In attempts to resolve disputes and conflicts, mistakes are regularly made, because due to the prevailing circumstances, not everyone has legal knowledge. One of the challenges that spouses face in their disputes is mortgage and maternity capital during a divorce.
The recommendations in the article are aimed at giving people an idea of the problem. Here we offer basic and additional information about what spouses can expect if they purchase real estate with a mortgage.
Overview instructions for independent actions will be presented, including links to current legislation of the Russian Federation. For convenience, they are arranged in sections. If necessary, you can resort to professional legal assistance and not waste your energy.
Divorce, mortgage and maternity capital: what the law says
The termination of marriage in Russian legislation is regulated by the Family Code (Articles 16-26). When a decision has been made and action needs to be taken, initial information and instructions can be obtained here.
If the family has living space that the husband and wife bought with a mortgage, its division takes place in the standard manner, as indicated by the law. In fact, everything that was received during the period while the marriage lasted is considered common and is divided equally between the former spouses (Clause 1, Article 39 of the RF IC).
The main exception is the existence of prenuptial agreements or agreements, which may specify other parameters for the divorce. The presence of maternity capital in the mortgage also adds problems.
Dividing such acquisitions becomes much more difficult. First of all, you need to take into account that state financial assistance has a special target orientation (clause 2, article 34 of the RF IC), that is, it is intended for certain things and cannot be used in any other way.
The legislator assigns a special role to this money, and this money will not be divided between husband and wife after a divorce. They are issued as a certificate. Only the holder can dispose of the maternity capital, and it does not matter whether the owner is married or not.
Note! The main purpose of using the certificate is to help families solve their housing problem. It is clear that such an approach will naturally entail a number of mandatory requirements.
Understanding the direction of legislators' thoughts on this matter, the division of mortgage housing purchased using family capital finance is done taking into account the children in the family. The practice of courts of general jurisdiction speaks about this with enviable consistency.
It is not surprising that any judge may not pay much attention to different agreements and marriage agreements if they indicate a different procedure for dividing real estate.
Using maternity capital to pay off the mortgage
There is a clear purpose in the regulatory framework of laws governing the use of mat capital. She says that directing it towards the purchase of an apartment with a mortgage is undoubtedly quite serious financial assistance offered by the state.
The desire to use this certificate to reduce the loan burden is understandable. It happens that such a way out is the only possible one.
Note! It doesn’t matter whether the mortgage was received before or after the issuance of the certificate for maternal capital, it is realistic to always use it, in any case described here.
The law provides for several uses of family capital in the situation described. They all have both pros and cons. Having decided to use the certificate to apply for a mortgage on the living space, spouses in the family usually consider the following options.
An initial fee
A bank decision that is good for the spouses about the potential opportunity to get a mortgage provides a chance to use swear words. capital closing the very first payment on the line of credit.
This is evidenced by subparagraph “a” of paragraph 3 of the Rules for allocating family capital funds to improve housing conditions.
Particular attention is paid to the fact that a mortgage can easily be provided to a husband who is not a certificate holder. Even in this unexpected scenario, maternity capital can be used for a down payment, the main thing is that the marriage is registered.
Loan
It is possible to use such a certificate for payment of a loan provided or, for example, a loan (also a mortgage loan), and the interest calculated by banks on it.
The main and important condition is to transfer this money to purchase your home.
Legislation regulates and protects the rights of young children in any family. They can be native or adopted. The main thing is that they are properly executed, applying the rules of the Family Code of the Russian Federation.
Partial repayment
It should be taken into account that if, at the time of issuing the certificate, there are debts on previously issued loans for the purchase of real estate, money from family capital can easily be used to pay them off.
The law specifically provides this opportunity, maximizing the ways of using maternal family capital. If desired, husband and wife can use this for the benefit of the family.
Since additional parameters for using such finance will seriously help in some difficult life situations.
How are shares distributed for housing purchased with maternity capital?
In an apartment received by a family using money from mat. capital, children's shares are uncompromisingly assigned. They will subsequently belong to the son or daughter, their spouses determine them themselves, and are sure to enshrine them in the agreement made.
It is fundamentally prepared in this situation (Part 4, Article 10 of the Federal Law “On additional measures of state support for families with children”).
This happens this way: in a family, the parents themselves determine the size of the parts of the home for all children and then draw up a notarial obligation.
The portions assigned by the wife and her husband to their children do not always have to be complete. According to the law, they may well be considered in proportion to the money from the maternity capital finances used by the family to purchase their apartment or to purchase a house.
Much depends on the situation, which family chooses the path, and the implementation of responsibilities to determine the part of the home that their child is entitled to. So, after buying an apartment or fully paying off the mortgage debt, you must definitely re-register part of the property to the children.
In an obligation made and executed by a notary, one of two options for transferring property can be indicated:
- Agreement for the donation of a share in an apartment.
- Agreement on determination of shares.
All methods can be used, the main thing is to choose the most convenient one in the case that the spouses are considering.
Note! The notarial obligation is usually made by the mother, as the owner of the apartment. It happens that husband and wife are owners. Then they are both obliged to provide guarantees for the allocation of shares to their children in the future.
After preparing and collecting documents, parents must contact the relevant government agencies - Rosreestr; you can also use the multifunctional center. Where the transfer of rights to real estate for several children in a family is carried out.
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 married couples who were able to come to an agreement among themselves.
Compensation
The ex-husband or wife receives ownership of the entire apartment, but undertakes to pay the second owner, who renounced his rights, monetary compensation corresponding to his share in the valuation of the apartment.
Example : An 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.
Cash compensation of this type 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 purchasing real estate using maternity capital is practically impossible to implement, however, in theory, it remains possible. The apartment is sold and each party receives its share. But immediately after this, the children need to be provided with another living space, in which the number of square meters per child will not be less than in the previous property.
Replacement
This option can be considered as a type of compensation, but in this case, not monetary. If one of the spouses gives up his share in the apartment, then in return he may demand other property. For example, a car, garage or cottage.
In most cases, for such a division, a preliminary assessment of the property is carried out to make it more convenient to determine who, how much and what exactly can demand for the assignment of a share in the apartment.
Isolation in kind
This is the most complex and practically unused option, in which the apartment is not just on paper, but is actually divided into several separate objects, with their own entrances, bathrooms, kitchens and other similar premises. Most residential properties cannot be divided in this way.
In theory, ex-spouses can agree to share the use of 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 acquired and used as a single living space.
How is a mortgage divided in case of divorce with children with maternity capital?
When a family breaks up, nothing can be done. And this is a significant problem in the case under consideration. They suddenly realize that they have created a difficult situation with their choices. And it needs to be solved.
At the same time, the interests of spouses, children and a lot of related factors that arise in this situation are taken into account. At such times, serious conflicts often begin.
Please note that when dividing mortgaged real estate, you need to know and take into account the following points.
Parents' shares
In a disintegrating family, the shares of the former spouses when dividing a mortgaged apartment purchased with maternal capital are initially equal.
Such housing is common with all the ensuing consequences, and is divided in the same way as all joint property, with the exception of the shares allocated to children.
Children's shares
The law determines the procedure for determining the parts that a child is entitled to in this difficult and rather confusing situation.
The shares given by parents to children in the housing received are determined by a notarial obligation, its registration is provided for by law. The legislator did not provide for exceptions on such an important issue.
This obligation of the spouses arises as a result of the application of a certificate for mat capital money after the family has decided to buy a mortgaged home.
If one of the spouses refused the share during registration
When, during a transaction, one of the spouses refuses, for some reason, to register the share in his own name, and does not immediately make claims on it upon the termination of the marriage, such housing logically goes to the second spouse.
But, again, the shares promised to the children by the notary are taken into account. Since mat capital was at one time used to purchase an apartment or a country house.
If the situation suddenly changes, and the rejected spouse has claims, they must be presented in court. This could change the situation dramatically.
By agreement of the parties
If there is an agreement between the spouses on the voluntary division of property in the event of a possible divorce, formalized in writing in the form of an agreement, and the mortgage is not closed at the time of termination of the relationship, there is no other way out except going to court.
Do not forget that the mortgage is drawn up in the form of a loan agreement. At the same time, the bank that provided it will always be an attentive observer, and regularly a participant in credit events and disputes in court.
An agreement between a husband and wife that violates the terms of the loan agreement confirming the obligation with the bank cannot be implemented on the basis of the law. The only option that remains for a disintegrating family is to go to court, although here you should be prepared for a rather long and nervous trial.
Arbitrage practice
Court cases related to the division of property in which funds from maternity capital were invested are particularly complex and require an individual approach.
- If housing was purchased with maternity capital, and one of the spouses renounced his share in favor of the other, despite this, he does not lose the right to receive his part of the property upon divorce.
- The Supreme Court explained its position on the division of an unfinished house, in the case where spouses divorced and divide joint property. Maternity capital funds were invested in the construction, but the housing was not put into operation and therefore it is impossible to allocate shares to children. According to the definition of the Supreme Court, this building cannot be considered only the property of the spouses and requires an equal division among all family members.
If the mortgage is paid off and the apartment is registered in the name of the spouse and children, is it possible to get a share?
Sometimes the former head of the family tries to find out if there is an option and how to get his share during the process of ending the relationship? As a rule, this happens when the mortgage has already been paid off, and the property is registered in the name of children and ex-wife.
Yes, of course this is being done, there is a possibility to solve this problem. It is imperative to pay attention to such important factors as maternity capital and the notarial obligation, which was drawn up when sending certificate money.
The division will be made according to the law, equally between the ex-husband and wife. The part of the housing assigned by law to the son or daughter will remain inviolable and will continue to belong only to him or her. This cannot be changed.
When only the court can help
In cases where agreement cannot be reached and everyone has their own view of the current situation, only the court can help.
A court decision made by law will always be binding. It specifically regulates and analyzes all the claims that have been made, and explains the satisfaction or possible refusal of the claim for division of property.
Let us remind you about the statute of limitations
It is possible to go to court within the limitation period; in case of questions about the division of common housing purchased together, it is three years (Clause 7, Article 38 of the RF IC).
Note! The limitation period begins to count not from the time of termination of the marriage, but from the day when the former spouse learned about the violated rights. Perhaps this is an appeal on how to divide previously acquired property in writing to the ex-spouse. Or ignorance of the fact that the allotted piece of the apartment of one of the family members is not actually registered in his or her name.
When filing a claim, it is worth noting an important nuance. It must contain information that will explain to the judge why the ex-spouse came to court right now and not earlier.
This will give the court a real opportunity to count the statute of limitations from the day the person learned that his rights were violated in such a difficult situation.
State duty amount
The division of an apartment during a divorce, based on the law, is a property dispute. Accordingly, the price of the claim must be calculated taking into account the market value of the disputed housing. Therefore, when filing such a claim, you need to know exactly the price of the housing in which the applicant is claiming.
The value of an apartment is often determined by an inventory assessment. It can be found in the BTI documents. If the necessary information is not available in the BTI, the law allows for the use of the market value of real estate. Moreover, the state plans to completely abandon inventory assessment by 2021.
Note! The market price of housing is always much higher and more serious, so the size of the state duty in this case will be much more impressive. The services of an appraiser will also cost an additional amount. But we can’t do without it.
To quickly and conveniently calculate the state duty, you can use the calculator available on the website. Its size in our case cannot exceed 60,000 rubles.
It is necessary to pay attention that the price of the claim is necessarily calculated from the amount of the value of the share for which the plaintiff makes a claim, and not from the entire cost of the living space.
Here's an example:
The cost of a 2-room apartment is 3 million rubles. In children, 1/4 of the lobe is allocated. The ex-wife owns 2/4. Thus, the value of the disputed share is:
3 million:4*2:2=750,000 rubles, which will be the basis for the calculation.
Briefly about the content of the claim and the court decision
The claim must indicate the reason for the appeal and justify why this is being done right now. State the essence of the issues as thoroughly as possible, avoiding details that are not relevant to the case.
When drawing up a claim, a structure of three blocks is usually used:
- Descriptive.
- Motivational.
- Pleading.
This is done for the convenience of drawing up the application.
The descriptive part sets out the essence of the problem, the reason for its occurrence and other circumstances that may be relevant to the court.
The motivation block contains information about what prompted the plaintiff to take action and go to court. Here the problem is revealed more widely, based on actions, documents and possible witnesses.
In the pleading part, the plaintiff indicates the claims. As a rule, these are several points presented in the most understandable form to avoid double interpretations.
Be sure to attach to the claim documents confirming the rights of the plaintiff, if available. In addition, it is necessary to calculate the amount of claim based on the evidence available to the applicant.
If these documents are missing, it is necessary to explain in the statement of claim why this happened or for what reasons the plaintiff could not provide them along with the claim.
Division of property from family capital in court
When applying to the courts regarding the division of property of spouses purchased using maternity capital funds, it is required to prepare a package of documents:
- statement of claim;
- copy of passport;
- marriage/divorce certificate;
- in case of participation of a representative in the hearings, a notarized power of attorney for the specialist’s work;
- children's birth certificates;
- receipt of payment of state duty;
- title documents for property;
- a document confirming the assessment of the value of the property;
- a certificate of payment for property using funds from a state certificate.
In some cases, it is possible to attach additional documents and information at the request of the government agency.
To divide property purchased with funds from maternity capital in court, the plaintiff should do the following:
- Conduct an assessment of the value of the property. This will be required to determine the amount of state duty to pay when filing a claim and to calculate the share of maternity capital in relation to the total area of housing.
- Prepare a statement of claim and other papers necessary for the court (Article 132 of the Code of Civil Procedure of the Russian Federation).
- Present documents to the court.
- Within 5 days, receive a court ruling on acceptance/non-acceptance of the case for proceedings.
- If the application is accepted by the judge for consideration, a hearing date is set, of which the parties involved are notified. You must be present at this meeting or send a representative.
- After the decision is made, you must wait until it comes into force. This occurs within 1 month from the date of delivery or from the day the defendant receives the verdict in hand if the court hearing was held in absentia.
- After the decision comes into force, it is necessary to register the changed ownership in Rosreestr.
As an example, a sample application for divorce with division of property to the court is presented, which can be done.
