During divorces in families with children, many questions may arise regarding the division of maternal capital, especially if some property was acquired with its participation. Maternity capital is not considered as joint property; a woman does not decide whether to share money with her ex-husband or not. This is a measure of state support that is allocated to a child. The certificate for this payment is often issued to the mother, and it turns out that in the event of a divorce, the father has nothing to do with this money.
However, in practice, many disputes and conflicts still arise. Often only an experienced family law lawyer can answer them after analyzing the specific circumstances and studying the documents.
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Is an apartment purchased with maternity capital divided during a divorce?
Maternity capital is a type of state assistance, expressed in monetary terms and issued after the birth of the first or second child in the family. As a rule, these funds can be used to pay for the child’s education, create the most favorable living conditions, and so on.
Expert opinion
Stanislav Evseev
Lawyer. Experience 12 years. Specialization: civil, family, inheritance law.
However, the highest priority when allocating this type of assistance is considered to be improving the quality of life of children. To achieve this goal, maternity capital funds are invested in the purchase of an apartment.
If the housing was purchased using certificate funds, then the children are required to receive a share of such real estate. When registering real estate, the child’s parents give a notarized commitment when purchasing a home. You can immediately make an entry in favor of the children to save money on re-registration of housing.
Find out more about how to allocate shares to children after closing a mortgage with maternal capital.
In some cases, housing obtained with the help of the specified state assistance must be registered only in the name of the children. Thus, during divorce proceedings, the apartment cannot be an integral part of joint property and, as a result, is not subject to division.
The remaining options provide for the division of the apartment between all family members on equal terms.
The rules for dividing this real estate are always the same, regardless of the characteristics of the residential premises.
Subtleties of the procedure
When dividing credit real estate by a married couple with two or more children, it is important to focus not only on the norms of the insurance company and the rules of mortgage lending.
It is necessary to take into account cases from judicial practice, which become precedents and form the basis for decision-making. It is impossible to competently divide mortgaged property with maternal capital if you have two or more children without a competent lawyer. Often banks do not bother much with finding a compromise and confront spouses with a fact - the debt must be repaid in a short time. And it doesn’t matter whether one of the spouses does it or two. It is important for the lending institution to get your money back. This problem is especially common among borrowers who have paid off most of their mortgage.
Plus, some loan agreements stipulate in advance the right of the creditor to demand early repayment of the debt in the event of a divorce. It is logical that when deciding to apply for a mortgage, the spouses do not even think about separating, so they simply do not take this point into account.
In order for a family lawyer to discuss the topic “divorce, mortgage, maternity capital, two minor children”, it is not necessary to go to a consultation. All details can be discussed online for free.
How an apartment purchased with maternity capital is divided during a divorce
If maternity capital funds were used to purchase new residential real estate, then during a divorce, the disputed apartment can be divided.
| No. | Section options | Comments |
| 1 | Sale of residential premises and division of proceeds between all family members based on the principle of equality | This case provides some nuances. For example, the sale of housing for the purchase of which funds from maternity capital were used for the birth of a child is possible only after the approval of the guardianship and trusteeship authorities. And only after they are convinced of the inviolability of the legally protected rights of children during the specified operation. |
| 2 | Payment of compensation for the share of one of the spouses | If a husband and wife decide to refuse the possibility of selling an apartment, then in this case one of the spouses has the right to receive compensation in the form of other property commensurate with the latter’s share of the divisible apartment, for example, a car, furniture, expensive equipment, and so on. The specified compensation can also be expressed in monetary terms. |
| 3 | Allocation of shares of disputed housing in kind, that is, division of an apartment into two | This section is practically impossible due to the fact that in order to carry out this procedure, newly created premises must have separate entrances, bathrooms, kitchens and other similar premises. In most cases, dividing apartments in this manner is not feasible. The most likely opportunity for implementing this method is the division of residential real estate, which previously consisted of two apartments and has all the prerequisites for compliance with the building rules and regulations established by law during its actual division. |
Judicial procedure for invalidating a transaction
You should not try to deceive the state by completing a housing purchase and sale transaction without the obligatory allocation of shares, simply by agreeing with the bank. Even if the fraud can be pulled off, it will not be possible to submit supporting documents to the Pension Fund of the Russian Federation . After all, only after complete removal of encumbrances can you turn to a notary for the division of living space between all interested parties.
Sooner or later the deception will be revealed, and the swindlers will have a hard time. The court recognizes the transaction as void. The maternity certificate will also be cancelled, and the spouses will have to return the funds spent on it in full to the federal budget.
Therefore, selling an apartment with a mortgage with maternity capital during a divorce is a procedure that is almost impossible to carry out. The guardianship authorities will not give the go-ahead. After all, in return, housing must be purchased that is not inferior in technical and other characteristics to the one sold. It will also not be possible to voluntarily give up the share, because The responsibility to pay debts lies with both spouses. Divorce will not be a reason for revising the established rules.
Therefore, it is possible to think about dividing an apartment in a mortgage with maternity capital during a divorce only after repaying the debt and allocating shares to each child.
How to divide an apartment purchased with maternity capital during a divorce
The most appropriate and appropriate way to divide residential property during divorce proceedings is to enter into a voluntary agreement between the spouses.
Important! According to practice, this document reflects the fact that common children remain in the care of the spouse. While the husband is preparing a donation agreement for his part of the apartment for the common children, receiving in return other commensurate property, for example, a garage.
In addition, the agreement may stipulate the husband’s ability to transfer his share of the disputed real estate, in exchange for release from the obligation to pay alimony.
Both versions of the agreement must be drawn up in writing and subsequently sent to the judicial authorities.
Once the document has been reviewed for compliance with the rights of minors, subsequent division of property will be carried out in accordance with the provisions of the specified agreement.
If the conclusion of a voluntary agreement due to certain circumstances is impossible, the division of the disputed housing is carried out through judicial proceedings.
In any case, division of children's shares is not permitted. The only thing that can be done with them is to sell them in agreement with the guardianship and trusteeship authorities or exchange them for equivalent or better real estate residential property.
At the same time, the division of an apartment that was purchased with a mortgage, but part of it or the full amount was closed with the help of maternity capital, also has its own characteristics.
Cases of appeal to the courts
Conducting transactions with residential real estate where minor children are involved is quite difficult, especially during divorce proceedings. Things are doubly more complicated when it comes to mortgages using maternity capital during a divorce. Dividing an apartment or house involves a number of difficulties. This is due, first of all, to the mandatory allocation of shares to each child, as described above.
But there are other pitfalls. For example, one of the parents refuses to fulfill the obligation to allocate shares to the children. Then the second interested party will have to apply to a court of general jurisdiction with an application for the forced determination of shares between the former spouses and children.
Another case is when the property of one of the former spouses is seized (when dividing bills to pay the mortgage). Then it is necessary to establish the reasons why it is impossible to allocate shares. This can only be done in court, as well as the seizure of shares can be lifted.
Judicial practice on divorce in the case of a mortgage with maternity capital shows 2 options for the development of events:
- the draft dodger will fully pay the overdue debt with fines as determined by the court;
- the legal authority will deprive the defendant of having a share in the housing.
You can get information and legal advice about divorce and mortgages with maternity capital on forums where real stories from the lives of citizens are presented.
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Author:
Mortgage specialist Maria Yurievna Sokhan
Publication dateDecember 10, 2019December 11, 2019
Voluntary section
This option involves concluding an agreement by agreement between husband and wife.
According to it, the latter determine the methods and procedure for dividing a jointly acquired apartment obtained with the help of maternity capital.
Depending on the requirements and wishes of each spouse, this document may contain signs of the unequal nature of the division.
Procedure
In order to divide property through a voluntary agreement, a husband and wife must adhere to the following algorithm of actions:
- The parties to the transaction determine the list of property, including housing, which will be subject to further division.
- The spouses negotiate the procedure for dividing the disputed apartment, as well as the size of the shares going to each of them. In some cases, compensation may be established for part of the real estate owned by one of the members of the couple.
- Direct drafting of a text version of the agreement.
- Certification of the document by a notary, as well as payment of the state fee.
- Re-registration of property rights to a divisible apartment in accordance with the conditions specified in the transaction.
Documentation
In order to carry out the procedure of notarization of an agreement on the division of property, the notary must provide passports or other identifying documents of the spouses.
In some cases, it may be necessary to request a home value assessment report.
Due to the fact that maternity capital funds were used to purchase the apartment, the notary officer will additionally need to submit documents confirming the use of the agreed state assistance in accordance with its intended purpose.
Sample list:
- passports of spouses;
- children's birth certificates;
- documents for the apartment;
- obligation to partition;
- text of the agreement;
- receipt of payment of the registration fee (when submitting the registration agreement).
Price
According to Art. 333.24 of the Tax Code of the Russian Federation, the amount of the state fee charged for notarization of an agreement is 0.5% of the transaction amount.
At the same time, this tax has certain restrictions, namely, from 300 to 20,000 rubles.
Together with these spouses, you will have to incur additional costs for notary services. And also for carrying out the procedure for re-registration of property rights to newly created shares of the disputed real estate.
The fee for re-registration of property rights in Rosreestr for each spouse will be 2,000 rubles.
The procedure for processing housing transactions after repaying a mortgage with the participation of matkapital
There are cases when spouses decided to divorce after the removal of encumbrances on the living space, but the premises were purchased, among other things, with the participation of a certificate. In this case, the scheme for registering real estate transactions differs from the actions when the mortgage was divided during a divorce from maternity capital.
The apartment or house became the full possession of the residents, and the encumbrances were removed. It's time to allocate shares, without which it is impossible to carry out further transactions with the housing stock. The algorithm of actions prescribes mandatory contact with a notary office. The procedure for allocating shares includes the following steps:
- allocation of shares to spouses with mandatory registration in Rosreestr;
- a second visit to the notary to allocate shares to each child.
IMPORTANT! No more than 6 months should pass from the moment the encumbrances are removed until the shares are allocated to the children. The rule is the same for both married couples and those who have gone through divorce proceedings.
The allocation of shares is not required if at the initial stage of purchasing residential real estate they were allocated to all family members. This is practiced when making a down payment using subsidized funds. Consequently, there is no need to visit a notary’s office, and it is enough to take to the registration chamber documents confirming the complete closure of the mortgage debt (mortgage note and a certificate from the bank about the absence of debt).
It is worth noting that the share is a minimum of square meters per person. The numbers vary in each region. The average for Russia is 18 sq.m.
Recommended article: Military mortgage and maternity capital
Trial
This option is an alternative to concluding an agreement. It is used if the husband and wife could not find common ground in the survey of the residential real estate section.
According to practice, the court makes a decision to divide the disputed apartment in equal shares between the spouses.
Taking into account the fact that maternity capital funds were used to purchase such real estate, division can only be made in relation to parental shares. Since spouses cannot claim the shares of children.
Procedure
In order to effect a legal division, a husband and wife must take the following steps:
- Conduct an assessment of the property subject to division, which includes the disputed apartment.
- Prepare all the necessary documentation for applying to the judicial authorities, as well as draw up a statement of claim.
- Pay the state fee and send the claim to court.
- Take part in the consideration of the claim based on the essence of the stated requirements and wait for the court to make an appropriate decision.
- Take all necessary actions to comply with the orders reflected in the court decision. If one of the spouses evades fulfillment of these requirements, the interested party has the right to suppress these actions by contacting the executive service authorities.
In the future, after receiving a court decision, the parties to the dispute will have to register the disputed housing again, in the shares determined by the court. Registration is also possible forcibly through a writ of execution.
Statement of claim
This document must be drawn up in accordance with the requirements of Art. 131 of the Code of Civil Procedure of the Russian Federation and must contain the following information:
- name of the judicial authority;
- personal data of the plaintiff and defendants such as full name, residential address, contacts;
- price of the statement of claim;
- the circumstances that served as the reason for going to court, information about the pre-trial settlement of the dispute, as well as the procedure for the use of disputed property by spouses in force at the time of consideration of the claim;
- the plaintiff’s position regarding the fair division of residential real estate, confirmed by the norms of current legislation;
- evidence and arguments in defense of claims;
- a formulated demand for division;
- list of attached documents;
- signature and date of preparation.
Sample statement of claim for division of an apartment purchased with maternity capital
In this case, it is difficult to provide a universal template, so you can use the basic template of a claim for division of property. In any case, it is better to enlist the support of an experienced lawyer before going to court.
Documentation
In order for the statement of claim not to be sent for revision, the following package of documents must be attached to it:
- copies of passports of the parties to the case;
- copies of claims for all participants in the process;
- confirmation of payment of state duty;
- certificate of divorce;
- documents confirming the use of maternity capital funds for their intended purpose;
- child's birth certificate;
- report on the estimated value of the disputed apartment;
- other documents that are essential for a full and comprehensive consideration of the case on its merits.
Documents are provided in copies, but the originals must be brought to court in case they need to be shown to the judge.
Price
Taking into account the fact that this category of claims is of a property nature, the applicant must pay the state fee.
According to Art. 333.19 of the Tax Code of the Russian Federation, the amount of the state duty is calculated based on the total amount of the claim price.
The amount of this tax cannot be less than 400 rubles or more than 60,000 rubles.
Is the maternity capital itself divided?
If, before the divorce, citizens did not exercise their right to maternity capital, then they still have a certificate issued in the name of their mother. During a divorce, the document remains with the woman, since she is its owner. In the future, the money may be used to increase her pension, purchase rehabilitation equipment for a disabled child, or purchase housing.
The division of this amount is not allowed. A man will be able to claim maternity capital only after the death of his mother or deprivation of her parental rights. In this case, the woman loses the right to government assistance, so the certificate is issued to the father of the children. The same applies to a situation where the mother has committed any crime against her offspring.
Is maternity capital considered jointly acquired property?
According to the law, maternity capital is not the joint property of spouses. Therefore, after a divorce from her husband, this amount is not divided. She remains at the disposal of her mother or father. The husband has the right to maternity capital if he was initially involved in obtaining the certificate , since the woman has lost her right to state support.
In the event of a divorce, only the apartment for the purchase of which the maternal capital was allocated can be divided, but additional funds from the general budget of citizens were used. Therefore, the man has the right to some share in this property.
It’s also useful to read: Is maternity capital given for twins?
