The division of property is one of the most complex cases in the field of family law. As a rule, a claim for the division of property is filed in the presence of property that has a high value: apartments, houses, cars, shares in organizations, etc.
Both movable and immovable property acquired by the spouses during the marriage can be divided.
The division of property is possible both during the marriage and after its dissolution. In the absence of a dispute, the spouses can divide the property voluntarily – in this case, an agreement on the division of property is concluded. This agreement can be notarized but is not required.
If the spouses cannot divide the property amicably, the division is carried out by a court.
After the dissolution of the marriage, the General Statute of limitations applies to claims for the division of property – three years. The Statute of limitations begins from the moment when the person found out (should have found out) about the violation of their right. Therefore, the Statute of limitations should be calculated not from the moment of termination of the marriage, but from the day when the spouse learned (should have learned) about the violation of their right to property. It is a very common misconception that the term for the division of property is 3 years after the divorce.
First of all, it is necessary to determine the specific property to be divided.
There are two types of marital property regimes:
In Ukraine, the legal regime is more widespread, since the institution of a marriage contract in our country is not very widespread yet.
If a prenuptial agreement has not been concluded between the spouses, then the legal regime of their property applies. This means that everything acquired by the spouses during the marriage is their joint property.
At the same time, almost everything that the spouses received during a marriage is common: movable and immovable things, securities, shares, deposits, shares in the capital of organizations and any other property acquired by the spouses during the marriage, regardless of whether it was purchased in the name of one of the spouses, or the name of whom or by whom the money was deposited.
But it should also be remembered that not all the property of former spouses is subject to division. Thus the following types of common property are not included in the list:
- personal property of each of the spouses – that which belonged to them before marriage or acquired even during the marriage, but under gratuitous transactions, for example, accepted as a gift, received in the order of inheritance, etc.;
- property acquired in compensatory transactions during marriage considered joint property of spouses, regardless of whose name it is purchased and whose income is purchased, and regardless of who is what during the marriage worked and what work was carried out (except when one spouse did not receive incomes for the disrespectful reason, if this fact will determine the court or if the court finds it possible not to consider the marital joint property, if the spouses, although the marriage is not terminated, ceased to support marriage);
- personal items (clothing, shoes, etc.), except for jewelry and luxury items (Antiques, expensive watches, services, etc.);
- the exclusive right to the result of intellectual activity belongs to the author of such a result, but the remuneration received during the marriage under this exclusive right is subject to inclusion in the property of the former spouses, subject to division;
- items purchased solely to meet the needs of minor children (clothing, shoes, school and sports supplies, musical instruments, children’s library, etc.) are not subject to division and are transferred without compensation to the spouse with whom the children live.
The court may recognize the property acquired by each of the spouses during their separation at the end of family relations as the property of each of them.
Deposits made by spouses at the expense of the common property of the spouses in the name of their common minor children are considered to belong to these children and are not taken into account when dividing the common property of the spouses.
When dividing the common property of the spouses and determining the shares in this property, the shares of the spouses are recognized as equal, unless otherwise provided by the contract between the spouses.
The common debts of the spouses when dividing the common property of the spouses are distributed among the spouses in proportion to the shares awarded to them.
- Property acquired in compensatory transactions during marriage considered joint property of spouses, regardless of whose name it is purchased and whose income is purchased, and regardless of who is what during the marriage worked and what work was carried out (except when one spouse did not receive incomes for the disrespectful reason, if this fact will determine the court or if the court finds it possible not to consider the marital joint property, if the spouses, although the marriage is not terminated, they stopped supporting marriage relations).
- Property acquired before marriage, but registered during the marriage, is considered the property of the spouse who paid for such property before marriage.
- Property received and registered by the spouses under a gratuitous transaction belongs to the spouse for whom it is registered.
- Property owned by the spouse before marriage is his / her individual property.
- The property of each of spouses can be recognized as their joint property, if it is established that during the marriage at the expense of common property of spouses or property of each of spouses or work of one of the spouses was produced attachments, significantly increasing the value of this property (major repairs, reconstruction, alteration, etc.).
Next, you need to determine what share will be due to your spouse.
As a rule, the division of property is made in the ratio of 50 to 50 – the Family code has established that all property that was acquired during the marriage is the property of the spouses, regardless of the contribution of each of them. That is, a housewife who takes care of children and runs a household is entitled to the same share in the division of the former spouses ‘ property as her working husband.
However, there are some exceptions. For example, if one of the spouses did not work for a long time without a good reason or irrationally disposed of jointly acquired property (for example, lost or drank it), his share in the division of property may be reduced.
It is rarely possible to divide property equally. If one of the spouses is transferred property whose value exceeds the share due to him, the other spouse may be awarded a proportionate monetary or other compensation.
There are cases when one of the spouses on the eve of divorce or immediately after it implements common things and appropriates the money for himself. In such cases, it is possible to declare such a transaction invalid, since by law the possession, use, and disposal of the common property of the spouses are carried out by mutual consent of the spouses. Transactions on the disposal of real estate are made only with the notarized consent of the other spouse.
As you can see, the issue of property division is complex, especially when the division of jointly acquired property of spouses is carried out in court. Therefore, the issue of dividing the property of the spouses is best resolved with the help of lawyers.
Our specialists provide the following services for the division of marital property:
- oral and written consultations;
- identification and allocation of marital property acquired during the marriage, property that is the personal property of one spouse;
- representation of clients’ interests in an out-of-court settlement of disputes, up to the development and participation in the signing of an agreement on the division of property with a notary;
- conducting court proceedings on the division of property of spouses “turnkey (collection of documents, application of petitions, court representation, etc.);
- representation of the client’s interests in court proceedings, in all courts;
- preparation of legal documents (statements of claim for the division of property, objections to the claim, petitions, settlement agreements, etc.).
In practice, our company has a lot of cases, including the division of property of foreign citizens. Also, we constantly conduct processes of Ukrainian citizens on the division of their property located abroad.
If you need qualified legal assistance in the case of property division, our specialists are ready to start solving your problems.