Statute of limitations for division of marital property

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 in a 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 point 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!

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!

Therefore, contact our lawyer for a FREE consultation right now and get rid of problems in the future!

Save the link or share with friends

Source: http://allo-urist.com/srok-iskovoj-davnosti-pri-razdele-imushhestva-posle-razvoda/

Terms of division of property of spouses after divorce

Home / Division of property / Terms of division of property of spouses after divorce

Views 5365

Issues related to the calculation of procedural deadlines always raise many questions. Citizens are afraid of missing the deadline established by law, not having time to go to court in a timely manner, and missing out on the opportunity to protect their property or other rights.

Read also: Divorce through court: state duty, documents, deadlines 2020-2021

In this article we will focus on the issue of calculating the period for division of property after a divorce. What is the statute of limitations, from what moment does it begin to count, what to do if the statute of limitations has been missed?

Is it possible to divide property after divorce?

According to paragraph 1 of Article 38 of the RF IC, a husband and wife can share everything that was acquired during family life at any time - while still married or during divorce proceedings, as well as after a divorce.

Therefore, the division of property after a divorce is not prohibited by law. By and large, spouses, as co-owners of property, can continue to jointly own and use residential premises, transport, household appliances and other material assets despite the dissolution of the marriage and even separation.

Moreover, according to lawyers, considering cases of divorce and division of property separately is convenient from a procedural point of view. As a rule, divorce of spouses occurs faster, but proceedings regarding ownership and division of property can drag on for a long time.

Example

The Oleinik couple did not have children, but during their marriage they purchased a one-room apartment with a mortgage loan. After living together for two years, the couple came to a mutual decision to divorce.

In order not to delay the divorce process and to free themselves from marital ties as soon as possible, the husband and wife divorced through the registry office, and decided not to rush into dividing the mortgaged apartment - first pay off the loan in full, and then divide it.

In the article “Division of property during divorce” we mentioned that you can divide joint property...

• voluntarily (the spouses themselves determine who will get what property);
• legally (the property of the spouses is divided equally by the court - on the basis of the law).

Voluntary division of property can occur at any time - whenever the spouses please. As for legal division through the court, time limits are established for it. Paragraph 7 of Article 38 of the Family Code of the Russian Federation determines the limitation period for the division of marital property in court - three years.

Limitation period for division of joint marital property

So, the law establishes a limitation period for the division of joint property - 3 years.

What does it mean? Many people think that a claim for division of marital property must be filed no later than 3 years after the divorce. But it happens that a divorced man and woman continue to use the property acquired during marriage even after the divorce. Sometimes this state of affairs drags on for many years. Does this mean that in such cases, division of property through the court becomes impossible?

In family law there is no direct indication of the date of reporting. But civil legislation gives a specific answer to this question. Thus, paragraph 1 of Article 200 of the Civil Code of the Russian Federation determines that the statute of limitations does not start counting from the moment of divorce. The starting point is the moment when one of the co-owners of the property learned of a violation of property rights.

This means that as long as the property rights of the co-owners are not violated, there are no grounds for filing a claim for division of property, and the statute of limitations is not calculated. Once the property right of one of the co-owner spouses is violated, he has 3 years to file a claim for division of property.

Example

The Terekhov couple divorced through the court, but the issue of division of property was not raised during the divorce process. They agreed that the country house and car remain at the disposal of the wife and children, and the husband gets a city apartment.

4 years after the divorce, Terekhov needed a car that was in the use of his ex-wife. But it turned out that she had recently sold it and spent the proceeds on vacation. Although 4 years have passed since the divorce, the property rights of the ex-husband have only now been violated.

Terekhov has the right to file a claim for division of property within 3 years from the moment he learned about this violation.

Restoring a missed statute of limitations

What if one of the spouses knew that his property rights were violated, but did nothing during the statute of limitations? If the three-year statute of limitations has expired, it will be difficult to obtain an equitable division of marital property. But probably! The court may restore the missed statute of limitations, provided that the omission occurred for a good reason.

The court may recognize as valid reasons , for example...

• State of health (illness or treatment due to which the plaintiff could not go to court, confirmed by a medical certificate);
• Personal circumstances (for example, moving to a new place of residence, imprisonment, military service, work trip);
• Family circumstances (birth of a child, caring for a sick relative, death of a close relative).

The court may consider other circumstances that could prevent the timely filing of a claim as valid reasons (for example, ignorance of the law, lack of knowledge of the Russian language). Each case is considered individually.

The circumstances that served as a valid reason for missing the statute of limitations must have occurred throughout the entire statute of limitations or at least the last six months before its expiration.

To restore the missed deadline, you need to file an appropriate statement of claim, which indicates when you became aware of the violation of property rights and for what reason the deadline for going to court was missed.

The claim must be accompanied by documents confirming a valid reason for missing the deadline (medical certificate, birth or death certificate, court decision on imprisonment, military ID, etc.).

If the court considers the reason to be valid, it will restore the missed deadline.

Time limit for consideration of a claim for division of property

How long does the court process for the division of marital property last?

At least 2 months will pass from the filing of the claim to the date of the court decision. As a rule, the process of considering a case is delayed by 2-6 weeks - court hearings are often postponed.

The court decision is formalized and issued to the parties a week after its adoption. Within one month, the parties can challenge it by filing an appeal. If this does not happen, the court decision comes into force.

Source: http://law-divorce.ru/sroki-razdela-imushhestva-suprugov-posle-razvoda/

Limitation period for division of property

After the separation of spouses, jointly acquired property is divided between them. But for various reasons, not everyone takes advantage of this opportunity right away.

The law allows you to file a lawsuit to protect your interests after some time. The main thing is not to miss the statute of limitations for the division of property after a divorce.

If this happens, you will need to prove that the delay occurred for a good reason.

The concept of limitation of actions

The Civil Code of the Russian Federation defines the limitation period as the time during which a person can file a claim for the protection of a violated right (Article 195 of the Civil Code of the Russian Federation). In general, an entire chapter of the Code is devoted to legal issues on this issue, where statutes of limitations, rules for counting them, conditions for suspension and modification are established.

The period during which spouses can file a claim for division of property is also established by Art. 38 RF IC. The limitation period is similar to that determined by the Civil Code and is 3 years. In general, Art. 9 of the RF IC for determining the time of going to court refers to the RF Civil Code. Therefore, relevant issues are resolved in accordance with civil law.

How is the statute of limitations calculated?

The question of when the limitation period begins is interpreted ambiguously in family law. Judicial practice is such that the date of divorce is often taken as the starting point. However, family law does not directly provide guidance in this regard.

A reference to the Civil Code shows that the limitation period begins from the day when the plaintiff’s rights were violated or he should have become aware of their violation. This is confirmed by Art.

19 Resolution of the Plenum of the Supreme Court of the Russian Federation “On the application of legislation by courts when considering cases of divorce.”

Another option is that a few years after the divorce, one of the spouses finds out that the other has hidden property from him that is subject to division. For example, shortly before the divorce, the husband bought a car, but hid this fact.

Four years after the separation, the woman learned about this from mutual friends and filed a lawsuit demanding the division of the newly discovered property.

The court must accept it, since at the time of purchase the car was joint property, and the statute of limitations begins when the woman became aware that her ex-husband owned the car.

But if the defendant proves in court that the spouse initially knew about the acquisition, but did not declare her claims during the divorce process and division of other property, the statute of limitations will most likely be considered missed and the claims will be denied.

During the consideration of the issue in court, the limitation period ceases to count. If the court refuses to consider the case, further extension of the period depends on the time remaining until its end.

If this period is less than six months, it will be extended to six months.

In all other cases, the deadline for re-applying to court to protect one’s rights will continue to be three years from the moment the person learned of the violated right.

Suspension of the limitation period

The law lists the circumstances during which the limitation period is, as it were, “frozen” (Article 202 of the Civil Code of the Russian Federation):

• the impossibility of filing a claim was caused by external circumstances of force majeure, which the plaintiff was unable to prevent. There is no exact list in the law, but according to established practice, this includes natural and military actions, accidents (fire, flooding), etc.;
• one of the parties is in military service and transferred to military status within the Armed Forces of the Russian Federation;
• the Government of the Russian Federation has imposed a moratorium on the fulfillment of obligations;
• the law or regulation on the basis of which the relationship arose was suspended or repealed.

This list is exhaustive and cannot be added to. But the suspension only applies if no more than six months remain before the expiration of the statute of limitations. If it arose at the beginning or middle of the three-year period, and after its end the plaintiff has six months or more left to go to court, you cannot count on a suspension - the limitation period will not be increased.

The deadline is suspended if the parties decide to take advantage of the opportunity to settle disagreements out of court. While this procedure lasts, the statute of limitations is suspended for the entire duration of the procedure.

Reinstating the statute of limitations

Life may turn out in such a way that a person will not be able to go to court for good reasons (Article 205 of the Civil Code of the Russian Federation). In this case, it is possible to restore the missed statute of limitations, and the interested party will be able to protect their rights.

The law does not provide an exhaustive list of grounds, but the Civil Code states:

• the plaintiff's serious illness;
• illiteracy;
• helpless state.

In addition, there may be other reasons that objectively prevent going to court. For example, a long business trip to another country, the need to care for a seriously ill relative, etc.

The plaintiff will have to prove that the reason that prevented him from filing a claim on time really existed and was valid. If the court considers the arguments not weighty enough, they will refuse to restore the statute of limitations.

Read also: Adoption by a father: his child

In addition, there are separate requirements for when exactly these circumstances arose. A valid reason for absence will be recognized only if it occurred within the last six months.

For example, a person became seriously ill shortly after he learned about the violation of his rights, was ill for a year, and went to court three years after recovery. In this case, illness would not be a valid reason, since after recovery the applicant had another two years to go to court.

But if health problems arose three months before the expiration of the statute of limitations, and the plaintiff spent six months in the hospital, then the court will accommodate and restore the missed period.

A person interested in reinstating the statute of limitations should go to court. The application is submitted at the defendant’s place of residence. Which body will consider the issue depends on the value of the disputed property. If it is less than 50 thousand rubles, the case falls under the jurisdiction of justices of the peace. When the price of the issue exceeds 50 thousand rubles, the claim is filed in the district court.

The application should describe the property: when it was acquired and how much it is worth. In order for a disputed object to be recognized as jointly acquired, it must be indicated that it was purchased during marriage using the common funds of the spouses.

If the plaintiff is afraid that the defendant will try to get rid of the property, they can ask for a lien on the property. In this case, the subject of the dispute cannot be transferred to a third party until the court makes a decision on its further fate.

They also describe in detail the reasons why the applicant did not apply for the division of property earlier and missed the established deadlines. The claim must be accompanied by documents confirming the arguments presented. These can be medical certificates, expert opinions, etc. You can also present, for example, written testimony of witnesses. But they will need to be certified by a notary.

Why you shouldn’t delay the issue of dividing property

Despite the fact that the plaintiff may apply for division of property and restoration of his rights several years after the divorce, it is recommended to resolve property disputes immediately.

Firstly, not all local courts correctly interpret the statute of limitations, and appealing to higher authorities delays the consideration of the case. In addition, in some cases, determining when the plaintiff learned about the violation of his rights can be quite difficult, as well as proving the fact of the violation itself.

Secondly, after some time it becomes more difficult to restore your rights: the ex-spouse may sell the property, it may be damaged, destroyed, etc.

In addition, over time, most things (unless we are talking about art or antiques) lose their value.

As a result, the benefit from a delayed division of property turns out to be less than it would have been if this issue had been resolved earlier.

If it is not possible to divide property at the time of divorce, and the spouses continue to use it together, it is worth recording this in a separate agreement and detailing the procedure for disposing of joint property.

On the one hand, this will confirm: the parties do not waive their rights to this property, which means divorce will not become the starting point when determining the limitation period.

On the other hand, if subsequently one of the owners begins to interfere with the other in the exercise of his rights, these violations will be easier to prove in court.

Source: https://lawinfo24.ru/family/razdel-imushhestva/srok-iskovoj-davnosti-po-razdelu-imushhestva

Dividing property after divorce? You must 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!

Hide content

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.

Sample statement of claim for division of property after divorce Didn't find the answer to your question? Find out how to solve exactly your problem - call right now:

+7 (499) 938-52-17 (Moscow)

It's fast and free!

Source: https://pravilabraka.com/brak-razvod/razdel-imushestva/40-sroki-iskovoi-davnosti-pri-razdele-imushestva.html

Limitation period for division of jointly acquired property

Statute of limitations for division of jointly acquired propertyAverage rating 5 from 1 users

If a man and woman have been married for many years and decide to separate, the matter is rarely limited to a simple divorce.

For spouses whose marriage is dissolved, the question of the need to delineate ownership rights to common property often comes first. When considering such cases, the period given to interested parties to resolve the issue must be taken into account. In this case, it is standard, as in all civil cases.

The only question that raises questions is the order in which this period begins to count. In this matter, interested parties have to rely on the norms, the RF IC, the RF Civil Code and the RF Civil Procedural Code, as well as on the PP of the Armed Forces.

What is the statute of limitations in the division of property?

To determine the meaning of the term “limitation period,” you should refer to Civil Law.

According to the rules, this is the time period during which any individual or legal entity has the right to protect their legitimate interests by filing a claim in court.

In cases of division of property between husband and wife, this will be the period during which the court is authorized to delimit the rights to jointly acquired property.

All interested parties must take into account that the statute of limitations in 2020 allowed by the legal system for the division of spouses’ property is determined, in particular, by the norms of the Family Code of the Russian Federation (Article 38). Here we focus on the standard three years that are relied upon when considering civil cases.

From what date is the statute of limitations considered?

For a long time, the issue of counting the limitation period has caused a lot of controversy. Most judges in their decisions agreed that interested parties have the right to resort to the help of the court and file a claim for the division of jointly acquired property only within the next 3 years after the official divorce.

The Supreme Court put an end to the contradictions. After considering the next case, Supreme Court Resolution No. 15 was issued. The document states that the required period should be calculated from the moment the ex-husband or wife learns that their rights regarding property have already been violated or this fact may happen in the future.

for example, in one case, immediately after the divorce, the former spouse informed the other that he intended to sell the car. this act will be regarded as informing of intentions. This means that the other party has been notified.

It is advisable to inform the ex-spouse of all intentions to alienate property or other transactions with it in writing and in the presence of a witness who, if necessary, can prove the fact of the act carried out.

Read also: How to get a free ticket to a camp for children in 2020

second situation: after the divorce, the former spouses amicably agreed that the wife continues to use the common dacha, because The husband left to live in a neighboring village. four years later, the man returned and found out that his ex-wife intended to sell the dacha. in this case, the countdown of the period begins from the moment of return.

if the statute of limitations has been missed when dividing property

When calculating the statute of limitations for claims for division of property, judges have to rely on rather vague formulations. But in a number of cases, the decision to miss the deadline is quite objective and justified.

For example, after a divorce, one of the parties notified the ex-spouse in writing of its intention to carry out a transaction to alienate property. Over the next three years, there were no reactions to the notification - the deadline is definitely considered missed, because

the party learned about the violation of its right in advance.

The example might be simpler. After a divorce, the spouses remain to live in the same locality. After the divorce, the ex-wife and two children of the couple live in the house, which was purchased during the marriage.

Over the next three years, the man does not share the costs of maintaining the common property and evades paying alimony.

In this case, with a greater degree of probability, when making a decision, the judge will side with the ex-wife and consider the statute of limitations for the division of common property to be three years from the date of official divorce.

If the marriage is not dissolved, the parties have the right at any time to file a claim for the division of the common property of the spouses. Then everything depends on the circumstances.

If there are certain circumstances in the case, the period for submitting demands for division to the court may be extended. Art. 112 of the Code of Civil Procedure of the Russian Federation establishes a list of such circumstances:

• If the interested person missed the deadline for dividing property due to serious illness. For example, a potential plaintiff had to spend a long time recovering in a hospital. When a citizen undergoes treatment in an outpatient setting, this cannot be regarded as a valid reason.
• The interested party has been in a state for a long time, which is regarded as helplessness. This can be either a physical inability to appear in court or a psychological one. For example, a citizen was in a state of alcohol or drug addiction and was declared incompetent for a certain period or was in a state of prolonged psychological shock, etc.
• Lack of legal literacy and poor command of the Russian language. For example, a woman, being a citizen of another state, married a Russian man. After the divorce, I missed the deadline for dividing the joint property of the spouses, because... I didn’t know that according to Russian laws I have the right to half of the objects recognized as joint property. She also could not fill the legal gap, because She spoke Russian sufficiently for this.
• Serious personal circumstances that prevent the possibility of going to court. for example, the interested party was on a business trip abroad for several years. She could find out about the violation, but not react to it in a legal way. being in prison or the need to be constantly present with a sick person also fall into this category of circumstances.
• The inability to independently and quickly find the defendant in the case in order to file a claim can also be attributed to the reasons why the statute of limitations for the division of marital property may be extended. But it is taken into account only on the condition that it is not possible to file a claim at the location of the common property objects.

Restoring the statute of limitations when dividing property

If the plaintiff wants the statute of limitations to be extended in 2020, he will need to submit an application to the court with a corresponding request. The rules for conducting civil proceedings do not provide for the possibility of separating a case to revise the deadlines into a separate proceeding. Therefore, the claim for extension and the petition for partition must be filed jointly.

Is it fair to divide property after a few years? When considering a case, the judge first of all makes a decision on the possibility of increasing the term. If it is positive, then they deal with the common property.

if negative, the second statement remains without movement.

The statement of claim for extension of the period is drawn up in accordance with the requirements of the Code of Civil Procedure of the Russian Federation.

It will need to indicate in detail the reason why the plaintiff was deprived of the opportunity to appeal to the court in a timely manner.

Arbitrage practice

The practice of court decisions in 2020 related to the statute of limitations in cases of division of property is very extensive. Before the Supreme Court ruling in 1998, most judges were guided by the idea that the countdown should begin from the moment of official divorce. Currently, it is quite difficult to accurately predict what decision the judge will make.

Example: the Smirnov family has been married for 15 years. After the divorce, the ex-wife and two children remained in the common house. The ex-husband started another family and went to live in his wife’s apartment.

After 8 years, the ex-wife died and the children - heirs - intended to divide the house among themselves. However, the ex-husband - their father - decided to file a lawsuit with a request to recognize half of the house as his property. The trial court ruled in favor of the defendant.

But after filing an appeal, the claim to recognize part of the house as the property of the former spouse was satisfied.

When dividing jointly acquired property, interested parties must adhere to the period allotted by law for resolving the conflict. Despite the fact that it is not counted from the moment of divorce, lawyers advise not to delay resolving the issue, so that an unpleasant situation does not arise in the future in a few years.

Source: https://razdel-imushhestva.org/sovmestnoe/srok-iskovoy-davnosti.html

Sun clarified the statute of limitations for division of property - news pravo.ru

Illustration: Pravo.ru/Petr Kozlov The couple divorced, but after the divorce they did not divide the property. Is there a chance for one of them to sue for a shared apartment if more than three years have passed since the divorce? Two authorities decided that this was unfair, but the Supreme Court reached different conclusions. Experts note that the date of divorce in this case does not matter, and explain how to calculate the statute of limitations in such disputes.

Dmitry and Maria Subbotin* were married. While married, the couple purchased a three-room apartment in Balashikha, registering it as joint property. The wife also received a one-room apartment under a life annuity agreement. But the couple decided to divorce.

The practice of the Supreme Court recalled what will be needed in disputes over a child in court

After the divorce, the children stayed with their wife in a three-room apartment, and Maria Subbotina rented out the one-room apartment. After the divorce, the ex-husband went to the magistrate's court to divide the rights to the disputed property.

They divided the cars, but the spouses managed to agree on the use of the apartments without going to court, that is, there was no conflict on this matter. Four years after the divorce, Dmitry Subbotin became aware of his ex-wife’s intentions to sell the one-room apartment.

As a result, he went to court to divide it as common property, and leave the three rubles for his wife.

At first instance, the plaintiff was denied, citing the fact that he had missed the statute of limitations. The court noted that Subbotin learned about the violation of his rights in relation to the disputed property in January or February 2014.

This is evidenced by the counterclaims filed during the consideration of the divorce dispute regarding the division of the spouses' common property, after which the spouses entered into an agreement and divided only the cars.

But he submitted his demands to the court four years after the divorce. The decision stood on appeal.

The Supreme Court corrected the error

But the Supreme Court did not agree with its lower colleagues. The Collegium for Civil Disputes, chaired by Judge Igor Yuryev, recalled that the statute of limitations in cases of division of common property is three years.

But it is calculated not from the date of divorce or registration of property rights for one of the spouses, but from the moment when the spouse learned or should have learned about the violation of his right to property (Clause 2 of Art.

9 of the Family Code, Plenum of the Supreme Court No. 15 “On the application of legislation by courts when considering cases of divorce”).

The practice of the Supreme Court figured out which of the heirs is more important

You have three years to file a lawsuit and divide the common property after termination. But they are not calculated from the date of divorce. It should be counted from the moment when the former spouse should have become aware that his rights to common property were being violated, follows from the court ruling (case No. 4-КГ19-19).

The fact that the plaintiff approached the magistrate with a demand for the division of the disputed property confirms the existence of such a dispute at the time of filing the claim for divorce, the Supreme Court agrees. But later the problem was resolved.

Subbotin did not go to court to divide the apartments, because he believed that he and his ex-wife were using them by mutual consent, and became concerned only after information about the sale of the housing.

In such a situation, the deadline was not missed, the Supreme Court made a conclusion and sent the case for a new trial to the court of first instance (the results of the review are not indicated on the court’s website).

Three years will not solve the problem

If you wait three years from the moment of divorce, then all the property will go to the spouse in whose name it is registered - this opinion is widespread among ordinary people. But this is a misconception, confirms family dispute lawyer Elena Ovchinnikova: courts rarely make mistakes in such matters, she believes.

According to Ovchinnikova, other problems often arise in connection with disputes over the division of property. There are three main ones:

1. Determination of the composition of property to be divided.
2. Possibility of derogation from equality of shares of spouses in the interests of minors.
3. Return of property to the joint ownership of spouses in the event of dishonest behavior of one of them, his attempts to exclude property from the joint property.

Practice Everything for the sake of the children: when property is not divided equally during a divorce

In determining the statute of limitations for claims for division of property, there is a stable judicial practice based on the rule of law: the period should be calculated from the day when the spouse learned or should have learned about the violation of his right to common property, confirms Galina Pavlova, managing partner of the Federal rating group Family /Inheritance law group Private wealth management group Insurance law group Arbitration proceedings (major disputes - high market) group Bankruptcy group Corporate law/Mergers and acquisitions Company profile
. As for determining the moment of violation of rights, this issue is resolved by the courts differently: each time depending on the specific situation. It is all the better that the Supreme Court pointed out that the circumstances of the actual violation of rights were not investigated, Pavlova notes: “It is very important for judicial practice that the Supreme Court pays attention not only to the violation of the rules of law, but also to their application, taking into account all the circumstances of the case.”

* – the names and surnames of the participants in the process have been changed by the editors.

© LLC "PRAVODNIK". 2008-2020. Editorial phone number: (495) 645 37 60 Certificate El No. FS 77-31590. Issued by the Federal Service for Supervision of Mass Communications, Communications and Cultural Heritage Protection.

18+

Source: https://pravo.ru/story/214196/