Evaluation of property of spouses during division

Evaluation of property of spouses during division

In some cases, when dividing jointly acquired property, it may be necessary to conduct its assessment, although the norms of the Family Code of Ukraine (Family Code of Ukraine) do not directly provide for this. The procedure for conducting property assessment is regulated in detail by the Law of Ukraine of October 2008 “On appraisal activities in Ukraine”. At the same time, its implementation is possible in relation to any property, except that which is directly named in the law, and the corresponding report has evidentiary value. Let’s try to understand this issue in more detail.

Is an assessment necessary when dividing the property of spouses?

The dissolution of marriage implies the disintegration of not only the family, but also the termination of the spouses’ property rights in relation to each other. The divorce process often ends with the division of jointly acquired property.

The procedure for conducting the procedure is regulated, in addition to the norms of family legislation of Ukraine (Family Code of Ukraine), by the Civil Code of Ukraine (CC of Ukraine), the Civil Procedure Code of Ukraine (Civil Procedure Code of Ukraine) – in terms of applying the requirements for litigation to these disputes.

It would seem that with such legislative regulation of the division of property no additional questions should arise. However, this is not entirely true, since such a statement of claim contains property-related requirements. Thus, when drawing it up, it is necessary to indicate not only the price of the claim, but also to submit its detailed calculation to the court. This follows from the Civil Procedure Code of Ukraine. This is where a certain difficulty arises for the interested party.

In turn, determining the value of the disputed property is necessary in two cases:

• the establishment of the amount is subject to payment of a state fee;
• for an objective and fair trial, and accordingly the division of property between former spouses, or in case of discrepancy between their shares – establishment of the amount of compensation.

Therefore, divorcing spouses must be aware of these circumstances when applying to a judicial body for the forced division of jointly acquired property.

What property is subject to assessment when dividing the common property of spouses?

According to the Law of Ukraine “On appraisal activities in Ukraine”, property that will be divided during divorce is subject to mandatory appraisal. In this case, the objects of appraisal may be, according to the Law, individual material objects, their totality, ownership rights, etc.

Family law defines this range of things in more detail. Thus, the Family Code of Ukraine establishes what property may be subject to division upon divorce. As a rule, this is any jointly acquired property from the moment of marriage registration (movable and immovable property, money, deposits, etc.). It is this that may be subject to assessment, with the following exceptions:

• received during the marriage by one of the spouses by way of inheritance or gift (i.e., for all free transactions);
• things for individual use;
• exclusive right to the result of intellectual activity;
• property that, although acquired during the marriage, the spouses did not actually have family relations (by court decision).

Who and how evaluates the property of spouses during division?

In order to answer the question of who and when should be contacted for an assessment of property subject to distribution between spouses, it is necessary to mention the above-mentioned Civil Procedure Code of Ukraine. In particular, we are interested in movable and immovable property, since the requirements for the distribution of funds do not cause difficulties and do not require additional assessment.

Therefore, in claims for the recovery of property, the price is determined based on the value of the property. In claims for the right of ownership of real estate, the law provides for its determination based on several options:

• market value;
• inventory value;
• in the absence of the latter – the value of the object under the insurance contract.

It is important to note that the price of the claim is indicated directly by the applicant. The court will accept it in any case, only if it clearly does not correspond to the actual value of the property, the court will independently determine the price.

Law on the valuation of property of spouses during division

Thus, based on the stated norms of the current legislation of Ukraine, the value of property can be determined by the following persons (bodies):

• directly by the plaintiff;
• professional appraiser;
• BTI;
• cadastral service (for land plots).

Example

When the Sergeevs divorced, they had common property (a 1-room apartment, a plot of land, and a summer cottage). Sergeeva filed a claim for division of property in equal shares, having independently estimated her share at UAH 500,000. Sergeev did not agree with this and contacted an appraiser, who gave him a report stating that the market value of the apartment was UAH 600,000, the plot of land was UAH 10,000, and the summer cottage was UAH 150,000. Thus, the share of each spouse in the common property was UAH 380,000.

Expertise in assessing the property of spouses during separation, divorce

Thus, the same property may have different values, which in turn has a significant impact on the amount of the state duty.

The procedure for conducting an assessment by the plaintiff or issuing relevant documentation for real estate objects by the BTI or the cadastral chamber does not cause much difficulty. Here, the plaintiff independently “by eye” determines the value of the property that, as he believes, needs to be divided or sends requests to the above-mentioned bodies to obtain the necessary certificates.

The procedure for conducting an assessment by a specialized body is interesting. As was said earlier, it is regulated by the Law of Ukraine.

The property is assessed at the request of the parties (both or one of them) when a dispute arises about its value. This means that if the plaintiff has indicated his or her property value in the claim and the defendant has agreed with him or her, then it is not necessary to resort to the help of an appraiser.

The requirements for persons entitled to carry out appraisal activities are established by the Law. There is no point in dwelling on this, since the appraisal procedure itself deserves more attention.

In accordance with the Law, the basis for its implementation is a contract. Therefore, the first step in applying for an appraisal of property subject to distribution is its registration. Another basis for its implementation may be a court ruling (a case directly specified in the Civil Procedure Code of Ukraine on the discrepancy between the declared price of the claim and the actual value of the property).

Report on the valuation of the property of spouses during division

To draw up the above-mentioned agreement, the applicant must provide the appraiser with documentation on the objects of appraisal. Following the provision of the specified services, in accordance with the Law, the appraiser issues a report to the applicant, which must meet the established requirements:

• Written form on paper (usually).
• No ambiguous interpretations or misleading phrases.
• Availability of goals, objectives, information about the object of assessment, standards used.
• Date of preparation and serial number of the report.
• Basis for the assessment.
• Information about the appraiser.
• Sequence of determining the value of the object.
• List of attached documents.

According to the Law, such a document has reliable and evidentiary value. However, this is not an obstacle. It should also be noted here that the appraiser’s services are subject to remuneration, the amount of which depends on the volume of work performed, that is, on the number of objects being assessed.

Evaluation of the value of housing during the division of property between spouses

The procedure for assessing property to be distributed between spouses is described in sufficient detail in the current legislation of Ukraine. However, it does not clearly reflect what documents must be submitted to the appraiser so that this procedure is carried out most quickly and efficiently. The list of such documents directly depends on the object that needs to be assessed.

Since in most cases real estate, in particular residential premises, is subject to division in divorce proceedings, we will dwell in more detail on the documents required to conduct an assessment of these objects. First of all, this includes the following documentation:

1. Title documents for residential premises – certificate of state registration of ownership, as well as those on the basis of which it was carried out (purchase and sale agreement, gift, mina, annuity, certificate of inheritance).
2. Identity document of the customer of the assessment (passport).
3. Technical documentation (technical and cadastral passport, surface plan and explication in it, issued by the BTI).
4. Description of existing encumbrances.

If we are not talking about an apartment, but a house located on a plot of land that is also owned by the spouses, then a certificate of ownership and a cadastral passport for this plot may also be required.

Car valuation during division of marital property

Along with real estate, married couples own one or more vehicles as part of their jointly acquired property. During divorce proceedings, vehicles are also often subject to division.

The procedure for conducting the assessment in this case is carried out in the general order discussed earlier, but the list of documents has some differences:

• Here it is also necessary to present a document certifying the identity of the customer;
• vehicle passport;
• vehicle registration certificate.

Answers from a lawyer about the assessment of the property of spouses during division

Valuation of property of spouses during divorce

In conclusion of the issue under consideration regarding the need to conduct an assessment of property subject to distribution in connection with the dissolution of marriage, I would like to once again draw attention to the following points:

1. An assessment by a specialized body is not required in cases where there is no dispute about the value of the property being divided.
2. The law provides for types of property that will never be subject to division and, as a consequence, assessment.
3. Assessment activities are strictly regulated by the current legislation of Ukraine.