How is a privatized apartment divided during a divorce?

Dividing property during a divorce can be one of the most stressful and contentious actions, second only to child custody issues. The question of how a privatized apartment is divided during a divorce is asked to a lawyer by all separating couples who have such housing.

Indeed, it’s difficult to figure it out on your own, since all real estate issues are resolved based on a variety of legislative acts, taking into account the norms described in the Insurance Code and the Civil Code of the Russian Federation. Also, Federal Law No. 1541-1 specifies the main provisions for the implementation of the privatization of state housing and municipal housing stock for social use in Russia.

Therefore, it is worth considering in detail the question of how privatized housing is divided during a divorce between former spouses and which of them can count on owning a common apartment.

What is privatized housing

Any living space that was previously considered state or municipal property may be subject to privatization.
This means that after the procedure is completed, residents become owners. If citizens live in an apartment or house under a social tenancy agreement, they must be prepared for the fact that they will not be able to fully dispose of this property at their own discretion. The following can take part in privatization:

• citizens appearing in the status of a hirer;
• spouse, children, parents of the tenant who live in this living space;
• citizens who have a residence permit in privatized housing.

Every citizen of the Russian Federation has the right to participate in privatization once.

Division of property in legal authority

Cases related to controversial privatized property are being heard in the district court.
Jurisdiction is determined by the value of the claim exceeding 50 thousand rubles. A statement of claim and a package of documents must be submitted to the court office at the location of the disputed real estate. The plaintiff’s action algorithm should be as follows:

• Collection of papers substantiating claims.
• Writing a statement containing the circumstances of the case and the petition.
• Contacting the BTI or an independent appraiser to determine the value of the disputed property.
• Payment of state duty.
• Presentation of the claim and a package of documents to the employees of the court office.
• Participation in the proceedings of the case.
• Applying to Rosreestr in order to record changes in property rights to the apartment.

Key points in filing a claim

An application submitted to the court must be drawn up in a strict form, in accordance with Articles 131 and 132. Civil Procedure Code. It is unacceptable to use curse words or overly emotional language when writing a claim. The document will be rejected and returned to the plaintiff for revision. Before writing a statement of claim, it is recommended that you familiarize yourself with the approximate contents of the document:

In some cases, other documents may be required to confirm the validity of the claims. You can find out a detailed list of papers in the office of the court where the claim is filed.

A completed application form can be downloaded from the link:

Division of a privatized apartment between spouses

The procedure is no different from the division of any property owned by a private individual.

If the share was determined (documentarily) for all family members in privatization, then during the division everyone will have the right to their part of the apartment.

One spouse participated in privatization

To understand how to divide a privatized apartment during a divorce, if only the husband or wife took part in the process of converting property from public to private, you need to understand the very essence of the problem. Both the donation procedure and the privatization transaction are considered gratuitous transactions.

From the above, the conclusion suggests itself: the division of a privatized apartment after a divorce is impossible if one of the spouses is a participant in the property transformation.

Division by court order

Unfortunately, few people manage to divide an apartment during a divorce using a personal agreement. Most people have to resolve this issue through the courts. Of course, if the shares are determined and there are no accompanying circumstances that could change the situation, then there is no point in turning to the courts. However, the division of a privatized apartment in 2021 may also be associated with a number of controversial issues, which do not always relate specifically to the allocation of a share in the property. Thus, filing a lawsuit can resolve the following issues:

1. The opportunity to receive a share in the apartment if it was privatized for only one spouse. This development of events becomes possible if the plaintiff is able to prove that his personal significant savings were spent on the apartment. For example, the defendant privatized a two-room apartment before marriage, and after the wedding serious repairs were made to it, the cost of which is approximately equal to the cost of the apartment itself. Moreover, it was made with funds that his wife received from the sale of her own home. In this case, the division of the apartment is possible in equal shares, or the spouse will receive it, but he will have to pay his ex-wife compensation for the repairs carried out.
2. The right to live in a privatized apartment without time restrictions. For example, if during the period of privatization one of the spouses refused to participate in it, but at the same time had permanent registration, then the right to use the residential premises for living will continue to be retained. Those. he cannot only carry out legal transactions regarding a privatized apartment. Although rarely, courts make decisions that oblige the apartment owner to purchase housing for the second spouse. This situation arises, as a rule, if minor children remain with the wife in court, and the husband has serious alimony obligations towards them.
3. The right to temporary residence in a disputed apartment. A spouse who does not have ownership rights to it receives a limited period of residence in a privatized apartment. Typically this time period is limited to 6 months, but under special circumstances it can be extended. The right arises provided that the second spouse was registered in a privatized living space after the wedding, but does not have his own home to move out after the divorce.

Either spouse has the right to file a claim in court. But first it is better to stock up on a serious evidence base. For example, if, under the terms of a privatization agreement, an apartment is divided in equal shares between spouses, and during its operation one of them contributed a large sum of personal money to its renovation, then you should find documents that can confirm that the money was really personal property and not taken from the family budget.

Should a privatized apartment be divided?

Not really

Such evidence may include payment documents that show the movement of funds through a bank account. Witness testimony will not be taken into account by the court.

Then a statement of claim is filed in court. It must include the following points:

• the name of the body to which the claim will be filed;
• basic information about the plaintiff and defendant (full name, passport details, etc.). If there are other owners, then it is necessary to include data about them;
• the name of the document itself;
• the total amount of the claim filed;
• information about the main circumstances of the case is entered into the main block. Those. when and by whom the apartment was privatized, to whom the ownership was registered, when and where the marriage between the spouses was concluded (and was dissolved). Was the home improvement carried out and at whose expense?
• basic requirements for the claim;
• references to legislative norms that indicate the legality of the plaintiff’s claims;
• calculation of the amount due in claims;
• a list of documents attached to the application that can confirm the plaintiff’s case;
• date of compilation and signature (required with transcript).

On our website you can download a sample lawsuit for the division of a privatized apartment.

The number of copies of the statement of claim directly depends on the number of participants in the process.

When filing a claim, you must immediately provide a certain list of documents, without which the application will not even be considered (copies are needed):

• general passports of both parties and/or birth certificates;
• a document confirming the conclusion (divorce) of marriage;
• all certificates of ownership of the apartment (privatization agreement, certificate from the Unified State Register of Real Estate);
• plan of the disputed living space, drawn up in the BTI;
• certificate of the value of housing at the time of divorce. It can be ordered from SRO appraisers;
• if a minor child is involved in the division, then permitting documents from the guardianship and trusteeship authority are required;
• payment documents about the costs of the apartment;
• a receipt confirming payment of the state fee for filing a claim;
• other documents that may help establish the legality of the plaintiff’s claims.

The size of the state duty is not strictly fixed. You will have to calculate it yourself. To do this, you need to refer to Art. 333.19 Tax Code of the Russian Federation. The amount sought will directly depend on the price of the claim filed. It is better not to underestimate it, because... the deception will still be discovered and court hearings will be in jeopardy.

It is necessary to submit a statement of claim to the general civil court, which is located at the location of the disputed living space.

How to change or increase the share of property upon divorce

The division of a privatized apartment during a divorce can be challenged even in cases where there is joint ownership, which implies equal shares.

The grounds for filing a claim in court may be:

• disability of one of the spouses;
• presence of children under 18 years of age who live with their father or mother;
• a child with disabilities living with a husband or wife;
• a wife expecting a baby or on maternity leave;
• lack of wages or other income from one of the spouses for valid reasons.

All issues relating to certain circumstances are resolved in court. To prove something, you will need time and money for the services of a competent lawyer, but the result is worth it.

Voluntary division of property

Lawyers advise to divorce peacefully and resolve property disputes on your own. There are several reasons to draw up an agreement:

• The parties have the right to independently indicate in the document all the details of the division of property.
• You won't have to spend money on litigation.
• An agreement is drawn up in a matter of days. Court proceedings last for months.

You can divide a privatized apartment using one of 2 types of agreement:

Marriage agreement form:

Sample agreement:

If one of the spouses does not want to comply with the terms of the agreement, the second has the right to go to court. The division of property will take place on the basis of a drawn up agreement.

Marriage agreement

A prenuptial agreement can solve a lot of problems regarding the division of a privatized apartment in the event of a possible divorce of the spouses. Such a document has full legal protection. Even at the beginning of their married life, the newlyweds clearly state the rights of the owner and stipulate the possible payment of compensation in the event of divorce. Then the division of property will take place without unnecessary scandals and disputes. You can draw up a marriage contract with the help of a lawyer. An official document must be notarized. You can get answers to your questions in the lawyer's office or online.

Amounts of state duty and terms of consideration of the case

The division of a privatized apartment in court requires the payment of duty .
The payer is the plaintiff. The amount of the payment depends on the cost of the apartment; it is calculated in accordance with the standards contained in Article 333.19 of the Tax Code.

In particular, for property worth over 500 thousand you will have to pay 6,600 rubles plus 0.5% of the amount exceeding this price.

The statement of claim is submitted to the judicial authorities at the location of the property. Cases regarding the division of a privatized apartment are considered in the same way as any property disputes.

If the division is carried out along with a divorce, then the case is divided into two parts , for each of which a separate state fee is paid.

The statute of limitations for the division of an apartment is 3 years. A 60-day period is allotted for the consideration of the case. It is during this time that the first meeting should be scheduled from the moment the application is submitted. If there are special circumstances, the consideration of the case may be postponed more than once. There are cases of cases dragging on for years.

After the judge makes a decision, the decision is prepared within 5 to 10 days, sometimes the period for drawing up the decision takes up to 1 month. After the decision is made, a month is given to file an appeal in case of disagreement.

Division of property by mutual consent

A settlement agreement can be concluded between spouses if they have no disagreements regarding the division of property during a divorce, which includes a privatized apartment. It is important that it indicates that any disputes, disagreements and conflicts regarding the division of property are resolved in an amicable manner.

When it comes to dividing property, an attorney becomes a neutral third party who can guide the couple to resolve the issue amicably. Thus, having maintained good relations with your ex during the divorce, it is better to resolve all the nuances in the presence of a family lawyer, since such specialists have extensive experience in proceedings regarding the division of property.

Determining the amount of state duty

Before going to court, the plaintiff will have to pay a state fee. You can transfer funds through the cash desk of one of the banks, a payment terminal or the Internet, for example, Web banking or the State Services service. The received receipt must be attached to other documents submitted to the legal authority. The state duty for property disputes is calculated based on the value of the claim:

In the end, the state duty should not be less than 400 rubles. and more than 60 thousand rubles. The following examples will help you avoid making mistakes in your calculations:

• The price of the claim is 745 thousand: 745 thousand – 200 thousand = 545 thousand – the amount from which interest is calculated;
• 545 thousand* 0.01 = 5450 – 1% of the claim price.
• 5450 + 5200 = 10650 – the amount of the state duty.

Case trial

The court will notify the parties of the date of the first hearing. The procedure for resolving a controversial issue is as follows:

• During the consideration of the case, the judge will examine the submitted documents and claims. Then the parties will take turns speaking and presenting evidence to substantiate the previously spoken words.
• Before a decision is made, the plaintiff and defendant will be asked to conclude a peace agreement containing the compromises reached. If the spouses are against signing the agreement, then the judge will have to resolve the issue. Depending on the circumstances, one of the following verdicts will be made: Allocate a share of housing to one of the spouses.
• Give the husband or wife the opportunity to live in the disputed property for a certain time or on a permanent basis.
• Divide the apartment according to the principle of equal shares.
• Oblige the defendant to purchase housing for his wife and child. The measure is used in rare cases and is relevant if the owner of the apartment is the husband.

Certain factors can affect the final result:

• One of the spouses has a disability.
• The children will remain with their mother or father.
• A common child left in the care of one of the parents has serious health problems.
• The wife is on maternity leave or is pregnant.
• For certain reasons, one of the parties does not have a regular income.
• The spouses have drawn up a prenuptial agreement or an agreement on the division of property.

The stated circumstances may force the judge to award a larger share to one of the parties. Bailiffs will monitor the execution of the verdict. The trial in court lasts approximately 2 months. The process may be delayed due to the need to conduct an independent assessment or identify other factors.

How to divide non-privatized housing

The law states that in a divorce, community property must be fairly divided.
However, time after time, divorcing couples turn to lawyers with the question of how a non-privatized apartment is divided and whether privatization of real estate is possible after a divorce. It happens that an apartment is provided by an enterprise where one of the spouses works, but it is registered for two, and both also have registration. In a few years, the couple may separate, but the apartment will remain non-privatized. In such a situation, most often one of the spouses moves to another place of residence, remaining registered at the old address. What to do with your share if the husband or wife tries to write their ex out of non-privatized housing? This “picture” emerges quite often.

Indeed, the court can make a judicial decision on the loss of the right of residence of one of the spouses, since the living space is not privatized.

Legal advice: you need to try to go through the privatization procedure before or during the divorce, agreeing with your former partner on the equality or inequality of shares.

Privatization of housing after divorce is not yet a very common practice, since it requires the collection of a large amount of documentation, certificates and evidence. A privatized apartment after a divorce is easier to divide when the spouses do not have children or if a marriage or settlement agreement has been drawn up.

The court will help make the final decision on the division of property, but the couple or their lawyers can, even before the trial, discuss the issue of property valuation and an amicable method, taking into account the norms prescribed in the current legislation. This can be the most emotionally difficult part of the divorce process.

If there are minors

A child has rights to divisible property only if he participated in privatization. Then he has a share to which neither parent has rights.

The parent with whom the child remains to live is responsible for the safety of this property until the child reaches adulthood.

If the apartment is privatized for a child, neither the father nor the mother has rights to it. Parents can live in the apartment for life , but they have no right to divide it into two or more shares. Only a child after reaching adulthood will be able to manage the living space.

What if the apartment is privatized for the husband? When the owner of the apartment is the father, and the child remains to live with the mother, then she has the right to live in it until the child turns 18.

The owner cannot evict a minor from his territory if he has no other housing. But the child does not have rights to a share in the apartment , and after reaching adulthood, the father-owner can write him out and evict him from his personal living space.

The decision to increase the share of one of the parents with whom the children remain depends entirely on the judge presiding over the case. If there are special conditions, he can add a certain number of squares to one of the spouses when dividing joint property.

You can find out how to achieve recognition of ownership rights to an apartment through the court on our website.

Nuances

Due to inseparable housing improvements, you can not only ask for an increase in the share, another option would be monetary compensation for the invested funds. In this case, it will be necessary to initiate an assessment commission, the results of which will become the basis for compensation.

Privatization of an apartment by spouses is carried out into joint ownership and is subject to division after divorce, ½ part for each. If in court one of the spouses proves his investments in improving housing conditions from personal funds, then the shares can be divided in a different ratio . We wrote here about whether a privatized apartment is a jointly acquired property and how to allocate a share in it for spouses.

The court also takes into account the consent of the owners to an inseparable improvement by one of them.

However, proving agreement (disagreement) is problematic.

If at the time of privatization the rights of a citizen were violated, who subsequently received a smaller share or did not receive it at all, then it is better for him to file a claim to invalidate the privatization agreement. In court, it is necessary to prove violations committed during the privatization process.

Requirements for the allocation of individual shares

Since dividing an apartment into shares is not possible for every similar residential property, it is necessary to take into account all the requirements that make this possible. As mentioned above, these include a number of technical characteristics of housing, namely:

• The presence in the apartment of an isolated living space, which in size corresponds to the allocated share (often we are talking about a separate room);
• Equipment of separate entrances for shareholders;
• Division of technical premises without causing damage to the apartment or house and without harming the interests of third parties.

It can be noted that these requirements are easier to implement in private houses, since the same separate entrance for an apartment located on the fifth floor even sounds very abstract. And although this is not a fundamental point for apartments, in any case, after dividing it into separate parts, the housing will turn into some kind of communal living space. This will be especially felt if the apartment does not have too much footage. In turn, it is not always possible to equip separate sanitary facilities. This will also create some discomfort, which is why buyers for shared ownership are not coming as soon as we would like

Grounds and reasons

For every legal action there must be legal grounds on which their implementation is possible.

The process of separating a part from common ownership into sole ownership is governed by Art. 244 Civil Code of the Russian Federation. It states that the common property of several citizens, by default, is shared, unless there are special instructions. You can select, guided by paragraph 5 of this article, voluntarily, or by court.

When it comes to transmission. The gift agreement, which is most suitable for re-registering a share to another owner, is regulated by Art. 572 of the Civil Code of the Russian Federation. In accordance with the information provided, the gift agreement must be gratuitous and lifetime. You cannot give property with the stipulation that the rights will pass after the death of the donor. Rights are transferred immediately after execution and registration of the agreement.

If you act through the court. You can achieve the allocation of a share in court on the basis of clause 5 of Art. 244 Civil Code of the Russian Federation. A significant inseparable improvement of common property gives the right to increase the share of the person who made such improvements, in accordance with paragraph 3 of Art. 245 of the Civil Code of the Russian Federation.

As judicial practice shows, the decision depends on the consent of other owners to increase the share in accordance with Art. 247 Civil Code of the Russian Federation. Other disputes regarding the transfer of property rights from one person to another depend on the specific situation and require legal justification in court.