How to apply for a division of property without a divorce: a sample application, legal advice

2024 Author: Priscilla Miln | [email protected]. Last modified: 2023-12-16 00:21

When getting married, few of the spouses think about how they will further divide their property. Naturally, lovers do not even want to think about situations that will force them to enter into long legal battles, leading to the division of everything that they will be able to acquire during the years of marriage. But, as statistics show, every third marriage comes to divorce and property disputes. Most of them all begin and end in court. Few of our compatriots are well aware of Russian legislation that allows the division of property without divorce. This situation is quite rare and uncommon in our country. Although in recent years, lawyers and judges are increasingly faced with situations about the division of jointly acquired property without a divorce. Therefore, today we devoted a whole article to talking about this, where we collected the mostrelevant and useful information for you.

Jointly acquired in marriage: an explanation of the wording

Many newlyweds believe that common property includes such large purchases as real estate or, for example, a car. But in fact, this is not so, because from the moment of painting in the registry office, the partners have common property. This category may include gifts for the wedding ceremony, wages and much more. In the future, every purchase made in a marriage, regardless of whose money it was made, becomes common property. In addition to things, this applies to the couple's cash and accounts.

Interestingly, the wording "joint property" allows each of the partners to dispose of it without the permission of the other. For example, a husband has every right to calmly sell a car acquired during the years of marriage and registered to it. Also, the wife gets the opportunity to withdraw money from the bank account and spend it as she sees fit. However, in cases involving registration or certification of documents in a notary office, the permission of the second spouse is an indispensable condition for the transaction itself.

Partners at any time in their lives have the right to apply for the division of property - without divorce, in its process or after it. However, do not forget that common property does not cancel such a thing as "personal property". This is worth talking about in more detail.

Personal property

Russian law specifies that each of the spouses has the right to personal property. It is impossible to apply the rules for the division of property in marriage without divorce or in its process. After all, everyone can dispose of it at their own discretion. If you want to use your spouse's personal property, ask his permission. Only if you agree, you can take this or that thing.

What can be attributed to personal property? Newlyweds and people who have been married for many years find it difficult to define the boundaries of this formulation. Although in fact everything is quite simple. So, property can be considered personal, which:

• was acquired before marriage;
• received as a gift during marriage;
• is part of the inheritance.

Also falls into this category, for example, clothing, accessories, jewelry (excluding luxury goods).

Keep in mind that personal property cannot be divided. The only exception is the fact if it was recognized by the court as joint property. This happens in rare cases when, over the years of marriage, the spouses have significantly increased the value of one or another thing that is personal. For example, a husband or wife inherited a small house that does not have much value in the real estate market. While married, they repaired it, installed plumbing and connected gas. Over time, it turned from an old wreck into a cozy and well-groomed cottage. In this case, when dividing property (withoutdivorce or, for example, after a divorce) a house once inherited, in which so many common funds and efforts were invested, can be recognized as jointly acquired property and divided between the spouses.

Sharing property: situations

As we have already said, most couples begin to share goodness even at the stage of divorce proceedings. Most often, a lawsuit is filed in court in parallel with an application for the division of jointly acquired property. In such a situation, the judge decides on two claims at once, based on the evidence provided by each of the spouses. Please note that earnings do not matter in court. For example, a woman who did not work in marriage, but only kept house, is also en titled to half of everything acquired during the years of married life.

Some couples initiate a divorce without dividing property. An application to the court about the fate of one or another thing from the category of "jointly acquired" can be submitted even three years after the end of the marriage. The law provides for such situations, and in recent years they have become increasingly common in court cases. Indeed, spouses often get divorced, experiencing negative emotions for each other, and therefore they cannot adequately assess the need for certain things.

Interestingly, the division of property without divorce can begin even a day after the official marriage. Russian legislation does not restrict spouses in these rights, but do not forget that the process of distributing jointly acquired property betweenhusband and wife concerns only those items that are in the family at the moment. If you managed to divide the property without filing for a divorce, then everything bought later, again, becomes your common property. In the event of property disputes, these items will be subject to division rules under the Family Code.

Many are wondering for what purpose it is possible to divide the property of spouses without divorce. Russian law provides for three objective reasons that may prompt a couple to take these actions.

Reasons for partitioning

Of course, things happen in life. But if we open the Family Code, then the following reasons for dividing property without divorce will be clearly indicated in it:

• one-spouse initiative;
• desire of both partners;
• activities of creditors.

The last reason is becoming more common in cases of the division of marital property, because by law both partners can have their own obligations, including to banks. But if there are problems with payments, the creditor will file for arrest everything that the spouses have. In this case, those who have nothing to do with the financial obligations of their other half can apply for the division of property without a divorce. Thus, the family will keep a part of the marriage acquired over the years.

Also often the thought of dividing property arises when spouses think about inheriting after themselves. The need for such actions is caused, for example, by the desire of a husband and wife to leavecertain items for their children. In this case, even after the written will, disputes may arise between the heirs, they have the right to protest the will and request a share of the common property. However, if the spouses make a division of property and make a will for items that belong only to them, then legal disputes will simply be excluded.

Procedure for division of property

If you are married and plan to divide the jointly acquired over the years, then there are two ways to resolve the issue:

• in a voluntary agreement;
• in litigation.

The first option involves drawing up a marriage contract or a voluntary agreement. The second way involves filing a lawsuit in accordance with the established form. In the following sections of the article, we will take a closer look at each of the options mentioned above.

Division of property without divorce and trial: marriage contract

Many people know that a marriage contract can be drawn up at any time at the request of the spouses. Most often, it is concluded before the registration of marital obligations, but this document is just as relevant in the process of cohabitation. In any case, the marriage contract resolves all disputable property issues between the spouses.

Interestingly, in recent years, cases of drawing up documents on the division of property between people who are already married have become more frequent. This is usually associated with a business owned by one of the spouses. Cases are known when both husband and wife have their ownsources of income that must remain their personal property, regardless of marital status. In this case, the marriage contract will help solve all future problems that arise.

Features of the marriage contract

Quite often, the reason to conclude a document on the division of property is the intention to take a mortgage loan. The fact is that banks, after numerous precedents with divorces of borrowers, began to practice drawing up marriage contracts, according to which the future apartment becomes the property of one of the spouses. He is also a responsible borrower. In the event of a divorce and problems with monthly payments, the bank will file a lawsuit against only one borrower and resolve all issues with him.

Keep in mind that the marriage contract is signed by a notary. At the same time, only the spouses themselves can determine what constitutes jointly acquired property. Things or real estate acquired after the signing of the document is common. However, the husband and wife may, even when drafting the contract, predetermine the ownership of this or that property, taking into account the source of funds spent on its purchase.

Voluntary agreement on division of property

Voluntary agreement is perceived by our compatriots as an alternative to a marriage contract. However, this document may not be certified by a notary, it will be valid after signing by both parties.

If real estate or vehicles appear in the voluntary agreement, then be sure toresolve issues with the re-registration of documents for these property objects. This will save you from possible future problems.

Division of property through the court without divorce

It is worth noting that people who are married, most often do without lawsuits. After all, they do not plan to end their relationship and quarrel over material issues. However, sometimes it is difficult to do without a statement of claim in court, so such a solution to the issue is also quite common in our country.

First of all, before filing a claim, it is necessary to determine the composition of the property. One of the spouses must describe it, conduct a preliminary assessment and determine the shares. All this must be indicated in the claim, but your half, in case of disagreement, can file a counterclaim or challenge it right during the court session by submitting objections in writing to the judge.

Many things cannot be divided, so they are determined by fractional ownership. As for the rest of the property, the judge proceeds from who initiated this or that purchase, whose money was used for it, and also which of the spouses needs it more.

Drafting a Lawsuit Sample

Many spouses who plan to divide property through the courts turn to professional lawyers to draw up a claim. And this is the right approach, because the specialist will be able to take into account all the nuances of the future business and suggest how it is necessary to evaluate the jointly acquired over the years of marriage. But this help costs some money, which cannot found in every family.

If you plan to initiate the division of property without a divorce, the sample application below will help you navigate the document.

Conclusion

It is worth mentioning that one of the spouses who does not want to share the acquired property can file his own claim for the division of debts. According to the Family Code, the debts of two people living in marriage are divided into equal shares. Be prepared for the fact that the division of property of spouses without divorce can lead to a similar situation. Therefore, try to negotiate with your husband or wife peacefully.