Divorce proceedings This is a very frustrating procedure in itself, but it gets a lot more complicated when it comes to property disputes. In some cases, all disputes are resolved using a pre-signed marriage contract. But this practice has not yet taken root in our country on a large scale, so the division of property continues to be the cornerstone of a divorce.
The already tense atmosphere is complicated by the inability to resolve everything peacefully and the need to go to court to resolve the dispute. It is important to take into account all property subject to division, including bank deposits, if any.
Division of joint property
To begin with, let's consider how the division of jointly acquired property in general occurs in a divorce and what can be divided. All immovable property, movable property (except for personal items), income from various activities, bank deposits, jewelry, securities are subject to division.
Property received as a gift or by way of inheritance, tools of professional activity, as well as property belonging to spouses before marriage is not divided. In this case, it does not matter to which of the spouses this property is registered. Joint property will be considered and wage spouses, even if one of them did not work.
But it is also possible to include in the section property that is not subject to division, if it is proved that during the marriage its value has increased due to joint investments. For example, major repairs were made in the apartment, or additional contributions were made to the bank deposit.
The section can be carried out both by joint agreement (which is not always the case), and in judicial procedure... This process is much easier if it was concluded marriage contract... When resolving property disputes in a divorce, the court relies on the norms of the Civil and Family Code which provide for equality of shares of the spouses.
By the way, in order to claim half of the property when an agreement has not been reached, it is necessary to file a lawsuit, otherwise the property will remain with the spouse for whom it is registered. In this case, it is necessary to take into account the limitation period, which is 3 years from the moment when the spouse found out or should have found out about the violation of his right (and not from the moment of divorce, as many believe).
Nuances of the section of deposits
As we have already found out, bank deposits are part of joint property and are subject to division on a general basis in one proceeding with the division of the rest of the property. But here a number of subtleties arise that need to be known for those who decided to take this step.
The first difficulty lies in the fact that one of the spouses may simply not know about the existence of such deposits, and there is nothing to be done about it, since the banks are not obliged to ask whether the depositor is married. If there are any assumptions about this, then you can submit a request to the bank where, in the opinion of the spouse, the deposit could be opened. But it is simply impossible to check all banks in this way.
Then the court will determine the date of registration of the contribution in order to compare it with the date of marriage, the source of the contribution. And here a variety of situations can arise. For example, a contribution was made during the period of cohabitation, but it was not a new contribution, but a re-registration of a contribution that existed even before marriage, or received as a gift or inheritance. If this can be proved, then it will not be subject to division.
When opening a new deposit, it will be taken into account.
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Most of the divorces are accompanied by the division of property - apartments, cars, furniture and household appliances are divided. But often the spouses have an account in the bank - a personal, brokerage or deposit, or a large amount of money from the sale of a summer residence can be kept at home, even before the family disagreements began. How the division of bank deposits in case of a divorce and cash is carried out will be discussed in this article.
Legal bases
Funds, both in cash and in bank accounts, are classified by the law as joint property (clause 2 of article 34 of the Family Code of the Russian Federation). At the same time, it does not matter in whose name the account is opened and who exactly contributed money to it during the marriage.
The division of funds in case of a possible divorce is carried out according to the general principle, in which the shares of the spouses are equal (clause 1 of article 39 of the Family Code of the Russian Federation).
However, life is not as straightforward as legal provisions. The section of cash deposits has many nuances in practice, the most common of which will be discussed below.
Cash section
It would seem that there should not be any difficulties in dividing the cash - they took the available amount and divided it in half, but you can face the following situations:
1. The funds are hidden by the second spouse.
The problem is that sometimes an unscrupulous spouse, at the approach of a divorce, tries to withdraw that kind of money from the section. In this case, the other spouse will need to prove that the amount declared to him for the section took place. This is not always successful, since the second spouse denies the presence of money at all or indicates that it has already been spent earlier on the needs of the family.
To prove the presence of money, you can submit to the court:
- bank statements on the withdrawal of funds from the joint deposit;
- sales contracts (for example, when money was received from the sale of joint property);
- certificates of income of the spouses (when the salary of the spouses is significant, but they did not acquire any property, did not spend anywhere, because they were saving up for something specific);
- testimony of witnesses.
2. The money was spent by the second spouse.
Sometimes, with an impending divorce, the spouse, in order not to share the accumulated funds, can spend the entire amount for his own needs or by acquiring any property either at an inflated price, or something that the second spouse would never have given his consent to acquire.
In such a situation, the second spouse has the following options for action:
- prove the fact that the money was spent by the spouse for his personal needs, and not in the interests of the family, ask to recover half of the money spent.
- Dispute the transaction as concluded without the consent of the second spouse, ask it to terminate. When these requirements are met and the buyer returns the money, divide the returned amount.
Arbitrage practice
Tsyplov K.I. asked the court to invalidate the transaction for the purchase of the warehouse building, committed by his wife Tsyplova Oh.The. The plaintiff explained to the court that he and his wife were now in a state of divorce. Earlier, the spouses sold a common car, having received 1,000,000 rubles for it. Tsyplova O.V. spent this money on the purchase of a warehouse, but he did not give consent to this deal.
Considers this transaction invalid, since the warehouse was purchased from P.R. Piskunov, who belongs to O. Tsyplova. relative (grandfather). The agreement specifies the amount of 1,000,000 rubles, but the market value of the building does not exceed 400,000 rubles, so when it is divided as jointly acquired, he will receive no more than 200,000 rubles. In addition, earlier P.R. promised to present this warehouse building to his wife, his granddaughter. Thus, the contract must be terminated as concluded in order not to divide 1,000,000 between the spouses.
The court, evaluating all the arguments of Tsyplova K.I., assessing the warehouse, hearing witnesses, satisfied the claim. After that, with Tsyplova O.V. 500,000 rubles were collected.
Deposit section
By no means every contribution that a husband or wife has is subject to division upon dissolution of a marriage, even if it was opened during their family life.
Subject to section
1. A contribution opened during marriage in the name of a husband or wife, replenished from the income of the spouses, is regarded as jointly acquired and is subject to division.
At the same time, it will not play any role in whose name the account is opened, who specifically replenished it and whose earnings were larger.
This rule also applies in a situation where the husband or wife opened an account secretly from the second spouse, money was deposited without his knowledge, for example, from bonuses or part-time jobs.
Even if one of the couple did not work for valid reasons, since he was engaged in housekeeping and raising children or was disabled for health reasons, and only one spouse was involved in providing for the family, the contribution will be considered jointly acquired and will be divided in equal shares.
2. Brokerage account.
When transferring to the broker the common funds of the spouses for making transactions with securities, the broker sends all the income received from such transactions to a special brokerage account. All funds available in the brokerage account are related to those acquired during the marriage and subject to division as joint property. The law does not contain any exceptions for brokerage accounts.
3. The deposit is open before marriage, but during the period of family life, money was made for it.
If the account is opened in the name of one of the spouses before his or her marriage or marriage, but this account was replenished during the time of marriage with common marital funds, the amount that was paid during the period of marriage will be subject to division. Interest accrued on this amount is also subject to section.
4. The deposit was opened during the marriage, one of the married couple, without the consent of the other, withdrew everything on the account.
In such a situation, the second spouse must declare requirements for the distribution of not deposits, but cash, as described in the previous section. In this case, it is necessary to submit to the court an account statement on the withdrawal of money.
Not subject to division
1. The contribution is open before marriage.
If an account is opened in the name of a husband or wife before the official registration of marriage, everything in this account is the personal property of the depositor, which follows from the provisions of Art. 36 of the Family Code of the Russian Federation).
Even if, during marriage, funds are withdrawn from the account and another is opened in the same or another bank (for example, to receive a higher interest on the deposit), the funds remain the personal property of the owner of the deposit.
The exception is cases of replenishment with funds that are common to the marriage. In this situation, only that part of the contribution that was replenished from the family's funds is divided equally.
2. The deposit was replenished with the personal funds of one of the spouses.
If money donated or inherited by a husband or wife, as well as funds received from the sale of donated, inherited or personal property, were deposited into the account, it is the property of the depositor (Article 36 of the Family Code of the Russian Federation).
3. The contribution is open during the period of formalized relations, but after the actual termination of family life.
The official divorce and the actual breakup of the family almost never coincide in time. It is not uncommon for people to part for months, and sometimes years before the official registration of the divorce.
During this period, each spouse may acquire new property or money will be accumulated. The law proceeds from the fact that everything acquired by each of the married couple during this period should become his personal property and should not be shared in case of divorce.
Therefore, if the husband or wife opens an account after the end of their life together with the spouse, but before the divorce is filed, the contribution will not be subject to the section, provided that the funds earned after the separation will be deposited.
If, on such a contribution, money is deposited, accumulated during their life together or received from the sale of matrimonial property, the property is subject to division.
4. Contribution opened in the name of common children.
If parents open an account in the name of their common child and contribute money to it, in the event of their divorce, such a contribution is not subject to division (clause 5 of article 38 of the Family Code of the Russian Federation). Everything entered into the account of the child belongs exclusively to him.
This rule applies only to the common children of the spouses. If an account is opened in the name of a child of only one of the couple, even if he is raised by the spouses jointly and there was the consent of the spouse's step-child to deposit money into the account, in the event of a divorce, such a contribution is included in the joint property and must be divided equally between the spouses.
Section order
Marriage contract
Spouses, just planning to get married or are already married, can settle in advance all financial issues that may arise in case of a possible divorce. This is achieved by imprisonment marriage contract, drawn up by a notary (Article 41 of the Family Code of the Russian Federation).
In this agreement, the spouses can establish that the deposits will belong to the spouse in whose name they are open, regardless of the source of replenishment. It is also possible to establish a proportional division of funds on deposits other than provided for by law, for example, 2/3 of the deposits will go to the person with whom the children stay.
Voluntary
When the spouses, terminating family relations, retain the ability to independently resolve all property issues, it would be most reasonable to agree on the division of everything jointly acquired, including money and deposits, having formalized the agreements reached. The document must be drawn up and certified by a notary, otherwise it will not have legal force, the order of the section, enshrined in it, cannot be implemented even through the courts (clause 2 of article 38 of the Family Code of the Russian Federation).
When concluding such a voluntary agreement, the spouses can register any procedure for the division of property and deposits that suits them.
Judicial
When a divorcing couple does not want or cannot decide on their own how to divide their property acquired in marriage, it is necessary to go to court.
Statement of claim
To carry out the division of money and deposits, you must file a statement of claim in court. The application may contain both a separate demand to make a section of the deposit or a certain amount of money, or be combined with a demand for divorce, the recovery of alimony, the division of other property.
A claim for the division of a bank deposit between the spouses is filed with the magistrate, if it is necessary to divide the deposit, the plaintiff's share in which does not exceed 50,000 rubles, to the district court - if this amount is exceeded. You need to go to the court at the address of the defendant's residence. If alimony is being collected at the same time, it is possible to file a claim at the address of the plaintiff, and if the plaintiff also asks to divide any real estate, in this case, the filing takes place at the address of the location of such property.
In addition, it is necessary to pay a state duty, which is calculated based on the amount of the deposit, which the plaintiff claims.
You can take a sample of the claim on the Internet or contact a lawyer for drafting it. When self-writing, the following must be included in the application:
- The name of the district court or magistrate where the claim is being filed.
- FULL NAME. plaintiff and defendant, their address, you can specify phone numbers, e-mail addresses.
- The name of the bank to be attracted by a third party and its address.
- The name "Statement of Claim".
- Claim price (the amount that the plaintiff is asking to split).
- Description of the situation (state of marriage or formalized divorce, conclusion of a marriage contract, other specific circumstances of the case).
- Transfer of deposits or indication of the amount of cash that the plaintiff asks to share.
- References to the norms of law (Articles 34, 38, 39 of the Family Code of the Russian Federation).
- The requirement to divide money and deposits equally, indicating a specific amount.
- List of documents attached to the application.
- Date, signature.
The following documents must be attached to the claim:
- Receipt or check for payment of state duty.
- Marriage and divorce documents (if issued).
- Bank statements about open deposits.
- Documents confirming the existence of a certain amount of cash (for example, a sales contract, bank statements on account closure and withdrawals, etc.)
- Power of attorney for a representative (with his participation in the case).
- A copy of the claim with attachments for the defendant and the bank.
Establishment of all open deposits.
It so happens that a husband or wife is not aware of all the financial affairs of his spouse with their family property. In case of a divorce in a claim, you must indicate all deposits, with the name of the bank and account numbers that are subject to division. However, sometimes the spouse simply does not have such data.
It is not possible to obtain them on your own, since such data is classified as banking secrecy. The bank itself will refuse to provide such information.
To establish all accounts subject to division, you need to file a petition with the court to send a request to all banks to provide information on the accounts opened in the name of the spouse.
After receiving answers, if deposits are identified that the plaintiff did not know about, it is necessary to increase the amount of claims, asking to divide the identified deposits. In this case, it will be necessary to pay additional state duty.
Interim measures (seizure of the account).
In order to prevent unfair actions on the part of a dishonest spouse, who, having learned about the upcoming trial, may withdraw all the money from the account, it is necessary to request the application of interim measures from the court. In this case, you need to ask to seize the account. After that, funds will continue to be credited to the account, however, it will not be possible to withdraw money from it, as well as close it.
To impose an arrest, you need to submit a petition to the court. This can be done both in the text of the claim itself, and in a separate document. The petition itself can be filed both with the claim, and at any time thereafter, before the court makes a decision. In the application, it is necessary to indicate the bank where the deposit is open and the account number.
If the plaintiff does not have this information, then it is necessary to file a petition for the reclamation of data on open accounts in the name of the defendant from banks. After receiving this information, already file a motion for seizure.
When the relationship is terminated, the spouses have many disagreements regarding joint property, special attention deserves a section of contributions in case of divorce. How the deposits will be divided, let's figure it out, because this question is quite large-scale. To begin with, you should classify the list of property that is subject to distribution in case of divorce.
So, the following types of property are subject to division:
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- Immovable objects, including apartments, summer cottages, houses, land plots.
- Securities.
- Movable objects, including cars, motorcycles, special equipment.
- Luxury goods and precious metals, stones.
- Shares in the capital of commercial structures.
- Income, including allowances and bonuses from work.
- Entrepreneurial income.
- Benefits paid to one spouse or couple, but non-earmarked payments only.
- Bank deposits.
As we can see, bank deposits in case of divorce are divided between the divorced citizens. But this is if the deposits belong to the category of jointly acquired property, such that was acquired in marriage. But what if the money was set aside by a citizen even before the creation of a family or savings went to the applicant from relatives as a gift. How to find a way out of such situations. Let's try to figure it out.
Situations with deposits that take place in judicial practice:
- The first case - the contribution is open until the conclusion of the marriage relationship. In this situation, the other half may not count on the division, since the deposited money is the applicant's personal property.
- The second case - the contribution was made in marriage, but it was formed from the personal funds of the spouse. These can be funds raised from the sale of personal property. For example, a wife sold an apartment that she inherited from her grandmother. The second option: the husband sold the car he bought before marriage. Such a deposit is not divided upon dissolution of a marriage between spouses.
- The third case - savings began to be kept in banks already during the existence of the family, but they were registered in the name of a minor child. To answer the question whether such a contribution is subject to a section, let us turn to Part 5 of Art. 38 of the Family Code of the Russian Federation. It clearly states that - savings allocated by spouses at the expense of the spouses' joint property and registered in the name of common minor offspring are considered the property of these minors and are not subject to distribution among divorced citizens.
- The fourth case - the money was deposited into a bank account by one spouse, without the knowledge of the second participant in family law relations. Such a contribution will be classified as joint property and shall be distributed among the spouses in equal shares, unless it is proven that these are personal funds of the applicant.
- The fifth case - the deposit was made in marriage, but for the period when the spouses lived separately, therefore, each one controlled his own financial situation. If the couple divorced, then the owner of the deposit needs to be able to prove that the deposit was formalized during separation, when the marriage relationship actually ended. Otherwise, if there is no hard evidence, everything will be divided in half.
- The sixth case - the deposit was opened in the family, but before the division of the property, one family man managed to withdraw funds. In order to divide the funds between the applicants in equal shares, the first participant will have to prove to the court that former spouse spent money against his will. It also requires proof that the funds were spent not on family needs, but on meeting the needs of one family man.
- Seventh case - the deposit was opened before marriage and was formed from the personal funds of one participant, but supplemented by the couple's joint money for the time family relations... In this situation, the following distribution of shares will occur: 50% to 50%. It is believed that half of the funds are divided between the spouses, and the other half is the inviolable part of the depositor.
How to prevent the second spouse from hiding money?
Before filing a claim for the division of property, the applicant must send a petition for a court request to the bank. This is done in order to find out if the institution has deposits in the name of the second spouse. Bank employees must provide the necessary information in a timely manner. Such a requirement is stated in Art. 57 Code of Civil Procedure of the Russian Federation.
When there is a reasonable risk that the second spouse will close the account, spend (hide) funds even before the trial, then it is necessary to initiate the application of a special measure to save funds. This possibility is provided for in Art. 131-132 Code of Civil Procedure of the Russian Federation. Based on the results of consideration of the appeal, the court may seize all bank accounts.
This is done so that one spouse cannot manage (spend) the joint money. This situation does not tolerate delay. If the funds are withdrawn before the trial, then it will not be easy for the second participant to claim his share.
How the judicial section works
In order to legally and fairly divide funds from bank deposits in case of divorce, you need to go to court in a timely manner. It is important to collect convincing evidence of your rights to money. An important point- a correctly drawn up statement of claim.
So, in the application for the division of property, it is necessary to provide for the following points:
- The name of the court where the application is submitted. Most often this is the district court at the place of residence of the defendant or the location of the property.
- Personal information about the plaintiff and the defendant. This is the full name, address of registration and actual residence, passport data.
- The cost of the claim, equal to the value of the joint property.
- The name of the document, in our case - “Statement of claim on the division of joint (common) property (funds in a bank account, deposit).
- Circumstances that directly relate to the case:
- the date of opening the deposit;
- date of marriage registration;
- origin of funds;
- the amount of savings;
- belonging of the second spouse to increasing the personal contribution of the second half.
- Requirement for the court. At this point, the plaintiff expresses his opinion on how the section should be made.
- List of attached documents.
- The date the document was compiled.
- Applicant's signature.
The article touches on the main points regarding the section of contributions in case of a divorce. For more detailed information, you need to use the services of a lawyer.
