What should the spouses know about divorce and division of property during divorce?
The fact is that the division of property is allowed both in divorce, and before and after it.
That you can share the acquired things voluntarily, without trial, if there is mutual consent of the spouses, or through the court, if there is no consent. The second part of Article 38 of the Family Code says that joint property can be divided by the husband and wife signing an appropriate agreement. Part 3 of the same article provides for a section in court, if there is no consent or there is a dispute. This process can also be initiated by the creditor of the spouse or one of them.
The Perfect way
The most convenient, easy and therefore more preferable is the division of property in Separation Agreement voluntarily. In this case, the risks of being deprived due to the error of the court are substantially reduced, it is not necessary to give a certain percentage of the value of the dividend – a duty in favor of the state, as is the case in court proceedings, there is no need to spend money on notary services to certify applications, powers of attorney, in court and so on.
- At the same time, it is worth noting that in some cases the agreement on the division of property can be challenged in court as an invalid transaction. This can be done if, in compiling it, mandatory (mandatory) requirements of the legislation are violated, in the event of violation of the interests of third parties (creditors), and if there are contradictions in the document (for example, mutually exclusive conditions, inconsistencies of mutual obligations, blurring of the subject, object of the transaction and etc.). Sometimes an informed but unscrupulous spouse insists on a contradictory condition to later challenge the contract and recognize it as invalid and take some advantage out of it, for example, to transfer the thing, after which it is necessary to re-determine the shares already in all jointly acquired. In this case, the transaction should be abandoned. This is why everything needs to be done on the Power of Attorney Form.
For the same reasons, the agreement on the division of property can be simply unworkable, that is, when it is executed, there will be such obstacles that it will not be possible to overcome formally and the provisions of the document will be unrealizable. Make the entire thing properly certified on the Legal Forms.
Therefore, if the spouses voluntarily conclude an agreement on the sharing of the jointly acquired, it is advisable to consult with a specialist in family law and civilization or to entrust him with the drafting of this agreement. A lawyer with the necessary experience and knowledge will help to exclude possible defects and defects in the transaction, register rights in the institution of justice, provide for a mechanism for implementing the terms of the contract, measures of responsibility, the procedure for resolving the claims of the parties and third parties.