How is maternity capital divided during a divorce of spouses? Is the mother's capital divided during a divorce Maternity capital is divided during a divorce
until the loan is paid off, sell mortgage apartment it won't be easy. Such a transaction will be made by a bank, the price of real estate will be lower than the market price, and the amount of debt will be taken from the proceeds. To independently sell an apartment, you must obtain permission from the bank. In addition, you need to obtain permission from the guardianship authority.
How is maternity capital divided between two children
Paragraph 2 states: The guardian (as well as the parent) is not entitled, without prior permission from the guardianship and guardianship authority, to make, and the trustee - to give consent to transactions for the alienation, including the exchange or donation of the property of the ward, renting it out (lease), in free use or as a pledge, transactions entailing the waiver of the rights belonging to the ward, the division of his property or the allocation of shares from it, as well as any other actions entailing a decrease in the property of the ward.
How to arrange the allocation of a share to children when using maternity capital? Sample share allocation agreement
If you forget or for other reasons do not fulfill it, the share of the child in the parents' apartment will not be determined, you will be held criminally and administratively liable. You will also be required to return all funds of the mother's capital and pay legal costs.
Features of the division of maternity capital after a divorce
- improvement of family living conditions: purchase, repair and reconstruction of a house or apartment, repayment mortgage loan, participation in shared construction or a housing cooperative;
- child's education;
- formation of funded pension for mother or father;
- social rehabilitation of a disabled child.
Please tell me if maternity capital is divided between children (with different fathers) after the death of the mother
3) men who are the sole adopters of the second, third child or subsequent children who have not previously exercised the right to additional measures of state support, if the court decision on adoption has entered into force since January 1, 2007.
How is maternity capital divided during a divorce of spouses
The issuance of maternity capital is one of the measures of state assistance to families with children. Maternity capital is issued in the form of a personal certificate in the name of the mother who gave birth or adopted a second, third or next child. And only she, as the recipient of the certificate, can dispose of the capital.
Is the mother's capital divided during a divorce
- the mother of a second or subsequent child (including an adopted child), who has the citizenship of the Russian Federation;
- father with citizenship of the Russian Federation, who is the sole adopter of the second or subsequent child;
- the father, regardless of his citizenship, if the mother of the children has lost the right to issue a certificate (in case of deprivation of the rights to children, in case of death, and so on);
- minor children or one of them;
- an adult child, if he is under 23 years old, while he is studying full-time at an educational institution.
How is maternity capital divided during a divorce of spouses in 2020
The last two factors are logically interconnected - a crime against one's own son or daughter unequivocally leads to the deprivation of parental rights. But these rights can also be lost for another reason - as a result of a proven immoral and asocial lifestyle, with an incurable severe mental illness, etc.
Obligation to provide a share of housing purchased with maternity capital funds
When the owner of the apartment is one person, or spouses who own joint property, then notarization is not required. The procedure for issuing a division agreement is the same. When the apartment belongs to several owners by the right of equity participation, then in this case the contract is certified by a notary.
How to divide an apartment bought for maternity capital during a divorce
Despite the fact that an apartment purchased on a mortgage using maternity capital must be divided in equal parts between each of the parents and children, in fact, the obligation to pay the loan remains with the parents. In this situation, if the apartment is divided into equal shares, each party is obliged to pay its part of the debt. It is recommended to discuss all possible ways out of this situation with a bank representative before the divorce, otherwise, financial institution has every right to demand early repayment of the debt.
In the usual case, in the absence of children, in the event of a divorce, all property is divided between the spouses into equal shares. They can independently negotiate (conclude a notarized agreement) or go to court, but general system remains unchanged: each receives 50% of everything that was acquired during the marriage. However, if an apartment is purchased using maternity capital, the situation becomes much more complicated, since now children should also participate in the section.
How an apartment bought with maternity capital is divided during a divorce
The law “On measures of state support for families” (part 4, article 10) states that housing purchased with maternity capital must be registered in the common ownership of both parents and children (and all children, and not just those which led to the receipt of money from the state). Each is assigned a share. The problem is that this law does not specify in any way how the share is determined. In some courts, it was decided that the child receives only a share of the amount of maternity capital, in others - that he has the right to a share of the entire apartment.
The final decision was made by the Supreme Court, having considered the complaints of the plaintiffs, who, as a result of decisions of lower instances, lost a significant part of their property. So, it was decided that real estate acquired using mother capital is divided into equal shares between all owners (including children here). Such a measure, unlike previous court decisions, helps protect the rights of the child and is therefore recognized as a priority.
Example: The Kuznetsovs, who have two children, are getting divorced. They bought an apartment in which they lived before the divorce, with the involvement of maternity capital received for the birth of their second child. All real estate is divided into 4 parts, according to the number of family members, and it turns out that spouses can only share half of the apartment among themselves. Each of them receives 1/4 part.
Instructions for dividing an apartment with maternity capital
There are two main options for the division of real estate acquired using maternity capital funds: by agreement and with the help of judicial trial. Both systems are relevant, however, from the point of view of logic, as well as the costs of the procedure, the voluntary division of property is more beneficial. Unfortunately, due to friction between ex-husband and wife, this is not possible in most situations.
Voluntary section
In this case, the spouses agree among themselves on who and to what extent the property will go, as well as any other property acquired during the marriage. In this case, the section may not be equivalent, depending on the agreements reached and the wishes of both parties.
Example: The Kuznetsovs, who have two children and an apartment bought, including at the expense of maternity capital, decide to divorce. Since this is a mutual decision and there were no global conflicts in the family before, they prefer to conclude an agreement on the division of property. The ex-husband, who has other real estate acquired before marriage, is ready to give up his share in the apartment to his ex-wife in exchange for a car, which, although it was purchased during marriage, was driven only by the husband and, in fact, the wife did not need it.
Procedure
- The parties determine the list of property to be divided.
- They agree on who gets what objects.
- Valuate property.
- Make up an agreement.
- Get it certified by a notary.
- Pay the state fee.
- Re-register ownership in accordance with the data specified in the agreement.
Agreement
The main element of any voluntary agreement: the value of the shared objects. This is important for determining the amount of the state fee. There are no special requirements for the further text.
Download a sample agreement on the division of an apartment purchased with maternity capital during a divorceThe documents
The notary only requires passports or other documents proving the identity of the former spouses. In some cases, an assessment report may be requested. In the case of maternity capital, additional documents may be required confirming the intended purpose of the use of public funds and a birth certificate for a second child.
Price
Article 333.24 of the Tax Code of the Russian Federation (subparagraph 5 of paragraph 1) states that the state duty is charged in the amount of 0.5% of the amount of the agreement. Such a payment cannot be less than 300 rubles, but must not exceed 20,000.00 rubles. There are additional costs:
- Notary services (drawing up an agreement, its verification or certification) - about 3-4 thousand rubles.
- Payment to state bodies upon re-registration of property rights - 2 thousand rubles.
Example: An apartment purchased with the use of maternity capital, according to the appraisal report, costs 3 million rubles. Spouses are only entitled to half: 1.5 million. It is this part that can be divided and therefore appears when paying the state fee. 0.5% of 1.5 million = 7,500.00 rubles. Notary services RUB 3,000.00 and re-registration fee RUB 2,000.00. Total: 7500 + 3000 + 2000 = 12,500.00 rubles.
Trial
This is the second and more common option for solving problems with the division of property acquired in marriage. It is resorted to when the spouses cannot agree among themselves. As a rule, the court decides on the division of real estate into equal shares, but in the case of maternity capital, only half of the apartment is divided, since the rest belongs to the children and the ex-husband and wife do not have the right to claim it.
Procedure
- Evaluate the property to be divided.
- Draw up a claim.
- Send him to court.
- Pay the state fee.
- Wait for the court's decision.
- Act in accordance with the decision. If the other party refuses to comply with the requirements of the court, you can contact the enforcement service.
Statement of claim
Features of the preparation of such a document are described in Article 131 of the Code of Civil Procedure of the Russian Federation. Due to the large number of factors and features, it is recommended to use the services of experienced lawyers. The following elements must be included in the claim:
- The name of the court.
- Information about the plaintiff and defendant.
- The price of the claim.
- The essence of the requirement.
- Attached documents.
- Signature and date.
The documents
When filing a claim, you must provide:
- Personal data of the plaintiff and defendant (if any).
- If you plan to use the services of a representative, the necessary data and power of attorney.
- Property appraisal report.
- Marriage and divorce certificate.
- Purpose of maternity capital funds.
- Child's birth certificate.
- Other documents that can prove the correctness of the plaintiff.
The list of documentation is not strictly approved. Each party to the proceedings has the right to present in court those documents that they consider necessary to prove their innocence.
Price
Since claims of this type are related to property, the costs of the procedure for dividing property in this case will be significantly higher than with a voluntary agreement. However, only one person will have to pay. If the plaintiff fails to prove his case, then he will pay the state duty, otherwise, all costs are borne by the defendant.
The amount of payment is regulated by Article 333.19 of the Tax Code of the Russian Federation (paragraph 1). directly related to the estimated value of the property to be divided. The minimum payment is 400 rubles, the maximum is 60 thousand rubles. Importance has a specific amount.
Example: An apartment purchased at the expense of maternity capital costs 3 million rubles. Only half is subject to division - 1.5 million. The amount of the state duty in this case will be 0.5% of the amount, however, it is calculated based on the amount of 500 thousand, 1 million is deducted from it. At the same time, a fixed payment of 13,200 rubles is added. The total expenses will amount to 13200 + 2500 = 15,700.00 rubles.
Section methods
There are 4 main ways to divide an apartment. It should be borne in mind that most of them are relevant for those couples who were able to agree among themselves.
Compensation
The ex-husband or wife receives the apartment in its entirety, but undertakes to pay the second owner, who renounced his rights, monetary compensation corresponding to his share in the assessment of the apartment.
Example: The apartment costs 3 million. Due to the use of maternity capital, only a share of 1.5 million rubles is actually subject to division. Each ex-spouse has rights to 750 thousand. One of them refuses his share, but demands payment of this amount in return.
This type of monetary compensation is subject to personal income tax (Letter of the Federal Tax Service No. BS4-11 / 4624 dated March 15, 2017).
Sale
This option in the case of buying real estate using maternity capital is practically unrealizable, however, in theory, it remains possible. The apartment is for sale, and each party receives its share. But immediately after that, the children need to be provided with another living space in which the number of square meters per 1 child will not be less than in the previous property.
Replacement
This option can be considered as a kind of compensation, but in this case, it is no longer monetary. If one of the spouses cedes his share in the apartment, then in return he may demand other property. For example, a car, a garage or a cottage.
In most cases, for such a section, a property valuation is preliminarily carried out in order to make it more convenient to determine who, how much and what exactly can demand for the assignment of a share in an apartment.
Isolation in nature
This is the most complex and practically unused option, in which the apartment is not just on the documents, but is actually divided into several separate objects, with their own entrances, a bathroom, a kitchen and other similar premises. Most residential properties cannot be subdivided in this way.
In theory, ex-spouses can agree to share a bathroom and kitchen, but in practice, such situations are extremely rare. Such a section can only be relevant if, during the marriage, two adjacent apartments were purchased, used as a single living space.
Section of an apartment bought with a mortgage using maternity capital
Despite the fact that an apartment purchased on a mortgage using maternity capital must be divided in equal parts between each of the parents and children, in fact, the obligations to pay the loan remain exactly on. In this situation, if the apartment is divided into equal shares, each party is obliged to pay its part of the debt. It is recommended that before the divorce, discuss all possible ways out of this situation with a representative of the bank, otherwise, the financial institution has every right to demand early repayment of the debt.
Arbitrage practice
Example: Kazan. Case No. 2-1548/2015. The plaintiff applied to the court with a demand to determine and allocate a share in the apartment acquired with the use of maternity capital. In addition to state support, the remainder of the cost of the apartment was paid through the sale of real estate that previously belonged to the plaintiff (inherited). In connection with the foregoing, from the point of view of the plaintiff, 4/5 of the apartment belongs to her, and only the remainder (1/5 part) is subject to division between the former spouses and children. According to her calculations, it turns out that the defendant owns only 1/20 of the property. The plaintiff also demands that the defendant's share be transferred to her, and in return she is ready to pay monetary compensation corresponding to the value of the share.
The court, guided by Article 34 of the RF IC, decides that the property acquired in marriage at the expense of the general funds of the family is joint property. At the same time, the apartment was purchased, among other things, at the expense of the plaintiff's personal funds received from the sale of real estate received as an inheritance. This does not apply to jointly acquired and therefore the calculation of the plaintiff's share is considered correct. According to Article 252 of the Civil Code of the Russian Federation, it is possible to pay one of the owners of his share in monetary terms, with its simultaneous transfer to the paying person. It is assumed that the defendant must agree to such an operation voluntarily, but it is assumed that the court, in the absence of a clear interest of the defendant in the possession of the said property, has the right to oblige the parties to perform the procedure forcibly. As a result of the consideration, a decision was made in favor of the plaintiff, requiring the defendant to transfer his share to the plaintiff in exchange for payment of monetary compensation corresponding to the value of the real estate share.
Example: Yekaterinburg city. Case No. 2-4963/2014. The plaintiff went to court demanding to determine the share in the apartment for herself, her ex-husband and children. The property was purchased with a mortgage, with a down payment of maternity capital. The plaintiff was unable to negotiate an agreement with the defendant, as the latter avoids communication. She also repays the loan on her own, without the help of the defendant. The representative of the bank is not against the division of property into equal shares, provided that the mortgage of the entire apartment is maintained in full and all parties will repay the loan based on the size of the share received. The defendant did not appear at the meeting and did not provide any comments.
Guided by Articles 34 and 38 of the RF IC, the court recognizes that property acquired in marriage is joint property. At the same time, when using maternity capital funds, shares in real estate must be divided among all family members. In this case, parents and children equally. The plaintiff requires only to legitimize the requirements. The plaintiff does not demand to deprive the defendant of his share due by law. Based on the foregoing, it was decided to satisfy the plaintiff's claims. Decision can be used in government bodies for re-registration of ownership with its division into 4 shares.
The division of an apartment acquired with the use of maternity capital must be made on the basis of an equal share of each family member. In practice, such ideal situations are extremely rare. In case of problems, we offer to discuss controversial issues at free consultation. Based on the results of negotiations, we are ready to offer our services to get out of the situation with maximum benefit.
The fate of maternity capital in a divorce situation worries many. On the one hand, everyone is used to the fact that “jointly acquired - in half”, and some husbands, some out of illiteracy, and some out of a sense of revenge, threaten their wives to sue half of the capital. On the other hand, the name contains the word "maternal", not "father", and the money is intended primarily to meet the basic needs of the younger generation. Is maternity capital divided during a divorce or is it not? Let's try to figure it out.
What is maternity capital?
Maternal (family) capital is a targeted social payment that is due to the mother after the birth or adoption of the second and each subsequent child, and when the third child is born (or taken from the shelter), the amount increases. At the same time, the mother does not actually receive cash or access to a bank account, the payment is made in the form of a certificate of the established form, on which the amount of money is indicated.
You can’t go to the store with him: a certificate for maternity capital is accepted as offset by a banking or other organization only in one of the following cases:
- buying an apartment or house, overhaul existing housing, i.e. improvement living conditions;
- payment for the child's education;
- replenishment of the funded part of the maternity pension.
It is often used either as a down payment when obtaining a mortgage loan, or vice versa - for early repayment of an already taken loan. This is the only case when the funds of the capital can be used immediately, in all situations access to them is open only after the child is 3 years old.
Who gets the mother's capital in the event of a divorce?
The answer to the question of how maternity capital is divided during the divorce of spouses is one - no way. This is a social benefit, which is of a targeted nature, i.e. funds earmarked for certain needs. They cannot be cashed or otherwise used for purposes not provided for by law.
Article 34 of the Family Code of Russia directly states that any social payments, like state material assistance, are excluded from the list of general income and property. The objective reason is that from own actions or inaction of the spouses, the inflow of these funds does not depend in any way. In fact, they are a gift from the state to a specific person and his children. Certificate for maternity capital - nominal.
Therefore, the law says nothing about how divorce affects the fate of mother capital. Even if a divorce has occurred, the already issued certificate continues to be valid. It follows that when dividing the jointly acquired material assets maternity capital cannot be the subject of a dispute as "common" property.
Both the certificate itself and the rights to implement it in any possible way remain with the mother. This is also due to the fact that it was with the mother after the divorce in Russian realities most often minor children remain to live.
Note: in some situations, for good reason, the capital may go to the father, but in the same way - in its entirety.
Difficulty is situations in which mother capital has already been realized, for example, in order to get rid of a mortgage loan or to make a starting fee for such. Any real estate bought with the participation of this money will be considered jointly acquired property, and that's what it will have to be divided.
Husband's rights to a certificate
Under standard conditions, the husband and father of children is deprived of any rights to "mother's" money. Although he is obliged to receive an equal share in the ownership of housing purchased with the participation of mother capital, regardless of whether this social payment served as the first installment or the last. But the law allows for a number of situations where an unrealized certificate can be taken away from the spouse and transferred to the father. All of them are connected with the inability of the mother to raise children. It can be:
- Mother's death.
- Official ( court decision) recognition of her dead or missing.
- Committing a crime against your child.
- Deprivation of parental rights.
The last two factors are logically interconnected - a crime against one's own son or daughter unequivocally leads to the deprivation of parental rights. But these rights can also be lost for another reason - as a result of a proven immoral and asocial lifestyle, with an incurable severe mental illness, etc.
Please note: in Russian law there is no such thing as deprivation of parental rights in general. A mother, like a father, can be deprived of these rights only in relation to a specific child. If there are several children, then it is possible both to preserve the rights of the parent in relation to other children, and to completely lose them - with the wording "in relation to all children."
In order for the mother capital to pass to the father, it is necessary that the mother loses the rights of the parent precisely in relation to the second child. At the same time, two children are transferred to the full provision and upbringing of their father.
If a third child is born in the family, then a separate certificate is issued for him - the funds for several certificates are not summed up. From what man he was born - from a legal spouse or out of wedlock - does not matter. It is enough that in fact this is the third child for a woman.
Therefore, the question that the husbands of many irresponsible women ask lawyers - how to block maternity capital during a divorce - is incorrect in form and content. It is impossible to block, divide, or perform any other operations other than those clearly specified in the law (No. 256-ФЗ “On additional support measures ...” dated December 29, 2006, which determines the nature and scope of mother capital) with this money. It can only be proved that the mother has no right to raise and support children, and only then will she lose the opportunity to receive targeted payments in relation to them.
Division of property purchased with the participation of mother capital
This is one of the most difficult topics in the theory and practice of conducting divorce proceedings. If the maternity capital has not been realized, the mother is alive and has retained her rights to children, then the treasured “crust” remains at her sole disposal, cannot be withdrawn and divided. But if a young family managed to invest this money in common housing, and then suddenly decided to get a divorce, this is the most difficult case.
Note: the thing is that by default it is considered that the husband also invests money in the purchase of housing (as it usually is in practice). That is why it is impossible to leave the former spouse “overboard” when dividing housing.
The certificate was used to purchase an apartment or house
In this case, the legislation says that the ownership of housing purchased with the participation of the “mother's” certificate (even if the purchase was made without a mortgage and other means of lending) is divided equally among all family members. Family refers only to parents and their natural and adopted children. Thus, the minimum number of shares in this case is 4 (¼ for each parent and child, since there are at least two children). If there are three children, each family member gets 1/5 share in the property right.
Maternity capital means the payment of additional financial assistance to families where a second baby was born or adopted. The payment is also provided for subsequent children. Often, after a decision is made to officially dissolve a marriage, maternity capital turns into a bone of contention for both spouses, because each of them is equally entitled to apply for this assistance. Let's look at how to divide maternity capital during a divorce?
The current legislation determines the citizens who are entitled to financial support. First of all, we are talking about women who managed to give birth or a second baby, starting from the first days of January 2007. A father can also claim the payment, as well as a child whose parents have lost their right to assistance.
You can use this money for the following purposes:
- to improve housing conditions, namely the reconstruction or repair of housing, the payment of a mortgage, participation in shared construction;
- for the child to receive an education;
- in the situation of raising a disabled child, namely, his social rehabilitation;
- for the parents' funded pension.
A large number of disputes regarding maternity capital arise in families where the spouses have made a decision. The current legislation does not define capital as jointly acquired property. Hence the impossibility of its separation. Therefore, after a divorce, it remains the property of the spouse for whom the registration procedure was carried out initially.
A number of circumstances affect the disposal of the certificate by the father, the main of which is the initial registration in his name.
In addition to using it, a man has the right to:
- if he independently decided to adopt another baby;
- by a court decision, the mother of the child is assigned the status of missing, as well as in the event of her death;
- the mother committed a crime against the child, thereby depriving herself of parental rights.
With regard to the purchase or construction of housing through, the current legislation gives ownership to all family members. Children are no exception. So, the divorced spouses will have their own share, which everyone has the right to manage independently.
Only on the basis of previously established agreements or a court decision, it is allowed to carry out the division of joint property. Given that children also have the right to a share, without the permission of the guardianship and guardianship authorities, it will not work to sell this housing.
Housing will be at the disposal of the one who, in fact, will remain to live with the children. In a situation where children live with their mother, the father, in payment of alimony, has the right to his housing share in favor of the children.
When divorcing a married couple, consider the following:
- regardless of the wishes of the spouse, after the dissolution of the marriage, the ex-husband, like other family members, has the right to live in this apartment;
- a woman, without the consent of her ex-husband, will not be able to register other persons in the apartment;
- it is not in the power of the court to oblige the father to give up his part, when the maternity capital is not registered for him, then he can only claim housing if his purchase was made before the divorce. In other situations, occurs on children and mother.
Regardless of the fact that housing is purchased simultaneously with a mortgage loan and maternity capital, its official registration should apply to each family member.
Taking into account the impossibility of mortgaging the property of minor children, the owner of the certificate is obliged to sign an obligation, according to which, after the absolute payment of the mortgage, each family member will be allocated a share.
Regarding mortgage repayment, spouses acting as co-borrowers have completely equal obligations to the credit institution. What part will go to each of the parties as a result of the dissolution of the marriage does not matter. But if any of the parties manages to prove that the loan repayment was mainly carried out for his personal money, then he can safely count on more than 1/4 of the housing.
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The state program for the issuance of maternity capital is a measure to improve the well-being of families and stimulate the birth rate. It is represented by the issuance of a certificate in the name of the mother who gave birth to the second, third and subsequent child, or adopted one. However, how is an apartment bought with maternity capital divided during a divorce.
The amount of financial assistance allocated directly depends on the number of children in the family, so with each new addition, a large amount is paid. It can be used for the following purposes:
- to improve the living conditions of the family and the newborn child;
- payment for the child's education in the future;
- to increase the funded part of the mother's pension.
It is worth noting that only these purposes are legal and public money cannot be spent on anything else. However, there are also unpleasant situations like divorce of spouses for certain reasons. What happens to maternity capital in such a situation and how it is divided. You should understand this better and delve into the topic.
Can I split the money received?
This is the very first question that arises in a similar situation - whether maternity capital is divided during a divorce. One way or another, there is a very specific answer here. Based on current legislation, the division can only be carried out if it concerns movable or immovable property acquired together, as well as cash payments.
And here there is an important exception - targeted cash payments in the form of benefits, subsidies from the state. Since the mother capital belongs to this kind of subsidy, one can give a completely unambiguous answer - it is not subject to division between spouses during a divorce.
The certificate, as well as the entire amount indicated in it in the event of a divorce, remains with the one in whose name it was issued. As mentioned earlier, most often it is issued in the name of the mother of the child. But there are exceptions in which the father also has the right to receive it.
Is the mother's capital divided after a divorce?
The law governing the receipt of maternity capital, as well as the termination of the right to receive it, does not say anything about divorce. Also, nothing is said about the fact that divorce in any way affects the right to use in cash that have already been received under this program.
It was already mentioned earlier that the grants are issued in the name of the mother of the child. And here there is no difference - she is currently married or divorced. She has the right to full use of maternity capital even after the marriage is dissolved.
In the event that a dwelling was purchased with maternity capital, it is completely transferred to the use of the mother and children. But this issue should be analyzed in more detail, since the procedure for dividing housing in this case occurs according to several schemes.
Does a husband have the right to maternity capital during a divorce?
If we are talking about maternity capital and divorce, then definitely no. As mentioned earlier, during the dissolution of the marriage and the division of property, the father does not have any right to use the funds of the mother's capital. However, there are a number of exceptions in which the father can still obtain the right to use under the law.
The father acquires the right to use when the mother loses it, and this happens in the following cases:
- committing a crime by a mother against her child;
- mother's death;
- recognition of the mother by the court as missing or dead;
- when she terminated the adoption of a child;
- termination of parental rights, regardless of the reason.
Also, the father has the full right to receive maternity capital in the event that he alone brings up two or more children. However, here we are talking about ex-husband left with children as a result of unforeseen circumstances, including with adopted children. None of these cases has anything to do with divorce.
Measures applied to spouses in case of refusal to pay a mortgage
A particularly frustrating moment is the cessation of regular mortgage payments after a divorce. In such cases, the banking institution that issued the loan comes into play. It has the right to sell the residential premises acquired by the former spouses in their own needs for the return of funds. The balance is given to former clients, if any.
It is obvious how disadvantageous such a situation is:
- mortgage housing prices are much lower than the market average;
- both spouses lose their rights to square meters of housing and are left without it.
Division of property purchased using maternity capital
In the event that at the time of the divorce, the certificate of state subsidies has not been used, it definitely remains with the original owner. But what to do when the divorce occurred after the money had already been spent for its intended purpose?
Usually, options for legal spending of mother's capital imply an improvement in conditions for housing, its acquisition, payment of the first installment when buying an apartment for a mortgage. It can also be participation in shared construction, but how is maternity capital divided when spouses divorce?
How does the section
Basically, with an official divorce followed by the division of jointly acquired property, the following options are provided:
- 4/5 of the apartment or house is allocated to the woman, and the current loan is divided equally among the former spouses;
- a man has the right to sell his own 1/5 share to his ex-wife and continue to repay the loan, indicating the amount received from the sale as a deduction;
- the mother can also exchange her allotted shares for other housing.
In the event that a division of housing occurs, the mother must carry documents proving the fact that housing rights her children were not violated. Consideration of such cases takes place according to the rule of general legal jurisdiction. However, there are cases of dissolution of marriages in an alternative order.
The complexity of the second case lies in the definition of an apartment acquired using maternity capital. A lawsuit may be filed at the initiative of the plaintiff even if the whereabouts of the defendant is currently unknown. With this option, the claim is filed in relation to where the property of the latter, or part of this property, is located.
How to share an apartment bought with maternity capital during a divorce? One way or another, an apartment purchased at the expense of mother capital cannot be the property of only one person. However, this does not change the alternative jurisdiction. An application for divorce can still be filed at the location of a dwelling purchased with public funds. While the dispute exists, the marriage is not subject to dissolution in the registry office.
If maternity capital is used to buy an apartment
According to the current law “On Measures of State Support for Families with Children”, real estate purchased with state aid is issued in an equal share for each family member. This means that if an apartment for a family of four is purchased with partial help from maternity capital, then each family member receives a 1/4 share. Since these shares are distributed in accordance with the current legislation, there can be no redistribution of them.
If the marriage is dissolved, then each spouse can only count on his own share in the jointly acquired property. real estate. To divide it, you will have to personally conclude a written agreement on the division of property and in the future, apply to the judicial authorities to resolve the dispute that has arisen.
There may be several options for this section. For example, a share can be allocated in kind, received in the form of compensation with other property, or cash payment. The only rule here is that the process should not infringe on the rights of children who are owners of their shares. It is for this reason that the sale of housing with the division of proceeds is possible only after obtaining the appropriate permission from the guardianship authority.
Division Features
In order to understand in more detail how an apartment bought with maternity capital during a divorce is divided, one should take into account the way it is invested. As a rule, conditions are created when each of the spouses claims their rights to a part of the property acquired during the marriage. Complexity this issue is the fact that people do not formalize separate property before such a question arises.
Another thing is when a house purchased with the use of a state subsidy acts as real estate. The law here requires the obligation to divide square meters in an equal share for each family member, and the division must be documented. Only with this document, duly certified, Pension Fund allocate funds. However, allocation of ownership is also possible:
- immediately, in the case of the conclusion of an ordinary contract of sale;
- after a period of time for which the borrowed funds are used.
However, in both cases, the following is strictly prohibited by law:
- division of square meters in a different way, leaving equal shares to each member of the family, which is especially true for children, including minors;
- infringement of the rights of each other, in addition, when there is a voluntary renunciation of property.
In the case when the apartment has already been bought and partially paid for by means of a certificate, it is the responsibility of the spouses to divide it into equal parts. As mentioned earlier, if the family already has two children, then they will receive a quarter of the square meters in their property. That is why those who dissolve the marriage should decide how to exercise their rights:
- continue to live together in this living area;
- whether there will be a sale, followed by the purchase of a separate apartment by each spouse;
- one of the partners will pay the other part of it.
Of course, the shares of babies or growing children will go only to the one with whom they stay. The legislation prohibits the sale of the only housing for children. However, this is a solvable issue, since it is only necessary to prove that new real estate will be bought with the proceeds from the sale.
If maternity capital is used for a mortgage
In fact, there is absolutely no difference in the division of real estate purchased with a mortgage with the involvement of maternity capital. After all, almost the same rules apply for it as for acquiring housing in the usual way without a loan. The main rule here is similar - all shares of the property of family members must be completely equal.
The difference is only the process of division of this property, it includes:
- the obligation to pay a mortgage loan, which is divided equally between the former spouses, even if one of them has a smaller share, for example, a mother with two children may have 3/4, and a father 1/4;
- until the loan is repaid, the sale of the apartment is almost impossible.
The whole difficulty lies in the fact that only the bank that issued the loan has the right to conclude a deal here, and the price for such real estate is several times lower than the market price. Also, part of the proceeds will immediately go to pay the debt. To engage in self-sale of such an apartment, you must obtain permission from the creditor bank. In parallel with this, it is necessary to acquire the permission of the guardianship authority.
The nuances of the division of mortgage housing
Various situations with the acquisition of square meters for borrowed funds differ only in the division of debts between former spouses. According to the family code, the debt is also divided, like the property itself, in the event that there is no agreement between the parties. Thus, after the partition, each party also receives obligations to repay the current debt.