How to divide an apartment during a divorce if there are children

The procedure for dividing property

If property was acquired during marriage, then the couple has equal rights to all benefits. It is worth noting that the situation cannot be affected by the fact that the valuables are registered in the name of one of the spouses. The only exception to this rule is the issue of privatized housing.

In addition, property acquired jointly can be divided at the discretion of the parties. If one of the spouses wants to give away any object from the general list that is subject to division, then he will be able to do this without legal consequences.

Important! The joint property of persons in a registered relationship who decide to divorce is divided equally, regardless of their personal income or whether they work at all.

When resolving the issue in court, the size of the shares of the plaintiff and defendant may be adjusted. This decision is made in families with minor children remaining in the care of one of the parents. Sometimes the court takes the side of the spouse if the latter proves that the joint property was used by the spouse not in the interests of the family or he did not work anywhere, being a dependent without a good reason.

Is it possible to divide an apartment after a divorce?

The possibility of dividing an apartment upon divorce depends on the circumstances of its acquisition. Only property that is in common joint ownership can be divided, that is, that which was acquired during the marriage using the common funds of the spouses.

It does not matter whose ownership the purchased apartment is registered in. If it was purchased during marriage with common money, it can be divided between the spouses, regardless of the formal owner.

What funds will be considered common?

Any income of a husband or wife is considered joint, with the exception of:

premarital income or savings;
payments with a special purpose (for example, payments to liquidators of the consequences of the disaster at the Chernobyl nuclear power plant, housing certificate for military personnel, maternity capital, etc.);
funds received as a gift, inheritance or other gratuitous transactions.

Accordingly, if the apartment was purchased during marriage with money received from employment, entrepreneurship, activities in the field of copyright and patent law, non-targeted pensions and benefits, it can be divided between the former spouses.

The fact that both spouses worked in the family or one does not play any role - housekeeping and caring for children are equal in importance to work and give the spouse who actually did not work the right to a share in the common property.

Will the apartment be divided during a divorce if the wife is the owner?

In principle, the process of dividing property has a lot of features. There is legislation that clearly defines the distribution process itself, that is, the process of dividing property. Let's determine how property is divided. We will also find out whether the second spouse can lay claim to the property that is owned by his wife.

The division includes all property acquired during marriage;
The section includes not only movable, but also immovable property;
Spouses have the right to an equal division of property that is in common ownership;
Spouses have an equal right to property if it was acquired during marriage, but is registered exclusively in the name of one spouse.

That is, in other words, if the apartment is registered in the name of your wife, you can qualify for half of this property. But, there are certain conditions:

The division does not include property that was acquired during marriage;
The division does not include property that was registered in the name of the spouse under a deed of gift.

Let's look at everything with an example. If the wife had an apartment before marriage, which she purchased with personal funds, after which she signs with the man and registers him in her apartment, in which they live, then the husband cannot lay claim to this property. That is, when dividing property, the entire apartment goes to the wife. However, there are also exceptions if the apartment was acquired in a common marriage, but the wife will be able to prove that you did not allocate any funds for the purchase and maintenance of the property. For example, an apartment is purchased during marriage and is registered in the name of the wife. During the divorce process, the husband asserts his claims to the property. The wife provides documents stating that all funds spent on real estate are her own. For example, it can be proven that the husband was not working for a very significant amount of time and, in principle, was dependent on the woman; in this case, with the normal defense of a lawyer, the apartment will not be divided.

Are children taken into account when dividing an apartment?

The presence of children is a circumstance that is always taken into account when dividing an apartment. However, this does not mean that the share in the common property of a spouse living even with two children will be automatically increased.

The law, namely Part 2 of Art. 39 of the RF IC, gives the court such a right, but does not impose a corresponding obligation. Children are not a direct guarantee that the court will side with one parent and divide the property the way he wants.

Many factors influence a judge's decision:

the spouses have other housing;
the earnings of each parent;
the ratio of the parent’s income to the costs of maintaining children;
health status of spouses and children;
participation of both spouses in the upbringing and maintenance of children;
contribution of the spouse’s personal funds to the renovation of the apartment.

However, the legality of increasing the share in ownership of an apartment in the presence of a child has been repeatedly confirmed by higher courts.

The presence of children is also taken into account if spouses share an apartment independently.

In particular, they must take into account the following mandatory provisions of law:

divorce does not entail the child’s loss of the right to use and live in residential premises;
as a result of the division, the living conditions of minor children should not worsen (which is especially important when selling an apartment or exchanging it).

How to influence the size of apartment shares if you have children?

If there are grounds (in the opinion of the plaintiff or defendant) for increasing the share in the common property due to the presence of minor children, this must be reflected in the statement of claim. Or a counterclaim if the defendant insists on increasing the share. However, just having children is not enough.

As an example of arguments that may have serious significance for the case, the following evidence and circumstances can be cited:

Non-participation of the second spouse in the maintenance of children, which is confirmed by a certificate of alimony arrears.
Refusal of the spouse to participate in raising the child (established by the guardianship and trusteeship authorities).
The difficult financial situation of the parent with whom the children live (confirmed by a certificate of income).
The child has illnesses or disabilities.
The presence of an objective opportunity for the spouse to devote maximum time and attention to the child (for example, a free work schedule).

If there are no problems with proving one or more situations from the list above, then the court with a high degree of probability may decide to increase the share in the common property of the spouses.

It is not allowed to deprive the second spouse of a share in property solely on the basis of having joint children and leaving them with the other spouse. This is possible if the second spouse spent family funds without receiving his own income, led an immoral lifestyle and created conditions that threatened the normal development of the family.

When is the wife the owner of the property?

So, as a general rule, property is considered common if it was acquired during marriage. But this does not mean that a husband and wife cannot have personal property.

Article 36 of the RF IC determines what property is the wife’s personal property:

Everything that was acquired by the wife before marriage;
Everything that was received as a gift, even during marriage;
Everything that was inherited by will or by law, even during marriage;
Personal items (for example, clothes and shoes, books, work tools) acquired during marriage. This category does not include jewelry and other luxury items (for example, valuable collections, furs, antiques);
The result of the author's intellectual activity.

This property is not subject to division between spouses, but remains with the wife as property.

How is an apartment divided during a divorce? Distribution of shares...

According to Article 34 of the Family Code of the Russian Federation, property acquired by spouses during marriage is joint (common). If an apartment was purchased during marriage, then it is also joint property.

According to the general rule (Article 39 of the Family Code of the Russian Federation), an apartment is divided during a divorce in a proportion of 50 to 50 between husband and wife. However, there are many situations where the partition will be "not equal". All this is also stipulated in the law.

An unequal division occurs when there are minor children, or when one of the spouses contributed their premarital funds to the purchase of an apartment. The mortgage section deserves a separate discussion, especially if maternity capital was also used. Privatized and municipal apartments are not subject to division at all, although, in some cases, divorced husbands and wives may continue to live in them. There are many situations. But they are all solvable!

To understand each of them, we wrote this article. The article explains in simple and understandable language how an apartment is divided during a divorce and how each of the listed situations is resolved. With clear and understandable examples from life.

Can you be left hanging when dividing your apartment? "Grey" partition schemes

In our practice, we often come across “gray” schemes for dividing an apartment. When one of the spouses engages in outright fraud in an attempt to “get” a “larger” share.

Here is an example of the most common scheme today:

A “fictitious loan” is drawn up with one of your friends. The spouse draws up a receipt on paper that he borrowed 1 million rubles from a friend. And when spouses divorce, debts are divided in half, as is known.

It turns out that the apartment is divided 50/50. And the debts are divided 50/50.

The spouse who issued the “fictitious” loan offers his “ex-other half” to buy out her half of the debt from her, in exchange for the fact that she will give him part of her share in the APARTMENT.

And, it may well turn out that the husband, for example, will receive 75% of the apartment, and the wife only 25%. Although, in practice, both wives and husbands “do not disdain” this method.

How to protect yourself from such a “divorce”?

It will be necessary to prove that the money “borrowed” was spent by him alone. Those. NOT FOR THE NEEDS OF THE FAMILY. In this case, the “debt” will be recognized as the personal debt of the one who took it. A lawyer will help you with this. We strongly recommend that you seek his help.

Lawyers and lawyers of the Family Law Center: Call us and consult:

How is property divided during a divorce if the wife is the owner?

It makes no difference to whom the property purchased during marriage with joint funds was registered; it will still be considered joint. But this rule applies if the property was acquired and not inherited or donated. In this case, the possible options are:

The property was gifted to his wife. The husband believes that the gift was for the family, and not separately for the wife. In this case, if he proves that the property was donated not to the wife personally, but to the two of them, then it is divided equally. Evidence of one or another type of donation can be testimony or a deed of gift.
The wife inherited some property. She is the rightful owner and should not share it with anyone.
The property was purchased during the marital relationship, but with the wife’s personal funds. Such property is not divided, but she must prove that her money was used for the purchase; statements from bank accounts opened before marriage, and a purchase and sale agreement for her personal property can help with this.

Be sure to read it! Salary project for individual entrepreneurs: advantages of working with a bank

How is an apartment divided during a divorce if the owner is the husband?

There are only three varieties of this situation:

The husband was the owner of the apartment even before marriage
When buying an apartment during marriage, the husband used his pre-marital money earned before the wedding
Or, during the marriage, the husband registered the apartment in his own name (using your common money)
the wife was babysitting a child and she was “unfortunate” to delve into all the intricacies of paperwork for purchasing an apartment. Or, the second situation, when the husband took out a mortgage for himself, because... Only his family, at that time, had an official high income.

As for the third case, the apartment will be divided between husband and wife, even though the husband has registered it “in his own name.” There are nuances here with the distribution of shares if there are children. And, also, if there was a mortgage.

If the husband was the owner of the apartment before marriage or bought an apartment (while married) with premarital funds, then the wife and children can also claim, in some cases, their share.

Read more about solving these situations >> here!

Property division rules

There are often cases when a husband and wife painstakingly collect funds in order to purchase such a desired apartment. During the registration process, in order to eliminate unnecessary bureaucracy and expense of funds, the apartment is registered in the name of the wife. In this case, the real estate is still considered common property, since the funds that were spent on its acquisition were collected jointly. In this case, the husband has every right to receive half of the apartment. Sometimes, protecting your rights in the matter of division of property on your own is simply unrealistic. It is for this reason that you need to immediately turn your attention to the possibility of cooperation with an experienced lawyer who will quickly be able to determine all aspects of your defense, help you quickly collect all the necessary evidence and documents, and will guard your interests and legal rights. That is, if you are not confident that you will be able to protect your property rights on your own, then it is best to obtain legal representation in court.

Forms of division of property

When determining shares, a couple can use one of the following algorithms for dividing material goods:

Half-and-half is the most common method chosen by the courts under the legal regime of ownership. Very rarely, the court has the right to determine different shares of property, which depends on the health and financial situation of the participants.
Compensation. Not all objects can be divided. The category of indivisible objects, which includes a one-room apartment, is separately defined. In this case, the property can be transferred in full to one partner with the payment to the other party of monetary compensation equal to the cost of ½ of the housing.
Sale. When the conflict cannot be resolved, the parties have the right to sell the disputed object and divide the proceeds in half. Profit is joint property. To avoid conflicts, it is better to transfer money to a card, which will confirm the amount of benefit received.
Giving valuables to a joint child. Parents do not claim ownership of their children's property and vice versa. Therefore, the couple can draw up a gift deed in the name of the child. The property is re-registered in the name of the child; parents will be able to dispose of it only with the written permission of the guardianship and trusteeship authorities. Given the divorce, the property goes into the use of the parent, with whom the children remain - the owners of the benefits.
Settlement. The division of values in different shares is relevant when using a marriage contract and a settlement agreement for the division of property. The main thing is to establish fair and honest terms, otherwise the agreement may be invalidated. For example, a husband needs a car, and a wife needs a fur coat and jewelry. If the values of the objects are approximately equal, then the spouses may decide not to receive shares in each property, but to transfer to each the property they need.

Do children participate in the division of property?

So, we have decided that in the event of a divorce and division of living space, a minor who does not have a share does not participate in the division. If, on the contrary, he has a share or is the sole owner of the property, then neither his share nor the entire apartment can be divided between the parents.

Thus, the minor’s share is added to the part of the mother or father with whom the child remains, and the part remaining after such a mathematical operation goes to the second spouse.

Naturally, the division of housing in this case becomes much more difficult. Since it will be very difficult for parents to sell an apartment that is fully or partially owned by a minor, the division of real estate through its sale and subsequent division of funds becomes almost impossible.

For example, spouses have a two-room apartment, the owners of which are they and their minor child in equal shares, one third each. The total living area is 60 sq. m. meters, thus, each of the co-owners owns shares of 20 square meters. meters. When selling real estate and dividing the money, the parent staying with the child is unlikely to be able to buy a living space of 40 square meters with the money allocated to him and the child. meters, as required by law, and the guardianship authorities will not allow reducing the area of the child’s share.

It will also be difficult to divide the apartment, transferring it to the spouse and children with payment of monetary compensation to another, since the parent remaining with the minors is a priori placed in a more difficult financial situation.

In cases where a minor is the sole owner of a residential premises, it is not subject to division between spouses, but the right of use remains with the parents.

Shared property in marriage during divorce

Advice from lawyers:

1. We are husband and wife, we have an apartment in shared ownership of 1/2 share, acquired during marriage. I (husband) want to give my 1/2 share to my wife. In this case, what will she get in the divorce, and what will I get?

1.1. Hello) She will get everything, you will get nothing. By deed of gift you will dispose of your share in the jointly acquired property.

Did the answer help you?YesNo

1.2. I wish you a good day! Under the Gift Agreement, your share will be transferred to your spouse. Thus, she will be the sole owner of the apartment. In case of divorce, despite the fact that a gift has occurred, the general provisions of the Family Code of the Russian Federation will apply, according to which property acquired during marriage is divided equally between spouses. The gift occurred during the marriage, therefore it will also be considered community property.

The result is that in case of divorce you will receive 1/2 share of the ownership of the apartment. I wish you success!

Did the answer help you?YesNo

1.3. When dividing property, you will not receive anything.

Did the answer help you?YesNo

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2. During marriage, an apartment was purchased with a mortgage, taking into account mat. capital for 2 children in shared ownership (1/2 husband and wife) After paying off the mortgage, we sold the apartment and used this money to buy a plot on which to build a house. Children are not registered as shares. The husband filed for divorce and division of property. How to prove that shares in the house should be allocated to children (children 18 and 10 years old) and when selling the house their shares were taken into account; the children will live with me in the future.

2.1. Prove it that way. You have all the documents consistently confirming the need to allocate shares to children.

Did the answer help you?YesNo

3. In marriage, before the birth of a child, an apartment was purchased, the property is shared by 1/2 share for me and 1/2 share for my spouse. A child is born. During a divorce, how will the apartment be divided? Does a child have the right to real estate when dividing property?

3.1. Your shares are already allocated by size.

Did the answer help you?YesNo

3.2. The property will be divided in half, the child will not have a share.

Did the answer help you?YesNo

3.3. The apartment has already been divided into shares. She won't share anything else. Children have no rights to their parents' property.

Did the answer help you?YesNo

4. During marriage, an apartment was purchased for common shared ownership in the amount of 2/4 share in the right of common shared ownership. Husband 1/4 share in the right of common shared ownership. Wife 1/4 share in the right of common shared ownership. Daughter for each family member received their own USRN extract. How will the apartment be divided during a divorce? In court, the apartment was bought from one cash account of the Husband. Thank you.

4.1. Hello! The shares of the spouses are determined; after the divorce, the spouse will own 2/4 shares of the apartment, the wife will own 1/4 shares.

Did the answer help you?YesNo

5. My mother and I had an apartment in shared ownership. We sold it and bought a new apartment with a larger area for exactly that amount. At the time of sale and purchase, I was already married and signed a share participation agreement for myself and my husband. As a result, my husband and I now have joint property. During a divorce, can I sue my husband for the entire apartment as my own?

5.1. Completely - difficult... But possible. If your mother gets involved. This is a must.

Did the answer help you?YesNo

6. During marriage, an apartment was purchased with the personal funds of one of the spouses. Upon purchase, it is registered as common shared ownership. How will it be divided during a divorce? Will the spouse, whose personal funds were used to purchase this apartment, be able to deprive the other of his share in it on this basis?

6.1. According to the general rules established by the Family Code of the Russian Federation, if an apartment is property acquired jointly by a couple during marriage and is recognized as the common property of the spouses, then it, like other property, is divided equally between them.

Did the answer help you?YesNo

6.2. Good afternoon, under such conditions it will be almost impossible to deprive the second spouse of his share.

Did the answer help you?YesNo

6.3. The apartment was purchased at the expense of the spouse’s personal funds, but with his consent it was registered as shared ownership. This property will not be an object in the division of property. But the spouse at whose expense the apartment was purchased can file a claim for unjust enrichment if the statute of limitations has not expired. There are options with which you can try to go to court and return the share of the second spouse to yourself. How the court will look at this is unknown. Judicial practice is ambiguous.

Did the answer help you?YesNo

7. During the marriage, we purchased a house with a mortgage and immediately created shared ownership. How will this property be divided now during a divorce?

7.1. Hello Olga! Will not share in any way, because... in fact, it has already been divided (the shares of each spouse are initially determined). Sincerely, A.D. Ruslan.

Did the answer help you?YesNo

7.2. Hello, depending on the requirements, but in equal shares of the RF IC Article 39. Determination of shares when dividing the common property of spouses 1. When dividing the common property of spouses and determining shares in this property, the shares of the spouses are recognized as equal, unless otherwise provided by the agreement between the spouses.

Did the answer help you?YesNo

8. During marriage, I purchased a house and registered it as shared ownership, 1/2 for me and 1/4 for the children, my wife does not have a share, please tell me, during a divorce, will she be able to file for division of the house? After all, the house is in shared ownership.

8.1. Yes, the property acquired by the spouses is jointly divided in equal shares.

Did the answer help you?YesNo

8.2. Good afternoon Unless the transaction for purchasing a house is declared invalid, which is unlikely due to the expiration of procedural deadlines.

Did the answer help you?YesNo

9. If my children and I have shared property, will my husband have the right to it during a divorce? And the second question: if the husband has a 2nd non-working disability group (due to health reasons), then how are alimony payments possible (there are 3 minor children in the marriage)? My husband is not involved in raising children; we have not lived together for more than a year.

9.1. Alimony from the husband will be collected from his disability pension. If you acquired residential premises during marriage, then upon divorce, the husband can file a claim in court for the division of jointly acquired property and your share will be divided in equal shares between him and you.

Did the answer help you?YesNo

10. My girlfriend and I live in my parents’ apartment. A girl from Ukraine. Receives Russian citizenship. The apartment is privatized and is owned by my mother. The girl is pregnant and will give birth in 2 months. If we register her and the child, but she writes a waiver of the shared property, will she have the right to sue for something in the future during separation (divorce). Both in a civil marriage and in an officially registered one.

10.1. Alexander, regarding property issues, your girlfriend cannot claim anything, registration only gives the right to use and upon separation, if the girl refuses to leave your apartment, you will have to evict her and her child through the courts.

Did the answer help you?YesNo

11. During marriage, an apartment was purchased and registered as common shared ownership of 1/6 share for each family member. The apartment was purchased with the spouse’s funds from the sale of another apartment received during marriage by inheritance + mat funds. capital. How will it be divided during a divorce? And can I be deprived of a share in this apartment?

11.1. Ivan, The apartment was already divided upon purchase, each person was assigned a share of 1/6. Accordingly, during a divorce, everyone will receive their share.

Did the answer help you?YesNo

12. During marriage, an apartment was purchased and shared ownership was registered (1/2 each). After the divorce, they decided that I would sell 1/2 of the apartment to my ex-husband. It also includes a minor child. How do we formalize the transaction: 1. We submit documents to a notary to draw up an agreement (when selling a share, this, as I understand it, is mandatory?) 2. We bring an agreement to the bank to formalize a mortgage (the ex-spouse takes a share in the mortgage). Right? Is it possible to leave a child registered in the apartment?

12.1. The child can be left registered in the apartment, since his father is registered there.

Did the answer help you?YesNo

13. My wife and I share ownership (1/2 each) of a 1-room apartment in a dilapidated (dilapidated) building. It was purchased while married. What kind of living space can we count on when moving from dilapidated housing if we are currently divorced?

13.1. You can count on an apartment equivalent to an emergency one. The fact that the marriage is dissolved does not affect anything.

Did the answer help you?YesNo

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14. When I was married to my husband, I acquired shared property and the house was registered only in his name. What can I count on in the event of a divorce?

14.1. In case of divorce, you have the right to half of the apartment, Article 38 of the RF IC.

Did the answer help you?YesNo

15. I am divorcing my husband, we bought an apartment in shared ownership and a mortgage during our marriage, the child did not participate in the share, I have to pay for another 5 years, can I sell my share? Or, during a divorce, sell the apartment, pay the bank, and divide the rest of the money.

15.1. Good afternoon You need to negotiate with the bank about the possible sale of the share; most likely the bank employees will be against the sale. Pay off the loan and dispose of the share as you see fit.

Did the answer help you?YesNo

16. The apartment was purchased during marriage, the shared ownership is 1/2 of mine, 1/2 of my then-minor daughter, three years have passed since the divorce, my daughter is now an adult and is selling her share, I won’t buy it out, but I can’t sell my 1/2 because during the divorce, they did not divide the jointly acquired property, that is, my 1/2 is divided in half with him, there is also a minor son registered in the apartment without a share, please tell me how to write a claim to the court correctly for the division of the common property.

16.1. I can't tell you in a few words. Typically, it takes several hours to prepare a claim. The claim is filed in accordance with Art. 131, 132 Code of Civil Procedure of the Russian Federation. Only a lawyer can competently draw up a claim. Contact a lawyer or lawyer. Moreover, it is not entirely clear how the daughter got this 1/2 share - if the apartment was purchased during marriage. Children do not have ownership rights to their parents' property.

Did the answer help you?YesNo

17. In case of divorce, property is divided between spouses (settlement agreement). There are adult children. The husband is left with part A - a share in the property. The husband marries 2 times. There is a minor child. Part A is sold and then bought again by the husband in his 2nd marriage. The husband is dying. The right of the imperfect to a share in the inheritance A? Husband's Mother's right to a share in A? How can I challenge the division if 3 years have passed?

17.1. His children and parents and his wife are heirs of the first order. Anything purchased during marriage is considered 1/2 with the wife until proven otherwise. Challenge it by filing a lawsuit.

Did the answer help you?YesNo

18. Premarital mortgage. Mom is a borrower, I am a co-borrower. During a divorce, can my husband claim half of the amount paid on the mortgage during the marriage? Payments were made by myself. The apartment is shared ownership with my mother.

18.1. Hello. Of course he can't.

Did the answer help you?YesNo

19. The apartment was purchased as shared ownership before the marriage (the future spouse has 10%). The marriage was concluded 5 years after the purchase of the apartment. During a divorce, each spouse can only claim their share: 90% and 10%, or could it be different?

19.1. Greetings. The apartment was purchased before marriage and does not belong to the joint property of the spouses. Therefore, during a divorce, everyone will receive their share in the apartment. Theoretically, there may be a situation in which, during the marriage, an apartment was renovated, which significantly increased its value. Then the size of the shares may change.

Did the answer help you?YesNo

20. A family in a difficult marriage has a mortgage loan. Shared ownership, with encumbrance. The family has two minor children. Is it possible to split mortgage repayments between spouses? If you are planning a divorce and division of property in the future. Can a father take away a child’s share when dividing property without the mother’s consent? Also, swearing was sent to repay the mortgage. capital.

20.1. In this case, it is possible to split the mortgage loan payment with the consent of the creditor bank. Neither spouse can take away the child’s share, since the share belongs to the child and not his parents. .

Did the answer help you?YesNo

20.2. Hello. When dividing property using maternity capital, each family member has their own share. There are several options for dividing mortgage housing. One such option could be to obtain a consumer loan (for a short term), pay off the mortgage, then refinance by obtaining a long-term loan with a lower interest rate. Another option may be to find a buyer for the apartment, sign a tripartite agreement with the bank on the repayment of your loan by the buyer, and the remaining funds can be invested as starting capital when receiving another mortgage housing (in personal property). Much depends on the terms of the loan, the creditor bank, the balance of debt, the capabilities and desires of the spouses, etc.

Did the answer help you?YesNo

Before marriage, I bought an apartment. During marriage, my husband and I sold it and paid it off.

The apartment was purchased during marriage as shared ownership by the spouse, eldest child, and mother-in-law.

Question, the share participation agreement for the construction of an apartment was drawn up before marriage,

My husband and I bought an apartment for our daughter. In the process of purchasing (shared construction)

I separated from my husband 1.5 years ago. During the divorce, he was left with an apartment, and I was left with a car.

Before marriage I had an apartment. After getting married, they sold the apartment and used the proceeds from the sale to buy another one with an additional payment.

How is real estate acquired during marriage divided into shared ownership during a divorce: husband 97/100, wife 1/100, two children 1/100? Thank you.

Please help me understand my question. The land was purchased during marriage and is owned by the husband.

Please, how much is child support paid if there are two children? My husband's salary is 12.

In marriage, with money from the sale of an apartment purchased by the spouse before the wedding, and a small additional payment in the form of a loan for me (and I pay it)

How does the division of an apartment take place?

The division of the apartment can occur by concluding an appropriate agreement or through the court. The first option is less expensive and simpler, but the second - judicial - is inevitable in the presence of conflicts.

Marriage contract

A prenuptial agreement is a voluntary document that can be concluded by the bride or groom, husband and wife. In this document, the parties regulate property relations - establish the ownership regime (separate, joint), the conditions for making purchases, the procedure for dividing family acquisitions in the event of a divorce. The property estate may include not only common marital property, but also personal property of one of the spouses.

For example, according to a marriage contract, an apartment purchased by future spouses on the eve of marriage and registered in the name of the wife is recognized as common and is subject to division upon divorce. Although, in the absence of a marriage contract, it would be considered that the apartment belongs only to the wife. Or, for example, according to the terms of the marriage contract, all marital property is recognized as common, with the exception of the dacha, which in the event of divorce under any circumstances becomes the personal property of the wife.

The main feature of a marriage contract is the voluntary nature of its conclusion. The parties to the contract must reach full agreement. No one can be forced to sign a contract with the terms of which he does not agree. In addition, the prenuptial agreement should not place one of the spouses at a significant disadvantage compared to the other spouse.

Agreement

If you want to come to an amicable agreement and draw up an agreement on the division of property, the procedure is as follows:

Preparation of title documents for property objects.
Drawing up and approval of a draft agreement.
Certification of the agreement by a notary.

Important! By agreement, spouses can divide both common and private living space. The main thing is that the decision is made voluntarily, without coercion.

In the agreement, the parties can determine a variety of options for dividing the apartment:

division in equal or unequal shares;
transfer of an object to one of the spouses with or without payment of monetary or property compensation;
transfer of an apartment to one of the spouses while the other retains the right to reside in it.

Important! A separation agreement requires a special form - a simple written document will not be enough. A prerequisite is to contact a notary. This increases the cost of the partition.

Division through court

If each spouse has his own point of view on the legal fate of the apartment and it is not possible to reach an agreement on the voluntary division of property, only the court will help resolve the conflict.

A statement of claim for the division of an apartment, taking into account its value, is filed exclusively with the district court at the location of the real estate.

For a sample claim for division of an apartment and the specifics of its preparation and filing, see the article at the link.

If there are several real estate objects subject to division, the claim must be filed in court at the location of the most expensive of them or the largest part of the real estate.

The procedure for judicial division is as follows:

Collecting a package of documents for the court - there must be documents confirming the circumstances specified in the claim: copies of marriage and divorce certificates, documents for the apartment, an appraiser’s opinion on its value.
Drawing up a statement of claim for division of property - the claim may concern all the property of the spouses or only the apartment; this is decided only by the parties to the case.
Government payment a fee, the amount of which depends on the price of the claim, calculated based on the cadastral or market value of the apartment.
Filing a claim in the district court at the location of the apartment - you can file it on purpose, submitting documents in person to the court, or by mail.
Participation in a court hearing.
Receive a court decision.
If the decision does not suit the plaintiff, an appeal is made to a higher court.
After passing through all the authorities and the judicial act entering into force, obtaining a writ of execution.
Contacting the bailiff service to initiate enforcement proceedings (if the defendant fails to comply with the decision).

When calculating the state duty, the cost of the claim is not considered the cost of the entire apartment as a whole, but only the cost of the share in the housing claimed by the plaintiff. So, if the cost of the apartment is determined to be 2 million rubles, the plaintiff insists on recognizing his right to ½ of the apartment, then the value of the claim used to calculate the duty will be considered the amount of 1 million rubles.

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How to divide an apartment during a divorce?

According to statistics, for every 1000 marriages there are 890 divorces. Such figures are impressive and shocking, because many get divorced without even living a year together. The divorce process is complicated by jointly acquired property, the presence of children and many other factors. Let’s figure out how to legally divide an apartment during a divorce, while spending a minimum of effort and nerve cells.

To begin with, it is worth determining what property is joint. Joint property is that which is acquired by spouses after entering into a marriage relationship. The exception is property received as a result of inheritance or gift to one of the spouses.

If the spouses, when purchasing real estate, do not initially divide it into shares, then it is impossible to sell their part of the apartment. To change this, you should contact a notary office and draw up an agreement on the distribution of ownership of shares. If disagreements between spouses still arise, then it is worth going to court. According to the law, the court will divide the property into equal parts - the former spouses will receive half of the property. If the apartment is already divided into shares, then the issue is easily resolved and no legal proceedings are necessary.

What is being divided?

real estate;
cars;
shares and other securities;
luxury goods and jewelry;
joint income;
cash deposits in banks.

How to divide an apartment with a mortgage?

To divide a mortgaged apartment, you need to study the contract. The husband or wife in any case has the right to half the living space. And if the apartment has a mortgage, then the debts for it are also paid in half.

The same applies to other debts - loans taken out during marriage must be repaid together.

If there are children, the court may decide to give a larger share to the mother to the child, but the spouses must still pay the mortgage equally. Maternity capital is often used to repay a mortgage loan.

Is it possible to divide an apartment purchased with a military mortgage?

Most often, the court rejects claims for the division of military property. It is possible to achieve at least some compensation if the mortgage loan exceeds the established amount - the maximum military mortgage is 2.4 million rubles. It’s not always possible to find decent housing for that kind of money, so spouses often add their joint savings to the purchase. In this situation, you can claim half the amount added to purchase the apartment.

How to divide an apartment purchased with maternity capital?

According to the law, an apartment purchased with maternity capital is registered in the name of the children (in shares), and the rest is divided between the parents. For example, in a family of 4 people, everyone will get a quarter. After a divorce, spouses have the right to divide only their half of the property. There are judicial and extrajudicial division of property purchased with maternity capital. Extrajudicial division occurs when the spouses do not have major disagreements regarding property and the spouse has the right to voluntarily renounce his share in favor of the children. In exchange, he is offered housing of similar value, or the spouse is exempt from alimony payments.

When spouses cannot resolve the issue of division peacefully, then the court deals with this problem. They file a claim with the court and attach a list of documents:

divorce certificate;
children's birth certificate;
opinion of a real estate expert;
power of attorney;
a receipt for payment of the state duty (if the claim exceeds one million rubles, then the state duty will be at least 30,200 rubles);
data on the use of mat. capital for purchasing real estate with a mortgage;
purchase and sale agreement.

How to divide a privatized apartment?

When a case about the division of privatized property comes to court, the distribution of shares may be changed. The court's decision is influenced by:

the spouses have disabilities;
presence of disabled children;
lack of income for spouses;
the spouse is pregnant or is on maternity leave;
children under the age of majority.

How to divide a municipal apartment?

A municipal apartment is one that belongs not to the spouses, but to the region. Such an apartment cannot be sold, bequeathed, donated, etc. Essentially, the spouses are tenants and use the apartment without the right to do anything with it. According to the wording, only jointly acquired property is subject to division after a divorce, and a municipal apartment is not their property, but state property. Division of property is possible if the former spouses decide to privatize the apartment, or exchange the apartment for several premises. In the end, sometimes the way out of the situation is to live together like a “communal apartment”.

How to divide an apartment if it is divided into shares?

In such a situation, there are 3 options for dividing property. The first and most convenient case is paying compensation for housing to the other spouse. That is, one of the spouses remains to live in the apartment and pays part of the cost, or provides the ex-husband or wife with housing.

The second option is to draw up a schedule for using the property. The spouses continue to live in the same apartment, but separately, and pay for utilities in proportion to their shares.

The last and most difficult case is allocation in kind. In this case, the apartment is divided into parts by technical means: two independent living areas are formed. The conditions for allocation in kind are:

each room has a separate entrance, kitchen, and bathroom;
each spouse must have at least 1 room at their disposal;

How to divide an apartment if there are children?

When a dispute breaks out between spouses over the division of an apartment, or one of the spouses is dissatisfied with the size of the share, a trial occurs. If the former couple has minor children, then by law the parent with whom the children will live has the right to a larger share. However, this does not always happen. There are a number of factors influencing the court decision:

the earnings of each spouse;
the spouses have other housing;
health status of children and parents;
participation of each spouse in the lives of children.

When is an apartment not divided?

An apartment privatized before marriage, when it is the property of one of the spouses, is not subject to division. After a divorce, one of the spouses not only does not have the right to housing, but is also obliged to leave it.
The apartment is privatized for one of the spouses. Then one of the former spouses receives ownership of the apartment, and the second has the right to live in the apartment for life.
In the event that the apartment is taken out on a personal mortgage. Then one of the spouses buys housing using their personal savings. Such property is not considered jointly acquired, and therefore cannot be divided. Personal savings include, for example, money from an inheritance.
If the owner of the apartment is a child, then such housing cannot be divided.

So you're divorced and want to divide your property. It is worth saying that this will not always happen quickly. If the relationship between the spouses remains fairly friendly, then there should be no problems with the division. In the event that one of the spouses does not agree with the division, they will have to file a claim in court, where the fate of each spouse will be decided individually. To “prevent” the division of property, it is wise to immediately divide the apartment into shares, as well as enter into a prenuptial agreement. Although there are not many supporters of a marriage contract in our country, it greatly simplifies the process of dividing property and relieves stress. It is better to enter into a prenuptial agreement in peace and tranquility and never face divorce than to waste time and money waiting for litigation.

Peculiarities of dividing a privatized apartment if its owner is the wife

Privatization is the process of obtaining ownership of state or municipal housing. If the apartment has not been privatized, then a divorce will not lead to its division between the spouses. Regulatory regulation of such real estate is carried out through civil legislation.

According to the law, a privatized apartment cannot be considered jointly acquired property, even if it was acquired by a couple during marriage.

The purchase of state (municipal) housing by one of the spouses under a privatization agreement entails its transfer to the use and disposal of the person in whose name the object is registered. Thus, if the wife made the purchase and the husband is registered, the apartment will still remain at her complete disposal even in the event of a divorce.

At the same time, if the wife owns privatized real estate and the husband is not registered in the apartment, then the wife will not be able to write him out even in the event of separation. The only thing the wife has the right to do is try to get her partner’s consent to voluntarily refuse to use the housing. It is worth noting that even the court will not be able to deregister the second spouse, because in accordance with the law, a person has the right to lifelong residence in a privatized apartment.

Features of the section of a non-privatized apartment

As already noted, divorce is not a basis for starting the process of dividing non-privatized real estate. The fact is that as of 2020, such objects are neither joint nor personal property of spouses. They are only entitled to the right to use housing, as evidenced by Art. 69 Housing Code of the Russian Federation.

Thus, having formalized the severance of the relationship, the couple can continue to live together. However, there are ways that will still allow you to divide the object between the parties:

privatization. If the apartment needs to be divided in accordance with the law, then it should be privatized by both spouses;
sell housing. In this case, you will have to divide the money received from the transaction.

If the apartment was purchased with maternity capital

Federal Law No. 256 determines that maternity capital, in particular, can be spent on improving the family’s living conditions. And the same Law establishes that if real estate is purchased with this money allocated by the state, then it is divided in equal shares among all family members. This means that if the capital was given out after the birth of the second child, then during the divorce the apartment should be divided into 4 equal parts.

In this case, it does not matter what other funds and in what quantity were invested in the purchase.

If the acquisition of real estate took place with the participation of only a certain amount of maternity capital, then such property is divided in equal shares among all family members.

This rule cannot be changed either by the terms of the marriage contract or by the clauses of the property division agreement.

If the child is registered in the apartment

Permanent registration at the place of residence does not give ownership rights, but only fixes the right to reside in a specified territory. Therefore, the presence of registration cannot in any way affect the division of the apartment in 2020. The parent with whom the child remained after the divorce will probably be allocated a larger share in the property. But not because of registration, but because of the presence of a minor child. Registered children have the right, even after a divorce, to live in the apartment where they are registered until at least 18 years of age.

Is it possible to sue property if the wife is the owner?

The division of property does not always follow the general rules. Family law provides for exceptions, so in a number of cases the court, for example, deviates from the principle of equal shares in joint marital property, or allocates a share to one of the spouses in the personal property of the other spouse.

Let's consider what circumstances may turn out to be significant in a trial and have a decisive influence on the court decision.

So, here's the situation.

The owner of the apartment (or any other property) is only the wife, but during family life a lot of money and labor resources were invested in the housing by the husband, as a result of which the apartment became significantly more expensive compared to the original cost, the court may recognize the right to a share - Married. If this share is small, the court may oblige the wife to pay monetary compensation in proportion to the efforts and resources invested.

Of course, the fact of a significant increase in the value of property as a result of invested money and labor resources must be proven in court. As evidence, you can attach an appraisal report, photographs, witness statements, contracts with repair teams, receipts for the purchase of construction and finishing materials, bank statements.

Another situation.

The wife was the owner of the apartment, received by inheritance. The couple decided to improve their living conditions and buy a house. For this purpose, they sold the apartment and built a country house with the proceeds. The new property is no longer the property of the wife, but joint marital property. It will not be easy to prove that the house was built with funds raised from the sale of personal real estate; for this, you will need to provide evidence to the court - an apartment purchase and sale agreement, a land purchase and sale agreement, receipts for the purchase of construction and finishing materials, construction contracts, witness testimony .

Division of property during divorce: rules

According to the provisions of the Family Code, property must be divided equally. But if there are children under 18 years of age, then they need to be divided proportionally. It is important to take into account the interests of all parties. If the children stay with the mother, then she receives a little more than half.

Spouses must decide for themselves how the property will be divided. However, there are a few important nuances to keep in mind:

An apartment purchased using maternity capital can be sold. But minors must be allocated the same income in their new housing. It should be the same in quality. The transaction is carried out through the guardianship department. If the area is not enough to allocate shares to children and parents, the latter must refuse them in favor of minors. Money received from the sale of real estate during a divorce is divided according to an agreement between the spouses.
Foreign real estate is divided in the same way as those located within the country. But re-registration of documents is difficult due to the remoteness, so foreign property often remains with one spouse, and Russian property with the other.
The business is also subject to division. In this case, it is possible to allocate a share in it to the second spouse or sell the company and divide the money.
One of the parties may give up property in favor of the children in order to avoid paying child support.

Spouses argue about division of property

It is worth noting that spouses can enter into a marriage contract at any stage of their family life. Then the judge will be guided by it when dividing property. Often this document allows you to save the family, since the other party has no desire to divorce for selfish reasons.

Table 1. Rules for the division of property in 2019

What is the basis for the division?	Peculiarities
Marriage contract	This document contains information about how property will be divided during a divorce. It must be certified by a notary.
Agreement before divorce	Essentially, the same marriage contract, but concluded immediately before the divorce.
Trial	It is necessary to provide evidence to defend your position. In this case, the judge decides what and who will get it, guided by the evidence provided.

This way, you can understand in advance how the divorce will happen. Based on the chosen scenario, the time frame for obtaining a divorce certificate will vary. When applying for divorce, the spouses are given 2 months to reconcile. If they do not appear at the meeting, the case is closed, and the parties maintain their relationship. When someone appears at the court/registry office, a document is issued regarding the dissolution of the marriage.

Division of property under a marriage contract

A marriage contract is drawn up on the basis of the Civil and Family Code between spouses who are just getting married or have already registered their relationship. It can be concluded in the presence of a civil marriage. Its essence lies in the settlement of property disputes between the parties when dividing property during a divorce. Here you can enter the following information:

how property is divided during a divorce;
with whom do the children stay?
is it possible for the other party to meet with the children, when, for how long and on what grounds;
Do I need to pay child support?
what is the amount of alimony, how the money will be transferred and with what frequency;
whether alimony payments will be indexed;
when can you get a deferment in paying alimony?
other items that the spouses decide to include in the agreement.

The document must be certified by a notary. If after some time it is necessary to make changes to the text, then after that you need to contact a notary again for certification. It is worth noting that the presence of this document will reduce the time for dividing property, since you will not have to collect evidence and attract witnesses to divide property.

Conclusion of a marriage contract

A marriage contract is drawn up in the standard way:

Full names of the parties, dates of birth, passport details and places of registration;
an inventory of all existing property and those planned for acquisition;
features of division in divorce;
distribution of who the children will stay with.

The cost of certifying a marriage contract by a notary is no more than 2,000 rubles. It is worth understanding that the absence of a notary’s signature does not give the agreement legal force.

Division of property by agreement before divorce

In essence, this is the same prenuptial agreement, but occurs immediately before the divorce. Its advantage is that it is possible to immediately predict what will remain for whom. At the same time, the parties already know what jointly acquired property is, so it can be included in the inventory indicating what goes to whom. It is important to understand that the following are not subject to division:

personal items;
gifts without documents;
property that was received under a gift agreement;
property that was owned by the parties before marriage;
inheritance.

When concluding an agreement, it is not necessary to attach documents confirming property, since the spouses do not have property disputes. At the same time, they themselves understand what they got and on what basis.

The agreement should also indicate with whom the children will live and how meetings with the other parent will take place.

Conclusion of an agreement and its certification by a notary

Important! Spouses are required to raise minor children together. At the same time, they have obligations to jointly support minors. This means that the other party cannot be prohibited from taking part in the life and upbringing of the child if she has not committed a deliberate crime against her. Then the ban on meetings is imposed by the court.

Special cases

Inherited property is not subject to division between spouses upon divorce. However, if the heir’s partner makes significant expenses to improve living conditions in the designated housing, for example, expensive repairs, he has the right to return this amount. To do this, you will need to keep all checks and receipts to prove your right to return in court.

Another example when non-joint property can remain with both parties with children is the gift of an apartment to one of the spouses. The fact is that, in accordance with Art. 31 of the Housing Code, a person who has custody of a minor after a divorce may live with him in the apartment of his former spouse. It will not be possible to evict a partner with a child for the following reasons:

the person guarding the child does not have his own home and was unable to find it after the official termination of the relationship;
the other half does not have the opportunity to move to another place after the divorce;
the ex-partner is in a difficult life situation due to a difficult financial situation.

Important! In some cases, by court order, the owner of an apartment received as a gift must provide his former partner and child with a separate room for their joint residence.

Section Features

Figuring out how property is divided during a divorce if there is a minor child is quite simple. You just need to carefully study the legislation. But the best solution is to get legal advice on this matter. This will allow you to avoid difficulties and problems associated with legal subtleties.

Standard questions that will need to be sorted out in advance include:

if there are children;
if the owner is one of the spouses;
apartment with mortgage;
housing purchased with maternity capital;
design nuances.

If you have children

To understand what exactly a child can claim in the event of a divorce from their parents, it is imperative to familiarize themselves with Part No. 4 of Article No. 60 of the Family Code of the Russian Federation. This article reveals the topic of child property rights in as much detail as possible.

In fact, a child can only claim the following things in a parent's divorce process:

Personal – clothes, toys, shoes, etc.
Present.
On the parents' income.

The last factor is especially important and undeniable. Since the obligations to support their children financially are directly indicated in the Family Code of the Russian Federation. It is on this basis that alimony is paid.

If the owner is one of the spouses

According to the RF IC, a child has no rights to the property of his parents. That is why, during division, the court takes into account the interests of the child, but at the same time the child simply does not have property rights.

But at the same time, the child himself can influence the distribution of shares between parents. Especially when he is a minor or has been assigned a disability group.

Example:

The wife lives in an apartment purchased during marriage with two children. At the same time, the husband lives separately, since he has a second apartment, to which the wife does not have ownership rights - it was donated by her parents many years ago.

When dividing a common apartment where children and wife live, the court decided to distribute ownership rights as follows:

Indicators	Description
Wife	2/3 living space
To my husband	1/3 living space

The basis for such a division of property rights was the presence of two minor children dependent on the mother, as well as the presence of his own separate apartment with the father.

In the case discussed above, the court, within the framework of the law, is guided by the principle of reasonableness and takes into account the interests of minor children living in a jointly purchased apartment. But at the same time, it is important to remember that the children themselves can have rights to this housing only through inheritance. They will be heirs of the first category.

Apartment with mortgage

If the apartment is issued with a mortgage, then the process of filing a divorce can cause some difficulties. In each case everything is individual. The best solution is to come to an agreement with the other parent peacefully. This is the only way to avoid difficulties. Litigation takes a lot of time and money.

Housing purchased with maternity capital

If housing was purchased using maternity capital, then everything becomes more complicated. Since this property belongs primarily to the child, on the basis of whose presence the maternal certificate was issued. This moment is best worked out separately.

Video: what can be shared

Arbitrage practice

The division of property can be made both during the marriage and at any time after its termination. Often ex-spouses forget about the division for a long time, remembering it only when the question of deregistration arises. Is it possible to divide property after 10, 15, 20 years?

The statute of limitations for this category of cases is 3 years, but it begins not at the moment of termination of the marriage, but when the spouse learned of a violation of his right to a share in the apartment.

For example:

from the moment of receiving a refusal to voluntarily divide joint property;
from the moment the claim is filed in court.

Example . On 02/06/2018, the Tuymazinsky Interdistrict Court of the Republic of Bashkortostan considered a case regarding the division of an apartment acquired during marriage, but registered in the name of a spouse and sold by the ex-wife during the trial. The plaintiff asked the court to remove her ex-husband from the registration register, who has not lived in the disputed apartment for many years. The ex-husband disputed the purchase and sale transaction and asked to divide the property in half. The transaction for the sale of housing was declared invalid, the apartment was recognized as joint property.

In the appeal ruling of the Judicial Collegium for Civil Cases of the Supreme Court of the Republic of Belarus against the decision of the Tuymazinsky Interdistrict Court, it was stated that the period for going to court began to run at the time of filing a claim for deregistration, and not at the time of divorce.