A man and a woman who are in a registered marriage have the right to own, use, and dispose of property by mutual consent if it was acquired during the period of cohabitation and is in their joint ownership. In the case of a marriage contract, the rights to jointly acquired property are stipulated by the provisions of the contract.
The problem of dividing common property arises especially acutely during a divorce. Then the parties can reach an agreement on their own or resort to litigation. Therefore, the division of common property occurs:
- Voluntarily by mutual agreement of the spouses.
- Forcibly through the court.
Previously, the Family Code did not require mandatory notarization of a voluntary agreement between spouses in the event of division of property. But at the end of 2015, the Federal Law made changes requiring this procedure to be carried out mandatory.
Where to start a divorce with division of property
It is necessary to start by determining what can be divided by law - this is the joint property of the spouses. This includes all movable and immovable objects acquired during the period of official marriage, regardless of the owner (one of the spouses) indicated in the title documents. The marriage contract may determine a different regime. When dividing, the value of the property being divided is determined at the time of consideration of the case.
The following property rights of spouses are not taken into account:
- acquired before marriage;
- purchased with the personal funds of one of the spouses even during marriage;
- received by inheritance or gift.
Rights to property that arose during marriage, such as the lease of a plot of land, are necessarily included in the division.
If during the marriage relationship real estate was purchased with borrowed funds, then it is recognized as common property and the obligation to repay the debt falls on both spouses.
At the same time, they have the right to agree with the bank to change the terms of the loan agreement. If a refusal is received from the bank, the issue of repaying the debt and interest on it is resolved, indicating these parameters (terms, amounts on each side or compensation on one side) in the agreement.
It should be borne in mind that the funds under the maternity capital certificate have a specific purpose. If it is received and not realized, then it is not subject to division during a divorce, since it is not the joint property of the spouses.
Contents of the settlement agreement
The document is drawn up in any form, but it is still necessary to take into account some important sections, without which it will not be perfect enough. It should have the following sections:
- Preamble.
Contains the date, place of compilation, detailed personal data of the spouses. - Subject of the agreement.
Information is provided about the status of the spouses and all items of property to be divided are listed. - Section order.
It is specified in what form the division will be carried out - divided into shares or separate items for each party. - The procedure for transferring property
(if necessary). Indication of the transfer deadlines and the re-registration process. - If there is indivisible property,
indicate which property belongs to whom. Indicate the nature (gift, acquired before marriage, inherited). - The time of entry into force
is when the document gains order. - Final part.
Information about the number of copies of the agreement and storage location. Deciphering the process for resolving controversial situations or the need to make changes. - Signatures of the spouses.
Without signatures, the document has no legal force. Ideally, the signatures of the parties are affixed with a decoding of the name and surname.
form of settlement agreement on division of property during divorce in .doc format (Word)
Pre-trial notarial agreement on the division of property of spouses
Having reached mutual agreement regarding the distribution of common property among themselves, the spouses can enter into an appropriate agreement. In this case, the following order should be followed:
1. Determine all property to be divided . Not only movable property and real estate acquired during marriage are distinguished, but also income from business activities, bank deposits and investments in securities. The possible situation of recognizing as common property that was acquired by citizens before marriage is also taken into account. For example, the husband subsequently invested a significant portion of his earnings into the overhaul of an apartment purchased by a woman during the premarital period. Thus, this increased its value significantly. A citizen has the right to demand recognition of an apartment as common property and to divide it in the event of a divorce.
2. Draw up an agreement . The document must indicate the following details:
- FULL NAME. and passport details of both spouses;
- marriage certificates and, in the case of a divorce, certificates of divorce;
- a list of all property that will be divided;
- a list of what will belong to each of the spouses, which may include both shares and property in kind.
When dividing, spouses are given the opportunity to independently figure out who will get what and indicate it in the agreement. This does not require a property valuation. It is only needed if one of the parties requires it and there are certain disputes regarding the cost.
3. Notarize the agreement . This is a mandatory procedure established by law. A notary fee of 500 rubles is charged. The notary is obliged to check all documents regarding the rights to the divisible property.
Pre-trial document samples:
Sample agreement on the division of common property:
Benefits of a Settlement Agreement
The obvious advantage of a peaceful division of acquired property during a divorce is its simplicity and the good will of both parties.
If the agreement signed by the spouses undergoes state registration, the property ceases to be joint and is subject to division.
The procedure for dividing property in court is much more complicated and does not always suit both spouses, because in this case the nuances of everyday life are not always taken into account.
In this regard, it is preferable to share family goods peacefully, when a third party does not participate in this process, and the spouses make the decision independently. Various agreements, compromises, and concessions take place here. For example, one of the spouses is given the opportunity to live in an apartment, which is transferred to the other, for some time, until the latter decides on living in another place. The document specifies the deadline for fulfilling the conditions provided. For a more reliable guarantee, the settlement agreement is certified by a notary.
A peace treaty can provide for the possibility of its possible termination if one of the parties violates the terms of the signed document. Such a moment is possible only with a settlement agreement, which cannot be done when dividing property through the court.
Another indisputable advantage is that the settlement agreement is drawn up in a short time (several days) and prevents grueling waiting. In court, this process can drag on for many months.
In addition to the indisputable positive aspects mentioned above, another important detail is that with mutual consent, property is not divided equally, but at the discretion of the spouses. The court conducts a long process of dividing the acquired property in equal shares, fair from the point of view of the law. And in a peace agreement, the will of the divorcing spouses plays a role.
Judicial settlement agreement on the division of marital property
Disputes that arise regarding the issue of division are resolved in court. A settlement agreement is concluded, which regulates the division of property, and the subject is the disputed property. It is important to clarify that this is not recognition and satisfaction of the plaintiff’s demands, but a compromise solution to the issue.
The procedure begins with one of the spouses filing a claim in court for division of property. The parties then agree to sign a settlement agreement. The algorithm of actions in this case is as follows:
1. Negotiations and document preparation . The parties can negotiate independently or with the involvement of lawyers. Each condition on the subject of the dispute must be spelled out; the parties can change the size of shares in each person’s property rights, indicate not only the property transferred to each, but also compensation payments. On this basis, the text of the settlement agreement should be drawn up. It is preferable to have a lawyer or advocate do this.
The most common disputed issues are payments on mortgage real estate. Here the spouses must agree and indicate in the agreement how each will repay the loan or other conditions at their discretion. The terms of a banking agreement can only be changed with the consent of the bank.
All agreements regarding the payment of compensation to one of the parties must be strictly spelled out, indicating the conditions, terms and amount. This must be done so that in the event of a breach of obligations, amounts can be recovered.
2. Submitting a settlement agreement to the court . After compiling the text of the document, it is printed out as a copy for each party and the judge, signed by the parties on each sheet, and a transcript of the signature on the last one is required.
The consideration and approval of the settlement agreement occurs based on the submitted petition. First, the text of the document is checked for contradictions with legal norms. It is important that none of the parties, as well as third parties, are subject to a violation of their rights and legitimate interests. If this is discovered, the court will order the agreement to be reviewed and put in order.
As a result of the approval of the settlement agreement, each of the spouses receives a guarantee that the division is considered completed and the dispute is no longer allowed, which the judge warns about before approving the document.
It is important that a court ruling on termination of proceedings due to approval of a settlement agreement can be appealed within up to 15 days from the issuance of the ruling.
But a situation may arise when the parties, after filing an appeal, come to sign a settlement agreement. Then one of the parties can submit an application to the court of second instance for its approval. The court will terminate proceedings in the case and issue a ruling, which will take immediate effect.
Judicial document samples:
Algorithm for drawing up and signing a document
The first stage is negotiations
. The spouses preliminarily agree on the terms of division of property and discuss every detail of the controversial issue. If the mood of one or both is far from friendly, and the relationship is not at all trusting, then personal representatives (lawyers, attorneys) are involved.
Once consensus is reached, a document is prepared. It is also advisable to have a lawyer present in this matter.
The contract specifies what specific type of property will go to each spouse after the divorce, as well as possible compensation or other conditions that suit both parties. The most difficult points must clearly indicate the timing and amount of various types of payments for transferred property from one spouse to another.
If a document is prepared by one party, it is discussed together, possibly with the presence of a lawyer. All details of the adjustment are discussed.
After a mutual decision is made, the document takes on a completed form.
The second stage is the preparation and submission of the contract to the court.
. The settlement agreement is printed in 3 copies: 2 of them for each party and 1 for the judge. If the document is certified by a notary, then a fourth copy will be needed, which remains in the notary's office.
The spouses put their signatures with a transcript on the last page of the contract if it is bound and on each page if it is prepared unbound.
The court examines the submitted document to ensure compliance with legal requirements. If violations are discovered, the court will demand that the contract be amended.
Before approving the document, the court warns against the emergence of disputes with the division of property for which the settlement agreement has been adopted.
Property specified in the agreement
There are no strict legal requirements regarding which items of property can or cannot be included. The married couple decides for themselves whether to share only the apartment, car and dacha or every plate and pan. Usually, with the help of an agreement, large items are divided, and small items are dealt with without unnecessary documents. Dividable property (car, household appliances, real estate) should be indicated in the contract according to the following principle:
- Name;
- model or brand name (if necessary);
- dimensions;
- color;
- characteristics;
- detailed address for a house, apartment or cottage;
- registration number for the car;
- data on registration documents (certificates, certificates, PTS).
When dividing a residential property that is under mortgage, you need to indicate exactly to whom and under what conditions this property is transferred, and who will pay the debt on the loan (see also - division of debts in a divorce).
The peace agreement is divided into the following types
:
- on the division of property;
- on the allocation of shares.
The first type involves the division of items that are not divided into shares and must go to a specific person.
The second is the division of a house, apartment or business.
Items for personal use are not subject to division, these include: clothing, cosmetics, and intellectual products.
Items acquired before marriage, as well as those given as a gift, received as an inheritance, or privatized during the marriage, are not subject to division. It is at this moment that conflict situations most often arise. The owner of this kind of thing should be aware of this and not succumb to the tricks of the other party, who is ready to take advantage of the incompetence of his opponent.
Settlement agreement after court decision
It is not always possible to reach a solution to the division of property of divorcing spouses peacefully.
In this case, the court deals with this. Based on current legislation, the joint property of a married couple who wishes to break off family relations is divided. There are often moments when, after the trial, both parties have a desire to still sign a peace treaty. To accomplish this, one of the spouses files an appeal to the court of second instance with a statement of desire to sign a peace agreement. It is prepared in the manner described above and submitted to the judicial authorities in advance. The judge can overturn the decision of the previous court and make a positive decision, which immediately takes effect.
How to challenge and terminate an agreement?
Even with a peaceful resolution of the issue of division of property, cases are not excluded when one of the parties initiates a change or termination of the signed document.
If the spouses are able to agree, this can be done in two ways:
- correct or make additions to the signed document;
- terminate the agreement and enter into another.
If neither party agrees to a compromise solution, then a trial cannot be avoided.
The party initiating changes to the agreement files a lawsuit. After reviewing it, the court makes a decision to recognize the agreement as valid or invalid. In order to have guarantees that a document will be invalidated, supporting facts
:
- one of the parties is incapacitated;
- there are violations of current legislation in the preparation of the document;
- infringement of the interests of one party;
- at least one signature is missing;
- proof that the document was drawn up under pressure from one party to another.
An experienced lawyer is able to find various nuances in a document that may serve as a reason for its termination.
It is moments like these that once again prove the advisability of having the agreement certified by a notary. If the spouses have lived for a certain period, but still decide to separate, the question arises before them: how to divide the jointly acquired property. The most reasonable thing is to sign a settlement agreement, the terms of which are dictated by the participants in the division themselves. It is advisable that this document be drawn up with the help of a qualified lawyer.
When can an agreement be drawn up?
A settlement agreement is concluded by a husband and wife during a trial regarding the division of marital property. Court approval of a settlement agreement is possible at any stage, from the first court hearing to the court’s decision on the case (see “Dissolution of marriage in court”).
As a rule, the division of marital property occurs simultaneously with a divorce . But the divorce procedure does not always coincide with the property division procedure. Spouses have the right to initiate legal proceedings for the division of property at any time - during marriage, simultaneously with a divorce, after a divorce, or without any intention to dissolve the marriage - if they have a dispute regarding joint property or the need for division for any other reason (clause 1 of Article 38 of the Family Code RF).
Thus, the Settlement Agreement can be approved:
- before the divorce;
- simultaneously with the divorce process;
- after divorce.
The final choice is up to the spouses, whichever is more convenient for them.
