How to divide property into parts between spouses

How to divide property into parts between spouses?

• How property is divided during a divorce
• How to divide an apartment
• Allocation of unequal shares during property division
• Division of property in the presence of children
• Procedure for filing a lawsuit

According to the Family Code, all property acquired by the spouses during the marriage is their joint property. If the spouses wish to divide the property and recognize each of them as having the appropriate shares, they can do so both during the marriage and after the divorce.

If it is impossible to distribute the property voluntarily by concluding an agreement, the spouses must go to court. The judge may deviate from the principle of equality of shares, taking into account the following circumstances:

1. the time of acquisition of the property;
2. whose funds were used to purchase it;
3. the level of wealth of each party, and others.

The court may allocate unequal shares to each of the parties in ideal proportions (/, /, and so on), or determine specific property for the former spouses.

How are spouses’ shares determined when dividing property?

According to Part of the Family Code of Ukraine, spouses have equal rights to property acquired by them during marriage. This means that in most cases all property is divided equally between the parties. An exception to this rule is when a spouse has entered into an agreement describing a different procedure for distributing property.

If spouses divide common property, then the property becomes partial. If the parts are determined, each party will be able to own and dispose of their part at their own discretion and without the consent of the other spouse.

There is also indivisible property that is physically impossible to divide into parts, such as a car. In this case, one of the spouses will take the property for themselves, but will be obliged to pay the other party monetary compensation or transfer other equivalent property to them. This is necessary so that all jointly acquired property is divided equally.

Shares of property during division: personal property of spouses

There are also things that are the property of only one of the spouses. These include:

• Property acquired by one of the parties prior to marriage.
• Property received by a man by inheritance, as a gift or on the basis of other gratuitous transactions – even during the marriage.

The judge may recognize such property as the joint property of the spouses if common funds were spent on it, as a result of which the cost of the property increased – the IC of Ukraine. This is true, for example, if a man and a woman together made a major renovation in an apartment that originally belonged to the man.

• Items used by only one of the spouses: clothing, footwear, medicines, etc. Valuables or luxury items are an exception.
• Results of intellectual activity of one of the parties: patents for inventions, rights to works of science, literature and art. At the same time, the income that such activity brings, by law, belongs to each of the spouses.
• Items acquired to meet the needs of minor children: footwear, clothing, furniture, as well as deposits in the name of the child – this property is transferred to the father with whom the minor will remain.

The court can recognize the property acquired by the spouses during the marriage, but with the personal money of one of the parties, as her personal property. However, for this it will be necessary to prove that the man really spent his own money on the purchase.

Division of property in parts between spouses during divorce

The joint property of spouses can be divided both during the marriage and after its dissolution. There are several ways to determine the spouses’ shares:

1. By agreement – an agreement is drawn up at a notary’s office, in which the spouses independently determine who will own this or that part of the property. The document can be drawn up both during marriage and after its dissolution.
2. By concluding a marriage contract, the document is also subject to mandatory notarization and can be drawn up during the marriage, as well as before its conclusion. The peculiarity of such an agreement is that it can indicate who will own the property that will appear in the future and in what parts. In this case, the agreement comes into force only after the parties enter into marriage.
3. By court order – if it is not possible to reach an agreement on the division of property peacefully, then this can be done through the court. In this case, the court will independently determine the fate of each man, taking into account all the circumstances worthy of attention.

How to divide an apartment into parts between spouses during a divorce?

During the division of a shared apartment, the spouses acquire the right of shared ownership, in other words, each will own/(half) of the home. These are the so-called “ideal particles”: their ownership is conditional, since in practice the apartment is not divided in half.

Particles can also have a real value, that is, each owner gets a specific room and the order of use of common areas is determined: the corridor, kitchen, bathroom. If one of the spouses gets a room of a larger or smaller size, the court can oblige the spouse to pay compensation for the difference in area.

The share of one of the spouses’ property in the housing may be increased by the court if it is established that during the marriage, improvements were made at his/her personal expense that significantly increased the value of the apartment. For example, a major renovation was made.

Contracts with contractors for repairs, payment receipts, bank statements, and witness statements may serve as evidence of improvements. An appraisal should also be conducted to establish the difference in monetary value.

If the apartment was purchased by the spouse before marriage and is his sole property, then in the event of improvements being made using common or personal funds, the tribunal may allocate a share in it to the other spouse.

Increasing the share of spouses in the division of property

The possibility of deviating from the principle of equal shares in the division of property is established by the Family Code, in particular, if this does not occur by agreement or marriage contract, then unequal shares can be allocated by a court decision based on the following circumstances:

• Taking into account the interests of children left with one parent after a divorce.
• If the man did not participate in the joint household: for disrespectful reasons, he had no income or spent property to the detriment of the family’s interests.

Moreover, if a man ran a household and looked after children and for good reasons did not have a permanent income, then regardless of the contribution of each of the spouses, the acquired property will be common.

If the spouses remain married but do not actually live together, the court may recognize the property acquired by each of them during the period of separate residence as their personal property. However, to do this, it is necessary to prove that the property was acquired during the period when the parties lived separately, and that personal funds of one of the spouses were spent on its purchase.

When is property not divided equally between spouses during a divorce?

The law does not clearly define the grounds for deviation from the equality of shares. When considering such cases, the courts are guided by the Resolution of the Plenum of the Supreme Court of Ukraine, but in each specific case the decision is made at the discretion of the court, taking into account all the circumstances of the case.

The court may deviate from the principle of equality of shares of each of the spouses, but this does not mean that it is obliged to do so – the final decision depends on the specific circumstances of the case under consideration.

The court also takes into account the interests of the spouses that deserve attention. If a claim is made to increase the share due to the lack of income of one party for unjustified reasons, then the plaintiff will need to prove that the man has not worked for a long time and has not tried to find a job.

Also, if the claim is related to alcohol abuse, drug abuse or gambling, the relevant medical certificates confirming the visit to a narcologist should be provided.

If the court finds that during the division of property one of the spouses somehow concealed jointly acquired property, then the share of the other half’s funds may be increased in proportion to the value of the hidden property.

The state of health of the process participants is also taken into account. The court can deviate from the equality of shares if one of the spouses is unable to perform labor activities and receive income, for example, due to disability. In this case, he can receive a larger share as needed.

In most cases, loans and other monetary obligations are also taken into account when dividing property and determining shares. If only one of the spouses took out a loan, then the obligation to repay it may be established for both spouses if it is proven that the funds were required to meet the needs of the family.

Children’s share in divorce and division of property

According to the rule of the Family Code of Ukraine, children have no relation to the common property of their parents. Accordingly, when dividing the property of parents, it is not necessary to allocate a share to children. The exception is cases when real estate was purchased using targeted funds, for example, maternity capital. In such a case, the law requires that all family members be granted ownership rights.

In judicial practice, there are often cases when a parent wants to increase his share, basing his point of view on the fact that minor children will remain with him. In some cases, the court can actually increase the share if the child really needs it.

For example, this could be a share in an apartment or a vehicle if it is necessary for the movement of a disabled child (Resolution of the Supreme Court of Ukraine).

When dividing property taking into account the needs of minors, the court must be guided by the property status of the parents. If, for example, the mother is left alone with the children, then when dividing the property, the minimum size of living space established in the region for each family member must be taken into account and, based on this, the corresponding shares in the housing must be allocated.

When demanding a derogation of shares taking into account the presence of children, the court also takes into account the procedure for the maintenance of children by parents. For example, if a man participates in the lives of children and conscientiously pays alimony, the court may not see the need for minors to increase their share of the property. However, if the housing was purchased by the parents in order to improve their living conditions due to the birth of a child, this may be a reason for derogating from the equality of shares.

Also, if the owner of the property is a child (this could be a computer, a desk, a musical instrument), then this property is not subject to distribution and remains with the child and the father with whom he will live (Family Code of Ukraine). In this case, no compensation is imposed on the second parent.

How to divide property into parts through the court?

To divide property, you can go to court both during the marriage and after its dissolution. According to Part of the Civil Procedure Code, cases on the division of property between spouses are considered by the OM, but only if the price of the claim, that is, the value of the divided property, does not exceed thousands. If the value of the property is higher, then you need to go to the district court.

Regarding territorial jurisdiction, the courts mainly consider these cases at the place of residence of the defendant. However, if the subject of the dispute is real estate, then there are cases when the statement of claim remains without consideration when filed at the place of residence of the defendant with a recommendation to apply to the court at the location of such real estate. In this case, before filing a claim, you should clarify in court whether this case is subject to its jurisdiction.

The amount of state duty for division of property in the order is from 200 UAH to 20,000 UAH and depends on the price of the claim.

According to the Family Code of Ukraine, the limitation period for dividing the property of spouses after divorce is years. During the specified period, it begins from the moment when one of the parties learned or should have learned about the violation of their property rights, and not from the moment of divorce.

For example, a wife learned at the beginning of a long time after the divorce that her husband gave the child an apartment purchased by him during the marriage, while the consent to alienation from the spouses was not obtained (determination of the Supreme Court of Ukraine). In this case, the court indicated that the limitation period must be determined not from the moment of divorce of the spouses, but from the moment when the former spouse learned that her rights were violated.

Lawyer’s answers: how to divide property between spouses during a divorce?

Determining the shares of common property between spouses during divorce

There are two procedures for determining shares in common property.

1. The first option is a voluntary (pre-trial) procedure. This procedure requires the conclusion of a marriage contract or an agreement on the division of common property.
2. The second option for division is a judicial procedure.

As a general rule, the division of acquired property occurs in equal shares (except for personal items, items acquired before marriage or through gratuitous transactions). The court may deviate from the general procedure only if there are compelling reasons.