Division of mortgage with maternity capital during divorce

Is it possible and how to withdraw money? Where can I cash out maternity capital? How to do this before and after the child’s third birthday? Yuri Kapshtyk answers questions about the possibilities of withdrawing funds for family needs .

The maternity capital program has been operating in Russia since 2007, and this year it has undergone changes. Starting from 2020, money is allocated to young families at the birth of the first baby; this amount is 466 thousand rubles. For the birth of the second, they give another 150 thousand, for the third and subsequent ones - the same, for a total of 616 thousand rubles.

Maternity capital is not provided for the birth of every child. This amount is paid to the family once, so if you have already received and used maternity capital before 2020, you will not be able to apply for it again.

The conditions for obtaining a certificate have been simplified. Starting this year, a young mother does not need to submit documents to the Pension Fund of the Russian Federation. Information about the birth of the baby will be sent there by the registry office staff, the certificate will be issued automatically, and the money will be deposited into the woman’s individual account. These funds can be used for strictly established legal purposes:

• improve living conditions;
• pay for the education of children: not only the child at whose birth the payment was made, but also other children in the family;
• provide a disabled child with means of rehabilitation and adaptation.

But is it possible to cash out maternity capital if the family needs money for other purposes?

“There are no legal ways to cash out maternity capital,” notes lawyer Yuri Kapshtyk. “This is not tolerated in any form.”

How to repay a mortgage loan with maternity capital

For everything to work out, you need to prove to the bank and pension fund that you will spend the capital on the mortgage and will not deceive anyone along the way. Everything is not very complicated, but in order not to get confused, let's look at it in detail step by step.

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Documents for loan repayment using maternal capital

If the capital is only enough for part of the loan, agree with the bank on a new payment schedule. Matkapital can shorten the loan repayment period and can reduce the amount of monthly payments. It depends on what is written in the loan agreement. If you have a choice, it is better to write an application to the bank in advance, otherwise the bank itself will choose the repayment option.

Perhaps the husband spent all his maternity capital to pay off the mortgage, after which he divorced his wife. If the apartment is registered in the name of a spouse, then the ex-wife will not be able to claim it. However, if she has nowhere else to live, then, according to the law, the woman retains the right to live in this living space.

The same goes for divorced couples. For example, the ex-husband and wife decided to repay the loan balance using maternity capital, and then divide the home between themselves. However, permission for such an operation will never be approved by the Pension Fund, since a couple that is officially divorced is no longer a family.

Maternity capital and civil marriage

If the mortgage was taken out by the husband before marriage, then maternity capital can be used to repay the loan while already married. In this case, both children of a spouse can be from the first husband - it doesn’t matter. It is only necessary that the marriage be officially registered.

If there is an agreement between the spouses on the 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.

The law provides for several uses of maternal capital in the described situation. 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.

Division of an apartment with a mortgage with capital through the court

In some cases, to divide an apartment purchased with the help of maternal capital, you have to go to court. The reason for such an act is always the same - one of the spouses does not want to fulfill their duties in relation to minor children or their partner.

Let's imagine this situation. One of the spouses, before marriage or during the existence of the family, takes out a mortgage loan for himself personally, making contributions from his own savings. Then, to repay the debt, an amount is taken from the maternity capital (full or only part of it). The borrower believes that the mortgaged apartment in this case belongs to him, as a last resort, with the need to pay monetary compensation. But it turns out that real estate is now the property of a marriage partner and two or three children. In this case, if the borrower refuses to allocate equal shares in the apartment, the second parent must file a claim with the court.

Also, filing a claim may be caused by an unmotivated refusal of the registration authorities to officially formalize the division of real estate shares. Such situations happen when property is seized. But such actions are illegal.

It will not be possible to divide maternity capital during a divorce in 2020. It remains the property of the person for whom the certificate was originally issued. But you can divide the real estate acquired with its help. This is always done in equal shares between family members.

Example No. 1: use of maternity capital

The couple took out a mortgage in 2013 in the amount of 5,000,000 rubles, purchasing a two-room apartment. At this time they already had one child. In 2020, their daughter was born, after which the woman began processing the certificate. At that time, the amount of maternity capital was 453,026 rubles, and the balance of the loan along with interest was 500,000 rubles.

After receiving the certificate, she wrote a statement about her desire to use the money under the program. The funds were transferred to the bank, thanks to which the balance of the mortgage debt amounted to 46,874 rubles. The couple were able to repay the balance of the housing loan in 2 months.

How to obtain maternity capital after obtaining Russian citizenship: step-by-step instructions

After obtaining Russian citizenship, women and men, if there are grounds, can receive a certificate at the territorial division of the Pension Fund at the place of registration. How the registration occurs (step by step):

1. Preparation of documents. This should be done immediately after the birth of the second child and receiving a certificate for it.
2. Contact the Pension Fund. It's better to come by appointment. You can sign up on the official website of the department. During the visit, the Pension Fund employee examines the submitted documents and fills out an application for issuing a certificate. Based on the results, the applicant is given a written notification of acceptance of the application indicating the deadline for completion.
3. Obtaining a certificate. When everything is ready, the applicant will be notified by phone or in writing. You need to come and receive the document, taking with you the previously issued notification of acceptance of documents and your passport.

The period for consideration of the application is 15 days. If necessary, it can be extended to 1 month, but only if employees require additional verification of the information provided.

What documents will a citizen of the Russian Federation need?

When visiting the Pension Fund, you need to take the following documents with you:

Grounds for refusal to receive maternity capital

The pension fund may refuse to issue a certificate if one of the following grounds exists:

• lack of rights to government assistance;
• incorrect execution of the application;
• provision of an incomplete set of documents.

In the last two cases, the problem must be corrected, and the appeal will continue to be considered. The refusal is always received in writing, indicating the reasons; if necessary, it can be appealed through the head of the Pension Fund or in court.

If the mortgage was taken out before marriage

If the housing loan was taken out by the husband before marriage, then during the marriage the housing loan can be repaid with maternal capital. Even if both of the wife’s children are from her first marriage. The main thing for this is to have an officially registered marriage.

It should be noted that in order to be able to spend MSC on improving living conditions, the owner of the living space - in this case the husband - must give a notarized obligation to allocate a share in the apartment to the children. After the encumbrance is lifted, he must fulfill his obligation, otherwise he may be subject to administrative or criminal liability.

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However, the law says nothing about the wife. The husband has every right to allocate shares only to children, and not to his wife. The spent children's capital, which previously belonged to the wife, cannot serve as a basis for recognizing her as the owner of part of the housing.

If the mortgage was taken out by the husband before marriage, then maternity capital can be used to repay the loan while already married. In this case, both children of a spouse can be from the first husband - it doesn’t matter. It is only necessary that the marriage be officially registered.

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An important point is that in this case, maternity capital can be used to pay off the mortgage if the spouse, who is the owner of the living space, notarizes the obligation to provide the children with their share in the apartment. After the encumbrances on the immovable property are removed, he will have to fulfill the obligations. In case of violation, administrative or criminal liability will occur.

As for the wife, she is not mentioned in any way in the law. This means that the husband is obliged to allocate part of the housing only to the children, and not to his ex-wife. That is, maternity capital, fully used to pay the mortgage, cannot be a valid basis for recognizing the spouse as the owner of part of the apartment.

Example No. 2: obtaining maternity capital after obtaining Russian citizenship

A man and a woman moved to the Russian Federation in 2010. First they issued a temporary residence permit, then a residence permit. After several years, they became eligible for Russian citizenship, which they eventually received in 2020. A few months later, they gave birth to twins, which made them eligible to receive a certificate for maternity capital. What was done:

1. After giving birth and being discharged from the perinatal center, the woman received birth certificates for the children.
2. Next, she contacted the Pension Fund of Russia with an application to issue a certificate.
3. The appeal was considered within 15 calendar days. Within 5 days after the decision was made, the applicant was notified that the certificate was ready.

Finally, the woman returned to the Pension Fund and collected a certificate, the money from which was later spent on the down payment on the mortgage.

Can a father receive maternity capital? Conditions, documents, registration

Government support in Russia is provided to many families. Especially those who have children. The bulk of payments and benefits are issued, as a rule, to women. But fathers can also claim them. For example, for a benefit for caring for a newborn. Can a father receive maternity capital? And if so, how to do this? Everyone can learn about all this and more further. In fact, everything is not as difficult as it seems.

The fate of a mortgaged apartment with maternity capital during a divorce

Divorce is a complex process. This requires the intervention of lawyers, especially when it comes to the division of property. Everything acquired during a marriage is divided in half between the spouses in the event of a divorce.

But there are exceptions in which there will be no section:

• property purchased before marriage;
• there is a marriage contract that states that the property goes to only one of the spouses;
• state benefits that have a specific purpose were used.

Maternity capital is a one-time benefit given to families with a second and subsequent children. The certificate can be spent on:

• mother's funded pension;
• education;
• improvement of living conditions.

If the capital has not yet been spent before the divorce, then the spouse with whom the children remain can use it. According to the law, this money is the property of the children. They don't share.

Parents have the right not to wait until their child turns 3 years old. They can take out a mortgage and pay off the debt with part of the capital. The property is registered in the name of all family members, and in the event of a divorce, children receive their share.

The most reasonable way out of the situation is to pay off the debt. But this is not available to everyone. When the shares are determined, everything is divided according to the documents.

If the spouses decide not to divide the property until they pay off the loan, then they need to agree on who will pay the remaining amount. And then how to share housing. It is optimal to pay compensation to the husband in the amount of his share. This can be done if the children remain to live with their mother.

After a divorce, spouses can divide property voluntarily. To do this, you will need a notary to sign the agreement. The document states who is responsible for repaying the loan and the conditions under which ownership changes. Children must be given shares. And parents do not have the right to claim them. If the spouses cannot agree among themselves, they will have to go to court.

Many Russian citizens think: “Is it possible to sell an apartment that was purchased with a mortgage with maternity capital?” By law, the child must be registered/registered in the residential premises. And in order to sell the apartment, you will first have to obtain permission to discharge the child. The document is drawn up at the place of residence in the department of guardianship and trusteeship. The application must contain compelling reasons for the sale. The following documents are attached to it:

• An obligation according to which shares will be allocated to children, certified by a notary in triplicate;
• Parents' identity documents;
• Birth certificate of the child/children;
• Divorce certificate;
• A document confirming ownership of real estate.

When the guardianship authorities approve the application, you can begin to sell the property. The first thing to do is notify the lender. Lending institutions allow borrowers who are unable to pay their mortgage to sell the collateral.

During a divorce, if the property was purchased with a mortgage and maternity capital was used, it is difficult to sell it. To remove the encumbrance, an obligation must be signed guaranteeing the allocation of shares to the child. This must happen within six months. Otherwise, the transaction is declared invalid, and the material capital goes to the state treasury.

Very rarely capital is given to the father. If, after the divorce, the children live with their father, the court transfers the right to use maternal capital to him. In life, such situations rarely arise. This may happen if:

• The woman committed illegal acts against her children;
• The mother died or was declared dead;
• Adoption cancelled;
• The mother has been deprived of parental rights.

The father has the legal right to receive maternity capital if he is raising children alone, even in the case of adoption. These cases are rather the exception. They have nothing to do with divorce.

If you don't pay off your mortgage with maternity capital, problems arise in the event of a divorce. For the bank, the situation is definitely becoming more complicated. A minor is registered as one of the owners of the apartment, so it will not be possible to collect the collateral.

If the parents have not fulfilled their obligations and have not divided the shares equally among all family members, then the maternity capital is forcibly returned to the state treasury. The return of capital is provided for when selling housing without allocating shares, and then buying a new one, subject to allocating a share to children. In this case, the transaction is considered invalid.

“Maternity capital” ─ targeted payment. It is not divided during a divorce between spouses and does not fall under the definition of joint property acquired during marriage. Property that was purchased with capital funds is also not subject to division.

Can a foreign citizen receive maternity capital?

The right to provide maternal capital does not apply to foreign citizens. The exception is men whose wives have died, been convicted of a crime, or have been deprived of parental rights: in this case, they will be able to obtain a certificate regardless of their country of citizenship.

People who have just received Russian passports are considered full citizens of the Russian Federation, even if they have a second citizenship (only Tajikistan or Turkmenistan - citizens of other foreign countries are not entitled to have dual citizenship if they apply for a Russian passport). They have the right to take advantage of state support if, after receiving citizenship, they have a second, third or subsequent child, and all children also have Russian citizenship, and maternity capital has not been used previously.