Division of house and land during divorce in 2021

Features of the legal regime of a land plot as common property of spouses

A plot of land owned by spouses may legally be located:

• individually owned by one of the spouses;
• in common joint ownership;
• in common shared ownership.

Since individual property is not subject to division upon divorce, legally the dispute can only concern land owned jointly or by shares by the spouses.

The following land plots are not included in common joint property, and therefore are not divided during a divorce:

• acquired by a citizen before registering a marriage with the registry office;
• transferred to one of the spouses during the marriage under a gratuitous transaction (for example, donated by parents, inherited after the death of relatives or received by will);
• acquired by one of the spouses, albeit during the marriage, but at the actual end of the family relationship (separation, lack of a common life and household, etc.);
• acquired during marriage with the personal funds of the spouse, which belonged to him even before the official registration of the marriage, or received through a gratuitous transaction (donation, for example).

General joint property applies to plots and any other property acquired during the marriage with the money of both or one of the spouses. This is a general rule that applies in the absence of a marriage contract.

If a marriage agreement was signed between the spouses, then it will be necessary to determine whether the land plot is subject to division or not based on the terms of the document. Unlike the legal regime, a marriage contract can actually determine any way of dividing property.

The issue of the legal regime of the land plot, which was provided by the state and subsequently privatized, deserves special attention.

Today, judicial practice is based on the following:

• if the land plot was allocated and privatized before marriage, then it belongs to premarital individual property;
• if a privatized land plot was allocated to a spouse during marriage, taking into account the family, then it belongs to the husband and wife jointly, and at the registration stage it must be registered as their common shared property. The provisions of the Family Code on the receipt of property under a gratuitous transaction into the personal property of the spouse are not applicable to this situation, since the allocation of land to the state. authority is not a transaction from the point of view of private law.

Definition of divorce

Divorce or dissolution of marriage is the termination, in the form prescribed by law, of all the rights and obligations that arise for spouses during the creation of a family, p.

The Family Code of the Russian Federation (hereinafter referred to as the RF IC) provides for two types of divorce - in the civil registry office (hereinafter referred to as the Civil Registry Office) and in court. The first option requires consent to divorce by spouses who do not have common minor children or claims against each other.

One month after submitting the application to the registry office, a certificate of divorce is issued. It must be obtained from the registry office even after a trial, since the court only makes a binding decision, but does not issue official documents.

When division of a plot is impossible

The Civil Code of the Russian Federation divides all things into 2 large categories - divisible and indivisible. This classification also applies to real estate. As a general rule, a land plot is a divisible thing, but if its division leads to a violation of the law, then this particular plot of land becomes an indivisible thing.

Thus, the division of land is possible only if a number of conditions are met:

• the dimensions of the newly formed area are within acceptable values;
• the boundaries of the newly formed area comply with the standards established by law;
• the division of the site does not interfere with the normal use of the building located on it;
• the section does not interfere with the use of the site for its intended purpose and does not create obstacles for third parties.

What requirements does the law impose on the size of the plot?

The minimum and maximum sizes of plots are established in regional legislation and may vary depending on the subject of the federation. In particular, in the Moscow region, the maximum permissible plot sizes vary from 0.04 to 40 hectares, depending on their intended use.

When dividing a land plot, the most important indicator will be the minimum value, since when dividing a land plot in kind, the share of each spouse cannot be less than the minimum possible value in a particular region.

What requirements does the law impose on site boundaries?

These requirements are described in detail in the Land Code of the Russian Federation:

• the boundaries of the site should not be in contact with the boundaries of the populated area;
• the site should not affect the boundaries of the forest park, forestry and other special zones;
• The division of the site should not lead to broken boundaries, interstriations or otherwise interfere with the rational use of the land.

If a land plot belongs to common property, but its division in kind is legally impossible, the court may:

• transfer the plot to one spouse with payment of monetary compensation to the second;
• decide to sell the plot to a third party, dividing the profits between the spouses;
• preserve the plot in common joint or shared ownership, establishing a regime for its use by spouses.

It is worth distinguishing between the division of a plot in kind, with the definition and establishment of new boundary boundaries, and the legal division of a plot with the definition of shared ownership. Recognition of 1/2 share for each spouse is possible without complying with the requirements listed above, since a formal division “on paper” does not entail the separation of each spouse’s share in kind.

How to divide land during divorce

A land plot is a certain part of the earth's surface that has established boundaries. This is precisely the definition of the concept of “land” given by the Land Code.

He also established two other concepts: divisible and indivisible land plots.

Plots are subject to division, the size of which after division will not be less than the minimum standard for the area of ​​a separate land plot fixed in a particular region or city.

If, taking into account the specified norms, it is possible to divide a land plot into two independent plots with certain boundaries, the division of such a plot will be possible. It is on this basis that the division of the land plot will be carried out during a divorce.

Otherwise, division of the land will be possible in one of the following ways:

• sale of the plot with subsequent division of the proceeds in half;
• offsetting the value of land with other property;
• registration of common shared ownership of land, if there is a building or residential property on the plot that is owned by the spouses in common shared ownership.

Procedure

When dividing a plot of land after a divorce, you can determine the following step-by-step algorithm of recommended actions.

1. Determining the possibility of dividing the plot.
2. Pre-trial settlement of the dispute and development of options for concluding an agreement.
3. Request information about the status of the plot and the possibility of its division from municipal authorities.
4. Preparation of claims and documents for court.
5. Filing a claim and participating in a court hearing.
6. Execution of a court decision.

Of course, the simplest and most beneficial method for spouses would be a voluntary division of the plot or its offset with other property. This will save significant amounts of money and achieve results faster.

Procedure

Before proceeding with the division, be sure to clarify the possibility of dividing the land, especially when it comes to a land plot without buildings allocated for individual construction or commercial development.

1. Check the status of the land plot and local regulations for the minimum area. This way you will find out whether the land plot can actually be divided.
2. Invite your spouse to negotiate peacefully. A voluntary decision to divide the plot using any of the above methods will allow you to significantly save on legal costs.
3. File a claim and collect all documents. Drawing up a claim for a land plot on your own is not an easy task, and it is better to entrust it to an experienced lawyer. If you decide to defend your rights yourself, be sure to decide on the method of dividing the plot in advance, so that later you do not have to clarify additional claims.
4. At the court hearing, explain the stated method of dividing the plot. Insist on meeting the demands, provide all available arguments as evidence and provide documents.
5. If the decision is positive, obtain a court decision and submit it for execution. If you are recognized as having a part in the ownership of a land plot, contact Rosreestr to register your rights. If compensation is awarded, obtain a writ of execution from the bailiffs for collection.

Independent participation in the procedure for dividing a land plot during a divorce is a very difficult task for an ordinary citizen. Consult with an experienced lawyer on our website right now by chatting or filling out a special form.

Let's sum it up

According to the RF IC, divorce is possible in two ways - in the registry office and in court. When dividing the common property of the spouses, which includes a land plot, it is necessary to either agree on the procedure for using the designated and allocated shares and enter into an agreement, or go to court to obtain a competent decision.

Some plots of land cannot be divided. In this case, the legislation provides several options for their division. If there are buildings on the site (house, outbuildings), then the division rules will differ from the usual procedure.

Many people wonder how to avoid the division of a land plot during a divorce. To do this, it is enough to just agree with the other party on its use peacefully, by concluding and notarizing the appropriate agreement.

Methods for dividing land

The determination of the shares of former spouses may be based on:

• on the agreement between them;
• on a court decision.

An agreement on the division of a land plot is drawn up by the spouses independently or with the help of a lawyer. The law does not impose strict requirements on the form - simply recording the conditions in writing will be enough, but if the spouses wish, they can have the document certified by a notary.

The spouses determine the conditions independently: they can choose any option for dividing the property with the only condition - the division option they choose must comply with the law. In addition, according to a marriage contract, it is impossible to completely deprive the second spouse of property - such a document with such enslaving conditions can be challenged in court.

If the spouses have not reached an agreement on the division of land, the only option left is judicial procedure.

How the plot will be divided during a divorce in court:

• if there is a marriage contract, then the judge will rely primarily on its content;
• in the absence of a marriage contract, the shares of the spouses are equal. However, the court may deviate from equality of shares based on the interests of the spouses themselves and their minor children.

In the latter case, the judge’s decision may be influenced by such circumstances as serious illness and inability to earn income, children living with their spouse, etc.

The issue of dividing a privatized land plot allocated for the purpose of individual housing construction, on which a building has already been built, deserves special attention. There are several options available here, all of them are presented in the table below.

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Statement of claim for division of land between spouses

If it is not possible to resolve the dispute peacefully, you have to resort to the help of the court. Perhaps the main document in the legal process is the statement of claim. The outcome of the case depends on how competently the spouse approaches its preparation.

Important! The statement of claim is always addressed to the court of the district where the defendant lives. The rules for filing a claim at the location of real estate are not applicable in this case, as the Presidiums of various regional courts have repeatedly stated. The claim will be submitted to the district (city) court at the location of the land plot.

Contents of the claim

A statement of claim for division of a land plot, like any other claim, must contain:

• name of the court;
• the full name of the plaintiff, his address, information about his representative (if the case is being handled by a lawyer), contact information;
• the full name of the defendant, his address;
• requirements for division of property and its legal and factual basis: date of marriage and its dissolution, circumstances of acquisition of the plot, presence or absence of a division agreement, information about children, etc.;
• the cost of the claim (determined by the value of the property being valued based on the plaintiff’s share);
• request to the court for division of property, indicating the method of division and shares;
• list of attachments, signature and date.

Drawing up a claim for the division of jointly acquired property has its own nuances. Here are some tips:

1. Describe in detail the land plot whose division you are asking for: indicate its area, cadastral number, location of boundaries with reference to the coordinates of characteristic points, category and permitted use of the land.
2. Be sure to specify in the claim the time and method of acquiring the land, its cost, attach supporting documents (purchase and sale agreement, certificate of state registration of rights, extract from the Unified State Register, payment documents, etc.).
3. Be especially careful when composing the “petition” part. Clearly formulate how you want to divide the plot and why, specify who will pay compensation and in what order, etc.
4. If you believe that the plot is not subject to division, justify your position and propose a solution

Documentation

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

• a copy of the plaintiff's passport;
• certificates of marriage, divorce, birth of children (child);
• evidence of the acquisition of a plot during the marriage (certificate of registration/divorce, certificate of state registration of rights to a plot, agreement on the acquisition/privatization of a plot, act of a state body on the allocation of land, etc.)
• evidence of the acquisition of the plot using general funds (bank statements, income certificates, copies of savings books, etc.);
• receipt of payment of the duty (in the original).

The claim is assessed by the state. duty, the amount of which depends on the cadastral or market value of the land plot. Its calculation is carried out according to the rules for determining the amount of duty for claims of a property nature, prescribed in Art. 333.19 Tax Code of the Russian Federation.

When drawing up a claim in accordance with the requirements of Art. 131-132 of the Code of Civil Procedure of the Russian Federation, the court accepts the document for proceedings and initiates a civil case. Otherwise, the document may be left without movement (or immediately returned), and the plaintiff will be given a deadline to bring the claim into compliance with the requirements of the Code of Civil Procedure of the Russian Federation. All deficiencies will be indicated by the judge in the ruling.

Sample claim for division of land

Below is a sample statement of claim for the division of a land plot. You can download it for editing and use for your own purposes using the link below.

Shared ownership as a way of division

In relation to joint marital property, the shared method of division can be used. This is when the distribution on paper takes place, the ideal parts are determined. In a standard situation, these should be equal shares, but the court may increase them in the interests of one of the parties and the children.

On a note!

There are two children left with the mother, and when allocating her share, the court must take into account the interests of the woman herself and the two offspring. Or a man is disabled and needs rehabilitation, restoration, then they can allocate a larger share to him than to his wife.

The size of the share may be affected by factors such as the period of living together, the level of investment in real estate of each party. The court must also indicate ways of further disposal of the object. In determining the possibility of using joint shared ownership, the following options are possible:

• selling the property and dividing the money according to the size of the shares;
• transfer of the house into the ownership of one applicant with the obligation to pay compensation to the second participant;
• the actual selection of parts (rooms to be made).

Attention!

When the actual allocation of a part is not possible, the court must determine the procedure for using the joint shared property.

In a situation where separate premises are assigned to each party, it does not cancel shared ownership. That is, in fact, a person can dispose of a larger room than the other half, but he will not have to pay compensation for the extra square meters. You also need to pay off expenses for the house and land equally.

Real estate in shared ownership can be used jointly if the couple maintains friendly relations. Otherwise, it would be more appropriate to pay compensation or sell the property for the purpose of division.

State duty, expenses

When dividing a land plot, the plaintiff must calculate and pay a fee in the amount determined on the basis of Art. 333.19 of the Tax Code of the Russian Federation on the rules for assessing property claims.

To determine the amount of the fee, you can take both the value of the site determined during the assessment and the cadastral value.

Example. The cadastral value of the plot declared for division is 700,000 rubles. The plaintiff asks to oblige the second spouse to pay her compensation in the amount of half the cost of the plot, that is, in the amount of 350,000 rubles.

To calculate the duty in this case, the rule will be used for claims with a price from 200,001 rubles to 1 million in Art. 333.19 Tax Code of the Russian Federation.

• 5,200 rubles (fixed rate) + 1,500 rubles (1% of the amount exceeding 200 thousand rubles) = 6,700 rubles.

If the claim claims other property for division, the fee will be calculated based on the price of the claim in the form of the value in the share of the property claimed by the plaintiff.

For more information about the procedure and features of calculating state duty when dividing property, read this article.

In addition to the fee, the plaintiff may have to incur the following costs for dividing the land plot:

• lawyer's fees;
• payment for land management examination;
• payment for assessment;
• payment for the work of cadastral engineers.

Only an experienced lawyer can determine the exact list of expenses that will have to be incurred in a given situation.