The most popular issue in divorce is the division of property that was jointly acquired in marriage. As a general rule in real estate, the joint property of the spouses should be divided, as in a children’s song: “… half, half, half, llama, llama.”
If the topic of real estate division is relevant for you now, I advise you not to waste time, be aware of your rights, and do not procrastinate with the issue of property division. Very often I hear from clients the questions: “And when is it better to divide property?”, “It is better to divorce first, and then divide the property?” I will share with you the answers.
The joint property of the spouses can be divided:
• During the marriage
• In the process of dissolution
• After the divorce (statute of limitations of 3 years)
Keep in mind that divorce does not automatically lead to the division of the real estate. Everything you have gained together during the marriage period must be divided correctly and as soon as possible. Otherwise, you can sell such property only with the consent of the other spouse, which creates additional inconvenience.
How can the real estate be divided?
• Agree – the couple can agree to whom and what property goes. For example, the wife has an apartment, and the husband has a garage and a car. Or the couple ½ apartment and ½ land. This can be recorded in writing in:
a) the division of property agreement or
b) the marriage contract.
Then – to the notary. If no agreement is reached on the division of the real estate, the property will have to be divided through the court.
• Separation through the court – if there is a dispute between the spouses over the size of their shares, the court determines the size of your share in the joint property, as well as the division of property in accordance with the established share.
During the division, the court applies the rule: the shares of the property of the wife and husband are equal. That is, all property is divided equally, but there are exceptions.
You can prove in court that you are entitled to a larger share in the joint property, and the share of the other spouse must be reduced:
The court may reduce the share of one of the spouses if one of them did not take care of the family, hid, destroyed, or damaged common property, spent it to the detriment of family interests. This list is not exhaustive.
For example, if your husband is constantly drunk and has had an attempt to start a fire in a shared apartment with the slogan: “do not stay with anyone”, then during the division of property such behavior may be taken into account by the court and you can sue most of the apartment.
The court may increase the share in the right to the property of the spouse with whom the children live, provided that the amount of alimony they receive is insufficient to ensure their physical, spiritual development and treatment.
How to determine if the property is common?
The law stipulates that such property:
1) is acquired after the registration of marriage and
2) at the joint expense of the spouses.
For example, if one of the spouses had personal savings before the marriage and bought a car after the marriage, then in case of a dispute he can recognize it as personal property.
In addition, when dividing the property of the spouses, it is necessary to determine what belongs to each spouse personally. After all, such real estate is not divisible.
Property that is the wife‘s personal private property includes:
• Property acquired before marriage
• Donated or inherited property
• Property acquired during the marriage but at personal expense
• Housing acquired during the marriage as a result of its privatization
• Land, acquired during the marriage as a result of land privatization
Conversely, property owned by one of the spouses may be classified as joint property entered into by the marriage registration agreement or recognized by a court on the grounds that during the marriage its value has increased significantly due to labor or monetary costs of the other spouse. For example, an apartment that was purchased before marriage was renovated.
The personal private property of the wife and husband also includes:
• Items for individual use (including jewelry);
• Prizes, awards;
• Funds received as reimbursement;
• Sum insured.
Thus, there are general rules for the division of property and many exceptions to them. And it is better to entrust such a case to the family lawyer who will help to receive the decision in your favor.
The most popular questions during the division of property:
Is it possible to divide property if the husband and wife were in a de facto marital relationship, ie lived in the same family without marriage registration?
Living with one family of a man and a woman without marriage registration is the basis for the emergence of the right of joint ownership of property.
Recognition of property as belonging to the right of joint ownership occurs by establishing the fact of living with one family in court. Their jointly acquired property – joint ownership and the issue of division of real estate are fully equated to the division of property of the spouses. It is important that a man and a woman living together are not in another marriage and run a joint household. Of course, this is a complex process of proof and it is better to entrust such a case regarding the division of property to an experienced lawyer.
What to do if the real estate is re-registered to other relatives or donated without the consent of one of the spouses?
As a general rule, the disposal of property that is the object of the right of joint ownership is carried out by the co-owners only by mutual consent.
If there is no consent of one of the co-owners to dispose of real estate, then such an agreement can be declared invalid in court.
Thus, the jurisprudence stresses, that the agreement on the disposal of real estate must be notarized co-owner. This conclusion is contained in the decision of the Grand Chamber of the Supreme Court.
Within the limits of this article only separate questions of division of joint property of spouses are considered. Of course, a comprehensive study of all the circumstances of a particular case is required, and only after that, it is possible to draw specific conclusions and choose the appropriate legal position.
Representation of interests on such an important issue as the division of property is best entrusted to a lawyer. This will save your time and nerves. A lawyer can gather evidence, prepare and file a lawsuit, request the seizure of property. You should not take risks and deal with the distribution of real estate yourself. The slightest mistake can leave one of the spouses without real estate.