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After drawing up a statement of claim, the plaintiff needs to determine which judicial body it should be filed with. To do this correctly, you should refer to the articles of the Code of Civil Procedure of the Russian Federation. All controversial issues regarding the division of jointly acquired property of spouses in 2021 are dealt with in the magistrates' court or in the district (city) court. The definition of territorial affiliation is also important. If the court is determined incorrectly, the application will simply be returned to the plaintiff. Let's consider what criteria are used to select an authority.
Which court hears property division cases?
Dealing with the jurisdiction of a claim against a former or current spouse is not difficult. When spouses have to divide any common property, there are two options:
- The case is sent to a magistrate judge.
- A claim for division is filed in a city or district court.
The criterion by which the distribution occurs is the cost of the claim.
Division of property in the magistrate's court
Issues within the competence of the magistrate are set out in Art. 23 Code of Civil Procedure of the Russian Federation. Cases on the division of joint property are within his jurisdiction if the value of the divided objects does not exceed the threshold of 50 thousand rubles. Also, the magistrate may simultaneously consider the issue of divorce. Exceptions are cases when a couple has a common child who has not reached the age of majority.
Division of property in the district court
Conducting cases on the division of the common property of spouses is the competence of the city (district) court, provided that the value of the divisible objects is set above 50 thousand rubles. It may be lower if, in parallel with the claim for the division of joint property in 2021, the court is considering the issue of establishing guardianship over the joint children of the spouses.
When you can't do without a trial
The specifics of property disposal are specified in the marriage contract. Also, a husband and wife can, during or after marriage, draw up an agreement on the division of common property.
Both options assume that citizens are willing to share property voluntarily.
Division of property in court is carried out when spouses cannot reach a compromise regarding the ratio of their shares in property. The parties should prepare a package of necessary documents and argue their position.
Also, judicial review is provided if the husband and wife do not agree with the provisions of family law regarding the division of property equally.
Citizens who are interested in how to formalize the division of an apartment without court should consider the option of drawing up a marriage contract or agreement. In this case, they themselves formulate ways to resolve property disputes.
How much does it cost to file a claim?
It is the responsibility of the plaintiff to determine the value of the claim filed in court (the total amount of prices of divisible objects). First of all, this need is associated with calculating the amount of state duty, which is directly dependent on the claim price. To make the correct calculation, you need to refer to the Tax Code of the Russian Federation, where simple diagrams are given. Regardless of which judicial body the claim for the division of joint property is filed, the rules of calculation are the same.
Who should pay the state fee?
One of the spouses Share equally
If the second party is not satisfied with the value indicated in the statement of claim, it has the right to file a petition to appoint an examination in order to establish the value of the divided property. The judge can make such a decision on his own initiative if the price of the claim, and therefore the amount of the state duty, is significantly underestimated.
Territorial jurisdiction
The issue of the location of the court to which a claim for division of property should be filed is not so easy to resolve.
The Civil Procedure Code establishes that a statement of claim against an individual defendant must be filed at his place of residence (Article 28).
This rule also applies to cases in which the plaintiff and defendant live in different regions.
The law provides for a number of circumstances in which the plaintiff is given the opportunity to file a claim for division in a court other than the location of the defendant.
Thus, if the exact address of the defendant is unknown, the plaintiff has the opportunity to appeal to the court at the place of his last known location or to the authority located at the location of the jointly acquired property that is supposed to be divided.
In situations where a claim for division of common property in 2021 is combined with filing an application for divorce if the couple has a minor child living with the plaintiff, then it is possible to apply not at the place of residence of the defendant, but of the applicant. The same rule applies to a plaintiff who has serious health problems that prevent him from traveling to another locality to file a lawsuit and attend court hearings.
If a claim for division of property is combined with an application for the collection of alimony, then again it can be filed at the plaintiff’s place of residence. The same rules are used for a divisible object, which is real estate, for example, an apartment or a house. Then the claim is sent to the court at the location of this property.
Legal norms on division of property
In the context of marital relations, property is divided into that acquired during the marriage or received before it. Joint property can be divided voluntarily or through the court.
Personal property belongs only to its owner. For example, if the husband purchased a car before marriage, the wife cannot claim that vehicle.
The basis for the division of personal property is the joint investment of money in the purchase. This is what most often has to be proven in court. As a general rule, the division of property is carried out taking into account the equal rights of the spouses. If the apartment is jointly owned, the husband and wife are allocated half of the property, and if the property is in shared ownership, the parties will receive their shares.
Regulations to pay attention to:
- Family Code: articles (joint property of spouses), 38 (division of common property), 39 (determination of shares in the division of property).
- Civil Code: articles (compensation for damages), 199 (application of limitation periods), 254 (division of joint property).
- Regulatory resolution of the Supreme Court on the division of property dated November 5, 1998 No. 15 “On the application of legislation by courts when considering cases of divorce.” The document regulates what conditions must be met when filing a claim for division of property and explains what applies to the joint property of spouses.
The property can be divided during or after a divorce.
How to ensure the safety of property before division
Let's consider what to do when, when dividing the property of spouses, there is some probability that one of the parties will carry out a transaction to alienate property. For example, a car in a marriage is bought with common money, and it is the joint property of the spouses, although it is registered in the name of only one. This means that the owner, according to the documents, can sell or give away the car at any time and so that the second spouse will not even know about it.
If there is such a possibility, then before taking the claim for division of property in 2021 to the court office, it is advisable to file a claim requesting interim measures. Its cost is 3 thousand rubles. If the judge decides to grant the demands, the car is seized. This mechanism of action can apply to any property.
How to keep property before divorce.
When interim measures are required long before the trial, you can proceed as follows. If we are talking about real estate, you need to submit a written application to Rosreestr. It indicates the fact of the presence of a property dispute regarding the object. In this case, the registration authority will not register alienation transactions.
How does the trial work?
After the court accepts the statement of claim, a preliminary hearing is scheduled. You can track the appointment date on the court website in the judicial records section. In St. Petersburg, from the moment of filing the application to the preliminary meeting, it takes from a month to two. At the preliminary hearing, the court clarifies the position of the parties and makes a brief review of the evidence presented. At this stage, the court also involves third parties in the case. These could be banks if the spouses took out a loan during the marriage. Or guardianship authorities, if there is a dispute about children. Or the prosecutor's office, if a demand has been filed to evict one of the spouses. After this, if the court considers that there is enough evidence to consider the dispute, and all necessary persons are involved in the case, it schedules the main hearing. There may be several such meetings. Their number depends on the following circumstances:
- complexity of the case;
- amount of property;
- specifics of the property;
- the need to assign a property valuation;
- calling witnesses;
- presence of minor children;
- behavior of the parties.
The interval between court hearings varies from two weeks to two months. Depending on the workload of the court and the vacation of a particular judge. Various difficulties may arise during the process, which will require certain countermeasures. Read more about this in our special publication on this topic. Be prepared for the fact that the other side will try to complicate the consideration of the case, hide joint property, or even falsify evidence in the case.
Division of property between cohabitants
If for the division of the common property of spouses one should first of all refer to family law, it does not regulate controversial issues between cohabitants. The determination of shares in property is carried out for them on the basis of the Civil Code of the Russian Federation.
This means that in order to recognize rights to property, documentary evidence must be presented. These are purchase and sale agreements, payment documents, bank statements. Those. even if the property was acquired with common money, without evidence it will not be recognized as joint property.
In addition, the plaintiff will need to present in court evidence of the fact that he actually lived together with the defendant in the same territory and ran a common household.
How to seize joint property
While the trial is ongoing, one of the spouses may try to sell part of the property. He can also withdraw funds held in bank accounts to hide them from being partitioned. To avoid this, the property must be seized. To do this, a petition is submitted to the court, which indicates what property needs to be seized. In addition, the petition must justify why there is reason to fear that this property will be sold. For example, you can present advertisements for the sale of this property, which were placed by an unscrupulous spouse. After this, the court will issue a ruling on seizure, and the disposal of the property will be prohibited. If funds in an account are seized, the determination must be taken to the bank where the account is opened.
If the defendant's place of residence is unknown
Lawyers advise that after the official divorce, do not delay the division of property and document the property rights. But in a number of cases, when the plaintiff decides to divide the property, the defendant already lives in another region and does not provide a new address. This means that it is not possible to file a claim at its location. In this case, the territorial jurisdiction changes.
The plaintiff sends an application to the location of the property, the rights to which are to be delimited, or to the place of the last known residence of the defendant. In this case, the applicant chooses at his own discretion to determine the place of filing the claim.
Court decision on division of joint property
As a general rule, when dividing common property by the court, the shares of the spouses are recognized as equal. This means that in most cases the court will divide the common property exactly in half. However, in some cases, when dividing the common property of spouses, the court may deviate from the beginning of equality of shares.
When joint property is not divided equally
To divide property unequally, the following circumstances may be taken into account:
- interests of minor children;
- significant interests of one of the spouses, for example, disability;
- cases where one of the spouses did not receive income without good reason;
- one of the spouses spent the common property of the spouses to the detriment of the interests of the family, for example, lost family funds in gambling, spent them on alcohol, drugs;
- cases when one of the spouses, due to health reasons or other circumstances beyond his control, is deprived of the opportunity to receive income from work.
To confirm each of these circumstances, prepare written evidence, copies of which provide the court and the other party. Or call witnesses to court.
How the court will divide the common property of the spouses
Having established the share due to each spouse, the court determines what specific property is to be transferred to each. One of the spouses may be transferred property whose value exceeds his share. In this case, the other spouse is awarded appropriate monetary compensation. The amount of compensation is set by the court based on the market value of this property at the time of the divorce. It happens that during the division of joint property it turns out that one of the spouses sold part of the common property. For example, he spent common funds at his own discretion and not in the interests of the family. Or hid property from the other spouse. Then, during division, this property is also taken into account, and the other spouse will also receive the right to compensation. In accordance with the law, ownership, use and disposal of the common property of spouses is carried out only by their joint consent. However, a spouse accusing the other of dishonest behavior must prove this fact.
Violation of jurisdiction rules
In a number of cases, the jurisdiction of the case is violated. In this situation, one of two scenarios will occur:
- The fact of a violation is established during the consideration of the case on its merits. For example, a judge makes a request to the FMS about the location of the defendant and receives accurate information about him. In this case, the case is redirected by the judge to the authority in which it should be considered.
- The jurisdiction of cases on division of property did not allow accepting the plaintiff’s statement of claim. In this case, it is returned to the applicant with an explanation of which authority to contact.
On our website you can read the statement of claim for the division of common property and, if necessary, download it.
Appealing a court decision in controversial situations
If, in the opinion of one of the parties, the decision made by the judge is unfair, then he is given a period of one month to file an appeal. If it was issued in the magistrate's court, then the complaint is filed in the district court.
If the case was heard by the district court, the appeal must be filed there. And only the judge decides the issue of its redirection.
It should be noted that incorrect determination of jurisdiction is grounds for appealing a court decision.
Therefore, it is not worth deliberately misleading the court. When dividing jointly acquired property in 2021, it is important not only to draw up a claim in compliance with all legal norms, but also to correctly determine the court to which it should be filed. All these issues are regulated by Ch. 3 Code of Civil Procedure of the Russian Federation.
What things are subject to division in court?
Not all property of spouses is considered joint property. The personal property of the husband and wife remains exclusively theirs. Only property that:
- acquired through a compensated transaction: as a result of purchase and sale, under a mortgage, and so on;
- purchased with funds representing the joint income of the spouses. These include: salary,
- passive income,
- non-target payments;
If a husband and wife are in a marital relationship, but do not actually live together, it is possible to recognize the property as not jointly acquired. To do this, you need to prove that only one spouse’s funds were used for the purchase.
Details of what relates to personal property are specified in Art. .
Find out in more detail on what basis property acquired jointly arises.
