How an apartment purchased with maternity capital is divided during a divorce

What is maternity capital?

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 personalized certificate in the name of the mother who gave birth to or adopted a second, third or next child. And only she, as the recipient of the certificate, can dispose of the capital.

The size of the monetary amount of maternity capital depends on the number of children in the family (for example, for the third child the mother will receive a larger amount than for the second). Capital can be used for one of the purposes provided by law:

• improvement of living conditions;
• payment for the child's education;
• increase in mother's funded pension.

One way or another, mat capital comes to the family. Therefore, in the process of divorce and division of property, spouses ask a reasonable question - how maternity capital is divided during a divorce.

What is a maternity capital certificate and how is it divided?

A maternity certificate is a kind of government support measure aimed at families with children. The procedure for providing this payment is directly regulated by Law No. 256-FZ of December 29, 2006.

Currently, the right to a certificate is available only to those families who have two or more children, whether adopted or their own. Moreover, since the document is usually issued in the name of a woman, therefore, only the mother, as the recipient, will have the right to dispose of it in one of those ways provided for by domestic legislation.

In addition, the issuance of the certificate does not depend on whether she is married or not. Including, a woman does not lose the right to use the received certificate if her marriage was dissolved.

In exceptional cases, the father may also have rights to maternal capital, for example, if he is the sole adoptive parent or in the event of the death of the child’s mother, as well as the deprivation of her parental rights.

Currently, the certificate is equal to the amount of 453,026 rubles, and in 2020 it can be used not only to improve living conditions, but also in 3 more areas, namely:

• to transfer it to the funded part of the pension:
• education;
• for the purchase of goods or services for disabled children for the purpose of their social adaptation.

The certificate cannot be used for other purposes.

What may relate to the common property of spouses and be divided during a divorce is indicated in paragraph 2 of Art. 34 RF IC. In particular, this includes movable and immovable property, income from labor or other activities, as well as government payments. Regarding support measures, the legislator makes a reservation and indicates that they should not have a specific purpose, which means they can be used at their own discretion.

Since the maternal certificate is intended for purposes strictly defined by law, then, accordingly, it will not be common property. This means that this subsidy goes entirely to the spouse in whose name it was issued, which is enshrined in Art. 2 and art. 3 of Law No. 256-FZ.

Thus, during a divorce, maternity capital cannot be divided into shares. Moreover, the division of real estate that was acquired with its help has its own characteristics.

Maternity capital during divorce

Maternity capital (certificate) is issued to a mother who has given birth to her second and subsequent children (adopted children are also treated as such). A specifically established amount, which is subject to annual indexation, is provided as assistance not to children, but to the entire family. Thus, additional funds flow into the social unit. Therefore, in the divorce process, the question arises: is it possible to divide maternity capital when spouses divorce.

Spouse's rights during divorce

In case of divorce, the right to maternity capital is not divided : the ex-husband after the divorce cannot issue a certificate for himself or dispose of half of the funds if a woman has the right. If a man is the owner of the certificate , then his wife also cannot claim half of the capital.

The ex-husband, if he is the father (adoptive parent), may receive the right to a certificate when the woman loses it . This occurs if the owner of the certificate:

• died (declared dead);
• deprived of parental rights;
• committed a deliberate crime against the person of a child;
• canceled the adoption.

If the father is deprived of the right to maternity capital, then it is acquired by children : minors, or adults, but studying full-time.

If a child remains after a divorce from his father

There are cases when the divorce of spouses leads to the fact that the child remains to live with the father, who in such a situation wonders whether I have the right to re-register the maternity capital in my name. Unfortunately, there is nothing to please single fathers in terms of receiving maternity capital. Of course, if the mother was officially deprived of parental rights, then the father has the right to receive funds.

However, if she simply handed over the children to be raised by their father, but retains parental rights, maternal capital will remain with her in the event of a divorce. The only consolation here can only be the fact that if such a mother decides to use targeted funds to purchase or improve real estate, then each of the children will receive their own part in it. However, if she invests money in the funded part of her pension, then it will belong only to her.

Who will get maternity capital after divorce?

The certificate is issued not to a family, but to a specific person. Most often it is written out to the mother. However, the law does not include it in the joint property of the partners. Therefore, the husband has no rights to it. Although there are exceptions, they are as follows:

1. The woman is deprived of her parental rights.
2. Died or recognized as such by a court.
3. Her adoption has been cancelled.
4. The mother was convicted of crimes against children.

The cases described above lead to the fact that maternity capital is issued to the father of two or more children. A man can spend it for the purposes described in the law, including buying a house.

Division of purchased housing using maternity capital

It is necessary to understand how a house or apartment purchased with maternity capital is divided based on the method of its investment. In a divorce, as a rule, each of the former partners claims part of the property received during the marriage. The ambiguity in this matter arises due to the fact that people do not register separate property in advance, while the family still exists.

A house bought with maternity capital is a different matter. The law requires spouses to sign an obligation to divide the square meters in equal shares among all family members. Only if you have such a document certified by a notary, the Pension Fund will allocate funds. However, in practice, the allocation of property can occur:

• immediately if a regular purchase and sale agreement is concluded;
• after a certain time when borrowed funds are used.

But in both cases the law prohibits:

• dividing square meters according to a principle other than equal parts for each family member, including minors;
• infringement of people's rights, with the exception of voluntary renunciation of property.

If an apartment was purchased using a certificate and has already been registered, then the spouses are required to divide it into equal parts. For example, when there are two children in a family, then each owns a quarter of the square meters. Therefore, divorcing people will only need to decide how to exercise their rights:

• whether they will continue to live together in this area;
• they will sell it and buy separate apartments;
• one will pay the other part of it.

At the same time, the spouse with whom the children remain will also receive their share. It is necessary to take into account that the law prohibits the sale of the only home of children, but this issue can be resolved. It will be necessary to prove that the funds received from the sale will be invested in a new apartment.

Mortgage housing

The situation is somewhat different when borrowed funds were used to purchase square meters. After all, a family with debts is getting divorced. And according to the family code, they are also subject to division if there is no agreement. Therefore, in addition to the property, each party will receive obligations to repay the loan.

In this case, the actual property shares per square meters may not be determined. The law requires their allocation only after registration of ownership. And it appears after the loan is repaid. In this case, the existing obligation to divide the living quarters in which maternity capital is invested is taken into account. When divorcing spouses, the previously signed document will be taken into account. That is, everyone will get only one quarter (at least).

None of the adult family members can claim a larger share. All square meters are divided between mom, dad and children in equal parts. But debts are allowed to be divided disproportionately. The law gives preference in such a situation to a voluntary agreement between partners. The state, through the judicial branch of government, intervenes only when the former spouses were unable to reach a consensus.

During the court hearing, everyone’s ability to make payments is examined, and who the children stay with is taken into account. In addition, attention is paid to the health of former partners and children. In a divorce, as a rule, the children remain with the mother. Consequently, most of the debt falls on the man's shoulders. But this obligation does not give him additional rights to housing.

What happens if your partner refuses to pay?

The worst case scenario occurs when regular mortgage payments stop. The banking institution that issued the loan comes into play. It sells residential premises in order to return its funds. The remainder is given to the borrowers (if any is generated). This is extremely unprofitable:

• prices for such housing are below market prices;
• people lose their right to square meters and are left without housing.

Important: before getting a divorce, you must notify the financial institution that issued the loan. If this information is concealed, it has the right to demand urgent repayment of the mortgage.

The best way, if an apartment purchased with maternity capital is pledged, is to draw up an agreement. It must describe how the debt is divided into parts during a divorce. This paper will protect the parties from unnecessary hassle. In addition, it will make the process simpler and clearer.

How is maternity capital divided during a divorce?

As was written above, maternity capital is not subject to division. But you need to understand under what conditions and to whom it will belong in order to correctly divide property during a divorce.

When buying an apartment

According to the law “On State Support Measures for Families with Children” (Part 4, Article 10), if real estate was purchased using maternity capital funds, it must be registered in equal shares for all family members, including children. In this case, it does not matter what part of the amount was reimbursed by the state.

Example : The Kovalev family purchased an apartment using maternity capital. The family has two adults and two children. The property must be registered in equal parts for each family member. The father and mother receive 25% of the apartment, and each of the children receives another 25%.

When registering shares, you should take into account not only the child who became the reason for receiving maternity capital, but also the first son or daughter, since without him receiving government assistance would also be impossible.

Thus, in the event of a divorce, the ex-husband and wife will share only half of the apartment among themselves (25% for each), and not the whole of it. This does not apply to the rest of the property.

When applying for a mortgage on an apartment, the bank usually requires that the additional co-borrower be the spouse of the main borrower. In a divorce, they simply divide the remaining debt into two parts and each pays their share.

Example : The Kovalevs, who have two children, buy an apartment with a mortgage. The first payment is made at the expense of maternity capital. In the event of a divorce, each of them will be required to pay 50% of the loan, regardless of the fact that they actually own only 25% of the property.

Even before the divorce, it is recommended to notify the bank of your plans. Together with the lender's representative, you can find the most optimal way to solve the problem. Otherwise, the financial institution has every right to demand early repayment of the debt.

When carrying out major repairs and/or other construction work aimed at improving housing conditions, maternity capital is calculated in the same way as when used to purchase real estate. As a result, children automatically receive their share and sharply reduce the amount of property that parents can divide among themselves during a divorce.

Section methods

There are 4 main ways to divide real estate acquired using maternity capital

• Replacement. The husband or wife with whom the children remain offers their ex-other half to exchange her share in the apartment for other property. For example, for a garage, car, cottage, household appliances, land, and so on.
• Compensation. This is the actual sale of a share to a second party. For example, a wife may suggest to her husband that he transfer his share in exchange for monetary compensation in an amount corresponding to the cost of this part of the apartment.
• Sale. A rarely used option, especially in situations with maternity capital. In theory, the ex-spouses sell the property and each gets their share. It should be taken into account that when purchasing a new home, the area allocated for each child should not be less than it was in the previous apartment.
• Isolation in kind. The least popular option. It is understood that the spouses continue to live in the same living space, but it is actually divided into several parts, one of which goes to the husband. In practice, it is impossible to divide an apartment in this way, if only because the kitchen, toilet and bathroom in it are usually presented in one copy. Relevant only if several apartments were purchased during marriage, later combined into a single living space.

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Between children

Maternity capital is primarily intended not for parents, but for children. This is implied even in the intended purpose. Property is divided between children in equal parts, regardless of their number.

Example : The Kovalev spouses have two children. They buy an apartment. It is issued to four owners, each of whom (two spouses and two children) receives 25%. If a third child (5th family member) is born, the parents are obliged to redistribute the shares in the real estate, distributing them now into 5 parts. In such a situation, everyone will receive 20%. The same is true at the birth of each subsequent child.

With husband

Maternity capital is not divided between husband and wife. However, it may not belong to the mother, but to the father. This is implied in Federal Law No. 256, Article 3. This situation can only arise in exceptional conditions:

• A mother commits a crime against her child.
• The mother was killed, declared dead or missing.
• The mother was deprived of parental rights or abandoned the child.

Also, the father receives the right to maternity capital in the case when he independently raises more than 1 child, including adopted children. Under such conditions, even if the man subsequently marries and plans to divorce, this money will also not be subject to division.

If the money is spent on training

If during a marriage the spouses used maternity capital to pay for their children’s education, it will not be possible to recover the money for obvious reasons. Firstly, such assistance is intended exclusively for minors. Secondly, this money is not considered joint property.

Division of property purchased with maternity capital

Federal Law of the Russian Federation No. 256 determines for certificate holders what they can spend the amounts received on. You cannot deviate from these rules. In any case, the Pension Fund, which contains funds, will simply not issue them for unauthorized projects. Finance can be spent on:

1. Creation of improved living conditions for the family (purchase of a new home or reconstruction of an old one).
2. Payment for educational services in a secondary or higher educational institution for any of the children.
3. Investments in the pension fund on the mother's account.
4. Payment for goods and/or services that facilitate the adaptation of a child with a disability into society.
5. Registration of monthly cash payments in favor of the family.

It is not necessary that the entire amount should be spent on only one of the presented projects. It is allowed to divide it and spend it in several directions at once. Property is subject to division only if the funds were spent on improving housing. In all other cases, the acquired objects are personal property and not jointly acquired property, which means they cannot be divided.

If maternity capital was used to purchase real estate

As practice shows, most families spend the target payment to acquire new real estate. In this case, if the entire amount or only part of it is spent on purchasing an apartment or house, then the new housing must be registered in equal shares for all family members. For example, if maternity capital was awarded after the birth of the second child, then each of the children, father and mother receive 1/4 of the housing. If the certificate was issued after the birth of the third child, then 1/5.

If the family was issued a certificate after the birth of the second child, but the parents decided to spend maternity capital only after the birth of the third child, then he does not have the right to receive a share in the real estate. The only exception would be a situation in which the parents renounce their shares in his favor.

When dividing property between spouses, the latter do not have rights to their children's shares in real estate. They cannot be divided not by court or by agreement. If, after a divorce, a spouse wants to receive his share in a house purchased from maternity capital, then in this situation there are the following solutions:

1. Selling a house, allocating shares with money. Next, one of the spouses disposes of the received amount of money at his own discretion, and the parent with whom the children live is obliged to buy a new home. The presented option is rarely used, because such transactions must be approved by the guardianship authorities, and they give their consent in exceptional cases. Only if the mother has her own home where the children can move during the transaction.
2. Payment of monetary compensation to the spouse for his share. For example, a wife and children remain the owners of the apartment. The ex-husband’s share becomes the property of the ex-wife, and she, in turn, is obliged to pay the required amount. This will require a home appraisal. If it was shared by 4 people, then, accordingly, the spouse pays 1/4 of the cost of housing.
3. One of the spouses, together with the children, remains to live in the house, and the second receives compensation for the lost share with some property equal in value to the housing.
4. If possible, a separate entrance, bathroom, kitchen is created in the house and divided in kind.
5. They document the ownership of their shares in real estate and continue to use the property jointly.

The law does not prohibit the option in which the spouse cedes his share in the house purchased using maternity capital in 2020 to his wife and children, and its cost is deducted from the amount of alimony that the parent is obliged to pay.

If maternity capital was used for a down payment

The law allows you to use money from maternity capital as a contribution to purchase real estate with a mortgage. The division of property during a divorce in this case can be difficult. If all debts on the loan are paid, then the apartment purchased with a mortgage is divided according to the standard scheme, like any purchased with maternity capital.

Section of the apartment in which maternity capital was used for the down payment.

If the debt still remains, the spouses will first have to pay it off in full before they can divide the property. Until full repayment, the property is pledged to the bank, which means that the owners do not have the right to dispose of it at their own discretion.

Selling such housing in order to pay off the creditor, and dividing the remaining funds will also not be possible. The guardianship and trusteeship authorities will not give consent to the transaction. If it is carried out without applying for approval, then the transaction will subsequently be declared illegal through the court, and the funds from the maternity capital will be returned to the treasury. There are already precedents for such legal proceedings in Russia. Employees of the Prosecutor's Office, guardianship and trusteeship authorities and any of the relatives of those children for whom maternity capital was accrued can apply to the court.

As a rule, when drawing up a loan agreement, the bank includes a clause with the conditions for dividing the unpaid debt in the event of a divorce, because The Family Code establishes that not only common property, but also debts are divided between spouses. For example:

• if there is a small amount remaining to be paid, the credit institution may demand that it be repaid in full immediately;
• the spouses will continue to pay contributions jointly;
• the joint account can be divided into two parts, and then each of the former spouses will pay off their part of the debt independently. And upon completion, the apartment will be divided in equal shares between spouses and children;
• the balance of the debt is transferred to one of the spouses, who subsequently repays it independently. After the end of the loan payments, he becomes the owner of his share and the one that should have belonged to the ex-spouse. And the children get their shares. The spouse who renounces his share in the real estate receives compensation equal to half of the amount paid as loan payments.

All issues related to the division of real estate purchased with a mortgage with an unpaid debt, in this case, should always be resolved between clients, the bank and the guardianship authorities. Even when making a court decision, you will have to rely on the opinions of bank and government officials

If maternity capital was used to repair real estate

Federal Law of the Russian Federation No. 256, unfortunately, does not yet allow funds from maternity capital to be spent on repairing existing housing. They can only be spent on reconstruction. This includes, for example, the addition of a new floor or the construction of an extension. Those. work that changes the configuration of housing and area. If you do not submit a reconstruction project, the Pension Fund will simply not issue money.

Whatever work is carried out with maternal capital on housing, in relation to such a house the principle of equal shares for all family members will continue to apply.

Those. no matter what amount is spent on the reconstruction of housing, it becomes common, even if before this procedure it was the personal property of one of the spouses.

If property was acquired using maternity capital for personal needs, it will not be divided in 2020 during a divorce. If the money was spent on the purchase or reconstruction of housing, then it must be divided in equal proportions among all family members.

How is property acquired with maternal capital divided?

Housing purchased, built (reconstructed) with maternity capital is divided during a divorce, taking into account the norms established by Art. 38— Labor Code of the Russian Federation and Art. 10 of Law No. 256-FZ, the rights of children and spouses to such living space must be taken into account . The division of property can be carried out both during marriage and after divorce. If the spouses cannot come to an agreement, then the property is divided in court : at the request of the husband and wife, it is decided what property goes into the possession of each of them.

Part 1 art. 39 establishes that in the event of a divorce, the shares of the husband and wife in common property are recognized as equal , unless other conditions are established in the contract. If one of the spouses receives property the value of which is more than the part due to him, then he must pay compensation.

During a divorce, the following cannot be divided :

• Individual property of husband and wife.
• Deposits made in the name of minor children of spouses at the expense of common property.
• Things to meet the needs of minors - they are transferred to the parent with whom the children will live.

You can file a lawsuit demanding division of common property within three years from the date of divorce.

Since when purchasing, constructing or restoring a home, shares in it must be allocated to each of the family members, the living space will be divided differently, depending on whether the obligation has been fulfilled or not. If the shares were allocated, then after the divorce the spouses and children will each remain with their own part. If not, then the division of the living space will be carried out in several stages:

1. It is established what part of the housing was purchased with maternity capital.
2. This area equally between parents and children: the smaller the acquired part, the smaller the shares in the housing will be. 1/4 of the cost of an apartment was paid with maternal capital , then the minimum share of each family member will be 1/16 of the living space .
3. The rest of the living space is divided in half between the spouses , unless other conditions are determined by the court or agreement.

If the cost of housing was fully paid by maternity capital , and no shares were allocated, then the entire living space is divided equally .

If the spouses have entered into a marriage contract, then the housing is divided according to it, but shares must be allocated to children and spouses .

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.

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.

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.

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.

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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.

How to divide a mortgaged apartment during a divorce?

If, during a divorce, the mortgage for the purchase of housing, taken out using maternity capital, has not yet been repaid , then it is impossible to allocate shares for the obligation, since the encumbrance has not been removed . As in other cases, the area purchased with the certificate funds is equally distributed between parents and children, and the rest is divided equally between the spouses.

Liabilities for the unpaid loan amount, despite the fact that it was repaid with maternal capital, will be distributed equally between husband and wife , since, according to Part 3 of Art. 39 of the Family Code of the Russian Federation, debts are divided between spouses in proportion to the shares awarded to them . A different distribution may be established by a court decision.

To sell an apartment in which maternity capital has been invested, if the mortgage has not yet been repaid , you need to receive:

• permission from the Guardianship and Trusteeship authorities;
• consent of the credit institution.

What to do if the certificate is used as a down payment when buying a house or apartment

Buy housing with funds. capital can be used in different ways. One method involves making these funds as a down payment on the loan. In this case, the funds can be used in whole or in part.

How is a house bought with maternity capital divided during a divorce?

If the house was purchased with the funds of the certificate, then it is divided taking into account whether the parents fulfilled the obligation to allocate shares or not. As in the general case, if the shares were not distributed, then the part of the house purchased with maternity capital is divided equally between family members , and the remaining area - between the spouses . Parts when dividing a house, as a rule, turn out to be larger than when dividing an apartment, due to the lower cost of such premises.

If the house was fully paid for with the certificate, then its area is divided equally .

If maternity capital is used to repair residential real estate, expand or rebuild

As in previous cases, the main requirement is to register residential real estate as common shared ownership. In this case, the shares of each family member must be equal. The division of real estate is carried out on a general basis.

Maternity capital for a house

The investment of certificate funds is strictly regulated by the current regulatory framework. The fact is that money cannot be received in cash. They are allocated from the Pension Fund budget and sent directly to the account of the organization providing certain services.

In particular, when concluding a transaction to purchase housing, the following happens:

1. The owner of the certificate (he is named) writes an application to the Pension Fund for the disposal of maternal capital.
2. Attached are the purchase documents:
   certificate of ownership;
3. contract of sale;
4. mortgage agreement and others.
5. After checking all the documents for compliance with the spending purposes defined by law, the funds are transferred to the seller or bank.

The main condition for investing maternity capital in a house or apartment is the following: residential meters must be registered as shared ownership of all family members, including unborn ones.

The certificate can be spent on the following ways to improve living conditions:

• acquisition of square meters;
• first mortgage payment;
• loan repayment;
• reconstruction of non-residential premises;
• repair.

Procedure for division upon divorce

Parents can choose one of two ways to divide the apartment: by agreement or through the court.

The first option is the fastest and most profitable. It comes down to the fact that the parties voluntarily sign an agreement. This document must reflect information about what and to what extent each party to the transaction will receive. At the same time, first of all, when drawing up such a document, it is important not to in any way infringe on the property rights of children. For example, according to the terms of the agreement, the husband can renounce his share of the apartment, receiving appropriate compensation for it. The following are attached to the agreement:

• certificate of divorce and birth of children;
• fee payment receipt;
• conclusion on property valuation;
• information that certificate funds were used to purchase an apartment.

The drawn up agreement will be valid only if it is notarized.

The second method is usually used by those citizens who cannot divide property on their own. A statement of claim is sent to the court, which sets out the requirements for the division of property.

To him in order Art. 132 of the Code of Civil Procedure of the Russian Federation, the same documents are attached as in the case of drawing up an agreement, as well as copies of the claim according to the number of participants in the process.

Based on the results of consideration of the claim, the court must decide on an equal division of shares. At the same time, the court will take into account that the apartment was purchased partially at the expense of maternal capital, therefore, only half of it will be divided, since the second part belongs to the children of the plaintiff and defendant, which the parents have no right to claim.

So, a maternity certificate is government assistance for families with children. However, only the parent in whose name it is issued can use the certificate. If the document is used to purchase real estate, then the purchased housing upon dissolution of the marital union will be divided equally among all family members, and if a mortgage is issued using it, debt obligations will fall equally on both co-borrowers.

Judicial division of real estate with capital

When spouses are unable to reach an amicable agreement, one of the parties files a lawsuit. In most cases, the court divides joint property and real estate into two proportionate parts (Article 39 of the RF IC). But children's property is not included in this category. If during the marriage housing was purchased using maternity capital funds, the court will allocate each spouse a smaller share, for example, ¼. The remaining living space will be recognized as the property of the children.

To begin dividing an apartment purchased with the participation of family certificate funds, you must:

• order an assessment of the disputed property;
• collect a package of documents;
• prepare and submit a statement of claim;
• pay the state duty (according to Article 333.19 of the Tax Code of the Russian Federation);
• obtain a court decision and re-register shares.

If the defendant ignores the court decision, the plaintiff has the right to contact the bailiff service. Registration of rights to property can be compulsory through a writ of execution.

The rules for drawing up a statement of claim for the division of property are prescribed in Article 131 of the Code of Civil Procedure of the Russian Federation. The document must contain the name of the judicial authority, details of the plaintiff and defendant, the price of the claim, a description of the position and requirements, a list of applications and other standard details. Along with the application, you must submit documents confirming personal data, real estate valuation reports, marriage/divorce certificates, and birth certificates of children. If necessary, submit a power of attorney for the representative.

Attention! You will need a package of papers confirming the targeted investment of maternal capital. The list of documents is not strictly approved, therefore it changes depending on the essence of the case. The parties to the dispute have the right to attach any papers proving the parties are right.

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.

If the spouses are divorced, can they use maternity capital?

The emergence and termination of the right to maternity capital occurs under the conditions provided for by the Federal Law “On Additional Support Measures...” No. 256 of December 29, 2006. And in this law there is not a word that the divorce of spouses in any way affects the right to use maternity capital.

As mentioned above, the maternity capital certificate is personal. In most cases, it is the mother who receives it, regardless of whether she is married or divorced. Even if the mother’s marriage to the children’s father is dissolved, she still has the right to use maternity capital.

If housing/a share in an apartment is purchased using maternal capital after a divorce, its owners will be the mother and children. What will be the procedure for dividing housing purchased before the divorce, read below.