VS figured out how to divide an apartment purchased before the wedding

To understand whether property that was acquired by a husband or wife before marriage is divided during a divorce, you should refer to Art. 36 of the Family Code. According to its rules, such property is recognized as the personal property of the person who acquired it, both during the existence of the marriage and after its breakup. Existing exceptions to this rule are also recorded in articles of the RF IC and the RF Civil Code. Let's look at the question in more detail.

Divisible and indivisible property

The RF IC (Article 34) and the RF Civil Code (Article 256) define jointly acquired property of spouses, which is subject to division during marriage or after its dissolution in 2021. Let's look at the examples in more detail:

The law determines that property classified as divisible is equal property for spouses, i.e. In case of divorce, it is divided in half. If the property is registered as personal property, then it is not subject to division between spouses.

Is an apartment purchased before marriage divided?

If real estate was acquired by one of the spouses before the wedding and he solely took ownership, then it will remain his personal property both during the marriage and after the divorce. There are only a number of exceptions to this rule.

Improving living conditions using shared money

If the housing, which belongs to one spouse as personal property, has undergone significant repairs or reconstruction using funds taken from the general family budget or money that belonged to the second spouse, then you can expect that the court will allocate a share in this property to this spouse. Or oblige the owner to pay compensation to the husband or wife.

The amount of compensation payments is calculated as follows. If the money taken for repairs was related to joint property, then the parties will be required to conduct an independent examination in order to determine the market value of the apartment at the time of the divorce. The original cost will be deducted from it (indicated in the contract of sale, gift, etc.). The amount received will be divided in half - this will be the amount of compensation due.

If the ex-spouse is registered

Let's consider whether an apartment purchased before the wedding is divided if during the marriage its owner registered the spouse in it. Such an apartment cannot be divided during a divorce in 2021. It will remain the property of the person who purchased it. After the divorce, the second spouse will be required to leave the occupied living space. If he does not agree to do this voluntarily, he will have to be deregistered by a court decision.

In a number of cases, the court agrees and allows the ex-spouse, who is not its owner, to live in the apartment if he does not have his own home. But the period of such residence cannot exceed 6 months, i.e. until a new place of residence is found.

If there are children

The RF IC determines that neither parents have rights to their children’s property, nor, accordingly, children have rights to their parents’ property. This means that the apartment purchased before marriage by the father or mother remains their personal property. The presence of children will not affect this fact in any way.

If a child has official registration in this apartment, then it does not give him the right to claim ownership of part of it. However, in this case, the child can continue to live in this apartment even after the parents divorce. If the housing belongs to the husband, and the court left the child with the mother, then his mother can live in this apartment until the child comes of age.

Provided that the child does not have permanent registration in the apartment, the decision on his further residence will depend on the availability of his own housing with the parent with whom the child remains in court. If there is no such provision or it is recognized as unequal, after the parents’ divorce and until the child reaches adulthood, the court may allow the child to live in the apartment with the parent who is recognized as the main guardian. If housing is available, the child and this guardian must move to live with him.

If the apartment is taken out on a mortgage

An apartment purchased with a mortgage, if the spouse has paid off all debts before the wedding, will remain his property. If the loan was issued before the wedding, and payments are made during the marriage, then the court may recognize that the money to repay the loan was taken from the family budget. Unless the interested party can prove otherwise.

Rules for the division of real estate acquired before marriage.

In this situation, the shares will either be divided between the husband and wife, or the apartment will be left to the party that took out the mortgage loan, obliging the second spouse to pay compensation for the funds spent.

Apartment in a new building

If the apartment was purchased before marriage in a house under construction, then the further development of the situation will occur in the same ways as with mortgage housing.

So, if the buying spouse is able to prove that joint funds were not spent on such an apartment, then it will be recognized as purely personal property. If the construction was completed during the period of marriage, then for such property during a divorce, either the division of shares or the payment of a compensation sum of money to someone who will not get this apartment is provided.

If an apartment in a new building purchased before marriage was put into operation only after the husband and wife divorced, then one of the spouses has the right to file a claim in court to recognize such an apartment as joint property. But only after the final delivery of the house. While it is under construction, it is not possible to divide the apartment, because... Legally, it doesn’t even exist yet.

A marriage contract has been concluded

Art. 40 of the RF IC allows spouses to resolve a number of property issues without involving a court. For this purpose, you can conclude either an amicable separation agreement or a marriage contract. If spouses want to regulate the division of property purchased before marriage or not yet acquired at all, then the second option will be more correct for them, because The agreement allows for the division of only property recognized as jointly acquired property.

A husband and wife have the right to draw up a contract both before the wedding and during the marriage. If it states that an apartment purchased before marriage will go to only one of the spouses during a divorce in 2021, then this is precisely the condition of the document that will be accepted. There is only one exception to this condition. So, if maternity capital was invested in the reconstruction of such an apartment or in repaying the loan for it, then the conditions of division will be completely different.

Federal Law No. 256 determines that if maternity capital was used to improve housing conditions, then the real estate in which it was invested should be divided in equal shares among all family members. This also applies to an apartment purchased before marriage. No agreements, contracts or other documents can cancel this rule. In such housing, each family member receives his or her equal share.

The marriage contract is drawn up in any form. It is important to record as carefully as possible all the details regarding the divisible property. Those. if we are talking about an apartment purchased before marriage, then it is necessary to enter basic information about the purchase and sale agreement.

On our website you can see an example of recording the shares of the spouses that each will receive in the event of a divorce.

Peculiarities of purchasing an apartment in shared ownership by spouses

Shared ownership is an official legal concept that characterizes a property (room, apartment, house) that has several owners and the shares are accordingly divided between them.
Then everyone has a separate certificate of ownership, which indicates the number of shares of each owner of a particular apartment (house). The disadvantage of this approach is that you will have to carry out two transactions, and if the drafters do not formalize them correctly, there is a high risk that the registration of the transfer of ownership will be delayed.

One of the most common problems in a divorce is the division of property, especially if there is a heated dispute between spouses regarding ownership. It happens that expensive items are purchased by a husband and wife together during their married life, but are registered only in the name of the husband.

In this article we will try to understand a difficult question - how to divide property if its owner is a husband? If after reading the article you have additional questions or require clarification, please contact the portal’s legal advisers - personal advice is provided free of charge.

But it should be understood that no matter what shared ownership the apartment is registered in, it, in any case, is property acquired jointly, which means it belongs to the spouses in equal halves. Even if in the purchase and sale agreement the apartment is divided into, say, 1/4 and 3/4, and in the same shares it is registered with government agencies, then when the property is divided, the apartment will still be divided in half.

Before marriage, I had a one-room apartment, now I want to change it to a larger one. My parents add money. How to register the purchased apartment so that in case of divorce the husband does not lay claim to it?

As long as all the owners get along peacefully, it is not at all important which share belongs to whom. But if a conflict arises between the owners of an apartment and the question of dividing the apartment arises, each of them can only dispose of their share. So, if three brothers or father and son own an apartment in joint ownership, then they are considered equal owners.

If the privatization of real estate occurred before the marriage was registered, the sole owner of the apartment is, in this case, the husband. A wife cannot claim an apartment privatized by her husband, even if she lived in it during the marriage. According to the Housing Code, the wife must change her place of residence after the divorce.

It is possible to obtain a mortgage for both spouses when registering ownership of one of them, as well as issuing a mortgage for one of them and registering ownership for both. In either case, during a divorce, obligations and debts will be distributed equally between the parties.

There is a chance to obtain the right to a share in real estate only through the court if there is documentary evidence of the purchase of the disputed property. For example, there is a receipt from a common-law spouse (cohabitant) about receiving money to buy a car, apartment, garage, summer cottage, etc. Matkapital is presented not in monetary form, but in the form of a certificate for a specific amount, which, in accordance with the agreement, can only be spent on legally stipulated purposes: purchasing housing, paying for a child’s education, carrying out repairs in real estate registered as a property, etc. d.

USEFUL INFORMATION: Is alimony considered income?

Sale of property acquired before marriage

Art. 36 of the RF IC establishes ownership rules for property acquired before marriage. It is the personal property of the acquirer. The same rules apply to property that was received under a gift or inheritance agreement during the existence of family relations.

Should property purchased before marriage be divided?

Not really

If the owner decides to sell such property while married, then he does not need to obtain permission from the second spouse to complete the transaction. All proceeds from the sale will again be considered the personal property of the person to whom the property belonged. The second spouse in the event of a divorce or during the existence of the marriage cannot claim these funds.

Rights to receive deduction payments

The second spouse does not lose the right to receive a deduction for employment if he himself did not apply to the tax office with an application to transfer his right. If a woman is at home while caring for her baby, she does not receive any taxable income. She may not count on a personal income tax refund at this point in her life. The state reserves this right for the woman in future purchase and sale transactions of any housing, individual house or apartment. The spouse in this case can receive the maximum tax deduction under such conditions. If the purchase of an apartment in a family is not the first time and one family member has already received the maximum payments, then the second can take full advantage of this opportunity.

Who can take advantage of the benefit?

Anyone who works for a salary can receive a property tax deduction. Entrepreneurs cannot receive this amount unless they combine individual entrepreneurship and employment. A property tax deduction is a return to you of up to 260,000 rubles from 2 million rubles spent on purchasing housing. The state returns this money from the income tax paid in the amount of 13% of wages. The amount of payments directly depends on your annual income. The greater the amount of money paid in employment on which income tax is paid, the greater the deduction payments made. If the cost of the apartment was less than 2 million, then in subsequent sales transactions you can once again use this law on the payment of money (until the limit is exhausted). In this case, the total tax deduction cannot exceed 2 million rubles. All costs of repaying interest on targeted bank loans and credits are also returned in the form of 13% of the amount spent.

Receiving Other Benefits

If one of the spouses has a second marriage, and there are children in the first, then they are his heirs. This means that after the death of the apartment owner, the other half will have problems when registering an inheritance. Together with the widow or widower, all children from all marriages will claim the share of the deceased spouse and the owner of the apartment. In this case, it is better to protect yourself and register the apartment in the name of the spouse who has no heirs outside the family. A person who has such heirs can write a testamentary refusal during his lifetime, depriving potential heirs of the right to inheritance.

If the marriage is not formalized

If an apartment is purchased before marriage, it will be better if all legal registration of ownership documents is carried out before the marriage registration procedure

Under such conditions, the housing will belong to only one owner and will not be divided during a divorce. In a civil marriage, you must always pay attention to the legal subtleties when registering real estate, so that over time you are not left with nothing. It is up to the married couple to decide who owns the apartment being purchased, but any decision, no matter what conditions it is based on, must be clearly stated in the marriage contract

USEFUL INFORMATION: Application for accompanying a child (children) in Russia

It is a common practice when, in a civil marriage, a jointly purchased apartment is registered immediately in the name of the spouse who will own it completely after the divorce.

Registration for a minor

When choosing who is best to register an apartment for, you must proceed from the reality in which the person finds himself. Depending on the desired benefit, you can make even a minor child the owner, so that later you do not have to transfer the apartment to him separately. Moreover, until he reaches adulthood, all tax payments will be made by his legal representatives. Upon reaching 18 years of age, the young person will have the right to manage the apartment himself. For whatever purpose an apartment is purchased, a person always has the right to take advantage of the maximum benefit.

When property is recognized as common

If the court determines that the second spouse should be allocated a share in the apartment purchased before marriage, then there are several options for further division:

• spouses officially determine shares in real estate and continue to use it jointly;
• the existing apartment is sold, and the proceeds are divided according to the shares allocated to each;
• housing is recognized as the property of one spouse with the need to pay monetary compensation in favor of the second according to the allocated share;
• The spouses are exchanging an apartment. For example, they change it to a room and a one-room apartment;
• division in kind. The option is possible, but difficult to implement. The most suitable for its implementation is a private house, which has two entrances and at least the ability to make a division in such a way as to build an isolated bathroom and kitchen in both parts of the house. This option is also possible for apartments that were created by combining two adjacent ones.

Arbitrage practice

The practice of dividing apartments acquired as personal property is very extensive.

• Citizen Smirnova applied to the court with a request to divide the apartment that her husband bought immediately before the wedding. According to the purchase and sale agreement, the cost of the apartment upon purchase was estimated at 2.5 million rubles. The plaintiff stated that during the marriage, which lasted 2 years, a lot of renovations were done in the apartment. An independent appraiser was invited to determine the value at the time of the divorce. The apartment was valued at 4 million rubles. The judge ruled that the apartment will remain the property of the plaintiff’s husband, and he will be obliged to pay her compensation in the amount of 750 thousand rubles, i.e. half the amount by which the cost of the apartment increased.

Thus, in 2021 the wife will be able to divide the husband’s apartment, purchased before marriage, only in exceptional cases. If she proves that the cost of this housing has increased due to her personal savings or funds from the general family budget.

How to ensure that an apartment purchased during marriage is not divided during a divorce

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.

: How to do the right thing Diverting housing from division - how realistic is this method of preventing the division of an apartment quite often: it is presented to one of the spouses as a gift. Everything received by a spouse by inheritance or gift is his indivisible property.

Thus, parents can make a gift to their married child or declare him the heir to the apartment, so that the housing remains with him in any situation.

How to arrange an apartment so as not to divide it during a divorce

To prevent such developments, you should:

• have evidence that payments for the object of the transaction were made from an account in which the money was already before the marriage;
• preserve evidence that the funds belonged to the testator or donor.

If the second spouse targets part of this home, he will be able to suggest to the court that the donor parents are poor and could not purchase the property without using funds that were shared. The evidence can be an account statement from the owner of the disputed property - about the withdrawal of an amount equal to the cost of the apartment, or several statements about the amount paid for it.

In any case, you should think about the fact that only a correctly drawn up marriage contract can provide a guaranteed result without effort and tricks.

Is it possible to buy an apartment while married and not divide it during a divorce?

Lawyer's advice: My husband was given an apartment by his parents, but money for repairs was taken from his wife's account, as a result the apartment became more expensive by 30% of the original cost, how can my wife take back her share? According to the marriage contract, the apartment belongs to one of the spouses, but it was purchased jointly, while the second spouse does not have any property. Is it possible to challenge the marriage contract and divide the living space in half? ○ What the law says.

USEFUL INFORMATION: Statement of claim for division of joint property of spouses

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One of the reasons for purchasing residential real estate is the reluctance to share an apartment with a spouse. This behavior is most often characteristic of parents. For example, the spouse’s parents purchase housing by drawing up a sales contract, and in the future they draw up a deed of gift and give it to their daughter. In this situation we are talking about two transactions, the disadvantage of which is:

• Duration by processing time.
• Payment of double state duty.

The way out of this situation is to conclude an agreement through a third party.

What is needed for this? To do this, all parties need to come to the notary’s office and sign an agreement, according to which the parents buy housing in the name of their daughter (son) with their own money and she (he) becomes its owner. Here, the right to such housing will be considered as transferred free of charge, since the payment was made by the parents.

How can I buy an apartment while married so that it remains mine in the event of a divorce?

Ways to purchase housing before marriage:

• Purchase with your own funds.
• Inheritance.
• By receiving as a gift.

Purchase of housing before marriage can be proven:

1. Prove that the funds came from the parents. Ideally, have a notarized housing donation agreement. It is also possible to draw up such an agreement for the gift of funds in simple written form.