The procedure for distribution of property during divorce

The procedure for distribution of property during divorce

During marriage, not only personal but also property relations operate between spouses. The latter are regulated in sufficient detail by the Family Code of Ukraine (Family Code of Ukraine). An integral part of property relations are matrimonial property relations.

Things and other material goods acquired during marriage are recognized as common (compatible) property. Property acquired by one of the spouses before marriage is considered personal property. In this regard, after many years of married life, most of the property comes into common ownership.

Methods for dividing property during divorce

When dividing property, it is determined who is the owner of the property and in what share (volume). The section can be produced:

• during marriage;
• during the period of its termination;
• as well as after the termination of marital relations.

There are voluntary and involuntary division of property. By voluntary decision of both spouses, an agreement on the division of jointly acquired property can be drawn up (Family Code of Ukraine).

Division of property of spouses by agreement during divorce

An agreement is a document that has legal force and the basis for establishing private ownership of a thing. The document is drawn up in simple written form. It contains the details of both parties, a list of property indicating the person to whom the property is transferred into ownership, the start date of the agreement, and the signatures of the parties.

The agreement can be concluded during the marriage relationship and upon divorce. Concluding a transaction during marriage is advisable not only for the further termination of the marital relationship. This can be done when one of the spouses is engaged in entrepreneurial activity, owns property necessary for the business, etc. At the request of one of the parties, the agreement can be notarized, but this is not a mandatory condition.

Division of property under a marriage contract upon divorce

Another type of voluntary division of property is a marriage contract. In accordance with the Family Code of Ukraine, a marriage contract is an agreement between spouses or persons entering into marriage regarding their property, including a change in the legal regime. Such a document is drawn up in writing by legally capable persons and must be notarized. In this case, the agreement may contain terms on the obligations to support spouses, the procedure for incurring expenses and other property rights and obligations.

Property regime in case of divorce under a marriage contract

In a marriage contract, the parties at their own discretion determine the ownership regime. It could be:

1. Partial ownership of the entire property.
2. Joint ownership of one part of the property, partial ownership of the other.
3. Separate property, that is, property acquired during the marriage by each spouse, is recognized as their personal property.
4. Determining the ownership of property that will be acquired in the future.
5. Spouses can establish other ways to determine ownership (transfer of ownership upon the occurrence of a certain condition, achievement of a period of time, etc.).

If the opposite is not established in the contract itself, then it applies only to property acquired after signing the contract. At the same time, marriage contracts concluded by persons who are just going to register a marriage will be valid from the moment of state registration (Family Code of Ukraine).

Judicial practice of division of property during divorce under a marriage contract

Example

Yulia and Roman applied for marriage registration at the beginning of 2018. Yulia, who was studying at the Faculty of Law, heard about a marriage contract during her studies and invited Roman to draw it up. In May 2018, Roman and Yulia notarized the marriage contract, according to which the apartment belonging to Roman became their common property.

By the appointed date for state registration of marriage, the young people quarreled and called off the wedding. In mid-August, Yulia filed a claim in court for the division of joint property with Roman (apartment), citing a notarized marriage contract. The judge refused to satisfy the plaintiff’s claims, citing the fact that the marriage between Yulia and Roman was not concluded, therefore the marriage contract for their property does not apply.

A marriage contract is a type of civil contract, therefore, with the consent of the parties, it can be changed or terminated at any time (Family Code of Ukraine). To do this, you will need to contact the notary again. However, if there is a dispute, the court and in other cases may change or terminate the marriage contract on the grounds provided for by the legislation of Ukraine (Family Code of Ukraine).

The IC of Ukraine provides for the possibility of declaring a marriage contract invalid. The grounds are common to all civil contracts, which are provided for in the Civil Code of Ukraine (Civil Code of Ukraine). At the same time, the Family Code of Ukraine establishes an additional basis for declaring an agreement invalid if the terms of the agreement put one of the spouses at a disadvantage.

Division of property of spouses during divorce through court

In case of a dispute, the division of the common property of the spouses, as well as the determination of shares, is carried out by the court (Family Code of Ukraine). To begin legal proceedings, one of the spouses must file a claim with the court. The requirements for the statement of claim are contained in the Civil Procedure Code of Ukraine.

In a court decision, the judge determines what property, in what shares, should go to each of the spouses, in accordance with the norms of the Investigative Committee of Ukraine. Not only property rights, but also obligations (debts, loans, etc.) are subject to division. According to the Family Code of Ukraine, when determining the property status of spouses, the court is guided by the principle of equality of shares.

This means that regardless of whether all family members worked or one received the main income and the other was raising children, the shares of the acquired property are recognized as equal.

However, the court may deviate from the above principle and increase the spouse’s share. The reason may be different circumstances:

• when one of the spouses will subsequently raise a minor child alone;
• if the husband or wife is disabled;
• if a man or woman spent common income to the detriment of the family;
• if one of the spouses caused damage to property and in other cases.

Things that cannot be divided in a divorce

Sometimes things purchased by spouses during marriage cannot be divided during a divorce. Such property includes:

• Items purchased for minor children.
• Contributions made by spouses on behalf of a common child.
• Property received during the marriage by inheritance or gift.
• Personal belongings of each spouse (clothes, shoes, etc.).

The first two categories remain with the parent with whom the child lives after the dissolution of the marital relationship. The third and fourth categories of things are the personal property of each of the spouses, therefore they remain with the one to whom these things belong.

A claim for interim measures may be filed against the disputed property of one of the parties to the proceedings (Civil Procedure Code of Ukraine). The basis is the assumption that if these measures are not taken, the execution of the court decision will be complicated or impossible. Measures to secure a claim may include seizure of property, prohibition of the defendant from performing any actions, etc. The issue of imposing interim measures is decided by the judge.

Division of apartment, real estate upon divorce

Example

Kateryna and Dmytro Lytvynenko have decided to file for divorce. Kateryna moved in with her mother, leaving Dmytro in the apartment that was bought by the couple during their marriage. She filed a claim with the court for divorce and division of jointly acquired property.

At the same time, Kateryna submitted an application to take measures to ensure the claim, as she was afraid that Dmytro would rent out the apartment to undesirable people, because he needed money. The judge issued a decision to take measures to secure the lawsuit in the form of a ban on Dmytro to rent out the apartment.

A three-year statute of limitations applies to the requirements for division of property of divorced spouses (Family Code of Ukraine). This means that even after a divorce, when a person learns that his right to property is being violated by another person, he will be able to go to court within three years to protect his right.

Division of property at the request of the creditor

A creditor is an individual or legal entity who, having entered into a civil legal relationship, has the right to demand certain behavior from the other party (borrower). As a rule, such demands are of a property nature: return of a sum of money, payment of rent payments, interest, etc.

In the event that the second party voluntarily fails to fulfill its obligation to pay a sum of money, the creditor has the right to foreclose on its property. Considering the fact that during the period of marriage, all acquired property is considered the common property of the spouses, the creditor cannot charge it as payment of the debt. Therefore, when the personal property of one of the spouses is not enough to repay the debt, the creditor has the right to make a claim for the distribution of the common property of the spouses (Family Code of Ukraine).

The procedure for dividing property at the request of a creditor

The division of property at the request of a creditor is always resolved in court. In this case, the claim may be made by the creditor:

• during marital relations;
• upon divorce;
• after a divorce, if the property was not divided between the spouses.

The creditor applies to the court with a statement of claim for the division of common property, identifies the debtor as the defendant, and the debtor’s spouse or wife as a third party. Also, the statement of claim must indicate on what basis he makes his claims (agreement, receipt of money, alimony obligations, etc.).

In his decision, the judge establishes the owners of all common property of the spouses, indicating the share. After this, the creditor can again foreclose on the personal property of one of the spouses.

Answers from a lawyer about the procedure for dividing property during a divorce

The procedure for dividing property during divorce

If the spouses can reach agreement when dividing property, two options for distributing property are used: a transaction or a marriage contract.

• The agreement is concluded in a simple written form, which determines who is the owner of a particular property.
• A marriage contract can regulate a wider range of issues, so it requires notarization. The marriage contract, by agreement of the parties, can be changed or terminated by the parties at any time.

If there is a dispute, the parties should go to court. This can happen both before the divorce and after. In this case, the judge determines the regime of the property, guided by the principle of equality of shares, with the exception of certain cases.

A special type – division of property at the request of the creditor, is used when one of the spouses is a debtor and his personal property is not enough to satisfy the creditor’s claims.