How to divide a one-room apartment during a divorce 2021

Family breakdown is an unpleasant event that almost every fifth couple in Russia faces. The most troublesome part of the process under consideration is the distribution of jointly acquired real estate. The section of a one-room apartment especially raises a lot of questions among people.

At first glance, dividing a 1-room apartment is very difficult, but as they say, there are no hopeless situations. The process of dividing property is regulated by a number of regulations that must be followed to resolve this problem.

The article will explain to readers all the subtleties, identifying all possible nuances that need to be taken into account. In addition, it will give you an idea of ​​what to do so as not to be left out of work.

Voluntary section

This option for dividing a 1-room apartment is considered the most preferable. Spouses who have retained at least the appearance of a more or less normal relationship can agree “amicably” on how and to what extent all property will be divided, including real estate. In this case, one of the spouses may receive more (usually the ex-wife), but provide something in return.

Example : By agreement, the apartment is transferred to the woman, since she still has a child. In return, she undertakes to never prevent the father from communicating with the baby. In addition, the man takes his car and part of the property from the apartment, which he is used to considering as his own. Moreover, an agreement may even be reached that the apartment will be transferred to the ex-wife in full, but she will not demand alimony payments.

The agreement itself may even be oral. It is enough to simply re-register the property to the new owners and that’s it. However, it is recommended to notarize such transactions so that in the future there will be no desire to demand more.

Example : A woman, having achieved her goal, after some time demands that her ex-husband pay alimony, ignoring the agreements reached. If they were not notarized, the court will most likely side with her. The opposite situation may also be true. The man demands his share in the apartment (or its sale and division of the proceeds). And he has every right to do this, provided that the divorce agreement was not certified.

Procedure

• The spouses discuss among themselves all the details of the contract being concluded.
• Conduct a real estate assessment (needed to determine the amount of payment for notary services).
• They go to a notary, draw up a division agreement, sign it and have it certified.
• They pay the state fee (some notaries require payment first and only then certify the document).
• Guided by the contents of the signed document, the former spouses re-register the property to the new owners.

Agreement

There are no special requirements for the form and content of this document. The name, date and place of signing are indicated at the top. Next comes information about the former spouses and the direct basis of the entire agreement: a description of the property and the fact of who gets it and to what extent.

It is very important to clearly state the value of the property being divided. Based on it, the total amount of the agreement is calculated, which affects the amount of the state duty.

If necessary, conditions or requirements for one or another party are specified. At the bottom of the agreement, detailed information about the signatories is entered and their autographs are affixed.

Documentation

All that is needed to certify the document is the passports of the former spouses and a real estate valuation. However, depending on the nature of the agreement, other additional papers may be required, such as a child’s birth certificate, a mortgage agreement or documents confirming ownership.

Expenses

According to subparagraph 5, paragraph 1, Article 333.24 of the Tax Code of the Russian Federation, the notary charges a fee of 0.5% of the agreement amount. The maximum limit in this case is limited to 20 thousand rubles, and the minimum is 300 rubles. In addition, the notary will charge another 3-4 thousand rubles for his certification services (the price varies widely depending on the notary and region of residence). And the last expenses are for re-registration of real estate. In this case, you will have to pay 2000 rubles.

Example : Former spouses decided to divide an apartment with an estimated value of 2 million rubles. 0.5% of this amount will be 10 thousand. The notary asks for another 4 thousand for his services. Additionally, we take into account the 2000 payment for re-registration of property rights. In total, to completely re-register ownership you will have to pay 10+4+2=16 thousand rubles.

Division through court

Dividing property through the court is not the best solution, but sometimes there are no other options. This approach is more expensive and requires more time and nerves.

The state fee when filing a claim in court is paid by the plaintiff, in contrast to the option with a voluntary agreement, the cost of registration of which can be divided between two.

Procedure

• Conduct an apartment assessment.
• File a claim.
• Pay the state fee.
• Send documents to court.
• Wait for a decision.
• On its basis, re-register the property to the new owner.
• If the other party refuses to follow the court decision and/or interferes with it, you can submit documents to the executive service. Based on them, all actions will be carried out compulsorily.

Statement

The statement of claim is drawn up in accordance with the norms and rules established by Article 131 of the Code of Civil Procedure of the Russian Federation. The document must contain:

• Name of the court where the application is filed.
• Details of the plaintiff and defendant.
• Cost of claim (determined based on the estimated value of the property).
• Text of the statement with the plaintiff's demands.
• List of attached documents.
• Signature and date.

Documentation

When filing a claim, in addition to the claim itself, you must provide an identification document of the plaintiff and the representative (if any), a power of attorney for the representative, documents confirming ownership of the property, a report on the estimated value and a registration certificate. You can also attach any other documents that could influence the court's decision.

Multiple copies of all documentation should be made, one for each side of the proceeding.

Expenses

Claims of this type are related to property and the cost of state duty is regulated by paragraph 1 of Article 333.19 of the Tax Code of the Russian Federation. The legislation provides a detailed list of expenses, depending on the cost of the object. In our case, an apartment can cost between 500 thousand and up to 3 million rubles (depending on the region).

For a cost of up to 1 million, you must pay 1% of the amount, from which you first need to subtract 200 thousand rubles and add a fixed payment of 5,200 rubles. If the amount is more than 1 million, then the interest rate is reduced to 0.5% (1 million is subtracted from the estimated value and the calculation is made only for the difference). The fixed payment amount increases to 13,200 rubles.

How to divide a one-room apartment during a divorce through court

If the spouses have not reached an understanding, the division of the one-room apartment will be dealt with by the court, where the initiator of the divorce or an interested party files a statement of claim.

Unlike a settlement agreement, the distribution of property in court is delayed for months, taking into account the need to conduct an examination, prepare a claim, and hold meetings. Among other things, you will need to pay for the services of an appraiser, a lawyer, and payment of court fees.

The result of the proceedings will be a decision:

• distribute property according to the contribution of each party;
• change the layout with the allocation of a separate share;
• transfer property to one of the spouses while preserving the right to receive monetary compensation by the other marriage partner.

There can be many decisions, and they can be challenged within the time limits established by law, which further complicates the process of property settlement.

: Statement of claim for division of an apartment (sample) (37.5 KiB, 33 hits)

Compensation for one of the parties

If the parties do not agree to share the use of a 1-room apartment, and redevelopment is impossible, the option remains when one owner retains property rights, while the other owner receives compensation.

In most cases, this method of resolving the problem with an undivided apartment is considered as the best option. The wife and child remain to live in the apartment, and the second owner agrees to compensation. Instead of a cash payment, parents can agree to offset the cost of part of the property in lieu of child support payments. In addition to money, other property is accepted for offset, for example, a car, valuable property or other real estate.

To receive monetary compensation, you will need to evaluate the property and agree on which party will retain the right to live in the apartment. If it is not possible to independently determine who will receive compensation and who will retain housing, the issue is transferred to the court.

Division methods

The division of property after a divorce can be accomplished in several ways. In this case, much also depends on the agreements reached.

Financial compensation

In this case, it is understood that one person receives full ownership of the apartment, but undertakes to pay the second person his share in cash.

Example : Vasily wants to keep the apartment for himself, since he has nowhere to live. Marina is not against it, because she also has property from her parents, but she is not ready to give up the jointly acquired property for free. The parties agree that Vasily will pay 10 thousand rubles monthly until an amount corresponding to the cost of half the apartment is reached.

Sale of property

This is the simplest option and is used in many situations. If you sell real estate and divide the amount received into two parts, this immediately removes all possible questions.

Example : Vasily wants to buy himself a more expensive apartment, for which he has already set aside personal funds. Marina does not need the real estate in which she and Vasily lived while married. The parties agree that the apartment will be sold and the proceeds will be divided into two equal shares.

Replacement with other property

The share assigned to one of the former spouses can be replaced with other property if there is consent of the parties.

Example : Vasily does not need an apartment, but he wants a garage and a car (purchased during marriage). Marina, in turn, does not need a car and a garage, but she has nowhere else to live. They agree on such an exchange and as a result everyone gets what they want.

This type of property division often requires an appraisal. Former spouses are not always ready to change property if its value is not equal.

Redevelopment

A rarely used option, especially with one-room apartments, but it can also be taken into account. Former spouses can make not just a nominal division of an apartment on paper, but also literally divide it by adding additional walls and partitions. In practice, the kitchen, bathroom, toilet and front door still remain common (it is almost impossible to divide anything here), but the room is divided into two parts, between which a wall is erected.

How can you divide an apartment in general?

The division of real estate can be carried out with or without the allocation of shares. If we are talking about allocating a share, then a person physically takes ownership of a piece of real estate: for example, a two-room apartment is divided, one living room for each owner, and the bathroom and kitchen are shared territory. The ownership documents will then indicate: “a living room with an area of ​​12 (for example) square meters, in an apartment with a total area of ​​65 square meters, located at such and such an address.” The technical plan of the property will also show which room is owned by the co-owner.

If it is physically impossible to allocate a share in an apartment, as in the case of a one-room apartment, then we are talking about property rights. Physically, a share in the apartment will not be allocated, because there is nothing to allocate it from, and the title document will indicate something like the following: “ownership of ½ of the apartment with a total area of ​​32 square meters, located at such and such an address.”

The division of a one-room apartment between spouses during a divorce will be carried out on the basis of the second option: when there is no allocated share, but only a property right.

Not subject to division

Not all real estate can be divided during a divorce. There is a certain list of objects that are considered the property of only one person.

Acquired before marriage

A one-room apartment acquired by one of the former spouses before marriage is not subject to division. This also includes any other property of this type.

There is an exception to this rule. If during marriage the spouses invested money in real estate, for example, carried out major renovations, the property begins to be considered jointly acquired and can already be divided.

Non-privatized apartment

Such objects are not the property of residents. They belong to the state and cannot be divided under any circumstances. The only option is to first, even before the divorce, privatize the apartment and then divide it up on a general basis.

Service housing

This property is also one that is not owned by residents. It can be allocated by both government agencies and private companies, in whose ownership the object remains. Unlike a non-privatized apartment, it can be almost impossible to obtain full ownership of such real estate.

When can’t a one-room apartment be divided?

Let's start with the fact that it is not always possible to divide a one-room apartment during a divorce. The personal property of one of the spouses is:

• premarital apartment;
• received as a gift;
• inherited;
• purchased with the personal funds of the spouse or with funds from the sale of premarital property;
• privatized during marriage by one of the spouses upon refusal of the other.

By default, everything acquired during marriage is considered to be jointly acquired. If a dispute arises regarding this, the spouses can resolve it in court.

At the same time, premarital property in rare cases can be recognized as joint property.

1. For example, when an apartment was purchased before marriage, but repairs and other inseparable expensive improvements were made during marriage at the expense of common funds. If the costs were significant relative to the cost of the apartment, there is a chance to recognize the property as joint property through the court. Or, in any case, recover half the cost of repairs from the spouse.
2. The second common example is the purchase of an apartment using credit funds before marriage and the repayment of the loan by the spouses during family life.

Mortgage and apartment division

If the apartment was purchased on credit, then slightly different division schemes may be used. The simplest option is to sell the property, pay off the balance of the debt, and divide the rest between the former spouses.

Loan issued before marriage

If the property was purchased with a mortgage and was subsequently paid off from the family budget, then during a divorce, the party that is not the owner of the property has the right to demand the return of part of the funds spent on repaying the debt from the main borrower. However, this means that she completely renounces any rights to the apartment.

The apartment was purchased with a mortgage during marriage

If the property was purchased on credit already when people got married, its further fate may depend on the agreements reached. If it is impossible to sell it and divide the remaining funds, then the spouses can agree that they will repay the debt in the amount corresponding to the share received. It is recommended to discuss all options with a bank representative, as the financial institution may have its own requirements or wishes.

General legislation

To understand how a one-room apartment is divided, it is extremely important to first find out what the law in Russia says about this. In the case where the property was received before entering into a marriage relationship, it will be registered in the name of one of the spouses who is the real owner.

When real estate was purchased by both spouses who were already in an officially registered marriage, then there is a possibility that it would immediately be assigned to two owners. One, on whom the object is registered, and the second, to whom it belongs by right of ownership of property jointly acquired by husband and wife.

Important! There are exceptions to the rules specified in Article 36 of the RF IC. When the property was acquired jointly with the personal money of one of the spouses, but was improved and ennobled by the other, as a result of which its market value significantly increased.

Question:

“My husband and I were both married when the one-room apartment in which we live was purchased. It was purchased mainly with her husband's money. At that time, I gave birth to a child and was on maternity leave for three years; I could not work. Of my accumulated personal money, which I used to cover the cost of the apartment, it was only 1/4 of its entire cost. Personally, my money is what was accumulated on my salary card account for the year before going on maternity leave. My question is: “If my husband insists on getting most of the apartment, can I count on half?”

Lawyer's response:

Based on Article 34 of the RF IC, the monetary income of spouses received from work is taken into account. The law does not talk about who earned more and who earned less. In your situation, the apartment is considered jointly owned. The law prescribes that it should be divided equally between you, since you have equal rights to the apartment.

Arbitrage practice

Let's look at a couple of examples from judicial practice:

Example : Ussuriysk. 08/14/2017. Case No. 2-3644/2017. The bottom line: during the marriage, the married couple purchased an apartment. The defendant claims that the purchase was made in a dilapidated house and the plaintiff stated that he did not need the property. In addition, according to the defendant, it was she who paid most of the cost of the premises, since she received significantly more income. Subsequently, the spouses divorced, but could not agree on who would receive the property and to what extent. The plaintiff did not claim the apartment until the defendant began demanding alimony from him.

The court is guided by:

• Article 34 of the RF IC - property acquired during marriage is considered jointly acquired.
• Article 38 of the RF IC - division of jointly acquired property can be carried out both during marriage and after divorce.
• Article 39 of the RF IC - upon division, each party receives an equal share of the jointly acquired property.

During the divorce, the spouses did not draw up an agreement on the division of property. There are no other written agreements between them. As a result, the apartment is considered jointly owned. The court made a decision to divide the property into equal shares with the transfer of one of them to the plaintiff.

Example : Samara. 08/14/2017. Case No. 2-1515/2017. The gist: The couple divorced and have already divided their property. However, the original division did not include an apartment acquired as part of shared construction. Subsequently, the plaintiff filed an application with the court demanding that this property be included in the joint property, since it was purchased with funds from the family budget. The plaintiff demands to divide it into 2 parts, one of which he claims.

The plaintiff and defendant got married in 2000. The apartment was purchased in 2014 while the couple were still married. According to Article 34 of the RF IC, property is considered jointly acquired if it was acquired during marriage, regardless of whose name the purchase was made in. Article 39 of the RF IC explains that when dividing jointly acquired property, the share of each of the former spouses is considered equal. Based on the above, the court decided in favor of the plaintiff and decided to divide the apartment into two equal parts, one of which should be transferred to the plaintiff.

The apparent simplicity of dividing property after a divorce often turns into serious problems with potential property, especially when the ex-husband/wife actively resists. At our free consultation, you can discuss with experienced specialists all the questions that have arisen, and enlist support in terms of working with a notary and the judiciary.

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How children influence the division of a one-room apartment

The current legislation protects their interests. Therefore, divorce and distribution of jointly acquired property, in such a situation, is carried out through the court.

In accordance with Part 2 of Art. 39 of the RF IC, the judge is obliged to deviate from equality of shares, taking into account the interests of minors or minors that the spouses have.

In this situation, it is necessary to involve the guardianship authorities. When living space or a share in it was registered in the name of a child, it is not subject to division between husband and wife.

The following conditions directly affect the increase in the share of one of the spouses who remains to live with the minor::

• the husband’s reluctance to participate in the upbringing and maintenance of the child;
• there is a large alimony debt;
• difficult financial situation (confirmed by a certificate of income);
• the minor is recognized as disabled or suffers from a serious illness;
• the property is the only place where he can reside.

However, the presence of such grounds does not mean that the second party will be completely deprived of its share. It can only decrease.

Transfer of a share in a one-room apartment to pay alimony

In a divorce, one parent, usually the father, is required to make these monthly payments for the child.

They can be calculated from wages in the amount of 25% for one and 33% for two or more children. Or you can enter into an agreement for a fixed amount with a notary. Along with this, the law allows you to transfer your share of child support.

This requires the consent of both parties. Then you should evaluate the entire housing and specifically the share that will be included in the offset. Specialist appraisers are hired to evaluate the property.

Part of the real estate is transferred for alimony on the basis of an agreement concluded between them, which is certified by a notary. This is the basis for registering part of the real estate in the name of the child and, accordingly, gives the right to re-register the share of the residential premises with the Rosreestr authorities, which does not happen with the usual division of housing.