- Seizure of property during division during divorce
- Why is it necessary to seize the common property of spouses during a divorce?
- Arrest as a measure to secure a claim for division of common property during divorce
- Time limits for seizure of property during division and divorce of spouses
- Seizure of property during division of property
- Petition for seizure of property during divorce
- Seizure of household items during division of jointly acquired property of spouses
- Arrest of a car during division of property of spouses
- Seizure of property during division of debts in divorce proceedings
- Seizure of property during division of property between spouses
Seizure of property during division during divorce
The seizure of property during distribution is one of the most common security measures aimed at preserving common things from being hidden. It is carried out at the request of the plaintiff, where all things subject to seizure are indicated and provides for a ban on the defendant disposing of, and in some cases owning and using, such disputed property.
When satisfying the petition of the male plaintiff, the court issues him a writ of execution, which he sends to the bailiffs for immediate execution. That is, in turn, they determine the location of the property, draw up an act of description in relation to it, which is used to seize it. The seizure of things subject to registration is carried out by registration authorities on the basis of a bailiff’s order. Such measures are canceled:
- at the initiative of the parties – in case of dispute resolution;
- removed by the court – upon execution of the decision.
Why is it necessary to seize the common property of spouses during a divorce?
According to the Family Code, if the former spouses were unable to agree on the division of jointly acquired property amicably, then this procedure is carried out exclusively through the courts. Quite often, the lack of agreement on this issue is the causal conflict that arose between the spouses. Against this background, unscrupulous parties often try to hide the common property, which will become an obstacle to the execution of a future court decision on division.
The application must include all information about the spouses (names, surnames, addresses, passport details), as well as the grounds for divorce.
In order to avoid such situations, as well as to protect property from concealment and ensure full execution of the court decision, those interested in the fair division of the spouses’ property must petition the court to apply measures to secure the claim (Civil Procedure Code of Ukraine).
The most common measure to ensure the safety of disputed property is the seizure of jointly acquired property that is at the disposal of the defendant or in the custody of other persons (Civil Procedure Code of Ukraine).
Arrest as a measure to secure a claim for division of common property during divorce
Arrest, as a measure to secure a claim for the division of common property, provides for:
- Encumbrance of seized items by restricting the rights of owners to dispose of, own, and in some cases use such items. Sometimes seizure of property may involve the seizure of specific items and their transfer for storage to interested parties or third parties.
- Drawing up an act on the seizure, with a description of the seized items and recording their condition at the time of the procedure.
- Seizure of items subject to registration also provides for recording the encumbrance in the bodies that carry out such registration (State Register, POLICE).
- Prohibition on any transactions with seized property. This avoids the sale, donation of common property or other methods of alienation in order to conceal the division.
- In the event of seizure of funds in bank accounts, this will exclude the possibility of their cashing, transfer and other transactions with money.
Time limits for seizure of property during division and divorce of spouses
The legislation does not provide for any specific time periods during which the seizure of jointly acquired property of spouses will be in effect. However, they can be determined in relative terms, based on the grounds for the cancellation of interim measures. Thus, according to the Code of Civil Procedure, the cancellation of the seizure is permissible at the initiative of the parties to the process or the court itself.
Based on this, the seizure of property may be lifted before the court makes a decision and will remain in effect until the dispute is resolved, until the plaintiff withdraws the claim, the defendant acknowledges the plaintiff’s claims, etc.
If the seizure of common property remains in effect until the court issues a decision, then its effect must remain in effect until the full execution of such decision (Civil Procedure Code of Ukraine). Ideally, the term of seizure of property should not exceed the total of the terms of court proceedings – 2 months (Civil Procedure Code of Ukraine) and the terms of execution of court decisions – 2 months (Law of Ukraine “On Enforcement Proceedings”), i.e. months, which, however, is very rare.
Seizure of property during division of property
The procedure for seizing common property as one of the security measures is implemented exclusively within the framework of the trial by the court itself at the initiative of the plaintiff or other persons participating in the case. To do this, the plaintiff must state the corresponding requirement in the statement of claim or a separate petition. Then the procedure for seizing includes the following stages:
- Consideration of the plaintiff’s claim. If the claim for seizure of common property is stated in the petition, it is considered on the day of its filing (Civil Procedure Code of Ukraine), if with a claim – on the day of acceptance of the claim.
- Issuance of a ruling on seizure. If the plaintiff’s claim is satisfied, the court issues a corresponding ruling on seizure of property indicating the specific items on which it is imposed.
- Issuance of a writ of execution on seizure. According to the Civil Procedure Code, it is issued to the plaintiff immediately after the court has issued a corresponding ruling.
- Submission of a writ of execution to the department (UNIFIED REGISTER OF DEBTORS). The execution of a ruling on securing civil claims is carried out in accordance with the provisions of the Law of Ukraine “On Enforcement Proceedings”, according to which, the writ of execution is submitted to the body (UNIFIED REGISTER OF DEBTORS) at the place of residence of the debtor.
- Execution according to the issued writ of execution. Carried out by the bailiff immediately, without notifying the debtor of voluntary execution. With respect to property subject to registration (real estate, cars, motorcycles), the bailiff issues a ruling on the seizure, which is sent to the registration authorities. With respect to other movable property, according to No., an act of description is drawn up, imposed by seizure.
Petition for seizure of property during divorce
As already mentioned, a motion to seize jointly acquired property may be filed at any stage of the court proceedings on its division before a decision is made, if the plaintiff has concerns that the defendant, by his actions, may complicate or make impossible the execution of the further court decision (for example, he intends to sell or give away the joint property).
The petition is submitted by the plaintiff in the form of a written document executed in free form. Given the importance of the procedure and the possibility of adverse consequences, the petition is considered on the day of its receipt (Civil Procedure Code of Ukraine).
Thus, a petition to seize jointly acquired property must contain:
- information about the pending court proceedings on a specific claim for division of property;
- A preliminary description of the disputed property subject to division, indicating its characteristics, owner and location of the property;
- A description of the circumstances which, in the applicant’s opinion, give grounds to believe that the defendant will commit actions, the consequences of which will complicate or exclude the possibility of executing the court’s decision on the division of marital property;
- A legal justification for the need to impose an arrest as a measure to secure the claim;
- A request for the imposition of an arrest and the use of other measures to secure the claim.
Seizure of household items during division of jointly acquired property of spouses
According to the Code of Civil Procedure, household items (items of ordinary household furnishings and use) are among the things for which recovery under enforcement documents is prohibited, which, in the opinion of some spouses, may exempt such property from seizure during its division. Such property usually includes furniture, lighting fixtures, kitchen utensils, plumbing, bedding and bath accessories, small household appliances, etc.
However, the said provision prohibits the seizure of such property solely for the purpose of foreclosure. Since the requirement to seize common property is set out in a court order, according to the Law of Ukraine “On Enforcement Proceedings”, such seizure is a measure of compulsory execution.
Since the seizure of household items as a measure to secure a claim is not aimed at their recovery, it will be completely legal. The imposition of such seizure is carried out in the general manner, by drawing up an act of seizure by the bailiff.
Please note that in order to seize property, all items to be seized must be listed in detail in the writ of execution (arrest act).
Arrest of a car during division of property of spouses
According to the provisions of the Order of the Ministry of Internal Affairs “On the procedure for registering vehicles”, a car is included in the number of vehicles subject to mandatory registration with the State Traffic Inspectorate. According to the Order, registration is carried out for individuals – owners of vehicles. Based on this, the seizure of cars during the division of property must be carried out by the registering authority of the POLICE.
Thus, the seizure of a jointly acquired car during the division of joint property of spouses is carried out in the general manner specified above – by petition, the issuance of a ruling by the court, the issuance of a writ of execution and its submission to the (UNIFIED REGISTER OF DEBTORS).
The further implementation of the procedure through participation in the arrest of the registration authority is somewhat different from the typical:
- According to the Law of Ukraine “On Enforcement Proceedings”, the seizure of a vehicle carried out by the registration authority is formalized by the bailiff issuing a ruling on the seizure, which is sent to the police on the same day.
- Having received the relevant ruling, the traffic police officers make a note in their electronic register that a specific vehicle has been seized, which will not allow it to be removed from the register and any transactions to be made with respect to it.
- Further, if the court’s ruling requires restricting the right to use a shared vehicle, the bailiff establishes its location in order to draw up a description act and transfer it for safekeeping to the plaintiff or other persons. Until the location of the shared vehicle is determined, it is impossible to draw up such an act.
Seizure of property during division of debts in divorce proceedings
According to the Family Code, the common debts of spouses are distributed between them in proportion to the shares awarded to them during the division of jointly acquired property. Thus, the possibility of dividing common debts is made dependent by the legislator on the procedure for distributing common marital property – without this procedure, the division of debts is possible only by contractual agreement.
Based on this, the division of debts in court can be carried out at the request of one of the divorcing spouses only within the framework of a claim for the division of common property.
The seizure of property in this case will have any procedural meaning only for securing the requirements for the division of property, the satisfaction of which, in turn, will affect the amount of obligations to be fulfilled by each of the divorced spouses. With regard to the requirement for the distribution of common debts, the use of seizure of property as a measure to secure the claim makes no sense.
Please note that the common debts of spouses that can be divided during a divorce, according to the Family Code, are considered to be:
- debts where spouses are debtors simultaneously (joint debts) – co-borrowers under credit obligations, co-purchasers under sales contracts, etc.;
- debts of one of the spouses received by consent or with the surety of the other;
- debts of one of the spouses if the benefits received under this obligation were used as common property.
Seizure of property during division of property between spouses
Seizure of property is the most effective measure to secure a claim in the division of marital property. Its application and, importantly, execution, allows to avoid alienation of the disputed property before the actual resolution of the dispute between the spouses. This allows to ensure the full execution of the court decision on division even before it is issued. Of course, the presence of such a measure in procedural legislation is one of the main guarantees of observance of the property rights of spouses after divorce.
