Use of maternity capital in a divorce. Section of an apartment in a divorce purchased on maternity capital

Maternity capital is the payment of financial assistance to a family at the birth or adoption of a second and subsequent child. When a marriage is divorced, maternal capital often becomes a subject of controversy, since not only the mother, but also the father of the child claims for money. In the article, we will consider how these funds and property acquired with their use are divided during a divorce, and also when the father can receive maternity capital.

Who can get maternity capital and what is it allowed to spend on

Payments at the birth of the second and subsequent child are approved by the Law of the Russian Federation of December 29, 2006. No. 256-ФЗ. The terms originally established by law have been repeatedly extended. To date, the program is officially valid until December 31, 2018.

According to the law, the right to capital has:

a woman who has given birth or adopted a second child after January 1, 2007;
father or adoptive parent of the child;
child, if the parents have lost their right to capital.

The law also defines the goals for which these funds can be spent. The list is as follows:

improvement of family living conditions: purchase, repair and reconstruction of a house or apartment, repayment of a mortgage loan, participation in shared construction or a housing cooperative;
child education;
the formation of the funded pension of the mother or father;
social rehabilitation of a disabled child.

How is capital divided in a divorce?

Divorce may result in disputes over the right to capital. According to Art. 38 of the Family Code, upon divorce, only jointly acquired property is subject to division, and based on Article 34 of the RF CC, family capital is not. Thus, upon divorce, the certificate will remain the property of the person for whom it was issued.

When a father can issue a certificate in his name

During a divorce, the father will be able to dispose of the certificate if it was originally drawn up in his name, or the right to him was transferred due to certain circumstances. This is possible if:

a man independently adopted a second child, provided that the court decision entered into force no earlier than January 1, 2017;
the mother of the child died or was found missing by a court decision;
the mother is deprived of parental rights or committed a crime against the child.

How to divide shares in an apartment purchased with maternity capital

The legislation established the basic requirement for registration of the right to housing, which was purchased or built using a certificate. The right of ownership should be allocated to all family members, including children. Thus, in case of a divorce, the husband and wife have shares in the apartment, and each of them can only manage their share.

The apartment usually remains to the former spouse with whom the children remain. If they live with their mother, the father can issue a donation for his part of the housing in favor of the children by paying alimony or by obtaining the sole right to other property acquired in marriage.

Spouses when divorcing must take into account the following points regarding such housing:

ex-husband after a divorce has the right to reside in an apartment;
a woman cannot register third parties in the apartment without the consent of her ex-husband;
the court cannot make a decision obliging the father to abandon his share of the property.

If the certificate is not issued in the name of the husband, then he has the right to apply for the apartment in the case when it was acquired before the dissolution of the marriage. Otherwise, housing is issued only to the mother and children.

Features of the section of housing purchased in a mortgage

When buying a home and using maternity capital and a mortgage, housing should still be issued to all family members. Since the property of minor children cannot be transferred to a mortgage, at the time of obtaining a loan, the certificate holder signs an obligation. It indicates that after the repayment of the mortgage in the housing will be allocated shares to all family members.

The issue of repayment of the loan and the division of the apartment is decided by agreement of the parties or in court. So, if the spouse acted as co-borrowers, then they have the same obligations to the bank, regardless of how much of each of them will receive in a divorce. At the same time, the share of the part of the cost covered by the maternity capital, namely from 453,026 rubles, must be allocated without fail. Therefore, if one of the spouses proves in court that the loan was repaid to a greater extent at the expense of his personal funds, he may be awarded more than 1/4 of the housing.

All questions of interest can be asked in the comments to the article.

The state program for issuing maternity capital is a measure to increase the well-being of families and stimulate fertility. It is represented by the issuance of a certificate in the name of the mother who gave birth to the second, third and subsequent child, or adopted one. However, how is the apartment divided by maternity capital divided in a divorce.

The amount of financial assistance allocated directly depends on the number of children in the family, so with each new addition a large amount is paid. Her waste can be made for the following purposes:

to improve the living conditions of the family and the child born;
payment for the education of the baby in the future;
to increase the funded part of the mother’s pension.

It is worth noting that only these goals are legitimate and you cannot spend state money on anything else. However, unpleasant situations like divorce of spouses happen for certain reasons. What happens to maternal capital in such a situation and how it is divided. You should understand this better and delve into the topic.

Can I split the money received?

This is the very first question that arises in a similar situation - whether maternal capital is divided during a divorce. One way or another, there is a very specific answer. Based on current legislation, a section can only be implemented if it concerns movable or immovable property acquired together, as well as cash payments.

And here there is an important exception - targeted cash payments in the form of benefits, subsidies from the state. Since uterine capital is subsidized by a similar genus, one can give a very unambiguous answer - it is not subject to division between spouses during divorce.

The certificate, as well as the entire amount indicated in the event of a divorce, remains with the person in whose name it was issued. As mentioned earlier, most often it is issued in the name of the mother of the child. But there are exceptions in which the father has the right to receive it.

Does uterine capital divide after a divorce?

The law governing the receipt of maternity capital, as well as the termination of the right to receive it, says nothing about divorce. Also, nothing is said that the divorce in any way affects the right to use the funds that have already been received under this program.

The fact that the granting of subsidies is made in the name of the mother of the child has already been mentioned. Moreover, there is no difference - she is currently married, or divorced. She has the right to fully use the funds of maternity capital even after the marriage is dissolved.

In the event that a dwelling was purchased for maternity capital, it is completely transferred to the use of mother and children. But this issue should be considered in more detail, since the order of dividing housing in this case occurs according to several schemes.

Does the husband have the right to maternity capital in a divorce?

If we are talking about maternity capital and divorce, then definitely - no. As mentioned earlier, upon divorce and division of property, the father does not have any right to use the funds of the capital. However, there are a number of exceptions in which the father can still get the right to use the law.

The father acquires the right to use when his mother loses it, and this happens in cases:

mother committing a crime against her child;
death of mother;
recognition of the mother as missing or dead by the court;
when she stopped the adoption of a child;
deprivation of parental rights, regardless of the reason.

Also, the father has every right to receive mother capital in the event that he alone brings up two or more children. However, here we are talking about an ex-husband left with children as a result of unforeseen circumstances, including with adopted children. None of these cases has anything to do with divorce.

Measures applied to spouses in case of refusal to pay a mortgage

A particularly unpleasant moment is the termination of regular mortgage payments after a divorce. In such cases, the banking institution issuing the loan comes into play. It has the right to sell housing purchased by the former spouses in their own needs for a refund. The balance is given to former customers, if any.

Obviously, the disadvantage of this situation:

mortgage prices are much lower than average market prices;
both spouses lose their rights to square meters of housing and remain without it.

Section of property purchased using maternity capital

In the case when, at the time of the divorce, the certificate on the issuance of state subsidies was not used, it definitely remains with the original owner. But what to do when the divorce occurred after the money had already been spent for its intended purpose?

Usually, options for legal spending on capital means improving housing conditions, purchasing it, paying the first installment when buying an apartment for a mortgage. It can also be participation in shared construction, but how is maternal capital divided during divorce?

How does the section happen

Basically, with an official divorce followed by a division of jointly acquired property, the following options are provided:

4/5 of an apartment or a house is allocated to a woman, and the current loan is divided into former spouses in equal amounts;
a man has the right to sell his own 1/5 share to his ex-wife and continue to repay the loan, indicating the amount received from the sale as a deduction;
the mother can also exchange her allotted shares for other housing.

In the case when the dividing of housing occurs, the mother must have with her documents proving the fact that the housing rights of her children were not violated. Consideration of such cases takes place in accordance with the rule of general jurisdiction. However, there are cases of divorce in an alternative manner.

The complexity of the second case lies in the definition of an apartment acquired using maternity capital. A lawsuit may be filed on the initiative of the plaintiff even if the whereabouts of the defendant are not currently known. With this option, a lawsuit is filed in relation to where the property of the latter, or part of this property, is located.

How to divide an apartment bought on maternity capital during a divorce? One way or another, an apartment purchased at the expense of the capital cannot be the property of only one person. However, this does not negate alternative jurisdiction. An application for divorce can still be submitted at the location of the dwelling acquired with public funds. As long as the dispute exists, the marriage is not subject to dissolution in the registry office.

If maternity capital is used to purchase an apartment

Under the current law “On measures of state support for families with children,” real estate acquired for state assistance is executed in an equal share for each family member. This means that if an apartment is purchased for a family of four with partial help from the maternity capital, then each member of the family receives 1/4 of the share. Since these shares are distributed in accordance with applicable law, there can be no redistribution of them.

If the marriage is dissolved, then each spouse can only rely on their own share in the jointly acquired real estate. To divide it, you will have to personally conclude a written agreement on the division of property and in the future, contact the judicial authorities to resolve the disputed issue.

There may be several such options for the section. For example, a share can be allocated in kind, received in the form of compensation by other property, or in cash. The only rule here is that the process should not infringe on the rights of children who own their shares. For this reason, the sale of housing with the separation of proceeds is possible only after obtaining the appropriate permission of the guardianship authority.

Division Features

In order to understand in more detail how to divide an apartment bought for maternity capital during a divorce, one should take into account the method of its investment. As a rule, this creates conditions when each of the spouses claims their rights to a part of the property acquired during the marriage. The complexity of this issue is the fact that people do not draw up separate ownership until a similar question arises.

Another thing is when the role of real estate is a house purchased using a state subsidy. The law here requires the obligation to divide square meters in equal shares for each family member, and the section must be documented. Only if this document is properly certified will the pension fund allocate funds. However, the allocation of property is also possible:

immediately, in the event of the conclusion of an ordinary contract of sale;
after some time, for which borrowed funds are used.

However, in both cases, the following is strictly prohibited by law:

division of square meters in another way, leaving equal shares to each member of the family, which is especially true for children, including minors;
infringement of each other's rights, in addition, when there is a voluntary renunciation of property.

In the case when the apartment has already been bought and partially paid by means of a certificate, it is the responsibility of the spouses to divide it into equal parts. As mentioned earlier, if the family already has two children, then they will receive a quarter of the square meters in the property. That is why those who divorce should decide how to exercise their rights:

continue to live together in this living space;
whether there will be a sale, followed by the purchase by each spouse of a separate apartment;
one of the partners will pay another part of it.

Of course, the shares of toddlers or growing children will go only to the one with whom they will remain. Legislation prohibits the sale of sole children's housing. However, this is a resolved issue, since it is only necessary to prove that new real estate will be bought with the money received from the sale.

If maternity capital is used for mortgages

In fact, there is absolutely no difference in the division of real estate purchased in a mortgage with the involvement of maternity capital. Indeed, for her, practically the same rules apply as for the acquisition of housing in the usual way without a loan. The main rule here is similar - all shares of property of family members should be completely equal.

The difference is only the process of dividing this property, it includes:

mortgage loan obligation, which is divided equally between the former spouses, even if one of them has a smaller share, for example, the mother remaining with two children may remain 3/4, and the father 1/4;
as long as the loan is not paid, the sale of an apartment is almost impossible.

The whole difficulty lies in the fact that only the bank that issued the loan is entitled to enter into a transaction here, and the price of such real estate is several times lower than the market price. Also, part of the proceeds will go immediately to the payment of debt. To engage in the independent sale of such an apartment, you must obtain permission from the creditor bank. In parallel with this, it is necessary to acquire the permission of the guardianship authority.

The nuances of the division of mortgage housing

Different situations with the acquisition of square meters for borrowed funds differs only in the division of debts between former spouses. According to the family code, debt is also divided, as well as property itself in the case when there is no agreement of the parties. Thus, each party after the division also receives obligations to pay off current debt.

Along with this, property shares in square meters may not be determined. By the legal method, they can be distinguished only after the registration of the property right, and it can appear only when the loan is paid.

In this option, all existing obligations to divide the living quarters into all are taken into account. As it was discussed earlier, with this option, everyone gets one quarter.

After the court session, the solvency of each spouse is revealed, and also the question arises regarding who the children will remain with. Attention is paid to the health status of each of the former partners, as well as their children. As a rule, when divorcing maternity capital, children remain with their mother. That is why, most of the debt remains in the hands of men. But, along with this, this obligation does not give him absolutely no additional rights to housing.

Summarizing

Given the fact that none of the family members can claim a large share and all square meters are divided equally between father, mother and children, the law prefers the voluntary agreement of the partners.

Moreover, monetary liabilities can be divided disproportionately. The intervention of the state through the judicial branch of power occurs only when the former spouses, when divided, cannot come to a common agreement. That is why it is worth thinking several times before deciding on such a complex and desperate step.

You may be interested in other articles on this topic:

How to use maternity capital to purchase housing up to 3 years

The fate of maternity capital in a divorce situation worries many. On the one hand, everyone is accustomed to “sharing in half,” and some husbands who, due to illiteracy and some from revenge, threaten their wives to sue half of the capital. On the other hand, the name contains the word "mother", not "father", and money is intended primarily to meet the basic needs of the younger generation. Is maternity capital divorced during a divorce or not? Let's try to figure it out.

What is maternity capital?

Maternal (family) capital is the target social payment due to the mother after the birth of the second and each subsequent child, and when the third is born (or taken from the shelter), the amount increases. In this case, the mother does not actually receive cash or access to the bank account, the payment is issued in the form of a certificate of the established form, on which the amount of money is indicated.

You can’t go to the store with him: a certificate of maternity capital is accepted for offset by a bank or other organization only in one of the following cases:

purchase of an apartment or house, overhaul of existing housing, i.e., improvement of housing conditions;
payment for child's education;
replenishment of the funded part of the maternal pension.

It is often used either as a down payment when obtaining a mortgage loan, or vice versa - for early repayment of a loan already taken. This is the only case when you can use the resources of the mothercapital immediately, in all situations access to them is open only after the child is 3 years old.

Who gets the capital in case of a divorce?

There is only one answer to the question of how maternal capital is divided during divorce of spouses. This is a social payment, which is targeted in nature, that is, funds intended for certain needs. They cannot be cashed or otherwise used for purposes not prescribed by law.

Article 34 of the Family Code of Russia expressly states that any payments of a social nature, such as state financial assistance, are excluded from the list of general income and property. The objective reason is that the inflow of these funds does not depend on their own actions or inaction of the spouses. In fact, they are a gift from the state to a specific person and his children. Certificate of maternity capital - registered.

Therefore, the law does not say anything about how divorce affects the fate of capital. Even if the marriage is divorced, an already issued certificate continues to be valid. It follows that when sharing shared wealth, maternal capital cannot be the subject of a dispute as “common” property.

Both the certificate itself and the rights to implement it in any way possible remain with the mother. This is also due to the fact that it is with the mother after the divorce in Russian realities that most often minor children remain to live.

Note: in some situations, for good reason, the capital can go to the father, but in the same way - completely and completely.

Difficulty is represented by situations in which the capital has already been realized, for example, in order to get rid of a mortgage loan or to make a down payment for it. Any real estate purchased with the participation of this money will be considered to be jointly acquired property, and now it will have to be divided.

The husband's rights to the certificate

Under standard conditions, the husband and father of the children is deprived of any rights to “maternal” money. Although he is obliged to receive an equal share with everyone in the right of ownership of housing purchased with the participation of the capital, regardless of whether this social payment served as the first installment or the last. But the law allows a number of situations where an unrealized certificate can be taken away from the spouse and transferred to the father. All of them are connected with the inability of the mother to raise children. It can be:

The death of the mother.
Official (by court decision) recognition of her dead or missing.
Committing a crime against your child.
Deprivation of parental rights.

The last two factors are logically related - a crime against one’s own son or daughter unambiguously leads to the deprivation of parental rights. But these rights can also be lost for another reason - as a result of a proven immoral and asocial way of life, with an incurable severe mental illness, etc.

Please note: in Russian law there is no such thing as deprivation of parental rights in general. A mother, like a father, can be deprived of these rights only in relation to a specific child. If there are several children, it is possible both to preserve the rights of the parent in relation to other children, and their complete loss - with the wording “in relation to all children”.

In order for the mother capital to pass to the father, it is necessary that the mother lose the rights of the parent with respect to the second child. At the same time, two children are switching over to full support and upbringing of their father.

If a third child was born in the family, then a separate certificate is issued for him - funds for several certificates are not cumulative. From which man he was born - from a legal spouse or out of wedlock - it does not matter. It is enough that in fact for a woman this is the third child.

Therefore, the question that the husbands of many irresponsible women ask the lawyers - how can maternal capital be blocked during a divorce - is incorrect in form and content. Neither to block, nor to divide, nor to perform any other operations besides clearly stipulated in the law (No. 256-ФЗ “On additional support measures ...” dated December 29, 2006, which determines the nature and scope of the use of mother capital) is not possible with this money. You can only prove that the mother does not have the right to raise and support children, and only then she will lose the opportunity for targeted payment in relation to them.

Section of property purchased with the participation of the capital

This is one of the most difficult topics in the theory and practice of divorce proceedings. If maternal capital has not been realized, the mother is alive and has retained her rights to children, then the cherished “crust” remains at her sole disposal, cannot be withdrawn and divided. But if a young family managed to invest this money in shared housing, and then suddenly decided to get a divorce, this is the very difficult case.

Note: the thing is that by default it is believed that the husband invests in the purchase of housing (as is usually the case in practice). That is why it is impossible to leave the former spouse “overboard” when sharing housing.

Certificate used to purchase an apartment or house

In this case, the legislation says that the property rights to housing purchased with the participation of the “parent” certificate (even if the purchase was made without a mortgage and other means of credit) are equally divided into all family members. Family means only parents and their blood and adopted children. Thus, the minimum number of shares in this case is 4 (¼ per parent and child, because there are at least two children). If there are three children, each member of the family gets 1/5 of the ownership right.

When dividing property in the form of real estate during a divorce, sudden difficulties often arise that raise many questions. For example, many who go through a divorce do not know how to share an apartment that was bought for the capital.

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In this case, the courts 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 mothercapital is one of the measures of state assistance to families at the birth of children. This assistance is executed in the form of a personal certificate in the name of the mother who gave birth or adopted a second, third and subsequent child.

And only she can decide what to spend capital on.

The amount of the capital certificate will depend on the number of children in the family.

This assistance can be directed to such tasks:

Improving living conditions.
Payment for children's education.
Increasing mother's funded retirement benefits.

In any case, the capital comes into the family. Therefore, when divorcing and sharing property, spouses often ask themselves how this capital can be divided in this case.

Who will get

In a situation where the family broke up, the couple should know how to share joint property. If the capital was not used, then they should understand who, under the law, will get public funds.

State aid in the form of capital is given not to the whole family, but to a certain person. Usually it is issued for the mother. In this case, the law does not include it in the common property of the spouses. Therefore, the husband usually does not have rights to him.

Although there are exceptions:

Mother deprived of parental rights.
The mother died or is recognized by such a court.
In her regard, adoption was canceled.
Mother condemned for the offense against children.

These situations can lead to the fact that the capital will be issued to the father of the children. He can spend money on his goals, which are prescribed in the law, including for the acquisition 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 they are not subject to division.

Thus, if the money has not yet been invested, then the capital is not divided when the marriage is dissolved, but remains to the person for whom the registered certificate was issued. The second spouse does not have the right to him.

How is an apartment bought for maternity capital divided during a divorce?

One of the most common options for investing in capital is the purchase of an apartment. But if the marriage was dissolved, you need to know what to do with the apartment purchased for targeted funds.

How is an apartment bought for maternity capital divided during a divorce?

According to the law, an apartment purchased with this state payment must be issued as follows:

Part of the shares in the apartment is drawn up for children.
The rest may remain with the parents.

For example, each of the two children receives 1/4 of the share, and the mother and father draw up this share.

As a result, real estate that was purchased with family capital is not shared when a divorce is made. Indeed, if an apartment is from the very beginning determined in the shared ownership of spouses and their children, then the rights of each of its owners are determined in advance.

As a result, it can be said that the dwelling should be divided in kind. But this is allowed only if the apartment can be transformed so that the result is two isolated rooms that are suitable for living. This is probably not always the case.

Video: Divorce Maternity Capital

Important points

The capital is not subject to separation during divorce. Indeed, this assistance from the state is intended to improve the living conditions of children. In the housing, which was acquired at its expense, there are children together with the owners of the parents.

Therefore, parents have the right to only half of the disputed real estate, and only they can share 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 purchase.

Options

The legislation provides for two options for the division of an apartment acquired with the participation of the capital:

Extrajudicial.
Judicial.

At the extra-judicial stage, with peaceful separation, the spouses sign an agreement. Its main condition is the observance of children's interests. Usually they stay with their mother.

In this case, the spouse may abandon 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 mother’s refusal to pay child support.

When participants cannot agree or the terms of the agreement are not suitable for one of the spouses, the conflict of division of property 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 the plaintiff lives with children under 18 years old, he can file a lawsuit with the court in his place of residence.

The following documents must be attached to the claim:

Certificate of divorce and birth of children.
Expert opinion on the assessment of real estate.
Power of attorney.
State duty receipt.
Sale agreement.
Documented data on the consumption of capital for the purchase of an apartment.

The legislation prefers in this case the voluntary agreement of the parties to the divorce. The state through the court can intervene only when the couple cannot reach an agreement.

In a court session, everyone’s ability to make payments is checked, attention is paid to who the children will be with. In addition, the health status of former spouses and children is taken into account.

Mortgage Housing

A somewhat different situation is when credit funds were raised to purchase an apartment. After all, a family that has debts divorces. 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 meter may not be determined. Legislation requires their separation only after registration of ownership. And it will appear after repayment of the loan.

In this situation, attention is drawn to the obligation to divide into all the housing units that are purchased for the capital. Upon divorce, a previously signed document will be considered. That is, everyone will receive at least one quarter.

For the most part, none of the spouses can claim. 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 repay the loan, the lender may request 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 acquired apartment will be sold by the lender, and the money received will go to repay the loan.

To prevent this, it is better to conclude an agreement with the lender on early repayment of the loan, register the apartment as a property, and then it will be possible to sue the second party to recover the funds that the banking organization had to pay.

Use of a shared apartment

After the divorce, one of the spouses can exchange their part in the apartment for other valuable property, reach an agreement on paying its price, or simply sign an agreement that the part is used to pay child support.

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 former spouse, but to the property of the children.

In another situation, the spouse will not only be left without real estate rights, but also will not be considered to have fulfilled the obligation of alimony.

If the father of the family does not want to remain without his part, then he retains the right to use the apartment - and without his consent it is impossible to move anyone new into the room. Even if housing was purchased with a certificate of maternity capital, you cannot leave your former spouse without this right.

Here one way remains - the redemption of the part belonging to him or its exchange for property of equal value, which appeared during the marriage.

Section Using Sales

There is also a way to sell an apartment and then dispose of the funds received. This is often easier than trying to get along together or hoping for parts in the property.

However, when using this option, it is necessary to remember certain nuances:

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 children should receive no less parts in it than in the previous one.
The area of \u200b\u200bnew housing should be no less than the previous one.

However, meeting these requirements can be difficult. Therefore, to sell housing in order to later share the funds between themselves is not a good idea.

Maternity capital is state aid, which is issued in the form of a certificate for receiving funds to families in which the second and subsequent children were born.

In this case, the recipient of the certificate must decide where to spend the money, while observing their intended use. State funds may be spent, including, on the purchase of an apartment. In this case, after the divorce, the couple will receive one fourth of the apartment.

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