How to keep property during divorce: tricks

The marriage is dissolved, but there is common property. What to do?

Let's say the spouses have already divorced, but the property has not yet been divided. They have three years to do this. To file a claim in court, you must obtain extracts from the Unified State Register of Real Estate (USRN) for all real estate properties. This document is issued to any person through the MFC. In order to order an extract, you must have a passport with you, indicate the address of the property and bring a paid receipt of the state duty (in the amount of 400 rubles). If you do not have other documents for the property (for example, a purchase and sale agreement), then the court will accept the claim only with an extract from the Unified State Register. This extract contains information about the cadastral value, with which you can calculate the amount of state duty. Also, to file a claim, you need a divorce certificate, a court decision on divorce and some minor documents (extract from the house register, technical passport for the apartment, etc.)

Marriage, divorce and your real estate

5 main disputes about the division of an apartment during a divorce

Question No. 1. One of the spouses received an inheritance - who does it belong to?

Property received through a gratuitous transaction, including through inheritance or gift agreement, upon divorce belongs exclusively to the spouse who received such property.

Apartment by inheritance and will

How to take into account the interests of the spouse and children in the will?

One or both spouses have personal premarital property. Who can claim what?

If you have real estate purchased before marriage (it does not matter whether you lived together before marriage or not), then such real estate is not subject to division between spouses after divorce. The exception is mortgage housing, but this will be discussed below.

How to keep property purchased before marriage?

My wife was given an apartment as a gift during marriage. Will the husband get a share in a divorce?

Question No. 5. Does the presence of minor children affect the division of real estate during a divorce?

As a general rule, the division of property acquired during marriage is carried out on the principle of equality of shares. At the same time, family law allows for a deviation from equality of shares in order to take into account the interests of minor children, as well as if it is established that one of the spouses disposed of joint property to the detriment of the interests of the family or did not receive income without a good reason. Meanwhile, in judicial practice such deviations from equality of shares are rare and the presence of minor children does not give an unconditional right to increase the share, and other cases are extremely difficult to prove.

Dividing a mortgage is crazy complicated, right?

The division of mortgage housing inspires such fear in many couples that sometimes people do not get divorced for years just because of this. Yes, splitting a mortgage is not easy, but it is quite possible. As a rule, the mortgage loan is registered in the name of both spouses as co-borrowers, and the property is registered in half for each. A mortgage can only be divided through the court and nothing else. The third party is always the relevant bank.

Who has the right to a mortgage apartment after divorce?

Is an apartment purchased with a military mortgage subject to division?

In court, the parties determine the format for dividing the apartment:

transfer the loan and property to one spouse with compensation for the other;
give up property and credit and receive monetary compensation;
make a division of the loan in case of registration of a mortgage and property for only one spouse, etc.

During court proceedings, pay the mortgage, even if one of the spouses refuses to pay (then you will recover half of the amounts paid from him). If an apartment was purchased with a mortgage before marriage, and the loan was paid for it already during the marriage, then, depending on the amount, you can either allocate a share to the second spouse or recover monetary compensation in the appropriate amount. You can also sell a mortgaged apartment (and the bank’s consent is not necessary for this).

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Question No. 3. How to divide a garage upon divorce?

If the ownership of a garage is registered in the prescribed manner (there is a certificate), in judicial practice there have been two approaches to the division of such garages. In the first option, the property will be divided in equal shares between the former spouses. In the second option, the garage is allocated to the party whose need for it is greater (for example, the garage is needed for its intended purpose - to house a car; but the second spouse does not have a car), and the second party is awarded compensation in the amount of half the market value of the property.

However, if the ownership of the garage is not registered and there is only membership of one of the spouses, for example, in a garage-building cooperative, then only membership fees paid during marriage are subject to division.

Cases when mortgage housing is not divided

When getting married, especially for love, it is difficult to take any steps to protect property from possible division of property in the future. Nevertheless, it is worth thinking about such a development of events, preferably before marriage.

Marriage contract

The most obvious way to solve the problem in advance is to draw up a marriage contract. This document describes in detail which part of the property will go to whom.

This also applies to funds that the husband or wife had before marriage. If there is such a clause in the contract, then subsequently the apartment acquired by one of the spouses, or any other property, remains with him - provided that it was paid for with funds that were already available before the marriage.

For example, if one of the spouses purchases housing on credit. If you want to become the sole owner, it is better to invite your other half to draw up a contract under which the loan, as well as the property purchased with borrowed funds, remain with the person in whose name everything was signed.

When drawing up a marriage contract, notarization is required.

An argument in favor of a marriage contract can also be the fact that all possible disputes regarding the division of property will be resolved in advance, in a civilized and legal manner. This document can be drawn up at any time during a marriage, but it only works after marriage at the registry office.

If you don’t really like the idea of a prenuptial agreement, then you need to think about protecting the apartment from division in advance, when you register it as your property, or better yet, before getting married. A good lawyer will help you carry out the transaction correctly and give advice on additional actions.

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law on apartment redevelopment

When is approval for the redevelopment of non-residential premises not required? More details here.

Some things you should know and take care of in advance:

For example, payment for the cost of housing can be made from an account that received money from the sale of property that clearly belonged to the citizen before marriage. If installments are planned, then installments should be paid from the same account, keeping payment documents. Such a move will be accepted by the court and taken into account.
During a divorce, the other half can appeal to the court indicating that joint money was spent on repairs or improvements to the apartment. Therefore, while keeping the housing for yourself, you will have to compensate your ex-other half for the costs incurred.

We invite you to read: What is the procedure for collecting material damage from an employee?

The only thing that an unofficial spouse who is not the owner or owner of a share can count on is compensation for the costs incurred for landscaping and repairs. But this will also have to be proven in court.

If the apartment is privatized in the name of one of the spouses, that is, it is his property, then the other party cannot use this housing after a divorce, even if the citizen is registered there. After applying to the court for the division of a privatized apartment, this authority can only determine the specific period of residence in the privatized apartment. After the end of the agreed period, the non-owner spouse is obliged to release her.

The division of an apartment during a divorce, in the privatization of which both family members participated, occurs on the same grounds that apply to housing purchased with common funds.

Marriage contract

A marriage contract is nothing more than an agreement between two persons who are just going to formalize marriage and family relations or spouses who are already married regarding the determination of the property rights and obligations of the spouses, both during the marriage and after its dissolution.

The marriage contract is subject to mandatory notarization.

If a marriage contract is concluded before the state registration of the marriage, it comes into force only from the date when the citizens became legal spouses. If a document is signed while the parties are married, it is valid from the moment it is certified by a notary.

If the husband is the owner, what rights does the wife have?

In such a situation, one must proceed from the fact that this is the personal property of the husband. The legislator, with some exceptions, protects it from division and does not allow the interested party to take the apartment.

First you need to determine what real estate is personal. An indication of this is contained in Art. 36 IC RF.

Personal property:

an apartment that belonged to the husband or wife before the formalization of the relationship;
any real estate received during marriage by gift, by inheritance;
privatized housing or part thereof.

Personal property is considered to be that property that, although it was acquired during family life, was acquired with funds accumulated by one of the spouses before the wedding. Naturally, this fact must be proven in court if a dispute arises.

However, during the divorce process, lawyers find opportunities to wrest the apartment from the ex-husband, which lead to the desired result.

In theory, there are 2 options in which the wife can claim, if not part of the apartment, then a certain amount.

In the first case, the conversation is about the accumulated large alimony debt, as well as penalties.

Here, the ex-wife has the right to seize the property and obtain a forced sale by court of the apartment purchased by the husband before marriage, if it is not his only one. Accordingly, the proceeds are used to pay off the alimony debt.

The second situation is spelled out in Art. 37 SK. The point is that when, at the expense of the wife or both spouses, major repairs or redevelopment, as well as inseparable improvements that increase its market value, were carried out in personal real estate, then the court has the right to recognize this property as common.

Here you need to document the costs of home improvements. The proof will be receipts for the purchase of building materials, built-in furniture, equipment, as well as contract agreements and certificates for work performed from master finishers.

Partition Agreement

The separation agreement is drawn up in simple written form, signed by both spouses, certified by a notary and comes into force from the moment of certification.

The notary checks the legal purity of the transaction, that is, whether the property belongs to the spouses by right of ownership, whether it is pledged or not seized. A notary is not a specialist in the field of family law; he will not be able to tell you how best to write. Of course, he will help draw up the document, payment for services will be according to the price list; but this work is of a technical nature.

Municipal housing section

The type of housing in question is the property of the municipality (state). It does not belong to either spouse. Therefore, it is not community property. Such housing is provided for living by a family under a social rental agreement. Former spouses living in the same apartment have equal responsibilities and rights to use it.

This also applies to payment of utilities, etc. But in this case, property cannot be divided after a divorce. The apartment is the property of the municipality. It is not possible to divide it between spouses. It only provides for the division of rights and responsibilities for the use of housing between former spouses by amending the social tenancy agreement.

What else is worth knowing?

In order to protect yourself from a “sudden” division of property, you must save all documents related to the acquisition of things (contracts, payment papers). If we are talking about transferring funds, for example, for a loan, it is better to do it non-cash, for example, from a card, an extract from which can be taken to present to the court.

Of course, drawing up a marriage contract will resolve all the contradictions that have arisen; but the spouse always agrees to sign it. Therefore, the second spouse must have strong evidence that the property is shared. These could be screenshots of correspondence, audio recordings, or witness statements.

The difference between a prenuptial agreement and a property division agreement is that the contract can be concluded either before marriage or during marriage; agreement - even after divorce. Both documents must be certified by a notary.

Do not accept or agree to any receipts. Only the agreement/contract on which the notary's visa is written!

Don't be afraid to go to court. Despite the fact that this will require significant financial costs (the amount of the state duty depends on the cost of the claim and can vary from 400 to 60,000 rubles plus the services of an appraiser if necessary), if the decision is made in favor of the plaintiff, the costs will fall on the defendant.