How is gifted property divided in marriage: in case of divorce

The destruction of marriage ties is usually accompanied by the division of joint property. The fundamental foundations and legal methods for carrying out this process are laid down in the paragraphs of the Family Code (FC). They divide the property of the spouses into:

The latter includes property donated during marriage. During a divorce, it is not included in the general list of assets acquired together. Therefore, the donated property should not be divided into shares in favor of each spouse. Let us examine in what cases this principle can be violated and how the division of gifted property in marriage is carried out.

General points and law

When in practice they determine whether donated property is divided, they rely on the articles of the Insurance Code. So, first of all, it is necessary to understand the property regime that exists between partners. The law provides for two of them:

• legal (assigned automatically);
• contractual (occurs after signing the marriage contract).

In the latter case, the partners dispose of jointly acquired property in advance. That is, the contract stipulates in detail:

• to whom and what belongs;
• who controls what;
• how ownership of the gift is distributed;
• what do partners get after breaking up?

The legal regime of property relations is another matter. Under it, donated property during a divorce is considered from the point of view of the articles of the Insurance Code. Briefly their principles are:

• what is acquired during marriage is joint;
• personal refers to:
  • received before the wedding;
  • donated;
  • inherited;
• Personal property or parts thereof, under certain circumstances, can be reclassified as joint property.

• their presence;
• influence on the ratio of property rights of those divorcing;
• the degree of infusion of funds from the family budget into the maintenance or development of the property.

Possible situations

Another important point is who the deed of gift is issued to. When divorcing, this point must be taken into account. In principle, there are the following options:

• for one of the partners;
• on both:
  • into common ownership;
  • share order;
• for children.

Each situation is considered separately. The law proceeds from the fact that donated property cannot be taken away by force. Therefore, the answer to the question of whether, in a divorce, what is formalized as a gift to minors is divided, the answer is unequivocal - no.

Note: wives planning to separate from their current spouse should take into account the following fact:

• property belonging to children is not included in the list of joint property;
• even if it was given by the father or both parents jointly.

In the case where a deed of gift for jointly acquired property is issued in favor of a child, the property will come under the control of the parent with whom the minor will live.

It is quite difficult to divide objects that are legally recognized as personal property during a divorce, but it is possible. An important subtlety in this situation is the documents, or rather, the order and correctness of their execution.

Reference: donation is a legal process subject to the norms of current legislation.

 

Rules for drawing up a deed of gift

The document is formed taking into account the following standards:

• forbidden:
  • make a transaction on behalf of:
    • minor (under 14 years old);
    • incompetent, recognized as such by the court (there is a decision);
  • in favor of a social worker;
  • to force the act of donation;
• the document is drawn up in the presence of both parties (or their representatives holding a power of attorney);
• everyone signs;
• In some cases, the consent of co-owners is necessary:
  • when registering a share of real estate as a gift, if others belong to other family members;
• The partner's consent is not necessary when property is given to a joint child.

Hint: you need to involve a notary in drawing up the document. Then, during a divorce, the deed of gift will be recognized as absolutely legal. The notary is obliged to ensure that his text does not infringe on anyone’s rights.

If the property is gifted to both spouses or jointly owned

In such a situation, the general rule regarding the protection of the property rights of the parties applies. But you should pay attention to the text of the deed of gift, which can have two options:

• on the allocation of shares in the object;
• about common property.

In the first case, upon dissolution of the bond, each person will receive the part of the property indicated in the document. You can change the conditions if you prove that these shares were redistributed through an injection from the family budget.

For clarity, let's look at an example. A woman sought legal advice. She was interested in: “Is the deed of gift divided into the land plot on which a house and outbuildings were built during the marriage?”

The initial parameters of the situation are as follows:

• the spouses were given land ten years before the dissolution of ties in the following parts:
  • I gave three quarters to my wife;
  • husband - one fourth;
• Over the past years, the following have been built on the site (with family money):
  • house;
  • sauna;
  • pool;
  • greenhouse;
  • in addition, a garden has been grown;
• the cost of the allotment increased tenfold.

Based on the paragraphs of the Insurance Code, the shares of the spouses can be redistributed. The husband claims half of the plot with buildings. He insists on his right, since the increase in the value of the property occurred with joint money.

The husband of the woman who sought advice is right. He can claim an increase in his share of the property. If he files a claim in court, his share will be increased in proportion to the funds spent. After all, joint property is divided equally between those divorcing.

Recommendations:

1. If a couple has children and they remain with their mother, then she can arrange three-quarters of the allotment for one of them.
2. You can try to enter into a voluntary agreement with your ex-spouse on the division of property rights to the property. Afterwards, use the allotment and buildings together.
3. The third option is to sell and split the money.

If shares in real estate are not allocated, then division occurs on the principle of equality of property rights. That is, everyone will get half. But this situation also has its own nuances. They are connected with the fact of proof of the owner’s good faith.

Thus, if it is recognized that one of the owners of goods treats him inappropriately, then he may not receive anything. As a rule, this circumstance is proven by facts:

• squandering family funds;
• accumulation of debts associated with the use of shared property (non-payment of utility bills for an apartment, for example);
• drug and alcohol abuse;
• wild lifestyle.

In addition, it is possible to win a larger share if personal funds were invested in increasing the value of the property. These according to the law include:

• purchased before the wedding;
• presented as a gift;
• received by inheritance.

Let's look at an example. For the wedding, the father of the newlywed gave the Poznyakov couple a boathouse on the seashore. No shares were allocated in the document. Five years later, my wife inherited part of the apartment from relatives. The couple sold it, and invested the proceeds in expensive repairs to the boathouse.

After a certain time, they decided to separate. At the same time, Poznyakov filed a lawsuit to divide the boathouse in half. He justified his point of view with a deed of gift. However, his ex-wife provided documents at the meeting:

• about inheritance;
• on the sale of an apartment;
• about investing the money received in increasing the value of the house on the beach.

As a result, its share was increased.

Options for solving the problem

The legislation considers an agreement between those divorcing regarding the fate of their property to be a priority. Therefore, it is better to reach an agreement without going to the courts. It is formalized by a marriage contract. The document describes:

• what property goes to whom;
• whether the gift is a joint object or belongs to one of the partners personally;
• what is the regime for the further use of each unit of property.

Hint: to avoid any claims regarding the contract, it is advisable to have the document certified by a notary. The statute of limitations for the division of property is set by law at three years. However, it begins on the day of informing the former partner about the incorrectness of the partition, which prolongs it indefinitely.

 If it is not possible to reach an agreement, then the dissatisfied person files a lawsuit in court. The following things should be taken into account:

• the requirement must be documented and based on legal norms;
• the second party will have time to collect papers and testimony confirming his case.

Thus, the best way to resolve a conflict situation is to draw up a voluntary agreement.

Source: https://VseProRazvod.ru/divide/delitsya-li-imushhestvo-podarennenoe-v-brake-pri-razvode/

Division of property: is a donated apartment divided during a divorce?

When divorcing a spouse and dividing jointly acquired property, it is necessary to take into account that the husband or wife sometimes has personal property that the law will not allow to be divided. This is something that was acquired before legal marriage, given as a gift, privatized or inherited.

In our article we will consider the question of whether a gift apartment belonging to one of the spouses is divided during a divorce.

Apartment as a gift

Sometimes you can get an apartment as a gift. A gift is a gratuitous transaction in which the donor does not receive any remuneration, and the recipient does not owe him anything.

Most often, such gifts are made by close relatives (parents, children, grandparents, siblings, etc.). In this case, neither the donor nor the recipient has to pay tax to the state.

But if housing is not donated by a relative, then he must pay a thirteen percent tax on the value of the gift to the state treasury.

The recipient will have to pay the same tax if he decides to sell the donated apartment earlier than three years after receiving it as a gift.

Housing received by one of the spouses under a gift agreement will be considered only his personal property. It will not be subject to division with the other spouse upon divorce. It doesn’t matter whether it was given before marriage or during family life. Some spouses deliberately resort to such tricks if they are not sure of the honesty and sincerity of their other half.

Property received as a gift is not divided in a divorce. The former spouse can evict the second spouse in court, even if there is registration and the fact of residence for many years.

The gift agreement will be considered legal and valid if it is drawn up and registered in accordance with all the rules. Only then will the donated apartment not be divided during a divorce. There are also exceptions, which we will mention below.

How to properly formalize a donation

A gift agreement is drawn up in writing with the participation of two persons - the donor and the donee, or their legal representatives or representatives by proxy. Both parties to the transaction sign at the end of the document. Mandatory notarization of the contract is not required, but it will never be superfluous.

The following cannot be donors:

• persons recognized by the court as legally incompetent and their legal representatives,
• children under fourteen years of age and their legal representatives.

Donees who will not be able to register rights to a gift if they received it from their clients and their relatives:

• civil servants,
• employees of medical and educational institutions,
• social service workers.

If a common apartment (or part of it) is donated by one of the spouses, then the second must give his written consent to this. The same is required from parents if the gift is made by their minor children. In the case where a parent gives housing to their child, the consent of the second parent is not required, even if their housing is shared.

When a part of an apartment divided into several shares is given as a gift, it is necessary to obtain mandatory consent from the remaining shareholders.

It is not difficult to draw up a gift agreement with a good sample in hand. But it still needs to be registered with Rosreestr, for which it is necessary to collect an impressive package of documents. And this needs to be done immediately. After the death of the donor or other unforeseen situations, it will no longer be possible to register the fact of the gift. In this case, the transaction will no longer be considered completed.

Documents for registration of a gift agreement for an apartment:

• identity passports of the donor and the donee,
• property donation agreement,
• document on ownership of the apartment,
• cadastral passport with apartment plan,
• BTI certificate about the cost of the apartment,
• certificate of persons registered in the apartment,
• notarized consent of the spouse (if the ownership of the apartment is joint, except for donation to children),
• consent of all homeowners (if a share in the apartment is given),
• consent of the legal representative or guardian (if the donee or donor is incapacitated or a minor),
• power of attorney (if the interests of one or the other party are represented by a third party).

Read also: Single mother in St. Petersburg: benefits, allowances and payments 2020

Only if all these conditions are met will the gift agreement be considered valid and the question will not arise whether the donated apartment is divided in the event of a divorce.

Similar nuances apply to the division of inheritance during a divorce. Indeed, in this case, general funds were not used for its acquisition either.

Can the gift be shared?

The donated property, including an apartment, will not be the joint property of the legal spouses precisely because no common funds were spent on its acquisition. But they could spend money on repairs, redevelopment, reconstruction.

If these manipulations have significantly improved the appearance of the housing, and its value has increased significantly, then it makes sense to fight to recognize the donated apartment as the common property of the spouses.

But the division of shared property during a divorce is a completely different situation; we advise you to read more about it.

The property of each spouse, which is not subject to division, can still be recognized as joint property. To do this, you need to prove that the second spouse made significant investments in it (labor, finances, etc.), which increased the value of the property.

The decision to recognize or not recognize the donated apartment (or other property) as joint property of the spouses is made by the court. The statement of claim is filed by the spouse who wishes to claim his rights to the donated housing. In court hearings, both sides are heard, the evidence presented is examined, and witnesses are questioned.

If the court takes into account all the arguments and evidence and recognizes the property as joint, then the donated apartment is divided in half between the spouses upon divorce.

How to achieve division of a donated apartment

There are two ways to try to obtain rights to an apartment donated to your spouse: peacefully or through the courts.

When spouses during a divorce enter into an agreement on the division of property, nothing prevents them from dividing the apartment given to one of them. But for the spouse who was not the donee, this is not safe. After all, his other half can always change his mind and want to regain his home, and the law will be on his side.

You can re-register ownership of the donated apartment ahead of time - draw up a gift agreement for your wife (husband) or joint young children. Or sell it and purchase another property, which will be registered as common property.

If the spouses have other housing that will be purchased jointly, then the donated apartment can simply be left to the legal owner with the agreement that their joint apartment will go to the second spouse in full.

By the way, donation can concern not only an apartment, but also a country house and land. We tell you how a land plot is divided during a divorce here - https://divorceinfo.ru/2300-razdel-zemelnogo-uchastka-pri-razvode-suprugov

Otherwise, the issue of division of common property will have to be resolved in court. There is very little chance of getting half of the apartment given to your spouse.

A deed of gift can be challenged in rare cases when it is possible to provide evidence of the donor’s incapacity at the time of signing the document, as well as the fact of physical or moral pressure on him to sign the gift agreement.

You can try to invalidate the gift agreement if you prove that it was not properly drawn up or registered, was concluded with an incapacitated person, etc. Then both you and your spouse are unlikely to see this apartment. There is no point in this.

It would be more correct to try to transfer it to the category of jointly acquired property. To do this, you need to prove that expensive repairs were made to it during the marriage, due to which its value increased significantly. This is not always easy either.

It is unlikely that you will invite an appraiser to determine the cost of the apartment before and after renovation, or collect all the receipts for purchased building materials and payment for the services of the repair team.

Usually, when renovating an apartment, spouses do not even suspect that they will soon have to divorce.

It is quite difficult to prove your involvement of the second spouse in real estate, but in rare cases it may be possible to reclassify living space received by gift as “jointly acquired property” and then divide it in half.

The division of a donated apartment during a divorce is always a troublesome matter. If there is something to fight for, then it makes sense to seek help in accompanying the legal process from good lawyers. First, you need to try to resolve this issue with your still spouse amicably. If this is your only home, and you risk being left on the street after a divorce, you need to try all options.

Source: https://divorceinfo.ru/2288-razdel-imushhestva-delitsya-li-podarennaya-kvartira-pri-razvode

: Division of donated property during a divorce, is property received under a gift agreement subject to division?

Home » Division of property » Division of donated property during divorce

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During the process of divorce, almost every married couple is faced with the division of property. Among this property there are often gifts presented to one of the spouses by his relatives and friends. The question arises - how to divide these gifts and are they divided in principle during a divorce?

What is considered a gift

According to legal canons, it is considered that the receipt of a gift is considered accomplished when:

• there is a transfer of something considered a gift under a written gift agreement or by oral notification;
• someone receives a prize when participating in a drawing, promotion, contest or competition.

In this case, the fact of transfer of a gift can be:

1. With the preparation of a simple or notarized written agreement. Such a gift is confirmed quite easily; you just need to provide a deed of gift.
2. Through the simple presentation of a gift, both in front of witnesses and without them. Proving the fact of a gift in such circumstances is extremely difficult; here, proof will require the testimony of the donor himself, physical evidence, for example, an engraving on the gift, which will clearly indicate to whom the gift is intended, or other evidence.

Is property received under a gift agreement subject to division?

All property that spouses acquired jointly during marriage must be divided equally between them upon divorce. But is property received under a gift agreement subject to division? If one of the spouses received a car, real estate, or other property as a gift, then this is considered his personal property and is not subject to division.

Some people mistakenly believe that if, for example, an apartment was given to one of the spouses at a wedding and both spouses lived in it and were registered, then such real estate is considered their common property and in the event of a divorce should be divided, like all other property acquired by them . But that's not true. No matter how long the spouses live in this apartment, it will not become their joint property, since one of them received it as a gift.

Another common misconception is that if children were born in a marriage, then the residential premises received as a gift in the event of a divorce should be divided among the children, since they are the heirs of the owner of the apartment. This is not true. Yes, children are heirs, but only after the death of the owner of the residential premises and only if he did not transfer or sell it to a third party before his death.

In what cases can a donated apartment be divided during a divorce?

But, as in other rules, in the situation with donated property there are also exceptions. If during the marriage the second spouse invested significant amounts of money in the donated property in order to improve it, as a result of which the value of the donated property increased, then such property is already considered joint property and will be divided equally.

For example, the groom's parents gave him a garden plot with a small house for his wedding.

During the marriage, the couple completely rebuilt the house, landscaped the land, built a garage and other structures, as a result, the cost of the site with the buildings increased several times.

  During a divorce, this property will no longer be considered personal property and must be divided into equal shares.

Improvements to living conditions include:

• redevelopment of residential premises;
• addition to the donated additional premises;
• expensive repairs;
• technical equipment of the apartment.

For example, the apartment was not initially equipped with water supply and sewerage and cost 500 thousand rubles. During the marriage, the couple equipped it with water supply and sewerage, remodeled it, made high-quality repairs, as a result, the value of the property more than doubled to 1 million 200 thousand rubles. In the event of a divorce, such an apartment is subject to division into two equal shares.

Only a court can recognize real estate given to one of the spouses as joint property.

To do this, the spouse interested in such recognition submits a statement of claim to the court, the claim must be accompanied by evidence of investment in real estate for its improvement of joint funds.

It will also be necessary to demonstrate that the value of the property has increased significantly compared to what it was at the time of donation.

Evidence may include:

• contracts for the performance of work by third parties with a mandatory indication of their cost;
• checks and other monetary documents for the purchase of building materials;
• independent assessment of the value of real estate before and after reconstruction or repair;
• witness statements.

How is donated property divided?

There are two types of gifts given during divorce:

• under no circumstances will it be possible to separate;
• can be divided under certain circumstances.

Not subject to division:

• personal items with the exception of luxury items;
• things given before marriage;
• items transferred to one of the spouses for personal ownership that cannot be improved or repaired;
• property already divided as a result of a marriage contract or voluntary agreement.

Under certain circumstances it is possible to divide:

• property gifted to both spouses;
• gifts that have been significantly improved, thereby receiving a higher value;
• winnings or prizes received by one of the spouses, but as a result of joint actions.

For example, a couple bought a car in which the husband won a street race and he received a refrigerator as a prize. This prize will be considered a joint gift, since the competition involved a vehicle purchased with joint funds.

Some nuances of the section

If the court recognizes a gift from one of the spouses as community property, then it can be divided in different shares with a violation of equality. The smaller share will be received by the spouse who:

• did not work and did not have income for no valid reason;
• neglected the common property, which resulted in a deterioration of his condition.

On the contrary, a larger share will go to the spouse who:

• paid general debts from personal funds;
• took upon himself the upbringing of minor children;
• other similar reasons.

Wedding gifts

Often during a divorce, former spouses have a misunderstanding - how are wedding gifts divided? Often during division, disputes arise about who gave which gifts to whom and who will receive this or that property.

Most often, wedding gifts are given to the newlyweds as a family, that is, to both, and not to one of the spouses, and they are joint property, but not always.

For example, the groom's parents gave the newlyweds a car, but the deed of gift was issued only to their son. In this case, the vehicle is considered personal property.

Disputes about the division of gifts

Spouses can solve the problem of division in two ways:

1. By mutual agreement . It is advisable to seal such an agreement with a voluntary agreement with a mandatory visit to the notary’s office.
2. Through litigation . The court decides which property is subject to division, which is personal property, and based on the court verdict, the division occurs. At the same time, often the spouse who wants to remove part of the property from division uses various, sometimes fraudulent, schemes.

Read also: Young specialist in rural areas: program, conditions, regions

For example, husband I.

, in order not to share his beloved car with his wife, he asked his brother to draw up a fake agreement to donate money for the purchase of this vehicle, thus trying to present the car as his personal property. But his wife proved in court that his brother could not give such an expensive gift, since at that time he himself did not work anywhere, doing odd jobs.

The court made a ruling on the division of the vehicle between the spouses, transferring the car to the husband and obliging him to pay monetary compensation to the wife.

Features of the section of various types of gifts

Real estate. Property donated as a gift can become joint property if, during the marriage of the spouses:

• carried out its reconstruction, which led to an increase in the cost of living space;
• carried out a major overhaul that significantly changed the appearance of the property.

Land plot. The donated land plot is subject to division if it has been significantly improved, the spouses have carried out reclamation, planted a garden, or geoplasticized the site, that is, its market value has increased significantly as a result of the work.

Automobile. A car donated as a gift will be considered joint property if, during the marriage of the spouses:

• carried out a major overhaul of the vehicle;
• made tuning of the interior, body, engine or chassis;
• restored the car after an accident if it was due to the fault of the car owner.

The division of joint property is not an easy process. But it becomes much more complicated if this property was initially gifted to one of the spouses, and only later, during the marriage, it became joint property.

Proving that the gift has passed from personal property to joint property falls on the plaintiff; here it is necessary to clearly understand which evidence the court will take into account and which it will consider insignificant.

Only an experienced lawyer will be able to understand all the intricacies of transferring property from personal to joint ownership, will help you competently draw up a statement of claim and, if necessary, will be able to represent your interests in court.

FREE CONSULTATIONS are available for you! If you want to solve exactly your problem, then :

• describe your situation to a lawyer in an online chat;
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Source: https://ros-nasledstvo.ru/razdel-podarennogo-imushhestva-pri-razvode/

Is gifted property divided in a divorce?

Home / Division of property / Is gifted property divided during a divorce?

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“Everything that’s yours is mine, everything that’s mine is yours,” spouses often say to each other during a happy period of their life together. But then, when the happiness ends, the question begins: who gave what to whom. And how to divide all these gifts?

Fortunately, the family and civil legislation of the Russian Federation answers this question.

Gifts are not shared

Family law provides that all property acquired by husband and wife during marriage is common and is divided equally.

But this applies only to joint property - its full list is provided for in Article 34 of the RF IC. In addition to joint property, each spouse may have personal property (Article 36 of the RF IC).

Any property received under a gift agreement (both oral and written) belongs to the husband or wife by right of personal property. It does not matter when the contract was entered into and the property became personal property - before or during the marriage.

So, gifts cannot be divided between husband and wife.

However, despite the fact that this is a direct indication of the law, disputes often arise between spouses. The right of personal ownership of donated property is disputed. Is it really possible to share gifts?

Challenging a gift agreement

Of course, when a husband gives his wife a piece of jewelry, he does not enter into any gift agreement with her. When parents present expensive wedding gifts to newlyweds, no one thinks about drawing up written documents.

In such cases, proving that the property was actually donated can be problematic.

A written agreement serves as documentary evidence of the donation. Of course, provided that it is formatted correctly. If the value of the gift exceeds 10 thousand rubles, the agreement must be drawn up in writing. The document is drawn up in the presence of two parties - the donor and the recipient. Both of them must be competent to sign a document whose meaning they understand.

The donation agreement for a car or real estate must not only be written, but also notarized, and also registered with a government agency - Rosreestr or the State Traffic Safety Inspectorate.

If the gift agreement is not executed or is executed in violation of the requirements of civil law, it may be declared invalid. To do this, you need to go to court with a corresponding claim.

How can gifts be divided?

There are other ways to divide gifted property, in addition to challenging the gift agreement and, as a result, the right of ownership.

This:

• agreement between husband and wife on the division of gifts;
• filing a claim in court for division of property.

In the first case, the husband and wife can enter into a written document - a marriage contract or an agreement on the division of property, which will indicate the ownership of gifts and the procedure for their division.

In the second case, the spouse will have to file a lawsuit for division of property, attaching evidence that the property is/is not a gift, gifted only to one/both spouses. The court will interview both parties, examine the evidence, and decide whether to recognize the property as personal or joint property, and, therefore, whether it is impossible or possible to divide it.

Gifts belonging to both spouses

Very often gifts are presented not to one spouse, but to both at the same time. Such, for example, are wedding gifts.

Sometimes a husband or wife tries to prove personal ownership of the donated property, arguing that the donor was his/her relatives or friends. It doesn't matter who gave the gift. The only important thing is to whom it was presented - one of the spouses or both at the same time.

Wedding gifts are most often given to both spouses and are therefore joint property. And only if it can be proven that the gift was made personally to the husband or wife, it will be personal property.

Improvement of donated property

Sometimes property that was gifted personally to a husband or wife may be considered not personal, but joint property.

This is possible in an exceptional case - if the donated property of one spouse was improved thanks to the investment of money, effort, and time of the second spouse. It is important that the cost of the improved property significantly exceeds the cost of the original. Investments made must be supported by documents or testimony.

It is not a fact that the improved gift will be divided exactly in half. Another distribution of shares is possible - in proportion to the original cost and the cost after improvement. To accurately calculate this difference, an examination can be carried out.

The current value of the property is assessed and the original value is subtracted from it. The remaining amount is the result of improving the gift. If the improvement was made through joint means and efforts, this amount is divided in half.

If only one of the spouses carried out the improvements, he receives compensation for this amount.

Legal assistance

Proving the fact of donation is quite difficult. The spouse may not have evidence, testimony, or the gift itself.

Many people doubt what to choose: a prenuptial agreement or a property division agreement? The property rights of the spouses depend on the chosen option, so quarrels are not uncommon here.

What to do in a difficult situation, is it possible to invalidate a deed of gift and how to recover compensation for improving the gift? These questions concern many people, but only a competent lawyer can answer them.

We offer you a free online legal consultation. If you find yourself in a difficult life dilemma, you can ask a lawyer for advice. Our specialists have extensive experience in the legal industry, so they will help you understand the issue.

During the free consultation, the lawyer:

• will help you decide on your legal position;
• explains complex provisions of the law in accessible language;
• will give recommendations on how best to proceed;
• analyze the chances of successful completion of the case;
• will help you decide on documents/evidence/statements;
• will provide up-to-date legal information.

After the consultation, you will know exactly what to do next. Having assessed the lawyer’s competence, you can turn to his full services for the division of gifted property during a divorce.

Source: http://law-divorce.ru/delitsya-li-pri-razvode-darenoe-imushhestvo/

The courts were explained how to divide gifted property during a divorce

Understanding the correct division of property acquired by the family during a divorce, the Judicial Collegium for Civil Cases made an important clarification. She explained how local courts should deal with property that, on the one hand, was acquired during marriage, and on the other, not with money earned by the spouses.

It's no secret that one of the most pleasant wedding gifts are envelopes with a certain amount of cash, which are given to the newlyweds by relatives, parents, friends or colleagues. Sometimes such gifts are quite substantial, and a young family can buy something significant with them.

True, such gifts in the event of a family breakdown also have a downside - the question of how to divide property not earned by the family during marriage.

As judicial practice has shown, when reviewing such cases, not only the divorcees themselves, but also local courts are confused about the correct resolution of such disputes.

The situation that was examined by the Judicial Collegium for Civil Cases seemed most banal - the family bought an apartment with money that was given to the newlyweds by the bride's mother. After existing for several years, the family broke up, and following the divorce procedure, the procedure for dividing property began. The stumbling block was the apartment.

The Supreme Court clarified how to divide the debts of former spouses

After the divorce, the husband decided that the acquired property - the apartment - should be divided equally, since the square meters were acquired during marriage.

Local courts agreed with him. But the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation did not agree with this division and made the opposite conclusion.

The high court explained in what cases movable and immovable property is recognized as the common property of the family, and in what cases the property remains personal, even if it was purchased before the divorce and registered between two people.

In our case, the stumbling block was a new apartment. The plaintiff and defendant, formerly spouses, bought an apartment worth several million rubles a few months after the marriage was registered.

Immediately after the wedding, I was able to move into my own house solely thanks to my wife’s mother, who sold her own apartment and gave the money to her daughter. The bride's mother turned out to be an intelligent and legally literate woman.

She made a monetary gift under a gift agreement.

A month passed after the family bought the apartment, and the couple registered joint ownership of the purchase. But family life was short-lived. The family lasted only four years and broke up. As usual in such cases, the question arose about the division of jointly acquired property.

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The spouses were unable to resolve the housing issue peacefully. When registering, they did not enter into the now fashionable prenuptial agreement; they were unable to agree on the division of property and divide the apartment on their own. The ex-husband filed a claim for division in the Ordzhonikidze District Court of Yekaterinburg.

The plaintiff wanted to receive a half share in the disputed property. Simply put, the ex-husband was sure that he was entitled to half of their shared apartment. Moreover, it is recorded for two.

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In court, the defendant - the ex-wife - assured that her husband was entitled to only 1/15 of the right of common shared ownership of housing, and the rest - 14/15 - should be awarded to her. Proportional to the money invested when purchasing it.

But the district judges did not agree with the women’s logic of partition and took the side of the ex-husband. In the court of first instance, he received what he wanted - half of the property. The district court considered the apartment to be jointly acquired. Well, if so, then it must be divided in half.

According to the Supreme Court, the courts had to find out with what money - personal or general - the property was purchased

The district court relied on the purchase agreement, which did not contain a word about the distribution of shares. The Sverdlovsk Regional Court supported this division of square meters.

A woman who disagreed with this division had to go to the Supreme Court of the Russian Federation.

After studying the materials of the “family” case, the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation considered that the ex-wife was right, and her ex-husband does not have the right to half of the apartment, even though it was purchased during marriage.

The most qualified judges from the Supreme Court especially emphasized that property purchased jointly by a husband and wife does not mean that it is common. And the court reminded that, according to the law, it refers to property acquired jointly during marriage.

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This is primarily general income, pensions and benefits. Next come the things purchased with this money, regardless of who - husband or wife - paid for the purchase and in whose name it was registered.

But not everything that was acquired during marriage will be divided equally by the law after a divorce.

A special resolution of the Plenum of the Supreme Court (No. 15) “On the application of legislation by courts when considering cases of divorce” was devoted to this painful topic.

It literally says the following: “Property acquired by one of the spouses during marriage through gratuitous civil law transactions (for example, by inheritance, donation, privatization) is not the common property of the spouses. The acquisition of property during marriage, but with funds that belonged to one of the spouses personally, also excludes such property from the regime of common joint property.”

According to the Supreme Court of the Russian Federation, in similar situations, local courts had to find out the main thing. Namely, what money - personal or general - was used to buy property that now one of the parties wants to divide. And also find out what the deal was - paid or gratuitous.

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Specifically, in our case, the apartment was purchased with the wife’s personal funds, which were given to her by her mother. It follows from this that formally the common apartment was not purchased by the family using jointly acquired capital, the Supreme Court concluded.

And here’s another idea expressed by the high authority - the fact that money was contributed to buy an apartment does not in any way change the nature of their personal property. All this is said in the Supreme Court decision. And here is the conclusion of the Judicial Collegium for Civil Cases - the apartment must be divided in proportion to the funds invested by the parties - joint and personal.

As a result of consideration of this dispute, the decisions of the Ural courts were overturned by the Supreme Court. He sent the case back for a new review and said that during a new review it should be decided according to the recommendations made.

Source: https://rg.ru/2017/03/13/sudam-raziasnili-kak-pri-razvode-delit-darenoe-imushchestvo.html

Is gifted real estate divided in a divorce?

• Property received free of charge during marriage (subject to actual documentary evidence) is not jointly acquired, but personal.
• In accordance with the Family Code of the Russian Federation (FC RF), in the event of a divorce, only property acquired jointly by spouses during marriage is subject to division; accordingly, property received as a gift by one of the spouses during the marriage is not subject to division .
• However, there are circumstances in which gifted real estate can be divided during a divorce :

Is gifted property divided between spouses by law?

A gift is a gratuitous transaction, which means that the donor does not receive any material benefit for transferring real estate (or any other object) into the ownership of another person.

As a result of the implementation of the gift agreement , the real estate becomes the property of the donee. This property is personal, not jointly acquired and, according to paragraph 1 of Art.

36 of the RF IC, is not subject to division in the event of a divorce between the recipient and his spouse.

It does not matter whether the property was donated before the state registration of the marriage or after the actual entry into official family relations.

However, there are a number of circumstances under which the division of housing donated during marriage can be carried out.

In what cases is a donated apartment subject to division?

During a state divorce, spouses need to take into account not only general provisions related to the division of property , but also the nuances that lie behind each particular situation. There are circumstances in which real estate given to one of the spouses may be subject to division. These include:

• impossibility of proving the fact of donation;
• increase in the market value of the donated property at the expense of both spouses;
• actual donation of real estate to both spouses;
• other conditions specified in the marriage contract concluded between the spouses.

1. Important
2. If real estate was privatized by one of the spouses before marriage, then it is his personal property and is not divided in the event of divorce.
3. Issues regarding the division of property are resolved in court.

Lack of proof of donation

If real estate was gifted to one of the spouses, then during a divorce it remains the personal property of the person to whom it was gifted. But for this, it is necessary that the owner provide evidence that the property was actually donated only to him, and not as a common shared property.

For your information

The document confirming the fact of donation must clearly indicate that the housing was donated to one of the spouses, and not to the entire family, for example, as a gift for a wedding day.

It is necessary that the gift agreement be drawn up correctly. The important point is that the contract does not stipulate that the giving party receives something in return. Otherwise, the document may be recognized not as a gift agreement, but as a purchase and sale agreement. Then the division of property will be carried out between the spouses in equal shares.

Increase in the cost of an apartment

According to Art. 37 of the RF IC, if the market value of real estate received as a gift by one of the spouses increases during their cohabitation (common funds from the family budget are invested in its repair and reconstruction), then in the event of a divorce, the second spouse can claim compensation.

Attention

If the value of real estate donated to one of the spouses increases due to the investment of common funds, in the event of a divorce, the second spouse may claim not only monetary compensation. A decision may be made in court to recognize such property as joint.

As a result of the fact that funds are allocated from the general family budget, the donee is no longer the sole owner , taking into account the material contribution to increasing the cost of housing by his spouse. Funds can be invested in:

• repair work;
• redevelopment of living space;
• technical improvements, etc.

In order for the spouse of the owner of the gifted home to be able to claim part of the property , the value of which has increased over the years of cohabitation, it is necessary that he provide evidence of the investment of common funds. Such evidence may include:

• contracts with contractors for the provision of repair services;
• cash receipts, receipts and other payment documents confirming the purchase of building materials, technical equipment, furniture;
• assessment of the value of donated housing (before and after repair work);
• witness statements.

Wedding gift for both spouses

Real estate gifted to one of the spouses is his personal property and, in the event of divorce, is not subject to division. However, if both spouses are indicated in the deed of gift , then they equally have the right of ownership in those shares that are specified in the deed of gift.

Provided that the property was given to both husband and wife (for example, as a wedding gift), the housing will be their joint property. In the event of a divorce, such property is subject to division in accordance with the shares allocated in the gift agreement or on a general basis.

Division in the presence of a marriage contract

If the spouses did not enter into a prenuptial agreement, then all property acquired during the marriage is jointly acquired and, in the event of divorce, is subject to division into equal shares.

But if a marriage contract has been concluded, then the division of property is regulated by the rules specified in it (according to the regime prescribed in paragraph 1 of Article 42 of the RF IC).

When concluding a marriage contract, the parties have the right to change the rules for the division of not only jointly acquired common shared real estate, but also personal property.

Thus, property received as a gift by one spouse can be divided, or even become the property of the other, if such conditions are specified in the marriage contract.

If there are minor children in the family, then the division of property occurs only in court. This condition is necessary to respect the property rights of the minor.

When divorcing parents and dividing property, the court must take into account the property rights of their minor children.

When dividing jointly acquired real estate, the court may refuse to divide equal shares of the common property in favor of the parent with whom the children (or child) remain.

Relatively speaking, the court can allocate a larger share of the joint property to the parent with whom the children will live after the divorce.

Attention

If a child had a share in real estate before the parents’ divorce, then it remains his property and is not subject to division.

According to paragraph 4 of Art. 60 of the RF IC, children cannot claim the property of their parents, and parents cannot claim the property of their children. Thus, if the gifted real estate is the personal property of one of the parents, then the children, like the spouse, do not claim to have a share in their property.

The division of property in a peaceful divorce involves the signing by both spouses of an agreement on the division of property, certified by a notary. In this case, the spouses independently agree among themselves on the redistribution of property rights, without going to court.

If it is not possible to reach an agreement, then you should remember that it is necessary to act within the framework of the norms of the Family Code.

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Source: http://dogovor-darenija.ru/darstvennaya/ispolnenie/pravovye-posledstviya-sdelki-i-problemy-storon/pri-razvode/