People meet, people fall in love, marry ...
And almost everyone is confident that they will live long and happy and die in one day. Long and happily, everyone gets differently. This article for those who could not die in one day.
Divorce - the procedure is unpleasant, but unfortunately, very common in modern society. And in most cases, the divorce is accompanied by a section of the joint property of the Surugov, to which, according to Part 1 of Art. 34 of the Family Code of the Russian Federation, applies property acquired during the period of marriage for joint funds of spouses.
In the event that the former spouses could not agree on the division of the investigation acquired by them in marriage, the cases of this kind are permitted exclusively in court. So how will they be divided between the spouses of their good taking into account, including, and the availability of juvenile children?
In the same Family Code, it is indicated that the shares of spouses in general property are considered equal, unless otherwise provided by the relevant contract between spouses.
In this case, it is not only about the marriage contract, but also about the agreement on the section of jointly proven property, which can be concluded both during the period of marriage and after its termination.
Can the presence of children in the family to change the situation with the property section?
Russian legislation provides such an opportunity. In accordance with Article 39 of the Family Code of the Russian Federation, the court has the right to retreat from the beginning of equality of the share of spouses in jointly accommodated property on the basis of the interests of juvenile children.
But at the same time, in paragraph 4 of Article 60 of the SC RF, the provision that the child does not have ownership of the property of the parents are enshrined.
Thus, the accounting of interests of juvenile children can be carried out in the section of the property between the parents' spouses together in marriage property by increasing the share of the spouse, with whom children will stay.
Nevertheless, despite the provisions of the law, judicial practice on such cases is ambiguous. The courts decide such affairs on the basis of the specific circumstances of the case, and the fact that children after the divorce will remain with you does not mean that your share in the property in the section will be enlarged.
The court is not always, as judicial practice shows, falls on the side of the parents, with whom the juvenile children remain. But if the Court comes to the conclusion about the presence of circumstances, allowing to retreat from the principle of equality of the share, then this may concern both immovable and other property, is based on spouses.
Lawyer Ekaterina Yermilova
Photo: instagram.com/advokatermilova/
What will not be subject to section?
This is a prevail of spouses, as well as the property that, although purchased during the period of marriage, but for gratuitous transactions. For example, it is presented to one of the spouses or inherited. And in any case will not be recognized by joint property and divided by what was purchased for children and their satisfaction of their needs. Thus, bank deposits, open in the name of juvenile children, are not subject to section between spouses, regardless of who the contribution was opened and children remain with whom. Real estate, or movable, but to be registered, decorated in the child's name will also not be subject to section.
That is from parents who will remain with children after divorce, it should be remembered that Russian legislation protects the rights and legitimate interests of minor children. Therefore, he has every reason to seek a section of jointly proven real estate not in equal shares, but based on the real needs and interests of children.
In the context of the existing practice of issuing maternal capital certificates in Russia, the question of whether its funds or share in housing is subject to the separation of its means of maternal capital. So, that part of the real estate, which is paid from the Maternity Capital, should be divided into equal shares between all family members. That is, the apartment acquired using these funds will not be divided into equal shares between spouses, part will be mandatory allocated to the ownership of children.
In any case, the division of property in the presence of children is a difficult question. Not only your material well-being depends on it, but also the well-being of your children who are not able to independently protect their interests. Therefore, the optimal solution will be the appeal for help to a lawyer or a qualified lawyer.