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Property division agreement. How does a settlement agreement in a divorce help to divide property

"Electronic journal"ABC Law", 10/24/2017

HOW TO SIGN AN AGREEMENT
ABOUT DIVISION OF PROPERTY OF SPOUSES?

The essence of the procedure is that one of the spouses submits a statement of claim to the court demanding the division of property, and then they agree to sign a settlement agreement.

At the same time, it should be borne in mind that the conclusion of an agreement on the division of property is also possible outside judicial order, but the settlement agreement is concluded in court. Spouses can divide property voluntarily, without going to court. If an agreement cannot be reached, then one of them will have to go to court. And if already in the court session the parties come to some kind of compromise, then an amicable agreement can be concluded.

To conclude a settlement agreement, spouses are recommended to adhere to the following algorithm.

W Step 1. Negotiate and prepare the text of the settlement agreement

To conclude a settlement agreement between the spouses, negotiations are held either with the participation of representatives - lawyers, lawyers, or independently. During the negotiations, each condition on the subject of the dispute is discussed.

After the parties have agreed on all the terms of the settlement agreement, you need to prepare its text. This can be done either by one of the spouses or, preferably, by a lawyer or attorney.

The parties have the right to change the size of shares in common property, indicate specifically to whom what property is transferred, what amount of compensation the second spouse receives, and other conditions (clause 1, article 39 of the RF IC).

The amicable agreement cannot provide for conditions that relate to the rights and interests of third parties. So, for example, often the parties divide property in the form mortgage apartment, as well as debts on the apartment - credit obligations. But a settlement agreement cannot change the terms of the loan agreement if the bank is against it. Spouses can only provide for ways to repay the loan - certain payments by one of the spouses, compensation for payments, early repayment by one of the spouses and other conditions.

If the settlement agreement provides for compensation to one spouse from the other, then all conditions, terms of payment and the amount of this compensation must be clearly indicated in order to recover the amount through bailiffs, if necessary.

If the text of the settlement agreement was prepared by one of the spouses, then he needs to transfer it to the other party for adjustment and final agreement on all conditions.

W Step 2. Submit the Settlement Agreement to the Court

A printed settlement agreement should be brought to the court session in the amount corresponding to the number of persons participating in the case, as well as one copy for the court. The parties must sign the agreement; if it is not stitched, then it is better to put the signature on each sheet, and on last sheet in addition to the signature, give its decoding.

At the court session, the court shall submit the petition of the parties to approve the settlement agreement.

The court checks that the settlement agreement does not contradict the law and does not violate the rights and legitimate interests of other persons. If such conditions are included in it, the court indicates the need to redo the agreement in this part.

After checking the conditions, the court issues a ruling to terminate the proceedings in connection with the approval of the settlement agreement (Article 220 of the Code of Civil Procedure of the Russian Federation).

It is the settlement agreement in court that guarantees that the division of the property of the spouses has finally taken place, since a dispute between the same parties on the same subject and grounds is no longer allowed. The parties are warned about this in court before the settlement agreement is approved. The definition specifies all the terms of the agreement signed by the spouses.

Note. The ruling of the court to terminate the proceedings in connection with the approval of the amicable agreement may be appealed to the court of appeal by filing a private complaint within 15 days from the date of issuance by the court of the contested ruling ( paragraph 1 of Art. 331, art. 332 Code of Civil Procedure of the Russian Federation).

If the amicable agreement of the parties is not approved, the court issues a ruling on this and continues to consider the case on the merits (part 2 of article 39 of the Code of Civil Procedure of the Russian Federation).

A situation is possible when the court of first instance considered the case on the merits, and the parties agreed to conclude a settlement agreement after the decision was made. In this case, one of the parties must submit appeal, after which an application in writing should be submitted to the court of second instance for the approval of a settlement agreement (Article 326.1 of the Code of Civil Procedure of the Russian Federation). It is also desirable to submit the text of the settlement agreement to the court of appeal in advance. If the court of appeal considers it possible to approve the settlement agreement, it will cancel decision court, terminate the proceedings and issue an appropriate ruling. The definition takes effect immediately.

Alimony payments.

After the conclusion of such an agreement, the parties submit it for approval to the court, which checks its content for legality. If the document complies with all requirements, the court issues a ruling on approval of said agreement, after which the divorce proceedings are terminated, and the parties lose the right to re-examine the settled issues in court.

The subject of a settlement agreement between spouses in a divorce through a court

An amicable agreement concluded between spouses is considered to be an act signed within judicial trial by which the parties terminate the existing dispute between them and eliminate the uncertainty of their legal relations by providing mutual concessions. The right to conclude a settlement agreement granted to the parties Art. 39 of the Civil Procedure Code (CPC), as well as Art. 24 family code(SK).

The settlement agreement is a kind of compromise that the spouses reached when resolving disputes in court, and not the satisfaction of the claims of one of them.

Decisions made by parents regarding the place of residence and maintenance of the child should be in the best interests of the child, otherwise the court must reject the agreement and resolve these issues on its own (clause 2, article 24 of the UK).

So, if the parties have reached a compromise on these issues, then the settlement agreement should include information regulating:

  • child's place of residence with one of the parents indicating the full address of residence;
  • the procedure for resolving issues of upbringing, education, treatment and rehabilitation of the child;
  • payment by one of the parents maintenance allowance per child, indicating the deadlines and amounts of their payment, as well as the sources from which they will be paid;
  • the procedure for visiting and meeting a child with a parent living separately;
  • questions joint recreation, holidays, etc.

On the division of jointly acquired property of the spouses

The division of jointly acquired property may also be the subject of a settlement agreement concluded by the spouses upon divorce. When signing it, the spouses must take into account that:

  • By general rule established by Art. 39 of the UK, the shares of spouses in common property are considered equal. However, by agreement, husband and wife may determine any size of shares, deviating from the generally accepted principle of their equality.
  • The parties can determine not only the shares of ownership, but also commit subject section jointly acquired property, indicating to whom and what property is transferred, who receives compensation, in what amount, and in what order it is paid.
  • Settlement agreement on the division of property can not concern the interests of third parties (for example, creditors). If it affects the rights of third parties, the court has the right to separate this requirement into a separate proceeding (paragraph 3 of article 24 of the UK).

Since K and P had two minor children, according to Art. 21 UK, their divorce had to go through the courts. Simultaneously with the requirement for a divorce, P demanded that the division of jointly acquired property be carried out and, in accordance with paragraph 2 of Art. 39 of the UK, in the interests of children, deviate from the equality of shares in property and award her 2/3 shares of the common property.

However, in the process of negotiations with her husband, they came to a compromise on controversial issues and concluded a settlement agreement, which they presented to the court. It established that the division of property between C and P was carried out in equal shares. Since the agreement did not contradict the law, the court approved it and dismissed the case.

The procedure for concluding and approving a settlement agreement by the court

The conclusion of a settlement agreement is allowed at any stage divorce proceedings– from the moment of filing the statement of claim until the moment the judge is removed to the deliberation room. Up to this point, the parties must submit the concluded agreement to the court for consideration.

In each case, the agreement is drawn up in several copies - one by each of the parties to the agreement, as well as by the court.

When concluding such a document, spouses are recommended to adhere to the following procedure and recommendations:

  • Negotiation and document preparation. Before the conclusion of the "peace", the spouses negotiate, regarding each of the controversial conditions on which they plan to come to a compromise. To increase productivity, it is recommended to use legal advisory services and the services of lawyers. The preparation of the text of the document, for the most competent compilation, must also be entrusted to a lawyer.
  • Presentation of the settlement agreement to the court. To attach a settlement agreement to the case, the parties must file a petition for its approval. After that, the court checks its content for provisions that are contrary to the law, as well as for affecting the interests of third parties. In the presence of such conditions, the court returns the document for revision to the parties.
  • Approval of the settlement agreement. After checking the content of the document for inconsistencies with the law, the court issues a ruling that approves the settlement agreement and at the same time terminates the proceedings. It must also state the terms of the document approved by the court. According to Art. 331, art. 332 of the Code of Civil Procedure, such a decision can be appealed to the appellate instance within 15 days from the date of its issuance, by filing a private complaint.

Divorce settlement agreement template

The settlement agreement is subject to writing. At the same time, the legislation does not provide for any specific requirements for its content, except for an approximate list of issues considered in it.

Based on this, the settlement agreement is drawn up in free form, but this in no way detracts from the requirements for its legal literacy.

Judicial divorce practice makes it possible to highlight the aspects and conditions that must be taken into account when drawing up an amicable agreement in a divorce, and therefore the document should contain:

  • name and address of the court, full name of the judge, personal data of the plaintiff and defendant, as well as the number of the case being processed by the said judge;
  • indication of an agreement By mutual consent , in order to terminate the dispute on the terms specified by the parties;
  • location a common minor child, if any, with one of the spouses, the conditions of maintenance, upbringing and visiting the child;
  • determination of the size and order of execution maintenance obligations;
  • conditions for the division of jointly acquired property;
  • the procedure for the distribution of court costs in shares or a fixed amount;
  • consequences of refusal to voluntarily execute the document;
  • number of copies and documents attached to the agreement.

The document is sealed by the signatures of the parties, after which it is subject to approval by the judge.

Termination of the divorce proceedings by the court upon approval of the settlement agreement

After checking the content of the submitted draft document for its compliance with the law, the court decides, which approves the settlement agreement. According to paragraph 3 of Art. 173, as well as Art. 220 Code of Civil Procedure, issuing the said ruling, the court at the same time terminates divorce proceedings.

According to Art. 221 of the Code of Civil Procedure, the ruling should indicate that re-appeal to the court by the same parties in the same dispute on the same subject and on the same grounds unacceptable. Thus, if the agreement is approved and an appropriate ruling is made, the divorce process is finally terminated.

Is a settlement agreement on the payment of alimony, concluded in court, subject to notarization?

No, an agreement on the payment of alimony, concluded outside the litigation(Art. 100 UK). The settlement agreement is concluded exclusively within the framework of judicial review. The court independently checks its legality, after which it is approved.

Conclusion

The right of spouses to conclude a settlement agreement within the framework of the divorce process allows them to resolve everything contentious issues amicably. At the same time, the role of the court is reduced to approving the drawn up document, which also involves checking its legality, observing the interests of a minor common child and third parties. Only if all these conditions are met, the agreement is attached to the case and becomes the basis for terminating the process, otherwise the court is obliged to resolve all disputed issues on its own.

Heading:


Lawyer's answers to the most frequently asked questions in connection with the division of marital property. Including: how to divide property by the consent of the spouses, how to properly file a claim for the division of property ( step by step guide), how to divide a business, how to divide debts, and more. others

Bonus: Samples of ALL necessary procedural documents drawn up by the author!

You can use our sample application for approval of a settlement agreement! It is drawn up in a court of general jurisdiction on a specific civil case on the division of marital property. The objects declared for division include shares in authorized capital legal entities.


Correctly formulating the terms of the settlement agreement is extremely important, since they must fully reflect your will. This is also important because

To the Kalininsky District Court
Novosibirsk
(630110, Novosibirsk, Uchitelskaya st., 40a)

judge _______________________

Claimant: Petrov Ivan Vladimirovich
(NSO, __________________________)

Defendant: Petrova Elena Nikolaevna
(Novosibirsk, st. ______________________)

3rd person: Strela LLC
TIN ______________, OGRN _____________
630055, Novosibirsk, st. ________________

STATEMENT
on the approval of the settlement agreement

Petrov Ivan Vladimirovich, hereinafter referred to as the "plaintiff", on the one hand, and

Petrova Elena Nikolaevna, hereinafter referred to as the "defendant", on the other hand,

which are parties to the civil case No. ______________ on the claim of Petrov AND.The. to Petrova E.N. about the division of jointly acquired property,

pending in the proceedings of the Kalininsky District Court of Novosibirsk,

on the basis of Art. 39 of the Code of Civil Procedure of the Russian Federation, we ask the court to approve the settlement agreement on the following conditions:

1. A share in the authorized capital of Strela LLC (TIN ___________, OGRN ___________) in the amount of 30%, registered in the name of Elena Nikolaevna Petrova, is transferred to the sole property of Elena Nikolaevna Petrova

2. A share in the authorized capital of Alkor LLC (TIN ___________, OGRN ___________) in the amount of 15%, registered in the name of Elena Nikolaevna Petrova, is transferred to the sole property of Elena Nikolaevna Petrova

3. A share in the authorized capital of Alkor LLC (TIN ___________, OGRN ___________) in the amount of 15%, registered in the name of Ivan Vladimirovich Petrov, is transferred to the sole property of Ivan Vladimirovich Petrov

4. Elena Nikolaevna Petrova, before June 1, 2014, pays Ivan Vladimirovich Petrov a sum of money in the amount of 1,450,000 (one million four hundred and fifty thousand) rubles

5. The parties agreed that the court costs incurred by them in the case for payment of the state duty and services of representatives are borne by each of them and are not subject to compensation by the other party.

The consequences of the approval of the settlement agreement are explained and understandable to the parties, they agree with them: with the approval of the settlement agreement, the proceedings on the case are terminated and if the plaintiff files a claim against the defendant on the same subject on the same grounds in the reception statement of claim he will be denied.

"___" May 2014

Petrov Ivan Vladimirovich ____________________

Petrova Elena Nikolaevna ___________________

Use the Sample Application for Approval of the Settlement Agreement in Word Format!

An amicable agreement on the division of property after a divorce can minimize the time for consideration of a case in court and preserve health. This document, concluded voluntarily by the parties to the dispute, allows you to divide joint property without additional proceedings.

Such an agreement can be concluded both during the divorce proceedings in court and out of court. To do this, you need to contact a notary who will help you correctly compose the text of the document, certify its copies. After affixing a lawyer's visa, the agreement comes into force: it can be presented in court in order to prove the absence of property disputes. If the couple dissolves the marriage through the registry office, then nothing needs to be done at all - the agreement is legally binding and is an independent document.

Such an agreement has several undeniable advantages:

  • Parties dissolving a marriage do not waste their nerves on lengthy disputes regarding who will own this or that property.
  • Significantly reduces the length of divorce proceedings.
  • If the spouses share expensive real estate or general business, appraisal examinations are practically inevitable. Their cost can reach tens and even hundreds of thousands of rubles. A settlement agreement avoids these costs.

Russian law does not prohibit signing a document before or after a divorce. By examining various examples of such agreements on the net, you can find the one that suits you. But still, family law lawyers advise to conclude agreements before the dissolution of the marriage. Especially if the process takes place in court.

Some couples include property alienation clauses in the marriage contract at the formation stage. marital relations. If such an agreement exists, then additional agreement on the division of property of the spouses after a divorce is not required.

It is not at all necessary that both spouses work on the details of the mutual agreement. It may well be issued only by one of the parties, and then transferred to the other for review. Further, the document is corrected, and signatures are put on it, indicating that both spouses express voluntary consent with all the specified information.


Guardianship authorities may also take part in drawing up an agreement on the division of property (when we are talking on the living conditions of a common child after the dissolution of a marriage), or lawyers who give a legal assessment of the proposals of the spouses.

Sample settlement agreements, as a rule, contain the following sections:

  • Personal data of the spouses (full name, residence permit, details of passports and marriage/divorce certificates).
  • Information about the court session during which they are going to present this agreement (if the divorce goes through the court).
  • List of property to be divided (indicating its value and attaching an expert opinion, if any).
  • The rights of each of the parties regarding this or that property from the above list.
  • Compensation for the alienation of property in favor of one of the parties (meaning the amount or other material value that will be transferred to the second party in case of unequal division on some item from the list).
  • The procedure and conditions for the transfer of property of each of the parties.
  • Bank account details of the spouses, if they share deposits, or put up for sale common property (for transfer Money after the deal).
  • List of property not subject to division.

The court, although it has the right to take note of the settlement agreement, is not obliged to do so. That is, he can block the document if he considers that it violates the interests of one of the parties. Most often this happens when couples with children share joint property. The judge will always defend the interests of the party with which the child remains after the divorce.

The subtleties of the division of property in a divorce

As in any other property dispute, there are pitfalls when dividing property after a divorce. Let's deal with the most common of them.

  1. In a settlement agreement on the division of property during a divorce, you can come to a compromise regarding living in a common apartment or house. It is not always possible for spouses to leave immediately. The document can state that the apartment is transferred, for example, to the wife, but the husband can live in it certain time(Specific period is indicated). Such a "lease" may concern not only real estate, but also Vehicle, technology, equipment. It also discusses the conditions under which one of the spouses uses the property that has passed into the ownership of the other.
  2. Most often, all property from a legal point of view has the status of joint shared ownership. This means that each of the spouses is entitled to half of everything jointly acquired in marriage. At the same time, it does not matter to whom the property is registered or by whom specifically acquired. But this does not mean at all that you need to sell an apartment, a car, a wardrobe and a refrigerator, and divide the proceeds in half. Some things can be completely transferred to a husband or wife. In this scenario, the other party is entitled to compensation. As compensation, you can transfer a sum of money or other material values(including from the list of property to be divided).
  3. A settlement agreement certified by a notary (if the husband and wife are getting divorced at the registry office) or approved by the court does not allow changing its terms. Consider an example: after a divorce, the wife received a house and a car by mutual agreement, and the husband kept the business. After some time, the man’s business went uphill, the business expanded, and began to bring a lot of income. In this situation, the ex-spouse does not have the right to demand any share in the business or a percentage of income. The results of the amicable agreement on the division of property are not subject to revision.
  4. However, it is possible to prescribe in the settlement agreement the conditions under which this document will lose its legal effect. This is most often done if one of former spouses does not fulfill agreements: does not transfer property on time; continues to live in the apartment that he should have vacated, etc. But in this case, you will have to go to court again. And as a result, the division of property can be delayed even for many years.
  5. The spouses have the right not to certify the settlement agreement at the notary. The very fact of its presence with the signatures of both parties gives the document legal force. But experts strongly advise not to ignore going to a lawyer. Firstly, the notary's office has forms and samples of such agreements, drawn up correctly and taking into account various aspects of married life. Secondly, the visa of a lawyer on the contract is a guarantor of the purity of the transaction. There were cases when one of the spouses, after the conclusion of the agreement, filed a lawsuit, claiming that he signed under threats or blackmail. A notary public avoids such consequences.
  6. If we are talking about transport, you need to describe it in as much detail as possible: make, model, year of manufacture, color, equipment, series and number of the vehicle, etc. The same applies to real estate.
  7. When mortgaged housing is subject to division, it is imperative to indicate which of the parties will be responsible for repaying the loan. If the parties share these obligations, the schedule and procedure for payments should be mentioned.

Settlement agreements do not limit spouses. They can indicate any property - up to spoons with forks and bed linen. But you need to understand that then the document will turn out to be large in volume. At the same time, property acquired by one of the spouses before marriage is not subject to division. Or handed down to him by inheritance and as a gift (even during the period of marriage).

An amicable agreement on the division of property saves a lot of time and effort in a divorce. But it, like any other property document, must be treated with great responsibility.