Statement of claim for division of property: sample, example of a claim for division of jointly acquired property

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The division of a land plot and the home ownership located on it between spouses may be required when they are planning to get a divorce or even have already divorced, but have not yet managed to divide the joint property. The easiest way to solve this problem is through an agreement, but this requires the consent of both parties, which is extremely rare between divorcing spouses.

How to correctly fill out a statement of claim for the division of a house and land between spouses

Any statement of claim is drawn up taking into account the provisions of Article 131 of the Code of Civil Procedure of the Russian Federation. A claim for division of a house and land between spouses is no exception in this case. However, dividing a plot of land can be somewhat problematic, depending on its size. More on this below.

Main elements of the statement of claim

The name of the judicial authorities to which the plaintiff files the application.
Details of the plaintiff and defendant. You need to write your full name, residence/registration address, contact and passport information.
Cost of the claim. It is calculated as the value of the share of property claimed by the plaintiff. Important for determining the amount of state duty.
Description of the current situation, why the division of property is required and why this was not done earlier.
Evidence that the plaintiff tried to solve the problem without resorting to court services. In this case, this is not a mandatory requirement, but it can be a plus. It is very important to provide evidence. For example, recording a conversation.
Description of the land plot and home ownership. Maximum detailed and accurate.
List of articles of law referred to by the plaintiff.
List of documents referred to by the plaintiff.
Date and signature.

Important Features

The statement of claim must be either typed on a computer or written by hand. But not both at the same time. Otherwise, the document may not be taken into account in court.
It is not recommended to present any information or accusations in the text of the claim that you cannot prove.
It is recommended that when indicating any fact in the claim, provide a link to a document that confirms this. For example, like this: “Were married from ... to ..., which is confirmed by Divorce Certificate No. ... from ....”
There is no need to prove what is already obvious or well known.
All attached documents must be copied, 1 copy for each party. At the same time, the original documents should be at hand.
In the text of the statement of claim, you should use only clear and specific phrases that cannot have double interpretation and real requirements that the court can agree with.

Articles of the law

When drawing up a statement of claim, it is necessary to indicate the articles of law on the basis of which the plaintiff puts forward his demands:

Article 38 of the RF IC (clause 1). Describes the possibility of dividing the common property of spouses both during marriage and after its dissolution.
Article 34 of the RF IC (clause 2). Explains that the common property of spouses means any property acquired during marriage, regardless of whose name it was registered in.
Article 39 of the RF IC (clause 1). Determines the ratio of each spouse's share. By default, the shares are equal, regardless of how much each spouse earned.

Features of the division of land

When dividing a land plot, one should, among other things, take into account the requirements of Article 11.9 of the Land Code of the Russian Federation. In particular, those points that indicate the minimum possible size of the plot. In different regions of the country, the requirements for the minimum sizes of different plots differ, so they should be clarified separately.

Example : In the Chelyabinsk region, the minimum plot size for building a summer cottage is 0.06 hectares, for creating a vegetable garden - 0.03 hectares, and for gardening - 0.04 hectares. In the Moscow region, these parameters are: 0.06, 0.04 and 0.06 hectares, respectively. Thus, it is impossible to divide into a plot of up to 0.12 hectares for the construction of a country house, since each of the plots obtained as a result of division cannot be less than 0.06 hectares.

Thus, if the plot cannot be divided, the court leaves it to one of the spouses, forcing the second to pay monetary compensation for his share.

Who can file a statement of claim in a divorce?

The initiator of the division of movables or real estate acquired during marriage, after the spouses no longer maintain a joint household, can be any party, in accordance with existing laws.

If there were any debts that were not repaid for a long time, claims for division of property are filed by creditors to make it more convenient to collect existing arrears.

You can receive part of the property by mutual agreement of the parties or through the court. It must be taken into account that there is a three-year statute of limitations, and it is counted not from the moment of receipt of divorce documents, but from the time when one of the spouses became aware of violations of his property rights.

Attached documents

The following package of documents must be attached to the application:

Document confirming payment of state duty. If you paid for court services electronically, you will have to print the receipt first.
The applicant's passport or any other identity document. If possible, a similar document from the defendant should be provided.
Technical passport, cadastral plan, certificate of ownership of real estate and any other documents describing the status of the disputed property at the moment.

The list provided above is incomplete. Depending on the situation, other documents may be required.

State duty

A dispute over the division of property of this type relates to property disputes and therefore the amount of the state duty is calculated taking into account subparagraph 1 of paragraph 1 of Article 333.19 of the Tax Code of the Russian Federation. It should be borne in mind that you need to pay the fee only based on the part of the real estate that you plan to receive as personal property.

Calculation example : Let’s assume that married couples purchased a country house and the land on which it is located. The appraisal report states that its value is 9 million rubles. In this case, we apply the last paragraph of paragraph 1 of paragraph 1 of Article 333.19 of the Tax Code of the Russian Federation. Thus, the state duty is determined as 0.5% of 8 million of the price (minus 1 million) and 13,200 rubles of a fixed payment are added to the resulting figure. Total: 40000+13200=53200 rubles. But this is only provided that the plaintiff claims the entire house. If the claim is made only for half, then 3.5 million rubles are taken into account (4.5 the price of half the house is 1 million according to the law). In this case, the amount of the state duty will be 20,000 + 13,200 (the fixed amount does not change) = 33,200 rubles.

You will have to pay separately for the services of appraisers. In the case of a house and land, the cost of assessment can vary between 4-8 thousand rubles, depending on the region. In addition, it should be taken into account that the state duty cannot exceed 60 thousand. Regardless of the amount of excess, the plaintiff will still have to contribute only 60 thousand.

If the plaintiff wins the case in court, he can demand compensation from the defendant for fees. This requirement does not have to be stated immediately in the claim, but can be added at any time.

Deadlines

Current or former spouses can file a claim at any time. If it is filed during a marriage, a request for divorce and division of the remaining joint property is usually immediately filed along with it. If the application is sent after the divorce, the statute of limitations must be taken into account. It is three years from the moment the right of either party was violated (or from the moment that party should have become aware of the violation of its right). This is a very important feature, since in some cases they mistakenly begin to count the statute of limitations from the moment of divorce, which is incorrect.

Example : The couple divorced. The house and land remained with the wife, but the couple did not officially divide the property. It is understood that the ex-spouse can show up at any time and demand to be allowed to live in the property, which also belongs to him. 5 years later. The ex-husband really makes such a demand to his wife. She, quite logically, refuses him. This is considered a violation of the rights of the ex-spouse, and only from this moment does the statute of limitations begin to count, since previously the ex-wife did not refute the rights of the spouse in any way. As a result, he now has three years to sue her and demand the division of property.

Filing an application for division of property to court

You can file a claim for division of joint property of spouses at any time. This can be done during marriage, during divorce. after divorce. You can divide all your property, right down to the “forks and spoons,” or you can divide only one thing. You can divide things one by one by filing claims for each item of property.

An important point in the statement of claim for division of property is the indication of the date of actual termination of the marital relationship. On this day, you could separate, completely quarrel, or commit other actions that clearly indicate that after this the family relationship was terminated. From this date, all property acquired by the spouses can be recognized as personal value; from this date, the statute of limitations can be considered.

Pay special attention to the deadlines for filing an application for division of property!

It should be borne in mind that the period for division of property is limited to 3 years, but they are counted from the day when the second spouse learned of the violation of his rights. For example, after a divorce, spouses had a dacha left for joint use; each of them freely came there and used it without any restrictions. 5 years after the divorce, the wife, in whose name the dacha is registered, decides to sell it, in this case, for the husband, the period for filing a claim in court for the division of property begins to count from the moment he learned about the possibility of sale. Another example, the couple separated after a divorce, the husband took the car purchased in his name and used it alone. In this case, the statute of limitations is counted from the moment the spouses separated.

After the statement of claim for the division of joint property of the spouses is drawn up, it is submitted to the court. In this case, the value of the property to be divided is taken into account. If the value of the property is up to 50,000 rubles, the claim is filed with a magistrate; if the value of the property to be divided is over 50,000 rubles, the civil case will be under the jurisdiction of the district (city) court. The cost of the claim is determined by the value of the property.

The statement of claim for the division of jointly acquired property is filed at the place of residence of the defendant; if real estate is divided (apartment, house, dacha, land plot, etc.), then the claim is brought at the location of this property. If the division of both movable and immovable property is declared, exclusive jurisdiction still applies - at the location of the property (Article 30 of the Code of Civil Procedure of the Russian Federation).

Be prepared to present property documents to the court. Such documents will definitely be required for real estate and cars.

Rules for filing a claim

When submitting an application, you must act strictly according to the rules, performing one step after another:

Try to conclude an agreement on the division of the house and land with your significant other. If it didn’t work out and a refusal followed, record it on record or document it.
Have your property appraised by a licensed appraisal company. It is recommended to check the company's documents, since the appraisal report may not be valid if the company does not have the right to appraise such objects. In theory, you can do it on your own, but only if the other party is guaranteed not to challenge the value of the property determined by the plaintiff, and the court also agrees with the specified figure. In practice, to speed up the process of considering a case, it is easier to immediately contact an appraisal company.
Draw up a statement of claim based on the sample and rules presented above.
Apply to the court.
Pay the state fee.
Wait for the decision and act in strict accordance with the points specified in it.

Almost always, a court decision comes into force strictly after 1 month. This time is given to the parties to file an appeal if they are not satisfied with something. After the period has passed, if one of the parties refuses to comply with the court decision, the other party can contact the enforcement service and force the court decision to be complied with.

Sample claim

It roughly looks like this:

Which court are you filing the claim in (clause 7) the address of the court (listed on the court’s website) The plaintiff is you. Indicate your full name, address, telephone number. The defendant is your spouse. Indicate your full name, address, telephone number; price of the claim – amount in rubles (item 5) state duty – amount in rubles (item 6)

STATEMENT OF CLAIM

on the division of jointly acquired property of the spouses of the year The Plaintiff entered into marriage with the Defendant ___. By the decision of the magistrate (district no.) dated (year), the marriage between the spouses was dissolved and terminated (year). Currently, there is an unresolved dispute between the parties regarding the division of property that is the joint property of the spouses. The parties were unable to resolve this dispute voluntarily. The Defendant refuses to share with the Plaintiff the joint common property acquired during the marriage. In accordance with Art. 34 of the RF IC, property acquired by spouses during marriage is their joint property. During the marriage, the following property was acquired: 1) Passenger car brand ___, color ___, registration plate ___, year of manufacture ___. Acquired (years) from the joint income of the spouses. Registered to the Defendant ___, worth about ___ rubles as of the date of filing the claim. 2) Apartment with a total area of ___ sq. m, located at: ___. Acquired (years) from the joint income of the spouses. Property rights are registered in the name of the Defendant ___, with a cadastral value of ___ rubles as of the date of filing the claim. All of the above property is at the full disposal and use of the Defendant. The documents confirming the ownership of this property are also in the possession of the Defendant, who is holding the documents, and the Plaintiff has no opportunity to obtain them on his own without the help of the court. In accordance with Art. 57 clause 1 of the Code of Civil Procedure of the Russian Federation “Evidence is presented by the parties and other persons participating in the case. The court has the right to invite them to provide additional evidence. If it is difficult for these persons to provide the necessary evidence, the court, at their request, provides assistance in collecting and requesting evidence.” In this regard, the Plaintiff asks the court to request from the Defendant the title documents for the property, namely: (see paragraph 2 and indicate the documents that you lack)___. In accordance with Art. 38 of the RF IC, the division of the common property of the spouses can be made both during the marriage and after its dissolution at the request of any of the spouses. Art. 39 clause 1. RF IC: “When dividing the common property of spouses and determining shares in this property, the shares of the spouses are recognized as equal, unless otherwise provided by the agreement between the spouses.” There is no agreement on the division of property between the spouses, as well as a marriage contract between them. In such circumstances, the plaintiff has the right to claim: ½ share in the ownership of the passenger car; ½ share in the ownership of the apartment. In accordance with Art. 252 of the Civil Code of the Russian Federation, property in shared ownership can be divided between its participants by agreement between them. A participant in shared ownership has the right to demand the allocation of his share from the common property. If the participants in shared ownership fail to reach an agreement on the method and conditions for dividing the common property or the allocation of the share of one of them, the participant in shared ownership has the right to legally demand the allocation in kind of his share from the common property. If the allocation of a share in kind is not permitted by law or is impossible without disproportionate damage to property in common ownership, the allocated owner has the right to have the value of his share paid to him by other participants in shared ownership. The disproportion between the property allocated in kind to a participant in shared ownership on the basis of this article and his share in the right of ownership shall be eliminated by payment of an appropriate sum of money or other compensation. Upon receipt of compensation in accordance with this article, the owner loses the right to a share in the common property. Based on the above norm, by virtue of the law, the Plaintiff cannot demand the allocation in kind of his ½ share from the common property of the spouses, and therefore, he is forced to ask the court to divide the property as follows: - Transfer to the sole ownership of the Defendant a passenger car ___, worth rubles. -To collect from the Defendant in favor of the Plaintiff, as compensation for the ½ share of the car due to him upon division of property, a sum of money in the amount of rubles, which is half the cost of the car. - recognize the Claimant's right to ½ share in the ownership of the apartment In accordance with Art. 30 of the Code of Civil Procedure of the Russian Federation Claims for rights to land plots, subsoil plots, buildings, including residential and non-residential premises, structures, structures, and other objects firmly connected to the land, are brought to court at the location of these objects, taking into account the above and guided by Art. Art. 30, 57, 131, 132, Code of Civil Procedure of the Russian Federation, 34, 38, 39 IC of the Russian Federation,

I ASK THE COURT:

1. Transfer to the sole ownership of the Defendant a passenger car ___, worth rubles. 2. To collect from the Defendant in favor of the Plaintiff, as compensation for the ½ share of the car due to him upon division of property, a sum of money in the amount of ___ rubles, which is half the cost of the car. 3. Terminate the Defendant’s ownership of the apartment. 4. Recognize the Plaintiff's right to ½ share in the ownership of the apartment 5. Collect ___ rubles from the Defendant in favor of the Plaintiff to reimburse the costs of paying the state duty 6. To prepare the case for trial, request from the Defendant the originals of title documents for the property, namely : ___.

Date Signature/signature transcript

Applications:

receipt of payment of the state fee; copies of the statement of claim according to the number of persons involved; copies of other documents that you attach to the claim (clause 2)

If there is a marriage contract

Before going to court, you need to remember whether you signed a marriage contract and what clauses were in it. This document may include provisions that clearly state the rights and obligations of the parties, including those related to the division of property during a divorce. They may contradict basic legal requirements. Changes to such a document can only be made with the mutual consent of the spouses, which is almost impossible to achieve when the situation comes to a divorce. As a result, the statement of claim must be drawn up taking into account what is written in the marriage contract.

Is it possible to divide property without court proceedings?

Yes, part 2 art. 38 of the Family Code provides for the right of both current and former spouses to enter into a written agreement in which it is possible to describe the order in which property will be divided.

Such an agreement must be notarized. If the former spouses cannot peacefully decide “to whom and what,” then they will have to go to court (Part 3 of Article 38 of the Criminal Code).

DOWNLOAD Agreement on the division of property of spouses (Sample 2020

Settlement agreement

If during the trial the parties find common ground and can still give in to each other, they have every right to enter into a settlement agreement. It immediately terminates the proceedings. Once such a settlement agreement is entered into, there is no appeal and it takes effect immediately (or when the parties so specify).

The amount of the state duty in this case remains unchanged.

Any division of property between spouses during a divorce or after it is a very complex process in which both parties have their own ways of proving the case and interests that are fundamentally different from the requirements of the other half. In such a situation, it is recommended that you first consult with an experienced lawyer for free and only then begin to act. We are also ready to represent your interests in court in order to achieve the most profitable and convenient solution.

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Deadline for filing an application for division of property

Spouses have the right to begin the process of dividing property within three years after they learn that their rights or legitimate interests have not been taken into account. In other words, the statute of limitations for division of property is 36 months.

By default, the period is counted from the date of divorce. However, this is not entirely true from a legal point of view. Sometimes the dates differ by years, because spouses during a divorce are in a stressful situation and do not always understand that their rights are being violated.

If the marriage has not been dissolved, property can be divided at any time. To do this, you need to go to court, prepare documents and write a statement.