Joint property upon divorcement is divided on shares, if it is a case of property division. According to the article 38 of the Code under the division of spouses’ joint property and determining the shares in this property, the shares of each spouse is considered as equal, if there is no additional conditions provided by the contract between them. Shares in joint property of the spouses in common property are determined by dividing of the property and are always considered to be equal (1/2 or 50%), if:
- there are no other conditions considered in the contract;
- there are no other conditions in the contract about property division;
- court did not define these shares otherwise.
According to the article 38 of the Code the court may derogate from equality of the shares in joint property in favor of under aged children’ interests and (or) based on the interests of one of the spouses, if the other spouse did not receive income for disrespectful reasons or spent the common property of the spouses to the detriment of the interests of the family without the consent of the second spouse. First of all, it refers to people with drug and alcohol addiction: they get the smallest share of the joint property, if it will be proved by the court. You will not find certain rules on this matter in legal acts, the situations are considered personally by the judge.
If the defendant spouse will prove that he was searching a work, had legitimate excuses of his unemployment, was engaged in household and children care, then the court will not be able to reduce his share.
There are some cases when one spouse refuses from his/her share in the joint property. If this fact was agreed earlier, before divorcement, then you can fix it in the marriage contract or in the contract on the division of joint property. If a marriage has been already dissolved, to refuse from the share in the joint property is possible by addressing to a notary. Notary certifies the definition of shares of each spouse in joint property, and then registers a gift contract of a share of one spouse to another.
There is a myth that children also have the right for shares in the joint property. That’s not so, initially the shares of each spouse comprise 1/2. The shares are changed taking into account children only if one of the spouses did not receive income deliberately and spent common funds. Therewith children are not received a particular share, but the share of one of the spouses who continues to care about children is increased.