The apartment was purchased with a mortgage with payment from maternity capital. How is it divided during a divorce?

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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.

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

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

1. 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.
2. 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.

Are public funds returned in case of divorce?

The provisions of the family legislation determine that upon dissolution of a marriage, the couple divides not only movable property and real estate, but also monetary payments. An exception to the general rule is a targeted government subsidy or benefit.

Guided by the fact that maternal money is targeted support for the mother from the state, therefore it cannot be classified as an object of joint property.

Often, when investing public funds in mortgaged housing, the question arises as to whether it is possible to return maternity capital from the mortgage in the event of a divorce. According to general canons, capital in the event of a break in a marriage is not subject to division. The funds are used by the person for whom the certificate is issued. The other spouse's claims for payment of money are groundless.

Sometimes, when investing state support funds for a mother in a mortgaged property, spouses have the question of how to return maternity capital from the mortgage after a divorce.

One of the former spouses cannot return the state support funds invested in the mortgage, since this is not provided for by law. During a divorce, the general rules for the division of property apply, according to which the shares of the child and parents in the property are allocated.

How is a mortgaged apartment purchased with maternity capital divided during a divorce?

It is more or less clear how to divide an apartment, fully or partially paid for with a mother’s certificate. But what to do with the residential property if the capital is used for a mortgage that has not yet been repaid?

Divorce with an outstanding mortgage - features

Features of an equity mortgage are as follows:

• both parents are co-borrowers, this is a mandatory condition for obtaining a mortgage loan;
• each spouse receives his or her share of the property;
• it makes no difference who is named as the main borrower, the obligations of both parents are equal;
• residential premises are registered for everyone, including minor children, this is a mandatory condition for investing maternity capital.

In the event of a divorce with an outstanding mortgage using a certificate, the share of each spouse will depend on the number of minors in the family.

For example, if there are two children in a family, then the apartment is divided into four parts (according to the number of all family members), and the share of each spouse will be one quarter. The share of the remaining mortgage debt in any case will be half, since debt obligations do not apply to minors.

But a maternity certificate can be used to improve living conditions in different ways.

For example, spouses had part of the amount to purchase real estate; upon receiving the certificate, they added the missing amount and bought a home. This is one option, not the most common. Most often, the certificate is used as a down payment on a mortgage or, if the mortgage has already been issued earlier, in the form of early repayment of part of an already taken loan.

If maternity capital is used to purchase an apartment or house without obtaining a mortgage, then the main condition for the division will be compliance with the rights of children, who a priori have a share of the living space. There are several section options:

• allocation of a share of the apartment in kind (one of the spouses receives ownership of a separate room);
• receipt by one of the spouses of monetary compensation in the amount of his share;
• replacement of a share in an apartment with some other property (a car, a summer house or other property of equal value to the share).

Buying an apartment with a mortgage using maternity capital follows the same rules as buying without a mortgage; the main mandatory condition here is the equivalence of the shares of all family members. The section in case of divorce has a number of features:

1. Whatever share of the property each parent has, the obligation to repay the mortgage loan is divided equally.
2. Until the mortgage is repaid, no real estate transactions can be made, or they are extremely difficult.

Until the debt is paid, the actual property shares of each family member are not determined, since according to the law their allocation occurs only after registration of ownership, which, in turn, occurs only after the mortgage loan is repaid.

In this case, there are only obligations to divide the property after receiving ownership. None of the family members can claim a larger share than others; all square meters are divided equally.

For example. K.’s family has two minor children, so the mortgaged apartment is divided into four equal shares according to the number of family members. The husband receives one-fourth of the property, his ex-wife receives the same part, half of the apartment goes to two minor children. Since the children remain with the mother after the divorce, the spouse receives three-quarters of the living space. By law, the entire mortgage debt is divided equally between the former spouses only, but this does not give the father the right to demand an additional share of the property beyond what is required.

Obligations to allocate shares to minors

In order to fulfill the obligation to allocate shares to minors, the following actions must be taken:

1. Without using MK . To do this, you need to visit a notary and draw up an agreement on determining these shares (usually the apartment is divided equally). Then register them with the Registration Chamber, and subsequently draw up a new agreement with a notary, determining the share of minors.
2. If the certificate was used to pay off part of the mortgage . Visit a notary and draw up an agreement to assign part of the share of each parent to minor children.
3. If the capital was used in the form of a down payment . In this case, children's shares of real estate are determined initially; no need to visit a notary when applying for a mortgage.

For example, an apartment purchased with a mortgage, where a certificate was used as a down payment, does not need to be further divided, since it is already registered at the time of purchase as the shared property of all family members. To obtain ownership rights, it will be enough to provide the registration authorities with a certificate of closure of the mortgage loan after full repayment of the mortgage

It must be borne in mind that the obligation to allocate shares to minors must be fulfilled within six months after the mortgage loan is repaid and the encumbrance on the property is removed.

If, in addition to the mortgage and maternity capital, other joint funds were used when purchasing a home

Despite the fact that the law enshrines the right of children to a compulsory share in residential premises purchased with the help of maternity capital, in cases where, in addition to these funds, joint sums of money were used, including those received on credit, part of the property paid for by these funds shall be divided equally between the spouses.

In such cases, former spouses can use several options for dividing mortgage housing purchased using MK, namely:

1. Apply for a separate loan for each spouse, use these funds to pay off the mortgage debt, then sell the apartment and divide the proceeds. But this division option is impossible if children have shares in the residential premises. The guardianship authorities or the prosecutor's office may recognize such a transaction as invalid.
2. Divide the mortgage loan obligations equally, or in accordance with shares, by drawing up a voluntary agreement. In this case, each spouse pays his or her part of the debt, and the residential premises remain the property of each in the amount of the shares that were before the divorce and division of property.
3. The spouse remaining in the apartment pays the other a compensation proportional to his share of the investment in the purchase of the apartment. The amount of compensation can be determined either through a voluntary agreement or in accordance with a court verdict.

Thus, maternity capital funds invested in the purchase of an apartment are not subject to division. The legislation takes into account the rights of children and confirms the right to dispose of shares of residential premises belonging to the children of the parent with whom the minors remain in the event of a divorce.

The process of dividing housing during a divorce involves a number of problems.

How to divide housing that was purchased or built using maternity capital during a divorce?

Regardless of whether you bought “ready-made” real estate or built it yourself, according to Law No. 256-FZ (Article 10, paragraph 4), such housing is registered as joint shared ownership of both parents and minor children. The size of the shares is established by general agreement. Until July 28, 2010, it was possible to allocate a share in such real estate to other family members, for example, grandparents who live together with children and grandchildren. Now this cannot be done.

Following the general rule, real estate with the participation of MK is divided into 4 (or more - according to the number of children) equal parts. If the parents decide to separate, then each adult will have the right to housing, but only within their share. He/she may also demand that this share be allocated in any possible way - in the form of compensation from other property, cash payment or by selling the apartment.

To sell real estate purchased/built with MK funds and registered as shared ownership of children and parents, you will have to obtain consent from the guardianship authorities, since the interests of minor children may suffer in this case. Typically, in this case, parents may be required to provide a written commitment to allocate their children their share of the sale of the apartment within a specific time frame.

How to get a divorce and get your share in real estate if you paid a mortgage loan as a payment?

Mortgage and divorce are not easy. But mortgages, maternity capital and divorce are many, many, many times worse:

For real estate purchased on credit, the same requirements apply as for real estate without an encumbrance.

If, when applying for a mortgage loan, you use MK funds, then please arrange the mortgaged apartment into common shared ownership. Unlike MK, obligations on mortgage loans are considered by law to be the common property of the spouses and (attention!) are divided in half upon divorce. That is, you will have a 1/4 share in the apartment (or less), and a 1/2 share in the loan payments, as required by law. Until the bank's encumbrance is removed from the property, selling it will be very problematic

Yes, nominally, you can go to court and terminate the loan agreement. However, in this case, the transaction to sell the collateral will be carried out by the bank. Be prepared that you will lose from 20 to 30% in price, and you will receive even less in your hands, since your debt to the bank will be deducted from the sales amount. You can, of course, try to sell the apartment before the mortgage encumbrance is removed from it, but this will require permission from the creditor bank, the Pension Fund of the Russian Federation and the guardianship authorities. If the bank finds out that you have decided to get a divorce and have hidden this fact from it, it has the right to demand full repayment of the debt from you.

What to do if you and your ex-spouse do not want to live in the same apartment, nor do you want to pay a loan for a place where you do not live. In this case, you have only 2 options:

• Agree with your ex-spouse on the offset of debt and share in property;
• Notify the bank and try to sell the apartment. In this case, all the delights await you in the form of guardianship authorities, written obligations, low prices, etc., described by us in paragraph 3 above.

We hope our tips will help you in your search.

How is a mortgage divided in case of divorce with children with maternity capital?

Usually, during a divorce, all joint property is divided equally between the former spouses, but if there are children and a mortgage loan, the court often divides the joint property into unequal shares: most of the housing goes to the mother and children, but the loan debt is divided equally.

Since maternal capital is often used to pay off a mortgage, children have the right to a share in the residential premises and the division of the apartment occurs in even more unequal shares, since part of the share repaid with the help of a certificate is not subject to division at all and is completely transferred to the parent with who are the children left?

If the apartment is mortgaged using a certificate, then before dividing it, the best option would be to pre-pay off the debt. In this case, the apartment is removed from the credit institution’s collateral and the number of division methods increases.

For example, after all encumbrances are removed, the property can be sold, the proceeds divided and a separate home purchased for each spouse. Of course, the funds received by everyone may not be enough to buy a normal apartment, but they can be used as a down payment on a new mortgage.

Important. If children are registered in the residential premises for sale, then before selling the housing it is necessary to obtain permission from the guardianship authorities. There will be no such permission if the parents cannot prove that after the sale of the apartment, the minors will be provided with conditions for normal living. If somehow the parents are able to circumvent this requirement and sell the home without the sanction of guardianship, in the future they will face administrative liability up to and including deprivation of parental rights.

In most cases, borrowers do not have sufficient funds to fully repay the mortgage loan early, and during a divorce it remains in the mortgage. In such situations, several scenarios are possible:

1. One of the spouses goes to court with a demand to divide the mortgage debt. The court, with the help of the credit institution, draws up a new payment schedule. Banks are very reluctant to accept this option, as the risk of delayed payments and an increase in overdue mortgage debt increases.
2. A more suitable option would be to contact the bank of both spouses with an application for refinancing. In this case, the credit institution, instead of one common mortgage loan, concludes with the former spouses two separate ones, equal in total amount to the balance of the mortgage debt. In this case, each applicant is personally responsible for his or her part of the loan.
3. You may not divide the property at all until the mortgage loan is repaid in full, but draw up an agreement on the methods and parts of repayment of the mortgage by each of the former spouses. In this case, the spouses may miss the statute of limitations for the division of joint property, which is three years. Also, the problem of separation will not be resolved if neither of them has any other housing.

How is maternity capital used when buying an apartment with a mortgage?

The provisions of the above Federal Law establish the following methods of using maternity capital funds:

• using MK funds to transfer a down payment when purchasing a home, which is required for obtaining a mortgage;
• use of MK funds for partial or complete closure of existing mortgage debt.

Both options for use entail assigning to children a mandatory share in the ownership of housing, for the purchase or closure of the mortgage debt for which MK funds were spent.

Expert opinion

Stanislav Evseev

Lawyer. Experience 12 years. Specialization: civil, family, inheritance law.

Maternity capital is provided not to children, as it may initially seem, but to the parent - in the most common case - the mother.

The father may also have the right to MK funds, but only as prescribed in Art. 3 of Law 256-FZ in cases, namely:

• death of the children's mother or declaring her dead through the court;
• the mother committing a deliberate crime against her own child;
• cancellation of the adoption of a child through the court or deprivation of parental rights.

How to divide a mortgaged apartment during a divorce from maternity capital

As mentioned above, dividing a mortgaged apartment with maternity capital is quite problematic. At first glance, you might think that the best option would be to sell the residential premises, then divide the proceeds in accordance with the shares, then purchase a new property.

Is it possible to sell an apartment with an outstanding mortgage debt?

Recently, credit institutions are more willing to give consent to such transactions, and a mandatory condition for permission is the transfer of the balance of the mortgage debt to the bank account on the day of sale. But completing a transaction for the purchase and sale of a mortgaged apartment while investing maternity capital in it is almost impossible for two reasons:

1. The need for mandatory allocation of children's shares. Between the stage of removing the encumbrance (this is a condition for the sale of the apartment) and the purchase and sale transaction there is a stage of mandatory allocation of shares of the residential premises to the children; if this does not happen, then, at the request of the prosecutor, the transaction is declared void. In this case, a forced return of a sum of money in the amount of MK to the state treasury will follow, since the parents were unable to fulfill their obligations to divide the shares of the living space between all family members.
2. Prohibition of the sale of an apartment without allocating shares to minors with the subsequent allocation of such a share in the newly purchased apartment. Forced return of maternity capital also awaits those parents who decided to first sell the mortgaged apartment and then buy a new residential property and allocate shares there for their children. Such a transaction for the sale of a mortgaged apartment will be declared invalid. This is due to the fact that subsequently, having already become adults, children who are not allocated shares in the apartment paid for with maternal capital have the right to file a claim to declare the transaction void, since their rights were violated.

With whom to coordinate the sale of such housing?

Having decided to sell the apartment with a mortgage with maternity capital, the spouses must coordinate it with two authorities:

• the credit institution that issued the mortgage loan;
• guardianship authorities guarding the interests of minor children.

If everything is more or less clear with the bank, it can give permission for the sale if it is confident in the transparency and legality of the transaction, then with guardianship everything is much more complicated.

Only if the guardianship authorities consider that the rights of the children are not violated in any way during the sale of the mortgaged apartment, they can give permission to sell the apartment, but parents must be ready to prove this.

Are there any differences in the division of an apartment and a house purchased with maternal capital?

Maternity capital, as a means of targeted financing, can be spent on improving housing conditions either by purchasing an apartment or an individual house (cottage, townhouse, duplex, etc.)

When carrying out a divorce and division of residential premises acquired with the involvement of maternity capital, it does not matter in what form the housing is available.

The only difference between a house and an apartment is the ability to make a division by allocating shares. In most cases, shares in private houses can be allocated, since the layout of the house allows for separate entrances, bathrooms and other necessary elements of the living space.

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

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:

1. File a claim for division of real estate.
2. Contact Rosreestr and re-register ownership rights for all family members.
3. Visit the bank with a request to reissue the mortgage based on a court decision, concluding agreements with each of the owners.
4. 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.

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Procedure through the court

Resolving the issue of dividing a mortgage with maternity capital during a divorce is quite difficult, since minor children are involved in the process. According to the law, each child must be allocated a share in property commensurate with the required square meters per person (18 sq.m.). Thus, the spouse has the right to claim 1/3 of the apartment, for example. In this case, the judge may offer to buy the remaining part of the home from the husband. The amount of monetary compensation is calculated as follows: 1/3 of the amount of the remaining debt on the loan is subtracted from the cost of the share. Money is transferred to a bank account under a purchase and sale agreement with an encumbrance. As a result of such a decision, the man is released from the obligation to pay the mortgage in the future. The wife, in turn, needs to renew the loan agreement and pay the debt in accordance with the court order. This must be done within 30 days after receiving the writ of execution.

Also, the judge determines the share of each spouse in the mortgaged housing based on the following criteria:

• the amount of money paid by the spouse alone;
• participation of spouses in the improvement of the apartment;
• the period of incapacity of the wife at the birth of the child, and therefore the young mother did not have her own income;
• the amount of state benefits (maternity capital).

Procedure for divorce:

1. Try to resolve the conflict pre-trial (sending letters to the defendant in order to conclude a settlement agreement on the division of the apartment under the mortgage);
2. Notify the bank about your marital status and demand changes to the terms of the loan agreement;
3. Collect the necessary documents for the court;
4. Draw up a statement of claim;
5. Pay the state fee and file a lawsuit against your spouse (the amount of the state fee is calculated based on the amount of the debt obligation);
6. Participation in court hearings.

USEFUL INFORMATION: Transfer to the pension of a deceased spouse, law
List of documents for the court:

• the plaintiff’s identity card, a copy of the defendant’s passport;
• marriage registration certificate;
• a certificate from the Pension Fund on the disposal of maternity capital funds;
• loan agreement;
• real estate purchase and sale agreement;
• certificate of ownership of the apartment;
• personal account from the bank about the amount of remaining mortgage debt;
• additional documents for real estate (technical passport, plan - diagram of the facility, agreement on shared participation in construction, etc.);
• receipt for payment of the state duty (the cost of the claim is calculated based on the market value of the housing on the day of going to court).

At the court hearing, the wishes of the creditor are also taken into account. If the spouses are more than three months behind on their mortgage payments, the home may be sold at auction, leaving the ex-husband and wife with nothing.

Sample statement of claim

If the spouses are unable to agree on the division of property in a peaceful manner, they must go to court. You can apply for divorce and division of the mortgage with maternity capital at the place of residence of the plaintiff, defendant, or at the location of the disputed real estate. The document is drawn up in random order in two copies. One of the statements is certified by the secretary of the court chamber and handed over to the plaintiff. Within 30 days, a notice will be sent to the specified address indicating the start date of the court hearing.

Contents of the statement of claim to the court:

• name of the judicial chamber;
• passport details of the plaintiff;
• Full name of the defendant;
• the essence of going to court;
• information about housing (address, square footage, cadastral number);
• amount of mortgage debt;
• spouse's offenses;
• plaintiff's claims;
• reference to legislative acts;
• list of attached documents;
• date, signature of the applicant.