How to divide maternity capital during a divorce in 2021: does the husband have the right to a share?

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Since 2007, the material life of a number of families has changed thanks to Federal Law No. 244, adopted at the end of the previous year, which regulates the provision of maternity capital to certain categories of citizens. The law describes the payment procedure, rules of use and purpose. Alas, not all units of society remain united. The number of divorced marriages, even in families with several children, remains high. In this regard, we will consider how maternity capital is divided during a divorce, what factors influence this process.

Is maternity capital divided between spouses?

According to Russian legislation, in 2021 maternity capital is classified as indivisible property. It is registered in the name of one of the parents (most often the mother) and is the property of him and his children. It is the parent to whom the maternity capital is registered who decides how to invest it correctly. And even after a divorce, the mother has the right to spend the allocated money on herself and the children, for example, invest in the purchase of real estate. And in such a situation, this acquisition will be their joint property, i.e. During a divorce, maternity capital is used by the person for whom the certificate was issued.

If the owner is a husband

It does not matter to whom the residential property purchased with the help of maternity capital is registered. In any case, during the divorce process, housing will be divided into equal shares between the wife, husband and their common children.

An exception will be life situations in which the husband did not use maternal capital to purchase a home for the family, but received ownership of an apartment or other residential property as a result of:

Purchases with personal funds before marriage.
Acquisitions by inheritance or through a gratuitous transaction, for example, under a gift agreement.

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:

When the mother has committed serious unlawful acts towards her child and this fact is reflected in the court decision.
Death of mother.
After a long absence, the court declared the mother either missing or dead.
The father alone carries out the process of adoption of the second and subsequent children for whom a certificate has not yet been issued.
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.

Division of property from family capital in court

When applying to the courts regarding the division of property of spouses purchased using maternity capital funds, it is required to prepare a package of documents:

statement of claim;
copy of passport;
marriage/divorce certificate;
in case of participation of a representative in the hearings, a notarized power of attorney for the specialist’s work;
children's birth certificates;
receipt of payment of state duty;
title documents for property;
a document confirming the assessment of the value of the property;
a certificate of payment for property using funds from a state certificate.

In some cases, it is possible to attach additional documents and information at the request of the government agency.

To divide property purchased with funds from maternity capital in court, the plaintiff should do the following:

Conduct an assessment of the value of the property. This will be required to determine the amount of state duty to pay when filing a claim and to calculate the share of maternity capital in relation to the total area of housing.
Prepare a statement of claim and other papers necessary for the court (Article 132 of the Code of Civil Procedure of the Russian Federation).
Present documents to the court.
Within 5 days, receive a court ruling on acceptance/non-acceptance of the case for proceedings.
If the application is accepted by the judge for consideration, a hearing date is set, of which the parties involved are notified. You must be present at this meeting or send a representative.
After the decision is made, you must wait until it comes into force. This occurs within 1 month from the date of delivery or from the day the defendant receives the verdict in hand if the court hearing was held in absentia.
After the decision comes into force, it is necessary to register the changed ownership in Rosreestr.

As an example, a sample application for divorce with division of property to the court is presented, which can be done.

Division of property purchased for maternal capital

Let's consider the features of the division of property purchased using maternal capital in 2021. There are not many options on what to spend maternity capital on. If they are not spent on the child himself, for example, on his education or adaptation in society, provided that one of the children is disabled, then the law establishes the possibility only of investing the funds in whole or in part into the funded part of the mother’s pension or for the acquisition or improvement of real estate .

Naturally, pension savings will never become common property. But if real estate was purchased from maternity capital funds, then the division rules change.

If maternity capital was used to buy an apartment

Federal Law No. 244 strictly establishes that if real estate (apartment or house, or part of a house) was acquired using maternity capital, then such real estate must be divided among all family members. Those. if the money is received after the birth of the second child and the apartment is purchased during marriage, then four equal shares are allocated in it: for the father, mother and one each for the child.

Accordingly, if maternity capital is received after the birth of the third child, then the apartment must be divided into five equal parts. One not so rare nuance should be taken into account here. If maternity capital was issued after the birth of the second child, but an apartment using it was bought only after the birth of the third child, then such living space is still divided in equal shares only among four. The only thing that spouses can do in such a situation to ensure the rights of the third child is to allocate to him part of their shares in the apartment, but not from the shares of the two older children. To do this, you will need to draw up an agreement on the division of property and have it notarized.

On our website you can and between spouses.

Accordingly, after the divorce, each spouse can only claim their share in the apartment. If the former spouses cannot independently agree on accommodation after a divorce, then the court, as a rule, leaves the apartment to the mother (if the children remain after the divorce), and the husband is awarded monetary compensation based on the value of his share in the apartment.

Spouses, when divorcing a marriage and taking on the division of property, must remember that it does not matter how much money one of them contributed to the purchase of an apartment. Even if these were sole funds received as a gift by the ex-husband or wife.

If at least part of the maternity capital was used when purchasing real estate, then such real estate is divided in equal parts among all family members.

Even if the spouses previously drew up a marriage contract or an agreement on the division of real estate, where the owner was indicated differently, these documents will not be taken into account during the division.

If the certificate was used to improve living conditions

By improving living conditions, Russian legislation understands:

purchase of a house, apartment or part of a house or apartment;
building your own home;
depositing money as a down payment on a mortgage loan;
reconstruction of an existing home.

Unfortunately, you won’t be able to simply spend the payments due on repairs to your apartment or house. The dwelling must undergo genuine reconstruction approved by the relevant authorities. One way or another, it always concerns the expansion of living space, for example, through an extension or the construction of a new floor.

Division during divorce of maternity capital used to improve living conditions.

If the capital is used specifically for reconstruction, then no matter who previously owned the house, after investing maternity capital, it should be divided equally among all family members.

The same rule applies to building a house. It will also be recognized as shared ownership between spouses and their children.

If the funds were used in a mortgage

Maternity capital is most difficult to divide if it is used as a means of repaying a mortgage loan. Of course, if the mortgage is fully paid and all legal owners have taken ownership, then the spouses’ divorce will not bring any particular difficulties. Everything will be carried out according to the standard scheme. It does not matter which party and how much invested in the mortgaged apartment. It does not matter which spouse received the bank loan, even if this was done before marriage.

If funds from targeted government payments were used to pay off the mortgage debt, then the apartment should be divided in equal shares among everyone. This even applies to housing with a military mortgage.

Things get more complicated if the mortgage remains outstanding at the time of the divorce. Using maternity capital, for example, immediately eliminates the option in which an apartment is sold at auction, the proceeds cover the debt, and the remaining funds are divided between the spouses. There are three ways out of the situation:

Repay the loan early.
Continue to pay off your mortgage debt together.
Contact the bank with a request to restructure the debt and divide the balance in equal shares between the former spouses.

The apartment itself purchased with maternity capital in 2021 will be subject to division only after the final repayment of the loan, and until that moment it remains pledged to the bank. As soon as the debt is resolved, you should contact a notary, and then Rosreestr, where the allocation of shares to all family members will be recorded.

Normative base

Questions regarding the division of marital property in the presence of maternity capital are of undeniable importance. For the concept of legal norms, normative documentation has been developed and defined that regulates legal proceedings when dividing the property of husband and wife upon divorce and the legal basis for state support for families with children:

The Family Code in Section VII defines the legal regime of property and distinguishes between the concept of common and joint property of spouses.
Federal Law No. 256 “On additional measures of state support for families with children” establishes the essence of maternity capital: who is entitled to it, in what amount, for what needs it can be spent, etc.
The Code of Civil Procedure determines the jurisdiction of judicial authorities when considering issues of division of joint property (Article 1), determines the basic composition of documents when filing an application (Article 132), and the requirement for the correct preparation of a claim (Article 131).
Tax Code - Article 333.19 establishes the amount of state duty when filing a claim for division of property in a judicial body. Article 333.36 defines preferential conditions for paying the state contribution.

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 conclude an agreement on the division of property: step-by-step instructions

The simplest option is voluntary section. Spouses can divide everything equally. If desired, the mother or father can renounce their shares in favor of the children; this is not prohibited by law. The larger the shares of minors, the smaller the jointly acquired portion will be for division between spouses.

An agreement on the allocation of shares must be drawn up within six months after repaying the mortgage or receiving documents for real estate; it is not necessary to contact a notary. After this, the spouses can draw up an agreement on the division of common property.

The division agreement is subject to notarization. To issue it, you need:

Agree on who will get what shares. It is also important to take into account the interests of children: simply dividing property between spouses alone will not work if it was purchased with maternity capital, even partially.
Contact a notary. You can draw up an agreement yourself or order such a service from him.
To sign an agreement.

As a result, each spouse is given one copy of the agreement. The third remains with the notary. You need to come with the document to Rosreestr or MFC and re-register ownership.

Important! In addition to the agreement, the allocation of shares to children is possible under a gift agreement.

Contents and sample agreement

There is no unified form of agreement. It is important that it contains all the basic information:

Full name, passport details, registration addresses of spouses.
Full name, date of birth, details of children's birth certificates.
Date and place of compilation.
Address, property name, technical characteristics.
Grounds for the emergence of property rights.
Certificate information.
The size of shares allocated to each family member.
Signatures of the parties.

If children are over 14 years old, they sign independently, but with the consent of their parents. Parents sign for children under 14 years of age.

Documents for formalizing the agreement

To formalize the agreement, you will need passports of spouses and children over 14 years of age, birth certificates of children under 14 years of age, and real estate documents.

Expenses

If the agreement is not certified by a notary, the costs will only be for re-registration of ownership - 2,000 rubles. for each owner. When contacting a notary, you will have to pay the tariff in accordance with Art. 22.1 “Fundamentals of legislation on notaries.”