Expertise in the division of property

Expertise in the division of property

The examination is carried out due to the need to determine the exact price, quality, possibility of dividing the property, determining the actual shares, etc. All this is necessary only in order to competently and correctly divide the property in accordance with the law.

• Basically, questions related to determining shares in property arise in relation to housing.
• Questions about cost arise in relation to household appliances, as well as a car.

A special examination is carried out precisely to determine the shares or value of the property. This is especially important, given that since the division of such property occurs precisely in court, the parties cannot agree on the corresponding division independently. In this case, the examination acts as an objective and independent method of dividing property.

Why is an expert assessment needed when dividing property?

The process of termination of marriage usually includes the division of jointly acquired property of the spouses (i.e. the property, according to the Family Code, which was acquired jointly during the marriage). It should be noted right away that this category does not include the property that belongs to each of the spouses (Family Code). Joint property, as a general rule (if a marriage contract was not drawn up in accordance with the chapter of the Family Code), is divided equally between the spouses. This rule is established by the Family Code.

There are several ways to divide the property of spouses:

• by drawing up a marriage contract before or after the marriage is registered (chapter of the Family Code);
• conclude an agreement (which must be notarized) on the division of such property (Family Code);
• conduct the division of property in court (Family Code).

The last of the listed methods is used in the event of a dispute between divorcees, as well as when it is necessary to determine shares in common property.

Expertise in assessing the value of property during division through the court

If it is impossible to independently agree on the division of property, the spouses go to court. In order to correctly divide the property, the court must have objective information about it, and in particular about the cost, the possibilities of division in kind, etc. To do this, the court must appoint an appropriate examination, in accordance with the Civil Procedure Code (hereinafter CPC).

A ruling is issued on this, which, in addition to information about the expert institution (or a specific expert), includes a list of questions that the expert must answer (in writing). This rule is reflected in the Civil Procedure Code.

Of course, first of all, we are talking about the division of housing (a house or apartment). In general, this is a fairly complex process, so experts are asked questions related to the division of such housing in kind, the determination of specific shares, and so on. It is extremely difficult to find out this on your own, without an expert assessment, so the court, when making a decision on a case of division of property, resorts to such evidence as an expert opinion (Civil Procedure Code of Ukraine). It is this that the court will be guided by when deciding on the division.

Law on expertise in the division of property of spouses

In addition, difficulties often arise with the division of other property (for example, household appliances, which also have a high price). To determine the cost of the equipment, its suitability for use, and so on, they again resort to expert opinion.

Another case of using an independent examination in cases of division of property is the case of division of a car. It may happen that all the documentation for the car may be in the possession of one man (who owned the car during the marriage), so conducting a regular assessment may be impossible. However, such difficulties do not arise in the case of a forensic examination, since the law establishes a clear procedure for its implementation (Civil Procedure Code of Ukraine).

Thus, an examination is necessary first of all for the correct decision on the division of property. The court cannot independently decide how exactly to divide such property, since it does not have the necessary information about it. In order to obtain it, it is necessary to conduct an independent examination, on the basis of which the court can already decide what property and in what shares will go to each of the divorcing spouses.

Who and how conducts an examination when dividing the property of spouses?

In accordance with the Civil Procedure Code, the court appoints an examination and issues a corresponding ruling (Civil Procedure Code of Ukraine), which specifies a specific expert institution or a specific expert. In addition, it includes a range of questions that the expert must answer in his conclusion after the examination has been conducted.

According to the Law of Ukraine “On state forensic activity in Ukraine” (hereinafter), state expert institutions to which courts apply for examination are specialized institutions of federal executive bodies (including subjects of Ukraine), created to organize and conduct relevant examinations.

The procedure for conducting an examination during the division of property of spouses

The procedure for conducting such an examination is regulated by the above-mentioned law, as well as the Civil Procedure Code.

1. In general, the examination is carried out by reviewing the documentation related to the object of the study.
2. In addition, the necessary inspection of the property subject to division is carried out.
3. Based on these actions, the expert forms his opinion and answers the questions put to him.

It should be noted that if one of the parties does not provide the expert with the necessary documents (or access to property), the court has the right to recognize the fact for which the examination was appointed as established or declared. This provision is established by the Code of Civil Procedure.

In addition to state expert institutions, there are also private ones that also conduct such examinations. In a pre-trial procedure, you can also contact such organizations (if, for example, spouses want to enter into an agreement on the division of property, but they do not know the real value of such property).

Thus, the law defines organizations that carry out expert activities. A specific institution or expert is appointed by the court itself in its ruling. In addition, the procedure for conducting an examination is established by the above-mentioned laws and consists of checking documents, as well as a direct inspection of the object of such an examination.

Construction and technical expertise in the division of property

Construction and technical expertise is a type of forensic expertise that is used in the case of dividing housing (houses, apartments). During such expertise, housing objects and territories functionally related to them are examined.

The above-mentioned expertise is carried out in the following cases:

• division of a house (including a land plot), as well as determining the procedure for using a residential building and a land plot;
• determining the compliance of an apartment with regulatory documents for several families to live in it;
• determining the quality of repairs or construction, as well as the technical condition of the housing.

This is far from the entire list of cases in which such an examination is carried out. However, in addition to this, it is important to understand what questions the court may pose to the expert in its ruling. And so, in this case, the expert may be asked the following questions:

• What is the total area and cost of the property? What is the cost of one square meter of such housing?
• Is it possible to technically divide the property in accordance with the shares of the spouses? If such a division is not possible, then why?
• Is it possible to allocate an isolated room in the apartment?
• What work on the re-equipment of the property will have to be done during the division?
• What material costs will have to be made in connection with this?
• What is the procedure for using the land plot in accordance with the shares of the spouses?
• What is the actual area of ​​the land plot?

The court sets approximately such questions in its ruling. The expert will have to answer them in the conclusion, which is drawn up in writing and sent to the court. Having determined the value of such property or the possibility of dividing it, the court makes a decision on a specific case.

Thus, construction and technical expertise is one of the mandatory processes when dividing a residential building or apartment. It is impossible to make such a division without clarifying the necessary questions with experts.

Commodity examination during property division

Commodity examination is a type of forensic examination, within the framework of which various industrial and other goods (property) are examined in order to assess their quality, cost, and compliance with standards. For the purpose of dividing property, the quality and cost of such property are mainly determined.

In the process of conducting such an examination, the following is determined:

1. change in the quality of property (defects, marriage, etc.);
2. the value of such property taking into account damage or wear;
3. determination of the classification of such property.

Judicial practice of conducting an examination during the division of property

Example

Fedorov applied to the court with a request to divide the jointly acquired property during his marriage to Yemelyanova. The jointly acquired property turned out to be several household appliances. The parties could not independently determine the value of such property, so the court decided to appoint a commodity expert examination. The court asked the expert about the value of each item of the former spouses’ joint property.

After such an examination and sending a response, the court was able to divide the household appliances equally between the spouses, assigning a small monetary compensation to Fedorov from Yemelyanova, since the value of all the items transferred to her slightly exceeded the value of the items received by the plaintiff. Thus, the court divided the property, resorting to the help of an expert.

Vehicle examination during property division during divorce

A special examination is the examination of a car. The difficulty in this case is that the car may be in the possession of one party to the divorce process (for example, the man, since during the marriage, only he used the car). In such a case, it will be extremely difficult to contact an independent appraiser and assess the value of the property in court (and, for example, draw up an agreement on the division of property). Then it will be much more effective to use a forensic examination.

When conducting such an examination:

1. The documentation (technical) is examined, a direct inspection of the car is carried out for damage, malfunction, etc. It is also worth noting that the expert takes into account the year of manufacture and mileage of such a car.
2. In addition, market prices for similar cars in a specific subject of Ukraine are compared.
3. As a result, after taking into account all factors, the price of the car is calculated, and the court is sent a corresponding answer to the questions posed to the expert.

The main obstacle to such an examination may be the ownership of the vehicle by one party, who may not wish to share such property.

In general, the process of examining a car is no different from examining any other property. The only specificity is directly in the object of such examination.

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

Expertise in assessing the value of the property of spouses during division

If the parties are unable to agree on the division of property, they must go to court to have such a division carried out in court. Objectively, the court itself cannot divide the property without knowing its value, technical features, the possibility of dividing the property in kind, and so on. In order to obtain such information, the court must resort to the help of experts with the relevant knowledge in a specific field of science and technology.

To do this, the court applies to an expert institution with a ruling that specifies the questions that the expert must answer. The expert, in turn, carries out an examination, checking the documentation and directly examining the object of such research. As a result, he comes to a certain opinion and answers the court’s questions. Having sufficient information at his disposal, the court carries out the division of the common property of the spouses.

The main examinations include construction and technical, commodity and automobile examinations. Each of these examinations has its own characteristics, which is primarily related to the object of such research.