How is an apartment bought with maternity capital divided? How maternity capital is divided during a divorce of spouses How maternity capital is divided after a divorce
After the appearance of a second child in the family, you can count on receiving maternity capital. However, what is the fate of these state payments in the event of a divorce? How to divide property bought with maternal capital who gets the money? This article is devoted to this problem.
Definition and purpose of maternity capital
Maternity capital is issued to a family after the birth/adoption of a second child. It is a personal certificate, which is almost always received by the mother and only in rare cases by the father. The amount directly depends on the number of children, but in this case it is not important, but the intended purpose of the state payment. Maternity capital can be spent on:
- Paying for a child's education.
- Home improvement or purchase.
- Increasing the amount of the mother's funded pension.
You can use the money at any time, provided that the child is already 3 years old. However, there is a significant exception to this rule. If the capital is supposed to be used to buy an apartment or another option for improving housing conditions, then you do not need to wait three years.
Is it possible to divide maternity capital
Article 34 of the RF IC states that any spouse is subject to division upon divorce. This also includes almost any payments, with the exception of those that have a designated purpose. Maternity capital has a designated purpose and therefore is not subject to division under any conditions. It remains strictly with the owner in whose name it was issued, and the second party does not have the right to claim the money, even if it believes that it has reason to do so.
In the vast majority of cases, the mother receives the certificate, but this is not a mandatory rule. At certain conditions the document can also be issued to the father, however, there must be good reasons for this:
- The man is not married and adopts a child (second or subsequent).
- The mother of a child who caused the right to a state payment to arise commits a crime against the baby or her other children.
- The mother has been deprived of parental rights.
- Mother died or
Example: After giving birth, the mother, against the background of postpartum depression and due to a nervous breakdown, actively began to drink alcohol. The upbringing and care of the newborn fell entirely on the shoulders of the father. The situation worsened over time and eventually the woman was deprived of parental rights and placed in a special hospital. In such a situation, the rights to maternity capital are transferred to the spouse.
How to divide maternity capital during a divorce
As mentioned above, maternity capital is not divided. Not in a divorce, not under any other circumstances. It belongs only to a specific person, and the latter has the right to spend money only in a strictly agreed way.
The most common use case: mortgage processing, overhaul, buying an apartment or building a private house. In any of the options, it is imperative to re-register the ownership, allocating a share to each family member. Including all children here (and not just the one that caused the receipt of maternity capital).
Such a system sometimes causes difficulties in divorce, because the spouses continue to believe that the property belongs to them and should be divided in half. This is not true. It is divided equally, but only their shares are taken into account.
Example: There is a family consisting of a husband, wife and two children. They bought an apartment using maternity capital for this. It is mandatory to divide the property into equal parts and allocate 25% to each family member. As a result, only 50% remains with the husband and wife, and the rest belongs to the children. In the event of a divorce, the spouses will divide only their share among themselves, but have no right to share the share of the children.
The procedure itself will not differ in any way from the standard options, but the interests of children must be taken into account. As a rule, spouses cannot get along in the same living space. They go to court to determine who stays with the apartment and who moves out anyway (and usually receives the value of their share as compensation). In the case of the presence of children, the problem is solved quite simply: the property remains with the one with whom the children remain.
Features of the use of maternity capital for mortgages
If the apartment was purchased on credit using maternity capital (as a down payment or other payment options), the division of real estate will go on a general basis, but taking into account the share due to each spouse, as described above. However, the loan amount is not shared by all family members, but only by parents. As a result, owning only 25% of the property, each parent will be required to repay 50% of the debt.
Example: An apartment worth 3 million rubles was purchased on credit using maternity capital. There are four people in the family: two spouses and two children, each of whom is entitled to 25% of the property. The loan repayment amount is 30 thousand rubles per month. In the event of a divorce, this amount is divided not into 4, but into 2 parts. That is, the husband and wife are required to repay 15 thousand rubles a month.
There is an alternative option, possible if the owner of the maternity capital wishes. You can require the second party to return the amount of maternity capital and half of all payments made. In practice, this is rarely used.
How to divide maternity capital between children
As already mentioned, if maternity capital is used to buy or build real estate, as well as to improve living conditions, it is imperative to allocate a share to each child (clause 4, article 10). A specific proportion is not indicated, but it must be equal for each child. In practice, usually real estate is divided into several identical parts, divided between the owners.
Separately, it should be noted the need to share property between all children, without exception. If maternity capital is received after the appearance of a second child, the apartment is divided not between three people (parents and one child), but between four (two parents and two children). Moreover, after the appearance of the third child, it is necessary to once again divide the property into more parts, allocating an equal share to the third child at the expense of a small decrease in the shares of each of the existing owners. A similar operation must be performed every time after the appearance of a new child.
Example: The apartment was originally registered for a husband and wife. After the birth of the first child, there are no requirements for the redistribution of property, so the husband and wife each have 50% of the property. After the birth of the second child, provided that living conditions improve, the apartment is divided into 4 parts, 25% for each spouse and each child. When the third child appears, the apartment will need to be divided into 5 parts, 20% each, and so on.
The use of maternity capital sometimes causes many problems when dividing property during a divorce. If one of the parties does not know the laws and tries to claim for itself what cannot belong to it by definition, this does not mean that a person cannot sue. The features of such cases may vary in each individual case, and in order to deal with all claims, we offer to discuss the issue at our free consultation. Experienced lawyers will help solve the problem, give comprehensive explanations and help with all the elements, from preparing a document to representing the client’s interests in court.
Between spouses, as it is targeted support from the state. Upon divorce, the funds will remain with the owner of the certificate for maternity capital.
The owner of the document has the right to submit an application for the disposal of funds (or a certain part) Anytime after the child is three years old from the date of birth. But if you need to pay the down payment on a loan or loan to purchase a home with these funds, you can use them at any time, without waiting for the child to turn three years old.
Also effective January 1, 2018 new law No. 432-FZ of December 28, 2017, according to which maternity capital can also be spent until the child reaches the age of three to pay for paid educational services.
As for the property that was acquired with maternity capital, it will not have to be divided, because it will already be in the shared ownership of each family member.
If the family bought an apartment on a mortgage, and repaid part of the debt from maternity capital, but decided that they would be required to pay the rest of the mortgage loan in half.
How is maternity capital divided in a divorce?
- when he independently adopts a second and subsequent child;
- the mother of the child dies, or the court recognizes her dead;
- mother was deprived of parental rights;
- the mother has committed a crime against her child or children;
Is maternity capital divided between spouses during a divorce?
Usually, in a divorce, the jointly acquired property is divided in half. everything that was acquired at the time when the spouses were married is recognized (clause 1, article 34 of the RF IC - the Family Code of the Russian Federation).
Maternity capital, as a rule, is also acquired during the marriage of spouses, but the reason why maternity capital is not subject to division is that it has a special purpose - financial support for the family who has two or more children. A cash, obtained on the target as a rule, .
The amount of money indicated in the certificate for maternity (family) capital in relation to property can be spent on improving the living conditions of the family (Article 10 of the Federal Law No. debt on purchased housing in a mortgage or use as a down payment on a mortgage.
The Sidorovs decided to end their marriage and family relationship. They decided to divide their jointly acquired property - a residential building by ½ share to each. In addition, the spouse has a certificate for maternity capital to receive a certain sum of money. Dividing such an amount for two is prohibited by law, the funds indicated in the document will remain with the spouse and she will be able to spend them exclusively for purposes established by the state.
Division of housing purchased for maternity capital
In 2019, the maternity capital is 453,026.00 rubles and its size will remain unchanged until January 1, 2020 in accordance with Art. 12 of Law No. 444-FZ of December 19, 2016.
It is impossible to buy housing for the above amount in our country. Accordingly, many families use maternity capital in order to partially pay for the purchase of housing. When buying a home with funds from maternity capital, regardless of this, or - real estate will be registered in shared ownership(clause 4, article 10 of the Federal Law No. 256).
Usually belong in equal proportions to the husband, wife, and at least two children. But it is not uncommon for one of the spouses to decide to leave the family.
In this case, the share of each family member has already been determined, and, accordingly, only other property acquired during the marriage can be divided during a divorce. In this case, allocate a share in the apartment in nature is impossible, since there must be a separate exit for this. In this case, the husband may demand , equal to the value of his share and give his share to his wife.
The Petrovs, who have two children, decided to buy a four-room apartment. The amount of money for the purchase of property consisted of family savings and maternity capital. The apartment was bought and registered in the ownership of 1/4 share for each family member. After 5 years, the couple decided to end their marriage. The spouse does not have the right to divide the apartment in half, since the shared ownership of each was already initially established on the property. The husband received compensation for his share in the amount of 1,000,000 rubles and refused it.
How is an apartment bought with maternity capital divided during a divorce?
For those purchased on credit, the same requirements apply as for real estate without encumbrance. If a person, when registering, uses the funds of maternity capital, then you will have to issue an apartment in common ownership.
The Ivanovs decided to purchase a four-room apartment on a mortgage, and part of the debt was paid from maternity capital. The share of each family member in this apartment is 1/4. The couple decided to divorce. By law, debts acquired during marriage are also subject to division in equal parts between the spouses. That is, the remaining part of the loan debt, the spouses are required to pay, after dividing this amount in half.
Questions from our readers and answers from a consultant
Hello! We want to divorce my husband, we have two children and we have a certificate for maternity capital. How will the amount of money indicated in the certificate be divided if the document belongs exclusively to me? Can I use it after a divorce?
The amount of money indicated in the document is not subject to division. It is aimed at financial support for families with two or more children. It is impossible to divide it in half with a spouse. After the dissolution of the marriage, you, as the owner of the document, will manage the funds, but only for certain purposes established by the state: getting an education for a child, buying real estate - residential premises, and also forming your future pension.
Hello! Do I have the right to receive maternity capital if my son died at the age of 11 and I am expecting a second child?
Yes, after the second child is born, you have the right to receive maternity capital. To do this, you must provide documents confirming the birth of the first child (they can be requested from the registry office).
“My husband and I are getting divorced, we have two children. The maternity capital certificate was issued in my name. The husband threatens to take away half of the maternity capital in the process of dividing the joint property. Is he really entitled to half?Olga, Moscow
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 personal certificate in the name of the mother who gave birth or adopted a second, third or next child. And only she, as the recipient of the certificate, can dispose of the capital.
The amount of maternity capital depends on the number of children in the family (for example, the mother will receive a larger amount for the third child than for the second). The capital can be used for one of the purposes provided for by law:
- paying for a child's education;
- increase in the mother's funded pension.
One way or another, mat capital comes to the family. Therefore, in the process of dissolution of marriage and division of property, spouses ask a reasonable question - how is maternity capital divided during a divorce.
Is maternity capital divided?
According to the norms of family law, not only movable and immovable joint property, but also cash payments are subject to division between divorcing spouses. An exception to this rule is targeted cash payments (benefits and subsidies from the state).
Therefore, maternity capital is considered a state target payment - it is not considered jointly acquired property and is not subject to division between spouses. In the event of a divorce, the certificate of maternity capital will go to the one in whose name it was issued.
As a rule, it is issued in the name of the mother. But in some cases, the father also has the right to receive a certificate.
If the spouses are divorced, is it possible to use maternity capital?
The emergence and termination of the right to maternity capital occurs on the terms 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 somehow affects the right to use maternity capital.
As mentioned above, the maternity capital certificate is nominal. In most cases, the mother receives it, whether she is married or divorced. Even if the mother's marriage with the father of the children is dissolved, she still has the right to use maternity capital.
If a house/share in an apartment is purchased using maternity capital after a divorce, its owners will be the mother and children. What will be the procedure for the division of housing acquired before the divorce, read below.
Does a husband have the right to maternity capital during a divorce?
Not! Divorce and division of property are not grounds for transferring the right to maternity capital to the father.
But does the father of the child really not have the right to claim maternity capital, at least for a small part?
In some cases, the mother loses the right to maternity capital, and the father of the children acquires it. For example, if:
- the mother has committed crimes against her own child;
- mother died;
- the mother is declared dead or missing by the court;
- the adoption by the mother of the child has been terminated;
In addition, a father can receive maternity capital if he alone brings up two or more children, including adopted ones.
In these cases, the right to maternity capital acquires ex-husband. But, it is quite obvious that these cases have nothing to do with divorce.
Division of property purchased with the participation of maternity capital
If at the time of the divorce, the maternity capital certificate has not yet been used for its intended purpose, it remains with the one in whose name it was issued. But what if the funds of capital have already been used for one of the purposes?
As a rule, mat capital funds are used to improve housing conditions, for example, paying a down payment when concluding a mortgage agreement, contributing a share to a residential real estate construction account, and so on.
How is the apartment / house / mortgage bought with maternity capital divided during a divorce?
If maternity capital is used to buy an apartment or house
According to the norms of the Federal Law “On measures of state support for families with children”, residential real estate acquired using maternity capital is registered for all family members - in equal shares. For example, if a family of four (father, mother and two children) bought an apartment using maternity capital, each family member receives a 1/4 share of the apartment. Nothing can be concluded - the shares are distributed strictly in accordance with the law.
When a marriage is dissolved, each of the spouses can only claim their share in the joint real estate. To divide such property, the spouses will have to independently conclude a written agreement on the division of property or go to court for resolving the dispute.
There may be several options for the division of real estate owned by spouses by right of shared ownership (for example, in the form of other property or a cash payment). The main thing is that during the division the rights of children, who are also the owners of their shares, are not infringed. Therefore, in order to sell housing for the purpose of dividing the proceeds, it is necessary to obtain permission from the guardianship and guardianship authority.
If the maternity capital is used in the form of a down payment when drawing up a mortgage agreement or in the form of repayment of a part of a mortgage loan
When buying residential real estate with a mortgage loan using maternity capital, the same rules apply as when buying real estate without a loan.
The main rule is that the shares of property of all family members (father, mother and children) must be equal.
But the process of dividing this property has several features:
- the obligation to pay a mortgage loan between the divorcing spouses is divided strictly in half, although their shares in common real estate may be less (for example, 1/4 for each if the family has two children);
- until the loan is paid off, it will not be easy to sell a mortgage apartment. Such a transaction will be made by a bank, the price of real estate will be lower than the market price, and the amount of debt will be taken from the proceeds. To independently sell an apartment, you must obtain permission from the bank. In addition, you need to obtain permission from the guardianship authority.
You can read about how a mortgage is divided during a divorce with children.
If maternity capital is used to repair residential property, expand or rebuild
As in previous cases, the main requirement is the registration of residential real estate in common shared ownership. In this case, the shares of each family member should be equal. The division of real estate is carried out on a general basis.
When dividing property in the form of real estate in a divorce, sudden difficulties often arise that raise many questions. For example, many who are going through a divorce do not know how to divide an apartment that was bought for mother capital.
Dear readers! The article talks about typical ways to solve legal issues, but each case is individual. If you want to know how solve exactly your problem- contact a consultant:
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At the same time, the court bodies are guided by the Civil and Family Codes of Russia. The presence of spouses of children introduces additional amendments that are related to the need to respect the rights of children.
What it is
The issuance of maternity capital is one of the measures of state assistance to families at the birth of children. This assistance is issued in the form of a personal certificate in the name of the mother who gave birth or adopted the second, third and subsequent child.
And only she can decide what to spend the capital on.
The amount of the mother's capital certificate will depend on the number of children in the family.
This assistance can be directed to the following tasks:
- Improvement of living conditions.
- Paying for children's education.
- Increasing the mother's funded pension payments.
In any case, mother capital comes to the family. Therefore, when dissolving a marriage and dividing property, spouses often ask themselves the question of how this capital can be divided in this case.
Who will get
In a situation where the family has broken up, the spouses should know how to divide joint property. If the capital was not used, then they must understand who, according to the law, will get state funds.
State assistance in the form of mother capital is not given to the whole family, but to a certain person. Usually it is issued to the mother. At the same time, the legislation does not include it in the common property of the spouses. Therefore, the husband usually does not have rights to it.
Although there are exceptions:
- The mother was deprived of parental rights.
- The mother is dead or recognized by such a court.
- Her adoption was cancelled.
- The mother was sued for a crime against children.
These situations can lead to the fact that the mother capital will be issued to the father of the children. He can spend the money for his purposes, which are prescribed by law, including for the purchase of housing.
In certain situations, the children themselves have the right to receive state aid until they are 23 years old.The rules for the division of property between former spouses after a divorce provide for the following provision: targeted subsidies are not common property, which means that they are not subject to division.
Thus, if the money has not yet been invested, then the mother's capital is not divided upon dissolution of the marriage, but remains to the one for whom the personal certificate was issued. The other spouse is not entitled to it.
How is an apartment bought with maternity capital divided during a divorce
One of the most common options for investing mother's capital is the purchase of an apartment. But if the marriage was annulled, you need to know what to do with the apartment purchased for earmarked funds.
How is an apartment bought with maternity capital divided during a divorce?
According to the law, an apartment purchased with the help of this state payment must be drawn up as follows:
- Part of the shares in the apartment is issued to the children.
- The rest can be left to the parents.
For example, each of two children receives 1/4 share, and mother and father draw up this share.
As a result, real estate that was purchased with family capital is also not divided during a divorce. After all, if the apartment is from the very beginning determined in the shared ownership of the spouses and their children, then the rights of each of its owners are already determined in advance.
As a result, it may be said that the living quarters were divided in kind. But this is allowed only if the apartment can be so transformed that the result is two isolated rooms that are suitable for living. This is probably not always the case.
Video: Maternity capital in a divorce
Important Points
Matkapital is not subject to division upon divorce. After all, this assistance from the state is intended to improve the living conditions of children. There are children in the housing, which was purchased at her expense, along with their parents.
Therefore, parents are entitled to only half of the disputed real estate, and only they can divide it during the divorce proceedings.
The possibility of dividing this apartment is limited by its price, or rather, the amount that the spouses added to the capital for the acquisition.
Options
The legislation provides for two options for dividing an apartment acquired with the participation of mother capital:
- Extrajudicial.
- Judicial.
At the extrajudicial stage, with a peaceful separation, the spouses sign an appropriate agreement. Its main condition is the observance of children's interests. They usually stay with their mother.
In this case, the spouse can give up his part of the apartment in their favor. Instead, he is entitled to other property with a value similar to the value of his share or the refusal of the mother to pay alimony.
When the parties cannot agree or the terms of the agreement do not suit one of the spouses, the conflict of property division is analyzed by the court.
The statement of claim is filed at the place of residence of the defendant or the location of the apartment. If children under the age of 18 live with the plaintiff, he can apply with statement of claim to the judicial authority at the place of residence.
The following documents must be attached to the claim:
- Certificate of divorce and birth of children.
- Expert opinion on real estate appraisal.
- Power of attorney.
- Receipt for payment of state duty.
- Purchase agreement.
- Documented data on the expenditure of mother's capital for the purchase of an apartment.
At the court session, everyone's ability to make payments is checked, attention is drawn to who the children will stay with. In addition, the state of health of former spouses and children is taken into account.
mortgage housing
A somewhat different situation is when credit funds are attracted to buy an apartment. After all, a family that has debts dissolves a marriage. And according to the Family Code, they are also divided if there is no agreement.
Therefore, in addition to property, each spouse will receive obligations to repay the loan.
In this case, the actual parts per square meters may not be determined. Legislation requires their allocation only after registration of ownership. And it will appear after the payment of the loan.
In this situation, attention is drawn to the obligation to divide into all the housing premises that were purchased for the mother's capital. In case of divorce, the document signed earlier will be considered. That is, everyone will receive at least one quarter.
None of the spouses can claim the majority. All square meters are divided equally between mother, father and children. But debts can be divided unevenly.
If the mortgage loan has not yet been paid, but one of the spouses refuses to pay the loan, the lender can demand this amount from the other. This is due to the fact that usually a mortgage loan is issued for the whole family, while the spouses act as co-borrowers.
In the most serious situation, we can talk about terminating the agreement - then the purchased apartment will be sold by the lender, and the money received will be used to pay off the loan.
To prevent this, it is better to conclude an agreement with the lender on the early repayment of the loan, register the apartment as a property, and then it will be possible to sue the issue of collecting from the second party the funds that the banking organization had to pay.
Use of a shared apartment
After the dissolution of the marriage, one of the spouses can exchange his part in the apartment for other valuable property, reach an agreement on paying its price, or simply sign an agreement that part goes towards the payment of alimony.
In the latter situation, it is necessary to draw up an agreement with a notary and formalize the transfer of the part not to the ex-wife, but to the property of the children.
In another situation, the spouse will not only be left without rights to real estate, but also will not be considered to have fulfilled his obligations under alimony.
If the father of the family does not want to be left without his part, then he retains the right to use the apartment - and without his consent, no one new can be moved into the premises. Even if the housing was purchased with a certificate for maternity capital, leave ex-spouse without this right it is forbidden.
There is only one way left here - the redemption of the part belonging to him or its exchange for property of equal value that appeared during the marriage.
Partition by sale
There is another way how to sell an apartment and then dispose of the funds received. Often this is easier than trying to get along together or hoping for parts of the property.
However, when using this option, you need to remember certain nuances:
- The sale of parts that belong to children is possible only with the consent of the guardianship authorities.
- If new housing was purchased with the money received, then the children should receive no less parts in it than in the previous one.
- The area of the new housing should not be less than the previous one.
However, meeting these requirements can be difficult. Therefore, selling housing in order to then divide the funds among themselves is not a good idea.
