Division of Russian maternal capital invested in an apartment

The law guarantees paying money for the birth of the second or more children. Former newlyweds often face the division of the purchased property using state money, housing.

The division of maternity capital is a frequently asked question during divorce in court.

Examples from our jurisprudence:
During the marriage, the spouses had a second child and they partially repaid the mortgage with the help of maternity capital. The apartment was registered only to the husband.
After the marriage was dissolved, the ex-wife filed a statement of claim against her husband for dividing the jointly acquired property and recognize her ownership of half of the apartment. The husband offered to transfer half share of the apartment to his ex-wife. But since the property was acquired at the expense of maternity capital, the division of shares could be made only taking into account the shares of children (1/4 for each).

According to the Civil Code of the Russian Federation, not only property, but also obligations are recognized as jointly acquired. When the property is purchased with maternity capital, the family member who has a proprietary right to the apartment issues a notarial deed. In it, they undertake to register the dwelling belonging to them for their children. In accordance with the law on mortgages, the owner indicates that they remove the mortgage and reregisters the apartment for the child only after the loan is fully repaid.

Thus, the notarial obligation is recognized as a joint obligation of the spouses, as well as a loan one and any other.

Let's consider two cases in which the division of maternity capital shares has not yet been made at the time of the property division in court:
1. In the first case, by the time the apartment is divided in court, the mortgage has already been paid off.

When dividing property, the court must determine the rights of children.

The spouse demands to recognize her proprietary right to half of the housing, and the ex-husband claims counterclaims to determine the shares for the children. The court will satisfy the wife's claim but recognize her proprietary right to only a quarter instead of half. The husband's demands will be fully satisfied and the court will determine the size of the children's rights at 1⁄4 for each. If by the time of the jointly acquired property division the mortgage has already been paid, then the court allocates a quarter of living space to each.

2. In the second case, the property is divided when the mortgage is not repaid and the apartment is still pledged.
The court will satisfy the wife's requirements and determine half for each of the spouses. The obligation to re-register an apartment or house for children arises from the moment when the mortgage is paid off. The husband can file a counterclaim for recognizing his obligation as joint and re-registering the apartment for children, as well as obliging his ex-wife to formalize the right to children in accordance with the Federal Law of December 29, 2006. No 256 "On additional measures of state support for families with ...".

If there is an outstanding mortgage, the court will make a decision: to recognize the property right of the spouses to the apartment in half, and to oblige the spouse, after paying the mortgage, to formalize her rights to the children.

As a result, all property rights will be distributed by 1⁄4 for each of the spouses and children.

How are the shares of children determined if maternity capital was used?
When using maternity capital, the rights of children must be at least the amount of maternity capital spent. For example: an apartment worth 4 million rubles, 400,000 rubles maternity capital. Thus, according to the law, the child's share must be at least 1/10 in the apartment (400,000 from 4,000,000.) However, in practice, the courts determine the rights equally. In this case, for 400,000 maternity capital, the child will receive property for 1,300,000 rubles (Calculation of 4 million / 3 people (2 parents and a child).

If you have a question about the division of joint property in Moscow, Kemerovo, or other cities of Russia, our law firm is ready to provide comprehensive legal assistance in this.

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