Compensation for division of property: spouses, divorce, law

Divorce and the subsequent division of property is one of the most problematic and controversial cases that lawyers and ordinary citizens have to deal with. Despite the fact that the main provisions regarding the division of property are enshrined in law in Article 38 of the Family Code and Article 256 of the Civil Code, this does not reduce the number of difficulties.

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

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Property is divided and not divided

According to the law, jointly acquired property is divided. A lot of difficulties arise from the need to establish what exactly is subject to division and what is not.

Jointly acquired property is considered to be property acquired by spouses during their marriage.

However, there are several exceptions when property is personal property and is not subject to division if it :

• received by one spouse as a gift or purchased with funds received as a gift;
• was received by one spouse by inheritance;
• belonged to the spouse before marriage;
• was acquired after the divorce.

In addition, personal property is not divided , for example, clothing, shoes, personal hygiene items, etc., as well as tools for professional activities . For example, this could be a car for a taxi driver.

Property belonging to children or acquired for their use, for example, clothing, musical instruments, children's books, school supplies, etc., They are transferred without compensation to the spouse with whom the children remain to live.

• Also, funds that are in a bank account opened in the name of the child are not subject to division.
• The lawyer talks about what is shared and what is not:
• Thus, any property is subject to division:

• real estate (apartment, garage, house);
• movable property (including a car);
• Appliances;
• income received from commercial, labor, investment or intellectual activities;
• non-targeted benefits;
• securities and shares in various investment funds;
• bank deposits;
• luxury goods, jewelry, jewelry.

The main condition: the property must be recognized as jointly acquired.

How to divide a car after a divorce?

When dividing property, it is necessary to proceed from the understanding that not all items can be physically divided . For example, it is impossible to divide an apartment, house or car in half without losing their functionality. Therefore, the law provides several possibilities for how physically indivisible property can be divided.

First option: the property is transferred to one of the spouses, and he pays compensation to the other party in the form of half the value of this property . Compensation can be either monetary or in kind – that is, in the form of transferring other property to the ex-spouse.

The value of the property is calculated based on its current market price. The spouses can agree on the amount of compensation themselves, or they will have to call an appraiser. This option is most often used if the value of the disputed property is small, and it is quite possible to compensate for it.

This is how a car, household appliances, jewelry, etc. are usually divided. Compensation does not have to be paid immediately. Spouses can agree on phased repayment of the debt.

The second option is that the property is sold, and the spouses receive half of the proceeds . This is how large property, usually real estate, is most often divided: an apartment, a private house, a plot of land.

The second option, despite its apparent simplicity, is not always practical for use. Thus, one of the spouses may insist on the sale of property, and the other on the transfer with subsequent compensation. And there is no law that would oblige spouses to divide property according to the second option. In essence, it is not the property itself that will be divided, but the proceeds from its sale.

Another important point: property should be divided in ideal proportion: 1/2 . Thus, when dividing a country house with a land plot, it is unacceptable for one spouse to be awarded a plot and the other a house.

If this happens in court practice or in accordance with the agreement of the spouses, then this can lead to big problems in the future. Thus, it is not possible to sell the house and land separately.

In this case, half of the plot and half of the house should go to one spouse, and the other half of the house and plot should go to the second.

Inherited property

Inherited property often becomes a stumbling block. For example, a family lives in an apartment that the husband inherited from his deceased parents. In this case, you must carefully read the text of the will. If property was left to only one spouse, it will not be divided after divorce.

It’s another matter if the will states that the spouses are bequeathed shares in an apartment or house. In this case, the division occurs strictly in accordance with the shares. For example, a husband is 3/4, and a wife is 1/4, and nothing else.

If there is no will, and only one of the spouses is recognized as an heir, then he will be the owner of the property after the breakup of the marriage.

Debts and mortgages of spouses

Debts, like property, are divided strictly in half between those getting divorced. The same applies to loans. The spouses will need to renegotiate the agreement with the creditors.

The previous agreement will be terminated, and with each of them separately, their own agreement will be concluded, which provides for the repayment of the debt on the same terms (duration and interest rate), but the amount of payments will be recalculated.

However, by mutual agreement, spouses can continue to repay loans or debts jointly in the same proportion. In this case, renewing the contract is not required.

It is also possible that one of the spouses takes full responsibility for servicing the loan. For example, if a car becomes his property, he can transfer the loan to himself. Wherein:

• the new owner of the car must compensate the second spouse for half the market value of the vehicle;
• after repaying the loan, he must pay the second spouse half of all the contributions that were paid by them jointly during the marriage.

If the mortgaged apartment is divided, then three options are possible:

The first way is to divide the apartment into shares , therefore, mortgage payments are also divided into shares. In this case, the spouses sign additional agreements to the main one, according to which they undertake to pay certain amounts to the bank.

After the mortgage is paid, the spouses become homeowners in the shares established by additional agreements. In practice, this method is rarely used, since spouses do not always have the same income and can divide payments strictly in half.

If payments (and shares in the apartment) are not divided in equal proportions, then this may encounter resistance from both the bank and one of the spouses.

The second way is to re-register the mortgage for one of the spouses . In this case, the second one is completely released from any obligations to repay the loan, but at the same time is deprived of the right to own housing. Once the mortgage is paid off, he must compensate the spouse for half of all mortgage payments paid during the marriage.

The third way is to sell the apartment and pay off the mortgage debt with the proceeds . The remainder is divided in half between the spouses. In this case, the bank undertakes to sell the apartment; the spouses themselves do not take any part in this.

It is important to understand that in any case, the consent of all three parties is required: both spouses and the bank. In the case of judicial division of property, the last word most often remains with the bank, and usually banks choose the third option as the most problem-free.

Voluntarily or through the courts?

There are two ways to divorce: voluntarily and through the court. The division of property can also occur voluntarily (by mutual consent) and in court.

If the spouses were able to agree on what will belong to whom after receiving the divorce certificate, then they can enter into an agreement . It details exactly what property will belong to whom. In this case, it is necessary to take into account some subtleties:

• the agreement must describe the item as accurately as possible, indicate its name, brand, color, etc.;
• It is advisable to indicate the approximate market value of the property;
• if the division is carried out with the involvement of a specialist appraiser, then the price must be indicated;
• the agreement must have the personal signatures of both spouses;
• It is recommended that the agreement be certified by a notary.

To draw up an agreement, you can involve specialists: appraisers, lawyers, notaries, etc., as well as in the judicial division of property.

Important: property not included in the agreement is divided in court in accordance with the law.

Through the court, the property is divided in the ideal proportion of 1/2; if the property cannot be physically divided, then it is transferred to one of the spouses with the condition of payment of compensation.

If the spouses have entered into a marriage contract, then the division of property occurs in accordance with this document. Spouses can enter into a prenuptial agreement at any time during the marriage, even immediately before divorce.

In essence, the agreement on the division of property and the marriage contract duplicate each other, but in the marriage contract additional issues can be addressed, for example, the order of residence of common children and the alimony obligations of the spouses.

Features of the section if there are children

When concluding a voluntary agreement or marriage contract, the parents themselves determine what shares in the property will belong to them , regardless of the presence of children or their absence. If they agree that the parent with whom the children will live will receive more property, so be it. If they divide the property in half, then that is also their decision.

But if the case is heard in court, then the presence of minor children together can play a key role in the distribution of property . The fact is that the court is obliged to take into account, first of all, the interests of minors. And he can meet the parent with whom the children remain and transfer to him a large part of the property, for example, an increased share in the apartment.

When resolving controversial issues, priority will also be given to the parent and children. For example, the court may transfer a car to a mother with two children, provided that she knows how to drive a car and she needs transport to take the children to school.

By the way, the procedure for divorce in the presence of children is described in detail here. about judicial practice in this situation.

We also recommend looking at articles about applying for alimony and where to apply.

How to file for division of jointly acquired property in court?

Which court should I file my claim in?

Before filing a claim, you need to decide where to file the claim, in which court. As a general rule, the court hears cases at the defendant’s place of residence . So, if the former spouses have already divorced and, after receiving a divorce certificate, decided to divide the property, then the case will be considered at the place of residence of the defendant.

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The court will sit at the place of residence of the plaintiff, unless:

• has supported minor children;
• due to health reasons, he cannot attend a meeting in another city or region.

If the amount of the disputed property does not exceed 30,000 rubles, then an application must be submitted to the magistrate’s court. If the price of the issue is higher, then the application is submitted to the city court.

Statute of limitations

The established limitation period for division of property is 3 years. This means that one of the spouses can file for division of property within three years after the divorce, namely after receiving a court decision on divorce.

Read more about the statute of limitations and from what point it is considered here.

Sample statement of claim

The statement of claim is submitted to the court office. There are recommended forms for filing a claim ; they can be found at the information stand in the courtroom or requested from the office. You can also entrust the preparation of a court application to a specialist.

The statement of claim must include:

1. name of the court;
2. information about the plaintiff and the defendant;
3. information about marital status;
4. data on property, grounds for possessing the disputed property;
5. the cost of the claim (the total value of all property);
6. specific requirements.

You can use this sample application for division of property: Download.

Required documents

Along with the claim, you will need to provide the following documents to the court:

1. your passport;
2. passport or birth certificate of the child or children;
3. a document certifying marital status - a certificate of marriage or divorce, or a court decision or an extract from a court decision, if the certificate has not yet been ordered;
4. certificate of family composition;
5. assessment of the disputed property (ordered from an independent appraiser);
6. receipt for payment of state duty.

Payment of state duty

The amount of the state duty is established by Article 333 of the Tax Code and depends on the value of the claim. The higher the cost of the claim, the higher the state duty .

It will need to be paid before filing an application with the court; if you wish, you can include a claim for reimbursement of legal costs in your claim.

If the claim is filed with the mutual consent of the spouses, then they must pay the state fee in equal amounts.

Conclusion

In order for all the information presented in the article to form an overall picture, we recommend viewing it again in this structured form:

This is a kind of cheat sheet for the division of property. Examples from judicial practice are here.

Source: https://2supruga.ru/razvod/razdel-imushestva/poryadok-po-semejnomu-kodeksu.html

Compensation for division of marital property

An analysis of judicial practice shows that upon divorce, spouses in most cases divide between themselves assets recognized by civil law as indivisible, for example, real estate or cars.

Due to the fact that these things cannot be divided without causing harm to them or changing their intended purpose, they must be transferred to one of the participants in the marriage union.

But family law establishes that common property is divided equally, unless the marriage contract stipulates other principles for the division of joint property assets.

Therefore, a participant in family relations who renounces ownership of a disputed indivisible thing is paid compensation when dividing the property of the spouses.

When is compensation issued?

The amount of Compensation payments can be determined:

• By agreement between spouses, enshrined in a marriage contract, or in an agreement on the division of assets.
• A court that fixes the amount of compensation in a court decision.

What forms of compensation are there?

Forms of compensation Example of use in practice Monetary Monetary compensation for the division of jointly acquired property is often used when spouses have a dispute about the future fate of a car, which is used, for example, by the husband for work. In such cases, the court transfers the car into the personal ownership of the husband and in return orders monetary compensation to be paid to the wife, proportional to the share awarded to her. Other Russian legislation does not define other methods by which compensation compensation can be transferred from one participant in a family union to another. They are independently determined by the spouses or the judicial authorities upon dissolution of the marital relationship. These include:

• Provision of services by one of the former spouses for the benefit of the other.
• Work performed by one of the former spouses for the benefit of the other.
• Providing a temporary right to use a thing as compensation.
• Transfer in kind of personal property that one of the spouses was able to acquire on their own as compensatory compensation.

How is the value determined?

The amount of compensation payments is determined in two ways:

• By mutual agreement between the participants in the family relationship.
• By the tribunal's decision.

If spouses plan to resolve property disputes peacefully, then they can use one of two methods presented in the table.

Title of the document Procedure for calculating compensation Marriage contract In the period before the official registration of the marriage relationship or during marriage, the husband and wife can draw up a marriage contract in which they will determine independently or on the basis of the appraiser's report the procedure for resolving the following issues: Who will receive the indivisible assets after the termination of the marriage? What assets should be sold when dividing property in order to divide the financial proceeds from the sale? What type of compensation will be used in settlements between spouses? If monetary compensation is to be applied, is it paid in a lump sum or as a monthly cash benefit over a specified period of time? Agreement on the division of property This document is drawn up by the spouses after the start of the divorce process. It must be certified by a notary. The value of the disputed assets and monetary compensation of one of the spouses is established on the basis of an agreement between the participants in the marriage union or a report of an expert specializing in property valuation.

• If the participants in a family union have not agreed on the price of the property they own and have not decided on the amount of compensation, then the dispute must be referred to the court.
• To determine the amount of compensation payments, the judicial authority appoints an appraisal examination of the joint property of the participants in the marriage union.
• Based on the results of the asset assessment, the court makes a decision on the division of property and awarding compensation to one of the spouses.

Registration procedure (step by step)

• If the spouses have resolved the issue of dividing property, they have no disagreements regarding the assessment of the value of common things and the amount of compensation, then they should draw up an agreement together or with the involvement of a lawyer. Then the contract is certified by a notary. As a result of certification, the document receives the force of a writ of execution and can be transferred, if necessary, to bailiffs for enforcement.
• If the spouses do not have a unanimous opinion regarding the valuation of common property, then they need to order a determination of the value of joint property from an appraiser. Having received the assessment report in hand and having decided on the amount of compensation, the spouses should draw up an agreement on the division of assets together or together with a notary and have it notarized.

A sample that can be used to fill out a property division agreement can be downloaded here.

If it is impossible to reach a solution satisfactory to both parties, the dispute about the division of assets and the assignment of compensation is referred to the court for consideration in accordance with the rules of jurisdiction. The procedure in this case is as follows:

• The interested party files a claim for payment of compensation for the division of property of the participants in the marriage union. A sample statement of claim submitted to the court can be downloaded from here.
• Having accepted the application for consideration, the judge orders an appraisal examination to determine the market price of the marital assets. The responsibility to pay for the services of the valuation expert rests with the plaintiff.
• Having received the assessment report, the judicial authority, based on it, makes a decision on the division of marital property and determines the amount of compensation awarded to the spouse whose share price turned out to be lower than that of the other spouse.
• The amount awarded as compensatory damages is calculated as follows:
  • The total value of the assets of the husband and wife is determined separately, for example, property worth 5 million rubles goes to the husband, and property worth 4 million rubles goes to the wife.
  • From the larger number we subtract the smaller one. In our example, the difference will be equal to 1 million rubles.
  • Divide the difference by two. As a result, we obtain the amount of compensation. In our example, the compensation compensation will be equal to 500 thousand rubles.

Do I need to pay taxes?

If one of the spouses received compensation upon dissolution of the marriage relationship, then, within the meaning of Article 210 of the Tax Code, he has income from which he must transfer personal income tax to the state treasury.

At the same time, the law provides an opportunity for individuals to avoid taxation of compensation payments by taking advantage of a tax deduction.

To be able to use it for your own purposes, you should formalize the transfer of compensation in the form of a purchase and sale agreement with the second spouse. Thus, one of the participants in the marriage acquires an asset that was previously joint as personal property, and the other spouse receives a payment and the opportunity to avoid personal income tax.

To qualify for a deduction, property must simultaneously meet two conditions:

• Its price should not be higher than 1 million rubles.
• The spouses owned the asset continuously for at least three years.

If the price of an item is above 1 million rubles, then 1 million rubles are deducted from the taxable amount, and personal income tax equal to 13% is charged on the remaining amount.

What to do if the defendant does not pay

The court decision must determine the period before the expiration of which the defendant must transfer a lump sum compensation in favor of the plaintiff. If compensation is paid in monthly installments, the deadline for payment will be the last day of the month.

If the defendant delays in transferring monetary compensation to the plaintiff, it is necessary to contact the court that made the decision in the divorce case with a request to provide a writ of execution. With this document you need to come to the bailiff service office located at the defendant’s place of residence and hand it over to the bailiffs to initiate enforcement proceedings.

How can you avoid paying compensation?

• Divide all common assets belonging to the spouses in advance using a prenuptial agreement.
• Enter into an agreement defining the shares of each spouse. This method can be used for vehicles and real estate.
• Agree with the other spouse and sell the disputed asset. Then divide the proceeds as agreed.
• Register the property as a gift from parents or third parties. This is done in order to include the gifted item in the list of personal property of one of the spouses, which, according to family law, cannot be divided upon termination of the marriage.
• Conclude a fictitious agreement for the purchase and sale of a joint property with a third party or draw up a fictitious gift agreement for a close relative. The disadvantage of this option is that such transactions can be challenged by the other spouse, since they were made without his consent.

Arbitrage practice

The case was heard by the Krymsky District Court of the Krasnodar Territory in July 2017.

Read also: Alimony for a disabled person: 1, 2 and 3 groups

The plaintiff, represented by the ex-wife, demanded that she be awarded monetary compensation for a car purchased during marriage. Since the spouses did not enter into a marriage contract or an agreement on the division of assets, the ex-wife insisted on recognizing the car as common property, dividing the item equally and collecting half of the market price in her favor.

The court did not find any grounds preventing the division of the car based on the plaintiff’s demands, and ordered an appraisal examination to establish the value of the asset and assign compensation.

Based on the expert's report, the judge determined the size of the shares of each spouse, decided to transfer the car into the personal property of the ex-husband and ordered him to pay his ex-wife monetary compensation equal to half the market price of the car.

The legislative framework

Name of the normative act What it regulates The Family Code of Russia

• Chapter 8 defines the procedure for concluding, terminating or changing a marriage contract.
• Article 38 establishes the basis for calculating compensation.

Civil Code of Russia

• Article 133 determines which property is classified as indivisible.

Tax Code of Russia (part 2)

• Article 210 determines in which cases the former spouse must pay personal income tax.
• Article 220 establishes the conditions for providing a tax deduction.

Source: https://pravosem.ru/rastorzhenie/imuschestvo/kompensaciya-pri-razdele-imushchestva.html

Collection of monetary compensation upon division of property in [year]

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The collection of monetary compensation for the division of property in 2020 is carried out in a forced form through the court.

 During a divorce, the joint property of the spouses can be divided equally between them, or maybe in different proportions.

In the event that the share of one spouse in the division is a large part, he will have to pay monetary compensation to the other spouse. But it often happens that a person voluntarily does not want to compensate the money.

What property is subject to division?

Spouses have the right to divide the property that they acquired during their legal marriage. Since funds from the general family budget were spent on the purchase, the property is shared.

Read more: What is marital property and what is not?

Most often, spouses share:

• Residential real estate;
• Land;
• Transport;
• Cash deposits;
• Household items;
• Luxury items, jewelry.

Not only property rights, but also the obligations of spouses are subject to division. This is stated in Part 3 of Art. 39 of the Family Code. The spouses will have to pay off their common debts in proportion to their shares.

Attention: During a divorce, the personal property of the spouses will not be divided: objects acquired before marriage, gifts, inherited objects, clothing, shoes.

Is compensation due for division?

Payment of compensation upon division of property is provided for in Part 3 of Art. 38 of the Family Code. Compensation is paid if the value of part of the property of one spouse exceeds the value of the part of the second spouse. Funds must be transferred voluntarily. Otherwise, you will have to collect them through the court, which is much more problematic and longer.

How is property division carried out?

Division of property by law can be carried out in two forms:

• By agreement;
• Judicially.

The division of property by agreement is the conclusion of a written agreement in which the parties stipulate the list and value of the property that they will own after the division.

Note: In accordance with the provisions of the Family Code, the shares of spouses in joint property are recognized as equal.

In the separation agreement, spouses may stipulate that property does not have to be divided equally. They can divide the property the way they want. In this case, it is important that the party that receives the majority pays compensation to the other party. Its amount is specified in the agreement.

The property of spouses who cannot agree on the division of property is divided in court. The judicial procedure is carried out much more often. During this process, the court determines the shares of each spouse and sets the amount of compensation if the shares are awarded unequally. Execution of a court decision is mandatory for all participants in the process.

The mechanism for paying monetary compensation for property during a divorce was developed by legislators for many reasons. First, it allows for an objective and fair division of property. Secondly, payment of compensation is relevant in cases where the subject of the dispute is indivisible property, which cannot be divided without losing its properties.

How to calculate compensation

When dividing property, an important question is: what amount of compensation is due to the spouse who received a smaller part of the property? To understand how much money should be paid to a spouse, it is necessary to objectively assess the value of the property. To do this, an independent examination is carried out, during which the market price is established.

Help: Market valuation is the determination of the most accurate value of an object at which it can be sold subject to competition.

Information obtained as a result of property assessment is considered reliable and can be used in court. But, if each spouse has carried out an assessment and its results have a significant difference, a forensic examination is appointed, the data of which will be taken as the basis for the court’s decision.

When compensation is not due

The spouse whose share is reduced during division may not always qualify for monetary compensation. In a number of cases, property is divided in different shares without payment of compensation:

• If things necessary to meet the needs of minor children are divided;
• If during the marriage the spouse squandered the joint property to the detriment of the family;
• If the spouse has not brought income to the family budget for a long time without good reason.

Separately, we should highlight situations where a husband and wife lived without registering a marriage (in a so-called civil marriage).

From a legal point of view, this form of relationship between a man and a woman does not give rise to marital rights and obligations.

Accordingly, their property interests are not protected by law, which means that they cannot subsequently claim division of property and payment of compensation.

Learn more about the division of property acquired before marriage.

Methods for collecting compensation

The procedure for collecting monetary compensation during the division of property is carried out in court if the spouse does not want to pay it voluntarily. This can happen either when concluding an agreement on the division of property, or in case of failure to fulfill a court decision, in accordance with which the payment of funds was ordered.

Depending on how the property was divided, there are two methods of recovery.

Applying to court for monetary compensation

This case is relevant if the spouses have entered into a separation agreement, under the terms of which one of the spouses compensates the other for part of the amount. If the terms of the contract are violated, the injured party has the right to go to court.

You will also have to contact the judicial authorities when the spouses were unable to divide the property on their own.

The process consists of several stages:

• The interested spouse files a lawsuit demanding division of property and payment of compensation;
• A court hearing is held, during which the demands of the parties are heard, the title documents for the disputed property are studied, the circumstances influencing the increase (decrease) of shares in ownership are clarified, and, if necessary, a forensic examination is ordered;
• Based on the assessment report or the results of a forensic examination, a decision is made on the division of property and the amount of compensation is established.
• The court decision must indicate a list of objects that remain in the possession of each spouse, their shares in ownership, the amount of compensation and the period for its payment.

Important: The statute of limitations for cases of division of joint property is three years. It is calculated from the moment the citizen learned about the violation of his rights.

Contacting the bailiff service to enforce a court decision

If a court decision on the division of property and the award of compensation has entered into force, and the spouse does not comply with it, you must contact the territorial body of the FSSP.

Bailiffs are obliged to use all methods available to them to force a citizen to pay compensation (by deducting the amount from earnings or other income).

If a person does not have a source of income, then more stringent sanctions will be applied: seizure of property and its sale at auction in order to reimburse the amount of funds in favor of the claimant.

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Source: https://razvodguru.ru/razdel-imushhestva/vzyskanie-denezhnoj-kompensacii-pri-razdele-imushhestva/

Collection of monetary compensation upon division of marital property

According to the norms of family law, property purchased during a marriage with common money is considered jointly acquired and is subject to division. Each spouse has the right to allocate ½ part. But there are situations when allocating equal shares is impossible. In this case, monetary compensation for property in a divorce is applied.

Is it possible to receive monetary compensation and in what cases?

Contents (click to open)

The possibility of receiving monetary compensation is regulated by Art. 38 of the Family Code of the Russian Federation.

Payments are applied in the following cases:

• jointly acquired property cannot be divided into equal parts;
• impossibility of allocating a share in kind.

If the divorce spouses were unable to resolve the issue peacefully, the property dispute is considered in court. Receiving a material payment deprives the spouse of the right of ownership (use, disposal) of the thing.

Alternative to monetary compensation:

• provision of service;
• completing of the work;
• transfer of property for temporary use;
• exchange for personal property.

What is subject to division in a divorce?

The process of division during divorce covers property acquired with common funds after the registration of the marriage relationship.

Art. 34 of the RF IC defines the following list:

• cash (deposits, income of a married couple, pension savings);
• real estate;
• movable property (household appliances, furniture, electronic equipment);
• transport;
• debt (credit) obligations;
• joint rights.

If there is no marriage contract or voluntary agreement, the division is carried out in accordance with the norms of current legislation:

• RF IC (Articles 34, 36);
• Civil Code of the Russian Federation (Articles 252-256);
• Code of Civil Procedure of the Russian Federation.

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Calculation of monetary compensation

An expert assessment of joint property will help you find out the amount of monetary compensation. The principle of calculation is to determine the difference between shares when dividing property in kind. The spouse who received the smaller portion has the right to receive compensation.

In judicial proceedings, the power of settlement lies with the court. If the amount of payment is significant, the consent of the parties to the process is required.

Example of a section with compensation through the court

The Karpachov couple applied to the court with a request for a divorce and division of jointly acquired property: a car, furniture and household items.

To determine their value, the judge ordered an expert assessment. Taking into account the interests of the spouses, the car was transferred to the man, and the rest to the woman.

As a result of the division, the Karpachovs’ shares turned out to be disproportionate, because the cost of the car is much higher than the price of furniture and household appliances.

The court calculated the difference between the parts and determined the amount of monetary compensation. Karpachov agreed and undertook to pay Karpachova the money on time. This is how the court resolved the property dispute between the spouses, restoring equality of shares with the help of a legal instrument - monetary compensation.

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Violation of general rules for division of property

When dividing property, the court distributes joint property in equal shares between the spouses. Ownership of a particular thing is assigned to a specific party. If there is a difference in the estimated value of the shares, one form of compensation is applied at the discretion of the judicial authority.

The general rule of section may be violated in the following cases:

• signing a marriage contract defining property relations;
• conclusion of a voluntary agreement on the division of joint property;
• have minor children;
• disability of husband or wife;
• misuse of funds by the spouse (outside the interests of the family), lack of income without good reason.

The amount of earnings of a husband or wife does not matter unless it is specified in written agreements. The lack of individual income does not deprive the right to an equal share in the division of property. Deviation from the principle of equality must be reasoned and motivated.

Property valuation

Property valuation – determination of market value, taking into account wear and tear and current prices. This information is needed when considering a property dispute in court:

• to calculate the amount of state duty when filing a claim;
• determination of shares (compensation payments) during division between spouses.

The plaintiff declares the price of the property based on information from the BTI or Rosreestr. If such information is missing, the exact cost will be determined by an appraiser or expert institution.

Participants in the process have the right to challenge the expert’s conclusion. The reason may be overestimated or underestimated data. To carry out the examination, the interested person must contact another company. If the result does not satisfy the spouses, the court independently appoints an expert. His decision becomes a priority when dividing joint property.

Monetary compensation by agreement

The agreement is concluded on a voluntary basis by mutual consent during a divorce.

Peaceful division presupposes:

• determining the volume of the property mass for division;
• indication of cost;
• distribution between spouses;
• calculation of monetary compensation.

The deadlines for fulfilling obligations under the agreement are set by the spouses independently. In this case, the method of transferring compensation payments is indicated: transfer to a bank account, cash, postal transfer, etc.

Form and content of the agreement

Drawing up an agreement requires written form (oral is allowed if the value of the property is no more than 10 thousand rubles). Notarization is not required.

The structure of the document should include the following points:

1. Parties to the agreement (personal data).
2. Family status.
3. Subject of agreement.
4. A clear distribution of things between spouses.
5. Determination of monetary compensation.
6. The moment of acquisition of legal force.
7. Place and date of signing.
8. Personal signatures of the parties (with full name decrypted).

If the agreement consists of several sheets, they must be numbered and the document is bound. When writing an agreement, specificity is required - indicating the thing with full characteristics. An individual document can be drawn up for each item.

Sample agreement

Agreement on division of property with compensation

Bryansk12.03.2019

Source: https://SocPrav.ru/denezhnaya-kompensaciya-pri-razdele-imushchestva

What compensation is awarded for the division of marital property in 2020?

When people get married, they, of course, do not think about divorce. But divorces happen, and the law requires all property acquired during marriage to be divided equally, and sometimes this is not so easy to do, because property can be indivisible.

And in the case of undivided property, the former spouse, who will not receive it after the divorce, is entitled to compensation.

Let's figure out when and under what conditions compensation is paid when dividing marital property in 2020.

What is division of property during divorce?

You can deal with the division of property yourself, by agreeing peacefully, or in court. Most often the second path is chosen.

In Russia, almost every second married couple who decide to separate is faced with a property division procedure, which can be carried out both before and after receiving a divorce certificate. Trying to fairly divide what was acquired in marriage, the ex-husband and wife spend a huge amount of time in court, pay considerable sums of money and spoil their relationship with each other even more.

Since disagreements led to the divorce, the spouses rarely establish communication, and therefore prefer to sort it out in court, not wanting to come to an agreement and trying to deprive each other of as much of the property as possible.

The law obliges magistrates to divide the property of spouses strictly equally. Therefore, before making a decision, the court orders an appraisal examination, based on the results of which the final value of the things will be revealed. The procedure is paid and is carried out at the expense of one of the spouses (the plaintiff) - they will have to pay from 5 to 20 thousand rubles (the cost depends on the region).

To resolve a conflict in court, a state fee is charged in the amount of a certain percentage of the assessed value of the property being divided. Money is deposited even before filing a claim. It will take several months to wait for a decision on the case.

It is much cheaper to resolve everything peacefully - to draw up an inventory of property, determine the share of the wife and husband, describe each item and its price, and then sign the document with a notary.

article ⇒ “Compensation for legal expenses”.

What property is and is not subject to division?

Any property acquired while the spouses were living together must be divided equally between them.

Current laws clearly define which marital property is divisible and which is indivisible. The following values ​​cannot be shared:

• property purchased and otherwise acquired before marriage and after receiving a divorce certificate;
• personal property of each spouse;
• children's property;
• property donated and inherited;
• property privatized for only one of the spouses.

article ⇒ “Compensation for violation of reasonable deadlines for legal proceedings.”

Voluntary division of property between spouses

You can divide property after divorce on your own, especially since the judge’s decision does not always satisfy the ex-husband and wife.

Whatever arguments the plaintiff and defendant bring, the property will be divided equally between them.

And since the magistrate does not consider real investments in the property of each spouse, indivisible values ​​​​are transferred to one of them (transport, apartment, house, etc.).

How is a settlement agreement drawn up?

When negotiating peacefully, you may not comply with the law regarding equal shares - all values ​​can go only to the husband or wife or be divided fairly, not equally. It is possible to draw up a document according to which the spouses themselves have sorted out the division of things both during the period of marriage and after the divorce and during the divorce process.

Even with a peaceful division of values, the law allows you to subsequently go to court with a demand to revise the terms of the division - this opportunity is available for 3 years after receiving the divorce certificate.

A settlement agreement can be concluded orally, but then in the future it will be impossible to prove that you are right. Therefore, it is better to contact a notary office and draw up 3 copies of the agreement.

A settlement agreement can also be drawn up during the trial - before the judge leaves to make a decision on the division, the wife has the right to indicate her desire to reach an agreement peacefully. After this, they cannot go to court again.

How does property division happen through court?

You must take with you to court documents evidencing property rights, inheritance, and unilateral payment of value.

If the spouses decide to go to court, it is necessary to take into account that the judge has the right to divide the property only according to the law - in equal shares.

In this case, the property of the spouses acquired during marriage is allowed to be sold, after which the money is distributed equally, or the property is left untouched in the shared disposal of the wife and husband.

If this issue cannot be resolved independently, the court issues a ruling on the sale of valuables.

Compensation for division of marital property

If, after a divorce, a husband or wife received less valuable property, they are entitled to compensation in cash or other form, at the discretion of the former spouses. Compensation is paid at the expense of one of the spouses who received a large share of the property.

Joint property is the property of the spouses that was acquired while they were legally married. If such property was not divided equally, not in equal shares, monetary compensation becomes mandatory, since the law insists on an equal division of things.

How much compensation is paid when dividing marital property?

The court calculates compensation independently, based on the results of the assessment examination. The value of all property that is subject to division is determined, and the resulting amount is divided in half. Each spouse is then allocated a share of the property. The one who got it less will receive compensation equal to the difference in the value of the larger and smaller shares.

If the amount of compensation is significant, payment is assigned with the consent of the plaintiff and defendant. If the compensation is minor, consent is not required.

If the amount of compensation is less than 1,000,000 rubles, and the seller owned the alienated share of the property for more than 3 years, personal income tax is not paid on the amount of compensation.

Art. 36, art. 38, Art. 39 RF IC On the limitation period, on the distribution of property between spouses, on the transfer of property to spouses, Art. 220 of the Tax Code of the Russian Federation On the possibility of obtaining a tax deduction in relation to the sold share of property of spouses for payment of compensation

Common mistakes

Error: The spouses filed a lawsuit for the division of property after the divorce, after which they decided to enter into a peace agreement during the trial. A year after this, the spouse plans to re-file the claim for division of property, changing her decision.

Comment: After concluding a settlement agreement in court, spouses are deprived of the right to re-apply to court on the same issue.

Error: The ex-wife of a citizen is going to file a claim in court for the division of property acquired jointly during the marriage. The divorce took place 4 years ago.

Comment: It is allowed to file a lawsuit for the purpose of dividing the property of spouses within 3 years after the divorce.

Answers to common questions about when compensation is paid when dividing property

Question No. 1: Is it possible, in the process of dividing property acquired during the marriage, to claim half of the residential country house that the spouse inherited during the marriage?

Answer: No, property received by inheritance is not subject to division between spouses.

Question No. 2: Before marrying me, my ex-husband purchased 3 apartments and 2 cars. Can I get half of the listed property after a divorce?

Answer: No, property acquired before and after marriage is not subject to division in the event of divorce.

? Video tips. How is marital property divided?

The video reveals information about how to divide property during a divorce and what property is subject to division and recognized as joint property of the spouses⇓

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Source: https://kompensacii.ru/kompensaciya-pri-razdele-imushhestva/