Why divide property in a divorce case?

Not only the plaintiff, but also the other party to the legal dispute has the right to make claims and substantiate them with evidence in court proceedings. The defendant may choose one of two defense strategies:

• Defend against the plaintiff’s demands as part of his claims, countering them with his own evidence.
• File a counterclaim for the division of property during a divorce, putting forward your own demands.

To know how to correctly write and file counterclaims in a property dispute upon divorce, you need to understand the following issues:

1. In what cases does the law allow the defendant to file counter-objections to the statement of claim?
2. What blocks is the statement of counterclaim divided into?
3. What papers are attached to it?
4. What is the state fee for the provision of judicial services?
5. What are the features of drawing up and submitting this document?

When to file a counterclaim

According to the rules enshrined in the Civil Procedure Code, counterclaims can be presented:

• Until the court makes a final decision on the case.
• Only the defendant.

The judicial authority has the right to accept a counter-statement with a request for its consideration if the following conditions are met:

1. A mutual connection between the initial and counterclaims has been discovered, and this, from the point of view of the court, will help to quickly resolve the property disputes of spouses who want to divorce.
2. The counterclaim presents claims that are completely opposite to the original one, and their satisfaction precludes recognition of the plaintiff’s claims, partially or completely.
3. The purpose of a counter-statement is to offset the claims made in the original statement.

If the counterclaims formalized in the application do not correspond to any of the conditions of the above list, then the judge is obliged to issue a ruling that provides for the refusal to accept the claim. According to legislative norms, it cannot be appealed, since the refusal does not deprive the defendant of the opportunity to transfer his application to another court for separate consideration.

When to file a counterclaim for division of property

The possibility of filing a counterclaim is provided for in Art. Art. 137, 138 Code of Civil Procedure of the Russian Federation. This rule also applies to cases where spouses share a business or joint assets. In the case where one of the family members simply opposes the distribution of property, the usual objections to the statement of claim are sufficient.

However, when there are alternative requirements, the conversation is about a claim. In relation to the property of a married couple, such cases are possible.

Situation 1. The wife filed a claim for divorce without any material claims. At the same time, the husband insists on deciding the future fate of the property.

Situation 2. The plaintiff in the original application proposed his own version of dividing the apartment. But the defendant is categorically against it, believing that there should be a different scheme.

Situation 3. The subject of the dispute included property classified as personal in accordance with the law. Then the counterclaim puts forward a demand to exclude the relevant assets from the list of joint assets.

Another example is related to the application of Art. 37 of the RF IC, which talks about the consequences of improving personal property in marriage. Here the essence of counterclaims will be a change in the status of property.

Document structure

A sample counterclaim for the division of jointly acquired property, which can be found on the Internet, and forms for filling out a counterclaim, issued to an interested party in court, have a certain structure enshrined in the norms of the Civil Procedure Code.

The statement of counterclaim consists of three blocks:

1. Top or cap. Here the name of the court to which the application is sent is indicated, the personal data of the defendant making the claim and the plaintiff are written. Then the price of the claims is indicated.
2. The descriptive and motivational part sets out the defendant’s justification for why the plaintiff’s application cannot be satisfied, and provides evidence confirming the correctness of the defendant’s judgments. In addition, references are provided to articles of regulations that prove the applicant’s position.
3. The operative part contains a complete list of objections that the applicant plans to satisfy by court decision, a list of official papers attached to the application, and the date of preparation and the signature of the originator.

How to properly draft a counterclaim

Formally speaking, a counterclaim is an independent claim for the division of marital property, which is considered in court simultaneously with other claims arising from family and civil legal relations - in order to save time and resources. Based on this, the procedure for drawing up and filing a counterclaim is almost no different from the procedure for preparing and filing the main claim provided for by civil procedure legislation. Thus, a counterclaim is prepared as a written document, the form and content of which must comply with Articles 131, 132 of the Code of Civil Procedure of the Russian Federation. It is impossible to state counterclaims in a free, oral form.

The counterclaim must contain the following information:

• The name of the court to which the counterclaim is filed;
• Full name of the parties, place of residence, telephone number and other personal information of the plaintiff and defendant.
• The price of the claim (according to Article 91 of the Code of Civil Procedure of the Russian Federation, the price of the claim is the value of part of the joint marital property claimed by the applicant). If the plaintiff disagrees with the stated price of the claim, he has the right to request an independent expert assessment of the disputed property. If the court considers the price of the claim to be incorrect, it can determine it independently, in accordance with paragraph 2 of Art. 91 Code of Civil Procedure of the Russian Federation.
• Information about the original claim (date of filing, case number, subject of consideration), which is already under consideration by the court;
• A detailed statement of the circumstances that arose between the spouses in chronological order (date of marriage, date of registration of divorce, separation, impossibility of living together, etc.) with links to supporting documents;
• A list and description of the property that is the subject of a dispute between the parties and must be divided (indicating the ownership, date of acquisition, initial and market value, taking into account wear and tear at the time of division) with links to supporting documents;
• The essence of the dispute: information about the violation of the defendant’s property rights by the plaintiff (or the threat of such a violation) - concealment, appropriation, restriction of access, information about other circumstances forcing the defendant to go to court for protection of property rights and division of property;
• Justification of the need to consider the counterclaims of the defendant together with the initial demands of the plaintiff, an indication of the existence of legal grounds and compliance with the conditions provided for in articles ...;
• Counterclaims for the division of marital property, the method and procedure for division acceptable to the defendant;
• List of applications;
• Date of filing the counterclaim;
• Signature.

List of attached documents

The following documents are attached to the original application sent by the defendant for proceedings to the judicial authority:

• Several copies of the document containing counterclaims, depending on the number of plaintiffs.
• A copy of the data taken from the applicant's passport.
• A certificate confirming the existence of a registered marriage between the parties to a legal dispute.
• Documents indicating that real estate and other material assets are jointly owned by the wife and husband, for example, a certificate of ownership of residential premises.
• Papers proving the defendant's claims to property, for example, extracts from the technical inventory bureau, certificates from the cadastre authorities, an appraiser's conclusion, invoices or checks.
• If the dispute is not limited to property claims, but concerns the determination of the future fate of common children and the issue of collecting alimony, then it is necessary to provide evidence certifying the fact of the birth of common children of a married couple.
• A receipt, check or other document certifying the transfer of money to the treasury for payment of the state duty.

Documents attached to the counterclaim

The list of documentation attached to the counterclaim is exactly the same as to the initial one, that is, it is regulated by the provisions of Art. 132 Code of Civil Procedure.

You must attach several copies of each document. The number of copies is determined by the number of persons participating in the process. When dividing property, there are usually 2 of them (plaintiff and defendant), but there may also be third parties (for example, creditors).

In any case, copies of the following documents will be required:

1. defendant's passport;
2. counterclaim;
3. power of attorney and passport of the representative (if the counterclaim is filed by an authorized person acting on the basis and within the framework of a power of attorney issued in the manner established by Chapter 10 of the Civil Code of the Russian Federation);
4. certificate of divorce and marriage;
5. a receipt confirming payment of the state fee;
6. various documents to prove the counterclaims.

State duty

Due to the fact that the document being sought, submitted for trial to a judicial authority, puts forward claims of a property nature, the cost of the claim is the criterion by which the amount of the state fee is calculated.

In order to justify the price indicated in the application, it is necessary to provide written evidence confirming the value of the disputed joint property. It can be:

1. Any invoices, receipts, checks, sales contracts, which clearly state the amount of money that was paid for the item.
2. To estimate the value of real estate assets, you can use the assessment of the cadastre authorities or information from the BTI.
3. Conclusion of a professional appraiser.

Having completed the assessment of the disputed property, you should proceed to the procedure for calculating the state duty. It is calculated according to the rules indicated in the table below.

Where and how to serve (step by step instructions)

Within the meaning of Article One Hundred and Thirty-Seven of the Civil Procedure Code, counterclaims are sent with jurisdiction to the same judicial body that accepted the requirements for the initial statement of claim for consideration.

The procedure for filing a counterclaim is as follows:

1. It can be sent for consideration only from the moment when the defendant learned from the statement of claim about the property claims on the part of the plaintiff, and until the moment when the court makes a final decision on the dispute.
2. An application with attached documents and a receipt for payment of the state fee can be submitted both during the court hearing to consider claims, and outside it during the working hours of court officials.
3. To submit a counterclaim for trial, the defendant must appear in person at the trial or to the secretary of the judge considering the dispute between the spouses and submit an application with a package of documents.

Subtleties in various situations

Loans

Family law establishes that the joint assets of spouses are divided in half, unless they have specified other conditions in the marriage contract. These rules also regulate how common debts are divided.

However, during the dissolution of the marriage through the court, the husband or wife may try to transfer part of their debt obligations to the other spouse. To defend your rights, you need to understand which loans are considered joint and which are personal, and legally substantiate your position in a counterclaim.

Funds received under loan agreements will be considered general if:

• The loan money was taken by one of the participants in the marriage relationship, but it was spent on family needs.
• Both spouses borrowed funds and are official borrowers under the loan agreement.

Debts are recognized by law as personified in the following cases:

1. Borrowing finance for transactions that are personal in nature, for example, paying for dental treatment at a dental clinic.
2. Receiving credit money to pay for damage caused by one of the spouses when he committed an administrative or criminal offense.
3. Borrowing money to cover debts arising from obligations on the spouse’s personal business.

Thus, in a counterclaim you need to describe the current situation and provide evidence confirming the defendant’s point of view if:

• The plaintiff is trying to convert some of his personal debts into joint debt.
• The plaintiff formally took money from a targeted loan for the joint needs of the spouses, for example, to purchase a family car, but in fact spent it on satisfying personal desires.

Real estate

According to the legal norms enshrined in Article 30 of the Civil Procedure Code, statements of claim, the subject of which is real estate, must be submitted for consideration to a court located in the same locality as the disputed real estate. These rules also apply to counter-objections from the defendant.

But, if the defendant adds to the list of his own claims in the counter statement real estate located in another city and of greater value, then he is obliged to send it to the district court of the locality where the most expensive property of all the real estate included in the subject is located spore.

For example, if a wife, acting as a plaintiff, demands the division of an apartment located in Nizhny Novgorod and valued at 2 million rubles, then, according to the rules of jurisdiction, she submits an application to one of the district courts of this city. However, if the defendant wants to include in the subject of the proceedings the personal residence of his wife in Moscow, which is estimated at 6 million rubles, and wants to divide it, then he needs to send a counterclaim to the Moscow district court, because the most valuable real estate asset for which division The spouses are arguing among themselves, located in this city.

Having children

Based on the analysis of Russian judicial practice, the presence of a minor child in a married couple affects the division of joint property as follows:

1. The parent, who, after the termination of the marriage, will live with the child and raise him, usually acquires more when dividing assets than could be due to him by law.
2. The other parent, usually the ex-husband, bears the child support burden.

Since in most divorce proceedings wives are on the plaintiff’s side, and husbands are on the defendant’s side, in order to ensure that when dividing things the defendant does not allow significant property losses, it is necessary to provide evidence (written or testimonial) in the counterclaim, if the circumstances below are actually present in your situation:

• 
  The spouse does not care about the child, about his socialization, education and moral development.

• The wife abuses parental power, namely, prevents the child from studying in an educational institution, inclines him to illegal behavior.
• Your other half abuses your children, beats them, insults them and humiliates them.
• The spouse is addicted to drugs or alcohol and because of this does not take care of the children.
• The wife suffers from a disease that does not allow her to properly care for and raise the children.

If the defendant manages to convince the judge of the truth of his point of view, then he will be able not only to independently raise his own children, but also to receive additional property, which the courts allocate to the ex-spouse living with the children, in order not to violate the child’s housing rights and his rights to decent living conditions.

As for alimony payments, you can reduce their amount awarded for monthly payment by court decision as follows:

1. If the defendant is employed, then it is possible to agree at the place of work in the accounting department to reduce the official (“white”) salary and transfer part of the earnings to the “gray” range. Then, in the counterclaim, write its reduced size and attach a certificate of income received from the employer to confirm your words.
2. If the defendant does not have a regular income or is engaged in business, then he can reduce the amount of income indicated in the tax return, according to information from which the judicial authority will calculate the amount of alimony payments in the form of a fixed amount of money, and write a reduced amount of income in the counterclaim. It should be understood that manipulation of tax documents may result in criminal prosecution. However, an entrepreneur has no legal ways to reduce alimony payments.

Disagreement with the assessment

In this case, the defendant should do the following:

• Before filing counter-objections, order an assessment of the joint property from a professional appraiser in order to understand whether the plaintiff’s assessment is fair.
• If the assessment of the value of assets indicated in the plaintiff’s statement and given in the conclusion drawn up on your order differs, then you need to check what the assessment of the other party to the lawsuit is based on. If based on your own conclusions, then it is necessary to attach the appraiser’s conclusion to the counterclaim. It will be significant evidence of the value of the counterclaim. If the conclusions of a qualified specialist, then, in addition to submitting the result of the work of your property appraiser to the court, it is necessary to convince him to attend a court hearing in order to testify and explain the methods he used to estimate the value of the disputed items.

Why divide property in a divorce case?

Greetings!

The answer to the question of why to divide property in the framework of a divorce case is extremely simple: only within the framework of a divorce case can a dispute be considered according to the rules of jurisdiction established by Article 28, Part 4 of Article 29 of the Code of Civil Procedure of the Russian Federation, completely ignoring the exclusive jurisdiction established by Art. .30 Code of Civil Procedure of the Russian Federation!

This is very relevant if the property to be divided (an apartment, for example) is located in another region of the country (kilometers, in the 2000s, from the place of residence (still) of the spouses). But the spouses, alas, did not acquire real estate at their place of residence.

The regulatory justification is as follows: in a case of divorce, the spouses have the right to submit to the court an agreement on the division of common property, and if such an agreement is absent, then the court is obliged to divide the common property of the spouses, at the request of one of them (Parts 1, 2 of Article 24 of the RF IC ). This is exactly what the court is obliged to do, without any exceptions.

Therefore, a dispute about divorce and the division of common property is considered according to the rules of Article 28, Part 4 of Article 29 of the Code of Civil Procedure of the Russian Federation, but the rule of exclusive jurisdiction applies when the claims in relation to real estate are independent, declared outside the case of divorce , which is confirmed by judicial practice, for example, the Review of the practice of consideration by the courts of the Chelyabinsk region of civil cases arising from family legal relations.

In our case, the spouse (opponent) was a week ahead of us and managed to submit to the magistrate a demand for divorce at her place of residence (there is a young child). At the same time, the spouses purchased an apartment in the Krasnodar region during marriage. There is no other real estate, and it would be nice to share it near the house, and not in the city of Gelendzhik.

Since the Code of Civil Procedure of the Russian Federation provides only for a statement of claim and a counterclaim, and there is no special form for a spouse to file a claim for division of property within the framework of a divorce case (at least, I have not found one), we file a counterclaim. With the above justification. Moreover, with a request to transfer the case after accepting the claim for proceedings, according to jurisdiction, to the district court - the demand was stated for an amount much more than 50,000.00 rubles.

The judge does not accept the claim, twice. He doesn't want to. The normative justification outlined above is completely ignored, and no objections to it are raised in principle. A decision is made to dissolve the marriage.

All that remains is to file an appeal. I hope that the district court will hear my arguments, cancel the decision and consider the case (taking into account the requirement for division of property) according to the rules of first instance. Since the failure to accept a counterclaim violated the right of my principal to consider the dispute over the division of property under the jurisdiction established for divorce cases. Moreover, he will have to bear additional and significant overhead costs. And most of the evidence is located here, at the place of residence of the parties.