Division of marital property

Division of marital property

Any of the spouses may demand the division of common property acquired during marriage, the list of which is fixed by law. According to the norms of the Family Code of Ukraine, property acquired during marriage also includes the spouses’ wages, pension, benefits, sums of money that do not have a designated purpose (bonuses, financial assistance, etc.). The right to common property belongs to the spouses in equal shares, despite the fact that one of them, for good reason, during the marriage may not have had income (cared for children, ran a household, etc.).

If a marriage contract has been concluded, the common property regime established by law (Family Code of Ukraine) changes. Things are divided according to the conditions provided for in it.

To determine objects of property and further free disposal of them without the consent of the second spouse (sell, donate, exchange, etc.), the Parties can voluntarily enter into an agreement on the division of property. If one of the spouses does not agree or avoids concluding a transaction, then the second has the right to file a claim in court. Also, the division of property acquired during marriage is carried out if a creditor submits an application for the division of the common property of the spouses in order to foreclose on the share of one of them.

Agreement on the division of property of spouses in marriage

The Family Code of Ukraine provides for the right of spouses to enter into an agreement on the division of property, but the legislator does not indicate the mandatory form of the document, therefore, the agreement is drawn up in writing in accordance with the norms of the Civil Code of Ukraine. Regarding the notarization of a document, only its recommendation is presented in the Investigative Committee of Ukraine, that is, this is not a mandatory procedure.

Contents of the agreement on the division of property of spouses in marriage

The agreement specifies:

  • a list of common property of spouses subject to division;
  • particle size;
  • the procedure for determining the value of property during distribution;
  • procedure for transfer of property;
  • rights and interests of minor children;
  • other conditions.

The parties have the right to enter into an agreement regarding the entire property or a certain part of it. It is possible to draw up a separate agreement for each object of common property. Concluding an agreement between spouses is necessary to avoid controversial situations regarding their common property (the wife gave an old computer chair to a neighbor, but the man was against it).

In an agreement on the division of property, it is better to provide for a condition on the procedure for distributing the common debts of the spouses, indicating the specific amounts of the debt. If such a section is missing in the document, then the spouses are jointly and severally liable to the creditor.

The main thing is not to confuse the agreement and the marriage contract – these are two completely different documents that have significant differences: in the moment of conclusion and entry into force, as well as in notarization and distribution of property.

Distribution of marital property during marriage

Example

Spouses Oksana and Vladimir Kuzmenko entered into an agreement on the division of property, which stated that the collection of paintings by K. Monet belongs in full to Oksana. After the divorce, Vladimir considered that since the marriage was dissolved, the agreement concluded with his ex-wife automatically became invalid, and he took out the collection of paintings. Oksana went to court demanding that her ex-husband return the paintings, attaching to the statement of claim a copy of the agreement concluded with Vladimir.

The court made a decision in which it ordered Vladimir Kuzmenko to return the paintings to Oksana, because the termination of a marriage is not a reason for the automatic annulment of the property division agreement. The distribution must be made in the same form as the agreement itself, i.e. if the latter was concluded in simple written form and at the same time certified by a notary, then the termination condition must also be drawn up in writing and certified by a notary.

Claim for division of marital property

If a married couple was unable to resolve the issue of division of property peacefully, then one of the spouses has the right to file a claim in court. The claim is filed at the location of the man and must meet the requirements of the Code of Civil Procedure of Ukraine:

  1. On the right side of the sheet the name of the court, full name and place of residence of the plaintiff (filer) and defendant (who is being filed) are indicated; if a representative acts on behalf of the plaintiff, then his full name and place of residence are indicated.
  2. The text should indicate: a list of jointly acquired property to be distributed, with an exact indication of the names of items and signs identifying them, the cost of things, particle size, objects to be transferred to the plaintiff with a description of the reason (for example, a fur coat, only the plaintiff wears it, no one else will not be able to wear it, because it is female and small in size), the presence of minor children, because things purchased for their personal use are not subject to division (clothes, skates, toys, art kits, etc.), the same applies to deposits, opened in the name of a common child.
  3. A clear statement of the plaintiff’s demands and copies of the attached documents. The main thing is to attach a receipt for payment of the state fee. Without it, the court may not accept documents. But it should be remembered that the amount of the fee directly depends on the size of the claim.

To determine the estimated value of real estate or other valuables, it is advisable to involve an appraiser; if this is not possible, we recommend indicating the market value of the property.

Documents for the division of property of spouses in marriage

During the division of spouses’ property, the package of documents submitted to the court can be divided into two parts: main and special. The first part is always presented, no matter what property is in dispute. The second part is related to the property that is the subject of the dispute.

Main part documents:

  • statement of claim for the defendant;
  • a copy of the plaintiff’s identity document;
  • a copy of the marriage certificate;
  • a copy of the children’s birth certificates;
  • a list of property with a determination of the value of each individual item;
  • receipt of payment of the state fee for going to court (payment is made by the plaintiff).

Documents of a special part collected in relation to each specific object that is the subject of a dispute. However, the legislation does not provide for a specific list of securities. Therefore, the judge has the right to require additional documents from the parties. Basically, the following are provided to the court: documents confirming ownership (certificate of ownership, purchase and sale agreement, etc.), payment (checks, receipts, bank statements), documents confirming the value of the property (appraiser’s conclusion).

Division of property of spouses in a civil marriage

A civil marriage should be understood as actually a marital relationship aimed at creating and maintaining a common life, giving birth to children, but not officially registered with the registry office. No authorities consider such relationships as legal marriage.

Due to the large number of such unions in our country, the legislator established that the division of property is subject to civil law, not family law. And the circumstances are regulated by the Civil Code of Ukraine.

The division of property in a civil marriage is carried out in two ways:

  • agreement of the parties;
  • judicial procedure.

To divide property, it is necessary to prove not only the fact of cohabitation of the owners, but also to provide documentary evidence confirming the acquisition of the item and the care and maintenance of it.

Please note that particles from property in a civil marriage are allocated not in equal proportions, but in accordance with the amount of funds contributed, which must also have documentary evidence (Civil Code of Ukraine). If the owners do not agree, the court reserves the right to offer one of the cohabitants to buy out the share from the second owner. Otherwise, the particle is released in its natural form.

The property of an unmarried couple is considered separate property. Therefore, an apartment, dacha or car registered in the name of one of the spouses during an unofficial marriage is considered only his property. Everything is much more complicated with property that does not require registration (household appliances, furniture, jewelry, etc.), because it is almost impossible to prove who invested how much money in the purchase.

Division of a private home in marriage

To preserve finances and save the family budget when dividing a private house, we advise you to enter into an agreement, because if the issue is resolved in court, you will have to pay a significant state fee.

If for some reason the division of the house is impossible (for example, there is only one small room in the house), but one of the spouses agrees to give up the property in favor of the other, then he is awarded compensation. If the house is permanently residential, then you should pay attention to the residence of minor children in it. The judge has the right to allocate the necessary area from the territory of a private house, which is not subject to division, for children to live in.

When making a decision on the division of property, the judge does not take into account which of the spouses the house is registered to; he divides the property, guided by the principle of fairness. Difficulties arise when distributing an unfinished or unregistered house, but there are two ways to solve this issue:

  • allocation of funds contributed to the construction of the house of one of the spouses;
  • in court, demand registration of an unfinished building object, and then carry out division from the issued documents.

It should be remembered that a house is considered acquired during marriage if the registration of ownership of it was carried out after the conclusion of the marriage union, even if the purchase and sale agreement was signed before the wedding. If the house was purchased with a mortgage, then the burden is distributed in proportion to the size of the share in the house.

Division of a defective car purchased on credit

When dividing a car between husband and wife, the main problem is that it is an indivisible item. Therefore, if the spouses go to court to divide the vehicle, the judge determines which party needs the car more, who used it more often, thus determining the owner (the husband does not have a driver’s license, and the wife regularly takes the children to school, to sports clubs, goes for groceries). The husband is awarded compensation in the amount of a share expressed in monetary terms. The amount required to be paid is determined based on the conclusion of the assessment bureau.

A vehicle is subject to distribution if it was purchased during the marriage using joint funds of the spouses. In this case, the court will not take into account who the car is registered to.

Along with the rights, the owner of the car receives the obligation to pay the loan and annual insurance premiums for it, so the spouses need to notify the bank by contacting them, providing a signed copy of the transaction or a copy of the court decision.

Division of common property of spouses in marriage

We recommend that spouses divide joint property peacefully by concluding an agreement that can be changed or terminated by mutual decision at any time. It is worth going to court only as a last resort, because in addition to wasted nerves, you will also have to incur considerable financial costs in the form of paying for an appraisal examination, paying a significant state fee for filing a statement of claim and, if necessary, remuneration for the services of a lawyer.

Like this post? Please share to your friends:
Family lawyer
Leave a Reply

;-) :| :x :twisted: :smile: :shock: :sad: :roll: :razz: :oops: :o :mrgreen: :lol: :idea: :grin: :evil: :cry: :cool: :arrow: :???: :?: :!: