How to avoid splitting the collection in a divorce
ARTinvestment.RU   13 июля 2008

The law obliges the share jointly acquired the collection of objects that one spouse acquired during the marriage, even if his second half condemned hobbies, and even prevented the collector. What to do in this difficult situation?

Collectors, do not deceive ourselves! A marriage contract does not guarantee that the section will be carried out in accordance with its provisions. This is all just in the series - on the practice courts are divided differently. If the marriage contract, which regulates how much of the joint property (in particular, the collection) to whom a spouse must move away, no, it is under the provisions established by the legislator in the Family and Civil Codes.

The principles of family law is simple: the wife in marriage are equal and, hence, are equal and their share of jointly owned ¹ . Formally, the total assets shall be divided, regardless of income level of each spouse and of the contribution that the wife brings to the family budget. Similarly, the law obliges to share jointly acquired the collection of objects that one spouse acquired during the marriage, even if his second half condemned hobbies, and even prevented the collector.

In the section of property is meaningless to prove the court that your spouse (husband) has no relation to the collection and is not entitled to claim their share. Such arguments do not take the court. Will share. But you can try to prove that the collection is unique and it is unacceptable to break up, and to ensure that collection (collection) remains at your disposal. Legal mechanisms for this exist.

First, one should bear in mind that the allocation of the share due to each spouse in the section of the joint property shall be in an ideal or in kind. In the first case, a husband, who remains the property will pay the other side of monetary compensation. In the second - each spouse receives one or another thing. But first, be determined by the composition of the division of property, the share of each party's right of ownership to it, and once for each spouse establishes certain property in accordance with the size of its share.

Second, the court should provide evidence that it is you have a substantial interest in that collection, the entire assembly came to your property that you are a collector, what is your diligence meeting regularly updated and maintained etc.

In the third, if your spouse needs to petition not only to divide the collection, but also to share in kind, asking the court to refuse to meet this requirement. Court may grant such a request, if you are able to prove that the allocation is not possible without disproportionate damage to property in common ownership.

Under such damage supreme courts realize the impossibility of use of the property on purpose, a significant deterioration of technical state of a decline in physical or artistic value (eg, collections of paintings, coins, libraries), inconvenience in use. If the second half would be to insist on the allocation of its share in kind, the court should provide evidence that you'll be able to justify one's case. For example, this may be evidence, the conclusion and the testimony of experts, appraisers and other acts

If the court agrees with your argument that the collection, assembly can not be divided, and the decision recognizes that it is you have a substantial interest in that collection came into your property, the second spouse will be appointed as appropriate monetary compensation . Then a happy collector waits a few unpleasant surprises.

First: the size of the compensation the court may determine on the basis of the total cost of the entire collection, rather than from the total cost of individual items.

Second: only after receipt of the compensation your spouse (husband) will lose their right to share in the common property.

Third: the high cost of entire collections or individual items. In the division of property and, respectively, in designating the second wife of compensation the court may not take into account the amount that you once paid for any of your meetings, but on the basis of market value of the collection at the time of the decision.

It happens that the proportion of spouse (wife), who claims to be his (and even others') part of the collection, not significant. For example, the bulk of the collection you have compiled before marriage, received through inheritance, as a gift. At the property regime of joint ownership does not extend, therefore, divorce is not subject to division. If during the marriage on the earnings of spouses collection has been supplemented, with new items, the section shall be only those subjects. In such a situation, the owner of the main part of the collection, is interested in preserving the integrity of the assembly, must provide the court evidence that the proportion of the second spouse in this property is insignificant, that the spouse does not have a substantial interest in the use of common property. In this case, the court likely will decide in your favor, and the second party receives compensation, which will be determined based on the value of the acquired during the marriage of. However, in this case becomes the unenviable fate of those judges who do not have to prove that the collection or individual items were acquired by them before marriage, received through inheritance, donation, if these allegations are not substantiated by documentary. Of course, in this case, you can make a request to call witnesses who will give the court the necessary evidence. But the other side may also invite persons who will testify to the contrary.

Elena Pokidova, Attorney

¹ It is property acquired by spouses during marriage as through their individual income on t-employment, entrepreneurship and intellectual property, pensions, allowances, etc., as well as from general revenue. For example, if the property purchased with funds received by the spouse before marriage or from the sale of property acquired before marriage or received as a gift, by inheritance, this property is not jointly acquired and the regime of joint ownership does not apply. Return