How to divide housing purchased with maternity capital during a divorce

Family law > How to divide housing purchased with maternity capital during a divorce

Divorce and the associated division of property are an unpleasant but common everyday situation. When divorcing spouses own a home, it is subject to division like any other assets they own. But if the property was purchased with the participation of maternity capital, this imposes its own specifics. Let's figure out how, according to the law, housing that was purchased with the help of maternity capital should be divided during a divorce.

• 2 How to determine the spouses’ shares in an apartment during a divorce
• 3 Features of the mortgage apartment section
• 4 Ways to divide an apartment
• 5 How to divide property voluntarily

  5.1 Sample agreement on division of property during divorce (photo gallery)

Legal requirements for the division of housing purchased with maternity capital

The division of common property of spouses in the event of divorce is regulated by the Family Code (FC) of the Russian Federation. Art. 34 of the RF IC classifies as joint all property that the family acquired during marriage, including various cash payments, and gives the right to this property to spouses who did not contribute to the income side of the family budget, but ran a household or took care of children.

Art. 39 of the RF IC prescribes that by default the shares of spouses in jointly acquired property should be considered equal, unless they themselves agree otherwise. But it stipulates that deviations from this rule are possible - in particular, in the interests of minor children.

However, in Part 2 of Art. 34 of the RF IC stipulates that the income of spouses, which is recognized as common property, includes payments that do not have a designated purpose.

Article 34 of the RF IC defines the key feature by which maternity capital does not belong to common property - the intended purpose of this subsidy

And maternity capital has this purpose - this is directly stated in Law No. 256-FZ. This is a government subsidy that can be used strictly for the purposes specified in the law. This means that maternity capital is not jointly acquired family property and cannot be divided between spouses.

As long as the spouses have not used maternity capital, the certificate simply remains with the mother after the divorce. But with the division of the apartment that was bought for it, the situation becomes more complicated.

The courts interpreted the legal requirements for the division of such property in different ways, until in 2021 the issue was finally decided by the Supreme Court (SC) of the Russian Federation. A family with two children in the Krasnodar region shared an unfinished house during a divorce. The district and regional courts decided that since the house was never put into operation, it was impossible to allocate shares in it to the children, as required by Law No. 256-FZ, which means that the unfinished building should have been divided between the spouses in equal shares. But the Supreme Court of the Russian Federation, referring to the intended purpose of maternity capital, canceled these decisions and considered that shares for children in unfinished construction should be allocated, and their distribution between spouses in a ratio of 50:50 is incorrect.

The Supreme Court of the Russian Federation in its Ruling dated January 26, 2016 in case No. 18-KG 15–224 clearly determined that maternity capital does not belong to the jointly acquired property of spouses

The ruling of the RF Armed Forces also put an end to the controversial issue of how to calculate the shares that are due to children - the amount of maternity capital, the share of which in the total cost of housing is often small, or the entire apartment. Previously, the courts took different positions. The RF Armed Forces dotted all the “e”s - from the entire apartment, if part of the cost was covered by the funds or property of one of the spouses acquired before marriage - that part of it that is considered jointly acquired property.

Arbitrage practice

If we analyze judicial practice in cases where maternity capital is involved in divorce, it becomes clear that, first of all, judges focus on the interests of minor children, and not their parents.

• The Zamoskvoretsky court received a statement of claim from Mr. Smirnov I.O., who asked to leave him an apartment purchased with a mortgage loan, citing the fact that his wife did not work during the period of making payments. The judge decided to divide the apartment in equal shares between Mr. Smirnov I.O., his ex-wife Smirnova N.A. and their two children together, arguing that targeted government payments were used to repay part of the mortgage loan.

To summarize, it can be noted that maternity capital cannot be divided during a divorce. If real estate was purchased using it, then it must be divided equally among all family members.

How to determine the spouses' shares in an apartment during a divorce

The spouses' shares in property acquired during marriage are divided equally by law. But in the case of maternity capital, it is necessary to take into account the parents’ obligation to register the housing purchased with their participation as common shared ownership.

If there are two children in a family, shares in the apartment are distributed equally by default - 25% to each. Any spouse has no right to claim more than 25%.

There are also frequent situations where, in addition to maternity capital, the assets of the spouses that they acquired before marriage or that they inherited were used to purchase housing. For example, a family bought an apartment for 2 million rubles. Of these, 0.45 million rubles is maternity capital, 0.55 million is the joint savings of the spouses, and another 1 million is the money that the husband received from the sale of an apartment inherited from his parents. Parental inheritance is not jointly acquired property, regardless of whether the heir entered into rights during marriage or before.

But the rest is distributed between the spouses in proportion to their contribution to financing the transaction. It turns out that 50% of the apartment belongs to the husband - he paid for it with the proceeds from the sale of the inheritance. The rest is divided equally among all family members - 12.5% ​​each. The husband retains 62.5%, and the rest of the family - 12.5%.

Matkapital and additional financing with a mortgage

If maternity capital is used when purchasing housing under a share agreement and/or a mortgage, then the obligation to allocate shares to family members arises from the owner of the property only after construction is completed and the loan is fully repaid.

Natalia Mikhailyukova

lawyer of the Russian Guild of Realtors

When purchasing an apartment on a share basis or a mortgage, the owner (future owner), before being able to manage the capital funds, signs an obligation in which he promises to allocate shares to family members after the encumbrance on the residential premises is removed.

The allocation of shares to children (spouse) must occur within 6 months from the date of removal of the bank collateral from the housing. In the vast majority of cases, the paper granting shares to family members requires notarization.

Natalya Trishina

Deputy Head of the Department of State Registration of Real Estate No. 1 of the Rosreestr Office for the Sverdlovsk Region

For state registration of the right to common shared property of parents and children, an agreement can be submitted to Rosreestr containing the provisions of the agreement for donating shares to children, as well as an agreement on the division of common property between spouses. Such an agreement must be notarized.

As Evgenia Svintarzhitskaya, a lawyer at BK-Real Estate LLC, notes, when allocating shares to children, not only a gift agreement, but also an agreement on the division of property can be used. In this case, the second spouse acts not only on his own behalf, but also on behalf of the children.

Evgenia Svintarzhitskaya

lawyer at BK-Real Estate LLC

If the apartment initially has one owner, then he assigns shares to family members in two stages: first, he transfers the shares due to them to the children, then he divides everything that is left with the second spouse. But this does not mean that a person will have to draw up and certify two separate documents. Today, notaries draw up everything in the form of one piece of paper.

Notaries also say that the entire multi-step procedure for allocating shares to family members fits into one document. According to them, in this case, a single document is drawn up - a complex agreement, according to which the spouse will allocate shares in the right to both the children and the second spouse, while simultaneously determining the legal regime of the spouses’ property. This legal regime is secured by a marriage contract or an agreement on the division of property of the spouses. The elements of the contract or agreement are included in the text of the main complex agreement.

About a year ago, the Department of Tax and Customs Policy of the Ministry of Finance of Russia issued letter N 03-05-06-03/59079 in which it actually recommended that notaries charge a minimum fee for processing papers for the allocation of shares in apartments purchased with capital. As Ekaterinburg realtors note, these notary services have actually cost quite moderately in the last year. Today, in practice, the cost of an agreement on registration of housing purchased using maternal capital into common shared ownership consists of the following parts: tariff - 500 rubles, technical work - 4,880 rubles, tariff for determining the legal regime of spouses' property - an additional 500 rubles. (prices and tariffs are current as of November 2021).

Features of the mortgage apartment section

If by the time of the divorce the mortgage has not been paid, the spouses will have to divide not only the asset, that is, the apartment itself, but also the liability - the balance of the debt on the loan taken for its purchase. Common debts are the same jointly acquired property as real estate, transport, savings, furniture, household appliances, electronics, etc.

Obligations for the mortgage debt are divided between the husband and wife. This is also jointly acquired property, which according to the law is divided equally. But if the shares between spouses are distributed in a different ratio, their mortgage obligations are divided in the same proportion as the shares.

Since maternity capital is allocated for the second and subsequent child, and the housing purchased for it is transferred to the common shared ownership of both parents and all children, it turns out that such an apartment has at least four owners. But minors cannot be borrowers, assume obligations to the lender and bear the financial burden. This is the prerogative of capable citizens. Therefore, the responsibility to repay the loan remains with the parents.

For adaptation of disabled children

Maternity capital can be used to purchase goods and services that help disabled children live in society. The Order of the Government of the Russian Federation defines a list of goods and services for adaptation. There are only 48 of them. You can buy wheelchairs, lifts, special baths and reading devices, but you cannot pay for therapy, diapers or medicine. The only available service on the list is the help of a reader-secretary. The list does not include nannies and nurses.

The money cannot be received immediately - first, the parents buy the goods themselves, and then send an application for payment and a report on expenses to the Pension Fund, and the Pension Fund transfers compensation to the mother’s account within 40 working days after submitting the application.

What to do before submitting an application to the Pension Fund:

Pass a medical and social examination.

The hospital where the child is being seen will issue a referral for an examination. With him, the parents go to the medical and social examination institution and write a statement that, for medical reasons, the child needs specific goods. The application must be accompanied by a referral, birth certificate or passport of the child, SNILS, certificate of disability, individual adaptation program for a disabled child (IPRA, it is developed at the medical and social examination institution), medical documents (outpatient card, extracts from medical institutions ).

The application will be reviewed and a conclusion will be issued that the goods are really needed. The application must be attached to the package of documents to the Pension Fund for payment of compensation.

The individual rehabilitation program must be valid on the date of purchase of goods or services. Otherwise, you will not be able to receive compensation from maternity capital.

Receive an inspection report from the social security authority.

It is compiled by a social security employee - you need to leave an application with social security, within five days after the application, an employee will come to your home, check whether the goods were actually purchased, and draw up an inspection report. It must be attached to the documents for the issuance of maternity capital.

Methods for dividing an apartment

Depending on the situation in the family, two options are possible:

1. Voluntarily.
2. Through the court.

When spouses are able to agree among themselves and independently resolve all controversial issues, voluntary separation is applied.

Voluntary division of property during a divorce can be compared to dismissal by agreement of the parties. In this case, the determining factors are not the requirements of the law, even if they exist, but the mutual agreements of the spouses.

There are possible options here. For example, a wife and children are left with the entire apartment, and the husband takes, instead of his share, a car and a garage, which the wife does not need. Even if the exchange is unequal, it’s okay, since the spouses themselves agree to it.

Well, if you can’t reach an agreement, and this usually happens, all that remains is to go to court and divide everything according to the law.

Where can you send maternity capital?

The law strictly defines the purposes for which maternity capital can be spent. These are education, a funded pension for the mother, improved housing conditions, monthly payments for low-income families, and goods and services for the adaptation of disabled children. You cannot buy a car, building materials or pay for an operation.

You can choose one direction or distribute maternity capital for different purposes - the law allows this. For example, leave part of it for a funded pension, send part to pay for the child’s education, and send part to improve living conditions. You can change your goals at any time until all your capital has been used.

An application for the distribution of maternal capital funds is submitted to the Pension Fund. You can do it in person, then the form will be issued at the branch, or through the official website of the Pension Fund or State Services. True, you will still need to come to the Pension Fund office with your passport and SNILS within five days after submitting your application online and sign the documents.

Sample of filling out an application for disposal of maternal capital

Sample of filling out an application for disposal of maternal capital

Sample of filling out an application for disposal of maternal capital

Sample of filling out an application for disposal of maternal capital

Sample of filling out an application for disposal of maternal capital

Sample of filling out an application for disposal of maternal capital

How to divide property voluntarily

If spouses are able to resolve property issues themselves, we can recommend the following sequence of actions:

1. Create a list of property that they intend to divide.
2. Agree on what will go to whom.
3. It is necessary to evaluate the property, since the amount of the state duty depends on its total value.
4. Draw up an agreement on the division of property. You can do this yourself, or you can entrust it to a notary who, according to the Family Code, must certify this document. There are no strict legal requirements for the agreement, but it is necessary to indicate the value of each piece of property that is mentioned in it.
5. Have the agreement certified by a notary. To do this, you will need three copies of the document - for both spouses and the notary, passports, marriage certificate, document confirming ownership of the apartment, confirmation that maternity capital funds were spent for their intended purpose, and money to pay for services and state fees. The work of a notary will cost an average of 3–4 thousand rubles, the state duty is 0.5% of the total value of the property, but not less than 300 rubles. and no more than 20 thousand rubles, which is mentioned in the agreement. But when a family with two children shares an apartment that was purchased with maternity capital, half of the apartment belongs to the children, which means that the cost of only the half that the parents share is taken into account: with the price of the apartment being 2 million rubles. the amount of the state duty will be: 2,000,000/2 = 1,000,0000; 1,000,000 * 0.5% = 5,000 rubles.
6. Re-register ownership in accordance with the agreement. In the case of real estate, the state registration fee will be 2 thousand rubles. from everyone who is endowed with property.

Sample agreement on division of property during divorce (photo gallery)

At the very beginning, it is specified who is negotiating what

All divided property is listed with the value of each unit.

Additional conditions are negotiated, if applicable - for example, the amount and timing of payment of compensation that one spouse undertakes to pay to the other in exchange for property

Can a husband claim maternity capital?

The right to maternity capital is primarily granted to a woman who gave birth and/or adopted a second and subsequent children after 2007. The father is entitled to this payment in exceptional cases, which are listed in Federal Law No. 256:

1. When the mother has committed serious unlawful acts towards her child and this fact is reflected in the court decision.
2. Death of mother.
3. After a long absence, the court declared the mother either missing or dead.
4. The father alone carries out the process of adoption of the second and subsequent children for whom a certificate has not yet been issued.
5. If the mother is deprived of parental rights in relation to her children by an official court verdict.

It turns out that the father acquires the right to maternity capital regardless of the divorce.

If a child remains after a divorce from his father

There are cases when the divorce of spouses leads to the fact that the child remains to live with the father, who in such a situation wonders whether I have the right to re-register the maternity capital in my name. Unfortunately, there is nothing to please single fathers in terms of receiving maternity capital. Of course, if the mother was officially deprived of parental rights, then the father has the right to receive funds.

Should maternal capital be shared by the father?

Not really

However, if she simply handed over the children to be raised by their father, but retains parental rights, maternal capital will remain with her in the event of a divorce. The only consolation here can only be the fact that if such a mother decides to use targeted funds to purchase or improve real estate, then each of the children will receive their own part in it. However, if she invests money in the funded part of her pension, then it will belong only to her.

What happens if shares are not allocated?

An attempt to circumvent legal requirements and not register shares in housing for minors entails certain consequences. So, if the recipient of maternity capital decides to register the residential premises only as his sole property, his actions may be regarded as fraud. The parent may be required by court to allocate shares to the children.

In case of sale of housing without allocation of shares, such a transaction can be considered invalid. Not all parents make such a decision with malicious intent, but this does not relieve them of the obligation to fulfill their obligations.

Sometimes parents mistakenly believe that they can allocate a share to their children in another residential area and this will be counted as the fulfillment of this obligation. A notarial obligation involves the allocation of a share in a specific residential premises, for the purchase of which state support funds were provided.

When is maternity capital issued?

There are rules for receiving money: you can apply for payment of maternity capital only when the baby turns three years old. Immediately after the birth of a child, you can receive money only for certain purposes.