Recognition of property as personal during divorce

Recognition of property as personal during divorce

Recognizing property as the personal property of one of the spouses is very important, because in this case, when dividing jointly acquired property, it will not be taken into account (Family Code of Ukraine).

There are two options for recognizing such a right: voluntary (by agreement) and judicial (if there is no consent of the second spouse). An agreement is a more convenient and cheaper option, but if it is not possible, then you need to go to court with a claim to recognize the property as personal property. In this case, you need to prepare and present to the court convincing evidence confirming your words, then you can count on the fact that this property will be recognized as yours.

Agreement on division of property during divorce

The division of property between spouses is possible through an appropriate agreement, which is enshrined in the Civil Code of Ukraine. The agreement is concluded in simple written form. In this case, it is advisable to have this document certified by a notary, although this is not necessary, but can play a positive role if the other party changes its mind about fulfilling the terms of the agreement.

The main advantages of dividing property under an agreement: speed, simplicity, absence of serious conflicts, because the spouses were the ones who resolved claims and disagreements.

An agreement on the division of property allows you not to use the principle of equal shares, but the court can make its own decision if the transaction will significantly limit the rights of one of the spouses or children.

Contents of the agreement on division of property during divorce

Contents of the agreement on division of property during divorce:

  1. Details of the spouses (full name, place of residence of each, contact information).
  2. The purpose of the transaction, that is, the need to divide jointly acquired property.
  3. List of real estate objects (if any). There should be no ambiguity or generalization.
  4. List of other divisible items (indicating characteristics, release dates, prices and other interesting information).
  5. Directly the procedure for dividing property (shares or decisions on specific things).
  6. The location of the property and the procedure for its transfer.
  7. Conditions for termination of the transaction.
  8. Other conditions at the request of the spouses, if they do not contradict the law.
  9. Signatures of the parties and dates.

Conditions for terminating an agreement on division of property upon divorce

Conditions for termination of the transaction:

  1. Violation of the law in the agreement itself.
  2. Without taking into account the interests of third parties (children, creditors).
  3. Completing a transaction under threat or pressure, in a difficult life situation.
  4. Internal discrepancy in the document (incompatible clauses).

Claim for recognition of a man’s personal property during a divorce

If it was not possible to reach an agreement with the man, then you need to go to court with a claim for the division of common property. The application must be submitted at the place of registration (residence) of the man, and if it is unknown, then it must be submitted at the last known one.

You can file at your place of residence if you live with your children and cannot leave them, or if you have severe health problems or have agreed with your husband on the place where the trial will take place.

Often a claim for division of property is accompanied by a claim for recognition of personal property. Personal property includes:

  1. Property that belonged to a man before the marriage was registered. Moreover, if this property is sold, and new things are bought with the money received, then the purchased property is not considered common.
  2. Property received by the husband by inheritance, gift or other gratuitous basis.
  3. Items intended for individual use.
  4. Exclusive rights to intellectual activity (i.e. owned by the author).
  5. Money received as compensation for damage caused to one of the spouses (compensation for moral damage, assistance to the victim) is not considered community property due to the fact that it is inextricably linked with the identity of the recipient.

It is important to distinguish between things given to one of the spouses and wedding gifts that are given to spouses, which means they are considered common property. In addition, the law allows spouses to make gifts to each other. The donated item will be considered personal property.

Statement of claim for recognition of property as personal during divorce

Example

Kononenko N.V. and Kononenko V.G. We have been married for 10 years. But then their relationship deteriorated and they began to have disputes about jointly acquired property. The man filed a claim for recognition of personal property, where he demanded that his Peugeot car be assigned to him. He justified this by the fact that this car was bought with money inherited from his mother. He was able to confirm this through documents and witness statements. As a result, the court recognized this car as the personal property of V.G. Kononenko.

Quite often, disputes arise about bonuses, awards and other valuable things. There are two options here:

  1. A bonus or award, which is a type of salary (i.e. it is systematic and is paid for length of service or achievement of certain results). In this case, it will relate to jointly acquired property.
  2. A one-time prize or award given to reward a person for achievements in the arts, science, literature, and other fields of knowledge. These may be international or state awards, which are clearly of a personal nature and belong to the personal property of the spouses.

It is important to note that jewelry (jewelry made from precious metals and stones) or luxury items (antiques, works of art, etc.), even if they are used only by one of the spouses, will be considered community property.

If the court finds that during the marriage, at the expense of common money, there was a significant increase in the value of the personal property of one of the spouses, then such property will be recognized as common. This applies, first of all, to the renovation of houses, apartments, cars and the development of enterprises (documentary evidence of the invested funds is required).

There are a number of requirements for a claim. It should contain the following:

  1. Court details and details.
  2. Addresses (actual and official), contact information of spouses.
  3. Information about the disputed property.
  4. Information about marriage and spouses (the marriage was dissolved).
  5. Date and your signature.

Documents for recognizing property as personal upon divorce

The following should be added to the statement of claim:

  • a receipt confirming the fact of payment of the state duty;
  • property valuation.
  • documents confirming the right to the thing (certificate of ownership, right of inheritance, purchase and sale agreement, deed of gift, etc.).
  • a copy of the marriage contract (if there was one).

Judicial evidence to confirm property rights in a divorce

To confirm the right to property, you must provide the court with evidence:

  1. Documents confirming the right to property: purchase and sale agreements, donations, exchanges and others (the important date of their conclusion).
  2. Documents confirming that the agreement has been fulfilled (transfer and acceptance certificate).
  3. Bank statements, checks.
  4. Witness’s testimonies.
  5. Will and certificate of inheritance.
  6. Audio recordings, photographs, videos.
  7. Conclusion of specialists and experts.

It is important to note that state registration (for example, a car) is not evidence because it does not confirm the existence of a right. The dating of certain documents will also be of great importance.

The court will have its discretion to evaluate the evidence (based on a full, comprehensive and objective examination). Some evidence does not have priority over others. The court will check the veracity of the evidence and make a decision on the case based on this.

Court decision recognizing property as the personal property of the spouse

Having considered the case and assessed all the evidence, the court must make a decision on the claim to recognize the property of one of the spouses as his personal property. There are three options here:

  1. Full satisfaction of the plaintiff’s claims (if it has been proven that the property is personal property).
  2. Partial satisfaction (if you managed to prove your claims for only part of the things specified in the application).
  3. Refusal to satisfy (if the court found it unlawful to recognize the property as the husband’s personal property).

The dissatisfied party may try to appeal the court’s decision. In this case, the process will not end until the appellate court makes a decision on the case. After applying to the appellate court, you can get a decision on the case recognizing the property as personal property. You can contact the bailiff service with this decision if one of the spouses interferes with the execution of the court decision.

Answers from a lawyer about recognizing property as personal in a divorce

During our marriage, my wife bought an apartment with my money, which I inherited. At the same time, she persuaded me to register the apartment for my mother-in-law. Will the apartment be considered personal or common property? What should you do in such a situation?
I had a house before my marriage, but then it was sent for demolition, and I was paid compensation. We bought an apartment with this money during our marriage. Will it be considered community property in the event of a divorce?
I'm breaking up with my husband. Shortly before marriage, he bought a puppy, which we then raised together. The veterinarian discovered a serious illness in the dog, and we spent significant amounts of money on treating the pet. Is it possible to recognize a dog as joint property and how can I get it to be left to me?

When will property not be considered personal in a divorce?

If the property is not recognized as personal, the other spouse may claim half of this property. Therefore, such recognition is very important. It is best to try to come to an agreement with your husband and finalize the deal, then you will save nerves and money. If this fails, the only option left is to go to court. This is a longer process, during which examinations may be carried out, testimony will be heard, and other evidence will be considered, on which the outcome of the case will depend.

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