Michael K.

I express my gratitude to Yulia Dmitrievna Kremer for the prompt solution of our problems despite the huge distance. My ex-wife and I made a mutual decision to leave, without quarrels, scandals and lengthy litigation.

I express my gratitude to Yulia Dmitrievna Kremer for the prompt solution of our problems despite the huge distance. My ex-wife and I made a mutual decision to leave, without quarrels, scandals and lengthy litigation. But since we both live in the United States, and the marriage is registered in Russia, it was difficult to contact the authorities.

We turned to a familiar lawyer in Russia, he said that he could not help in any way - a personal presence was needed. They began to ask friends, in the end they found Yulia. Since we are far away and it was not possible to have a personal meeting, the lawyer gave us a Skype consultation the very next day after applying.

The result is that in less than a month, my ex-wife and I received all the necessary papers and calmly dispersed.

The ex-husband did not want to let me and my husband go, but it was impossible to live with him further.

Yulia Dmitrievna, you just saved me and my son!

The ex-husband did not want to let me and my husband go, but it was impossible to live with him further. I would not like to describe the whole situation, I remember those days with great bitterness ... The main thing is that the nightmare is over!Yulia Dmitrievna in a matter of days found ways to protect us from her husband and helped to keep the property that belonged to me before marriage.

Girls, if you have a difficult situation in the family, you are on the verge and think that this is the end - do not hesitate, contact Yulia Dmitrievna!

Adeline A.

There is nothing good in divorce, especially when you have to sue your husband for the right to live with your own child. It was at that moment that I realized who the ex-husband really is.

There is nothing good in divorce, especially when you have to sue your husband for the right to live with your own child. It was at that moment that I realized who the ex-husband really is. But no matter how difficult it is, the world is not without good people, this is exactly what my meeting with Yulia Dmitrievna Kremer proved!

Julia, thank you from the bottom of my heart for your professionalism and the provision of qualified legal assistance!

Case plot:

The citizen filed a lawsuit against her ex-spouse on the division of property, taking into account the interests of minor children. The claims are substantiated by the fact that a marriage was registered between the spouses, during which they acquired a two-room apartment. Two children were born in the marriage, the place of residence of which was determined with the mother on the basis of a court decision. Thus, the division of property should take place taking into account which of the parents the children live with, i.e. a two-room apartment must be transferred to the property of the spouse. In addition, the wife asked the court to deprive her husband of the right to use this apartment, arguing that hostile relations developed between the former spouses, as well as between the spouse and children, and it is not possible for them to live in the same living space.

Attorney position:

According to paragraph 17 of the Decree of the Plenum of the Supreme Court of the Russian Federation of November 05, 1998 N 15 “On the application of legislation by the courts when considering cases of divorce”, when dividing property that is the common joint property of the spouses, the court in accordance with paragraph 2 of Art. 39 of the RF IC may, in some cases, depart from the beginning of equality of the shares of spouses, taking into account the interests of minor children and (or) the interests of one of the spouses that deserve attention. Under the noteworthy interests of one of the spouses, one should understand, in particular, not only cases when the spouse, without good reason, did not receive income or spent the common property of the spouses to the detriment of the interests of the family, but also cases when one of the spouses, for health reasons or otherwise due to circumstances dependent on him, is deprived of the opportunity to receive income from labor activity. Thus, as a general rule, when dividing joint property, the court must strictly adhere to the principle (beginning) of equality of the shares of spouses, and only in exceptional cases the court has the right to deviate from the principles of equality, since the presence of minor children in itself is not a basis for increasing the share, in this connection, the Spouse's argument about the need to deviate from the equality of the spouses' shares in the common property and reduce the Respondent's share is untenable. With regard to the Spouse's demand for the need to derogate from the beginning of equality of shares in the interests of minor children, then we are talking, of course, about increasing the Claimant's share, with which, after the parents' divorce, common minor children live, as in accordance with paragraph 4 of Art. 60 of the RF IC, the child does not have the right to own the property of the parents, the parents do not have the right to own the property of the child.

The court's decision:

In the requirements for the division of property, taking into account the interests of minor children, refuse and make the division based on the principle of equality of shares in jointly acquired property.


The law provides for two ways - negotiable(spouses themselves determine who gets what - and it is not necessary to divide equally) and law(the court divides marital property at its discretion, in most cases - in equal shares).

If the spouses have common minor children, divorce is possible only in court. So the law protects their personal and property rights. And although children do not participate in the divorce process, the court decision regarding living with one of the parents, alimony payments, property division directly affects them.

Division of property of spouses and children

Children have no rights to their parents' property. They can acquire ownership of parental property only by gift or inheritance after death. Therefore, they do not participate in the division of property during a divorce - by virtue of paragraph 4 of Art. 60 RF IC.


Expert opinion

Alexey Petrushin

But the situation changes dramatically when it comes to property belonging to minor children, acquired for them, registered in their name. It can be real estate, bank deposits, personal items (clothes and shoes, musical instruments, sports equipment, books, educational supplies). This property acquires a special legal regime - it not subject to division between spouses. Without any compensation, it is transferred to that of the spouses,. Even if the children's property is eventually sold, the second spouse cannot count on half of the proceeds - it also belongs to the child.

The parent with whom the son or daughter lives with can dispose of children's property until the child reaches the age of majority. But, although parents are entitled to make transactions with the property of a minor child on his behalf, the state, represented by the guardianship and guardianship authority, controls this process. For example, without the consent of the guardianship and guardianship authority it is impossible to sell, exchange, donate the real estate of the child. This measure is aimed at additional protection of the property rights of minors.

Challenging children's ownership of property

Sometimes one of the spouses disputes the fact that the child owns or needs certain property.

For example. Several years ago, the couple purchased a computer, assuming that all family members, including a minor daughter, would use it. During the division of property, the child's ownership of the computer was challenged.

Another example. The husband claimed the division of the piano, which was purchased with family funds. The wife, in turn, presented evidence to the court that the piano is used exclusively by her son, who studies at a music school and practices the game daily.

In order for such controversial issues to be resolved in favor of the child (or, conversely, the parent who disputes the ownership of children's property), it is necessary to take care of the evidence - when, at whose expense, for whom was the property acquired, who uses the property?

How to divide property: order and procedure

Now consider how divorcing parents divide jointly acquired property.

As already mentioned, the division procedure can occur:

  • voluntarily- by written agreement of the spouses;
  • forcibly- by a court decision when a husband or wife applies with a claim for the division of property to the court.

Agreement on the division of property

The process of dividing property will be much faster and less troublesome if the spouses are able to agree on everything themselves, and then state the agreements reached in writing and notarize the document. This can be done both before the divorce, during the divorce process, and also after the dissolution of the marriage.

The advantage is the ability to avoid a lengthy and costly division process, as well as the ability to independently reach a compromise on all property issues. For example, spouses can agree on an unequal division, can determine for themselves who will get what property?

An agreement on the division of property may contain the following information:

  • Date and place of conclusion of the agreement;
  • Information about spouses - full name, date of birth, place of residence;
  • Data on the date and place of conclusion and / or registration of marriage;
  • A list of jointly acquired property with an indication of the estimated value;
  • A list of property that is not subject to division with an indication of the reason (is the personal property of the husband or wife, belongs to the child);
  • The procedure for the division of joint property;
  • Additional terms;
  • Spouses' signatures;
  • Notary certification.

Marriage agreement is required notarize Otherwise, it will not be legally binding. The cost of notarizing the agreement is much lower than the cost of paying the state fee when filing a claim, which is calculated based on the value of the disputed property.

Division of property in court

The division of property in court is a procedure that can be initiated by one or both spouses by filing a statement of claim with the court, if it was not possible to reach an agreement out of court.

You can file either at the same time as the divorce, or before or after it. The judicial procedure for the division of property can be quite long or relatively fast - it all depends on the complexity of property disputes between husband and wife.

If the cost of joint property is more than 50 thousand rubles, the claim will be considered by the district or city court at the place of residence of the defendant.

The statement of claim for the division of property is drawn up in accordance with the requirements of civil procedural legislation and must contain information about the parties (full name, date of birth, place of registration) and a list of common property to be divided and personal property that is not subject to division. All information must be documented.

Are children included in the division of property?

As already mentioned, divorce occurs only in court if the couple has common children who have not reached the age of majority. But - judicial procedures that can occur at different times. Although the result of the division of parental property will directly affect the children, they do not take part in the division procedure and cannot claim the property.

However, the fact of the presence of minor children may have an impact on the order of division and the proportion of shares. As you know, the shares of husband and wife are recognized as equal - by virtue of Art. 39 RF IC. However, if, after a divorce from a mother or father, minors and especially young children remain living, the court may deviate from the principle of equality divide the property into unequal shares. The share of the parent who is responsible for raising the child after the divorce can be increased. This measure is aimed primarily at protecting the rights of the child.

However, it should be noted that this is only a right, not an obligation of the court. Moreover, this is the exception rather than the rule. The court, at its discretion, decides whether to increase the share of one of the spouses in the common property or not. It will not be superfluous to ask the court about this, referring to the relevant provision in the law.

Alimony or an increase in a share in joint property?

As mentioned above, when dividing marital property, the court adheres to the principle of equality of shares. That is, it divides everything in half.

But, in exceptional cases, the court has the right to depart from this principle and divide everything in other proportions. The reason for this may be minor children left to live with one of the spouses after a divorce. Such a spouse receives most of the property.

If the children are adults

By law, children and parents have no right to claim each other's property. The property of children, especially adults, spouses do not have the right to include in the composition of the disputed property and divide. And, on the contrary, adult children do not take part in the procedure for dividing the jointly acquired property of the parents.

However, there is an exception to the general rule. If an adult son or daughter is incapacitated and is dependent on one of the parents, the division of property is made differently. In particular, the property that is joint, but required for the life support of an incapacitated son or daughter, is not included in the disputed property and is not subject to division. It remains at the disposal of the spouse who exercises guardianship or guardianship over an incapacitated adult son or daughter. Such a measure is designed to protect the rights and preserve the necessary living conditions of a disabled person.

Judicial practice of division of property in the presence of children

Each divorce process is individual, and the outcome is unpredictable. Sometimes the decision of the court of first instance is overturned by a higher court on the complaint of one or both spouses. Sometimes a court decision does not meet the stated claims.

Consider a few examples of the division of property in the presence of children.

During family life, an apartment was purchased. Children were born in the family. How will the property be divided in a divorce?


Expert opinion

Alexey Petrushin

Lawyer. Specialization in family and housing law.

Most likely the apartment will be divided in half. The presence of children in most cases does not affect the decision of the court.

Even before marriage, the man took out a mortgage. The loan was also repaid during family life, partly at the expense of joint funds. How will mortgage real estate be divided, given that there are minor children in the family?

Having underage children probably won't affect the court's decision. The husband will receive a larger share of the apartment - in proportion to the self-paid part of the loan before marriage and half of the jointly paid part of the loan in marriage. The wife will receive a smaller portion, proportionate to half of the part of the loan repaid from the joint funds. Most likely, this smaller part will be in the form of monetary compensation. The very same apartment, along with will go to her husband.

But! If the children are left with the wife, but they do not have their own place of residence, the court may retain the right to use the husband's apartment for an indefinite period.

Example:

During their married life, husband and wife bought an apartment and had children. In a lawsuit, the apartment was divided equally. However, the spouses made an agreement according to which half of the husband's apartment was transferred to his wife as alimony. Thus, the mother and children remained provided with housing, and the father was released from the payment of alimony.

Be sure to remember:

  • Children do not participate in the division of property of spouses in a divorce.
  • Mother and father do not claim the property of the child if it is registered in his name.
  • Two ways to divide joint property: by agreement or through the courts. Voluntary order is much easier and faster. It is enough to draw up an agreement and determine the shares of each of the spouses. The court order is longer, you will need to file a lawsuit and prepare evidence.
  • The court may depart from the principle of equality of the shares of spouses. For example, if the child stays with the mother, she will get more than the father (but not necessarily).
  • Child support also affects the division of marital property. For example, the spouse invokes this fact and receives the same share as the other parent.
  • A spouse who stays with an incapacitated or disabled child is entitled to most of the joint property, since the care and maintenance of a dependent is required.

Dividing the property of ex-spouses is long, difficult and energy-intensive. Especially if everyone pulls the blanket over themselves and seeks to snatch most of the assets. The presence of children complicates the division of property. It is necessary to take into account their interests, as well as that of the spouse who will stay with the child.

If you have any difficulties, it is better not to hesitate and contact a lawyer. Support of the transaction will allow to resolve issues in the legal plane. For example, not to bring the case to court, but to draw up an agreement and determine the fate of the property. Let's say, leave the mother more, and release the father from alimony. There are other compromise options. If the case is deadlocked, you can not do without a court. A lawyer will tell you how to file a claim, what documents are needed, how to build a defense and which articles to refer to? Legal advice is free, at any time of the day or night. Contact us!

Ask a question to an expert lawyer for FREE!

Young people connect life, dreaming of staying together for many years. Domestic issues, financial difficulties lead to misunderstanding and divorce. According to statistics, every second marriage ends in a break in the family union. The presence of minor children complicates the procedure for terminating a relationship, as well as the division of property acquired by a couple. What norms of the law should be relied upon when determining the shares of former spouses with children, and how the process is carried out, is described in detail in this article.

How does a divorce work with adult children: division of property

If citizens planning a divorce have children born together and experience difficulties in reaching agreements on the division of common property, only a court can resolve disputes. This requirement is established by clause 1 of article 21 of the RF IC. Their application to terminate the union will not be accepted by the registry office. You need to contact the state institution after the completion of the trial with the decision that has entered into force to obtain a certificate of divorce.

State duty in such cases is paid for several reasons:

  • to file a claim for termination of marriage;
  • upon application to the court for the division of objects of joint ownership - a property claim;
  • to the registry office for the issuance of a document confirming the relationship.

Appeal to the court, even if the spouses agree on the place of residence and the procedure for maintaining the child after a divorce, is mandatory. They can fix the agreements in a written agreement drawn up on the basis of Article 24 of the RF IC. The document should be submitted at the meeting to clarify the details, check whether its provisions comply with the requirements of the law and be approved by the judge. As a third party, the body responsible for protecting the rights of a minor participates in the process. In this capacity, the institution of guardianship and guardianship and / or the prosecutor's office usually acts.

If there is no agreement between the parents, the court, on its own initiative, makes a decision that reflects the following points:

  • living conditions of children after the separation of parents;
  • order of payment of alimony;
  • division of joint property, including or other real estate registered to spouses, where children are registered.


Divorce with minor children: division of property

The property of the spouses acquired during the time of marriage, as a general rule, is divided in half (Article 34 of the RF IC). Derogation from this principle is possible only on the basis of a court decision in order to protect the rights of children.

The division can be made on the basis of an agreement certified by a notary. It is better to issue it using the legal support of a specialist. This is due to the fact that if there are inconsistencies with the law, including infringement of the rights of the child, the act is invalidated by virtue of its existence. The parties are under no obligation to comply with it. And if violations are found, at the request of the interested party, the contract may be recognized as void.

Provisions on the division of common property may also be contained in a marriage agreement drawn up at the time of marriage. Its provisions will be valid only if the document lists in detail the characteristics of all property divided by the parties.

The conditions for avoiding the principle of distribution of shares by 1/2 are established by paragraph 2 of article 39 of the RF IC. This happens if the allocation of the majority of the property is necessary to respect the rights of children born in marriage. Such decisions are taken by the courts in an exceptional manner.


Division of property in case of divorce with minor children: features

In practice, a large share is given to the parent with whom the minor remains to live. If, after the divorce, the father has a son, and the daughter lives with her mother, then the court will also distribute the shares in an equal amount.

When resolving a dispute, a departure from equality of shares can also occur due to the contribution made to the family budget by each spouse. One of the parties may challenge the right to housing if, for example, it was bought with money received from the sale of real estate registered before marriage. A husband or wife may be addicted to gambling and spend huge amounts of money on it, creating huge debts through loans.

Also, the parties can agree on the transfer of transport, real estate as compensation. For example, for 1/2 share of a land plot outside the city, the husband makes a refusal in favor of his ex-wife. She gives him the entire garage and car. In a similar way, it is possible to carry out a set-off in the presence of debts acquired in marriage. For example, on a mortgage, one leaves the right to real estate and continues to pay funds to the bank, the other writes a waiver of housing rights and receives. In other words, the court may recognize part of the acquired property as personal for one of the spouses. In this case, the property recognized as joint will be subject to division. When allocating the share of each of the participants in family relations, property recognized as common will already be taken into account.

When allocating the shares of each spouse, the following objects belonging to the child do not participate (clause 5, article 38 of the RF IC):

  • things for personal use;
  • equipment for teaching, books, literature;
  • funds in a bank account in the name of a minor;
  • musical instruments;
  • sportswear;
  • equipment for the movement of disabled people, other utensils;
  • gifts and inherited property, including vehicles and real estate.

All items belonging to the child are transferred, with which he remains to live permanently. The same rule applies to cases where there are several minor children in the family.

According to the requirements of civil law, persons aged 14 to 18 can independently dispose of their funds. This requires only the approval of elders: parents, guardians or trustees.

Minor children are an opportunity to slightly increase their share in the division of jointly acquired property. By law, this rule does not apply, however, nevertheless, an increase in the share may be at the discretion of the court.

General information

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With a peace agreement, the spouses can independently decide on the possibility of transferring property.

Moreover, they can jointly use property that is not yet subject to division. All this is written in the document. The rest is distributed among them.

An oral agreement is also possible, but subject to the voluntary agreement of the spouses.

Law

Regulates the division of property upon divorce in the presence of minor children in 2020 Family and Civil Code.

Articles 37, 36, 38 and 39 of the IC of the Russian Federation stipulate the main issues regarding division, including:

  • order;
  • the possibility of pre-trial settlement of the conflict;
  • the cost of the state fee.

Division of property in the presence of minor children

The division of property in the presence of minor children is no different from the standard procedure.

Jointly acquired

The presence of children does not affect the procedure in any way. They are not entitled to a share of the jointly acquired property.

The court does not take into account the presence of a minor child as an argument for increasing the share.

But if the child is entered during privatization, then he has the right to request his share. Then there will be a division bypassing this territory.

If the mother has nowhere to live with the children, then the judge also takes the side of the mother and increases the share to be received.

What is shared and not shared?

There is a certain list of indivisible property.

And you can share almost all jointly acquired property during the marriage. That is, it can be deposits, bonds and securities, movable and immovable property.

Can't Share:

  • if one person is registered in the will;
  • children's property and personal belongings of the parties;
  • donated property;
  • privatized apartment for one person;
  • rental, service or municipal apartment.

Definition of shares

By law, each spouse must receive half of the jointly acquired property.

But if the division of property takes place under a peace agreement, then perhaps in unequal proportions. Depending on the agreement of the parties.

Real estate

Also divided between spouses. But if it is privatized for one person, then it cannot be transferred by ownership.

If the child participated in privatization, then his share automatically remains. But the rest is distributed between the spouses in equal proportions.

There is a right to redeem a share if it is impossible to live together.

Then the spouse has the first right of redemption to this territory at the presented price.

Loans

Divided between spouses in the same way. That is, loans taken during the marriage must be paid by both spouses, regardless of the transitional property.

But if a person took a loan before marriage, then the second should not pay. But this needs to be proven. Similarly, it happens if the loan was taken during the marriage, but was spent on its purpose.

You can return the amount paid for someone else's debt by filing a claim and documents confirming this fact.

Timing

You can file a claim at. At this time, there is protection of the interests of the applicant.

The term is 3 years. At the end of the period, the person will no longer be able to claim the property.

But it is possible to renew the deadline if there are good reasons for missing and the relevant documentation.

Procedure

Before submitting documents, you must follow the procedure.

List of documents

For the division of property, you will need to provide:

  • statement of claim;
  • legal certificates;
  • parties' passports;
  • documents confirming a unilateral purchase;
  • receipt of payment of state duty;
  • other documentation.

Claim Form

The statement of claim is filed with the district court at the place of registration of the defendant.

The document contains the following information:

  • name of company;
  • information about the applicant and the defendant;
  • a list of attached documents and a list of jointly acquired property with an assessment;
  • signature, date and full name of the applicant.

Can an agreement be made?

There is a possibility of concluding an agreement if the spouses are ready to meet each other halfway and reveal their share.

Then you don’t even have to certify the document, it’s enough to put your signature on each sheet as confirmation. This will allow you to prove your case in court.

If the children are adults

If the children are adults, then they cannot claim property at all.

They will receive property only upon the death of one of the parents through the inheritance procedure.

An exception is an adult child included in the privatization procedure. Then he reserves the right to own a share, and everything else is distributed between the spouses.

Arbitrage practice

Judicial practice shows that almost every second person applies to the courts to resolve this issue.

The court always resolves the issue in accordance with applicable law and divides the property equally.

Therefore, in order to increase the share, it is necessary to provide as many supporting documents as possible on the deterioration of the financial condition and title documents for jointly acquired property.

On the video about the division of property in the presence of children

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