Counterclaim for division of joint property. Counterclaim for division of property Counterclaim for division of property of spouses

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:

In what cases does the law allow the defendant to file counter-objections to the statement of claim?
What blocks is the statement of counterclaim divided into?
What papers are attached to it?
What is the state fee for the provision of judicial services?
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:

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.
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.
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.

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:

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.
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.
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.

Sample and example of filling

A counterclaim form for the division of jointly acquired property, a sample of which can be used as a template, can be downloaded.

Several additional counterclaim forms in Word can be downloaded from here.

If you have difficulties filling out the document, you can use this statement as an example of a counterclaim.

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 the 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.

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:

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

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.
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 workers.
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:

Borrowing finance for transactions that are personal in nature, for example, paying for dental treatment at a dental clinic.
Receiving credit money to pay for damage caused by one of the spouses when he committed an administrative or criminal offense.
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:

Parent who will be after the end of the marriage live with the baby and raise him, usually gains more when dividing assets than could be due to him by law.
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:

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:

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.
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.

Sets out the structure of the counterclaim.

Regulates the conditions under which a counterclaim can be filed in court.

Sets out the grounds on which the court accepts a counterclaim for consideration.

Very often, when dividing jointly acquired property, spouses fail to reach agreement. To resolve property issues, one of the parties may file a claim. According to the law, the common property of a husband and wife is divided equally. Sometimes a 50/50 split does not suit one or both parties. You can influence the court's decision by filing a counterclaim.

What is a counterclaim?

A counterclaim is a claim made by the defendant against the plaintiff during the consideration of the case, related to the subject of the dispute. This statement of claim when dividing property acquired during marriage is filed by one of the spouses who did not put forward the initial demands and does not agree with the position of the applicant.

Counterclaims are put forward during the consideration of a property dispute in court. The application is considered together with the original one. The right to put forward counterclaims and the conditions for the court to accept such a claim are described in the Code of Civil Procedure of the Russian Federation (Articles 137, 138). The claim will be considered in the following cases:

the claim is directed towards the offset of the original;
positive consideration of the counter-application excludes satisfaction of the first in whole or in part;
both claims are related.

The defendant’s demands allow all aspects of the property dispute to be taken into account. Considering two applications at the same time often speeds up the legal process.

Grounds for filing a counterclaim for division of jointly acquired property

Concluding a prenuptial agreement upon marriage allows spouses, in the event of separation, to resolve property issues without involving the court. The agreement should describe the shares of the divided property in any unequal or equal proportions.

When dividing acquired property through the court, this opportunity is not provided. The defendant’s demands may incline the court when making a decision in the direction of changing the property shares of the spouses. Grounds for filing a counterclaim:

one of the spouses treated the common property in bad faith;
the husband or wife spent the family budget on personal needs without taking into account the needs of the family;
property acquired during marriage was purchased with money proceeds from the sale of the personal property of one of the spouses;
the list of common property includes the husband’s or wife’s own belongings;
a requirement is made to allocate part of the property in favor of minor children;
the court was not provided with information about the existence of joint financial obligations.

How to write an application?

The application is submitted to the same authority where the original claim is being considered. Whether it is a magistrate's court or a district court depends on the amount of the claims. The document is drawn up according to the same rules as the main claim. It should contain the following information:

name of the court;
identification data and information about the place of residence of the plaintiff and defendant;
a description of the positions that do not suit the plaintiff;
evidentiary part;
demands addressed to the court;
list of applications;
signature, date of document preparation.

Requirements for the form and content of the statement of claim are enshrined in Art. 131 Code of Civil Procedure of the Russian Federation. Samples of counterclaims can be found in the court office.

What documents are attached to the claim?

The claim must be filed in the required number of copies - for all persons participating in the case and the court. When considering property issues, 3 copies are usually required. In addition to the claim, the following documents are required:

Payment of state duty

Judicial resolution of property disputes requires the payment of a state fee, the amount of which directly depends on the price of the claim. The amount can be from 400 rubles. up to 60,000 rub. In this regard, before filing a claim, all property of the spouses must be assessed. Details for paying the fee are provided at the court office. Principles for calculating state duty:

the cost of the claim is up to 20 thousand rubles. – 4% of the amount, minimum – 400 rubles;
20-100 thousand rubles. – 3% of the amount over 20 thousand rubles. to a fixed rate of 800 rubles;
100-200 thousand rubles. – 2% of the amount over 100 thousand rubles. to a fixed rate of 3,200 rubles;
200 thousand – 1 million rubles. – 1% of the amount over 200 thousand rubles. to a fixed rate of 5,200 rubles;
more than 1 million rubles – 0.5% of the amount over 1 million rubles. to a fixed rate of 13,200 rubles, maximum – 60 thousand rubles.

Since the amount of the state duty is quite large, the plaintiff can ask the court to oblige the defendant to return 50% of the amount or the entire amount if the decision is positive in his favor.

The applicant also has the opportunity to submit a request for an installment plan or deferment of payment of the state fee. However, this request must be justified by documenting the arguments presented. Sample application:

You can confirm the impossibility of timely payment with income certificates, medical documents, etc. Valid reasons for postponing or installment payment are:

difficult financial situation;
the applicant's serious illness;
the need to support children or other relatives;
retirement age.

Can the court refuse to accept a counterclaim?

The court may refuse to accept a counterclaim if the document is drawn up incorrectly. Refusal will also occur in the following cases:

The conditions for acceptance of the claim by the court have not been met. If the claim is filed after the court has begun deliberating on the first motion, or the document does not relate to the subject of the original claim, the court will not consider the counterclaim. For example, the court is considering a case regarding the child’s place of residence, and the defendant has filed a demand for the division of common property.
The statement of claim states a demand to pay off alimony obligations at the expense of the property. In Art. 410 of the Civil Code of the Russian Federation states that alimony payments cannot be paid using common property.
A counterclaim is filed when appealing a court decision. According to the law, counterclaims are considered only by the court of first instance.
The applicant did not pay the state fee and did not submit a request for deferment or installment payment.

Refusal to accept a counterclaim does not mean that the second spouse does not have the opportunity to defend his interests. After the court's decision, the parties to the proceeding may appeal to a higher court. The period for appealing the decision is 30 days.

When dividing property acquired jointly, citizens breaking off marital relations can make do with a peaceful agreement, but each of them has the right to file a direct and counterclaim in court. This happens when the division is considered by the parties to be incorrect; some part of the property may be indivisible physically or for other reasons. In any case, each spouse can go to court.

It is much easier for the judicial system of the Russian Federation when couples separate peacefully, without involving third parties in arbitration. However, situations are not uncommon when, due to unrest or other circumstances, spouses still have to “invite” the party who, from a legislative point of view, will distribute the property into the division of jointly acquired property.

In this case, a plaintiff who is dissatisfied with the proposed method of dividing property has the opportunity to file a claim, to which, in turn, the defendant has the right to draw up and submit a counterclaim. There are quite a lot of situations that may require such an outcome:

the case regarding the division of jointly acquired property must be reconsidered due to new (special) circumstances, such as violation of the rights of minors, the use of funds included in the division for necessary, urgent needs;
the property involved in the claim for division of property, from the point of view of the defendant, belongs to him by right and cannot be divided between former spouses (inheritance, gift, acquisition before marriage);
the statement of claim does not contain a complete range of facts accompanying the divorce process and, as a consequence of it, the division of jointly acquired property.

For one reason or another, the defendant may file a counterclaim, the court will accept it and, if possible, both claims will be considered in the context of one situation, as complementary to each other. Like any official document, this one requires a competent approach and adherence to drafting templates.

How to file a claim and where to file it?

A counterclaim for the division of jointly acquired property is drawn up by the defendant, observing a number of nuances. Conventionally, the document can be divided into several components. The first will contain introductory information - the name of the judicial authority to which the claim is being submitted, as well as identification information about the parties to the conflict regarding the division of property.

The second part consists of a description of the statement of claim filed initially, with a summary of the claims made there, as well as the rationale for filing a counterclaim. Then there is a list of normative acts that are most suitable for the situation under consideration from the point of view of the defendant, after which counterclaims are raised.

The final part is quite simple:

attachments that are in addition to the application (required supporting documents);
date and signature of the applicant or his legal representative.

Naturally, any application template can be obtained both directly from the judicial authority and on the official portals of the system. However, the correct preparation of a counterclaim, as well as other similar documents, can be simplified if the citizen initiating the process seeks legal advice for help.

It is worth remembering that an incorrectly completed counter-statement simply will not be considered by the court and will be sent back at the stage of consideration by the office. Therefore, contacting a lawyer will not only be a smart step in terms of obtaining advice, but also for the following reasons:

the specialist knows exactly how to draw up official statements to the court;
the practice of dividing jointly acquired property allows lawyers to know about many of the nuances of filing claims;
The normative acts mentioned in the documents are known only to a person who practices law on a regular basis.

Conclusion - in order to avoid mistakes and delays in the matter, you should seek qualified help. Moreover, in addition to the counterclaim itself, we mentioned additional documentation required to be submitted to the court. It is as follows:

a copy of the claim itself for the other party to the process and the court (if there is a financial encumbrance imposed on jointly acquired property, then a copy is also attached for the organization that provided the funds);
if a counterclaim is submitted not by the defendant himself, but by his legal representative, a notarized power of attorney is required that describes the rights of the representative;
an additional package of documents that allows you to more clearly present the validity of counterclaims (agreements, checks, etc.);
a receipt recording the payment of the state duty.

As for the monetary issue in this case, it is worth considering separately. After all, initially, when filing a claim, a person had already paid a fee to the budget. Is there a need for re-payment?

In any case, when a person goes to court, be it an initial claim or a counterclaim for division of property, he must pay a certain fee. As a rule, the cost of the state duty is considered based on the property appearing in the application, which is recognized or not recognized as joint property.

So, in order to determine the duty paid, it is necessary to be guided by the following principles:

when the division of a land plot is considered, they rely on the cadastral valuation of the property, as well as documents submitted to Rosreestr;
real estate is valued according to inventory records, which are provided by a specialized bureau;
movable property can be assessed personally, in terms of market prices and general condition at the time of assessment, which must be confirmed by an appropriate document, usually from a third-party, uninterested company or person.

All amounts received from the assessment are added up into a single whole, which is determined as the price of the statement of claim. After which the direct state duty is determined:

four percent, but not less than four hundred rubles, is paid to the budget if the cost of the statement of claim does not exceed twenty thousand rubles;
the fee will cost eight hundred rubles plus three percent of the amount of the claim if the jointly acquired property is valued in the amount of twenty to two hundred thousand rubles;
if the property is worth up to a million rubles, the fee is a fixed payment of five thousand two hundred rubles, to which one percent of the valuation is added (an amount of two hundred thousand rubles is first deducted from the total);
finally, the highest duty will have to be paid for property valued at over one million rubles - thirteen thousand two hundred, plus half a percent of the valuation, but not more than sixty thousand rubles, in total.

For example, let’s imagine a counterclaim, the property in which is valued at eight hundred thousand rubles. To obtain the total amount of state duty, we carry out the following manipulations:

from eight hundred thousand we subtract the due two hundred thousand;
We calculate one percent of the amount received (in total, six thousand rubles);
to six thousand we add a rate of five thousand two hundred rubles.

As a result, the applicant must pay eleven thousand two hundred rubles to the budget, after which the court will consider the counter-application filed by the citizen regarding the division of property acquired jointly during the marriage. In this case, in a counterclaim, you can demand compensation for state duty expenses on the opposite side of the conflict. If the outcome of the case is positive, the court is able to not only satisfy the property claims, but also oblige the spouse to pay compensation.

You can pay through banking institutions, or using Internet services. The only thing that is required is a receipt confirming the fact of payment. The fee may also be deferred if the applicant provides convincing evidence, such as lack of income or support for one or more dependents. If the case is resolved pre-trial, the paid fee may be returned. You must contact the tax office and provide them with a receipt.

If payment is made, the matter is not resolved peacefully - arbitration enters into the proceedings. Let's take a closer look at the participation of the authority.

The process itself will take two to three months. Although the circumstances that led to a dispute over the division of jointly acquired property can delay the procedure for a longer period. All submitted documents, the circumstances of the acquisition of the disputed property will be impartially considered, and the statute of limitations will be taken into account.

Moreover, even if the divorce occurred more than three years ago, the parties may well present claims to each other that are justified by legislative acts. The main thing is that the materials are authentic, and that all evidence of purchase and receipt is correct. As for the counterclaim itself, it is examined on the following grounds:

cases of claim and counterclaim are considered in parallel;
the circumstances mentioned in one of the claims can significantly speed up the proceedings;
counterclaims solve financial problems of mutual settlement, in which the court can decide in favor of payments or covering them with mutual claims.

But even at the stage of counter-statements, the court offers the parties to resolve conflict situations peacefully. Do not confuse a pre-trial agreement with a settlement agreement proposed by the court.

The court proposes to resolve the conflict by satisfying the parties' claims with an agreement. Even if the spouses filed claims, the outcome of the case will not necessarily be in anyone's favor strictly in accordance with the claims filed. Sometimes ignorance of the legislative side of the issue leads to a situation where the applicant makes claims that are obviously unenforceable.

For this purpose, a legal specialist is invited to help legally set requirements and at the same time fill out the necessary documentary components. A settlement agreement proposed by the court or concluded between the disputants at the request of the court has its own nuances. Firstly, it should reflect not only the essence of the conflict, its resolution, supported by the legal framework, but also indicate the consequences of failure to comply with the terms of the agreement by both parties. Secondly, there cannot be a verbal agreement in this case.

You can invite a notary who, for a fee, will draw up the necessary document, signed by the parties and endorsed by the court, as a result of the process of dividing jointly acquired property.

What should be contained in such an agreement? The information is as follows:

place of compilation and date;
information about the parties to the conflict (passport details, contacts);
fact of divorce, indicating a supporting document;
the subject of the dispute is jointly acquired property being considered for division;
distribution of property with a clear indication of the transfer and features of re-registration, if necessary;
property that is considered indivisible.

If there is such a need, then in a separate paragraph the parties can indicate the date of entry into force of the decision, different from the date of signing. The signatures of the parties record agreement with the decision made.

All this is one of the ways to resolve a conflict situation. We examined the problem of division of property in general and, in particular, the possibility of filing a counterclaim if the defendant’s side does not agree with the decision made regarding the dispute.

Division of jointly acquired property

The hearing of disputes in a district or magistrates' court allows the defendant to file a counterclaim if it relates to the issue in question. The purpose of such a petition is to allow the other party to state its individual demands in the conflict. Thus, it is allowed to submit a counterclaim for the division of jointly acquired property. This can be done if the plaintiff initiated a claim for divorce or distribution of common material benefits.

Counterclaim – what is it and when is it filed?

The defendant can prepare his own petition in any type of dispute where there are two or more parties. Moreover, more than two claims may be considered simultaneously within the framework of one dispute. A counterclaim for division of property during divorce is filed in accordance with the following requirements and rules:

it can be declared by any interested party taking part in the consideration of the case;
filing a claim can be made at any time after the start of the process and before the judge makes a final decision;
the requirements of the application must relate to those issues that are being considered at the current meeting;
the citizen submitting a counterclaim pays the state fee in accordance with the requirements of the law;
The procedure for submitting an application is the same as filing the main application.

Grounds for filing a counterclaim

A statement of claim for the division of jointly acquired property can only be prepared on the basis of the following requirements:

the petition concerns the plaintiff who prepared the main claim;
an appeal was submitted before a final decision was made;
the application indicates the property in respect of which the dispute is ongoing.

As judicial practice shows, most often the defendant spouses prepare the following demands for the plaintiff:

the plaintiff filed a claim only for divorce, without taking the initiative to consider other issues, and the second spouse wants to distribute the common property, which is described in the counter-statement;
confirmation of the grounds for excluding specific units of property from the list of joint ones;
proposal of a new algorithm for dividing joint property;
providing evidence that some objects should be divided because they were purchased jointly and cannot be considered personal property;
request for payment of compensation or offer of compensation in exchange for certain material assets;
please refute and cancel transactions carried out with common property.

Attention! During the consideration of several petitions, the judge decides which application will be granted and which will be denied.

For example:

Citizen A. and citizen O. decided to get a divorce. Citizen O. filed and immediately requested the distribution of property between the spouses. In the statement of claim, citizen O. indicated that after the wedding he inherited a residential building. And he asks to recognize it as personal property, since inheritance is the basis for defining property as personal property.

Citizen A. files a counterclaim with a request to recognize the inherited house as joint. The woman argues that at the time of inheritance the area of the house was 50 square meters. And over the years of marriage, the couple made major home renovations. As a result of this renovation, the house became two-story, and its area increased to 150 square meters. The spouses earned money for repairs together.

The judge decided to satisfy the claim of citizen O. on the issue of approving the divorce. And the counter-petition of citizen A. was granted in matters of recognition of the house as common, and therefore it was divided between the spouses as jointly acquired property.

Statement of claim for division of property can be downloaded

Preparation and filing of a counterclaim for division of property

A counterclaim is being prepared for the division of jointly acquired property on the basis of a universal sample. At the same time, you must comply with the basic requirements for such documents. Namely:

the petition must contain all important sections of information;
a list of attached documents must be added;
the application is submitted to the court office with its subsequent registration and transfer to the judge;
It is necessary to produce as many original appeals as the number of main participants take part in the meeting.

Important! The defendant has the right to ask the court to postpone the consideration of the dispute to another meeting. This can be done if the defendant was not previously familiar with all the defendant’s demands and now wants to make his own proposals.

The requirements for statements of claim are enshrined in the articles of the Civil Code of the Russian Federation. The court reserves the right to refuse to consider an appeal if the petition is drawn up in violation of the basic rules and requirements. So, the following blocks of information should be displayed in the appeal:

personal data of the parties to the dispute;
information about the original dispute that is currently being considered by the court;
the essence of the requirements;
confirmation of their stated propositions;
a list of attached documents;
signature.

As with the main motions, the counterclaim must be filed in advance with the plaintiff so that he has the opportunity to reconsider the claims and decide on them.

Documentation

Every word of the statement of claim must be supported by documents. Therefore, the defendant must prepare an adequate evidence base for his words. Such papers may include:

the petition itself in the same number of originals as the number of main participants present;
copy and original of personal passport;
marriage or divorce certificate, depending on the stage of the dispute;
documents for the property in respect of which the dispute is ongoing;
title papers;
financial documents confirming personal expenses;
technical documents for property;
witness statements.

It is better to prepare two copies of each document, and also bring the original papers with you.

Duty

Regardless of the fact that the counterclaim is considered together with another petition, you will have to pay the state fee in full. The Tax Code of the Russian Federation stipulates the following amounts of state duty:

0.5% + 13200 – the price of the disputed property exceeds one million rubles;
1% + 5200 – the cost of the disputed goods from 200 thousand to 1 million;
2% + 3200 – the claim price varies between 100,001-200,000;
3% + 800 – property valuation showed 20,001-100,000;
4% - property value does not exceed 20 thousand rubles.

Only after payment of the state fee does the judge accept the petition for consideration. The receipt must be an original, that is, with the stamp of the cashier who completed the transaction.

Sample counterclaim for division of marital property

A counterclaim for division of property depends on the situation, but you can use a universal template that displays the main points of the petition.

According to the advice of lawyers, you cannot always rely on examples from the Internet, since each situation is individual and, sometimes, even the most insignificant points significantly affect the outcome of the dispute. You can prepare a claim in one of the following ways:

seek help from a lawyer who will draft the entire document;
fill out the application yourself and then submit it to a lawyer for review;
prepare an application in person, citing samples from the Internet;
write an appeal based on the examples presented in the court office.

Whether the judge will take it into account depends on the correctness of the appeal. Because the court is not obliged to consider all counterclaims. The initiator must confirm the existence of sufficient grounds for making his own claims, and also confirm each point with the appropriate document.

Can the court refuse to accept a counterclaim?

As noted above, the judge is not obliged to accept the counter-application for consideration. Moreover, the Themis representative must ensure that the application is prepared in accordance with the law and in compliance with the basic requirements of the Code of Civil Procedure.

The main reasons for refusing to accept counter-petitions are:

the grounds specified in the appeal do not give the right to file a counterclaim;
the submitted demands are not related to the current meeting;
the applicant submitted an incomplete package of documents.

Attention! If the judge believes that the evidence submitted is not enough and therefore refuses to accept the appeal for consideration, then this is illegal. Because each party has the right to express their opinion and make personal claims. Insufficient evidence can only be the reason for preparing a court decision to refuse to accept the claim.

Before preparing a counter-application, you need to understand the issues of jurisdiction. Magistrate's Court is an authority authorized to make decisions in cases where there are no disputes. That is, the spouses have resolved all issues of interest peacefully in advance, and then go to court to legally approve their agreements. In the magistrate's court, consideration of applications occurs quickly, and then the judge has the right to refuse to accept the application, arguing that this is the jurisdiction of the district court.

District Court– makes decisions on disputes where the parties to the conflict cannot resolve the situation on their own. The period for consideration of such cases can drag on for months and even years. You can submit counter-petitions to such courts without fear that they will be rejected due to the wrong jurisdiction.

To the Kurgan City Court
Address: 640027, Kurgan, st. Dzerzhinsky, 35

PLAINTIFF: Ivanov Ivan Ivanovich
Address: 640000, Kurgan
DEFENDANT: Ivanova Anna Sergeevna
Address: 640000, Kurgan

COUNTERCLAIMS
on the division of common property of spouses

On November 27, 1997, a marriage was concluded between me and the defendant, the dissolution of which took place on January 22, 2008.

During our time together we acquired the following property:

3-room apartment located at the address: Kurgan, purchased under an apartment purchase and sale agreement with installment payment dated June 4, 2003 (during the marriage), concluded between Ipoteka CJSC and I.I. Ivanov. – 700,000 rubles;

A sum of money in the amount of 200,000 (Two hundred thousand) rubles, received under a loan agreement dated November 12, 2007 (during the marriage), concluded between OJSC Bank and Ivanov I.I.

A sum of money in the amount of 250,000 (Two hundred fifty thousand) rubles, received under a loan agreement dated September 14, 2007 (during the marriage), concluded between OJSC Bank and Ivanov I.I.

Drill 2006

Cooler 2007

Refrigerator STINOL 1999

TV 1996

Curtain in the kitchen, wooden 2005

Sofa in the living room 2002

Desk 2006

Computer desk 2006

Panasonic phone.

Carpet light beige 2007

Kitchen hood 2005

Yucca flower 2007

Wardrobe – compartment 3 doors without doors, 2000

Bed 2004

Kitchen set 2005

Washing machine 2005

Computer 2004

Chandelier 2005

Blinds 2006

Printer 2005

Beige pot, clay, 2007

Beige carpet 1997

Clothes dryer on the balcony 2006

Microwave oven.

Chairs 3 pcs. 2007

Eurobook sofa “Zeus” 2007

Water heater 2007

Small chest of drawers 2007

Wardrobe, 3 doors “Acacia”, 2007

Mirror 1,500 x 1000, 1 pc. 2007

Stand in the kitchen 2007

Shoe stand 2007

Hanger in the hallway 2007

Blinds 2007

Tabletop with leg in the kitchen 2007

Armchair, ivory 2007

Black coffee table 2007

TV 2 pcs. 2007

Large chest of drawers 2007

Home theater Samsung HT-X30R 2007

Floor carpet, light beige, 2007

Floor carpet, light blue, 2007

By virtue of Article 34 of the Family Code of the Russian Federation, all of the above property belongs to the common property of the spouses and is their common joint property.

In accordance with Art. 33 of the RF IC, the legal regime for the property of spouses is the regime for their joint ownership. The division of the common property of the spouses can be made both during the marriage and after its dissolution at the request of any of the spouses. When dividing the common property of spouses, the court, at the request of the spouses, determines what property is to be transferred to each of the spouses (Article 38 of the RF IC).

Ivanov I.I. proposes to divide the common property as follows:

To account for my share, recognize my ownership of the following property:

A 2006 drill, which was valued by agreement of the parties at 1,500 rubles.

A cooler from 2007, which was valued by agreement of the parties at 1,200 rubles.

Refrigerator STINOL 1999, which is valued by agreement of the parties at 2,000 rubles.

Blinds, which are valued by agreement of the parties at 1,000 rubles.

A television made in 1996, which was valued by agreement of the parties at 1,000 rubles.

Curtain in the kitchen, wooden, 2005, which was valued by agreement of the parties at 300 rubles.

The sofa in the living room is from 2002, which is valued by agreement of the parties at 100 rubles.

TV 2 pcs. 2007, which was estimated by agreement of the parties at RUB 34,580.

A large chest of drawers, 2007, which was valued by agreement of the parties at 4,500 rubles.

Home cinema Samsung HT - X30R 2007, which is priced by agreement of the parties at 6,990 rubles.

Floor carpet, light beige, 2007, which is valued by agreement of the parties at 1,000 rubles.

Floor carpet, light blue, 2007, which was valued by agreement of the parties at 900 rubles.

A total of 405,070 rubles.

The defendant shall transfer ownership of the following property on account of her share:

1/2 share in a 3-room apartment located at the address: Kurgan, the valuation of which is 350,000 rubles.

A desk made in 2006, which was valued by agreement of the parties at 100 rubles.

A computer desk made in 2006, which was valued by agreement of the parties at 800 rubles.

Panasonic phone, which is valued by agreement of the parties at 1,000 rubles.

Light beige carpet, 2007, which is valued by agreement of the parties at 6,000 rubles.

A hood for the kitchen from 2005, which was valued by agreement of the parties at 500 rubles.

Yucca flower 2007, which is valued by agreement of the parties at 400 rubles.

Wardrobe-compartment 3 doors without doors 2000, which is valued by agreement of the parties at 100 rubles.

The bed is from 2004, which is valued by agreement of the parties at 2,000 rubles.

Kitchen set from 2005, which was valued by agreement of the parties at 3,000 rubles.

A washing machine made in 2005, which was valued by agreement of the parties at 10,000 rubles.

A computer made in 2004, which is valued by agreement of the parties at 10,000 rubles.

Chandelier from 2005, which was valued by agreement of the parties at 1,000 rubles.

Blinds from 2006, which were valued by agreement of the parties at 1,500 rubles.

The printer is from 2005, which is valued by agreement of the parties at 4,000 rubles.

A beige clay pot made in 2007, which was valued by agreement of the parties at 1 ruble.

A beige carpet from 1997, which was valued by agreement of the parties at 100 rubles.

A clothes dryer on the balcony was built in 2006, which was valued by agreement of the parties at 300 rubles.

Microwave oven, which is priced by agreement of the parties at 500 rubles.

Chairs 3 pcs. 2007, which are estimated by agreement of the parties at 4,500 rubles.

Eurobook sofa “Zeus” 2007, which is valued by agreement of the parties at 11,000 rubles.

A water heater made in 2007, which was valued by agreement of the parties at 1,300 rubles.

A small chest of drawers, 2007, which was valued by agreement of the parties at 2,000 rubles.

Wardrobe, 3 doors “Acacia”, 2007, which was valued by agreement of the parties at 11,200 rubles.

Mirror 1,500 x 1000, 1 pc. 2007, which was estimated by agreement of the parties at 1,300 rubles.

The stand in the kitchen is from 2007, which is valued by agreement of the parties at 800 rubles.

Shoe stand from 2007, which was valued by agreement of the parties at 600 rubles.

A hanger in the hallway from 2007, which was valued by agreement of the parties at 1,000 rubles.

Blinds from 2007, which were valued by agreement of the parties at 500 rubles.

A tabletop with a leg in the kitchen from 2007, which was valued by agreement of the parties at 500 rubles.

Chair, ivory color, 2007, which was valued by agreement of the parties at 1,100 rubles.

A black coffee table from 2007, which was valued by agreement of the parties at 500 rubles.

A total of 427,601 rubles.

By virtue of Art. 39 of the Family Code of the Russian Federation, definition of shares when dividing the common property of spouses “When dividing the common property of the spouses and determining the shares in this property, the shares of the spouses are recognized as equal, unless otherwise provided by the agreement between the spouses... The common debts of the spouses when dividing the common property of the spouses are distributed between the spouses in proportion to the shares awarded to them.”.

According to the DECISION OF THE PLENARY OF THE SUPREME COURT OF THE RUSSIAN FEDERATION dated November 5, 1998 N 15 “...the composition of the property subject to division includes the common property of the spouses, available to them at the time of consideration of the case or located with third parties. When dividing property, the common debts of the spouses are also taken into account (clause 3 of Article 39 of the RF IC) and the right to claim for obligations arising in the interests of the family...

Since during the marriage Ivanov I.I. took out a loan for the purchase of a 3-room apartment in a branch of Ipoteka CJSC, Chelyabinsk, then the remaining unpaid debt on the loan should be distributed between the plaintiff and the defendant in proportion to the shares awarded to us.

Since I recognize the shares as equal, I ask the court in accordance with Art. 39 of the Family Code of the Russian Federation to distribute debts under the loan agreement in the branch of ZAO Ipoteka in Chelyabinsk in equal shares, taking into account the partial repayment of the credit line by the plaintiff after the divorce.

On January 22, 2008, the marriage was dissolved. During the period from February 1, 2008 to September 8, 2009, the plaintiff made a payment under the apartment purchase and sale agreement with installment payment dated June 4, 2003 in the amount of 60,300 rubles. (RUB 3,350 * 18) RUB 60,300 / 2 = 30,150 rubles. In accordance with Art. 38 RF IC division of common property of spouses “...If one of the spouses is transferred property, the value of which exceeds the share due to him, the other spouse may be awarded appropriate monetary or other compensation...” . When dividing jointly acquired property, a 3-room apartment, into equal shares (1/2 each), a sum of money in the amount of 30,150 rubles is subject to recovery from the defendant in favor of the plaintiff, after which it is possible to distribute the debt in the option I proposed.

On November 12, 2007, a loan agreement with deferred payment was concluded between OJSC Bank and I.I. Ivanov, during his marriage to A.S. Ivanova. On November 12, 2007, a sum of money in the amount of 200,000.00 rubles was received by the Ivanov spouses (account statement from OJSC Bank). I paid the loan after the divorce, therefore, a sum of money in the amount of 100,000.00 rubles. subject to recovery from the defendant.

On September 14, 2007, a loan agreement with deferred payment was concluded between OJSC Bank and I.I. Ivanov, during his marriage to A.S. Ivanova. On September 14, 2007, a sum of money in the amount of 250,000.00 rubles was received by the Ivanov spouses (account statement from OJSC Bank).

The plaintiff repaid the common loan (the total debt of the spouses) in the amount of 250,000.00 rubles after the divorce - from 04/03/2008 to 09/16/2008 (account statement of OJSC Bank). 150,000 rubles received by Ivanov I.I. after the sale of the car, it was used to repay the loan. The remaining amount for a joint loan in the amount of 100,000 rubles Ivanov I.I. paid from his salary, therefore, a sum of money in the amount of 50,000.00 rubles. subject to recovery from the defendant.

Taking into account certain procedural nuances when considering this case, in accordance with Art. 35 of the Code of Civil Procedure of the Russian Federation, I ask the court to request from the tax authorities a certificate of income of an individual for 2007, 2008, 2009:

Ivanova Anna Sergeevna, born in 1978, TIN 450 from 2001.

Employed by: Horns and Hooves LLC (TIN 450).

Currently Ivanov I.I. is in a difficult financial situation, on sick leave, temporary disability certificate for Ivanov I.I. enclosed. In accordance with Art. 90 of the Code of Civil Procedure of the Russian Federation, I ask the court to defer the payment of the state duty until a decision is made on the merits.

I ask you to accept this statement of claim as a counterclaim, in accordance with Articles 137, 138 of the Code of Civil Procedure of the Russian Federation.

Based on the above, and in accordance with Art. Art. 34, 38, 39 RF IC, as well as Art. 137, 138 Code of Civil Procedure of the Russian Federation,

I ASK THE COURT:

1. Divide between me, Ivan Ivanovich Ivanov, and Anna Sergeevna Ivanova the property acquired jointly during marriage, which is our common joint property, by allocating to me the property in the option I presented in the amount of 405,070 rubles.

2. Establish shared ownership in the form of one second share for each of us in a 3-room apartment located at the address: Kurgan.

3. To recover from the defendant in favor of the plaintiff monetary compensation in the amount of 30,150 rubles. to restore equal shares when dividing the apartment.

4. Distribute debts under the loan agreement in the branch of ZAO Ipoteka in Chelyabinsk in equal shares, oblige the Defendant to make payments in favor of the Plaintiff in the amount of 1,675 rubles. monthly.

5. Distribute debts under the loan agreement dated November 12, 2007 with OJSC Bank in the amount of 200,000 rubles in equal shares. To recover from the defendant in favor of the plaintiff monetary compensation in the amount of 100,000 rubles. for complete repayment of the spouses’ common debt.

6. To recover from the defendant in favor of the plaintiff monetary compensation in the amount of 50,000 rubles. for complete repayment of the spouses’ total debt under the loan agreement dated September 14, 2007 with OJSC Bank.

7. Collect state duty from the Defendant.