comes into force
This Agreement comes into force from the moment it is signed by the Spouses; from the moment of dissolution of the marriage between the Spouses and receipt of the Certificate of Divorce.
This Agreement is made in 2 (3) copies
This Agreement is drawn up in 2 (3) copies having equal legal force, one copy for each of the parties and the notary T.A. Chechulina, who certified the document with her signature.
All additions and changes to this Agreement must be made exclusively in writing and approved by both Spouses.
All disagreements and disputes arising regarding the implementation of the clauses of this Agreement must be resolved by the Spouses through personal negotiations. If agreement is not reached on controversial issues, they are subject to consideration in court in accordance with the norms of Russian legislation.
This is just an approximate example with a minimum of property names and methods of transferring it. Each document is drawn up by spouses individually in compliance with basic requirements.
The specified document is subject to transfer to the registration authorities in cases where the subject of the division is real estate or commercial activity. For example, registration of an agreement on the division of property - an apartment - takes place in the Rosreestr Office. To do this, the registrar needs to provide your copy of the agreement and the existing title documents for the residential premises.
How to draw up a settlement agreement on the division of property
At the initial stage, the parties conduct negotiations, during which the terms of the division of property are preliminarily discussed and all controversial issues are resolved. If it is not possible to reach an agreement, the parties can resort to the services of qualified lawyers. Once agreement is reached, a document is drawn up. A legal specialist can also suggest a sample settlement agreement on the division of property.
This document must also indicate the specific type of property that is transferred to the ownership of one of the parties, taking into account possible compensation and other conditions satisfactory to both parties. In addition, specific clauses must be provided that establish the timing of the transfer of property and the amount of possible payments for transferred material assets.
After detailed consideration, the agreement is signed in three copies, two of which remain with the spouses, and the third is submitted to the court for approval. If the parties decide to have the document certified by a notary, a fourth copy is drawn up for it. The parties put their signatures on each page.
