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Family law specialist. Deals with issues of divorce, alimony, division of property and adoption.
DIVISION OF PROPERTY IN DIVORCE
One of the most emotionally charged and difficult parts of the divorce process is the issue of the distribution of property acquired during marriage. This issue often causes misunderstandings and arguments between the spouses, since each of the partners believes that their contribution to the overall well-being has been greater.
Even the question of who has worked more for the common welfare can become a source of conflict and litigation.
If at the initial stage the spouses could not reach an agreement, the resolution of this issue usually falls on the court. The court is obliged to decide how exactly the division of assets will be carried out, focusing on the current legal norms.
In this article, we will consider the main points regarding the distribution of property of spouses acquired during marriage, in accordance with Ukrainian legislation.
How joint property is divided: possible options for resolving the dispute
According to Ukrainian law, there are two main approaches to the distribution of property between former spouses:
- A peaceful resolution of the conflict is the best option when couples are able to agree on the distribution of their assets without the involvement of the court.
- Decision through the court — when the spouses cannot reach an agreement, the issue is resolved in court. The court analyzes the evidence and makes a decision in accordance with the norms of family law.
The choice between these options depends on the ability of both parties to reach a compromise. If a peaceful path is not possible, the court will be the one to ensure a fair distribution.
Property that is not subject to distribution
Not everything that is owned by the spouses is subject to division.
There are certain types of assets that are not taken into account during the distribution:
- Property acquired before marriage. If one of the partners had property before the start of living together, it remains his personal property.
- Gifts and inheritance. If the property was received as a gift or as an inheritance, it is not included in the joint property for division.
- Personal belongings. All items of individual value, such as jewelry, clothing or accessories, remain personal property, even if they were purchased with joint funds.
- Property purchased at their own expense. If one of the spouses acquired assets with their own finances, such things are not subject to distribution.
These categories of property cannot be divided, and the owner retains ownership of them.
How is the distribution of property carried out when there are children?
When spouses have minor children, the court is obliged to take into account their interests when dividing joint property. Problems can arise if you need to determine who the children will stay with after the divorce.
A father or mother who stays with the children can get most of the assets to provide for their needs.
According to the law, the property that the spouses acquired during the marriage is joint property. However, the court may adjust the distribution taking into account the needs of the child. In addition, the court may decide on the payment of child support.
Features of the distribution of real estate
From a theoretical and practical point of view, real estate is usually one of the most difficult stages in the divorce process. If the property can be divided into equal parts (for example, land plots or apartments), this does not cause significant difficulties.
However, when the division of property is physically impossible (for example, a large house or apartment, where it is impossible to allocate a share for each), the court may decide to compensate one of the parties.
If the division of real estate turns out to be difficult, the court may decide to leave the property in joint ownership, determining the procedure for using it. If the spouses cannot independently decide how to distribute the property, the court will make an appropriate decision.
Agreement on the division of property
In addition, the spouses can enter into an agreement on the distribution of assets if an agreement is reached between the partners. This agreement is subject to notarization when it comes to the division of real estate.
Why should you contact a qualified lawyer?
For the correct and safe division of property, it is important to receive professional legal support.
A lawyer will help you correctly draw up the necessary documents, avoid legal mistakes and provide recommendations on all aspects of divorce and asset distribution.
The attorneys of Prikhodko & Partners Law Firm have significant experience in the division of property and divorce and are ready to help you find the best solution.
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Which property is subject to division and which is not?
Common property (shared):
- everything that the spouses acquired during the marriage for joint or personal income;
- real estate: apartment, house, land;
- movable property: cars, appliances, furniture;
- cash deposits, shares, corporate rights;
- income from entrepreneurial activity, wages, bonuses;
- things purchased for family needs (even if one of the spouses actually used it).
Personal property (not shared):
- property acquired before marriage;
- received by inheritance or as a gift (even during marriage);
- property acquired at the personal expense of one of the spouses;
- personal items (clothes, shoes, cosmetics, hygiene products, etc.);
- awards and prizes for personal merit;
- property acquired after the actual termination of marital relations (if proven in court).
Example: if a man bought a car in marriage, but with money from the sale of an apartment that he inherited from his parents, the car can be recognized as his personal property.
How is real estate divided?
The general rule is that each spouse owns 1/2.
The court may depart from the principle of equality of shares if:
- one of the spouses did not invest money/efforts in the family, led an antisocial lifestyle, abused alcohol or gambling;
- minor children remain living with one of the spouses;
- significant personal funds of one of the spouses were used;
- one of the spouses significantly increased the value of the property (for example, he rebuilt the house on his own).
Forms of division of real estate:
- real division (for example, dividing a house into separate apartments);
- determination of shares in the ownership right (the apartment remains in joint ownership, but the shares are documented);
- compensation (property remains alone, the second receives monetary compensation).
Example: if the apartment is small, and it is physically impossible to divide it, the court may award it to one of the spouses, and the other — compensation.
Are loans and debts shared?
Share:
- loans taken during marriage for the needs of the family;
- mortgage for the apartment in which the family lives;
- consumer loans for furniture, household appliances, medical treatment or education of children.
Do not share:
- loans spent on personal needs (gambling, own business without benefit for the family, personal entertainment);
- debts arising as a result of illegal actions of one of the spouses.
Example: if a man took a loan to buy a taxi car and used it as a source of family income, the debt will be divided. If he spent money on personal trips abroad, the debt will remain only with him.
What to do if the property is registered in the name of one of the spouses?
It does not matter, because the fact of acquisition during marriage is important.
- If the property is purchased in marriage, it is automatically considered joint, even if it is registered only for one.
- If the other spouse proves that the property was purchased at his/her own expense or received as an inheritance/gift, then it can be recognized as personal.
Example: an apartment is registered in the name of the wife, but bought during the marriage for joint money — the husband is entitled to half.
Is it possible to divide property without a court?
Yes, and this is the fastest and cheapest option.
Options for out-of-court settlement:
- Notarial agreement on the division of property. The spouses determine who owns what.
- Agreement on the allocation of shares. If the parties agree to co-ownership.
- Marriage contract. It can be concluded both before and during marriage.
Advantages: fast, cheaper, without conflict.
Disadvantage: the consent of both is required.
If there is no agreement, the dispute is resolved by the court.
You may also need:
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Read moreTHE TRANSFER OF LAND BY INHERITANCE
Read moreAPOSTILLE ON THE DECISION OF THE COURT
Read moreEstablishment of guardianship over an incapacitated person
Read moreDivision of foreign assets upon divorce
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