- Terms of division of property during divorce
- Limitation period for division of marital property
- Time limits for division of property through court
- Law on the timing of division of marital property
- Grounds for resuming the period for consideration of a case on division of property
- Division of marital property during marriage
- Property that is divided during divorce
- Division of property of spouses during divorce
- Documents, statement of claim for division of property through court
- Division of property of former spouses after divorce
- Answers from a lawyer: terms of division of property during divorce
- Terms of division of property upon divorce
Terms of division of property during divorce
The common property of the spouses is all the property acquired by them during marriage. After starting a family, the income of the husband and wife is shared. And it doesn’t matter who is formally the owner. This rule does not apply to things passed as a gift or by inheritance. Property received through the indicated methods (i.e., under a gratuitous agreement) will be the personal property of each spouse.
Property can be divided using the following methods:
- an agreement on the division of property, if both spouses agree to this;
- application to the court for division of property.
Partition can be carried out before marriage, during marriage and after marriage. Spouses jointly decide on the division of property or one of them can go to court.
Limitation period for division of marital property
Citizens who are married or divorced have the right to demand the division of common property within three years. The Supreme Court of Ukraine explained that the limitation period begins to be calculated not from the date of divorce, but precisely from the moment when the person whose rights were violated learned about it or should have known this fact.
It should be borne in mind that the marriage ends on the day when the divorce is recorded in the civil register (in case of divorce with the help of the registry office) or from the moment the court decision enters into legal force (in case of divorce through the court). A violated right means an obstacle to the use of property.
Time limits for division of property through court
Example
Ostapenko A.V. and Ostapenko K.A. were married for 7 years. In 2018, the marriage union was dissolved by court decision. At the beginning of 2020, citizen Ostapenko K.A. who arrived at the dacha, which was acquired during the period of family life, in the certificate of ownership, the owner was indicated as Ostapenko A.V. The ex-wife could not open the door with her keys because the locks had been changed. At this point, Ostapenko K.A. freely use the said property. The right is considered violated from the moment when the specified citizen was unable to use the property. The former man committed an action (changing the lock), which became an obstacle to the use of the dacha. Citizen Ostapenko K.A. went to court for protection of the violated right with a statement of claim for the division of jointly acquired property.
In the example, as in other similar situations, the calculation of the period begins not from the day when the marriage was dissolved by an official body, that is, the court, but from the day when the plaintiff learned about the limitation of his rights (change of locks).
Law on the timing of division of marital property
The Civil Code of Ukraine establishes the provision for calculating the period from the day when the person learned or should have been informed about the violated right. Knowing that a right has been violated is also a reason for calculating the time limit. That is, if one of the spouses should have learned about the event that served as the beginning of the violated right.
Example
One of the spouses sent a letter with acknowledgment of delivery, in which he declared his intention to sell their common property. So, a man sent a letter and received a message about delivery to the addressee, he can assume that the second spouse should have known his actions. If these circumstances exist, the statute of limitations begins not from the moment when the husband or wife personally became convinced of the alienation of property, but from the day the letter was received.
The statute of limitations begins to be calculated from the day when the person learned or should have learned about the violated right. After this, you need to seek his protection. If a person has not taken any action to restore the rights to own and use property within the period of time specified by the legislator, then the statute of limitations can be restored. The grounds on which the court can restore the term must be inextricably linked with the personality of the plaintiff/his state of health.
Grounds for resuming the period for consideration of a case on division of property
Respectable reasons include:
- Health status. This could be hospital treatment, a disease the presence of which can be confirmed by a certificate. The reason according to which the helpless state of the plaintiff deprived him of the opportunity to earlier apply for protection of his rights will also be considered valid.
- Personal circumstances. For example, a business trip, the army, being abroad, in prison, etc.
- Family incidents. Caring for a family member due to illness, etc.
In addition to the listed circumstances, the court may recognize as valid other reasons for which a person was not able to protect his rights with the help of a government agency. It should be borne in mind that the period can only be restored if there are reasons that existed during the entire three-year period or the last six months.
Reinstatement of the missed deadline is accompanied by a statement. The document should describe the reasons why a timely appeal was not possible and support your arguments with documents.
If it is impossible to provide documents yourself, you can file a petition with the court to obtain evidence. The court will decide to restore the statute of limitations if it finds the arguments convincing.
Division of marital property during marriage
Property can be divided both during marriage and after its dissolution. Determining the share is also permissible in a marriage, when each spouse wants to independently dispose of property, without the consent of the second spouse. The initiator of the division of property can also be a creditor, with the aim of foreclosure on the property of the debtor-wife.
- Mutual agreement on the division is accompanied by a written agreement. At the same time, an agreement on the division of property drawn up independently, both with and without a notary certification, will have legal force. In a document, each thing can be divided into parts or it can be determined who owns what.
- If it is not possible to resolve the issue of division of property in marriage peacefully, the parties can apply to the judicial authority for the division of property. Additionally, title documents for the property must be provided. It is also necessary to provide a marriage certificate so that the court can see what property was acquired during the marriage. If there is a dispute about private property, the court makes a decision on the distribution of shares.
At the request of the parties, the court decides which spouse will receive specific property. If the property belonging to one of the spouses exceeds the estimated value of the property that passed to the other party, then the court may award compensation in the form of money or other compensation. The price of the property is described in the submitted application.
- If the parties are in a marital relationship, but live separately, the court recognizes property acquired, albeit in an official marriage, but without family relations as the personal property of each. Such property cannot be divided.
- That property that has not been divided, and that which will be acquired in the future, is considered common property.
Property that is divided during divorce
Jointly acquired property includes: income from labor and/or business activities, pensions, benefits, results of intellectual activity, financial payments to spouses that are not of a social nature (for example, compensation for damage due to loss of ability to work, etc.). Property acquired with the funds of the spouses is also recognized as common – shares, real estate, securities, deposits, any property acquired during marriage.
Property received before marriage, as well as as a result of a gratuitous agreement (donation, inheritance), is not subject to division. This property is the property of the spouse to whom it was gifted or otherwise alienated.
Personal items, such as shoes, clothes and others, are the property of the person who used them. The exceptions are luxury items and jewelry, as well as exclusive rights to the result of intellectual activity.
Division of property of spouses during divorce
Upon divorce, together with a claim for a divorce, you can declare the division of common property. The application must be submitted at the defendant’s place of residence. If the amount of the claim is less, it is filed at the place of residence of the defendant; if it is more than the specified amount, then to the district court, also at the location of the defendant.
As during marriage, division of property can be made by agreement of the parties, if there is no dispute. But divorce is possible only by a state body (registry office) in the absence of minor children and in the presence of mutual consent (the exception is criminal punishment of the second half for a period of more than 3 years, her incapacity or unknown absence).
Documents, statement of claim for division of property through court
In other cases, the court will dissolve the marriage. Only after the decision on divorce has entered into legal force, it is necessary to apply to the registry office for the issuance of a certificate.
Attached to the statement of claim:
- Marriage certificate;
- receipt of payment of state duty;
- a list of jointly acquired property indicating the value;
- title documents for property.
If necessary, depending on the situation, the court may request other documents.
As a rule, the shares of spouses are considered equal. The dispute over the division of property is resolved based on the principle of equality of shares of the spouses. This principle may be violated under specific circumstances. If one of the spouses does not work without a good reason and puts the family in a difficult financial situation, then the principle of equality of particles can be abandoned. That is, the larger portion will be awarded to the conscientious spouses, and the smaller portion will be awarded to the other spouse.
When property is divided, debts are also divided, therefore, with equal distribution, property and debts will be divided equally. In case of deviation from equality, shares and debts will be divided accordingly.
Example
Let’s say that if the court decides to award the house taken on a mortgage to the wife, taking into account that the children remain with her, and the car taken on credit to the husband, then the debts will also be divided. The wife will pay the mortgage, and the man will pay the car loan.
Division of property of former spouses after divorce
Persons have the right to dissolve a marriage without dividing property. The division may take some time to complete. Spouses can also draw up an agreement on the division of property without going to court. If mutual agreement is not reached, legal action will be necessary. Filing a claim will be accompanied by payment of a state fee. The amount of the fee usually depends on the amount of the claim.
It should be borne in mind that the fact of alienation of property to a third party during marriage differs from the transfer of property after divorce, even if the parties do not live together.
- In this case, the agreement on the alienation of property may be declared invalid by a court decision if the man’s consent was absent.
- But if the parties divorce, the property remains in common ownership, but the agreement will be invalidated only if the second party to the agreement is aware that the former spouse did not give consent.
- If the third party should have known that the condition is suitable for applying to the court to declare the agreement invalid.
If the former spouse did not approve the transaction with common property, and the other party to the agreement did not know about it, then he can only, with the help of the court, demand half of the amount received by the second spouse who signed the agreement.
In court, it will be necessary to prove the other party’s awareness of the man’s lack of consent if he declares it. In this case, the burden of proof lies with the plaintiff. The question of the real amount of the transaction will also be difficult, because contracts often indicate an underestimated value due to tax obligations.
Answers from a lawyer: terms of division of property during divorce
Terms of division of property upon divorce
The statute of limitations for division of property is 3 years. Divorce does not depend on the distribution of property; it can be one claim with several claims or two claims. They can be served at different times. After entering into legal force, the court decision is subject to mandatory execution.
Divorce, as a rule, is in any case accompanied by the distribution of property. A separation agreement will simplify this procedure. A court decision, according to the law, comes into force one month after its adoption. This period is set so that the party who does not agree with the court decision has time to file an appeal.
It should be borne in mind that a prenuptial agreement and an agreement on the division of property are completely different documents.
- The agreement can be concluded at any time during the marriage and even after it.
- A prenuptial agreement is only valid during the period of marriage.
Both documents have legal force and determine the fate of the property.