Recognition of property as common property during divorce

Recognition of property as common property during divorce

If during the marriage the property of one of the spouses was improved by the other spouse or through joint efforts, then such property may be recognized as community property.

Property rights can be redistributed either voluntarily by agreement between spouses or forcibly through the court.

To obtain a share in the personal property of the spouses, it is necessary that the changes in this property be significant and, despite wear and tear, increase its market value.

Taking into account all the circumstances and amounts of investment, as well as the difference between the value of the property before and after the efforts made, it is possible to determine the size of the spouses’ share in this property.

The court takes into account any written evidence of improvements made, including payment documents containing information about the cost of goods or services used to improve the property.

Grounds for recognizing personal property as the common property of spouses

When, in the course of family life, certain things that originally belonged only to one of the spouses have undergone transformation or repairs that improve their quality (and, as a result, increase their value), then such property ceases to be the property of one of the spouses and becomes common.

The Family Code of Ukraine clearly states that the basis for recognizing personal property as common property is the established fact that with the help of the work or investments of one of the spouses in the personal property of the other, the value of this property has significantly increased. Investments can be made from both the common and personal property of the spouses.

Transfer of personal property into common property during divorce

Example

A woman got married with a car. During the marriage, a male car mechanic carried out a major overhaul of the car, replacing worn out engine and body parts, and painting work, which increased the market value of the car. Based on the fruits of his labor and receipts for purchased parts, he can claim recognition of the car as common property.

At the same time, the Civil Code of Ukraine contains a clarification that, on the basis of an agreement between spouses, it can be established that even despite the changes and improvements made, the property will not cease to be the property of only one.

A ban on the division of personal property may be justified by the high value of certain types of property: business, real estate, cars. Typically, a contract between spouses refers to a prenuptial agreement entered into during marriage.

Statement of claim for recognition of jointly acquired property during divorce

If there are grounds for demanding a share in the personal property of the spouses, then the rights can be re-registered in two ways:

  • By agreement. This means that, on the basis of voluntary will, a person is ready to provide a share in his property as a result of its improvement. Before marriage, this condition can be fixed in a prenuptial agreement; during marriage, by signing an agreement between the spouses on the division of common property.
  • Through the court.

The claim should be filed at the place of registration of residence of the defendant. When real estate is subject to division, the claim is filed at the location of the property.

The cost of the claim is taken into account at the time of filing the application. Usually it is indicated by the plaintiff in the application from the market value of the property or an audit estimate.

Evidence for recognition of personal property of spouses as common property

Since the basis for recognizing property as common is its improvement and increase in value, then these circumstances will have to be proven.

The court accepts for consideration any written evidence:

  • Checks.
  • Estimates.
  • Work acceptance certificates.
  • Receipts.
  • Payment documents.
  • Witness testimony.
  • Conclusions of expert commissions.

Division of common property during divorce through court

The court will proceed from the actual value of the property, taking into account the following circumstances:

  1. The price for building materials was formed (if the real estate was repaired).
  2. Market price for transport services.
  3. Market value of the property.
  4. The degree of improvement of the property.
  5. Possibility of use.

In court, it is necessary to provide comprehensive information about the original and current value of the property. Because it is the fact of its significant improvement that is taken into account.

It should be taken into account that the legislation has a definition related to major repairs and reconstruction (departmental building standards VSN 58-88 (r) “Regulations on the organization and implementation of reconstruction, repair and maintenance of buildings, communal and socio-cultural facilities”).

Thus, there are established standards for determining the extent of work performed and its category. It remains to prove the amount of investment in property improvement.

The matter becomes more complicated if a person claims a share in an enterprise owned by the other spouse as personal property. According to the norms of the Family Code of Ukraine, the income of the enterprise will be common property. If the income is significant and is aimed at the further activities of the enterprise, increasing the value of the shares, then this may be the basis for receiving a share in the property.

Court decision recognizing property as joint property during a divorce

If the court makes a positive decision, then on the basis of it there is a redistribution of property rights and their subsequent registration (receipt of a certificate of title).

In this case, the deficiency does not have to be broken; the division of the disputed property can be carried out during the marriage. In this case, upon divorce, this property is not subject to division again.

Recognition of property as common property during divorce: judicial practice

Example

Maksimenko I.S. filed a claim that her husband refused, when registering extensions to the house, to allocate her a share in the real estate, as well as the land plot under it. The statement indicated that at the time of marriage the man had a house that he inherited from his parents. In the first years of his marriage, his personal funds were used to remodel the house and add rooms that significantly increased the total area of the building as a whole.

Maksimenko D.S. filed a counterclaim to exclude the land plot from the property subject to distribution, on the basis that the plot was given to him under a gratuitous agreement.

The court ruled that as a result of the construction work carried out and based on the conclusion of the BTI employees, the area of the house doubled. Claim by Maksimenko I.S. fully satisfied and allocated part of the available real estate in kind.

Claim by Maksimenko D.S. also satisfied and awarded payment of the value of part of the land plot located under the attached premises, which belongs to the wife.

The court made a proposal to eliminate the inlet between the original and the attached one, dividing the heating system into two autonomous systems, which would allow dividing the house into two isolated halves with separate entrances, which does not contradict the technical requirements for this building.

The costs of redevelopment and registration of the house with the BTI authorities must be divided equally by the spouses.

Answers from a lawyer about recognition of property as common property during a divorce

Before the wedding, I purchased an apartment with a mortgage. After marriage, she paid part of her salary, and part was paid by her parents. The man did not object or make any claims. After the payment, when it was necessary to re-register the certificate of ownership in the UNIFIED REGISTER OF PROPERTY RIGHTS, the man stated that he wanted a share in the apartment, as in jointly acquired property. If he goes to court, can he be awarded a share? How can I prove that the apartment is mine?
If I sell my apartment, purchased before marriage, and buy a new one while married, will it be considered joint property? Will the wife be able to sue for her share?

Recognition of personal property as common property during a divorce through court

Recognition of personal property as joint is carried out based on a claim to the court, where the fact of an increase in its value with the help of monetary investments of the other half’s funds is established. Thus, the division of such property upon divorce will be carried out in equal shares between the spouses.

At the same time, disputes more often arise about the division of durable property:

  • apartments;
  • Houses;
  • transport, etc.
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