Division of an apartment during a divorce

Division of an apartment during a divorce

When spouses get divorced, the housing issue comes to the forefront for each of them, because after the divorce they will need to live somewhere, and it is desirable that such a place of residence is not common. At the same time, dividing residential real estate between the divorcing parties is extremely difficult, since it is almost impossible to achieve harmony between the interests of each of them.

Peaceful division of an apartment during a divorce

This method of solving the problem of dividing jointly acquired property is ideal, because in this case the spouses, without “airing dirty linen in public,” can reach mutually beneficial agreements and divorce peacefully, without scandals and court proceedings with the calling of witnesses, hiring lawyers, and conducting appraisal examinations.

Informal agreement on the division of an apartment upon divorce

Divorcing spouses may informally (i.e. without any documented confirmation) agree on how the division will be carried out. However, such agreements will only mean something when certain actions are taken on their basis (for example, an apartment will be exchanged for two separate apartments or the property will be sold and the proceeds will be divided between the parties).

Legal agreement on the division of an apartment during a divorce

Formal agreements mean much more. They can be referred to if one of the parties suddenly decides to change its mind about how the building should be divided. For example, the parties may enter into a property division agreement.

Particles in housing when dividing an apartment during a divorce

Peacefully, the parties can agree on determining the shares in the right of ownership of residential real estate, since such parts are usually not determined for divorce, and the spouses own the house on equal rights. In this case, the redemption of a part of one party by the other party is allowed.

When concluding an agreement on determining the shares, spouses may not comply with the rules of equality of shares. In some cases, shares can be determined long before the divorce – in a marriage contract or at the request of creditors.

Agreement on the division of an apartment upon divorce

The agreement between the parties can be drawn up in simple written form, but any lawyer will tell you that it is best to have it certified by a notary. This agreement must be drawn up in three copies: for each of the spouses and for the state body that, if necessary, will register the rights to the residential premises.

The transaction may take into account each party’s share in the right of ownership of the apartment. A separate agreement on housing may be concluded, or agreements concerning everything that was acquired jointly may be reflected in a single document. Despite all the obvious advantages of such a method of settling relations, in our country the opportunity to conclude an agreement on the division of real estate is rarely used.

Division of an apartment (real estate) through the court during a divorce

If the termination of family relations and the resolution of contentious issues is possible only with the help of external intervention, then it is impossible to avoid going to court. You should contact a judge if there are no disputes about children, and the price of the claim for the division of real estate does not exceed. In all other cases, divorce proceedings are possible only in a district court.

A state fee is charged for filing a claim with the court (depending on the value of the property being divided).

The judge, having considered the case, may determine the spouses’ shares in the right to real estate or award it to one party, obliging it, in turn, to pay compensation to the other party. In this case, the other party must be provided with housing and agree to receive compensation.

Division of an apartment acquired before marriage during a divorce

The apartment that was acquired by the spouse before marriage is not subject to distribution in the event of divorce. It is recognized as the personal property of the relevant party to the dispute.

However, the other party, through its efforts or investments, can make the value of such an apartment increase (for example, make good repairs), which can become grounds for the court to recognize it as the common property of the spouses with subsequent division into equal shares. If this issue is resolved by the parties themselves by reaching an agreement, then the division can be carried out in any proportions.

Division of a privatized apartment upon divorce

A privatized apartment is not divided between spouses in the event of a divorce, unless the legal property regime was changed during the marriage. Free privatization is recognized as a gratuitous agreement, upon conclusion of which the apartment becomes the personal property of either spouse.

Each spouse receives the right of ownership of the apartment exactly that share which is established by the privatization agreement and the issued certificate of title.

Division of a non-privatized apartment during divorce of spouses

In case of divorce, it is not possible to divide municipal non-privatized housing. The right to use such an apartment is provided for by the social rental agreement. Such residential premises do not belong to the persons living in them, but are municipal property.

How to divide an apartment during a divorce?

If the apartment was purchased with a mortgage loan, then certain complications may arise during division. Given the legal situation in our country, division of an apartment is possible only with the simultaneous division of joint obligations under the loan agreement, since otherwise it contradicts the requirements of the Civil Code of Ukraine and the provisions of the Family Code of Ukraine, and also entails a violation of the rights of the creditor (bank).

In such a case, one of the spouses, within the framework of the division procedure, has the right to claim the entire apartment, with the termination of the rights of the second spouse to it and with the assignment to the spouse to whom the entire apartment is awarded of the obligations relating to the fulfillment of the terms of the loan agreement, with the simultaneous payment of monetary compensation to the other member of the spouses.