How is property divided in a divorce with children?

The division of property during a divorce is a difficult process for spouses, and it is not always possible to divide property acquired during a marriage through peaceful agreements. The situation becomes even more complicated if there are children in the family. During legal proceedings, all rules of Family Law that protect the interests of the child must be observed. What should you remember when claiming family real estate and other valuables?

What is considered joint property?

According to family law, everything acquired by spouses during marriage is divided in half upon separation. The exception will be situations where there is a prenuptial agreement. The law includes the following as common property acquired by spouses during marriage:

all income of the husband and wife (profit from doing business, wages, dividends on shares and deposits, etc.);
acquired real estate, residential and non-residential;
bank deposits, participation in business, other assets.

In addition to assets, a married couple may also have common liabilities - obligations to banks for loans and borrowings, mortgages, etc. During a divorce, both jointly acquired property and existing debts are divided between spouses.

The list of joint property subject to division during a divorce does not include things received as a gift , purchased with premarital funds, targeted payments (compensations), and personal belongings. The property of minor family members is not subject to division.

Mortgage, loan, maternity capital

If an apartment was purchased with maternity capital, then it is distributed in equal shares among all family members, regardless of whether the apartment was purchased after the birth of the first or second child. Difficulties may arise when determining the fate of real estate taken on a mortgage if it has not yet been paid off. As practice shows, in most cases the court will distribute the remaining amount of the debt between the plaintiffs, and after repayment there will be a division into shares. It is also possible to sell the apartment with the permission of the bank. The debt to the bank is returned after the transaction, and the remaining amount is divided between spouses and minor children in accordance with the established shares.

Principles of division of property during divorce

Family law describes in detail the process of distribution of property between divorcing spouses. The general procedure implies that everything acquired by them during marriage is divided in half upon separation, regardless of the financial contribution of each. If a family is childless, it is often possible to distribute what has been acquired over the years of cohabitation through a contractual procedure, and the divorce procedure is simplified and the divorce is carried out through the registry office.

An exception to the “50/50” rule will be situations where a marriage agreement was concluded between husband and wife, which detailed certain conditions for dividing property in the event of divorce.

Important! A marriage agreement (contract) is valid if it is notarized. Otherwise, the court will not take such a document into account. When compiling it, it is advisable to pay attention to legislative norms that should not be violated. That is, the marriage contract cannot indicate that personal property or property received by one of the spouses under a gift agreement is subject to division. To avoid fundamental mistakes, it is better to involve a family law specialist to draw up an agreement.

If the spouses have minor children, the marriage will have to be dissolved through the court. The child must be common or officially adopted by one of the spouses. In such situations, when dividing property, other schemes are used, and there will no longer be equal distribution. How is property divided in a divorce with children? There are two possible division options: by agreement of the parties, or through a court decision.

Guardianship authorities and their role

When dividing an apartment and having minor children, parents must be prepared to meet with the guardianship authorities. Their tasks:

monitoring compliance with all rights of minors;
checking living conditions;
control of transactions with property in which the child owns a share.

Guardianship authorities do not have the right to interfere in the process of dividing property between parents; their task is to control that the living conditions of the children do not deteriorate, and during the division of the apartment the children do not receive less square meters than in their previous housing.

Division of property in case of divorce with children by agreement of the parties (settlement agreement)

When mutual understanding is reached between the former spouses and all property, including real estate, is distributed according to mutual agreements, it is enough to sign a settlement agreement. It must indicate:

information about the parties to the agreement;
presence of a minor child (children) in the family;
a list of jointly acquired property subject to division - when including real estate and expensive things (for example, a car), it is better to indicate their value;
shares of each spouse;
information about property officially registered in the name of the child (received by inheritance, under a gift agreement, etc.);
information about property allocated by parents to children;
rights of the parties, any additional terms of the agreement.

When dividing property, the notary will need an extract from the Unified State Register of from Rosreestr. Order it on the EGRN.Reestr website. The report contains complete information about the property and its copyright holders. The document speeds up legal proceedings, even if a settlement agreement has been concluded.

If one of the parties refuses to fulfill the terms of the agreement, the second has the right to file a claim in court.

When can you contact the guardianship authorities?

If, as a result of the judicial division of property, the situation of a minor child has become worse, his mother has the right to apply to the guardianship authorities. When studying the circumstances of the case, the commission evaluates the living conditions of the children. Based on the results of such an assessment, a conclusion is made.

Subsequently, this document is submitted to the court as a basis for revising the previously made decision and changing the size of the allocated shares.

You will also need to visit the guardianship authorities if the child has a disability, since this circumstance contributes to the allocation of a larger share.

In the second case, the following documents must be provided to the authority:

Certificate of disability.
Passport.
Birth certificate.

The parent is assigned a day for a visit, during which the commission examines the documents provided and issues its conclusion.

Division of property in case of divorce with children when filing a claim in court

The ideal option for dividing property if there are small children in the family would be to conclude a settlement agreement. However, judicial practice shows that not all spouses can reach mutual understanding even at the preliminary stage of negotiations. In such a situation, they have to divide the property through the court.

Certain nuances regarding the protection of the interests of minor children during parental divorce are stipulated in family law and the Civil Code and relate to the following issues:

determining the size of the share of the spouse with whom the child remains to live;
establishing the amount of compensation for indivisible objects to the parent and reducing it for the one who takes care of the child;
allocation of a share of property (real estate) if maternity capital or funds belonging to the child by right of inheritance or gift were used for its purchase.

Divorce with division of property and a minor child does not have a single algorithm for making decisions on the size of shares of jointly acquired property for each party. The court will have to determine the fairness of the parents' demands and compliance with legal norms based largely on evaluative criteria:

the child’s health status - if he has a confirmed disability or documented systemic diseases, the share of the caring parent may be increased;
the presence of health restrictions, lack of income for objective reasons (the status of a caregiver - a person caring for them) of the spouse with whom the child lives;
the need for increased funding aimed at supporting the development of the child - for example, expenses for sports clubs, payment for music education;
the physical participation of the second spouse in the lives of the children - his involvement in their development, trips on vacation.

Example: When a couple divorced, a boy with cerebral palsy remained in the care of his mother. Due to the fact that his condition required regular travel to visit a rehabilitation center, the car purchased during marriage went to the child’s ex-wife. The husband received compensation, but the amount, taking into account the special condition of the child, was reduced and did not become a serious burden for the mother.

All this applies to property acquired in a joint marriage by parents. But there are things that the court will consider the personal property of a child, even a minor.

Exceptions when dividing an apartment

In addition to the general rule, the law also provides that in exceptional cases the court has the right to deviate from the principle of equality of shares of spouses in common property, for example, taking into account the interests of children. But for this, as stated in the law, there must be some special reasons. If there are any, the spouse with whom the children will remain after the divorce submits a petition to allocate him a larger share in the apartment. The petition must provide convincing arguments. The need to increase the share of the apartment in the interests of children must be justified. Therefore, provide the court with convincing evidence. The court will divide the apartment at its discretion, depending on the circumstances. To increase the share of one spouse and reduce the share of the other is the right, but not the obligation of the court. Just the fact that small children remain with one of the parents cannot guarantee a court decision in his favor.

What property is considered a child's personal property?

A child cannot claim what his parents acquired during marriage unless this is stated in the marriage agreement. He receives indivisible rights to the things purchased for him, regardless of their value:

clothes and any personal items - books, games and toys;
children's furniture;
sports equipment - bicycles, scooters, skates, skis, exercise equipment;
musical instruments;
computers, laptops, tablets, if it is proven that only the child uses them or he received them as a gift.

The list can be supplemented with any things used to maintain a comfortable standard of living and development of children.

Example: The paternal grandfather gave his granddaughter, who is studying at a music school, a cello worth 700 thousand rubles. At the time of the divorce, the ex-husband demanded that his wife pay half of the price, since he considered it joint property. However, the court took into account two points: the instrument was received as a gift, the girl needed it to receive a musical education, and it was personal property. The child's father was denied compensation.

To avoid such conflicts, some families use the practice of preparing documents for expensive gifts. Most often this concerns real estate, which the older generation transfers to their grandchildren under gift agreements.

Construction has just begun

Not every family can afford to buy ready-made housing. Therefore, by the time of the divorce it may not be completed.

With an apartment purchased under an equity participation agreement, the nuance is that it is purchased at the construction stage, and ownership is formalized after the object is put into operation and the acceptance certificate of the new building is signed. “Until this moment, apartments in such a building are considered unfinished construction projects and cannot be subject to division,” says Litinetskaya.

If the share participation agreement was concluded and fully paid before marriage, then after delivery the housing will fully belong to the spouse for whom the agreement was signed. In other cases, the second spouse has the right to demand that a share in the apartment be registered as his property if the property is already ready. If the deadline for handing over the house is still far away, you can achieve a change in the terms of the share participation agreement and include the second spouse among the shareholders.

How to claim your share of property through court?

Example: an apartment was purchased during marriage and is registered in the name of the husband; the documents are in his possession. What should the wife do, and what should she write in the statement of claim, if she wants to receive a share in the apartment, and not its cash equivalent? The woman will need to order an extract from the Unified State Register of Real Estate , where she will also be indicated as the owner (the apartment was purchased during marriage). After which, to divide the apartment, she will need to go to court at the location of the property. The statement of claim will need to indicate that she is asking the court to recognize her as ½ share of the apartment. Do not forget about paying the state fee for the claim and the appraisal of the apartment before filing the claim.

How most spouses deal with a mortgage during a divorce

Now in Russia, most spouses first file for divorce and receive a divorce certificate.
Then people divide property: cars and real estate. Ex-spouses decide themselves or through the court who will get what share of the mortgaged apartment, and only after that they contact the bank. Banks do not always agree with borrowers and courts: they defend their interests, it is important for them that the debt remains with the solvent spouse. This leads to situations where one of the spouses becomes the owner of the apartment, and the other must pay the mortgage for an apartment that they no longer own, the collection agency notes.

How to draw up a statement of claim for division of joint property

A typical statement of claim for division of property during divorce contains:

Name and details of the judicial authority to which the claim is filed.
Information about all participants in the process (full name, residential address, telephone numbers, email).
Cost of claim. The value of the claim is the amount at which the plaintiff values the property claimed during division.
A list of all property that is subject to division. A description of each item and each name of property to be divided is required.
Appeal to the articles of law on the basis of which the plaintiff demands partition. Therefore, it makes sense to study the law or contact a lawyer to file a claim.
Claim. In this paragraph, the plaintiff must indicate what property and in what order he demands to be divided.
A numbered list of documents attached to the claim.

Arbitrage practice

Situation 1. Smirnova A.V. filed a claim in court for the division of property acquired jointly in marriage with G.I. Smirnov. apartment, and also demanded that she be given a larger share of this real estate, since after the divorce the children would live with her. During the trial, it was established that the apartment was privatized by G.I. Smirnov. during marriage.

Since privatization implies the gratuitous transfer of property into ownership, then Smirnov G.I. is its sole owner. The transaction is subject to the norms of the legislation on donation, which means Smirnova A.V. and common minor children cannot claim allocation of property rights.

The court refused to divide the ownership of real estate, but retained A.V. Smirnova. and children the right to use residential premises for an indefinite period, since they had no other apartment to live in.

Situation 2. As a result of an accident, Golubeva’s child A.N. received disability. In her statement of claim for the division of the apartment during a divorce, she pointed out this circumstance, as it is the reason for the possibility of increasing her share. Based on the results of the assessment of the evidence presented, the court found that dividing the property in equal shares would worsen the situation of the minor child, since access to the apartment may be limited.

Since Golubeva’s daughter A.N. has a disability, and this is documented, the judge made a decision to increase her share in the ownership of the apartment. Otherwise, the child might experience unnecessary inconvenience.

Situation 3. Derevianko A.P. and his wife Derevyanko E.V. went to court to dissolve the marriage and provided a settlement agreement on dividing ownership of the apartment into three equal shares: 1/3 for each of the spouses and for a common minor child.

As a result of the trial, it was established that the ownership of real estate belongs only to the child. Derevianko's claim was denied, since they are not the owners of the property, and it is in full possession of their son.

Documents attached to the claim for division of property during divorce

Statement of claim in several copies (according to the number of parties participating in the process).
Documents about marriage (if divorce has already occurred, then a certificate from the registry office stating that the marriage was previously concluded) and about divorce.
If there are minor children, then their birth certificates.
All title documents for joint property. These can be sales and purchase agreements, receipts, checks, bank statements, USRN extract , and any other documents that can prove the fact of acquisition of joint property.
If the plaintiff, even before filing the claim, assessed the disputed property - an act of independent assessment.
Receipt for payment of state duty.

Challenging children's property rights during divorce

Disputes over things that a child uses can arise if one of the parents claims them. At the same time, he can indicate that the item was purchased with his funds or that it was used not only by the child, but also by other family members.

Since even expensive things purchased personally for a child are not divided during a divorce, one of the parents may try to challenge his property rights. For example, prove that the whole family used the computer purchased for the child. If there are sufficient arguments, the court may not recognize the equipment as the child’s personal property.

Challenging the division of property during the divorce of a family raising three or more children occurs on the same grounds as when raising one child.

It is worth noting that the presence of children under 18 years of age obliges the mother and father to take care of their financial situation, so it is worth first collecting evidence that certain things are the personal property of the child.

It is not easy for spouses who have minor children to decide on divorce and division of property. In the absence of mutual understanding between ex-husband and wife, children are the first to suffer. If a settlement agreement cannot be concluded, the consideration of the issue is transferred to the courtroom, and this requires considerable effort and money. To avoid conflict situations and for the comfortable psychological state of children, the best way out of the situation is to conclude a voluntary agreement.

Options for dividing property if there is a child in the family

The most complex legal processes arise during the division of property if there are minor children in the marriage.

First option. When a child has a legally allocated share of real estate

when using maternity capital to purchase housing, the child is allocated a share of the property. It is not subject to division at the time of parents' divorce. Moreover, this share remains with him regardless of which relative he subsequently lives with;
when a share in an apartment or house is registered in the name of a child under a gift agreement from older relatives;
when funds belonging to a minor by right of inheritance or under a gift agreement were invested in the purchase of real estate.

Examples

1. At the time of purchasing an apartment, ownership rights are assigned to the spouses in equal shares. A year before the divorce, the mother executed a gift agreement and, with the consent of the child’s father, transferred her share of the living space to her son. During the divorce, only half of the property belonging to the father was divided. In this situation, it is important to provide documents confirming the fact that the child owns a share of the property. This information can be found in the EGRN extract from Rosreestr, which contains information about all actions that have ever been performed with the apartment.
2. When purchasing an apartment, funds from his account, which he received as an inheritance from his deceased grandfather, were used to improve the child’s living conditions. The guardianship authorities gave permission to use the money of a minor family member, and the child was allocated his share during registration. A few years later, my father tried to sue half of the purchased housing, but in the end he was refused. As you know, a child’s share of housing is not subject to division. It is not necessary to prove the fact that the apartment was purchased with money that belonged to the minor. The EGRN extract from Rosreestr will already indicate information that the child owns a share of the property.

In both cases, the documents provided by the participants in the proceedings were important to the court.

An important point is that if a child owns a share of housing, he cannot independently dispose of it until he reaches adulthood. In this regard, any action performed with the real estate of children occurs only with the permission of the guardianship and trusteeship authorities.

The state has one requirement here: when exchanging, selling or re-registering an apartment or house, the child’s rights guarantee him living conditions (or ownership) that do not worsen those that exist. This is why difficulties often arise with the physical division of an apartment during a divorce if part of it is registered in the name of a minor.

Example

In a two-room apartment subject to division, 1/3 of the share belongs to the husband, wife and 10-year-old son, who has a separate room. Only 2/3 of the area falls under the court decision, and a third remains the child’s asset. Exchanging such housing is problematic due to the need to provide the child with similar living conditions, so most often the spouses agree to pay compensation or replace part of the apartment with some other property.

In addition, the court may even order the division of real estate during a divorce for the following reasons:

In addition to spouses and children, other relatives who have shares in the property (grandparents, brothers) also live in the apartment;
the apartment in which the minor lives is very small, and its size will not allow social space standards to be met.

Second option. Property in which children do not have an allocated share is subject to division.

A parent with whom minor children remain to live can apply and increase the size of the share of real estate allocated to him up to 10% for each child, but there are exceptions. Thus, if there are two children, in the event of a divorce, he will receive not half, but 70% of the apartment or house.

This applies to any property that is subject to division in a divorce. The mother of a minor remaining in her care may receive an increased share if she points out special circumstances in court:

she is on maternity leave and is unable to earn money to support the child;
a disabled child in need of care remains in the care of the mother;
if the divisible property is the only one, and its exchange worsens the living conditions of the children, then it goes to the one who takes care of the children (most often the mother). At the same time, the compensation that she will have to pay to her husband for his share of the apartment, under certain conditions, the court may reduce by 30-40%.

Important! When determining the amount of compensation due to one of the spouses, it is advisable to involve an independent expert before filing a claim in court. This will help avoid disagreements, speed up the process of making a judicial decision and allow the interests of both parties to be respected.

How to help increase the child’s share in an apartment

You can show the court your need to increase your share. The need to allocate a larger share for a child can be confirmed by providing the following evidence:

A document confirming that the parent does not own any other property. This means that living with a child in another apartment is impossible.
Certificate of income, which confirms the low level of financial support of the parent.
Documents confirming that the second parent has no income or his behavior is antisocial. According to Article 39 of the Family Code, if a spouse’s behavior is detrimental to the interests of the family, his share in the ownership of the apartment may be reduced during a divorce.

Who will get the car during the division of property if the children remain with their mother?

Since when dividing property, a car cannot be “cut up,” it is either sold and the money is divided among themselves, or it is left to someone alone, and the other receives monetary compensation.

If there are children in the family, then the division of property, in this case a car, more often occurs in favor of the one with whom the children will remain.

Quite often, a wife needs a car to take children to school or kindergarten, plus to classes and clubs. And the judge takes this into account.

But at the same time, if the husband needs a car for work and income, from which he, by the way, will pay alimony, then the judge takes into account this nuance.

Which way the scales swing when the judge makes a decision will largely depend on the argumentation of the husband and wife, and the work of their lawyers.

Read our separate article >> “3 ways to divide a car during a divorce”

What if the child is disabled or incapacitated? How will this affect the division of property?

The division of property if children have disabilities or if the child is incapacitated is carried out according to general rules. Children do not claim the property of their parents.

But the redistribution of shares between spouses will be significant. The spouse with whom the children remain will be awarded a larger share in the property compared to the other spouse.

No one will evict a child from an apartment without providing alternative housing.

The car will most likely be left to the parent with whom the child will remain after the divorce.

Reasons for departure from the principle of equality

The presence of a dependent child is not a basis for increasing the share in community property for the spouse with whom he remains. The latter will have to provide compelling arguments to satisfy the claim:

non-participation of the defendant in the life of the child: non-payment of alimony, etc.;
the mother does not have her own home;
the mother has children of different sexes: in this case, each child should have its own room;
disability of a minor if he needs a separate room or special living conditions.

According to Resolution of the Plenum of the Armed Forces of the Russian Federation dated November 5, 1998 No. 15, deviations from the principle of equality are allowed in exceptional cases and taking into account the interests of minor children. After the divorce, they should be provided with equal living conditions as before the divorce.

If the defendant has other real estate and the disputed apartment is divided, this is not a basis for making a positive decision on the claim.

What does the judge pay attention to?

When determining shares, the court takes into account several factors:

Who do the children stay with? The parent who takes his children has a much greater chance of increasing his share. However, the position of the Plenum of the RF Armed Forces is such that the increase in this case will not affect the child’s position in any way: he does not have property rights, but can live in his parents’ apartments at any time. The right of residence remains with him. The likelihood of the claim being satisfied is greater if the defendant does not pay alimony and has accumulated arrears.
Method of purchasing real estate. If maternity capital or other government subsidy was used, the children’s shares are excluded from the division. Subsequently, the parent with whom they remain has the right to live in such real estate, but it is not registered as property.

The mortgaged apartment with maternal capital will be divided with the allocation of shares and the distribution of loan obligations. Children's shares do not participate in the division.

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