The completion of family life through divorce often results not only in some trauma but also in significant financial loss. Please describe how property, financial assets and debts are divided by law.
Rarely the spouses sign a special contract at the conclusion of the marriage, which describes all the necessary conditions. In addition, it is not uncommon for divorced ex-spouses to be unable to agree on the division of property. In cases like this, you need an independent evaluation, on the basis of which a claim is usually filed with the courts. Where and will be considered the division of jointly acquired property.
The courts dealt with such cases on a case-by-case basis, since many important factors had to be taken into account. And solutions can be unpredictable.
The procedure of the division of property should be carried out no later than 3 years after the receipt of the divorce certificate. If the application is filed later, the court may reject it on the grounds that the limitation period has expired. In addition, if the process of division of property is delayed, there may be some difficulties in determining the market value retroactively using the so-called retrospective evaluation.
According to the legislation in force, all property that the spouses were able to acquire during their marriage is joint. And therefore, in divorce, it’s divided equally. If, for example, one of the spouses in the divorce took a car, and the second cat, and for 3 years they did not have any objections, then after this period to change this situation will not work.
What is meant by joint property?
Usually all the money that both spouses received during the marriage will be recognized as the total income in the family:
- salary, awards and other such financial payments that are linked with work;
- income from various works as an entrepreneur;
- fees and other income from intellectual work;
- pension, allowance, compensation and other social payments, excluding benefits of a targeted nature.
All that the spouses have acquired from this income or investment from these funds is also considered joint property, which is subject to evaluation for presentation in court:
- real estate objects, cars and other vehicles;
- pieces of furniture, computer equipment, for example, laptops and other accessories used by all family members;
- deposits in banking structures, units, securities and other financial assets.
Interestingly, that when conducting the usual evaluation for taxation by a notary prices of movable property are not taken into account. But when making an evaluation for the division of property of the spouses, market the value of furniture and household appliances have to be taken into account. For this property the appraiser makes a separate document.
It is important to know that it does not matter who owns property on documents or which spouse contributed the funds.
What is meant by personal property?
The list of what is not referred to as joint property is quite extensive. For example, this type of personal property includes:
Property acquired before marriage.
In the event that one spouse before marriage had an apartment, car, financial assets, elite things, then they are not divided and do not consider as common property. There may be a real need for documents that prove ownership of such assets before marriage.
In the case when personal property has been changed or improved using common family finances and its value has grown significantly, the court may decide in divorce proceedings that such property is recognized as common.
Another example. The apartment was donated or bought before the wedding, and then together with her husband, repair procedures were carried out in it, a set of works to improve the interior decoration. In such cases, the court may grant recognition of the property as joint property. According to the results of apartment evaluation and will be determined, what proportion should be allocated to each spouse. The same way the court can act if a major repair of the machine has taken place. It is important that the physical condition of residential building or an apartment must be taken into account in their valuation.
Presents and inheritance.
In a situation where prior to marriage one of the spouses received a gift or inheritance of real estate, car or money deposit in the banking structure, then they will not need to be divided during the divorce procedure. It would only be necessary to have supporting documentation, such as a gift contract or similar kind of establishing right. In some cases, testimony can help.
If such property has been improved or altered through the use of the general finances or funds of the other spouse, it will have to be divided.
Payments with targeted nature.
The various payments that are targeted are not divided in divorce proceedings. For example, disability benefits will be recognized as personal funds of the recipient. And they do not need to be divided.
Curling irons, clothing, shoes and much more are considered personal items. But precious products and elite products are considered joint property. Inexpensive jewelry left to the wife. But products of gold of other precious metals, acquired in marriage, it is necessary to divide equally or pay half of their market value.
By elite or luxury items, a trial can mean completely different things. The court carefully considers and takes into account the specific circumstances, and only then does it make a final decision.
In a situation where an elite product was donated before marriage, it is considered a personal property. Relevant evidence, such as witness statements or gift agreements, will be required. But the services of an independent appraiser in this case will not be needed.
Objects of intellectual property.
In the case of the invention of a utility model, the writing of a book, the composition of a song or the production of a movie, all these products are recognized as personal intellectual property. The other spouse will not be able to assert his right to property in divorce proceedings.
However, the royalties and royalties that were paid during the marriage will be considered common income and must be separated. But the contributions that come after the divorce procedure will be the property of the author alone.
Finances and belongings of children.
Children’s clothes, shoes, books, school clothes and other items are not separated in divorce proceedings. They will be given to the ex-spouse who will actually live with the children.
Financial contributions for children are also not divided. They are considering as property of children.
Acquisitions of spouses in separate living.
There are situations when the spouses have not yet divorced, but in fact do not live together. And they do not have joint farming. If at that time one of the spouses has bought some valuable things, then they can be considered personal property in court. Accordingly, there will be no need for evaluation of such property.
Are the financial assets sharing?
If the spouse in marriage opens a bank account of one kind or another, the assets are recognized as common property after the dissolution of the marriage. Except in situations where donations or inherited money were used for contribution.
If the deposit is opened before the marriage, only the funds received during the family life will be shared.
In all cases the property is divided equally?
As a rule, very often. This does not have the role of the share of the spouses in the formation of the income of the family budget. Even if one of the spouses did not work for a good reason. Although, if one of the spouses did not work without any valid reason, the property could be divided and not in equal shares.
It was possible to obtain compensation through the courts if one of the spouses regularly spent the common funds to the detriment of the common interest. Like gambling, for example.
In addition, there are situations where one of the spouses signed a contract without the consent of the other. For example, I invested the total money in the bank, and it went bankrupt. In such cases, the court sometimes decides to declare the transaction null and void or takes into account the interests of the injured party in the division of property.
The court may also take into account the interests of children up to the age of 18. And he can allocate most of his property to the person who will be taking care for them.
Also, parts of the property may not be the same in case of divorce, if a marriage agreement was signed, which specified special conditions. But in most cases, the court relies on the results of expert evaluation.
Are debts also equally divided?
Not in all cases. If the spouses were joint borrowers in the same loan, it is their common debt. But those loans that were taken by one person may be recognized personal debts. But here it depends on the specific circumstances. In particular, on what was spent this loan.
Joint debts are distributed among the former spouses in the same way as in the case of the division of joint property. For example, mortgage obligations per house are divided proportionally to the area that is transferred to one side and the other.
Each spouse pays his or her own debts. In this case, creditors, collectors or even bailiffs have no reason to claim payment from the spouse of such debtor, both in marriage and after it.
However, there are situations where credit is made for one spouse and money is spent together. Such debts may be recognized as joint debts during the trial if appropriate evidence is provided.