How property is divided in case of divorce. Can't be the main activity of a manufacturing enterprise? Property is not divided into shares

How a business is divided in a divorce - such a problem can become very important, especially in a truly profitable enterprise.

In most cases, if the main income of the family is profit from business, then only one of the spouses is engaged in entrepreneurial activity.

Is the second spouse entitled to a share in the business after a divorce? You will find the answer to this question in this article.

Does the spouse have the right to partition

If the division of property is simple: it is divided in half, then with business everything is somewhat more complicated.

When dividing a business, one should rely on the Family Code of the Russian Federation. It spelled out all types of property and those incomes that will be divided equally upon divorce.

The second spouse, who does not participate in entrepreneurial activity, has the right to sources of the family budget from the individual entrepreneur, to a share of the authorized capital of the organization. Further, it is specified that the property is considered joint, even if one of the spouses has only a part of the capital.

Any object of entrepreneurial activity is divided in half upon divorce. The question can be resolved differently. For this, the composition of the business is determined, the property is assessed, the path is chosen, along which there will be no disruption of the stable course of affairs.

If the ex-husband and wife agree among themselves voluntarily, then the business is divided by their decision. Otherwise, litigation is required. You can file a lawsuit immediately after an official divorce, or you can while still living together.

The trial can take from several months to several years, so it is better not to bring it to this. Most often you have to deal with the following situations:

1. One of the couple has the status of an individual entrepreneur.
2. One of the former couple is engaged in commercial activities, is one of the founders.

Please note that regardless of the share of capital owned by one of the spouses, it will be divided equally when the marriage is annulled.

Upon divorce, the following property is divided:

• money from business activities;
• stock;
• shares in LLC;
• bonds;
• material.

In case of divorce, it is not subject to division:

• business created before marriage;
• business donated or created by one of the spouses;
• objects of intellectual activity.

Section LLC

To determine in what cases the spouse will not receive anything when dividing the Limited Liability Company (LLC), you need to refer to the company's charter.

If it was initially stated that new participants cannot join the society, then the party claiming the share can only receive compensation. If there are common shares and a joint share, then they are divided in half.

There is a general concept that joint shares are divided according to the rules of property. The step-by-step rules for dividing shares are not described anywhere. The value of the company is preliminarily estimated. Before dividing the firm, liabilities and assets, profit are assessed.

In fact, it rarely happens that the shares are divided equally, since the business will not be able to continue functioning normally due to the absence of one manager. If only one person has the right to adequately manage the economy, then he gets 100% of the shares, and the second is compensated.

Good to know: if the amount of the nominal share is 10,000 rubles, then the compensation is calculated as 50% of it.

The value of the share is estimated depending on the total total value of the LLC property:

• assets;
• obligations of third parties;
• bank accounts;
• things belonging to the LLC.

The size of the authorized capital and the value of assets may not coincide. If an LLC has a minimum authorized capital of 10 thousand rubles, then in fact it can be millions of rubles.

IP section

If the husband or wife are self-employed, then all profits from the activity will be divided in half.

Any objects are the property of an individual, therefore, according to the law, the second family member can claim half of the family business. It does not matter which of the spouses has the status of individual entrepreneurs, who is the legal owner.

Entrepreneurship not only generates income, but sometimes there are debts. In court, it is considered for what purposes the family money was spent, whether it was rational in the situation that arose.

If the income from entrepreneurial activity was spent on the purchase of real estate or the education of children, then one of the spouses is obliged to pay the second amount in proportion to the share in the joint property. If the profit was spent on personal needs, then the court can order to pay off the debt obligations of the owner of the company in full.

Regardless of what one of the spouses was doing while the other was managing the state of emergency, all property will be divided equally. If the plaintiff demands to divide the goods that are in circulation, then the court considers the case in favor of the functioning of the IP.

If this can lead to the collapse of the company, then such statements of claim are rejected. SP is divided in half, if it does not harm business.

Bank deposit section

In case of divorce, all property is divided in half; foreign currency accounts in the bank also fall under this rules.

All shares, deposits and bank deposits are subject to division. You can share money if it was earned during your life together.

If the second condition is met, then the court determines the parties' need for shares. If the account is in the name of the child, then the parents do not have the right to claim it. If there is money in the account, it is divided equally.

How the business is divided in the divorce proceedings, see the explanations in the following video:

Last updated July 2019

According to statistics, in the first 4 years of marriage, about 40% of divorces happen. More than 15% occur at the very beginning of married life and, unfortunately, young families do not have time to live together even for 1 year. And one of the very first questions that arises during a divorce is how to divide property.

Division of jointly acquired property after divorce

Jointly acquired property- based on the norms of Article 256 of the Civil Code of the Russian Federation, it can be concluded that all property that was bought by the spouses at the time of marriage is jointly acquired (except for circumstances when the marriage contract signed by them establishes a different regime for these things). Cm. .

Article 34 of the Family Code of the Russian Federation says that all income that each of the spouses received in any way is their joint property. The property, which is common, also includes: securities, shares, parts in the statutory funds of enterprises, immovable and movable things, deposits and other property acquired by the wife and husband. In this case, it does not matter at all - to which of them this property is recorded.

The division of property in case of divorce can occur:

Conflict-free solution - amicable settlement of the spouses

If both parties agree to an out-of-court settlement of the issue and there is no conflict between them, then they conclude an appropriate written document () between themselves, in which the shares of each of the parties are prescribed and notarized. If the agreement is left in simple written form, it will have no legal effect. Such a document will not work anywhere, including in court. From December 29, 2015, Federal Law No. 391-FZ established that it is mandatory must be notarized.

Through the court

If, nevertheless, the former spouses cannot independently agree on who takes what things, then the matter comes to court. In the judicial settlement of the conflict, the court initially establishes the composition of the property suitable for the division, and then allocates a part of each of the spouses.

But if one of the parties receives property, the price of which significantly exceeds its legal share, then the court may oblige this party to pay material compensation (compensation) to the former spouse in monetary or other form.

Example: At the time of marriage, my husband bought a rare painting by a famous artist, which cost more than 1,500,000 rubles. The wife was not against the transfer of this thing to the ex-husband, provided that the court obliges him to pay the ex-wife compensation in the amount of 200,000 rubles.

Division of property in court

Stages of division of jointly acquired property in court:

• Establishment of the property of each of the former spouses.
• Determination of the share of each of them.
• Isolation of those things from the common property that each of the parties wants to take for itself.
• Determination of the amount of compensation for any of the spouses, in case of unequal distribution.

The list of things is determined in accordance with the interests of the spouses and their children. The division follows the principle of equal division of property. However, taking into account the circumstances of life, the judge may deviate from equality (cases when children remain after marriage with one of the parents or there is no work for one of the parties without indicating good reasons). In these situations, the principle of decreasing or increasing the share is applied, which must be justified in court.

Increasing the share of the spouse

The reasons for the increase in the share of one of the spouses may be:

• minor children who were left to live with him,
• his illness or permanent disability, especially if they arose during marriage and are associated with the performance of the duties of a family member. For example In order to raise money for the expensive operation of the child, the husband took two jobs, as a result of which, against the background of general fatigue and overwork, he received a heart disease and now has to constantly be treated.
• fulfillment of obligations by one spouse for common debts. Example: the family received a loan from a private person, but in view of the unsatisfactory financial situation could not repay it. In order to avoid litigation, interest and fines, the wife, who has the profession of a painter, completed finishing work in the house of the lender to pay off the debt.

Domestic work of a spouse who does not work at the time of marriage and who runs a household or takes care of children, who for valid reasons could not have his own income, will be the basis for receiving a share in the joint property.

Decrease in the share of the spouse

A decrease in the share is possible when unreasonable reasons are established:

• the spouse does not receive income due to unwillingness to find a job;
• negligent and negligent attitude of the husband or wife to the property, which led to a decrease in its value, full or partial destruction;
• irresponsible, antisocial behavior of the spouse, which led to the general debts of the family. For example: the couple checked into the hotel on a voucher. The husband, being drunk, ruined the property in the room for a round sum. The reimbursement of the expenses of the hotel administration was made from the general money.

What about debts?

If the former spouses have debts, then they will also be divided in proportion to the shares awarded (see details and).

But it should be borne in mind that if we are talking about an administrative, criminal or other offense, then the responsibility for the debts arising from the reasons for such acts is assigned personally to the culprit.

How to share inseparable things

It often happens that the common property includes things that spouses want to keep for themselves (see). In such situations, the court acts in the following order:

• Former spouses are invited to determine for themselves who will get this thing. Further:
  • the parties determine the cost by mutual agreement or on the basis of the opinion of the appraiser (if there is no agreement);
  • the court, based on the price, appoints the spouse who has been left without a thing, monetary compensation at the expense of the other spouse.
• If there is no compromise, then the object of the division is transferred into shared ownership with the determination of the share for each, and, if necessary, the judge determines the procedure for using it.
• When it is impossible to allocate a share in the property, the court compulsorily decides for whom the subject of the dispute will remain. In this case, the following circumstances are taken into account:
  • the need for each of the spouses in things;
  • the ability to actually use a controversial subject.

For example, the spouses cannot share the car. The court found out that the ex-wife does not have a driver's license and cannot drive vehicles for health reasons. While the other spouse works in a remote place from the residence. A judge is more likely to leave property to her husband.

Terms of division of property of spouses

As a general rule, the limitation period in cases regarding the division of property between former spouses is 3 years (clause 7 of article 38 of the RF IC). However, many do not know from what moment this period begins.

The Plenum of the Supreme Court of the Russian Federation in its Resolution No. 15 of 11/05/1998 in Article 19 indicated that it is not necessary to calculate the limitation period from the very moment of divorce (the entry into force of a legal court decision or registration of an entry in the book of dissolution of marriage unions in the registry office) , and from the moment when the person should have become or became aware of the fact of violation of his rights. This provision is also indicated in paragraph 1 of Art. 200 of the Civil Code of the Russian Federation.

Example: 5 years after the end of the marriage, the husband learned about real estate, which was purchased at the time of his cohabitation with his ex-wife, but this building was not indicated in the list of common property.

The spouse, whose rights were not respected, is obliged to prove the fact of avoiding the division of jointly acquired property, but it is sometimes extremely difficult to justify such circumstances.

To restore the missed deadline, the spouse must file a claim for the renewal of the missed deadline with the judicial authorities.

What property is not divided upon divorce

Everything that was acquired before marriage

Part 2 of Art. 256 of the Civil Code of the Russian Federation says that the property that each of the spouses had before the start of marriage, as well as property donated to one of the spouses or passed to one of the parties by inheritance, is not jointly acquired, but belongs to the personal property of the corresponding spouse.

Personal belongings

Items for individual use, namely: clothes, shoes and other individual property (except for precious products and luxury goods), bought even for general money, belong to the property of the spouse who uses them.

Rights to the result of intellectual activity

The right to the result of intellectual activity is also not divided in case of divorce like other property. It is exclusive and belongs only to the author. And the income received from the use of this result is jointly acquired property (unless the document between the spouses (marriage contract) indicates otherwise).

Things of minor children

The rights and things that belong to minor children are not shared between the parties to the process. These include things bought only to meet the needs of children and contributions that are made in their names.

Things purchased after the "departure"

The things acquired by the spouses after the termination of their cohabitation (in the case of a long divorce proceedings) are also not shared. This is one of the most sensitive issues in the divorce case, since it is difficult for one of the spouses to resist the temptation to declare his right to someone else's property, despite the fact that there are formal signs of this. Therefore, such property must be separated from the general, and in court it must be confirmed:

• separation of residence;
• lack of a joint budget;
• the presence of a conflict, incompatibility of life positions, etc.

Division of property in case of divorce, if there are children

The property of adult children, namely: an apartment, a car, a summer residence or shares, is not subject to division. They must remain the personal property of the child.

If in, then the divorce process takes place only through court... This action is used to ensure the personal property rights of children.

In the event of a divorce, adult and minor children, at the time of division of the property of the spouses jointly acquired in marriage, do not have the right to it, just as parents do not have the right to the things of the children bought for their needs. These include:

• clothes, shoes
• sport equipment
• school supplies
• furniture, books
• musical instruments
• as well as material contributions for children.

The listed things are transferred to the parent, with whom the children will be left. The other does not have the right to count on appropriate monetary compensation, even if it becomes known that the children's property has been sold.

Sometimes there is a dispute about the need for these things for a child:

Example 1: A computer that was purchased over 4 years ago was purchased for general use, not just to meet the needs of a child. Here the issue is controversial and the court may rule in favor of either one side or the other. Because the computer can hardly be attributed to exclusively children's use.

Example 2: A claim is made for the piano. The ex-husband said that the purpose of this tool is not intended only for children. However, the wife presented evidence that their child is studying piano at a music school and that this musical instrument was bought for him. Such a piano will not be subject to division.

If immovable property is alienated, which is the property of a minor child or his place of residence, then a representative of the guardianship and trusteeship body must be present at the court session. The consent of the authority for the allocation of the child's share is mandatory.

If there is a minor child in the family that participates in the divorce proceedings, then the spouse with whom the child does not live is obliged to pay alimony for his maintenance (see). Then the court will divide the parts of the jointly acquired property equally.

How to draw up a property division agreement

Initially, it is necessary to indicate that an agreement (agreement) on the division of property can be drawn up at the time of marriage, upon its dissolution or after this process. However, the best point in drafting it is somewhere between the beginning and the end of the divorce.

After filing an application for divorce, the spouses can draw up an agreement and avoid losing money when paying the state fee, the amount of which is calculated from the total value of the property and can be more than 10 thousand rubles.

After the conclusion of such an agreement, the spouses peacefully share their joint property, informing the court about the settlement of the disputed relationship.

Part 2 of Art. 38 of the Family Code of the Russian Federation states that an agreement of this kind is concluded in writing, subject to notarization. Since December 29, 2015, Federal Law No. 391-FZ has established the procedure for compulsory notarization of an amicable agreement on the division of property.

Notary services are paid. He collects a state fee from the spouses, the amount of which is calculated based on the total price of the property to be divided. This percentage may not be small enough and it is better to know it in advance.

• Preamble. It should indicate the place (city) and date of drawing up the document, as well as indicate the parties to the agreement (Party 1 - full name, Party 2 - full name)
• Item. Here the spouses describe their civil status and indicate all the property that is in their jointly acquired property.
• The procedure for the division of property. In this part, it is necessary to indicate which property is transferred to whom.
• Conditions for the transfer of property. Here it is indicated exactly how the transfer of property from spouse to spouse will take place. For example: If there is a division of immovable property - when one of the parties goes to the appropriate register with documents of title to re-register the property to the other party.
• Personal property that will not be shared... This point is important enough. It prescribes all property that is not divided or will not be divided (property that was not jointly acquired property, personal belongings of one of the spouses or items that one of the spouses does not claim). This must be done to avoid future claims.
• The procedure for the entry into force of an agreement (agreement)... Here it is necessary to indicate that this document will come into force from the moment of its notarization.
• Final provisions... In this clause it is necessary to indicate information on the number of copies of this agreement, on the procedure for making additional changes to this agreement and on the consideration of disputes related to the execution of the agreement.
• Signatures of the parties. This is important enough! After drawing up the agreement, it must be sealed with the signatures of the spouses

Question:
What if the division agreement is concluded, but after that the other spouse changes his mind and evades notarial actions.

The answer is simple: the interested spouse should fulfill the part of the obligations that was assigned to him. And then you can go to court to recognize the agreement as valid without notarization. Subsequently, the intractable spouse can be required to fulfill his part of the agreement on the basis of a court decision.
But this method is not always effective. Sometimes it is easier to go to court with the usual division of property.

How spouses hide property

Statistics show that during marriage, many spouses think about the possible consequences of divorce. Therefore, they are reinsured and by all means take property away from the regime of joint property of a husband and wife.

The most common ways are:

• registration of objects of ownership for relatives. This mainly applies to large things: real estate, transport, etc .;
• concealment about existing values. Most often these are bank deposits, stocks, cash, etc.;
• buying things with donated money from relatives.

For example: the husband buys a car, which he wants to register for himself. The day before the purchase, the spouse turns to a notary to certify the donation agreement from the spouse's father for the purpose of buying a car. The agreement, of course, is penniless, but it is difficult to prove it, since it is notarized. It turns out that a car bought with that kind of money is a gift and will not be counted as common property during the division.

• acquisition of material assets through loans from friends and acquaintances. The bottom line is that during the division, the spouse can submit to the court a loan agreement, allegedly for the purchase of a thing, drawn up shortly before the purchase, as well as a fake receipt or other payment document on behalf of this spouse on the return of the loan, dated after the divorce. Formally, this gives reason to demand that the property be left to oneself without compensation to the other spouse, since they single-handedly paid the total debt.
• There are other methods that are of a single nature.

How to divide property registered for another person

It is not uncommon when one of the spouses (as a rule, the main earner in the family), showing worldly "wisdom", draws up all acquired property for his relatives (parents, grandmothers, brothers, sisters, etc.) or for strangers in general (isolated cases ).

However, such property can still be included in the total mass and fairly divided.

This requires separately (under a new claim) to challenge the fictitious transactions in court, that is, to invalidate the transaction with the dummies and transfer the ownership of the spouses. True, this process is not easy, but if the controversial thing is expensive, then the work will not be in vain.

When considering the court, they provide information that:

• funds for the purchase of things were taken from the general budget (it does not matter which spouse and from what sources);

For example: before buying an apartment, the husband withdrew money from his bank account exactly in the amount that corresponded to the price of housing.

• the person to whom the property is registered does not really have sufficient finances.
• the one in whose name the registration was made does not have the skills and needs to use this property.

For example: the motor boat was registered to the grandmother, who has neither the rights nor the means to maintain the floating craft.

• the controversial objects were used by the family and incurred the expenses for the maintenance of these objects.

Example: the summer cottage, which was listed on the spouse's brother, was at the disposal of the family, which will be confirmed by the neighbors, the board, payment documents on membership and targeted contributions, etc.

It is important not to miss the appeal deadline - 3 years from the moment such a pseudo-transaction was committed or when the deprived spouse became aware of it.

During a dispute over the false registration of property, the court case on the division must be suspended, since based on the results of challenging the transaction, it will be clear whether the common property of the spouses will increase or not.

If the spouses do decide to divorce, then it is necessary to take into account several rules that will help them get through the divorce process faster.

• To avoid unnecessary expenses, it is best to correctly draw up an agreement on the division of property and not go to the courts at all. All necessary information should be included in this document. But notarization is sometimes quite expensive.
• If the case has come to court consideration, then do not forget to file a claim for the division of property and documents for the deduction of alimony (for the spouse with whom the minor children are left to live). The presence of minor children is also the basis for increasing the share in the joint property.
• After the end of the divorce process, save all documents related to the marriage, as they may be needed in the future. (If the spouse finds out about the undivided property and wants to claim it).

If you have any questions about the topic of the article, please do not hesitate to ask them in the comments. We will definitely answer all your questions within a few days.

The divorce procedure is easy if the spouses do not have mutual claims to each other regarding the division of joint property, and also there are no mutual disputes regarding the children, with whom they will live and how alimony will be paid for them. But if there is no agreement between the divorces, they are not inclined to make concessions to each other, then they will have to sort out their relationship in court. To a greater extent, this applies to the property that the spouses used during the marriage. It is in this field that ex-husband and wife who are offended at each other begin to sort things out, who of them paid for what, and what each of them will use after the dissolution of the marriage.

Raises many questions. Despite the fact that the legislator in the Family Code of the Russian Federation established norms regulating this issue, he failed to describe all life situations. Most often, qualified legal assistance is required to distribute the shares of the spouses among all the good that they enjoyed during the marriage. An attempt to resolve controversial issues on their own can lead to errors and fatal consequences, as a result of which the personal property of the spouses will be divided or, conversely, the property that is considered jointly acquired will not be divided.

The principles by which the division of property is carried out in case of divorce

The Family Code of the Russian Federation enshrined in Article 38 the basic principles from which it is necessary to proceed when allocating shares of jointly acquired good. So, all that the spouses have gained during the marriage, they can share either when drawing up a written agreement, or through the court, during a court hearing. In the first case, the practice is to draw up a contract in the form of a marriage contract. In order to give it legal force, it is notarized. If such an agreement is not certified by a notary, while saving a ridiculous amount of money, then the risk increases that this agreement reached by the court will not be taken into account. That is, if, with an agreement reached, which will be written on paper, one of the spouses has an intention to challenge it, it is highly likely that this agreement will not play any role during the court hearing.

The judge will look at the paper where there are some agreements between the divorces that are contrary to the current legislation, he will listen to both parties. The chances that he will take this agreement into account are not very high, especially if one of the parties insists not to take this agreement into account. The greatest likelihood that the court will make a decision, guided by the prescribed rules of law. Another thing is when this agreement is notarized. Then it will have legal force, even if it goes against some rules of law governing how to divide property. The judge will without fail accept this paper for consideration and will take it into account when making a decision.

Since we are talking about the proceedings in court, it is worth noting that the spouses regarding the division of the jointly acquired good can go directly to the court. This happens when there is no agreement between them, therefore it is not possible to draw up a written agreement, and in order to receive the shares due to them, it is necessary to apply only to the court. Unlike the first method, when a divorcing husband and wife need to draw up a written agreement, the division of all the acquired property can take many months.

If you need to divide real estate

The main disputes arise around in which the spouses lived or used. When it is divided or when shares are allocated from real estate, the court proceeds from the fact that both husband and wife have the right to half of it. Children are not counted in this case. That is, the principle of equality applies between spouses. But at the same time, the main question that is being clarified in court is which property belongs to joint, and which does not apply to it. The fact is that not everything that spouses used during marriage is subject to division. To make it clearer, let's look at an example from practice.

The ex-husband is filing a lawsuit demanding that the house and apartment, acquired in marriage, be divided into equal shares between him and his ex-wife. In the lawsuit itself, he referred to the law, which recognized his right to half of the acquired housing. The court of first instance refused him, and the court of appeal upheld the decision of the court of first instance unchanged. What's the matter? Or does the law work selectively? In fact, not all property acquired during marriage is shared. That is, things, real estate are subject to division if they were purchased during marriage and the regime of joint ownership applies to them. But there are things that were bought during this period and this regime does not apply to them.

In this case, it turned out that the apartment and the house were purchased at the expense of the funds that belonged to the spouse before marriage. Some of them went to her as an inheritance, and some were earned during her entrepreneurial activities before she got married. This means that the capital for which the real estate was purchased during the marriage is not joint, and therefore the spouses' shares are not allocated from the apartments and houses purchased for it. The property is wholly owned by the wife.

What property belongs to jointly acquired property?

The legislator has clearly divided what falls under the regime of joint ownership and is subject to division, and what does not fall under this regime, and therefore remains in the personal property of its owner entirely. All types of income are subject to this regime, from wages, pensions, income from entrepreneurial and intellectual activities to all things and real estate acquired for these incomes.

Accounts, bank deposits, purchased securities are subject to division between spouses. This happens regardless of the size of the income of each of the family members. The wife may not work at all, but at the same time claim half of all property acquired during the marriage that falls under the joint regime. The court may deviate from these principles and reduce the share of one of the spouses if it is proved that he did not work for no reason, led an immoral lifestyle, and committed acts that caused damage to property. This applies if the husband is an alcoholic or drug addict. If the wife does not work without any good reason, there are no children in the family, and a hired person watches over the house, apartment, then in this case the judge can reduce the wife's share.

From what property will the court not allocate shares?

As mentioned above, in the course of considering the example, if the spouses have some property acquired before marriage or during marriage, but for funds received before marriage, then it is not subject to division between the divorced husband and wife. The same applies to the good that a husband or wife receives during marriage by inheritance or gift. However, there are times when it is very difficult to prove that an apartment or a car was purchased for the personal funds of one of the spouses.

For example, a husband and wife decide to buy an apartment. Half of the cost of the apartment is paid by the wife's mother, who transfers this money to her daughter personally. In case of divorce, the husband claims half of the apartment, although he had to claim only half of the half, that is, a quarter. It was half of the apartment that was purchased for the joint income of the spouses. But during the trial, it turned out to be difficult to prove that the purchase of half of the apartment was fully financed by the mother-in-law. The money was not transferred through a banking institution. It was difficult to prove the nature of their appearance, which played into the hands of the spouse. It is possible to prove the source of such money, if before that an apartment is sold or something else significant that belonged to one of the spouses before marriage or to the parents of one of the spouses.

But sometimes the court takes into account the testimony and the result of considering the possible source of these funds. If the income of the spouses did not allow making such purchases, while the income of their parents could well provide for such purchases, in combination with the testimony of the court, the court may come to a conclusion about the source of the funds and make an appropriate decision.

Also, shares are not allocated from personal property, everyday things and children's things that are transferred to the adult with whom the children stay. If some deposits were previously made out for children, savings accounts were opened, they are also transferred to the parent with whom the children stay. As for personal property, it will not include jewelry and things considered luxury. The first means products made of precious and semi-precious metals and stones. And with luxury, not everything is so simple. The fact is that there are no direct indications in the law of what is considered a luxury and what is not a luxury. Therefore, the court proceeds from the total income of the family and the value of the thing itself. For large cities, fur coats and sheepskin coats worth less than 40 thousand rubles may not be considered luxury by the court, while in provincial towns the court will consider it necessary to add them to the list of joint ownership.

Some special cases when dividing joint property

Special cases are considered to be questions about the division of property that belongs to the cooperative. In judicial practice, it is customary to pay attention to the periods of payments made, if they were made after the registration of the marriage. We are talking about unit savings, which were made after the marriage and before the official break of family ties. In addition, the key issue is when the full contribution is made. It is not the share of unit accumulation that is determined in cooperative housing, but the share in the housing itself.

For example, when married, the husband was a member of a housing cooperative. After the divorce, he sues his ex-wife to exchange an apartment in a cooperative house for two other apartments. As a result, the court refused to satisfy the plaintiff on the grounds that even before the termination of the marriage, the share contribution for this apartment had been paid in full. The court found that the payments were made from the joint income of the spouses, and therefore the apartment is their joint property. If the court satisfied the claim of the former spouse, then he would have infringed on the wife's ownership of this apartment. Similarly, the courts act in matters of division of the spouses' cooperative property, such as a summer residence, garage, etc.

Another special case related to the section of privatized housing. It belongs to the one who privatized it and is its owner. The other spouse cannot claim him, even if he is registered in this housing. According to the provisions of the Housing Code of the Russian Federation, after the dissolution of the marriage, the ex-spouse does not retain the right to use this housing. Sometimes, by decision of the judge, such a former family member may retain the right to use, but for a certain period. There must be good reasons for this, such as the fact that the ex-spouse does not have another living quarters in which he could live, and his financial situation does not allow himself to provide himself with living space.

How do I split the loan?

The question is not about the loan, but about the property that was taken on credit, the mortgage, for which there is a certain debt. The legislator has defined very clearly that not only property rights must be divided into equal parts between spouses, but their property obligations must also be divided in half. This means that if the apartment that is on the loan is divided into equal shares, then the loan is divided into equal shares. We will return to the issue of real estate later. But what about things, household appliances, furniture borrowed on credit? The loan for them is also divided into equal parts. It is believed that one of the spouses acquired all this with the consent of the second spouse.

As for a loan for an apartment, then, as a rule, it is issued for one of the family members, while the second acts as a guarantor for this loan.

The best thing to do is to split this one general loan into two separate loans.

This will allow you to fulfill obligations strictly individually. But banking institutions are reluctant to reissue one loan for two separate ones. The bottom line is that if one of the spouses stops making the monthly payment, the other will have to pay for it. Otherwise, the calculated penalties will affect both, and the amount of the monthly payment will increase. After all, the apartment is pledged to a banking institution, and if the loan is not repaid in full, then it can put up this housing for sale for debts. What it will cost then each of the former spouses is easy to guess - no apartment, no money. Both the bank and the payers are well aware of this, but with the help of lawyers, a common solution can be found in each case.

MODULE 1.2. ORGANIZATIONAL AND LEGAL FORMS OF BUSINESS OF LEGAL ENTITIES

The market economy presupposes a significant variety of organizational and legal forms of enterprises. This is due to the fact that one part of the national economy of the country is owned and managed by private citizens either individually or collectively, the other part is managed by organizations established by the government or local authorities. In addition, business in any country is carried out on a different scale.

An individual entrepreneur conducts business at his own expense, makes decisions on his own. Its advantage is the efficiency of decision-making and instant response to consumer requests. However, with this form of business organization, financial resources are limited, which does not allow production on a large scale. The limited scale of production leads to high costs and low competitiveness.

Consolidation of individuals and legal entities for joint activities allows to increase the volume of attracted production resources. At the same time, in enterprises with several owners, the efficiency of decision-making is low.

The advantages of small enterprises can be considered a good overview of the business, the disadvantage is high production costs due to limited production and financial resources.

Large enterprises have lower costs due to mass production, but they lose efficiency of management, the interest of workers in the final results of their activities.

Commercial enterprises in accordance with Russian law can be created in the form of business partnerships and companies, in the form of unitary enterprises and production cooperatives.

Business partnerships and companies- these are commercial organizations with the authorized (pooled) capital divided into shares (contributions) of the founders (participants). The property created at the expense of the founders' contributions, as well as acquired and produced in the course of the partnership's or society's activities, belongs to him on the basis of the right of ownership.

Business partnerships and companies have many features in common, but their main difference is that a partnership is an association of persons, and a society is an association of capital.

Business partnerships- can be created in the form of a full partnership and limited partnership (limited partnership).

The main document that defines the principles of the business partnership is the constituent agreement .

A contribution to the property of a business partnership may be money, securities, other things or property rights, or other rights that have a monetary value.

Members of a business partnership have the right to participate in managing the affairs of the partnership, to take part in the activities of the partnership. The received profit is divided between the co-owners in proportion to the shares in the contributed capital. In the event of liquidation of the partnership, its participants receive part of the property remaining after settlements with creditors.

Individual entrepreneurs and (or) commercial organizations can be participants in general partnerships and general partners in limited partnerships.

V full partnership all participants are equal in their rights and obligations in the affairs of the company they have established. If they fail, they risk their own property. General comrades jointly bear subsidiary responsibility. Joint and several liability means that everyone is responsible, regardless of who is being charged. Subsidiary liability means that if the property of the partnership is not enough to pay off debts, the partners are responsible with their personally owned property in proportion to the contributions.

A partnership of faith(limited partnership) is a partnership in which, along with participants who carry out entrepreneurial activities on behalf of the partnership and are responsible for the partnership's obligations with their property (general partners), there are one or more participants - contributors (limited partners) who bear the risk of losses associated with the activities partnerships, within the amount of their contributions and do not take part in the partnership's entrepreneurial activities.

Contributors are entitled to a share of the profits proportional to their contribution.

Enterprises created in the form of partnerships have a number of advantages:

· Each general partner has the right to engage in entrepreneurial activities on behalf of the partnership on an equal basis with others;
· General partnerships are the most attractive for creditors, since their members bear unlimited liability for the obligations of the partnership;
· An additional advantage of limited partnerships is that they can raise funds from contributors to increase their capital.

Disadvantages:
· There must be a trusting relationship between general partners;
· Each member of the partnership bears full and joint and several unlimited liability for the obligations of this organization, i.e. in the event of bankruptcy, each member (except for limited partners) is responsible not only with a deposit, but also with personal property;
· A partnership cannot be created by one participant.

Such an organizational and legal form as a full partnership is almost never found in the practice of Russian entrepreneurship. It is unpopular with entrepreneurs because it does not set limits on their liability for the partnership's debts. At the same time, the state does not provide any privileges for partnerships.

Abroad, there are tax and credit benefits for partnerships. They are widespread in the agricultural sector, the service sector (legal, auditing, consulting, medical firms, etc.), trade, and public catering.

Business companies can be created in the form of a joint stock company, limited liability company or with additional liability.

A limited liability company (LLC) is a company founded by one or more persons, the authorized capital of which is divided into shares of the sizes determined by the constituent documents; members of a limited liability company are not liable for its obligations and bear the risk of losses associated with the activities of the company, within the value of their contributions.

The supreme body of a limited liability company is the general meeting of its participants. For the current management of the company's activities, an executive body is created, which can also be elected not from among its participants.

A limited liability company is a type of capital pooling that does not require the mandatory personal participation of its members in the affairs of the company.

Limited Liability Company Benefits:
· The ability to accumulate significant funds in a relatively short time;
· Can be created by one person;
· Both legal entities and individuals, both commercial and non-commercial, can participate in the activity;
· The members of the company bear limited liability for the obligations of the company.

Disadvantages:
· The authorized capital cannot be less than the amount established by the legislation;
· The society is not very attractive to creditors, as its members have limited liability;
· The number of LLC participants should not exceed fifty.

An additional liability company (ALC) differs from a limited liability company in that its participants are liable for the company's obligations with their property in the amount of a multiple of the value of their contributions. In case of bankruptcy of one of the participants, his responsibility is distributed among the other participants. The difference from a general partnership is that the amount of liability is limited. Liability can, for example, be limited to three times the size of the contribution.

All of the above organizational and economic forms are characteristic of small enterprises. For large-scale industries, another form of capital attraction is required, which would ensure the stable functioning of society. In most countries of the world, such enterprises are created in the form of a joint stock company.

Joint-stock company(JSC) is a company, the authorized capital of which is divided into a certain number of shares; the participants of the joint-stock company (shareholders) are not liable for its obligations and bear the risk of losses associated with the activities of the company, within the limits of the value of their shares.

A joint stock company can be open or closed.

A joint stock company, whose members can alienate their shares without the consent of other shareholders, is recognized as an open joint stock company (JSC).

A joint stock company, the shares of which are distributed only among its founders or other predetermined circle of persons, is recognized as a closed joint stock company (CJSC).

The authorized capital of a JSC is made up of the par value of the company's shares acquired by shareholders.

Shareholders cannot directly control the operations of the JSC. They elect a board of directors, which manages the business of the joint-stock company in order to generate profits for the benefit of shareholders.

The supreme governing body is the general meeting of its shareholders.

The profit per share is called a dividend.

Advantages of JSC:
· A guarantee that upon the withdrawal of its participants, the equity capital of the company will be reduced;
· The ability to concentrate large capital;
· The possibility of quick alienation of shares, which makes it possible to almost instantaneously transfer large capital from one sphere of activity to another in accordance with the prevailing market conditions;
· Limited liability of shareholders (within the limits of their shares) in the event of bankruptcy of the company.

The disadvantages include the inability for all shareholders to take part in the management of a joint-stock company, since for real control it is necessary to have at least 20% of the shares. Huge capital is concentrated in the hands of individuals, which, in the absence of proper legislation and control by shareholders, can lead to abuse and incompetence in its use.

In Russia, joint stock companies appeared at the beginning of the 18th century. The demand for shares has always been high. This contributed to the emergence of a large number of enterprises of this form. According to statistics for 1911, the total number of joint-stock enterprises in industry and transport alone amounted to 821.

At the end of 1917 - beginning of 1918. the process of development of joint stock companies has stopped. However, in 1920, their number began to grow again. At the beginning of 1925, there were over one hundred and fifty joint-stock companies. The most important area was trade and commercial and industrial activities. In the late 1920s and early 1930s, joint stock companies were liquidated or transformed into state associations. Only two joint-stock enterprises survived: the Bank for Foreign Trade of the USSR (established in 1924) and the All-Union Joint-Stock Company Intourist (organized in 1929). In 1973, an insurance joint-stock company of the USSR, Ingosstrakh, was established.

Production cooperatives Is a voluntary association of citizens for joint production or economic activities, based on the personal labor participation of members of the cooperative and the combination of their property shares

The main difference between a production cooperative and partnerships and societies is that it is based on a voluntary association of individuals - citizens who are not individual entrepreneurs, but participate in the activities of the cooperative by personal labor. Accordingly, each member of the cooperative has one vote in the management of his affairs, regardless of the size of his property contribution. The profit received in the cooperative is distributed taking into account their labor participation of the members of the cooperative. There must be at least five members of the cooperative;

Cooperative advantages:
· Profit is distributed in proportion to the labor contribution, which creates the interest of the members of the cooperative in a conscientious attitude to work;
· Legislation does not limit the number of members of the cooperative, which provides great opportunities for individuals when joining the cooperative;
· Equal rights of all members, since each of them has only one vote.

The main disadvantages of the cooperative:
· The number of members of the cooperative must be at least five, which limits the possibilities for their creation;
· Each member has limited liability for the debts of the cooperative.

In the shape of unitary enterprises only state and municipal enterprises can be created.

A unitary enterprise has a number of features:
· The owner of the property remains the founder, i.e. state;
· The property of a unitary enterprise is indivisible, i.e. under no circumstances can it be distributed among deposits, shares, shares, including among the employees of a unitary enterprise;
· The company is headed by a sole manager who is appointed by the owner of the property.

Unitary enterprises are divided into two categories: unitary enterprises based on the right of economic management; unitary enterprises based on the right of operational management.

The right of economic management is the right of an enterprise to own, use and dispose of the property of the owner within the limits established by law or other legal acts.

The right of operational management is the right of an enterprise to own, use and dispose of the owner's property assigned to it within the limits established by law, in accordance with the goals of its activities, the owner's tasks and the purpose of the property.

The right of economic management is broader than the right of operational management, that is, an enterprise operating on the basis of the right of economic management has greater independence in management.

Despite some restrictions on the disposal of property, a unitary enterprise has extensive rights in the field of production and economic activities.

Test control

1. The main disadvantage of small businesses :

renting out property;

At the time of registration, the main activity of the enterprise was the production of food products. Subsequently, trade and agricultural production were added. The enterprise belongs

to the food industry;

When classifying enterprises by size, they usually use?

the number of its personnel;

1. The main disadvantage of small businesses:

high production costs;

In case of failure in the activities of the enterprise, are liable with personal property?

complete comrades;

Large enterprises are usually set up in a uniform?

open joint stock company;

Is property not divided into shares (deposits)?

unitary enterprise;

Is the life of the enterprise limited?

it may be limited by the period specified in the charter of the enterprise;

The liquidation of the enterprise takes place

voluntarily or involuntarily, depending on the situation;

Company

must have a license for certain types of activities;

1. The chimney of a copper plant is an object belonging to the group:

structures;

Production inventory refers

to the passive part of fixed assets;

Residential buildings turn on

into the “dwelling” group (non-productive fixed assets);

Assessment of fixed assets at replacement cost is necessary because they

transfer their value to manufactured products;

The initial cost reflects

actual costs for the acquisition (creation) of fixed assets;

The calculation of the average annual cost is necessary because

the physical volume of fixed assets changes during the year;

Does the depreciation rate of fixed assets adequately reflect their physical condition?

no, this is an accounting figure;

Physical depreciation of fixed assets takes place

when exposed to aggressive environments;

Yes, as it leads to lower production costs;

Depreciation of fixed assets

the process of transferring the value of fixed assets to the product produced with their help;

The useful life is

the period of time, based on the duration of which, depreciation is calculated;

The depreciation rate is set depending on

useful life;

It is advisable to apply the linear depreciation method if

time, not obsolescence, is the main factor limiting service life;

Does not allow you to write off the entire cost without the remainder of the method

diminishing balance method;

Accelerated depreciation allows

maintain fixed assets at a high technical level;

High values ​​of the retirement and renewal rates indicate that

the enterprise is undergoing reconstruction;

The ratio of extensive use of fixed assets shows

the effectiveness of their use in time;

If the value of fixed assets used in production increases,

return on assets decreases;

Return on assets is measured

in rubles per ruble;

Can a literary work be included in intangible assets?

yes, the object refers to the results of intellectual activity;

Trademarks are included in

means of individualization;

The value of intangible assets for an enterprise lies in the fact that their use

increase the competitiveness of products;

Can intangible assets be valued at residual value?

yes, since their cost is transferred to the cost of the finished product for a long time;

In what case is the cost of an object of intangible assets not amortized?

if the useful life is not fixed

The current market value of the object of intangible assets is established

after revaluation;

Should the company reflect on the balance sheet the value of its own goodwill?

no, such a line appears in the balance sheet only when you buy another company;

Should goodwill be amortized?

yes, because the influence of the factors that make up business reputation weakens over time;

The structure of working capital is not included

means of labor with a service life of more than 12 months;

Finished products

is part of the circulation funds, refers to the standardized working capital;

Basic costs

costs associated with the technological process and costs associated with the maintenance and operation of tools;

Direct costs

costs associated with the production of only this type of product;

Gross profit is

the difference between the proceeds from the sale of products (works, services) and the cost of products (works, services);

Current assets include

cash balances;

Final test

1. Business partnership:

association of persons;

Working capital structure

the share of each element in their total cost;

Overheads

maintenance and management costs of the production process;

37. Indirect costs:

costs that, in the presence of several types of products, cannot be directly attributed to any of them;

Average variable costs

do not change with the growth of production volumes;

41. Profit characterizes:

the economic effect obtained as a result of the activities of the enterprise;

Economic profit is

the difference between revenue and internal and external costs;

Net profit is

profit of the enterprise after deduction of taxes;

The asset of the balance sheet reflects

fixed assets and intangible assets, inventories and costs, cash ...;

Can't be the main activity of a manufacturing enterprise?

renting out property;