Petition for division of property

Petition for division of property

Claims for the division of jointly acquired property are made by one of the spouses by filing a statement of claim. Strict requirements are imposed on it regarding form, content and documents submitted with it. All other procedural claims made by one of the spouses during the consideration of the case are formalized by filing the relevant petitions.

Petitions are not subject to the same strict requirements as claims – they can be drawn up in free form and can include various types of documents.

However, with its help, you can get a deferment on the payment of state fees, take measures to secure a claim, request an expert assessment of the value of the property, request the necessary evidence and perform a host of other procedural actions.

Petition and statement of claim for division of property of spouses

If spouses have any disputes regarding the volume of common property, they are subject to resolution in court (Family Code of Ukraine). To do this, the interested man files a statement of claim with the relevant demands. If the demands for distribution arose within the framework of another case (for example, divorce), they are declared by the plaintiff by filing a corresponding application or a new claim.

The requirement for division of property is nothing more than a key expression of will of one of the parties. The petition is a procedural document aimed at resolving by the parties the consideration of secondary issues of a procedural nature – appointment of examinations, imposition of arrests, etc.

Therefore, division claims cannot be made by filing petitions – claims are used for this purpose. In addition, it is necessary to take into account that:

• A claim for division may be filed with the court within a three-year period (Family Code of Ukraine), from the moment when the potential plaintiff learned or should have learned that his property rights to the common property were violated (Civil Code of Ukraine).
• The claim is filed with the court in writing, in the form of a document signed by the plaintiff or his representative.
• When drafting a claim, it is necessary to be guided by the requirements for its content established by the Civil Procedure Code of Ukraine.
• Violation of these requirements, according to the Civil Procedure Code of Ukraine, entails leaving the claim without action.
• Together with the claim, documents confirming the circumstances specified in the application are submitted to the court. Thus, an approximate list of documents submitted together with a claim for division of property looks like this:
• plaintiff’s passport;
• receipt for payment of the fee;
• marriage registration certificate;
• certificate of registration of divorce (or court decision);
• documents establishing the right of ownership of the disputed property;
• documents determining the value of common property;
• calculation of the price of the claim Please note that the price of the claim is calculated based on the value of the property at the time of division, and not at the time of its purchase, taking into account its depreciation and market value.

Sample petition for division of property of spouses in court

Before filing a claim for distribution, the plaintiff must pay a state fee, the amount of which is determined by the rules established by the Law on Court Fees, based on the price of the claim. State customs can reach thousands, which is quite a lot for average citizens. So, if the plaintiff’s financial situation does not allow him to pay the fee on time, according to the Civil Code of Ukraine, upon petition, the court may assign a deferment of its payment.

The deferral of payment of the state fee by court order, in accordance with the Civil Code of Ukraine, is carried out by postponing the deadline for its payment by a lump sum payment for no more than one year.

Contents of a petition for division of property of spouses through the court

To obtain such a deferment, the plaintiff must submit a petition to the court after filing a claim. It must include the following information:

• Information about the previously filed claim, division of common property, the price of the claim and the amount of state duty to be paid.
• Information about the difficult financial situation that does not allow the state duty to be paid on time (lack of work, debts, dependents, several children, etc.).
• Information about when the plaintiff’s financial situation will improve to the extent that will allow him to pay the required amount of state duty.
• The limits of such a period are limited to one year.
• Legal justification for the need to provide a deferment. In particular, it is necessary to indicate the provisions of the legislation determining the possibility of providing a deferment (Civil Code of Ukraine), as well as the fact that the plaintiff’s situation is precisely such a case that requires a deferment based on the current financial situation.
• A request for a deferment for payment of the state duty, indicating the period for which such a deferment should be provided.

Petition for application of the limitation period in the division of property

According to the Family Code of Ukraine, the limitation period for claims for the division of property jointly acquired by divorced spouses is years from the moment when the man learned of the violation of his property rights (Civil Code of Ukraine). Before the expiration of this period, the man can apply for judicial protection of his rights.

The expiration of the limitation period does not prevent the acceptance of a claim for division of property. According to the Civil Code of Ukraine, it is applied only at the request of a party to the dispute before the court issues a decision. Thus, the defendant’s request to apply the missed limitation period is the basis for a decision to reject the claim.

When drafting a petition for the application of statutes of limitations in the division of property, it is necessary to indicate:

• the claims filed by the plaintiff, as well as the property that, in his opinion, is subject to distribution;
• life circumstances that arose successively between the former spouses, indicating the periods (marriage registration, acquisition of property, joint maintenance thereof, divorce);
• the date of the commencement of the limitation period, which, according to the Civil Code of Ukraine, begins to run from the moment when the man learned or should have learned of the violation of his right. The beginning of its course may be evidenced by the restriction of the right of the second spouse to use the property, dispose of such property without his consent, concealment of such property, transfer of it for storage to third parties, etc.;
• expiration of the three-year limitation period before the plaintiff filed an application for division of joint property and legal justification for this by referring to the provisions of the law;
• a petition for the application of the limitation periods and a decision to refuse the claims filed by the plaintiff.

Petition for appointment of an expert assessment of the value of property during the distribution of property

The value of the items to be distributed is determined based on the information provided by the plaintiff in the statement of claim. Such value may affect various procedural aspects, in particular, the price of the claim, jurisdiction, the amount of state duty, the amount of compensation, etc. If the male defendant does not agree with the value of the items declared by the plaintiff, he has the right to petition for the appointment of a corresponding expert examination.

Expert assessment of the value of things is carried out by private expert appraisers based on the market value of the thing at the time of the assessment.

In such a petition, disagreeing with the value of the things, the defendant, in addition to the standard details, must indicate:

• The court is processing a claim regarding the division of common property of spouses, what the items are subject to division, as well as the value of such items specified in these claims;
• On circumstances that, in the opinion of the defendant, in one way or another change (overstate or understate) the value of the disputed property.
• Such circumstances, for example, may be repairs, an accident, additional equipment of an item, general irrelevance of the specified value, etc.
• On the need and request of the plaintiff to conduct an expert assessment of the disputed property. In particular, the defendant may ask the court to ask the expert a specific question, in the wording specified in the petition.
• Moreover, the defendant may ask the court to conduct an assessment in a specific expert institution or with a specific expert (Civil Procedure Code of Ukraine).

Petition for division of property of spouses: judicial practice

Example

The court is currently processing a case on the division of joint property of former spouses B and M. The items to be distributed include a Toyota Camry, the value of which, according to M, is 300 thousand UAH. However, according to B, the value of the car is significantly overstated, since it was in an accident several times and also underwent major repairs. Based on this, B filed a motion with the court to appoint an expert assessment of the value of the car.

According to the expert’s decision, B asked to ask the question “What is the real value of the car, taking into account its wear and tear, technical condition and additional equipment?” He asked that the examination be carried out by ANO “Expertise-Service”.

The court granted B’s request and appointed an examination, the results of which showed that the real value of the car was 250 thousand UAH.

Petition for seizure of property during division of property

The process of dividing the common property of spouses is often accompanied by unfair actions of the parties aimed at concealing the disputed property. In order to avoid such violations of property rights, plaintiffs interested in an honest division of things must take care to apply measures to secure the claim (Civil Procedure Code of Ukraine).

The most common is the seizure of the disputed property, which is in the defendant’s possession (Civil Procedure Code of Ukraine). Such a measure may be applied at the request of the plaintiff, specified in the statement of claim or at his/her request – in the further process of consideration of the claim.

Thus, if the requirement for the application of interim measures arose during the consideration of the case, the petition for the imposition of an arrest must contain:

• information about the pending lawsuit on the division of property between specific men;
• indication of the disputed property with a list of each item separately and a definition of their individualizing characteristics, as well as an indication of the location of such items;
• concerns that the defendant may commit actions that may impede the execution of the court’s decision (Civil Procedure Code of Ukraine). It is also necessary to indicate what specific actions may be committed and how they may complicate the execution of the decision;
• a petition to seize the listed property, with a legal justification for such a request (Civil Procedure Code of Ukraine) and an indication of specific actions that the defendant must be prohibited from committing in relation to the disputed items.

Petition for the collection of evidence in the division of property

According to the Civil Procedure Code of Ukraine, each spouse is obliged to independently prove the facts to which they refer when substantiating their claims for the division of property. However, if it is difficult for either spouse to provide the necessary evidence, the court may provide assistance in collecting and requesting it (Civil Procedure Code of Ukraine). To do this, the interested man must submit to the court a petition for the request of evidence, which must indicate:

• on the pending court proceedings of a claim for the division of marital property, within the framework of which it is necessary to request evidence;
• on the most necessary evidence, it is individualized by its characteristics, as well as its location (name of the organization, its address);
• what circumstances, significant for the case, allow to establish or refute the said evidence;
• what objective reasons the applicant has, preventing the independent collection and request of the said evidence;
• at the request of the party to request evidence from a specific organization or institution, together with a request to involve them in this case.

Such a petition may be used to request materials from criminal cases, medical documents, title documents from organizations that register them or from title holders, registration files, sales contracts and other evidence.

Lawyer’s responses to the petition for division of marital property

Peculiarities of filing a petition for the division of property of spouses

Despite the fact that the statement of claim is a fundamental document in any civil litigation, including the distribution of property, petitions play an equally important procedural role. With their help, a petitioner can resolve a host of problems, such as obtaining evidence, applying the statute of limitations, imposing arrests, conducting examinations, etc. However, it is necessary to take into account that petitions are in the form of requests to the court, which is why they must be fully substantiated from the point of view of the law.