Statement of claim for division of property

Statement of claim for division of property

Often, when a family relationship is dissolved, in addition to the problem of collecting alimony for minor children, the issue of dividing the property acquired by the spouses during the period of cohabitation is acute.

To draw up a competent claim, collect the necessary documents and subsequently protect your rights and interests when considering a case in court, it is better to seek help from a lawyer or other lawyer.

The content of the statement of claim must indicate: the list, name and value of property acquired by the spouses during the period of cohabitation, relating to their joint property in accordance with the Family Code of Ukraine.

File a claim for division of marital property during divorce

Before starting to file a claim for division of property, spouses need to determine the warehouse of things and objects that they want to divide. At the same time, they need to pay attention to the fact that, according to the Investigative Committee of Ukraine, part of the property that they used while living together as a family is not subject to division if it:

  • belonged to each of them even before marriage;
  • gifted to someone alone or received by inheritance during the period of cohabitation in marriage;
  • acquired during marriage with money earned by each spouse before the start of married life.

It is also impossible to separate things that belong to children and money deposits made by parents into their bank accounts.

Claim for division of marital property: requirements

Therefore, when filing claims in court, having determined the list of property to be divided, its existence must be documented. If these are real estate and movable things, then the documents confirming the ownership of them will be:

  • certificate of ownership of real estate;
  • gift or sale agreement;
  • will;
  • certificate of inheritance;
  • passport or vehicle insurance policy.

Other things and items must also be confirmed by payment documents, receipts, checks for their value and date of purchase.

The Civil Procedure Code contains certain requirements for the form and content of the statement of claim, which must be observed when drawing it up. It is clear that you will not come to court with an oral demand for the division of property. Therefore, it is natural that the claim is drawn up in writing.

Documents for a claim for division of marital property

In addition, its contents must be on the merits of the case, with specific information about the parties, information regarding the property to be distributed, its price and clearly stated requirements, indicating all the circumstances on which they are based.

Along with the statement of claim for division of property, a list of documents is submitted, which, in accordance with the Civil Procedure Code, includes:

  • payment order, receipt or check confirming payment of the state fee for consideration of the case in court;
  • passport to confirm the identity of the plaintiff;
  • certificate of marriage or divorce;
  • divorce decree;
  • documents for the divided property declared in the statement of claim;
  • documents confirming its value or a certificate of independent valuation of such property (if it was carried out);
  • other documents at the discretion of the applicant or at the request of the judge hearing the case.

Jurisdiction of the statement of claim for division of property during divorce

An important issue when preparing for the trial and filing a claim is the correct determination of all types of jurisdiction of the case on the division of their common property between spouses. The Civil Procedure Code (Civil Procedure Code of Ukraine) determines that such cases are within the jurisdiction of courts of general jurisdiction: justices of the peace consider claims whose price is less, district (city) ones – with a price higher than the specified amount.

According to the territorial jurisdiction of this case, the statement of claim is filed at the place of residence of the defendant, but if a land plot, house, apartment or other residential premises is subject to division, then the claim is filed at the location of this real estate.

We inform you that documents for the division of property can be submitted to the court by both spouses or only one of them during the period of cohabitation in an officially registered relationship, simultaneously with a divorce or after it, taking into account the three-year limitation period.

It is submitted personally by the applicant to the court office or directly to the judge who will conduct the case, or sent by post.

Court fee for a claim for division of property

Issues related to the specifics of payment and the amount of state duty in cases considered by the courts are regulated by the Civil Procedure Code and the Tax Code (PC). Statements of claim to the court without confirmation of payment of the appropriate tax fee will not be accepted for processing.

Often, a claim for division of property may be coupled with other claims in one claim, such as dissolution of a marriage and alimony. Despite the fact that there is only one statement of claim, the state duty is paid for each claim separately. This norm is provided for by the Labor Code.

When filing a claim with the court for the distribution of property subject to assessment, the amount of the tax fee will depend on the price of the filed claim, which, in turn, is determined based on the value of the property being divided.

  • The minimum amount of state duty is limited to the amount for claims with a price of up to.
  • The maximum amount is for exceeding claims.

More details on the calculation scale by which the amount of duty is determined when dividing property subject to assessment can be found in the PC.

Judicial practice: consideration of a claim for division of marital property

Example

Zh.’s spouses are divorcing and dividing property acquired during their family relationship. Among the big things, they have a car, given by the husband to his wife, and an apartment, purchased with a mortgage. At the time of the divorce, the entire loan amount (millions of thousands) was fully repaid.

The vehicle cannot be the subject of a dispute in court, since it is the personal property of the spouses as a result of a gift. But the apartment is the common property of the Zh. spouses and is subject to distribution.

When calculating the amount of state duty, one should proceed from the value of real estate, in this case an apartment. Guided by the article of the Tax Code indicated before the example, when filing a claim of a property nature, subject to assessment, if the value of the claim exceeds one million.

Before filing a claim for division of property in court, the plaintiff independently determines and indicates its price (clause of the Code of Civil Procedure, PC), and accordingly calculates and pays the state duty on it. To reduce the amount of tax collection, many deliberately underestimate the cost of the claim. However, when accepting documents, the judge checks it in accordance with the actual value of the disputed property, and if a discrepancy is established, he determines a different value of the claim.

In cases specified by law, the state duty can be paid additionally (Civil Procedure Code of Ukraine). If during the trial the amount of the claim increases, the process will continue after the plaintiff provides a payment document for additional payment of the missing fee.

In case of overpayment of the state duty, the overpaid amount is returned or offsets the fee for another claim (Civil Procedure Code of Ukraine).

There are cases when, when distributing jointly acquired property in court, the amount of customs duty turns out to be such that the payer is not able to pay it immediately or this amount is completely unaffordable for him. Then the court, based on his property status, has the right to provide such a citizen with benefits – to exempt him from paying state duty or reduce its amount, as well as decide to defer or installment tax payment (Civil Procedure Code, SK).

Statement of claim for division of property in a civil marriage

Currently, so-called civil marriages are becoming increasingly popular. Married couples live together, run a joint household, raise children, but only without officially registering their relationship. Unfortunately, common-law spouses also separate, facing the same issues as legally married spouses.

However, the current legislation does not contain rules for the division of property between cohabitants, since it does not contain the very concept of common property for unregistered marriages. But nevertheless, when such relationships are broken and the issue of dividing the common property acquired by spouses living in a civil marriage comes up on the agenda, the need to contact the judicial authorities with the appropriate statement of claim is simply inevitable if they were unable to reach an agreement in advance.

Based on the explanations of the Plenum of the Supreme Court of Ukraine, when resolving these disputes, the courts should not be guided by the IC, but rather apply the rules of the Civil Code on common property, determining shares in the disputed property. And due to the fact that it is almost impossible to reliably determine the contribution of each spouse to the common property, their shares are often recognized as equal.

Types of claims for division of marital property

In this case, two types of claims can be filed:

  • on recognition of ownership of part of the property;
  • on the recovery of unjust enrichment.

The first type of claim is filed to prove ownership of a share of the disputed property if it is registered in the name of one of the cohabitants. Therefore, along with the application, documents must be provided confirming the date of purchase of a particular item and the investment of personal funds in its purchase.

The second type of claim is filed in cases where it is not possible to prove ownership of common property, but it is possible to confirm the fact of the transfer of funds for its acquisition and demand their recovery.

Counterclaim for division of marital property

A counterclaim is filed by the defendant if he categorically disagrees with the stated demands of the plaintiff in the case of division of jointly acquired property.

It can be presented to the trial court at any stage of the process, but before the court retires to make a judgment. Although it is better to do this immediately after reading the plaintiff’s statement at the stage of preparing the case for trial.

Regardless of the jurisdiction of the counterclaim, it is filed in the same court where the main claim is being heard. However, there are exceptions when the case on the division of spouses’ property is pending before a judge, and the demands of a counterclaim are beyond his jurisdiction. The case is then sent to the district court, which is the highest authority for the judge, for resolution.

Since the counterclaim is essentially an ordinary statement of claim, the requirements for its form and content comply with the legal norms of the Code of Civil Procedure applicable to ordinary claims. Its presentation is also carried out according to the general rules for filing claims. However, in order for the court to accept it for consideration, it is necessary to comply with certain conditions provided for by the Civil Procedure Code:

  • the counterclaim must contradict the claim of the original claim;
  • satisfaction of counterclaims in whole or in part must exclude satisfaction of claims under the main claim;
  • the initial and counterclaims must be interconnected; Their joint consideration will allow the court to more effectively understand the controversial issues in the case, which in turn will lead to a correct and fair decision.

If the judge refuses to accept the counterclaim, the defendant can appeal it or file a separate lawsuit with his own demands for the division of property.

Objection to the claim for division of property

After a claim document is sent to the court with a demand for the division of jointly acquired property, a copy of it is given to the person who will be the defendant in this case for review and preparation for the trial. Thus, the guarantee of his procedural rights provided for by the Civil Procedure Code is observed.

The same code provides for the defendant the opportunity to file an objection to a statement of claim with the requirements of which he does not agree (Civil Procedure Code of Ukraine). This procedural document is drawn up in simple written form and includes arguments about the applicant’s unfounded and illegal demands, supported by evidence, the legislative framework and judicial practice (Civil Procedure Code of Ukraine).

Objections by the defendant may be made in relation to certain property, in his opinion, groundlessly and illegally included by the plaintiff in the general list of objects, things and items for division, as jointly acquired in marriage, as well as at the specified price of the claim.

Lawyer’s responses to the statement of claim for division of property

My wife L. filed a petition in court for divorce and division of property. Everything would be fine, but when I received a copy of the statement of claim, I was very surprised. The requirement for the division of common property contained only one item - a Nissan car.

Firstly, I know for sure that a vehicle is classified as undivided property, and secondly, we have a lot of other property in common ownership, including real estate that is subject to division. For what reason she did not indicate it, I don’t know. I decided to correct the situation and file either an objection to his statement of claim or a counterclaim.

Tell me which of the two options will be more effective in this situation?

Statement of claim to court for division of marital property

When drawing up and submitting a statement of claim to the court for the division of property, it is necessary, first of all, to comply with the general rules regulated by the Code of Civil Procedure for any claims. Among the important points affecting the acceptance of documents and the subsequent course of the trial are the following:

  • determination of the composition of property acquired by spouses during the period of cohabitation in a registered or civil marriage;
  • correct determination of the jurisdiction of this case;
  • calculation and payment of state duty.

If one of the spouses does not agree with the stated requirements for the funds of the other half, the law gives him the opportunity to file a counterclaim or an objection to the initial statement of claim.

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