Division of property after divorce, statute of limitations for loans, apartment, car and other material assets. How is property divided during a divorce? Time limits for dividing property of spouses.

Good evening! My husband and I have been divorced since 2003. after that he was married again, today he is divorced, now he demands the exchange of the apartment in which I live with our children (adults), he is not registered in the apartment and he does not have a share in the apartment, but the apartment was bought in our joint marriage. Does he have the right to divide this property, i.e. apartments?

Answer

According to paragraph 7 of Article 38 Family Code of the Russian Federation, a three-year statute of limitations applies to the claims of spouses for the division of common property of spouses whose marriage is dissolved. But this period begins to run not from the moment of divorce, but from the moment when the former spouse learned about his violated rights. Therefore, if the rights of your ex-husband were not violated, then this deadline did not begin to run.

Therefore, you should definitely file a motion to apply the statute of limitations. In this case, the court will most likely refuse to satisfy the claim for division of property. If you do not file this petition, then when the case is considered, the judge will have the right to grant it.

Division of real estate during divorce is a frequently asked question among many. married couples, divorcing a marriage. The division of property, and especially expensive real estate, often leads to conflict situations and lengthy litigation.

As evidenced by numerous arbitrage practice In divorce proceedings, most often divorcing spouses put forward demands relating to the division of real estate. In the statement of claim, as a rule, spouses include several items at once - requirements under the section country house, apartment, cottage, plot of land or room.

The rules for dividing the common property of divorcing spouses are established in Article 39 of the Russian Family Code and Article 254 of the Civil Code of the Russian Federation.

In addition, when dividing marital property, other rules of law from family, housing, urban planning, civil and land legislation are also applied.

Real estate not subject to division

First of all, real estate received by one spouse as a gift, inheritance, or transferred to him through other gratuitous transactions is not subject to division. In addition, during a divorce, it is impossible to divide real estate purchased or received by one of the divorcing spouses before registration family relations in the registry office or purchased by him with financial assets acquired before marriage. However, in the latter case, if a controversial situation arises between the divorcing spouses, strong evidence of the acquisition of real estate using the finances available before marriage is needed.

If the spouses dividing the property long time did not live together, but the divorce was not officially filed with the registry office; the court has the right to recognize the real estate acquired by them during this time as the individual property of each of them. However, evidence is also needed here, since the judge in this case can make completely opposite decisions.

Terms of division of real estate during divorce

The general rules established by the Russian Civil Code apply to the division of matrimonial real estate, that is 3 years. The specified period can begin not only from the date of registration in the registry office of the divorce, but also after the dissolution of the marriage, when the spouse making the corresponding demand for the division of real estate learned or should have learned about the violation of his right.

It should be noted, however, that due to fairly strict requirements for registering rights to real estate, situations where the divorcing spouse does not know that the other spouse has any real estate acquired during marriage are minimized.

The procedure for dividing joint real estate

Joint real estate of spouses is those real estate objects that were acquired by spouses during a registered family relationship.

Family law allows several options for dividing marital property:

, containing the will of both parties regarding how the common property and other marital property will be divided;
divorced spouses. Family legislation of the Russian Federation gives former spouses the opportunity to divide real estate in any way at the discretion of the parties and even transfer all jointly acquired real estate to one of the spouses, leaving the second without housing. The main condition for such a division is the mutual agreement of the divorcing spouses regarding the procedure and conditions for the division of real estate. It is recommended that such an agreement be drawn up in notarial form. This guarantees compliance with the agreement by both parties and will avoid a situation where one of the divorced spouses subsequently changes their mind and refuses to fulfill the terms of the agreement.
Through the court - if there is a controversial situation.

The first two options for dividing real estate have an undeniable advantage over court proceedings, since the court, based on the equality of rights of divorcing spouses to joint property, usually divides everything in half, which does not allow considering some options for division. In addition, divorce proceedings are associated with long time costs, legal costs and not always pleasant emotional experiences.

Family law allows for the possibility of increasing the share of one of the spouses when dividing matrimonial property by a court decision, based on the interests and rights of minor children. This question transferred to the discretion of the judge hearing the divorce case.

The mere fact of children living with one parent is not considered a sufficient condition for increasing the share of one of the spouses and deviating from the legal principle of equality when dividing joint property. If the parent can justify and prove in court the need to increase his share in the marital property in order to ensure the interests of the child, then the judge can satisfy such a requirement.

It is also possible to reduce the share of one of the divorced spouses if he common marriage had no income at all without good reason or repeatedly spent common marital funds and property to the detriment of the interests of his family.

Section of privatized housing

The division of a privatized apartment, according to statistics, causes the greatest number of controversial issues and disagreements. However, the division of privatized housing is quite clearly regulated by Russian legislation.

If an apartment purchased during marriage was privatized for both spouses, they are both, from a legal point of view, the owners of the property. In this case, the division of real estate is carried out in accordance with the general procedure. After the dissolution of a marriage, divorced spouses become co-owners. Each of them becomes the owner of a share in the apartment.

A situation is possible when spouses, while still married at the stage of privatization, divided their housing into shares and recorded this section in the registration documents. In this case, divorcing spouses do not need to share a common apartment.

If joint housing was privatized for both spouses, but shares were not allocated, they can determine the size of the shares:

under a voluntary agreement on the division of housing;
by a court decision based on the principles of equality of spouses.

If, during a joint marriage, the apartment was privatized for only one spouse, the second spouse loses the right to claim as the owner of this housing after the divorce. It does not matter that when signing the refusal to privatize, the citizen was not aware of all the consequences of his decision.

Lack of legal literacy is not a reason to cancel a housing privatization transaction.

Another misconception that judges often encounter in divorce proceedings is related to registration. Many divorcing spouses believe that they have the right to part of a privatized apartment during a divorce only because they are registered in this residential premises. However, during the trial, an unpleasant fact is discovered - the housing will not be divided, since one of the divorcing spouses is not its legal owner.

Thus, when an apartment is privatized for one of the spouses, the housing becomes his individual property, transferred to him free of charge, since the privatization of an apartment is considered the same free transaction as inheritance and donation. In this case, the second spouse, who is not considered the owner of the privatized housing, can demand and defend in court his right to indefinite (or for a certain period of time) residence and use of the apartment.

Another option is also possible when the judge obliges the spouse, who is the sole owner of the privatized apartment, to provide other housing for the second spouse if he makes a corresponding request.

The right of a divorced spouse who refused to participate in the privatization of housing to use a privatized apartment after the divorce may terminate:

upon expiration of the period established by the judge for the use of real estate owned by the former spouse;
by agreement of both parties:
with the cessation of the circumstances laid down by the court as the basis for maintaining the right to use someone else’s apartment (for example, a spouse who did not have housing at the time of the divorce subsequently acquired another apartment for himself).

Municipal housing section

The division of municipal housing also causes some difficulties, since such a division is impossible from a legal point of view before privatization.

To divide a municipal apartment registered under a social tenancy agreement during a divorce, spouses can:

carry out privatization and divide the apartment into shares by agreement of the parties or in accordance with the legally established principles of equality of spouses in case of divorce;
carry out only the actual division of the apartment without fixing it in legal documentation. This option, of course, is the least preferable, since it is impossible to officially record such a division of municipal housing, and any of the parties (former spouses) may refuse to fulfill the oral agreement;
continue to share public housing after the divorce. In this case, the former spouses retain equal rights to use municipal housing, regardless of who is the registered tenant.

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

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

Is it possible to divide property after divorce?

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

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

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

Example

The Oleinik couple did not have children, but during their marriage they purchased a one-room apartment with a mortgage loan. After living together for two years, the couple came to a mutual decision to divorce. In order not to delay the divorce process and to free themselves from marital ties as soon as possible, the husband and wife divorced through the registry office, and decided not to rush into dividing the mortgaged apartment - first pay off the loan in full, and then divide it.

In the article “” we mentioned that you can divide joint property...

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

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

Limitation period for division of joint marital property

So, the law establishes a statute of limitations for partition joint ownership – 3 years.

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

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

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

Example

The Terekhov couple divorced through the court, but the issue of division of property was not raised during the divorce process. They agreed that the country house and car remain at the disposal of the wife and children, and the husband gets a city apartment. 4 years after the divorce, Terekhov needed a car that was in use ex-wife. But it turned out that she had recently sold it and spent the proceeds on vacation. Although 4 years have passed since the divorce, the property rights of the ex-husband have only now been violated. Terekhov has the right to file a claim for division of property within 3 years from the moment he learned about this violation.

Restoring a missed statute of limitations

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

The court may recognize good reasons, For example…

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

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

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

To restore the missed deadline, you need to file an appropriate statement of claim, which indicates when you became aware of the violation of property rights and for what reason the deadline for going to court was missed. The claim must be accompanied by documents confirming a valid reason for missing the deadline (medical certificate, birth or death certificate, court decision on imprisonment, military ID, etc.). If the court considers the reason to be valid, it will restore the missed deadline.

Time limit for consideration of a claim for division of property

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

In order for the law to be carried out after divorce, statute of limitations needs to be installed accurately. The issue is covered in Art. 199 “Application of the limitation period” of the Civil Code, which clearly states during what time after that a claim for the division of property between former spouses can be filed. However, courts often make decisions that are then appealed by higher courts.

The time during which family property can be divided is determined by Art. 38 three years from the day when a. arises between the former spouses.

What is the statute of limitations?

The limitation period begins from the day when the person interested in resolving the property issue received information about the violation of rights to this property. From now on this case the statute of limitations opens. Its end in most civil cases ends in three years.

How can property rights be violated? For example, one of the spouses has the keys to an apartment in which the second spouse has a share, and does not allow the co-owner into it. Offers for sale a car that is common property, without taking into account the interests of the other half.

The law prescribes circumstances when the period changes up or down. An interested party in the family's property affairs can be not only the spouse, but also representatives of the judicial system, guardianship service employees and other persons.

So, if the statute of limitations has expired, then the court will accept the claim, but when considering the case, it will refuse the plaintiff on the basis of the expiration of his time.

It is important to file a claim on time: from the practice of court cases

A claim for division of property against a former spouse can be filed within all three years after the start of the statute of limitations. Another thing is that for a long time This point has been subject to different interpretations - from what moment does the countdown begin?

Background

The courts, guided by Art. 199 of the Civil Code of the Russian Federation, which clearly states that the period for resolving all issues of division of property of former spouses ends with a three-year period, often “by definition” the date was considered the starting point. And this despite the fact that in 1998 the Plenum of the Supreme Court created Resolution No. 15, where in paragraph 19 it was once again explained that the starting point does not have to be the moment of divorce. There are many circumstances where the statute of limitations begins many more years after service of the document terminating the marriage.

What circumstances lead to the issue of property division being raised in court 5, 7, 10, 20 years after the official end of the marriage? So, 3 years have passed since the divorce: division of property with two case studies.

An example of a positive decision for a plaintiff

The ex-husband believed that he had a “by default”, acquired during marriage and registered in his wife’s name. However, when he decided to sell this share seven years after the divorce, he was denied such a right by his former other half.

The court established in this case the limitation period from the day when the plaintiff was denied the right to dispose of the property, and not from the date of delivery

Example of refusal due to expiration of time for filing a claim

The couple built a house while they were married, which they registered in the name of the husband. After the divorce, the husband sold the house, which became known to the ex-wife. However, she did not then declare her right to ½ of the house. Five years later, the woman decided to file a claim to restore the right to her share through the court, which rejected her on the basis of Art. 38 SK. RF and Art. 199 of the Civil Code of the Russian Federation. In this case, the fact that information about the sale was communicated to the plaintiff was confirmed, thus the statute of limitations was determined to be three and a half years, which is more than the time limit allowed by law.

Important: cases where the statute of limitations was missed due to legal illiteracy or carelessness does not give the court grounds to restore the property rights of the other, violated by one of the spouses.

Thus, violation of the statute of limitations when resolving property issues between former spouses may deprive one of the parties of the right to dispose of property, if she has delayed the time for filing the relevant claim.

Good afternoon. I am 45 years old. Officially divorced for 8 years (since 2009). In fact, I haven’t lived with my (ex) wife since 2003. Divorced without division of property. He left a 2-room apartment in Moscow to his ex-wife. But in 2005 (before the official divorce) he bought himself a 3-room apartment in the Moscow region. Since the divorce, no property issues have arisen, but now the ex-wife has decided to divide the property (and only the apartment in which I live; she doesn’t talk about the 2-room apartment in Moscow and, of course, is not going to divide it. The question is: does it work? In this situation, there is a 3-year statute of limitations, can the ex-spouse file for division of property? If so, then it turns out that it will be necessary to divide not only the apartment in which I live, but also her apartment in Moscow?

Hello! Divorced from my husband 8 years ago! We divided our property through the courts! But the object that he bought with me in marriage for his LLC remained indivisible! Since we decided to use it together! More precisely, he paid me money from the rental of this property! Now I want to share it! What will happen in this case! I didn’t divide the time as it wasn’t arranged! It was registered by his ex-husband 1 ago

Good afternoon Divorced since 2004, the ex-husband, when leaving, said that he was leaving his share in the apartment to the children
We have two kids. The property is registered in my name. After the divorce in 2004, we visited a notary, who told him that in order to register his share for the children, he must first receive this share - by dividing the property through the court, or allocated by me voluntarily. I decided to give him a share voluntarily, prepared the necessary documents, but in the presence of my daughter I asked him to give his word that after registering his share, he would not blackmail us with this, but would immediately make a donation to the children. To which he rudely replied that he would see later what to do about it. I was afraid to voluntarily give him his share, but he did not sue for division. Now I am a pensioner, my children have their own home, I decided to sell this three-room apartment and exchange it for a one-room one. Buyer with a mortgage, the bank insists on obtaining consent for the sale of the ex-spouse. The ex-husband refused to give consent and threatens with trial and division. Help me figure it out - can he really win such a trial and get 1/2 of the apartment?
Thank you. Svetlana