How to Divide Property After Divorce If Your Ex-Spouse Is Against

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Anastasia Klimenkova (Lawyer)

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Author: Anastasia Klimenkova (Lawyer) (All articles by the author)

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During a divorce, spouses often immediately decide on the division of joint property. But some couples first file a divorce, then divide the property. If the spouses do not have joint property, the question of its division also does not arise. Let's look at how a divorce occurs without dividing property, what are the features of filing a divorce with and without children, and what are the consequences of the absence of a party at the trial.

Is it possible to get a divorce without dividing common property?

Property acquired jointly during marriage is considered common and is divided upon divorce in accordance with the provisions of Articles 34 and 39 of the Family Code.

As a general rule, everything is divided equally.

There are often cases when a divorce is not accompanied by the distribution of property between the parties. This is possible in the following cases:

• the parties do not have joint property;
• one of the spouses renounced claims to property;
• it was decided to temporarily postpone the property division procedure;
• the suit for separation was filed before the divorce.

If no property was acquired during the marriage, the question of its division will not arise either before or after the divorce.

If one of the parties voluntarily gives up things in favor of the other party, the claim also does not have to be filed.

In the second case, it is recommended to draw up a written agreement that will protect the spouse remaining with this property from further claims. It is best to have the document certified by a notary, in accordance with the provisions of Article 38 of the Family Code.

You can also get rid of property litigation by signing a prenuptial agreement. The main difference between a document and an agreement is the regulation of the distribution of things acquired before marriage and during family relationships.

Related articles:

• Marriage contract: concept, features and conditions for concluding a transaction
• Agreement on the division of property of spouses during and after divorce

According to the provisions of Article 38 of the Code, the parties have the right to submit their claims within three years from the date of divorce.

If it turns out that one of the spouses has concealed part of the property, the period will be counted from the moment this fact is discovered.

If the question of dividing property does arise, it is necessary to remember that there is property that is not subject to division:

1. Property acquired during marriage without the financial participation of the other party (inheritance; things purchased by third parties). The exception is cases where the spouse has made a major contribution to its improvement or maintenance (for example, carrying out major repairs).
2. Items for personal use (excluding luxury items, jewelry).
3. Copyright, patent rights.
4. Property purchased after divorce.
5. Property rights, children's belongings (in accordance with the provisions of Article 38 of the Family Code).

Any disputes regarding the division of property that are not resolved voluntarily are resolved through the court.

Limitation period for division of property after divorce.

The period when property can be divided after a divorce is 3 (three) years. It is worth paying attention to the fact that this period does not come into force on the day of divorce, but when one of the former spouses learned or should have learned about the violation of his right.

That is, as soon as a spouse violates his wife’s right, she goes to court. So if you're wondering: Is it possible to divide property after three years of divorce? Then the answer to it is satisfactory, i.e. Yes , it is possible to divide joint property. But within reasonable limits.

Although it is still recommended to conclude a written and notarized agreement, or to carry out its division in court within 3 (three) years from the date of divorce. Otherwise, there is a possibility of proving the legality of your belated demands. For example: How to divide property after a divorce if the ex-spouse is against it. Yes, this happens too.

Registration of divorce in the registry office

The parties can divorce at the registry office at the place of residence or registration. To resolve the issue in a simplified manner, you must meet one of the following requirements:

• both parties agree to divorce;
• the spouses have no young children;
• one party is incapacitated;
• one of the spouses is considered missing;
• one party is in prison for a term of more than three years (Article 19 of the Code).

To dissolve a marriage, the initiator must submit an application. It must contain the following information:

1. Personal data of both parties (first name, last name, patronymic, date of birth, place of residence, passport details, etc.).
2. Details of the marriage certificate.
3. Date of registration of marriage.
4. The name of the civil registry office department that carried out the procedure.
5. Future surnames of the spouses.

The following list of documents must be attached to the application:

• passport;
• Marriage certificate;
• a document confirming payment of the state fee;
• other documents (if necessary).

After receiving the documents, the parties are given one month to make a final decision.

If the spouses change their minds about getting a divorce, they can withdraw the application.

Related articles:

• How is marital property divided during a divorce?
• How is property acquired before marriage divided?
• Division of gifted property during divorce

When is it possible to do without a trial?

There are two options here on how to get a divorce correctly and without consequences. If the husband and wife do not have children together, and they both do not mind ending the family union, then it is enough to submit a joint application to any convenient registry office. Then the divorce will be finalized within a month.

The spouses can also resolve the issue of property peacefully by concluding a division agreement in the presence of a notary. Its terms stipulate the composition of the property that will remain at the disposal of each family member, the procedure and timing of its transfer to each other.

According to the contract, property may not necessarily be distributed equally between husband and wife. Spouses have the right to establish other ratios of shares.

In addition, it is possible that all joint property will remain with the husband, but the wife will receive monetary compensation in the agreed amount.

However, it is possible to do without a trial, but not always. If there is no agreement, but the property must be divided, then a statement of claim will still have to be filed in court. This is the only way to decide the fate of property legally.

Registration of divorce in court

Divorce is formalized in court if the couple has young children or one of the parties does not agree to divorce. This is enshrined in Article 21 of the Family Code.

Either spouse can file a claim. Documents must be submitted in person or through a representative by proxy. A divorce case is heard by a magistrate or district court.

If the issue of children is being resolved, or there are additional aspects to the case, the claim must be filed in the district court at the defendant’s place of residence.

The claim must include the following information:

1. Name and location of the judicial authority hearing the case.
2. Information about the parties (first name, last name, patronymic, date of birth, place of residence, contact telephone number).
3. The name of the registry office department that registered the marriage.
4. An agreement or another marriage document that allows you not to consider the case of division of property.
5. Information about minor children who were born in marriage.
6. Indication of the place of residence of children (if any).
7. Reasons for divorce.
8. Facts that support the above reasons.
9. List of witnesses (if necessary).

The following package of documents must be attached to the statement of claim:

• copy of the passport;
• marriage certificate;
• a copy of the children's birth document;
• a receipt confirming payment of the state fee.

Additionally, the court may require documents on income, family composition, ownership of certain property and other documents.

Divorce with division of property: general provisions and legislative principles

How is property divided during divorce? An axiom of family law is that all property acquired by spouses during marriage is divided in half.

However, the legal norms of the Family Code of the Russian Federation are written in such a way that other ways of resolving all issues regarding property, which is traditionally considered to be joint, are also possible.

Thus, the spouses can outline the property that can be divided during a divorce in a written agreement certified by a notary.

This can be either a marriage contract or a transaction for the division of property in the event of termination of the marriage. If one of these documents is available, its provisions will take precedence over the provisions of the Family Code.

If there are no agreements between the spouses, then all issues regarding the division of property are decided by the court.

The corresponding decision can be made both in a divorce case and after the dissolution of the marriage. At the same time, the court verdict states what property will go to each member of the former family.

Obtaining a divorce decree

The case for divorce without division of joint property usually begins about a month after the court receives the statement of claim. The case is considered in the presence of both parties and witnesses (if necessary).

If we are talking about the fate of children over ten years of age, their presence is also mandatory.

First, the judge invites the parties for a conversation and clarification of key details. If necessary, the parties must submit additional documents.

The duration of the consideration of the case depends on the consent of both spouses, the number of demands of the applicant, the busyness of the court and the attempts of the parties to deliberately delay the process).

According to the provisions of Article 22 of the Family Code, the parties are given a period of time for reconciliation of up to three months.

Time limits vary depending on the circumstances of the case.

During the consideration of a divorce case, the court hearing may be postponed several times. The total period of the process should not exceed three months.

The judge makes and announces the decision in the presence of both parties.

If one of the spouses is absent from the trial for an unexcused reason, the decision is made without him.

The outcome of the trial may be the following:

• the claims were rejected;
• the claim is fully satisfied;
• the claim was partially satisfied;
• A new hearing is scheduled to consider the case.

If one of the parties disagrees with the decision, you can file a complaint against the court decision within a month from the date of its delivery.

The parties can file for divorce without additional requirements for the division of common property.

If the spouses do not have children or joint property, they can divorce at the registry office. Otherwise, the case will be considered in court.

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Is it possible to file for divorce without dividing property?

Divorce involves consideration of many issues related not only to offspring, but also to property that was acquired during a happy married life.
Only rarely can a divorce be formalized without dividing the jointly acquired property. Such situations include those when the husband and wife do not have common property. Sometimes its division occurs before or after the dissolution of a legal relationship - in this case, the divorce will be filed quickly.

The divorce procedure is certainly carried out by drawing up and submitting an appropriate application to the registry office or court. Former lovers should contact the registry office if they have no disputes related to property, or if there are no children who have not yet turned eighteen years old. In other situations, you should go to court.

During a divorce, any existing property must be divided in half.

Divorce is a complex process that, depending on the circumstances, can drag on for many months. Both parties will have to resolve many issues regarding the fate of their common children and property. Everything acquired during a marriage is considered the property of the husband and wife.

Very often it happens that spouses carry out the divorce procedure without dividing property. This is possible in several cases:

1. when there is no object of dispute. The ex-husband and wife have nothing to share, so the divorce procedure is much faster;
2. one of the parties renounced claims to the acquired property;
3. a married couple divided property while still in a formal marriage;
4. husband and wife decided to divide their joint property after the divorce was completed.

If during a happy family life a couple does not have common property, then the issue of dividing property will not be relevant. Such cases occur when the marriage was short-lived. For example, the newlyweds lived together for several months.

In circumstances where one of the parties makes a voluntary decision to provide the other with property acquired during marriage, division of property is not carried out. Such cases may involve the transfer of single property. For example, a husband decided to leave real estate to his ex-wife and child for future residence.

In this case, it makes sense to draw up and conclude a specific agreement between the two parties. It must confirm the absence of mutual claims against each other. In this case, the husband transfers the property voluntarily.

It is worth noting that the law does not prohibit the party who transferred the property from going to court to divide it even after a divorce. Therefore, it is advisable to draw up an agreement immediately after transferring the apartment or car.

Both parties to the divorce can first discuss the issue of ownership of acquired property before going to the registry office or court. An appropriate agreement must be drawn up, which must be certified by an officer of the law.

Such a decision can be either spontaneous or forced (for example, a husband does not allow his wife to live in their shared apartment). Some modern couples (to protect themselves) enter into a prenuptial agreement.

This allows you to avoid division of property. This agreement differs from a mutual agreement in that it is capable of regulating the division of property. When drawing up a marriage contract for a husband and wife, in order to avoid problems in the event of a breakdown in the relationship in the future, it is advisable to choose a separate or shared mode of property ownership.

Sometimes there are cases when, after a divorce, a husband and wife leave the issue of acquired property unresolved (if the moment of divorce coincides with the process of registering property rights for one of the divorcing parties).

Usually not divided:

• property that was purchased before entering into official relations;
• real estate acquired by the first spouse without the financial participation of the second husband;
• a house or apartment that was inherited;
• personal items other than jewelry (for example, paintings, diamonds, gold);
• copyright;
• property acquired after divorce;
• personal belongings and rights of offspring to property (every child has the right to live in the parental apartment).

The procedure for dividing property during divorce

So, if people decide to separate and at the same time determine the fate of the common property, then it is imperative to prepare a statement of claim for divorce and division of property.

Before submitting it, evidence should be prepared. In particular, care must be taken to determine the current value of the disputed property.

The state duty required to consider the claim will directly depend on it. If we are talking about divorce at the same time, then a separate payment is provided. Its amount will be 600 rubles.

Note! In case of a divorce at the registry office, both spouses pay the fee, then the legal costs should be taken care of directly by the plaintiff, they can be recovered from the defendant by indicating in the statement of claim.

Next, you should collect the required documents for divorce.

This list includes:

1. Copy of the passport.
2. Marriage certificates.
3. Birth certificates of children.

If the divorce is due to compelling reasons (husband’s alcoholism, domestic violence), then it is advisable to attach all available documentary evidence to the claim.

Now about the property. A list of the things the plaintiff is claiming should be made, indicating their value. It will become an integral part of the statement of claim. In addition, an expert opinion (if any) must be attached to it.

A sample claim for divorce and division of property must also contain an emphasis on the fact that the property was purchased during the marriage. Therefore, copies of contracts, checks, and so on are attached to the application to the court.

When equal doesn't mean fair

The legal principle of equality of shares in a divorce sometimes does not agree with the realities of life. Let's take this example.

The wife works, and her husband is idle or spends all his earnings on a wild life - he abuses alcohol and gambling. In case of divorce, the Family Code of the Russian Federation suggests dividing property in equal parts by default.

However, the wife may insist on the opposite, and she will be absolutely right. And paragraph 2 of Article 39 of the Family Code will come to the rescue.

Let’s say a wife purchased an apartment during the marriage, but with funds that belonged to her before the formalization of family relations. And during a divorce, the husband insists on dividing it. Then the spouse will be able to defend her rights.

As the Supreme Court has explained, property acquired during marriage, but with money owned by the spouse before marriage, is considered personal.

Personal property can also be divided, but on the condition that, through the efforts of the second spouse, it has significantly increased in value on the market. In this case, documentary evidence of the relevant fact will be required.