An attorney shared insights on the algorithm for preparing a lawyer for a divorce property division court process during a professional development event.
The lecturer thoroughly analyzed the algorithm for preparing a lawyer for a divorce property division court process with the participants, focusing on:
- 1. Identifying the extent of property subject to division.
- 2. Clarifying grounds for deviating from equal shares.
- 3. Choosing a method for property division.
- 4. Determining the value of the property.
- 5. Collecting and presenting evidence.
- 6. Recovering attorney fees.
Regarding the preparation of a lawyer for a divorce property division court process, the emphasis is on the following:
1. Identifying the extent of property subject to division
General principles:
- The assumption is that all property acquired during the marriage is jointly owned until proven otherwise.
- If personal funds of one party were used in acquiring (building) property in addition to joint funds, the share in such property corresponds to the contribution made.
When resolving disputes over marital property, it is necessary to establish the extent of jointly acquired property at the time of the cessation of joint household management, clarify the source and time of its acquisition.
Division of specific types of property:
- Ruling of the Supreme Court dated 19.02.2025 in case No. 761/17817/19. The legal regime of privatized property changed, recognizing property acquired through free transfer to one of the spouses, including privatization, as joint property.
- Ruling of the Supreme Court dated 05.03.2025 in case No. 464/2008/21. The property of an individual entrepreneur is considered joint property of the spouses. The use of such property by one of the spouses for business purposes can be considered in determining the method of division.
- Ruling of the Higher Commercial Court dated 10.04.2024 in case No. 760/20948/16-ц. Another spouse, who was a co-owner of funds contributed to the company’s statutory capital, has the right to demand payment of the value of the spouse’s share in the statutory capital. The plaintiff may demand payment of the value of the spouse’s share in the statutory capital determined as of the date of filing the claims. The court presumes that the value of the share in the statutory capital corresponds to the contribution size, unless proven otherwise during the case proceedings.
Division of debts:
- Ruling of the Supreme Court dated 08.11.2023 in case No. 947/31704/19. The law stipulates that the obligation of one spouse is not contingent on their consent to a legal transaction. Even if one spouse was unaware of the transaction, they are considered a party to it if it was made in the family’s interest and the acquired property was used for family purposes.
- Ruling of the Supreme Court dated 04.09.2024 in case No. 754/9261/. In disputes over property division, parties often try to disprove the presumption of joint property through loan agreements or receipts for borrowed money intended for specific property acquisition. Using a loan agreement in this manner disregards that the contractual power pertains to the parties and cannot be considered valid.
Regarding a ‘gift’ confirmed by a receipt:
Ruling of the Supreme Court dated 10.11.2023 in case No. 755/12702/22. The court denied recognizing an apartment as personal property. The woman claimed the residence was purchased with money gifted by her grandfather. He transferred funds to her personal account, from which she paid for the apartment under a sales agreement. The court stated that a gift agreement for an amount exceeding 50 times the non-taxable minimum income (850 UAH) must be notarized. Referring to articles on the nullity of an agreement due to non-compliance with notarial form, the court noted that the transferred amount of 752,560 UAH exceeded the specified limit, thus lacking grounds for notarization.
Receipts are considered:
- If a joint debt is repaid by one party after the cessation of cohabitation, it is considered.
- If a ‘gift’ is formalized by a receipt without notarization, it is not considered.
- If the debt is not repaid, it is not considered (as creditors can make claims against both spouses).
- If the debt is not repaid, but the creditor agrees to amend the agreement, shifting responsibility to one party, it may be considered.
2. Clarifying grounds for deviating from equal shares
According to Article 70 of the Civil Code of Ukraine, the court may deviate from equal shares based on significant circumstances, including:
1) if one spouse did not provide for the family financially,
2) neglected child support,
3) concealed, destroyed, or damaged joint property,
4) misused it to the detriment of the family’s interests,
5) if children (including adult dependents) live with the plaintiff, provided that the alimony they receive is insufficient.
Other possible cases of deviating from equal shares:
- Property acquired during marriage but with personal funds (including funds from the sale of personal property). The financial transactions need to be proven.
- Property acquired before marriage but during cohabitation. Proof of cohabitation and financial contributions is required; the court’s demand is for property division, not establishing the fact.
- Considering debts in property division. It must be proven that funds were used for the family’s benefit.
- Recognition of ownership rights to a share in real estate where joint repairs were made. Expert evaluation of the property’s value before and after repairs is required.
- Division of personal land plot when dividing a jointly built house. Proof that the house was built with joint funds makes it joint property of the spouses.
- Division based on actual property use.
- Division of cash, business assets, compensation recovery for property.
- Agreements in contracts and other cases.
3. Choosing a method for property division
1. Determining shares.
Ruling of the Supreme Court dated 31.08.2023 in case No. 686/9818/22. Dividing property based on ideal shares is an ineffective protection method, requiring a new court review and infringing on the rights of another co-owner who does not use the property.
2. Recovering funds (e.g., as compensation for unused property).
Ruling of the Supreme Court dated 08.08.2023 in case No. 727/3945/21. In cases of multiple real estate objects jointly owned, the court should consider dividing the property without obliging a party to pay compensation.
Ruling of the Supreme Court dated 21.06.2023 in case No. 654/3751/18. When dividing property, the court must consider the financial status of co-owners regarding their ability to pay compensation.
3. Allocating property shares in kind (e.g., dividing a house if there are separate entrances and an expert confirms feasibility).
4. Recovering funds through a recourse claim against a joint debtor (e.g., if a debt is repaid after the marriage ends).
Ruling of the Supreme Court dated 17.01.2024 in case No. 522/17831/20. Resolving property division disputes, especially regarding indivisible items, should not require post-judgment negotiations on the property’s division or compensation payment. If a party entrusts dispute resolution to the court, the conflict must be resolved through a court decision and subsequent execution.
Legal position on amending claims:
Ruling of the Supreme Court dated 14.02.2024 in case No. 752/18272/18. When resolving property division disputes, the court may disagree with the proposed division and choose a different method, considering the interests of the wife, husband, children, and other significant circumstances. Therefore, the court’s choice of property division method, different from the plaintiff’s request, does not exceed the scope of the claims, as the claim is for property division and remains unchanged regardless of the division method.
4. Determining the value of the property
Ruling of the Supreme Court dated 06.11.2024 in case No. 757/43362/15-ц. When deciding on the division of joint property, evaluating the total value of disputed property and each real estate object is crucial. Formally recognizing each spouse’s ownership right to half of each real estate object does not ensure a proper and effective dispute resolution, as the court’s decision should not create uncertainty or require further actions from the parties.
Ruling of the Supreme Court dated 21.05.2024 in case No. 753/19782/21. The value of property subject to division should be based on its actual value at the time of the proceedings. In cases where one spouse alienates property against the other’s will, preventing the determination of its actual value, the market value of similar property at the time of the proceedings should be considered. This approach ensures fair compensation for the loss of joint property rights.
Requirements for an expert report:
1) The expert must confirm awareness of criminal liability.
2) The expert must hold a qualification certificate as a judicial expert.
3) The expert’s report should state readiness for court submission.
The report can be ordered before the court process begins and submitted with the lawsuit.
5. Collecting and presenting evidence
Article 83 of the Civil Procedure Code of Ukraine: The plaintiff must submit evidence with the statement of claim. If not, the court should be informed in writing, specifying:
- The evidence that cannot be submitted;
- The reasons why the evidence cannot be submitted within the specified period;
- The evidence confirming that the person has taken all necessary actions to obtain the evidence.
Article 95 of the Civil Procedure Code of Ukraine:
If a copy of a written evidence is submitted, the court may request the original upon request from a party or on its own initiative. If the original is not provided and doubt is raised about the copy’s authenticity, the court will not consider the evidence.
Resolution of the Supreme Court dated 28.10.2024. Foreign language written evidence must be accompanied by translations into Ukrainian, duly certified. According to the Law of Ukraine on Notaries, a notary certifies the accuracy of document translations if proficient in the languages. If not, a translator can provide the translation, and the notary certifies the signature. Consular offices may also certify translations, as per the Law on Notaries.
6. Recovering attorney fees
- Part 1 of Article 246 of the Civil Procedure Code of Ukraine: If a party cannot provide evidence of incurred legal expenses due to valid reasons before the end of the trial, the court, upon the party’s request before the trial’s end, may decide on legal expenses after the substantive judgment.
- Part 8 of Article 141 of the Civil Procedure Code of Ukraine: Evidence of expenses must be submitted before the end of the trial or within five days after the court’s decision if a relevant request was made before the trial’s end. The article does not mention valid reasons.
There are conflicting Supreme Court positions on whether valid reasons for missing the deadline need to be argued:
- Position 1: The party must justify the valid reasons for not submitting evidence before the end of the trial.
- Position 2: Specific justification for missing the deadline is not required. Only a statement before the end of the trial and evidence submission within 5 days are necessary.
There are also conflicting Supreme Court positions on the contract and fee calculation method:
- Position 1: If the contract lacks a fee calculation method, the court may deny or partially recover expenses.
- Position 2: The fee amount is determined by agreement between the attorney and client, and the court cannot intervene in these legal relations.
Algorithm for recovering legal expenses:
1) Provide an estimated expense calculation in the lawsuit.
2) Mention the 5-day period and reasons for the inability to submit evidence before the trial ends in the lawsuit.
3) Include the contract. Specify the fee calculation method in the contract.
4) Provide a detailed final description of actions taken on behalf of the client with prices for each item.
5) Submit invoices + receipts for payment confirmation + service completion reports.
6) Provide evidence of the application submission (for additional decision-making/evidence attachment) with all attachments to other parties in the case.
There is a practice of reimbursing actually unpaid expenses. In the absence of a document on legal expenses payment, if agreed upon when signing the legal services contract, these expenses are also subject to reimbursement.