- Division of property after divorce
- How long after a divorce can property be divided?
- Division of property after divorce: violation of the rights of spouses
- Limitation period for division of property after divorce in practice
- Skipping the statute of limitations when dividing property after divorce
- The procedure for dividing property after the divorce of spouses
- Voluntary procedure for division of property after divorce
- Division of marital property after divorce through court
- Statement of claim for division of property after divorce in court
- Filing a claim for division of property after divorce
- The procedure for filing a claim for division of property after divorce
- State customs when distributing property of spouses after divorce
- The amount of the state fee for a statement of claim for the division of property after a divorce
- Cost of claim and state duty for division of property after divorce
- Benefits for paying state duty when dividing property of spouses
- Payment of compensation for division of property during divorce through the court
- Who determines the price of a claim for division of property during a divorce?
- Division of marital property after divorce
Division of property after divorce
The Family Code of Ukraine (hereinafter referred to as the FC) provides for the possibility of dividing the common property of spouses after divorce on the initiative of any of them, as well as on the initiative of creditors, for the convenience of foreclosure on the share of one of the spouses allocated from the common property.
The division is carried out voluntarily (by agreement of the parties) or in court. The statute of limitations is 3 years from the moment the ex-husband learned of the violation of his property rights.
To apply to the court you will need:
- draw up a statement of claim;
- attach the necessary documents to it;
- pay the state fee.
How long after a divorce can property be divided?
It is established by law that disputes regarding the division of property between spouses after divorce have a statute of limitations and this period is 3 years (Ukrainian Insurance Code). This means that property claims of spouses against each other, as well as property claims of creditors, can be presented during the specified period.
In practice, the issue of application and calculation of the limitation period causes many difficulties. The dilemma lies in determining the moment from which the countdown should begin: from the moment of divorce or from the moment of restriction of the rights of one of the spouses to his part in the common common property. The Code does not contain such clarifications.
By the resolution of the Plenum of the Supreme Court of Ukraine, an attempt was made to clarify the solution to the problem. According to the document, the statute of limitations for the division of property of former spouses, which are common property, should be calculated from the moment when the person became aware or should have become aware of the violation of his rights, and not from the date of divorce.
Division of property after divorce: violation of the rights of spouses
According to the decision of the Supreme Court of Ukraine, it was established that if, after a divorce, former spouses continue to use property together, then the statute of limitations begins from the day when one of them commits an action that prevents the other spouses from exercising their rights in relation to common property (for example, alienation is made (sale or donation).
The following can be considered a violation of the right of former spouses to common property:
- alienation as a result of an agreement of common property owned by one of the former spouses;
- restriction or obstacle to access to common property;
- dispute over the procedure for using joint property;
- bearing the entire burden of maintaining the common property to those of the former spouses in whose possession they remained.
One way or another, the decision on whether there was a violation of the rights of one of the former spouses is made by the court, and therefore the decision largely depends on the internal conviction and opinion of a particular judge.
You should be aware of the existence of a special statute of limitations. Thus, in the case of purchasing housing during marriage under an investment agreement, the statute of limitations for the division of said property will be calculated from the moment of registration of ownership of the constructed housing, even if this registration is carried out after the divorce.
Limitation period for division of property after divorce in practice
In practice, the situation with calculating the limitation period in cases of division of property of former spouses after divorce is as follows. For example, the division of property of the spouses during a divorce was not carried out, and the apartment in which one of the spouses remained to live was in common ownership.
After a long time, the second spouse declares to the first of his intentions to use the common property, which is refused. This is a violation of the right to common property. And only from this moment can the law begin to calculate the statute of limitations for the division of property. During the time during which the common property was not used by the second spouse, it could be subjected to repeated alienation, both by the person in whose possession it was and by its subsequent acquirers. The problem arises: agreements on joint property, for example, for 10 or 20 years, must be declared invalid.
Skipping the statute of limitations when dividing property after divorce
For one reason or another, the statute of limitations for the division of common property may be missed by former spouses.
- The general rule states that missing the statute of limitations deprives a person of the opportunity to demand the renewal of his violated rights, in this case the right to demand the division of common property.
- However, in exceptional cases, if there are good reasons related to circumstances relating to the personality of the plaintiff (due to serious illness, illiteracy, helpless situation, etc.), the court has the right to restore within the limitation period (Civil Code of Ukraine – hereinafter CC ).
Only those reasons for missing the limitation period that occurred in the last months of the limitation period or were observed for at least 6 months during the expiration of the limitation period can be recognized as valid.
The decision on the importance of a particular reason, which may become the basis for reinstating the statute of limitations, is made by the court. There are no clear criteria in the legislation that would allow one or another reason to be classified as a respected cause.
The procedure for dividing property after the divorce of spouses
The Family Code provides for two possible options for the distribution of property for already divorced spouses.
- The first of them is a peaceful resolution of the issue through a voluntary agreement;
- The second option is the division of property by the court on the basis of a statement of claim by one of the spouses (applied if a peaceful settlement of the issue is impossible and if there are disputes over property).
Voluntary procedure for division of property after divorce
The voluntary procedure for dividing property involves the former spouses drawing up a voluntary agreement – an agreement that will clearly define what property goes to whom and in what amount (Family Code of Ukraine). Contrary to the general rules of equality of shares of spouses in common property determined by law, an agreement on voluntary division of property may not divide property between spouses in equal parts. The main thing is the voluntary consent of the former spouses to such a solution to the issue.
An agreement on the division of common property of former spouses is an official document, but it does not require notarization. The document can be notarized at the request of the parties.
Division of marital property after divorce through court
The issue of division of property between former spouses can also be resolved in court. This option is possible if there is a dispute between the parties (Family Code of Ukraine). The court determines which of the former spouses owns what specific property. Based on the general rule, the division of property occurs on the principle of determining equal shares, but the court may, at its discretion, deviate from this principle, taking into account the interests of the couple’s minor children or if the interests of one of the spouses deserve attention (Family Code of Ukraine).
Statement of claim for division of property after divorce in court
Spouses can defend their demands for restoration of the violated right to common property by going to court. This appeal is formalized through a statement of claim. The statement of claim must not only be legally competent, but also correctly executed. The requirements for drawing up a statement of claim are contained in the norms of the Civil Code of Ukraine (CC).
Filing a claim for division of property after divorce
The statement of claim is drawn up on an A4 sheet, usually in printed form. In the upper right corner of the letter, in the so-called “header,” it is indicated to whom (to which court) the application is addressed, followed by the personal (full name) and contact (address, telephone number) information of the plaintiff and defendant, and the price of the claim. After – in the center of the document – its name is indicated, namely “Statement of Claim for the Division of Property of Former Spouses.”
The text of the statement of claim must be logically correct, consistent and structured. The document contains:
- the plot of the issue (date of marriage, date of its dissolution, essence of the dispute);
- a description of the circumstances that prompted the plaintiff to go to court (with appropriate argumentation);
- the essence of the violation or threat of violation of the rights and legitimate interests of the plaintiff;
- the plaintiff’s request to resolve the issue of distribution, addressed to the court outlining his vision of the final result.
At the end of the application there must be the signature of the plaintiff and an indication of the date the application was drawn up. The statement of claim is accompanied by a package of documents confirming the presence and value of the spouses’ property, a document confirming payment of the state duty, copies of the statement according to the number of participants in the process and other documents.
The procedure for filing a claim for division of property after divorce
As a general rule, a statement of claim for division of property is filed with the court at the defendant’s place of residence. If real estate is subject to division, then you should go to the court at the location of the property.
The jurisdiction of a particular court is determined by the cost of the claim. When determining the price of the claim, you should focus on the value of the property at the time of filing the claim.
State customs when distributing property of spouses after divorce
The state fee for cases of division of property is the actual payment for consideration of the case by the court. The specified payment when filing a statement of claim is made by the plaintiff. Further, the amount of the state duty can be recovered from the defendant if the court makes a decision in favor of the plaintiff (Civil Code). If the plaintiff’s claims are satisfied by the defendant even before the trial of the case, then the state duty paid by the plaintiff by that time is not refunded.
Failure to pay the state fee is grounds for the court’s refusal to accept the claim for consideration. In such cases, the application is returned to the plaintiff to eliminate the deficiency (Civil Procedure Code of Ukraine).
The amount of the state fee for a statement of claim for the division of property after a divorce
The amount of the state fee when filing a claim for division of property depends on several factors:
- claim prices;
- court to which the application was filed.
The state duty is calculated at a fixed rate +% of the amount exceeding the base one (Family Code of Ukraine).
As for calculating the amount of state duty depending on the court hearing the claim, then:
- the general rules provided for by law apply to the calculation of the state duty for a claim filed in connection with a dispute that has not previously been considered by the court;
- if the court has previously recognized the plaintiff’s right to a share in the common property, the amount of the state duty will be greater.
Cost of claim and state duty for division of property after divorce
If during the consideration of the case the plaintiff reduces the price of the claim, the state duty is transferred, and the money overpaid by the plaintiff is returned. If the price increases, the plaintiff will need to pay the shortfall.
Benefits for paying state duty when dividing property of spouses
Due to the difficult financial situation of the plaintiff, the court, upon his application, may provide the opportunity to defer, installment or reduce the amount of the state duty.
The Tax Code of Ukraine provides a list of categories of citizens exempt from paying state duty in any case. These include disabled people of groups I and II, combat participants and veterans.
Payment of compensation for division of property during divorce through the court
If one of the spouses is transferred by a court decision to property, the value of which significantly exceeds the share of the other spouses in the common property, therefore monetary or other compensation for his share in the said property may be awarded.
The basis for assigning compensation is the identification of the desire of the other spouses to receive compensation for part of the funds transferred into possession of the second half of the property.
Compensation can be made:
- in monetary terms (% of the value of the transferred property);
- in another form, for example, for the provision of various types of services, payment of bills, transfer of ownership of other property, etc.
Things acquired during marriage to meet the needs of minor children are transferred to the spouse with whom the children’s place of residence is determined. In this case, compensation is not provided to the other man. The same applies to deposits made in the name of minor children.
Who determines the price of a claim for division of property during a divorce?
The price of the claim is determined by the plaintiff and is indicated in the statement of claim. It is a reflection of the total value of all common property subject to distribution at the time of going to court. If the defendant agrees with the value of the common property indicated in the claim, the court, when making a final decision on division, is based on the specified value. If the parties do not have unanimity on the value of the property, such value must be confirmed by any available legal means, including providing the court with documents confirming the value of a particular item (checks, invoices, etc.) and conducting a merchandising examination.
The absence of documents in the case confirming the value of the property subject to division may become grounds for appealing the final decision in the case.
Division of marital property after divorce
The division of marital property after divorce can occur on the basis of a voluntary agreement between the former spouses or on the basis of a court decision. The main provisions of the judicial procedure for the division of property between former spouses are:
- The limitation period for cases of division of property of former spouses is 3 years and begins to be calculated from the moment when one of the spouses became aware or should have become aware of a violation of his rights to common property, regardless of what period of time has passed since the divorce.
- To go to court for a decision on the distribution of property of a spouse whose rights have been violated, she must draw up and submit an appropriate statement of claim.
- For filing a statement of claim, the plaintiff is charged a state fee, the amount of which depends on the price of the claim and the court where the case will be heard.
- If, by a court decision, property is transferred to one of the spouses, the value of which significantly exceeds his share, the second spouse has the right to monetary or other compensation for his part.