Statement of claim for division of an apartment between former spouses after divorce (sample) 2021

Dividing property through the court is difficult, time-consuming, expensive, and extremely unpleasant from a psychological point of view.

In addition to other emotional costs, during the long, grueling process, ex-spouses lose what little trust and respect they have for each other. And how can they be preserved when one of the parties (and sometimes both), trying to “sue more”, stops at nothing. Including violation of pre-existing oral agreements and promises. And sometimes they even try to lie shamelessly.

Therefore, lawyers recommend resorting to judicial division only as a last resort, when it is absolutely impossible to reach an amicable agreement. And if going to court is truly inevitable, you should be well prepared for it. Get maximum information about how the judicial procedure takes place. Realistically and impartially assess your chances of achieving the desired outcome of the case. Responsibly approach the collection and preparation of documents.

In this article we will try to give comprehensive answers to all questions that arise or may arise during the filing of a claim for the division of family property in court.

Division of property between spouses

Marital disputes over the division of property upon divorce are a troublesome matter.
Therefore, the question of how to file for division of property after a divorce worries thousands of people. Resource 33 consultants will tell you in detail about the procedural nuances and clarify the situation. The rules for dividing assets during divorce are established by Article 38 of the Family Code of the Russian Federation. You can resort to it both during the period of marital relations and after the end of the marriage. The division of property in a civil marriage has slightly different rules. Please contact our lawyers about this.

How to divide real estate after divorce

You can divide your home after a divorce:

In peaceful way. In this situation, you should draw up a settlement agreement on division and register the rights of each spouse in Rosreestr.

However, this solution is possible if:

the apartment is jointly acquired;
the property was acquired as shared ownership, for example, each spouse owns half of the housing under a previously drawn up agreement.

Important! If housing was purchased during marriage and registered in the name of one of the spouses, it is also jointly owned and can be divided in accordance with the law during a divorce. But only if a marriage contract has not been previously concluded.

In this case, the division of property will occur in accordance with the points in this document.

The settlement agreement on the division of property is registered by a notary.

The presence of common minor children does not interfere with the peaceful division of an apartment during a divorce. But the agreement should not infringe on the rights of the child.

By going to court. Thus, it will be necessary to divide the property if it is not possible to resolve the issue peacefully.

What is considered common property?

First, let's understand the concept. Joint property includes what was acquired by spouses during a legal marriage, regardless of the form of expression (material and intangible).

Tangible assets include:

Cash (received in the form of wages, remuneration for services, benefits, pensions, dividends).
Movable and immovable property (land, house, apartment, cottage).
Items and belongings purchased with general income, including jewelry.

Intangibles include bank deposits, contributions to cooperatives, participation shares in legal entities, and obligations under contracts. Moreover, it does not matter to whom the property is registered. Each spouse has equal rights to joint property.

Dividing an apartment with a mortgage is a little more complicated than dividing your own; there are a lot of nuances.

Division of privatized real estate during divorce

The division of a privatized apartment during a divorce is practically impossible when privatization:

made for one spouse;
took place before marriage.

As for the first option, privatization is essentially similar to gift or inheritance. Transactions are gratuitous, and the property will be classified as personal, which cannot be divided during a divorce. In other words, only one of the spouses will be the owner of a privatized apartment.

If privatization was carried out by both spouses, then they can divide the real estate without any problems, you just need to determine the shares of each.

When children of divorcing spouses took part in privatization, the latter do not have the right to the children’s shares.

Property privatized by one spouse can be divided if there is an appropriate condition in the marriage contract. In addition, it can be proven in court that during the time the spouses lived together, expensive repairs or reconstruction were carried out, as a result of which the cost of the home increased significantly. Having successfully proven the latter, the judge can transfer the property to joint property status and divide it.

Is it possible to apply for division of property received as a gift?

If an asset is acquired by the wife (received as a gift, purchased or exchanged) before the state registration of the marriage, it is considered personal property and is not divided during a divorce. And when the husband files for division of the property, the judge denies it.

This rule also applies to property that was inherited, privatized, or acquired as a gift by one of the couple during the period of cohabitation. Items for individual use of spouses (clothes, shoes, books) and those belonging to children are not included in the inventory of divisible objects.

Problems when changing municipal housing

If there is no voluntary consent to the exchange, you have to file a claim in court
. Russian legislation describes in detail cases when housing cannot be divided:

if the tenant does not have the right to an apartment;
if a claim was previously filed with the court that the social tenancy agreement for a municipal apartment is terminated;
if the court has determined that no one can live in a municipal apartment, it will be classified as a non-residential property;
there are a large number of unresolved issues regarding the use of housing;
a municipal apartment cannot be exchanged if there is a decree that the house will be demolished.

See also:
How to divide a car taken on credit during a divorce

Which court is hearing the case?

The answer to this question depends on the value of the property to be divided. If a husband and wife independently agree on the maintenance of children and submit to the judge’s discretion the division of assets worth up to 50 thousand rubles, such disputes are resolved by a magistrate. Otherwise, the case is handled by the district court.

Now about the territorial feature. The claim is sent to the court located at the place of residence of the defendant. If the distributed property includes real estate, then the process is carried out at the location of this object.

By the way, loans between former spouses are also divided, and the court will decide how to do this correctly.

Division of living space inherited after divorce

When the spouses divorced, how to divide the apartment if it was inherited by one of the spouses? In this situation, the living space will be the personal property of the spouse, and it will be possible to divide it only if it can be proven in court that during the cohabitation, repairs were carried out at the expense of the second spouse, which significantly increased the cost of the apartment. In this case, the housing will acquire the status of jointly owned property.

How to apply?

To do this, you must first compile it. You can cope with the preparation of the claim yourself, knowing the main elements of the application.

The application for division of property contains the following:

Names of the parties (full name, personal data, addresses).
The essence of the dispute (the reason for the lack of agreement between the plaintiff and the defendant).
Inventory of property (list of assets with technical and cost characteristics, information about the copyright holder).
Reasoned position of the plaintiff (opinion of the party with references to legal norms).
Evidence base.
Claims (a request from the plaintiff based on rights).

What papers are included with the claim?

Firstly, the applicant’s identity document. Secondly, materials about the marital status of the applicant (marriage certificate, children's birth certificates). Thirdly, information about assets (technical passports for movable and immovable property, land acts, contracts, court decisions, etc.). You can submit documents in person or through an authorized representative.

Additionally, you need to pay a state fee. This is a fee charged for the judicial resolution of a dispute. Its value depends on the price of the property:

How to correctly file a claim for division of an apartment between former spouses

When solving real estate problems between spouses, the most important thing is to correctly draw up a statement of claim. It is on the basis of this document that the court will make a decision. Of course, the parties can tell some of the information orally, but if it is not supported by documents, then the words will have only a minor impact on the court's decision. The same is true for any information in the application that is not supported by anything.

Possible problem

In the overwhelming majority of cases, a claim is filed in court only when a division of jointly acquired property is required with preliminary recognition of it as such. In other options, each spouse already knows who owns what, which eliminates controversial situations.

Thus, the main problem is to recognize the property as jointly owned. If the apartment was purchased during marriage, then there is nothing complicated here. Even if only one of the spouses works, any property purchased after the wedding is automatically considered joint property. And the situation is completely different if the apartment belonged to either spouse before the wedding, was received by inheritance or as a gift.

Objects of this type are considered personal property and cannot be divided during a divorce. With some exceptions. If an object was obtained by any of the above methods, but already during marriage it was improved, modernized, paid for or underwent major repairs at the expense of the family budget, it can be recognized as joint property in court. Usually confession and partition are combined in one action, although this is not a mandatory requirement.

Example No. 1 : The apartment was purchased by the husband before the wedding and is personal property. However, during the marriage, the couple made major renovations, which sharply increased the value of the property. Such property may be recognized as joint property.

Example No. 2 : An apartment was purchased on credit before marriage by one of the spouses. But mortgage payments over the course of many years of marriage were made from the family budget. Such real estate can also be recognized as joint property.

Example No. 3 : A spouse inherited an apartment. She was in an uninhabitable condition. Using money that was also inherited (and therefore also considered personal property), the wife made major repairs to the property without involving her husband or funds from the family budget. Such property will not be recognized as joint property.

Basic elements of the claim

Now let's move on to drawing up a statement of claim. According to Article 131 of the Code of Civil Procedure of the Russian Federation, the document must contain the following information:

Name and address of the court to which the application is being filed.
Full name, passport details, telephone number and address of the plaintiff and defendant (in the latter case, you can do without passport data if they are unknown or there is no access to them).
Cost of the claim. It is determined by the spouses independently* or can be determined by a licensed appraisal company. The value of the claim is necessary in order to determine the amount of the state duty.
If the plaintiff plans to interact with the court or the defendant through a representative, then his data must also be indicated, and a power of attorney must be added to the attached documents.
Title of the application.
Description of the current situation. Here you must indicate the following information: When the marriage was concluded and dissolved, on the basis of what, where and for what reason.
Information about children, their birth certificates. If there are no children, indicate so.
Information about the apartment, when it was received, who became the owner, on what basis, how this happened.
Information about attempts to resolve the situation pre-trial. This is true if the ex-spouses continue to communicate and can actually try to come to an agreement. It is drawn up in a separate document, which is also attached to the claim. It greatly influences the court’s decision, especially if the plaintiff offers the defendant completely adequate and realistic options for dividing the property, but he refuses without substantiating the reasons.
Reference to the points of legislation on the basis of which the plaintiff makes a claim (see below).

Specific, clear and not allowing for double interpretation, the plaintiff’s requirements for the defendant. Here you need to indicate exactly how the plaintiff wants to divide the property and what needs to be done for this. The more detailed the better.

List of documentation that is attached to this document. Ideally, any facts listed in the document should be confirmed by the attached document. At the same time, there is no need to prove facts that are generally known and/or obvious to everyone.

Date and signature.

*If the amount is determined independently, it can be challenged by the defendant or the court if it considers the declared value to be too high or low. In any of the options, you will still have to pay the appraisal company for the report, so it is better to do this in advance, eliminating possible disputes.

Proof

In order for the court to confirm the plaintiff’s claims for certain shares of the apartment, refute them, or put forward its own proposals, one must be very careful in searching for evidence of one’s case. Depending on the situation, these could be:

Checks and receipts (for example, for building materials for real estate renovation).
Payments from the bank (relevant in the case of a mortgage).
Interviewing witnesses.
Agreements between spouses and construction organizations.
Testator's death certificate and/or will.
Deed of gift for real estate.
Bank account statement (relevant when the apartment was renovated at the expense of one of the spouses).

Example No. 1 : An apartment was purchased before marriage, but during marriage the spouses made major repairs at the expense of the family budget using their own efforts. In such a situation, there may be no contracts between the family and construction organizations, but most likely there will be receipts for construction materials. It would be good if you could attach photographs of the premises before and after the renovation and/or video recordings of the renovation process itself.

Example No. 2 : An apartment was received through a deed of gift in marriage. The property was already in excellent condition. The couple immediately moved into the new premises and lived in it for many years without making significant changes. Such an object cannot be recognized as jointly owned, since the simple fact that a person lived in the apartment does not mean anything. It is logical that in such a situation it will not be possible to attach any evidence, for lack of such evidence.

It should be borne in mind that the purchased equipment is not considered a major overhaul. The court may decide to divide household appliances, but if this is the only improvement in the apartment, then the real estate itself will not be subject to division anyway (of course, if it was not purchased during marriage).

Which court should I go to?

The World Court considers cases where the claim price does not exceed 50 thousand rubles. Considering that the minimum cost of even a tiny one-room apartment is almost never less than 500-600 thousand, it is recommended to immediately contact the district court, where such applications are considered. It is necessary to choose a court based on the defendant’s place of residence. If this cannot be established, then you can file a claim in court at the place of registration of the disputed apartment or even the plaintiff’s place of residence.

Deadlines

The limitation period is 3 years. During this period, either spouse can file a claim for division of real estate. Some people mistakenly count the period from the moment of divorce, although in fact it begins to run only from the moment the rights of one of the spouses are violated.

Example : If after the divorce the spouses did not conflict with each other and jointly used the property (suppose they rented it out and divided the profit in half), then during this period the statute of limitations period has not yet been counted. But the moment one of the spouses decides to personally move into the apartment and restricts access to it for the other, the statute of limitations will begin to expire. From this moment, three years should be counted, during which a claim can be filed. If this is not done, the property will remain with the owner indicated in the documents.

The process of considering the claim itself takes about 2 months, but in some cases it can take 4 months or even more. This depends firstly on the complexity of the case, and secondly on the workload of the court.

What are the rules for dividing property after divorce?

During the process, the judge determines the shares of each spouse in the common property. As a general rule, husband and wife have equal shares in the assets. If possible, each of them is given different things with the same value.

If an asset cannot be divided without affecting its use, it goes to one party. The other person is compensated for his share in it in cash or in some other form.

When spouses flatly refuse to transfer things in kind, the judge orders their sale, and the proceeds are divided in half.

Division of a municipal apartment after divorce

Who will get the apartment in the event of a divorce, if the latter is owned by the state, is a fairly pressing question. During a divorce, a municipal apartment cannot be divided after the dissolution of a marriage, like your own. Housing is not classified as jointly acquired property.

In this situation, spouses can:

Privatize housing.
Exchange and thus everyone will receive a separate living space.
Continue to live together with the establishment of rules for the use of living space.

Among other things, municipal housing is not inherited.

Who will get the housing when dividing property after a divorce?

If an apartment or a house is at stake, the above options apply here, with the exception of the formation of independent objects. The division of mortgage housing is difficult, as it requires the intervention of a bank representative.

Typically, a mortgage loan is issued to one person. When applying for division of housing, the bank may insist on re-signing the loan agreement with the two owners.

It will be possible to avoid lengthy proceedings if you sign a marriage contract in advance, before the division of property. It is necessary to outline the principles of housing distribution, or a mortgage agreement with the bank, which stipulates cases of division of property and loan payments.

Collection of documentation for the exchange of municipal housing

The procedure through the court is lengthy, the authorities carefully check everything. The main thing is to correctly fill out the statement of claim. The wording should be unambiguous - this makes the document easier to perceive, and the court has a positive attitude towards the applicant.

It is important to correctly fill out the statement of claim.
If the statement is drawn up incorrectly, it may not be considered. Refusal is possible when there are no additional documents that need to be presented along with the claim.

Please note that when dividing your home, you must provide the following documents to the court:

statement of claim in several copies;
receipt of payment of state duty;
passports of those registered in municipal housing;
a copy of the social tenancy agreement;
children's birth certificates;
personal accounts, copies;
everyone agrees to exchange housing;
permission from the guardianship authorities to divide the apartment;
other documents required by the court.

When can you file a claim?

For such an action, the law allows 3 years from the date of divorce. Practice proves that it is better to apply earlier; over the years, the likelihood of loss of evidence, documentation, loss of contact with witnesses, damage or destruction of property increases.

The division of property is carried out taking into account market value. The more time passes, the less the applicant will receive, since things with depreciation lose value.

Deadlines missed for good reason may be reinstated by the court. This means providing a temporary opportunity to protect material interests by filing a claim, which should be used to the fullest.

We've figured out how to file a claim for division of property. If you have any questions, ask them through the form available on the site.

Legal assistance in dividing a municipal apartment

When you contact a law firm, you will be provided with comprehensive qualified support; a lawyer will help you go through all stages of the process in court:

At the first stage, the lawyer will provide detailed advice on all issues regarding the exchange of a municipal apartment, and will help evaluate and analyze the client’s documentation. The client will be required to make an advance payment. The lawyer will then tell you what documents need to be collected for the trial;
At the second stage, a statement of claim is drawn up and the process is conducted. It is necessary to prepare the documents required by the court in order to make a decision faster. The lawyer controls the delivery of documentation to the client. The court makes a decision. If necessary, it can be appealed;
at the third stage, an act of services is signed with the lawyer, and the court decision is delivered to the client.

There must be at least two options for exchange.
The statement of claim is often considered for no more than three months. How long the procedure will take depends on various factors. In order for the court to make a decision as quickly as possible, the application must be literate and indicate all exchange options. The options take into account the rights of citizens. After the court decision is in your hands, the rental agreement is terminated and a new one is concluded. The documentation is signed within 10 days. A lawyer knows about these nuances, so it is better to turn to him for help.