Division of land during divorce

Not only citizens, but also professionals - judges of regional courts are often confused in answering complex questions about the division of property after a divorce. Therefore, the clarification that the Supreme Court gave on one of the “land” disputes may be especially useful to owners of family acres.

The division of common property between spouses often becomes a complex legal problem. Especially if we are talking about the division of not purchased, but once received free land.

After all, in the Soviet years, local authorities allocated plots for gardens and vegetable gardens not for any specific family, but for a citizen, employee of an enterprise or organization. Now the vast majority of summer residents have registered these acres as their property. How to divide them during a divorce? What about common property? But how common is it? According to the documents, one person received it.

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The story that the Supreme Court dealt with began in a trivial way: a citizen filed a lawsuit with the district court. It contained a request - first to dissolve the marriage, and then to divide the jointly acquired property in half between the spouses.

The property consisted of two plots of land, a snowmobile, a car and two houses, one of which was residential and the other unfinished.

 The court of first instance partially satisfied the citizen's claim - it dissolved the marriage and divided the residential building in half. The rest of the claim was denied. The appeal agreed with this decision.

The district court explained the refusal to divide the plots as follows: according to the Family Code, the land in question in the dispute does not belong to the common property of the spouses, since the ex-husband received hundreds of acres under the so-called “gratuitous transaction.”

After such a decision, the dissatisfied former half had to go to the Supreme Court of the Russian Federation, defending their rights. The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation studied the arguments of the dissatisfied plaintiff and said that the applicant was right, and their colleagues made a decision “with significant violations of substantive law.”

In the event of a divorce, the court will divide the free hundred square meters received from the local authorities in half between the spouses

And this is how the high court explained its position. He started with the Family Code of the Russian Federation. There are several articles devoted to the common property of spouses. Thus, Article 34 of the Family Code lists what belongs to this common property of the spouses and what does not apply to it. All income and everything purchased during the marriage, no matter who it was registered to or who contributed the money, is shared.

In addition to things and money, movable and immovable property, shares, securities, shares in capital contributed to credit institutions or other commercial organizations are considered common.

The number of weddings and divorces has decreased in Russia

Property owned by each spouse before marriage will not be considered community property. And the goods received during the marriage as a gift, by inheritance or through so-called “gratuitous transactions” will be personal. This is stated in Article 36 of the Family Code of the Russian Federation.

From the materials of this legal dispute, the Supreme Court saw that the spouses’ two plots were formed from one plot, which the former spouse received back in 1984 from local governments for gardening for “perpetual use.”

By the way, at the time of receiving the hundred square meters for the dacha, the citizen had been in a registered marriage for almost six months.

Later, the man registered ownership of these acres. Over twenty years of marriage, the once single plot of land was divided into two plots for family reasons.

Next, the Supreme Court of the Russian Federation moved on to the Civil Code.

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There, Article 8 states that civil rights and obligations arise, among other things, from contracts and “other transactions, although not provided for by law, but not contrary to it.” And also from acts of state bodies and local governments.

• Thus, the Supreme Court of the Russian Federation concludes, the legislator distinguishes between agreements (transactions), acts of state bodies and local government bodies as grounds for the emergence of civil rights and obligations and does not classify the latter as gratuitous transactions.
• The Supreme Court of the Russian Federation emphasized an important circumstance - the free transfer of land to one of the spouses during marriage on the basis of an act of a local government body cannot be the basis for classifying it as the personal property of this spouse.
• The conclusion of the Judicial Collegium for Civil Cases of the Supreme Court is as follows.

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Since the former spouse’s ownership of the disputed plots of land did not arise on the basis of a gratuitous transaction, the conclusions of local courts regarding the classification of this disputed property as the personal property of the defendant in accordance with Article 36 of the Family Code of the Russian Federation contradicts the provisions of the law. According to the Supreme Court of the Russian Federation, when In such circumstances, the local courts had no grounds for refusing the plaintiff's request. Namely, to divide these land plots equally between the former spouses.

Definition No. 64-KG17-10.

Source: https://rg.ru/2019/04/29/verhovnyj-sud-obiasnil-pravila-razdela-zemli-pri-razvode.html

Division of land during divorce in 2020

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The process of divorce is a procedure that provides not only for the termination of the rights and obligations of the former spouses, but also for the division of property acquired during the marriage between them. The division of a land plot during a divorce, as well as a shared apartment or house, is often the subject of a dispute between former spouses.

Then they have to go to court to get a decision that is binding. What aspects await litigants and how can they be avoided?

Definition of divorce

Divorce or dissolution of marriage is the termination, in the form prescribed by law, of all the rights and obligations that spouses have during the creation of a family, with the division of common property.

The Family Code of the Russian Federation (hereinafter referred to as the RF IC) provides for two types of divorce - in the civil registry office (hereinafter referred to as the Civil Registry Office) and in court. The first option requires consent to divorce by spouses who do not have common minor children or claims against each other.

One month after submitting the application to the registry office, a certificate of divorce is issued. It must be obtained from the registry office even after a trial, since the court only makes a binding decision, but does not issue official documents.

The termination of a marriage is regulated by Chapter 4 of the RF IC, which specifies the grounds for termination of a marriage, the procedure for its dissolution, the moment of termination of the mutual obligations of the spouses and other aspects of this issue.

As for land plots that are jointly owned by spouses and subject to division, their legal regime is regulated by the Land Code of the Russian Federation, which determines the use of the plot and its purpose.

Types of land division

How the land plot is divided during a divorce in 2020 will depend on the decision of the parties. The division of a plot that belonged to spouses on the basis of the right of common ownership can be carried out in two ways. One of them provides for a voluntary agreement of the parties, which establishes the order of division, the size of the shares of each spouse, and so on.

If the parties could not agree on the procedure for dividing the property, then they are forced to go to court.

Regardless of the procedure for dividing the site, new boundaries must be registered with the relevant government agency.

The division of a privatized land plot during a divorce depends on the time of privatization. That is, it is important to know whether one of the spouses owned this plot before marriage or whether ownership of the land was formalized during marriage.

Voluntary section

Voluntary division involves the conclusion of a written agreement in which the parties indicate all the conditions, and also determine further rights to the property, taking into account the shares of the land plot.

This method is the most peaceful and fastest compared to legal proceedings.

It does not require the cost of assessing property and paying state fees when filing a lawsuit, and also eliminates the need to go to court and interact with the parties to the lawsuit.

However, since in this case, in practice, it is possible to fulfill one’s obligations in bad faith and not respect the boundaries of the site, it is better to draw up such an agreement in writing and have it certified by a notary.

Judicial section

The division process, the allocation of shares, as well as the determination of monetary compensation take place through the court if the spouses could not agree on their own how to divide the land plot.

The judicial procedure begins with the preparation and submission of a statement of claim and other necessary documents, collection and presentation of evidence. Subsequently, it will be necessary to participate in court hearings, an integral part of which is the assessment of the land plot, conducting an examination, and the like.

The judicial process determines the size of the parties' shares, the procedure for using property, and the division of outbuildings. However, before a decision is made, the parties will have to face material costs.

You should also be prepared for the fact that the division process may take several months.

How to file a claim

Art. 38 of the RF IC provides for the division of joint marital property during marriage or after its dissolution. If a voluntary agreement is not reached, then the division is carried out in court.

Claim requirements

The statement of claim is a procedural document of the established form. Failure to comply with the form will result in the application being returned within the time limit set by the court.

The statement of claim for the division of a land plot must contain the following information:

• name and address of the judicial authority to which the claim is sent;
• personal data of the spouses, information about their marital status;
• data about third parties;
• document title;
• information about the land plot regarding which the dispute is ongoing;
• information about the violation of rights and the cause of the dispute, the reasons for the impossibility of a contractual resolution of the issue, other circumstances that may affect the court’s decision;
• substantiation of the plaintiff’s claims for part of the land plot, size, monetary compensation to the other party;
• data on newly formed areas;
• links to the legislative framework and judicial practice;
• statement of claims;
• date and signature.

The application is accepted both in handwritten and printed form, and must be drawn up in an official business style.

Package of documents

The number of statements of claim that are sent to the court depends on the number of parties involved in the case. The minimum number of copies is three: for the plaintiff, defendant and judge.

Each application must be accompanied by the necessary documents, namely copies of:

• passports of the parties;
• certificates of marriage and/or divorce;
• title documents for the land plot;
• technical, cadastral passport for the land;
• appraisal documents;
• receipts for payment of state duty. Its size depends on the price of the claim, which is calculated depending on the value of the share for which the plaintiff makes a claim. In accordance with Art. 39 of the RF IC, shares before the division of property are recognized as equal.

Impossibility of dividing the plot

Allocation of a natural share in a land plot is not always possible. In this case, the plots are recognized as indivisible and cannot be divided either by agreement or by court decision.

Civil and land legislation stipulate that the main condition for divisibility is the criterion of the possibility of separating from one plot several others, which will have the same regime of use as before the division.

Another criterion is compliance with the size of the minimum provision rate. Each site has its own standards according to its intended purpose. In addition, additional rules may include the presence of a separate entrance, access of both spouses to common lands, and the absence of real estate that cannot be divided.

The criteria for dividing a plot depend on the legal (right to the plot and the number of owners) and technical components (construction, environmental and sanitation standards).

Before making a judicial division of a plot, a land survey should be carried out, which establishes the possibility or impossibility of division, as well as the best option for the technical division of the plot.

If, based on the results of the examination, the plot is recognized as indivisible, then the spouses are offered alternative ways to divide it:

• one of the spouses - a plot of land, and the other - property that is equivalent to its value, or monetary compensation.
• leave the site in common ownership with subsequent determination of the rules for its use.
• sale with subsequent division of funds equally or, by agreement, in unequal parts.

Division of land with buildings

It becomes quite difficult to divide a plot of land and a house during a divorce if there are residential or non-residential buildings on the territory. In such a situation, completely different section rules apply.

• When an agreement is reached, the house and other buildings are divided proportionally between the spouses, separate entrances are allocated, territories are determined, and so on. However, practice shows that the possibility of such a division is minimal
• The court determines the procedure for using the land plot, taking into account the share of each spouse and the division of the buildings located on the plot.
• If there are unfinished structures, the court divides the site based on the following criteria:

• stage of construction and readiness of construction;
• technical condition;
• Possibility of completion after partition.

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Taking into account these circumstances, the court makes a decision on the division of an unfinished house or a building for another purpose in proportion to the land shares of the spouses or equally. Common ownership ceases, and instead a shared right to part of the building arises.

Let's sum it up

According to the RF IC, divorce is possible in two ways - in the registry office and in court. When dividing the common property of the spouses, which includes a land plot, it is necessary to either agree on the procedure for using the designated and allocated shares and enter into an agreement, or go to court to obtain a competent decision.

Some plots of land cannot be divided. In this case, the legislation provides several options for their division. If there are buildings on the site (house, outbuildings), then the division rules will differ from the usual procedure.

Many people wonder how to avoid the division of a land plot during a divorce. To do this, it is enough to just agree with the other party on its use peacefully, by concluding and notarizing the appropriate agreement.

Section of the land plot: Video

Source: https://zakon7ya.ru/vse-o-brake/rastorzhenie-braka/razdel-zemelnogo-uchastka-pri-razvode.html

Division of a land plot upon divorce of spouses: the procedure for dividing land between spouses after a divorce

Division of joint property between spouses is a common practice during divorce. Not only movable things and an apartment are divided, but also the land plot on which there is a residential building. When distributing the plot between husband and wife, one must be guided by land, civil and family legislation.

In the article we will consider the features of the division of land between spouses, in which cases it is possible to divide a plot and in which it is impossible, what is the procedure for distributing property by agreement of the parties and through the court.

Features of the division of land between spouses

In accordance with the RF IC, a land plot owned jointly by spouses is divided in half . If a husband and wife make a division by mutual consent, they have the right to change the ratio of shares. The agreements reached are recorded in the agreement.

In the event that a dispute arises between them, the distribution of property is carried out through the court. One of the spouses submits an application containing a request to allocate his share in kind.

Land that is not subject to division:

• purchased by one of the spouses before marriage registration;
• transferred to the husband or wife during the period of marriage under gratuitous transactions;
• acquired by one of the spouses at the actual end of family relations during marriage;
• purchased during the marriage relationship at the expense of the personal funds of the husband or wife, which were received by him before the registration of the marriage or through a gratuitous transaction.

In the case when the plot belongs to one spouse, and the second, at the expense of personal funds, was engaged in its improvement and paid for repair work, he has the right to part of the property. He receives a share corresponding to the funds he spent, or compensation in cash equivalent.

If the spouses have signed a marriage contract, then the division of the land will be done in accordance with the agreements reached.

If there are buildings

The division becomes more complicated if there are buildings on the site. The best solution is to divide the house in half with separate entrances, the land around it and other buildings.

In practice, it is not always possible to make a division according to this scheme. The court has the right to transfer the plot with the buildings on it to the shared ownership of the husband and wife, defining the procedure for their ownership and use.

It happens that you need to divide land with an unfinished building. The court establishes the following points:

• what stage is the construction at?
• what is its completeness;
• is it technically possible to divide the building;
• Is it possible to complete the construction after the partition?

If all questions are answered positively, a decision is made on the distribution of property between the spouses. Each of them becomes an independent owner of his share.

Example 1. I.N. Voronov after his divorce from S.A. Voronova went to court for the division of the land with the house located on it. He indicated that the property was purchased during the marriage. He asked to be recognized as the sole owner and to pay monetary compensation to his ex-wife. S.A.

Voronova did not agree with the demands and explained that the property was purchased with her father’s money and registered in her name. She did not provide evidence that the funds were given to her. Believes that if the claim is granted, the decision will not be enforced. I.N.

Voronov has not worked for several years, does not help children, and has irregular income. The court decided to distribute the property between I.N. Voronov and S.A.

Voronova in half, established common shared ownership with the definition of each share (Appeal ruling of the Primorsky Regional Court dated 06/05/2017 in case No. 33-5485/2017).

If the land is privatized

When dividing a plot acquired as a result of privatization, the date of registration of ownership is taken into account. Also taken into account:

• date of registration of marriage;
• structures located on the ground;
• the fact of ownership of buildings jointly by husband and wife or one of them.

If the plot passed to one of the spouses before the marriage was registered , and privatization was carried out after, then it is regarded as the personal property of the husband or wife. In the event that during the period of privatization one of them is given a share, the property is recognized as shared.

An allotment received from the municipality and privatized during a marital relationship is considered joint property. Therefore, the division of a plot of land is carried out according to general rules.

As for the structure, it is taken into account at whose expense it was erected. If joint funds are used, the structure is recognized as common property. A structure erected with personal funds remains the property of the spouse who incurred the expense.

Example 2. A.G. Galkin applied for division of property after his divorce from I.S. Galkina. He asked to distribute joint property: land, country house and non-residential buildings. The court found that the property was privatized on I.S. Galkin before registering marriage relations. The garden house and other structures were built during the same period. A.G.

Galkin indicated that joint marital funds were used to decorate the house and purchase building materials. This resulted in an increase in property values. The court refused to divide the privatized land and garden house. He recovered in favor of the plaintiff the costs of inseparable improvements to the country house and landscaping of the site (Appeal ruling of the St. Petersburg Court dated 12.10.

2016 in case No. 33-20435/2016).

If the plot is rented

Sometimes spouses rent a plot of land. During the period of family relations, they build utility buildings on it and grow agricultural products. After a divorce, the question arises of how to divide property.

Since the land is leased, it cannot be divided. The contract concluded with the municipal authorities is terminated. Each spouse signs a new agreement for part of the plot. An option is possible when the land is transferred completely to the ownership of one of them.

Structures built on a site using common money are joint property. Their division is carried out according to the general rule.

Example 3. During the marriage of wife E.A. Khamov and T.A. Khamov rented land for a garden plot. Using joint funds, they built a dacha, planted the plot with fruit trees, and planted a vegetable garden. After the divorce, the question arose about the distribution of property between them. They agreed that the plot would be leased to the husband.

Then the contract was reissued at the municipal administration. A conflict arose regarding the division of the dacha and the distribution of costs for improving the property. To resolve it, they filed a lawsuit. The judge recognized the garden house as joint property and allocated 1/2 share to each spouse. Landscaping costs were recognized as general family expenses.

The wife was awarded compensation amounting to 1/2 of the amount of expenses.

In what cases is land subject to division?

Property can be divisible and indivisible. Only divisible areas can be divided. To do this, you must meet the following conditions:

• the size of the new plot must be within acceptable values;
• boundaries must comply with the norms established by law;
• the section should not impede the use of the building located on it;
• after distribution of property, it must remain possible to use it for its intended purpose;
• new borders should not create obstacles for third parties.

Each region sets its own standards for dividing plots. Thus, in the Moscow region the minimum plot size is 2 hectares. The dacha plot should not be less than 0.06 hectares, land used for gardening purposes - 0.04 hectares.

After dividing the land plot, each spouse will be able to register their part in the cadastre and use it freely.

If the second spouse, in return for the share, requested compensation for its value, it will be calculated based on the size of the left allotment.

When can a plot of land not be divided?

It is not always possible to divide the allotment and allocate a share in kind, since there are indivisible plots . These include lands with a size below the minimum standard.

Spouses have several options for dividing joint property:

• sell the property and split the money in half;
• transfer the plot to one of the spouses with payment of compensation to the second;
• preserve the land in shared ownership, defining the procedure for use and ownership;
• donate your share to the other party.

To establish the possibility of division, a land survey should be carried out. The specialist will offer possible options for property distribution.

The procedure for dividing land

The division of land can be carried out by agreement of the parties or in court.

By agreement of the parties

If the husband and wife come to a compromise, then a separate agreement should be concluded. When making an agreement, the interests of one of the parties must not be infringed.

You must adhere to the following algorithm:

• find out whether the plot belongs to the divisible category;
• agree on the method of distribution of property;
• choose a lawyer who specializes in drafting separation agreements;
• to sign an agreement;
• undergo notarization;
• register newly arisen rights in Rosreestr.

Spouses also have the right to transfer property as a gift to their children.

Sample agreement on the division of land between spouses

Drawing up an agreement yourself may lead to legal errors, so it is recommended to seek the help of a family law lawyer.

Judicially

If a joint decision cannot be reached, it is necessary to contact the court.

Which court should I go to?

Documents are submitted to the court at the defendant’s residential address. The rules for applying at the location of the property in this category of cases are not applicable.

How to write a claim?

The claim must be drawn up in accordance with the requirements established by Articles 131-132 of the Code of Civil Procedure of the Russian Federation. If they are violated, the court will leave the application without motion until the shortcomings are eliminated.

In the statement of claim you must write:

• name of the court;
• information about spouses;
• information about divorce;
• data on the disputed area (grounds for acquisition, individual characteristics);
• information about the reasons for the dispute;
• justification for the division of property;
• data on new boundaries and areas;
• references to legal norms;
• demand for partition;
• list of applications;
• date and signature.

The text is written in an official business style of speech, must be concise and clear, and contain information about the facts.

Sample claim for division of land between spouses

The site should be described in detail, indicating the area, cadastral number, boundaries with reference to the coordinates of turning points, category and permitted use of land.

It is necessary to clarify the time and method of acquiring the plot, its cost. In the petition part, it is necessary to clearly formulate how to divide the land. If, instead of allocating a share in kind, compensation is requested, the amount should be indicated.

In the case where the allotment is not subject to division, you need to justify your position and propose solutions.

What documents should I attach?

The statement of claim is submitted to the court office in the number of copies according to the number of parties. An additional copy along with the documents is handed over to the judge.

The documentation package includes:

• applicant's passport;
• marriage and divorce registration certificates;
• land documents confirming the transaction, privatization, inheritance;
• cadastral and technical documents for the site;
• evidence of expenses for property improvements;
• appraiser's report;
• receipt of payment of state duty.

Witness testimony may be accepted as evidence.

State duty amount

For filing a claim, a state fee is transferred to the federal budget. Since the claim for division of the allotment is a property claim, the amount of the mandatory fee is calculated based on the price of the claim . The value of the share claimed by the applicant is taken into account.

To determine the value of the claim, a property valuation may be carried out. As a result, the cadastral or market value of the property is established.

Calculation of the state duty is carried out according to the rules of paragraph 1 of part 1 of Article 333.19 of the Tax Code of the Russian Federation.

Read also: Change your last name at your own request: for a woman, for a man, in another city

In addition to the state duty, you will have to pay for the services of a lawyer, land management work, cadastral documentation, and appraisal work.

Time limits for consideration of the dispute

The dispute is considered in court for 2 months. If an examination is required, it can be extended to a year. After the decision is made, the spouses apply to Rosreestr to register the rights that have arisen.

Let's sum it up

Thus, only divisible plots are subject to division . If the allotment cannot be divided, the second spouse will receive monetary compensation.

In addition to the land, the husband and wife share the buildings located on it, as well as expenses incurred for the purpose of improvement. The husband and wife can agree to whom and in what amount the property will be transferred.

In this case, an agreement is signed. In case of conflict, the dispute is resolved in court.

Source: https://glavny-yurist.ru/razdel-zemelnogo-uchastka-pri-razvode.html

Division of land upon divorce of spouses

Nowadays, almost every family strives to purchase a home or a country house with a plot of land. Someone buys a house in a village with a vegetable garden, someone buys a huge cottage with a personal garden, and someone buys a dacha on the legal six acres.

And if family life suddenly does not work out, the question arises of how to correctly divide the land during a divorce.

The issue of such a section is complex, and family legislation alone will not help resolve it; you will need to seek clarification from the norms of the Land and Civil Codes of the Russian Federation.

Land plot: divided - not divided

Article 11.1 of the Land Code of the Russian Federation defines the concept of a land plot as part of the surface of the earth, the boundaries of which are established in accordance with the legislation of the Russian Federation.

The boundaries of land plots in the area are established by the land management process. Land plots are described and individualized in accordance with the procedure of maintaining the Land Cadastre, and each of them is assigned a personal cadastral number as a result.

Land plots, depending on the possibility of their division, are:

The first are those whose size corresponds to the minimum standards for the provision of plots of a certain purpose for a specific region of Russia. Indivisible – land plots that do not comply with such standards and therefore cannot be registered in the cadastral register.

The division of a land plot during a divorce will be possible only on the condition that it is divisible. Article 1182 of the Civil Code of the Russian Federation clearly defines the sign of divisibility of a land plot - when dividing it, each part must fit within the framework of the minimum standards for the provision of plots for the corresponding intended purpose.

When dividing plots of land, courts must take into account the size of the parties' shares, which are provided for in the right of common ownership. Only as an exception is it permissible to deviate from this. And then, in this case, the disproportionality of the division is compensated by a monetary payment.

These standards are defined differently in each region of the Russian Federation.

The minimum sizes of plots of land provided for ownership by residents of the Moscow region are determined by article one of the Law of the Moscow Region No. 63/2003-OZ of June 17, 2003.

According to it, the smallest land plot size for peasant or farm households must be at least 2 hectares, for gardens and summer cottages - at least 0.06 hectares, for vegetable gardens - at least 0.04 hectares.

If the land plot that the spouses want to divide during a divorce meets the established standards, then no problems should arise regarding its division. If the plot of land is indivisible, then the court will not divide it, and the cadastral office will not register it. But the spouses have three options:

• sell this plot of land entirely and divide the money in half,
• one spouse to refuse to allocate a share in this plot of land free of charge or to demand compensation from the second spouse equal to the value of their part,
• leave the plot in joint ownership and establish a regime for its use by each spouse.

Even a divisible plot is not always divided

When it is established that the land plot complies with all standards and sizes, it is necessary to establish how it came to be owned by the spouses and whether it will be common.

In case of voluntary division, taking into account the general provisions on freedom of contract, the parties involved may not adhere to the size of their shares in the land plot.

If it was inherited by one of the spouses, was given as a gift, privatized by him, or purchased before marriage, and, moreover, during the period of joint family life it has not been ennobled or increased in value, then the question of dividing it does not arise. The second spouse should not have any claims on it; it will be personal property.

Another question is if the land plot was inherited (donated, privatized) in a neglected state, and during the marriage and the joint efforts of the spouses, a garden, a house, and buildings appeared on it, which increased its value several times. Then it is worth fighting for the division of the inheritance received in marriage during a divorce (you can find out more about this in our article - https://divorceinfo.ru/2252-razdel-nasledstva-pri-razvode-suprugov)

How to divide buildings on a plot of land

An important condition for the divisibility of a land plot is regulated by Art. 1182 of the Civil Code of the Russian Federation. Where it is said that when dividing a plot of land, each part of it must comply with certain standards for the provision of designated plots; division less than these standards is not permissible.

Article 1 of the Land Code of the Russian Federation speaks of the unity of the land plot and the buildings located on it. Therefore, any difficulties when dividing a house built on a plot of land rarely arise. The main condition is that this plot be divisible. Then the house can be divided.

According to family law, each spouse has rights to half of it.

Even if the house is not completely built and is not registered as a residential property, it will still be classified as real estate as an unfinished construction project. The only condition is that this is not a foundation and half a wall, but at least a building with a finished floor, walls and roof. Between the spouses, it, like the land plot, will be divided in equal shares.

By agreement or by court

Spouses can divide land during a divorce both by agreement and in court. This depends on the voluntary consent of both to the division.

If divorcing spouses amicably agree and enter into a settlement agreement during a divorce on the division of property or the allocation of shares in common property, then they must make sure that the land plot is divisible.

An agreement on the voluntary division of a land plot during a divorce is drawn up in writing and must be agreed upon and endorsed by a notary. After all, on the basis of this document, rights to shares of the land plot will be registered.

In the case of dividing a plot of land through a court, the court hearing will also give priority to the question of the divisibility-indivisibility of the plot; it will be considered how the spouses acquired ownership rights to this plot, what buildings are on this plot, and what their status is.

A cottage, residential building or dacha can be divided in kind, if for the share of each owner-spouse it is possible to allocate an isolated area (part of the house) with separate entrances.

Often, courts resort to ordering a land management examination, the results of which help resolve the dispute between spouses about the division of land plots in the most qualified manner.

If the plot is divisible and both spouses have the right to allocate a share in it, then the court often decides to divide it between the husband and wife in equal shares. If it is not possible to divide the plot of land, then the court leaves it in the joint ownership of the spouses, determining the procedure for its use.

The division of shared property has its own nuances, and the interests of all parties must be taken into account, especially if minor children remain with one of the spouses. Read more about the division of shared property during a divorce on the page.

The spouses themselves will be able to decide the future fate of the land plot by coming to a consensus on its division and concluding a settlement agreement.

How to formalize the division of land during a divorce

To re-register parts of a land plot as their property, spouses must provide a package of the following documents to the Federal Service for State Registration, Cadastre and Cartography, or simply Rosreestr:

• an application of a certain sample from each of the spouses for state registration of rights to shares allocated in a land plot, specified in an agreement or court decision on the division of property,
• spouses' identity passports,
• an agreement on the division of common property or on the allocation of shares in the right to a land plot (if it is voluntarily concluded between spouses),
• a court decision on the division or allocation of spouses’ shares in the right to a land plot (if the case of division was considered in court),
• marriage document or a copy of the marriage registration document (to confirm that the plot was acquired during the marriage),
• certificate of divorce (if the divorce has already been registered),
• documents on ownership of the land plot,
• documents confirming cadastral registration of buildings located on the site,
• receipt of payment of state duty.

The application is reviewed by Rosreestr within ten working days, after which the spouses will be able to receive documents confirming state registration of their right to a legal share of the land plot.

Source: https://divorceinfo.ru/2300-razdel-zemelnogo-uchastka-pri-razvode-suprugov

Legal features of the division of land during divorce

A plot of land, which is considered the joint property of the spouses, like other marital property, is subject to division upon divorce.

A distinctive feature of divorce cases involving the division of matrimonial property, where plots of land appear, is the need to be guided when dividing not only by family law, but also by the provisions of the Russian Land Code. In addition, divorcing spouses will most likely have to evaluate the land to be divided.

How land plots are divided during divorce

The division of a plot of land belonging to divorcing spouses, as well as the division of other joint property, can be carried out in two ways:

• by agreement of the spouses;
• through the court.

In the first case, the spouses who have agreed on the procedure for dividing the land should draw up an agreement. The signed agreement specifies all the conditions for dividing the plot of land on which mutual agreement was reached.

This document will allow you to accurately determine the rights of the parties to shares of the land plot. As practice shows, this option for dividing a plot of land between divorcing spouses is less expensive and complex compared to judicial division.

However, here too there are a number of controversial issues and legal nuances, so before signing an agreement it is better to consult with an experienced lawyer specializing in this particular legal area.

If the divorcing spouses cannot reach an agreement regarding the division of a plot of land during the negotiation process, the procedure for allocating a share of this plot or dividing it will be carried out through the court. At the same time, the main rule, following from the Family Code, which the judge is guided by when dividing, is that joint land should be divided between the owner-spouses into equal shares.

Quite often, according to judicial statistics, the division of plots of land during the divorce of spouses occurs precisely through going to court. Such a judicial procedure also has a number of difficulties and often takes a long time.

• In addition, the division of property in courts, as is known, causes a lot of trouble for the parties, since both the plaintiff and the defendant need to become at least a little familiar with family and procedural law or consult with a specialist.
• Then follow the mandatory procedures - collection and transfer of certain documentation to the court office, competent drafting of a statement of claim, participation in court procedures and other procedural actions.
• Regardless of whether the division of a plot of land was carried out by agreement of the spouses-owners or in court proceedings, it is subject to further state registration.

Basic principles of dividing a joint plot of land through the court

Judicial practice has determined the fundamental principles of dividing a plot of land considered the joint property of divorcing spouses:

1. When resolving marital disputes regarding a land plot that is jointly owned, in addition to the provisions of the Family Code of the Russian Federation, one must also be guided by the civil and land legislation of the Russian Federation;
2. The allocation of a plot of land to one of the divorcing spouses for the right of perpetual use or lifelong inheritable ownership during the period of marriage and the further privatization of this plot during the marriage lead to the emergence of common joint ownership of both spouses for this plot of land;
3. The privatization procedure, also carried out during the marriage of divorcing spouses, but in relation to a plot of land that was in use by one of the spouses even before the registration of family relations in the registry office, no longer automatically leads to the emergence of common joint marital ownership of the specified land plot. Here, the emergence of the right to a plot largely depends on the ownership of the buildings erected on the land and the time of their construction - before privatization, during its process, or after the completion of the privatization procedure.

Read also: Provision of plots to large families in 2020-2021

Features of dividing a plot of land

The division of any real estate, including plots of land, in kind is considered one of the legal ways of terminating common property rights, since in the place of one object of right, during division, two or more new immovable objects of ownership arise.

As already mentioned, the court must proceed from the equality of shares when dividing a plot of land between the spouses-owners . However, in nature it is not always possible to make a division.

According to Article 252 of the Russian Civil Code, if the participants in the common property do not reach agreement on the method and (or) conditions for dividing the common plot of land or allocating a share, the property participant has the right through the court to demand the allocation in kind of a certain share from the common property.

Consequently, when dividing plots of land, the judge must proceed from the size of the divorcing spouses’ shares in the right of matrimonial property. Deviation from the size of shares is possible only as an exception. In such an exceptional case, the disproportionality of the division is usually eliminated by the payment of certain monetary compensation.

If the division of a plot of land occurs by agreement of the spouses-owners, they have the right to establish other conditions for the division and divide their plot into unequal shares.

Regardless of the existence of an agreement between divorcing spouses, division of a common plot of land is possible only if it is divisible. The possibility of divisibility of a plot means the legal possibility of forming from parts of this land independent plots of land that have the same permitted regime of use as the land before the division.

One of the main conditions for the divisibility of land plots is formulated in the Russian Civil Code (Article 1182): during division, each allocated part of a plot of land must comply with certain minimum standards for the provision of land plots for a given purpose. If at least one part of the division is less than these norms, then the division is not permitted.

The possibility of legal division of land, in addition to the size of the plot, also depends on the number of its owners, the type of rights to the plot and a number of other conditions of a technical and legal nature.

Thus, when dividing, it is necessary to take into account the need to comply with red lines, development control lines, and the requirements of urban planning regulations, designed to provide conditions for the further functioning of individual parts of the site as independent real estate objects.

Therefore, sometimes, when dividing a plot of land, divorcing spouses have to obtain a land survey report indicating possible division options, taking into account compliance with construction, sanitary, environmental and other important norms and regulations.

If a plot of land owned by divorcing spouses is recognized as indivisible, and during its division it is not possible to comply with the minimum dimensions legally provided for the corresponding intended purpose, several division options are possible.

For example, if a plot of land goes entirely to one spouse-owner, then the other spouse receives a certain monetary compensation. Another option is that the plot of land continues to remain community property according to the documents, but the divorcing spouses determine the rules for using the land.

However, as is known from practice, the easiest way to divide an indivisible plot is to sell it and further divide it between the spouses who own the money on the basis of the principle of equality or by mutual agreement.

Division of land with buildings

When dividing a plot of land, the issue of dividing various buildings - houses, cottages or other buildings erected on a common plot of land - is often raised.

According to current legal norms, when dividing, the requirement of the unity of fate of the land plot and the buildings located on it must be met. Therefore, a situation where one of the divorcing spouses receives the entire plot of land, and the other receives a house on this plot, is impossible.

Most often, in practice, judges have to divide a plot of land on which there is also a divided house, cottage, other buildings or an unfinished household.

A residential house, cottage or dacha can be divided in kind if for the share of each spouse-owner it is possible to allocate an isolated part of the house (cottage) with separate entrances. At the same time, the court can also make a real division of a plot of land that is in joint marital ownership, of course, taking into account the divisibility of the plot itself.

If it is not possible to divide the house in kind, the court, taking into account the requirements of the divorcing spouses, can transfer this house into their shared ownership and then determine the order of use.

If a plot of land belonging to the spouses cannot be divided in kind, or the land belongs to the spouses under a different right (that is, not by right of ownership), the court may establish the procedure for using the land plot in accordance with the spouses’ shares in the ownership of the divided house.

The section of unfinished homeownership also has certain nuances. When considering such a case, the judge, in order to determine the possibility of dividing unfinished construction, takes into account the degree of readiness of the unfinished house, the possibility of dividing it in kind, as well as the possibility of completing the house after division.

After the division of a plot of land between spouses, the right of common marital property ceases.

Source: https://razvodimsja.com/razdel-imushhestva/razdel-zemelnogo-uchastka/suprugov-pri-razvode.html

Division of a land plot upon divorce of spouses, division of land

The division of property during a divorce is not only an unpleasant, but also a complex legal procedure. The division of land upon divorce causes particular difficulties. Both spouses are accustomed to using property jointly and consider it common, but whether this is actually so will be decided by the court.

In addition to the Civil Code of Russia (Civil Code of the Russian Federation) and the Family Code, which are the main legislative acts in resolving family disputes, the division of a land plot during a divorce also occurs according to other legal acts.

In particular, according to the Land Code (Land Code of the Russian Federation), which establishes its own rules and restrictions.

If you do not know your rights well and have doubts about dividing a plot of land, seek help from professionals.

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General principles for the division of plots upon divorce

The Russian Civil Code establishes that the shares of husband and wife in jointly acquired property are equal. The same approach applies to land plots. However, determining what property was acquired during marriage is not so simple.

The division of marital property is accompanied by disputes related to the fact that each claims a larger share. Finding out which plot of land is jointly owned is not easy.

For example, one of the spouses received a plot of land before marriage, but privatized it after the marriage relationship was formalized.

Judicial practice shows that such a plot is the personal property of the spouse who received it and is not subject to division.

The second similar case: a plot of land was transferred by municipal authorities free of charge to one of the married spouses. According to the Civil Code of the Russian Federation, property received as a result of gratuitous transactions is the personal property of its recipient.

But the courts refuse to consider such a transfer of land as a gratuitous transaction. They separate the transfer of property by transaction and by government acts.

As a result, such a land plot is recognized as the joint property of the spouses and is subject to division.

In addition to the intricacies of property rights, when dividing land after a divorce, problems arise that are determined by the Land Code. Not every area can be subdivided.

If after the division it turns out that the new plots cannot be used for their intended purpose - for example, there will be no approaches or entrances to them - the division of the land plot will be impossible. Then the plot can be retained in the joint ownership of the former spouses or transferred to one of them.

In the latter case, the second spouse is entitled to compensation for the part of the plot he lost.

In general, the rules are:

1. A plot of land jointly owned by spouses is subject to division in a ratio of 50 to 50.
2. Property received by one of the spouses before marriage or as a result of gratuitous transactions (donation, inheritance, etc.) during marriage belongs to him personally. Such plots cannot be divided upon divorce.
3. The Civil Code of the Russian Federation allows the court to decide to recognize the share of spouses as unequal. Typically, this will involve the other spouse receiving compensation from other property or money, but this is not a hard and fast rule.
4. The characteristics of land plots, determined by the Land Code of the Russian Federation, may prevent their division. When deciding to divide a plot of land during a divorce, it is often necessary to conduct an examination to determine the possibility of such division.
5. If there is a marriage contract between the spouses, and it establishes rules for dividing the plot that differ from the generally accepted ones, then they are guided primarily by the contract.

The division of land after divorce is a complex legal procedure. Very often it requires the involvement of lawyers in the case.

Options for dividing a plot of land during a divorce

Former married couples always have two options for dividing property during a divorce, including land plots. The ex-husband and wife can agree and come to an agreement according to which they will divide the existing land plot. If the agreement does not take place, the only way to divide the property is to file a lawsuit in court.

Division of land by agreement of the parties

Sometimes ex-spouses manage to maintain relatively normal relations, which allow them to negotiate and come to an agreement. This is how a plot of land can be divided. By agreement of the parties, property can be divided in any proportions. For example, one can get a city apartment, and the other can get a house in the suburbs with a plot of land.

The law does not require mandatory notarization of an agreement on the division of property of a former couple. However, it is better to involve a notary in the case. The views of former partners may change, so new demands and proposals are possible. Valuable property disputes are complex and costly. Therefore, it’s worth making sure you’re safe.

Having reached an agreement on the rules for dividing the land plot, the former spouses must register the parts due to them as personal property. Only after this can we consider that the land division is completed.

True, even in this case there remains a possibility that the second party to the agreement will change his mind and still go to court demanding division.

Perhaps he will demand that the property, including the land, be divided in a new way.

Division of land plots through the court

Former couples who divorce rarely manage to maintain a decent relationship. Therefore, very often heated disputes arise about the division of land after a divorce.

If an agreement on the division of property is not reached, and it is required to divide it, the only way is to file a lawsuit in court.

According to the rules, you should go to the court at the place of registration of the property, that is, to the court of the district where the property is located.

To go to court about the division of property during a divorce, you must draw up a document called a claim. It is drawn up in free form, but generally accepted rules of office work should be taken into account. The header of the document indicates: the name of the court, details of the plaintiff and defendant, ways of contacting both. The number of copies of the claim is according to the number of parties, plus 1 copy for the court.

In the main part you need to indicate:

1. Information about the property to be divided: its location, size, who owns the plot, the presence of buildings on it, etc.
2. The reasons why the plaintiff demands to divide the property: injustice in the allocation of shares, significant personal investments, any other circumstances that prompted the plaintiff to go to court.
3. Requirements. They are formulated as a request to the court: “I ask the court to divide the plot...” The requirements must be clear and specific. There is no need to ask the court to restore justice and settle the situation. You need to ask for the division of the land during a divorce in specific proportions. If, instead of property in kind, the plaintiff wants to receive monetary compensation or other property, then it is necessary to indicate the amount or specific property.
4. Justification of requirements. In this part of the claim, it is necessary to indicate the circumstances that, in the plaintiff’s opinion, make his proposed method of dividing the plot fair. The presence of these circumstances requires documentary evidence: references to laws, various certificates, checks, extracts, and possibly confirmation of the circumstances by witness testimony.
5. Information about the examinations carried out confirming the possibility or impossibility of dividing the plot during a divorce.

At the end of the statement of claim there is a list of attached documents, a date and a signature. Drawing up a claim, especially the competent execution of that part where the plaintiff’s demands for division of property are substantiated, require serious legal knowledge and experience.

The court in Russia is adversarial. This means that the arguments of both sides of the case are heard, and the side that better confirmed its legal position and was more convincing wins. Even if you have inner confidence that you are right, you can lose the trial. We recommend that both parties to the case of dividing the plot hire lawyers.

• Sources:
• Division of land.
• Property division.
• Division of marital property.
• Determination of shares of spouses.

Source: https://rtiger.com/ru/journal/razdel-zemelnogo-uchastka-pri-razvode-suprugov/