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Friday, October 28, 2016

5 common mistakes when dividing property between spouses

According to the UN estimates, Russia is among the leaders in the number of divorces. With half of marriages fail because of the insecurity of living conditions. Not by chance, one second divorce in our country ends with insoluble property disputes between former spouses.

photo: Gennady Cherkasov

A subtle point

Divorce in Russia is worse than a fire: besides the loss of property, it often brings to its participants a complete emotional devastation. My buddy recently experienced a lot of stress. 10 years ago he came to Moscow at the invitation of well-known companies. Worked for three, put a down payment on a house on the outskirts of the capital, and finally married the woman he loves. But some time between the spouses ran a black cat, and they decided to leave. The court found that, because the man was fully settled with the developer after the wedding, the wife has a legal right to the apartment. Good that the woman was from a good Moscow family, and renounced all claims. In General, the guy was lucky.

If the apartment building is purchased in installments by the husband before marriage, but the settlement with the developer was completed after marriage, the husband or wife will be entitled to share in the apartment, which is equivalent to be paid in the marriage means. That is, not having in the initial phase is irrelevant to the buying spouse may apply for divorce on that portion of the apartment that corresponds to the payments made during the marriage.

“The courts often consider the questions about when does the right of spouses to property in new buildings — from the moment of entering the funds for him or from the date of registration of property rights. Clearly — from the moment of payment of the equity participation agreement or the assignment of rights. If, after such payment, the holders were married, and then issued the right of ownership, the spouse of the apartment can not claim,” — said the lawyer Oleg Sukhov.

Dear plaster

Often one spouse is trying to share in the new property purchased before the marriage with funds of the other spouse, using the “essential improvements” housing. The argument most often used the fact that the other spouse after the overhaul in the apartment will have the same rights to the apartment, even if the right of ownership issued to the owner prior to the marriage. In fact plastered the apartment walls, wiring and other capital improvements are recognized as jointly acquired property.

Repair should be documented, that is in the hands of a spouse must be a contract for execution of works. However, to solve this issue, as a rule, there is no difficulty. Even after the fact the construction companies are willing to execute such contract. It is important to note that the types of property that are not recognized jointly acquired property (gift, inheritance, or privatization), go to the category of jointly acquired property, if this property was overhauled during the marriage.

However, the chance to win a case on such grounds is small. “The demand for recognition of the right to a share of the estate — such as apartments — in account made it is a common misconception. The requirements the courts generally denied,” the lawyer said.

Gift parents

Today often, especially in young families, the parents of one of the spouses give their children money to buy an apartment. If this property is purchased in the marriage, then to prove in court in the divorce that he was purchased with the money, no family, and parents of the husband or wife, is almost impossible. And that means that the party that has not invested a single penny in the purchase, will be eligible for a 50% ownership in a divorce.

“Disputes with the donation money and purchase of property is very specific, but simple. So, if the parents bought the couple the property, it is community. And if you gave one of the spouses money to purchase, it must be notarized, otherwise, the court will deny the recognition of individual property”, — said the lawyer.

A large proportion

Sometimes one spouse wants a bigger share in the joint ownership. For example, pointing out that with him is to live the child, or on the grounds that he has invested personal funds in its purchase: the evidence is collected confirming that at the time of purchase of the apartment they had no family relations, and so all attachments have been their personal.

However, to prove in court that the apartment had invested personal funds of a spouse is extremely difficult. And it turns out it is rare, even if the other spouse was not working. The chance appears, if we can prove that the purchase went personal funds received prior to the marriage.

Communal trap

When dividing property the court shall determine the order of use of the joint property of the spouses, that is actually what the room may be used by only one spouse. Particularly “interesting” this practice is for apartments, where there are two isolated rooms (studios, apartments with a free plan). The advantage to staying in an isolated room has a spouse, in the apartment and actually living in it.

If both spouses are registered and live in the apartment, the court in its discretion determines the order of use. “In practice there are cases when one spouse room set, and another is given the right to redevelop with the possibility of selection for yourself room,” — says the Director of Est-a-Tet Alexey Bernadskiy. In his words, for one-bedroom apartments courts refuse to determine the order of use, that is the couple’s responsibility to understand who will be living in the apartment. In any case, the joint property of divorced spouses, each of whom wants to live in it — it’s actually a communal apartment, where everyone has their own room, “locked”.

“Half of married couples sells such property, and the other half — or unsuccessfully suing, or tolerate living in a “communal”. For our country this situation is literally the beach, almost all couples fall into this trap, and no one calculates their risks, believing that marriage is “eternal” or everything will be resolved amicably in the divorce,” says Bernadsky.

In his opinion, the main question in all property disputes between former spouses continue to use joint ownership because if they fail to negotiate the sale, in fact two are already strangers to each other person are doomed to live together in one apartment. “To sell a stake in an apartment is almost impossible, its market price is negligible — about 40% of half the purchase price (that is, if the apartment is worth 8 million rubles, the share of 50% can be obtained only 1.6 million rubles). Moreover, this transaction may be challenged in court by a co-owner on the basis of improper notice of sale, he has a preferential right of purchase. With such matters the courts are simply overwhelmed,” he said.

A bad peace

According to the lawyers, between the former spouses in addition to real estate very often there are disputes over the repayment of loans, often mortgages. “The courts establish who took the credit and the needs for which it was spent. If family, give to all equally. If only on the needs or property of a spouse to give something back to him”, — said Sukhov. According to him, often in the courts considered and compensation to the spouse of half of the sale price of the other spouse’s property: “If the spouses ceased to live with a family, i.e. together, and one of them, for example, sold a car purchased during the marriage, half of its cost will have to pay the other spouse”.

To minimize the risks of property disputes, lawyers are advised to register before the wedding, the marriage contract, which is able to eliminate all possible disputes in a divorce. “With regard to maintenance here will help the agreement to pay alimony. Although arrangements can be very difficult, and sometimes impossible, — says Sukhov. — If you want to save nerves, time and money during the divorce to divide the property as required by law, or the agreement is good at negotiations.” Another good option is mediation (dispute settlement with participation of a neutral, impartial mediator-lawyer). Better a bad peace than a good war.


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