How to divide an apartment with a mortgage during a divorce from maternity capital in 2021

Home » Division of property » How to divide a mortgaged apartment during a divorce from maternity capital

Recently, more and more families have the opportunity to improve their living conditions with the help of maternity capital. Subsequently, some of them are faced with the problem of divorce and division of property, the question arises - how to divide an apartment if MK funds are invested in it, while even more difficulties are created by situations when the division is aggravated by maternal capital invested in a mortgaged apartment.

Pyotr Manko, managing partner at the Zagorodny Stil real estate agency, answers:

In situations where funds from a mortgage loan and maternity capital were used to purchase an apartment, the spouses draw up a notarial obligation to allocate shares in the purchased apartment to children and submit it to the guardianship authorities. Accordingly, after the mortgage loan has been fully paid off and the encumbrance on the apartment has been removed, it is necessary to fulfill this obligation and give each child and second spouse shares in the purchased apartment. It is worth noting here that the size of the share allocated to each child and spouse should be calculated taking into account the ratio of the share of maternal capital to the price of the apartment. As a result, the housing will be registered as the common shared property of the spouses and their children.

As for divorce and division of an apartment, the shares in the apartment belonging to the spouses are their jointly acquired property (unless otherwise provided by the marriage contract) and are subject to division equally. The children's shares belong to the children, and the parents' divorce does not affect them in any way.

Is the husband entitled to a share in the apartment during a divorce?

When should I register shares for children when buying an apartment with a mortgage with capital?

Divorce, mortgage and maternity capital: what the law says

The termination of marriage in Russian legislation is regulated by the Family Code (Articles 16-26). When a decision has been made and action needs to be taken, initial information and instructions can be obtained here.

If the family has living space that the husband and wife bought with a mortgage, its division takes place in the standard manner, as indicated by the law. In fact, everything that was received during the period while the marriage lasted is considered common and is divided equally between the former spouses (Clause 1, Article 39 of the RF IC).

The main exception is the existence of prenuptial agreements or agreements, which may specify other parameters for the divorce. The presence of maternity capital in the mortgage also adds problems.

Dividing such acquisitions becomes much more difficult. First of all, you need to take into account that state financial assistance has a special target orientation (clause 2, article 34 of the RF IC), that is, it is intended for certain things and cannot be used in any other way.

The legislator assigns a special role to this money, and this money will not be divided between husband and wife after a divorce. They are issued as a certificate. Only the holder can dispose of the maternity capital, and it does not matter whether the owner is married or not.

Note! The main purpose of using the certificate is to help families solve their housing problem. It is clear that such an approach will naturally entail a number of mandatory requirements.

Understanding the direction of legislators' thoughts on this matter, the division of mortgage housing purchased using family capital finance is done taking into account the children in the family. The practice of courts of general jurisdiction speaks about this with enviable consistency.

It is not surprising that any judge may not pay much attention to different agreements and marriage agreements if they indicate a different procedure for dividing real estate.

The director of the legal service “Unified Center for Protection” (edin.center) Konstantin Bobrov answers:

In accordance with the family legislation of the Russian Federation, jointly acquired property is divided in half between spouses. Jointly acquired property, in particular, includes property acquired during marriage.

Can an ex-husband claim a share in an apartment purchased with maternal capital?

Is it possible to register shares for children in a mortgaged apartment?

In this case, those shares that are registered in the name of the children will remain with them. The division will not apply to these shares, since this is the property of the children, not their parents. And the shares that belong to the spouses will be subject to division.

How can you use a maternity certificate to improve your living conditions?

There are two ways to invest a certificate in a mortgaged apartment:

The mortgage loan has already been issued, a second child is born, the family invests the certificate in an early payment in the amount of maternity capital.
The family decided to buy an apartment with a mortgage and issued a certificate as a down payment.

In both cases, after repaying the entire loan, parents are required to register part of the living space as the property of their children. Moreover, in the case of making a certificate as a down payment, children are more reliably protected in the exercise of rights to residential premises, since it is possible to immediately assign their share to minors when applying for a mortgage loan.

It is important to keep in mind that the certificate is not issued to the entire family as a whole, but to a specific person, in the vast majority - the mother.

But the law does not exclude the issuance of maternity capital to the father; this happens in the following situations:

the mother is deprived of parental rights;
the woman has died or there is a court decision declaring her dead;
the mother is convicted of a crime against her children.

Lawyer and real estate expert Svetlana Kirillova answers:

If the apartment was purchased using maternity capital, all family members must be allocated shares in the ownership. When buying and selling, this is done immediately upon registration of the transaction. When an apartment is purchased in a house under construction under an agreement for participation in shared construction, the rights are first registered in the name of one of the parents. The Pension Fund of the Russian Federation requires parents to provide a notarial undertaking that the children will subsequently receive shares in the purchased apartment.

Accordingly, if the parents divorce, they will divide the jointly acquired property. Children's shares will not be included in property acquired jointly during marriage. If each of the family members received a 1/4 share in the ownership of the apartment, each will remain the owner of this share.

Is it possible not to give my husband a share in an apartment purchased with maternal capital?

What rights does each family member have to an apartment if the mortgage was paid off with maternal capital?

Using maternity capital to pay off the mortgage

There is a clear purpose in the regulatory framework of laws governing the use of mat capital. She says that directing it towards the purchase of an apartment with a mortgage is undoubtedly quite serious financial assistance offered by the state.

The desire to use this certificate to reduce the loan burden is understandable. It happens that such a way out is the only possible one.

Note! It doesn’t matter whether the mortgage was received before or after the issuance of the certificate for maternal capital, it is realistic to always use it, in any case described here.

The law provides for several uses of family capital in the situation described. They all have both pros and cons. Having decided to use the certificate to apply for a mortgage on the living space, spouses in the family usually consider the following options.

An initial fee

A bank decision that is good for the spouses about the potential opportunity to get a mortgage provides a chance to use swear words. capital closing the very first payment on the line of credit.

This is evidenced by subparagraph “a” of paragraph 3 of the Rules for allocating family capital funds to improve housing conditions.

Particular attention is paid to the fact that a mortgage can easily be provided to a husband who is not a certificate holder. Even in this unexpected scenario, maternity capital can be used for a down payment, the main thing is that the marriage is registered.

Loan

It is possible to use such a certificate for payment of a loan provided or, for example, a loan (also a mortgage loan), and the interest calculated by banks on it.

The main and important condition is to transfer this money to purchase your home.

Legislation regulates and protects the rights of young children in any family. They can be native or adopted. The main thing is that they are properly executed, applying the rules of the Family Code of the Russian Federation.

Partial repayment

It should be taken into account that if, at the time of issuing the certificate, there are debts on previously issued loans for the purchase of real estate, money from family capital can easily be used to pay them off.

The law specifically provides this opportunity, maximizing the ways of using maternal family capital. If desired, husband and wife can use this for the benefit of the family.

Since additional parameters for using such finance will seriously help in some difficult life situations.

Is it possible to sell an apartment with a mortgage purchased using maternal capital?

It is possible to sell housing that is under a mortgage and was purchased using MSC funds, but in practice it is quite difficult. You can do this as follows.

You can find a buyer willing to give a deposit for the apartment, which will be used to pay off the loan debt. After repayment, you need to remove the encumbrance, and then complete the transaction. As a rule, there are few people willing to make such transactions, so they have to sell housing at a price below the market price.
You can find a buyer who, although he does not have the required amount, is ready to be a borrower on an existing loan. To implement this path, the bank's consent to the sale is required, with the replacement of the borrower by the buyer. If the bank is satisfied with the buyer’s solvency, it will give permission for the transaction.

But even if you manage to find a buyer ready to purchase such an apartment, the main obstacle may be the guardianship and trusteeship department.

Housing purchased using MSK is partially owned by minors. To carry out transactions involving the alienation of property of minors, it is necessary to obtain the consent of the guardian.

Guardianship ensures that children’s rights are not violated and they are not deprived of housing. In order for the guardianship to agree to the sale of the apartment, it is necessary to use the proceeds to purchase property for the children in the same shares in the housing, which are no worse than the one being sold. Parents are not always able to fulfill these conditions, and without the consent of the guardianship, the sale is impossible.

When only the court can help

Often one of the parents refuses to give the child a share of his or her share of the property. In such cases, only the court can help solve the problem of division.

Moreover, when the divorce has already occurred, and the property has not been divided due to large disagreements between the spouses, it is advisable to include two requirements in the statement of claim:

determination of shares between spouses;
allocation of shares of minor children.

The statement of claim is filed with the district or city court at the location of the disputed apartment. The following information is required to be filled out in the application:

court details;
personal data of all parties to the process;
the circumstances of the dispute (when and where the marriage was concluded and dissolved, when and for what amount the loan agreement was concluded, whether the certificate was used, when and for what amount the apartment was purchased, the reasons for the impossibility of dividing it peacefully);
references to articles of law that apply in these circumstances;
the plaintiff's claims and their justification;
list of documents attached to the claim.

Photocopies of the following documents are attached to the statement of claim:

claims by the number of parties involved in the process;
ID cards of opponents;
marriage and divorce certificates;
agreements with a credit institution;
birth certificates of all children;
title documents for the apartment.

Additionally, there must be a receipt for payment of the state duty. The amount of the state duty depends on the value of the claim; the calculation takes into account the full cost of the loan, both already paid and the remaining outstanding part. Its size is calculated according to a special table.

Table for calculating state duty

Cost of claim, thousand rubles	Amount of state duty, rubles
20 — 100	800 plus 3% of the amount over 20,000 rubles
100 — 200	3,200 plus 2% of the amount over 100,000 rubles
200 — 1 000	5,200 plus 1% of the amount over 200,000 rubles
Over 1,000	13,200 plus 0.5% of the amount over 1 million rubles

When dividing a residential property with an outstanding mortgage loan, it is advisable to first divide the apartment and then divide the mortgage debts; in this case, the bank will not be able to interfere with the division procedure.

To do this, you need to go through several steps in the following order:

File a claim for division of real estate.
Contact Rosreestr and re-register ownership rights for all family members.
Visit the bank with a request to reissue the mortgage based on a court decision, concluding agreements with each of the owners.
Renew the mortgage loan agreement for each of the spouses, in accordance with his share in the residential premises.

Maternity capital is a great help to families with children when buying a home, but it is often a stumbling block when dividing real estate if family life does not work out. It is often impossible to understand all the nuances of a division without an experienced family lawyer. The best option in such situations would be to contact a competent lawyer for at least an initial free consultation.

In addition to the consultation itself, what can and cannot be done when dividing a mortgaged apartment with maternity capital, the lawyer will tell you what documents are needed, if necessary, help you draw up a statement of claim, and if necessary, represent your interests in court.

FREE CONSULTATIONS are available for you! If you want to solve exactly your problem, then