How to file for division of property after divorce: sample claim, statute of limitations

Spouses divorce for various reasons, and this process is always unpleasant, and one of the procedures accompanying the separation of once close people is the division of acquired property. The situation is simplified if there is a prenuptial agreement, or if those separating do not set out to further humiliate and offend their ex-partner as a goal in themselves, but in general, separation is a difficult and often protracted procedure.

Dear readers! Our articles talk about typical ways to resolve legal issues, but each case is unique.

 

What property is divided in court between spouses? Here the lawyers are unanimous: absolutely all property acquired during the marriage is considered common . Subject to section:

• cottage, apartment, room, dacha, garage and other real estate;
• car, motorcycle and other movable property;
• business or part thereof, shares, bonds;
• land share, building plot;
• furniture, all household appliances, etc.

• Those items of property that belonged to each of the couple before the marriage were not subject to division; this can be confirmed by deeds of gift, as well as privatization documents.
• You should know that if a husband and wife do not live together for several years, and during this period each of them made large purchases, then the court has the right to consider them common property and divide them on the basis that the marriage was not officially dissolved, which means the fact of separate financial management cannot be proven.
• An attempt can still be made to prove that these items were acquired by one of the ex-spouses personally after the separation, if the court wishes to cooperate.
• belongings, as well as deposits in the name of the child or children, are not considered to belong to the spouses and are not divided ; this will remain to the spouse with whom the children live.
• An assessment of the share of each spouse will show how evenly the acquired property is divided, and if there is significant inequality, the one who has property for a smaller amount has the right to expect compensation for the difference - however, this is decided by the court and the former spouses themselves.

What documents are needed to file a claim, in which court to file?

If the amount of the claim does not exceed 50 thousand rubles, then the magistrate is obliged to deal with the division; if the value of the property is higher, the claim will be accepted by the district court at the place of residence of the defendant.

Along with a correctly drawn up statement of claim, the following documents will be needed:

1. passport or other identity document;
2. divorce certificate (notarized copy);
3. documents confirming the presence of property in the possession of the spouses (certificates of ownership, technical passports for vehicles, copies of orders, receipts, checks for property purchased during the marriage);
4. an extract from the house register and a copy of the personal account from the housing department, etc.;
5. a receipt confirming payment of the state duty.

You should know in advance that in this matter the testimony of witnesses is inappropriate and is not accepted as evidence by the court.

Limitation period

The statute of limitations for the division of property acquired by spouses after the dissolution of the official marriage union is stipulated in paragraph 7 of Art. 38, Art. 9 of the Family Code (IC RF) as a three-year period . Art. Art. 195-200 of the Civil Code of the Russian Federation also provide an interpretation that the limitation period for the division of jointly acquired property of a couple is determined at 3 years.

From what date is the statute of limitations considered?

It would seem that the question is simple, the answer is unambiguous, but in reality this is not so: at what time does the countdown of three years begin? Even some judges are convinced that three years should be counted from the date of divorce, but this issue was repeatedly considered by the highest authorities, after which clarifications were given.

Thus, the statute of limitations for a claim of 3 years must be counted from the day when one of the divorced spouses received information or should have understood or learned that his property rights were violated (Resolution of the Plenum of the Supreme Court of the Russian Federation No. 15 of November 5, 1998 d “On the application of legislation by courts when considering cases of divorce”).

And this changes the essence of the issue, and very strongly, since rights may not be violated for even 10 or 20 years.

Many men leave all their property to their ex-wives, leaving convinced that everything they have acquired should remain in the first family. However, time passes, the needs of the new family sometimes pose complex issues, especially housing, and after three years from the date of divorce you will have to win your share of the property.

Why you shouldn’t put off dividing your property

Once the relationship has gone completely wrong and mutual consent to divorce has been accepted, then there is no chance of turning back time to tender and sublime feelings, so you need to try to resolve the division of the property acquired together peacefully, by signing an agreement.

If the spouses are unable to calmly discuss any issue due to the resulting hostility, which develops into hatred, then they should also file for division of property along with the application for divorce . And the point is not so much in relationships, but in the fact that time works against the one who delays solving the problem of division.

If the ex-spouse finds out that the shared housing is for sale or has already been sold, or that someone else lives in its area, then, by law, the countdown of the three-year period must begin from that moment.

But since even lawyers interpret the question of the beginning of the calculation of the period in two ways, then if three years have passed from the date of divorce, you may not get through to the truth and be left with nothing.

In addition, the value of real estate tends to increase, and at the same time the size of the duty.

The more time passes, the harder it is to persuade the other spouse to partition, especially if he has been using the common property all this time, and you can lose your corner due to delays or your own indecision.

Of course, it is possible to sue a room or apartment sold without the knowledge of the ex-spouse, but a lot of money and time will be spent on this.

Examples from judicial practice

Example No. 1

The citizen lived for 18 years in a happy marriage, acquired an apartment, a dacha, a car, and two children together with his legal wife. His wife met the man of her dreams, informed her husband about it and filed for divorce. After the divorce, the ex-husband moved to live with his parents, very worried about what happened, he forgot to even think about dividing the property, he only took the car.

4 years passed, and the citizen accidentally found out that the apartment he shared with his ex-wife had been sold, and went to court, but he was denied half of the property or compensation in money, since the statute of limitations had expired.

Example No. 2

A married citizen was forced to leave for Khabarovsk to care for her sick mother. Six months later, her husband sent her divorce papers, which she signed. Having stayed in Khabarovsk until her mother’s death, she returned to her apartment 5 years later, but she was not allowed there; her new wife declared to the citizen that nothing belonged to her here anymore.

The ex-wife filed a lawsuit to restore the statute of limitations; she was lucky that an experienced lawyer helped prove the case in court, and the court restored the period, thanks to which she was able to regain half of the property .

Did you know that for the collection of alimony for past years, the statute of limitations is also 3 years? Read about where to apply for alimony here.

For other examples, see the article: Judicial practice on the division of jointly acquired property.

Conclusion

Divorce should not be dramatized; you should try to be philosophical, without losing your head, prudence, and common sense. The wisest thing to do is to put aside all feelings and grievances, make a list of at least the largest property and contact a specialist in property matters, who will competently draw up an agreement .

By sending a lawyer to negotiate with your ex, you have a chance to peacefully share everything you have acquired and save on legal costs and mandatory payments.

The Supreme Court clarified the statute of limitations for dividing marital property

The Supreme Court made an important clarification when it reviewed the dispute between former spouses over the division of property. Such cases are always, by definition, complex and conflict-ridden.

And, despite the fact that it would seem that everyone knows the general rule - everything acquired in marriage by a husband and wife is divided in half, regardless of whose name the property is recorded in, for citizens and judges in such cases there are still many questions and problems.

Articles of the Criminal Code will be prepared for family conflicts

The decision of the Judicial Collegium for Civil Cases of the Supreme Court was devoted to one of these difficult moments of such disputes. We are talking about statutes of limitations. In relation to our option - the statute of limitations during which divorced spouses can present claims to their former half regarding the division of jointly acquired property.

The decision that the Supreme Court made in a specific case can be very interesting for other citizens who find themselves in similar “temporary” situations. Because the decision explains what laws should be applied in similar cases.

It all started when a citizen brought a claim to court against her ex-husband for the division of a shared apartment. In the courtroom, the plaintiff stated that until 2009 she was married to the defendant.

While they were a family, they bought a one-room apartment, which they registered in her husband’s name. Now the woman asked for half of this apartment. The district court did not respect the request and rejected the citizen’s claim.

The appeal fully agreed with this decision.

Refusing the claim, the court of first instance stated that the citizen filed the claim too late: more than three years had passed from the moment of the divorce to the filing of the claim. In legal terms, the three-year limitation period provided for in Article 38 of the Family Code has been missed, which, according to Article 199 of the Civil Code, is a basis for refusing a claim.

The court prohibited parents from limiting their children's communication with their grandmother

But when the plaintiff reached the Supreme Court, challenging this decision of the local courts, it turned out that the woman was right, and the local courts were not right. The Judicial Collegium for Civil Cases of the Supreme Court overturned the decision of the district court and ordered this case to be reconsidered taking into account the following points.

Thus, the Supreme Court stated that the Family Code actually states: a three-year statute of limitations applies to the requirement to divide the common property of spouses whose marriage has been dissolved. But Article 200 of the Civil Code states that the limitation period begins from the day when the person learned or should have learned about the violation of his rights.

Regarding the statute of limitations, the Supreme Court recalled, there was a special resolution of the plenum of the Supreme Court. It was called: “On the application of legislation by courts when considering cases of divorce.”

Read also: Divorce without a marriage certificate: is it possible to apply?

And this plenum specifically emphasized that the three-year limitation period for a claim for the division of property that is the common joint property of spouses whose marriage is dissolved should not be calculated from the moment when the marriage ceased to exist. So when is a marriage considered dissolved?

Let us remind you that a marriage is considered completed on the day of state registration of divorce in the civil registration book. This is if the former spouses were divorced in the registry office. And if the marriage broke up by a court decision, then from the day on which this decision entered into legal force.

So, the plenum of the Supreme Court emphasized that the statute of limitations for the division of property of former spouses does not begin from the moment when the marriage was legally completed - with a seal and signature. And from the moment when the ex or former found out or should have found out about his violated right.

In our case, the district court found that the spouses actually bought the apartment during marriage.

VS: Parents have absolute priority in raising children

This means that according to the law (Article 34 of the Family Code) it is common property. But when the trial began, the plaintiff repeatedly stated that she had not demanded her half of the apartment in all the past years, since she was sure that it already belonged to her.

And only years later, when the woman needed to dispose of her share, it turned out that her ex-husband had no plans to share anything with her. I had to go to court.

That is, until the moment of her demand, the plaintiff had no idea that she would not be given her property - half of the apartment.

These arguments, which are in the case materials, show that only a few months passed from the moment the plaintiff learned about the violation of her rights until she went to court, and no three-year statute of limitations was violated by the citizen.

And the local courts, when considering this claim, incorrectly calculated the deadlines and did not pay attention to the ex-wife’s explanations that she knew about her share in the common property from the moment of the divorce and did not suspect that her right was violated. When she unexpectedly realized that they were not giving her half of it, she immediately went to court with a lawsuit.

As a result, the Supreme Court overturned both decisions of local courts. And he explained why - refusing a woman with the wording that the three-year statute of limitations had passed is contrary to the Family and Civil Codes. In addition, both decisions of local courts also do not take into account the explanations of the plenum of the Supreme Court.

Therefore, local courts will review the case of the ex-wife anew, taking into account the comments made by the Supreme Court of the Russian Federation.

This interpretation of the laws - the Family and Civil Codes - shows that former spouses can make property claims against each other even years after the divorce and division of common jointly acquired property. If, of course, they can prove that they only learned yesterday about their violated right to it.

Limitation period for division of property of former spouses after divorce

When it is not possible to reach agreement on the division of jointly acquired property, spouses can go to court to protect their violated rights.

At the same time, the statute of limitations for the division of property of former spouses, during which they can resort to protecting their rights in court, is 3 years, as noted in Part 7 of Art. 38 RF IC and Art. 196-200 Civil Code of the Russian Federation.

And this period is not always the period from the moment of divorce, as most spouses mistakenly believe.

When to file a claim for division of property

Current legislation allows the division of property of spouses at any time at their request.

Property can be divided:

In this case, the claim must be filed within 3 years of the limitation period. Not a single law contains a clear requirement about when to file a claim - the spouses themselves have the right to decide how to dispose of the right granted by law within a three-year period.

How is the statute of limitations calculated for divorce?

Many lawyers and judges are often mistaken when calculating the statute of limitations when dividing property by spouses, counting three years from the date of divorce without any conditions and assessment of other circumstances.

This position is fundamentally incorrect, which is confirmed by the conclusions of higher authorities.

Thus, the Plenum of the Supreme Court of the Russian Federation, in its resolution No. 15 adopted on November 5, 1998 (as amended on February 6, 2007) (clause 19), gave comprehensive explanations on the issue of calculating the limitation period for the division of property. The document states that the starting date should be considered the moment when the spouse learned about the violation of his rights or should have learned about them.

An excerpt from the document is published below.

Example: Spouses B. divorced in January 2010. Until 2016, they lived separately, but in June 2016, the ex-husband decided to divide the apartment and non-residential premises acquired by them during the marriage, but registered in his wife’s name. The reason was the ex-wife’s obstruction in the use of the said property.

In court, the wife demanded that the claim be dismissed due to the expiration of the statute of limitations, citing that more than three years had passed since the divorce and during all this time her husband had not deigned to resolve the issue with the property.

The court refused the request to apply the statute of limitations when dividing property, referring to the paragraph of the resolution above - the moment of violation of rights arose on the day the creation of obstacles to the ex-husband began.

The date of divorce does not matter here.

From what date is the limitation period calculated for the division of property?

The starting point for the limitation period for going to court will be the day when one of the spouses committed an action that prevented the second spouse from exercising his rights to jointly acquired property.

Such actions may include:

• Creating obstacles to the use of jointly acquired property;
• Sale or other alienation without the consent of the spouse of common property;
• Isolation of this property, its concealment in order to prevent the use of such property by the second spouse;
• Refusal to divide property voluntarily;
• Other actions of one of the spouses that directly indicate a violation of the rights of the second spouse to use and dispose of jointly acquired property.

Unfortunately, in practice, not everything turns out to be so simple. If the moment of violation of the spouse’s rights is the sale of joint property, then there will be no problems with calculating the limitation period: the beginning of the period will be the date of sale of the property.

But in cases where there was an oral refusal to divide assets or the creation of obstacles in the use of common assets, the start date for filing a claim will be of an estimated nature.

And how it will be assessed depends on the judge’s beliefs and the evidence presented by the parties.

If the established practice is grossly rejected, the court decision, of course, can be appealed - but all this requires time and money. The lawyers of our site are ready at any time to advise you free of charge on any issues related to the division of jointly acquired property and the statute of limitations for these claims.

When is the limitation period for partition counted from the moment of divorce?

In some cases, the period for filing a claim can be counted from the moment of divorce, but only if one of the spouses, after the dissolution of the marriage, was created conditions that violate his rights to jointly acquired property.

For example, it could be:

• Retention of property that could be divided and is joint;
• Depriving a spouse of the physical opportunity to use joint property (changing the locks in the apartment, taking away a car, etc.);
• Separate living with full bearing of all expenses for the maintenance of common property by one spouse;
• An attempt to take away property by force, threats of eviction, beatings;
• Involvement of law enforcement agencies in the removal of the ex-spouse from the use of property.

In this case, the beginning of the limitation period will coincide with the day of divorce if any of the listed actions were committed in relation to the property of the spouses simultaneously with the divorce.

If the listed circumstances arose long before the divorce and this is proven in court, then the statute of limitations will be counted from the moment they arose, even if the divorce took place much later.

How to fix the statute of limitations

• In cases where one of the spouses understands the impossibility of a peaceful resolution of the dispute over the division of property, but does not have the opportunity to go to court for a number of reasons (illness, lack of funds for litigation, living in another area), you can notify the spouse in writing of your intention to divide the property, inviting him to do this voluntarily.
• To do this, it is advisable to send a registered letter to the second spouse with a request for the division of joint assets, and even if no response is received, from that moment the statute of limitations will begin to run.
• Why is this necessary?

• Insurance against subjective interpretation of the date of calculation of the limitation period: in the absence of other evidence and circumstances (for example, obstacles to use), the period will be counted from the moment the spouse refuses the division;
• Fixing the beginning of the limitation period in case the second spouse decides after 4-5 years to go to court with a demand for division of property. The letter will serve as proof that he was to divide the jointly acquired property several years ago.

Example: Spouses T. divorced in 2009. They had no disputes about property; the apartment and car remained in the use of the ex-husband. In 2010, the ex-husband sent a letter to his ex-wife with a proposal to divide the property by agreement, offering to give her the car and keep the apartment for himself. There was no answer. In 2015, the ex-wife filed a lawsuit against her ex-husband, but the court, at his request, rejected the claim, citing the missed statute of limitations, which began to run from the moment the ex-husband sent a letter of proposal for division.

What happens if the statute of limitations for the section has expired?

The expiration of the limitation period itself cannot serve as a basis for automatic denial of the claim.

In order for the court to reject the plaintiff on this basis, the defendant must file a corresponding motion to dismiss the demands for division of property. On his own initiative, the judge cannot , even if he himself reveals that the claim was filed outside the three-year period.

If the defendant indicates that the statute of limitations has expired, the court is obliged to reject the claim on this basis.

IMPORTANT: Do not discuss the statute of limitations with your spouse! Very often, this type of case ends in the denial of the claim precisely because of the excessive “talkativeness” of the plaintiff. Why does the second spouse need to know about the statute of limitations? Let a lawyer do it!

Read also: What payments are due on maternity leave in 2020-2021?

Is it possible to restore the deadline?

Article 205 of the Civil Code of the Russian Federation allows for the restoration of the statute of limitations when filing a claim for the division of property of spouses.

Valid reasons that may lead to the restoration of the term should include those circumstances that are related to the personality of the plaintiff. These same reasons should objectively prevent him from exercising his right to judicial protection within the required time frame.

Such reasons may include:

• Illiteracy of the applicant spouse;
• Serious illness or helpless condition;
• Long-term absence from the place of residence on a long business trip, expedition, etc.
• Other circumstances that the court may consider valid.

IMPORTANT: The court has the right to restore the statute of limitations only when the circumstances that prevented the plaintiff from going to court on time occurred in the last six months of the limitation period. That is, it is impossible to restore the period after 5 or 10 years.

If there is any doubt as to whether the deadline has been missed or not, lawyers do not advise filing a petition for its restoration in a lawsuit. By doing this, you will inform the defendant of his right to demand dismissal of the claim if the judge refuses to restore the deadline. Wait until the defendant declares a missed deadline and only then demand reinstatement.

When the statute of limitations for division of property is suspended

The law establishes a number of circumstances that suspend the period for filing a claim. Despite the fact that the chances of their occurrence are extremely low in relation to cases of division of marital property, it is still worth knowing about them.

Circumstances leading to suspension of the limitation period:

1. Force majeure or extraordinary circumstances: natural disasters, military actions and other circumstances that the plaintiff and other parties to the dispute are unable to prevent;
2. Suspension of the law regulating controversial legal relations;
3. The presence of a party to the case in the Armed Forces of the Russian Federation in cases where these forces are transferred to martial law.

As in the case of reinstatement, the above circumstances are taken into account only when they occurred within the six-month period before the end of the limitation period.

Lawyers strongly recommend resolving the issue of property division immediately after a divorce or even simultaneously with the dissolution of a marriage. This will avoid unpleasant surprises in the future and will also prevent the second spouse from wasting or otherwise hiding the jointly acquired property.

Need a lawyer

Qualified legal assistance from a family lawyer on the division of property will not only help you avoid the application of the statute of limitations, but also apply it if you are the defendant. ask our specialists a question right now and solve your problems as soon as possible!

• Due to constant changes in legislation, regulations and judicial practice, sometimes we do not have time to update the information on the site
• In 90% of cases, your legal problem is individual, so independent protection of rights and basic options for resolving the situation may often not be suitable and will only lead to a more complicated process!

How to file for division of property after divorce

The Family Code and the Civil Procedure Code allow the division of joint property acquired during marriage at any time, regardless of the date of termination of the marriage. Until the completion of the division procedure, material assets will be considered common, and the participants will be able to dispose of them only by mutual consent. How to file for division of property after a divorce depends on the list of divisible values ​​and on the ability of the man and woman to resolve material conflicts peacefully.

Who owns property after divorce?

Article 33 of the Family Code establishes two ways for the emergence of property rights to benefits in marriage. The first is legal, that is, a conditional distribution of values ​​in half. The second is special, when a man and a woman draw up a marriage contract (this can be done before registering an official relationship or already in marriage, but before the divorce is completed).

• Depending on what property regime operates between the partners, individual material claims will be established.
• Before divorce, all values ​​are recognized as joint, even if they cannot be divided.
• If there is a marriage agreement, the conditions may be as follows:

• husband and wife are equal owners;
• spouses receive different shares;
• the values ​​will be transferred to only one partner (financial compensation can be provided in favor of the second participant).

Children are not taken into account when dividing property. That is, transferring a child into the custody of one spouse is not a basis for increasing the share of material assets. It is extremely rare for courts to make concessions to the legal representative of children, but only if the parent is financially insolvent and needs additional financial support.

What property is subject to division and what is not?

Article 34 of the RF IC states that all joint property acquired after registration of marriage and before receiving a divorce certificate is subject to division. This applies to the following values:

• official income;
• real estate;
• vehicles;
• bank accounts;
• household appliances.

Cannot be divided:

• personal belongings, including clothing, cosmetics, shoes, hygiene products, hobby equipment, professional tools;
• property acquired before marriage registration;
• valuables acquired through non-cash transactions (donation, inheritance, lifelong maintenance agreement);
• property of minors and acquired specifically for the child.

Methods for dividing property

Table No. 1 “Establishment of ownership shares”

Procedure
Advantages, disadvantages, features
Settlement agreement Legislation gives the right to participants in legal relations to independently regulate issues of cooperation. This concerns the distribution of material assets of former spouses. They are empowered to establish unequal shares at the stage of division of property, but only by fixing a mutual decision in a notarial agreement:

• marriage contract;
• agreement on division of joint property.

The advantage of this method is that the couple avoids having to pay huge amounts of state fees for the consideration of the dispute. Disadvantage - lack of legal education can cause unfair division of material values

Judicial proceedings The court makes a decision based on the requirements of the legal regime of matrimonial property, that is, in half. It is extremely rare to sway the court to one side or the other. The disadvantage is a large state fee. The advantage is a guarantee of protecting the interests of all participants in the process

Who can initiate a division?

The following may file a claim with the court for the purpose of dividing the common property:

• husband;
• wife;
• guardian of an incapacitated spouse (authorities are documented).

Voluntary section

If the participants did not previously draw up a marriage contract, but decided to peacefully resolve the property dispute, then a voluntary division of material assets can be formalized by signing a settlement agreement for the division of joint property.

Algorithm of actions of participants:

• completion of the divorce process and receipt of a divorce certificate;
• compiling a list of benefits (personal and general);
• support of each name with title documents;
• inviting a specialist to evaluate property;
• contacting a notary;
• drawing up an agreement (on your own, with a lawyer, through a notary);
• signing of the agreement by the participants;
• approval of the document by a notary and registration in a unified register (from this date the contract acquires legal force);
• appeal to the magistrate's court with a request to satisfy the method of division of property, referring to the terms of the settlement agreement;
• consideration of the issue and obtaining a court order;
• registration of property rights to objects separately by each spouse.

Contents of the property division agreement

The contract is drawn up in free form, but with mandatory details and sections of information indicated. Participants can display any terms they want in the content. The main thing is to take into account the following requirements and rules:

• lack of conditions for obtaining property rights to objects;
• a strict listing of divisible values ​​and the share of each spouse (or children) in them;
• distribution of debt obligations;
• dividing the costs of litigation and related bureaucratic costs;
• deadlines for fulfilling the specified conditions;
• consequences of violating an accepted contract.

Ambiguous phrases should be avoided, since the judge may refuse to accept the contract with the subsequent distribution of values ​​in half (legal property regime).

Sample agreement

To the Central District Court
of Stavropol

Plaintiff: Potapenko Vadim Antonovich,

Resident: Stavropol, Tsvetochny Ave., 6

Defendant: Potapenko Inna Iosifovna,

Resident: Stavropol, st. Krasnaya 9

Agreement
on division of joint property

city ​​of Stavropol01/23/2019

Statute of limitations for dividing property of spouses after divorce, statute of limitations for dividing property of former spouses

Home » Division of property » Limitation period for division of property of former spouses after divorce

Problems related to the jointly acquired property of spouses often arise not immediately after the divorce, but after five, ten or even more years. How to assert your rights in such a situation if the statute of limitations is only 3 years? Let's look at it in this article.

Statute of limitations

According to paragraph 7 of Article 38 of the RF IC, the statute of limitations on this issue is 3 years. However, this article does not say at what point the countdown begins, and therefore disputes and disagreements often arise. If you look superficially, you may get the impression that the deadline for filing a claim starts from the moment of divorce, but this is not so.

When does the countdown begin?

In accordance with the Resolution of the Supreme Court of the Russian Federation No. 15, which is based on Article 195-200 of the Civil Code and Article 9 of the RF IC, the period for filing a claim in cases concerning disputes about the division of property after a divorce begins from the moment one of them should have find out or have already learned about the fact of a violation. In this case, the amount of time that has passed since the divorce does not play any role.

Example : Vasily, Svetlana’s ex-husband, whom she divorced 10 years ago, became the owner of half the house as part of the divorce. The couple previously lived there. For 10 years Vasily lived quietly in his half (separation in kind was made).

After another business trip, the ex-husband finds out that he cannot get home because Svetlana, during Vasily’s absence, rented out his part of the house to third parties and changed all the locks. In such a situation, Vasily can file a claim in court within 3 years from the moment he discovered such a violation.

And only if he does not do this within the specified period, then he loses the right to make claims.

What may be considered a violation

There is no specific and clearly defined list of actions of one or another party to the conflict that can be considered a violation. In each case, the court independently decides whether the described actions are a violation or not. In practice, violations clearly include:

• Alienation of property.
• Obstructing access to property.
• Creating a clearly negative atmosphere, which prevents you from fully exercising your rights.

Example : Svetlana does not prevent her ex-husband from using his half of the house, however, as soon as he appears, she begins to swear at him, turns on loud music, kicks out his friends, and so on. It is almost impossible to live in such conditions, although in fact, Svetlana does not interfere with Vasily in any way.

Special limitation period

There is also such a concept. In this case, it is implied that the statute of limitations begins to expire from the moment of registration of ownership.

Example : While married, Svetlana and Vasily purchased an apartment in a house that had not even begun to be built. They divorced, and Vasily has the right to half of this apartment. At the same time, Svetlana made it clear that she would not allow her husband to use his property. At the same time, there is no ownership right yet, since the house has not been built.

In theory, the spouse already knows that his rights will be interfered with and the statute of limitations should begin to expire. However, the house will be built in another 5 years, which is why he has no opportunity to exercise his rights.

As a consequence, in such a situation, a special period applies, and it begins to count from the moment the former spouses receive a certificate of ownership of the property.

Other terms

In addition to the deadline for filing a claim, other deadlines must be taken into account when going to court. So, according to the rules, consideration of a case on the division of property after a divorce should take 2 months.

But this is an ideal deadline that is almost never met. In fact, it usually takes about 1 month from filing a claim to consideration. About the same amount of time passes from the preliminary to the main meeting.

And only after this, within another 5 days, the plaintiff is given a court decision.

When the decision has already been announced and fully formalized, the countdown of 1 month begins, during which either party has the right to appeal it.

The main problem when considering cases of this type in court is that it is not always possible to reliably determine when exactly the violation occurred and what it was expressed in.

If you really want to achieve justice, we recommend that you first discuss the essence of the case in a free consultation.

After this, based on your testimony and collected evidence, our specialists will be able to act as your representatives in court and win the case.

Divide property after divorce, you should know the statute of limitations

The ideal option would be if, after the dissolution of the marriage, the jointly acquired property is divided by common agreement between the parties, but most often the dispute over the division of property is transferred to the court. Often such a claim is filed with the courts after several years have passed. When filing such a claim, it is very important to establish the statute of limitations, as they are a guarantee of the protection of rights. At the end of the period specified in the legislation, the right to defense remains, but is no longer guaranteed.

Dear readers! Our articles talk about typical ways to resolve legal issues, but each case is unique.

If you want to find out how to solve your particular problem, please use the online consultant form on the right or call +7 (499) 938-52-17. It's fast and free!

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Limitation period for jointly acquired property after divorce

The statute of limitations for division of property is 3 years!

According to clause 7 of Article 38 of the Family Code of the Russian Federation, a 3-year limitation period is applied to the claims of spouses who have divorced. This period begins to count not from the moment of divorce, but when one of the parties becomes aware of a violation of its rights. Unfortunately, judges often erroneously interpret this provision of the law.

The PVS of the Russian Federation in Resolution No. 15 explained that the limitation period for filing a claim with the judicial authorities for the division of jointly acquired property should be counted not from the moment of divorce, but from the day when one party learned or should have learned about the violation of its rights for this property.

From what moment is the right of one of the spouses considered violated?

• The theory states that this right is considered violated in the case when a dispute arises between former spouses regarding the division of acquired property or the determination of shares in it.
• The Supreme Court of the Russian Federation “explains” that if, after a divorce, spouses use common property together, then the statute of limitations is calculated from the time when one of the spouses takes a very specific action that prevents the other spouse from exercising their rights in relation to such property.
• Thus, a violation of the right of one of the spouses to common property occurs as a result of:

1. Alienation of common property against the will of the other spouse in transactions (purchase and sale agreements, exchanges, gifts);
2. In case of a dispute over the use of common property;
3. In the absence of access to jointly acquired property, as a result of obstacles made by one of the property owners;
4. As a result of living separately and bearing the burden of maintaining it.

Unfortunately, violation of the law is an evaluative category, and will entirely depend on the internal conviction of each individual judge.

The limitation period can also be special. So, for example, if housing was purchased in a legal marriage under an investment agreement, then the limitation period, after the breakdown of the marriage, begins to be calculated after registration of ownership of the constructed apartment.

Suspension of the limitation period

The statute of limitations for filing a claim in court may be temporarily suspended in the case where the injured party did not have the opportunity to demand protection of its rights for valid (objective) reasons.

In this situation, the entire period during which the statement of claim, for good reasons, could not be filed with the court, is not counted, and after such a break, the countdown of the statute of limitations begins again, without taking into account the time before the break.

Objective reasons due to which the limitation period may be suspended are indicated in Article 202 of the Civil Code of the Russian Federation:

• When filing a claim was prevented by an unavoidable or extraordinary circumstance (force majeure). For example, natural disasters, martial law, serious illness of one of the parties;
• When the defendant or plaintiff is part of the armed forces that have been transferred to martial law;
• In case of a moratorium;
• If the operation of the Law of the Russian Federation or other regulatory legal act that regulates the relevant relations has been suspended.

1. The limitation period is suspended only when the specified circumstances arose or continued to exist in the last 6 months of such period.
2. In order to avoid “difficult” situations associated with the loss of property, the legal division of property must be carried out at the time of divorce, and after 3 years only with the help of a qualified lawyer.
3. So, we draw conclusions:

• The limitation period for the division of property acquired in a marriage between spouses begins from the moment the rights of one of the spouses are infringed.
• Violation of such a right can occur both from the moment of breakdown of the marriage relationship and many years after the dissolution of the marriage.
• The issue of dividing property is best resolved immediately after the divorce, and if more than 3 years have passed, then it is recommended to divide the property with the help of qualified lawyers.

If the statute of limitations for the division of property has expired

Question: I want to file a claim in court for the division of joint property with my spouse in the form of an apartment, a car, a garage, since he promised to give them to me voluntarily, but he is not giving them. 4 years have passed since the divorce. Can I go to court?

Answer: Yes, you can. It is necessary to write an application for reinstatement of the missed deadline.

Statute of limitations

The statute of limitations for going to court regarding the division of jointly acquired property is 3 years. It begins to flow from the moment the applicant learned of the violation of his rights. Not from the date of the spouses’ divorce, but precisely from the moment of the violation.

Example: The Ivanovs divorced. There was no dispute about the division of property; the wife did not refuse ownership of the apartment. 5 years after the divorce, the ex-husband dies, and his children from a previous marriage claim the apartment. The wife went to court to divide the apartment as joint property.

The court of first instance satisfied her demands, the court of appeal clarified that the limitation period is calculated from the moment of divorce. The Supreme Court of the Russian Federation put an end to it and divided the property, explaining that the statute of limitations begins to run from the moment the wife learned about the violation of rights, that is, from the moment the children filed claims for the apartment.

How can I restore the deadline?

It turns out that there is no need to restore the deadline; it is not limited by dates, but is tied to the fact of violation of rights. However, in practice, a situation may arise when one of the spouses nevertheless makes a claim to the property, and then again wants to protect his rights in court.

For example, the spouses divorced and drew up an agreement on the division of property. But there was a clause in this agreement that infringed on the wife’s rights. She filed a lawsuit to declare the agreement invalid and a second lawsuit to divide the joint property.

The limitation period for the division dispute will be calculated from the day when she went to court with a demand to declare the agreement invalid, that is, when she learned that her right had been violated.

Here we mean a specific date from which 3 years will flow.

In order to restore the deadline you must:

• go to court, to which an application for division of property will be sent and write an application to restore the term;
• the application must indicate compelling reasons for missing the deadline;
• We attach supporting documents to the application.

The court will consider the application and issue a ruling in which it will restore the missed deadline or refuse reinstatement. The determination can be appealed to the next instance.

What reasons can be valid for reinstating the deadline?

• severe and prolonged illness;
• being in another country for work or study;
• recognition of the spouse as temporarily incompetent, etc.

The question of recognizing circumstances as valid is decided only by the court.

The events that prevented the filing of an application for division of property in court must continue for at least 6 months during the statute of limitations.

What's next

After the court restores the missed deadline, the citizen has the right to file a claim for division of property in court.

At the same time, the period during which a citizen can file a claim from the moment a ruling to restore the statute of limitations is issued is not limited by law.