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Since 2007, the material life of a number of families has changed thanks to Federal Law No. 244, adopted at the end of the previous year, which regulates the provision of maternity capital to certain categories of citizens. The law describes the payment procedure, rules of use and purpose. Alas, not all units of society remain united. The number of divorced marriages, even in families with several children, remains high. In this regard, we will consider how maternity capital is divided during a divorce, what factors influence this process.

Is maternity capital divided between spouses?

According to Russian legislation, in 2021 maternity capital is classified as indivisible property. It is registered in the name of one of the parents (most often the mother) and is the property of him and his children. It is the parent to whom the maternity capital is registered who decides how to invest it correctly. And even after a divorce, the mother has the right to spend the allocated money on herself and the children, for example, invest in the purchase of real estate. And in such a situation, this acquisition will be their joint property, i.e. During a divorce, maternity capital is used by the person for whom the certificate was issued.

How to get a mortgage in a civil marriage - consider all the options

Let's say that registering a relationship with the registry office is undesirable. What choices does an unregistered couple have:

1. The loan and square meters are issued entirely for one person. According to the documents, the second person has nothing to do with the purchased housing.
2. One person receives a loan and housing, the second is a guarantor. In this case, the second party is obliged to bear the cost of paying off the loan in the event of difficulties. But at the same time, he still does not have any rights to the apartment.
3. The mortgage and property are registered in the name of two people - they act as co-borrowers. And the residential premises are received as shared ownership. At the same time, the contract specifies the responsibilities of each party.

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Of course, the share scheme for non-partnered spouses is the safest. But it works effectively if each member of a small family team has income and is able to service his part of the debt. If there is only one main earner, then it is wiser to use the first or second option.

Important! The mortgage agreement can be drawn up in such a way that it will regulate the order of payments (who pays what part of the debt). It also indicates what share of the apartment will belong to each of the co-borrowers after the loan is repaid. Therefore, when taking out a mortgage outside of marriage, it is better to consult with an experienced lawyer.

Can a husband claim maternity capital?

The right to maternity capital is primarily granted to a woman who gave birth and/or adopted a second and subsequent children after 2007. The father is entitled to this payment in exceptional cases, which are listed in Federal Law No. 256:

1. When the mother has committed serious unlawful acts towards her child and this fact is reflected in the court decision.
2. Death of mother.
3. After a long absence, the court declared the mother either missing or dead.
4. The father alone carries out the process of adoption of the second and subsequent children for whom a certificate has not yet been issued.
5. If the mother is deprived of parental rights in relation to her children by an official court verdict.

It turns out that the father acquires the right to maternity capital regardless of the divorce.

If a child remains after a divorce from his father

There are cases when the divorce of spouses leads to the fact that the child remains to live with the father, who in such a situation wonders whether I have the right to re-register the maternity capital in my name. Unfortunately, there is nothing to please single fathers in terms of receiving maternity capital. Of course, if the mother was officially deprived of parental rights, then the father has the right to receive funds.

Should maternal capital be shared by the father?

Not really

However, if she simply handed over the children to be raised by their father, but retains parental rights, maternal capital will remain with her in the event of a divorce. The only consolation here can only be the fact that if such a mother decides to use targeted funds to purchase or improve real estate, then each of the children will receive their own part in it. However, if she invests money in the funded part of her pension, then it will belong only to her.

Division of property purchased for maternal capital

Let's consider the features of the division of property purchased using maternal capital in 2021. There are not many options on what to spend maternity capital on. If they are not spent on the child himself, for example, on his education or adaptation in society, provided that one of the children is disabled, then the law establishes the possibility only of investing the funds in whole or in part into the funded part of the mother’s pension or for the acquisition or improvement of real estate .

Naturally, pension savings will never become common property. But if real estate was purchased from maternity capital funds, then the division rules change.

If maternity capital was used to buy an apartment

Federal Law No. 244 strictly establishes that if real estate (apartment or house, or part of a house) was acquired using maternity capital, then such real estate must be divided among all family members. Those. if the money is received after the birth of the second child and the apartment is purchased during marriage, then four equal shares are allocated in it: for the father, mother and one each for the child.

Accordingly, if maternity capital is received after the birth of the third child, then the apartment must be divided into five equal parts. One not so rare nuance should be taken into account here. If maternity capital was issued after the birth of the second child, but an apartment using it was bought only after the birth of the third child, then such living space is still divided in equal shares only among four. The only thing that spouses can do in such a situation to ensure the rights of the third child is to allocate to him part of their shares in the apartment, but not from the shares of the two older children. To do this, you will need to draw up an agreement on the division of property and have it notarized.

On our website you can and between spouses.

Accordingly, after the divorce, each spouse can only claim their share in the apartment. If the former spouses cannot independently agree on accommodation after a divorce, then the court, as a rule, leaves the apartment to the mother (if the children remain after the divorce), and the husband is awarded monetary compensation based on the value of his share in the apartment.

Spouses, when divorcing a marriage and taking on the division of property, must remember that it does not matter how much money one of them contributed to the purchase of an apartment. Even if these were sole funds received as a gift by the ex-husband or wife.

If at least part of the maternity capital was used when purchasing real estate, then such real estate is divided in equal parts among all family members.

Even if the spouses previously drew up a marriage contract or an agreement on the division of real estate, where the owner was indicated differently, these documents will not be taken into account during the division.

If the certificate was used to improve living conditions

By improving living conditions, Russian legislation understands:

• purchase of a house, apartment or part of a house or apartment;
• building your own home;
• depositing money as a down payment on a mortgage loan;
• reconstruction of an existing home.

Unfortunately, you won’t be able to simply spend the payments due on repairs to your apartment or house. The dwelling must undergo genuine reconstruction approved by the relevant authorities. One way or another, it always concerns the expansion of living space, for example, through an extension or the construction of a new floor.

Division during divorce of maternity capital used to improve living conditions.

If the capital is used specifically for reconstruction, then no matter who previously owned the house, after investing maternity capital, it should be divided equally among all family members.

The same rule applies to building a house. It will also be recognized as shared ownership between spouses and their children.

If the funds were used in a mortgage

Maternity capital is most difficult to divide if it is used as a means of repaying a mortgage loan. Of course, if the mortgage is fully paid and all legal owners have taken ownership, then the spouses’ divorce will not bring any particular difficulties. Everything will be carried out according to the standard scheme. It does not matter which party and how much invested in the mortgaged apartment. It does not matter which spouse received the bank loan, even if this was done before marriage.

If funds from targeted government payments were used to pay off the mortgage debt, then the apartment should be divided in equal shares among everyone. This even applies to housing with a military mortgage.

Things get more complicated if the mortgage remains outstanding at the time of the divorce. Using maternity capital, for example, immediately eliminates the option in which an apartment is sold at auction, the proceeds cover the debt, and the remaining funds are divided between the spouses. There are three ways out of the situation:

1. Repay the loan early.
2. Continue to pay off your mortgage debt together.
3. Contact the bank with a request to restructure the debt and divide the balance in equal shares between the former spouses.

The apartment itself purchased with maternity capital in 2021 will be subject to division only after the final repayment of the loan, and until that moment it remains pledged to the bank. As soon as the debt is resolved, you should contact a notary, and then Rosreestr, where the allocation of shares to all family members will be recorded.

Who can get a loan for?

Two options for the development of the situation are allowed: one of the spouses took out a mortgage before marriage and then entered into a union, or cohabitants register the property as shared ownership. The rights and responsibilities of individuals vary depending on the chosen lending method. As long as the couple is in a relationship, it doesn't really matter. But when children appear, or the moment comes to divide the apartment taken into a mortgage before marriage during a divorce, such nuances become significant.

Issuance of funds per borrower

A citizen can apply for funds even before entering into official relations. In this case, he is the only borrower, and the housing is registered in his name. In the future, you can change the form of ownership or add a joint borrower if the second cohabitant so desires.

If the mortgage was acquired before marriage and was not transferred to two people during married life, in case of divorce:

1. The second spouse risks being left without real estate ().
2. The division of loan debts is also excluded.

However, there are more benefits in the long run from taking out a loan together.

Common shared ownership

To ensure that the division of property under a mortgage before marriage does not cause difficulties, you should choose this form of ownership. Common-law spouses or cohabitants can act as joint borrowers under an agreement. In this case:

• one is the title borrower;
• housing is registered as shared ownership.

In this situation, in order to perform any actions with property, one common-law spouse will have to obtain notarial permission from the second. To issue a mortgage before marriage, you need to submit to the bank:

• salary certificate (provided either in the form of a bank or in the form);
• work book (certified copy);
• documents for the borrower;
• certificates for children, if any.

These papers are collected by each of the common-law spouses. Representatives of the financial organization will provide a complete list. The procedure for obtaining a mortgage before marriage is as follows:

1. The title borrower submits an application to the bank (the application must indicate the existence of a joint borrower).
2. If you receive a positive response, send the collected documents to the financial institution.
3. Select a suitable property, taking into account the bank's requirements for such property.
4. Evaluate the apartment in an expert bureau and draw up a mortgage agreement (they will open an account for you where the down payment is made).

Upon completion of the procedures with the bank, you need to transfer the money to the seller and register the property with Rosreestr. Additionally, a collateral agreement and insurance will be required. If one of the spouses bought an apartment with a mortgage before marriage, the square meters are registered in his name. If they are formalized in a civil union, Rosreestr registers shared ownership.

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Arbitrage practice

If we analyze judicial practice in cases where maternity capital is involved in divorce, it becomes clear that, first of all, judges focus on the interests of minor children, and not their parents.

• The Zamoskvoretsky court received a statement of claim from Mr. Smirnov I.O., who asked to leave him an apartment purchased with a mortgage loan, citing the fact that his wife did not work during the period of making payments. The judge decided to divide the apartment in equal shares between Mr. Smirnov I.O., his ex-wife Smirnova N.A. and their two children together, arguing that targeted government payments were used to repay part of the mortgage loan.

To summarize, it can be noted that maternity capital cannot be divided during a divorce. If real estate was purchased using it, then it must be divided equally among all family members.

Save bills and receipts

In an official union, relations are regulated. But in an unregistered marriage, dividing property is more difficult. Therefore, if an apartment was purchased with a mortgage outside of marriage, it is necessary to preserve all documentary evidence of payments.

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This is especially true if you pay for a loan from a card, through a terminal or from an electronic wallet. Make sure the payer is identifiable. It may be better to make payments over the counter by showing your ID.

Important! Having payment orders in hand, you will be able to prove that you actually repaid the loan and participated in the acquisition of property.