During a divorce, how is maternity capital divided?

The state strives to provide all possible assistance and support to families with two or more children; as one of such measures, a law was adopted on a lump sum payment at the birth of a second or subsequent children. This payment was called maternity capital. Whether it is possible to divide maternity capital during a divorce or not, we will discuss in this article.

What is maternity capital?

Mat capital was developed to stimulate demographic growth in the country. This payment is due to mothers, and in some cases also to fathers, who have a second, third or subsequent child. Maternity capital can be received only once after the birth of a child.

The amount of payments also varies. For example, if a mother applied to the pension fund (and this is where the mat capital certificate is issued) after the birth of her second child, it will be lower than if the application was after the birth of the third child.

This payment is targeted and cannot be spent at the discretion of the mother. Funds can be directed to:

• purchase of housing;
• repaying a loan taken to purchase a home;
• improvement of living conditions;
• child education;
• towards the mother's pension savings.

Using maternity capital for other purposes is not permitted.

Sample certificate for receiving maternity capital

Is maternity capital divided between spouses during a divorce?

What to do with maternity capital in case of divorce? How to divide and who to contact? According to the legislation of the Russian Federation, during a divorce, spouses can divide jointly acquired property and funds, with the exception of subsidized payments and social benefits. As for capital, it is not subject to division between spouses, and remains in full to the person to whom it was registered (that is, the mother).

Why can't I get a certificate for my father? It is possible, but only in special cases. Thus, the father can claim mat capital in the following cases:

• the mother has been deprived of parental rights or has not completed the procedure for adopting a child;
• declared missing or deceased by the court;
• committed a crime against her child;
• The father raises the children alone.

So, the certificate itself cannot be divided directly; it completely goes to the person for whom it was issued. Accordingly, the second party will not have the right to claim the use of funds.

Example:

The Krasnovs had three children. For the birth of a third citizen V.I. Krasnova received a maternity capital certificate. Citizen I.K.

Krasnov filed for divorce and in the lawsuit indicated a demand for the division of funds from this capital. The court refused to citizen Krasnov I.K.

in satisfying this requirement, since according to the legislation of the Russian Federation, this payment is personal and is not subject to division in the event of divorce.

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

If everything is clear and understandable with unrealized capital, then what to do in a situation where a family purchased an apartment using maternal capital funds? Should such property be divided?

Living space purchased with mat capital funds is necessarily subject to division if one of the parties insists on it, however, when concluding a transaction for the purchase of housing, the main requirement is to give each family member an equal share of ownership of the apartment. Based on this, the division of property can occur into equal shares.

For example, if a family of four purchased a residential building with an area of ​​400 square meters. m., the share of each family member, including even a baby, is 100 sq. m. The division of the house must take place in such a way that the rights of children are not infringed.

It is allowed to sell such housing and divide the proceeds into equal parts. That is, if the children stay with their mother, then she receives money for 300 sq. m., and the father for 100 sq. m.

Loan repayment

• If the spouses spent money on repaying the mortgage debt or part of it, the issue of division is no different from the situation with the purchase of a home for real money.
• The division is carried out on the basis of the allocation of shares.
• The division of an apartment purchased with a mortgage is a complex thing in itself; read about it in more detail here.

As for the division of the remaining debt, it is divided exactly in half between the spouses.

Naturally, in some cases the court takes into account the financial situation of the parties and with whom the children remain, but with a greater degree of probability it should be assumed that the debt will be divided in half.

Example: Before the divorce, the Tsyplakov family purchased an apartment using a mortgage loan. They paid off part of the debt using maternity capital funds.

After the divorce proceedings, the court ruled that the remaining debt would be divided exactly in half between the spouses.

However, since the head of the family was assigned alimony in favor of the spouse until the debt is fully repaid (three years), these alimony payments go towards the spouse’s share. Thus? the loan is fully repaid by citizen E.P. Tsyplakov.

Repair work

If a wife and her husband decide to use money to improve their living conditions by carrying out repairs, and after some time the family falls apart, the division of property takes place according to the standard scheme - division by shares.

Problem situations

The former head of the family can still claim to receive maternity capital as a result of a divorce, but not by a court decision.

For example, if as a result of divorce proceedings the mother was deprived of parental rights, but she has already managed to obtain a certificate for herself, the right to these funds passes to the father. The mother will not be able to manage this money.

Example:

The Baranov family had two children; the wife managed to issue and receive a maternity capital certificate for the birth of her second child. As a result of the wife's constant drunkenness, the head of the family filed for divorce and succeeded in depriving the mother of parental rights. According to the court decision, the husband will be in charge of raising the children.

After receiving all the documents, A.R. Baranov turned to the pension fund with a request to reissue the certificate for him. As a result, his request was granted.

As for the use of maternity capital for the education of a child or mother, as well as the transfer of funds towards the mother’s pension, the second party clearly does not have the right to claim this money.

So, maternity capital during a divorce is not subject to division, only if it has not yet been realized. If the money was used to purchase housing or improve living conditions, division is possible, but taking into account the rights of the child. Carefully study the governing documents and do not commit stupid and reckless actions regarding unreasonable claims in court.

Source: https://porazvodu.ru/razdel-imushhestva/materinskij-kapital

How is maternity capital divided during divorce?

During a divorce, unused maternity capital funds are not divided between the spouses, since they are not their joint property. According to Part 1 of Art.

3 of Law No. 256-FZ, the right to receive a certificate may belong to the mother (adoptive parent) or to the man - the only adoptive parent of the second (subsequent) child.

If part of the funds has already been disposed of, then the right to the remainder also belongs to the specified persons.

To the joint property of the spouses, according to Art. 34 of the Family Code of the Russian Federation, includes property acquired by spouses during marriage:

1. Movable and immovable things.
2. Pensions, benefits and other non-targeted payments.
3. Income that was received for labor, intellectual or entrepreneurial activities.
4. Deposits, shares, securities, shares in capital made to a credit or other organization.

Since maternity capital is a measure of social support of a targeted nature, it is not joint property and cannot be divided during a divorce.

In addition to maternal capital, common property does not include:

• personal belongings of spouses - with the exception of luxury items and jewelry;
• property purchased before marriage;
• property received by a husband or wife by inheritance, gift or other gratuitous transaction;
• rights to the result of intellectual activity.

The division does not take into account whose funds (husband or wife) the property was acquired during the marriage and in whose name it was registered - both spouses have the right to it. If one of them managed a household during the marriage and could not work, then he still claims his part in the common property.

In case of divorce, the right to maternity capital is not divided: after the divorce, the ex-husband cannot issue a certificate for himself or dispose of half of the funds if a woman has the right. If a man is the owner of the certificate, then his wife also cannot claim half of the capital.

The ex-husband, if he is the father (adoptive parent), may receive the right to a certificate when the woman loses it. This occurs if the owner of the certificate:

• died (declared dead);
• deprived of parental rights;
• committed a deliberate crime against the person of a child;
• canceled the adoption.

If the father is deprived of the right to maternity capital, then his children acquire it: minors, or adults, but studying full-time.

Housing purchased, built (reconstructed) with maternity capital is divided during a divorce, taking into account the norms established by Art. 38-39 of the Labor Code of the Russian Federation and Art. 10 of Law No. 256-FZ, the rights of children and spouses to such living space must be taken into account. The division of property can be carried out both during marriage and after divorce.

During a divorce, the following cannot be divided:

• Individual property of husband and wife.
• Deposits made in the name of minor children of spouses at the expense of common property.
• Things to meet the needs of minors - they are transferred to the parent with whom the children will live.

You can file a lawsuit demanding division of common property within three years from the date of divorce.

Since when purchasing, constructing or restoring a home, shares in it must be allocated to each of the family members, the living space will be divided differently, depending on whether the obligation has been fulfilled or not. If the shares were allocated, then after the divorce the spouses and children will each remain with their own part. If not, then the division of the living space will be carried out in several stages:

1. It is established what part of the housing was purchased with maternity capital.
2. This area is divided equally between parents and children: the smaller the acquired part, the smaller the shares in the housing will be. For example, if 1/4 of the cost of an apartment was paid with maternal capital, then the minimum share of each family member will be 1/16 of the living space.
3. The rest of the living space is divided in half between the spouses, unless other conditions are determined by the court or agreement.

If the cost of housing was fully paid by maternal capital, and no shares were allocated, then the entire living space is divided equally between parents and children.

If the spouses have entered into a marriage contract, then the housing is divided according to it, but shares must be allocated to children and spouses.

An apartment purchased with certificate funds is divided upon divorce, taking into account whether the shares were allocated or not. If the owner of the certificate has fulfilled the obligation, then he, his spouse and children each remain with their part. If shares were not allocated, then the area purchased with maternal capital funds is distributed equally among family members.

• a different ratio of shares takes into account the interests of minors;
• one of the parents, for an unjustifiable reason, did not receive income or spent common property to the detriment of the family;
• the husband or wife cannot work for health reasons or for reasons beyond their control.

Despite the fact that the apartment is divided, each spouse with a share can live in it until he is paid compensation for his part.

If, during a divorce, the mortgage for the purchase of housing, taken out using maternity capital, has not yet been repaid, then it is impossible to allocate shares for the obligation, since the encumbrance has not been removed from the apartment. As in other cases, the area purchased with the certificate funds is equally distributed between parents and children, and the rest is divided equally between the spouses.

Liabilities for the unpaid loan amount, despite the fact that it was repaid with maternal capital, will be distributed equally between husband and wife, since, according to Part 3 of Art. 39 of the Family Code of the Russian Federation, debts are divided between spouses in proportion to the shares awarded to them. A different distribution may be established by a court decision.

To sell an apartment in which maternity capital has been invested, if the mortgage has not yet been repaid, you need to receive:

• permission from the Guardianship and Trusteeship authorities;
• consent of the credit institution.

Read also: Transfer of a child to another kindergarten: in connection with the move, through government services

If the house was purchased with the funds of the certificate, then it is divided taking into account whether the parents fulfilled the obligation to allocate shares or not.

As in the general case, if the shares were not distributed, then the part of the house purchased with maternity capital is divided equally between family members, and the remaining area - between the spouses.

Parts when dividing a house, as a rule, turn out to be larger than when dividing an apartment, due to the lower cost of such premises.

If the house was fully paid for with the certificate, then its area is divided equally between parents and children.

If shares were allocated under the obligation, then after the divorce each family member will remain with them.

All issues regarding maternity capital are regulated by Federal Law No. 256 of December 29, 2006. It does not contain any mention that divorce in any way affects the right to payment.

In addition, the certificate is personalized. Most often it is given to the mother, regardless of marital status. Even after the divorce, she can use maternity capital. If these funds are used to purchase housing after a divorce, it becomes the shared property of the mother and children.

If maternity capital is not used in marriage, after a divorce the man has no rights to it. However, there are a number of reasons why the certificate goes to the father. This happens if the mother:

• died;
• declared missing by the court;
• convicted of a crime against her own children;
• deprived of parental rights (or the adoption was terminated).

According to Part 4 of Art. 10 Federal Law No. 256, an apartment purchased with the participation of maternal capital must be registered as the property of the mother, father and all children. Everyone receives their due shares, but the law does not specify how they are determined. In this regard, the court could previously rule that the child would receive a share of either the capital amount or the apartment.

After considering multiple appeals, the Supreme Court eliminated these discrepancies in the law. According to the decision made, from now on, living space purchased using maternal capital is divided equally between parents and children. Such a measure protects the rights of the child, and therefore is a priority.

The size of shares cannot be changed by any agreements. Accordingly, after a divorce, each spouse will be entitled only to his or her share.

We suggest you familiarize yourself with what a wife is entitled to after a divorce

Voluntary section

If the spouses are ready for dialogue, they can agree on each person’s share of the joint property. They may also be unequal.

The procedure for voluntary division:

1. A list of property to be divided is determined.
2. The parties agree on who receives what objects.
3. The property is being assessed.
4. An agreement is drawn up and certified by a notary.
5. State duty is paid.
6. The ownership right is re-registered taking into account the shares specified in the agreement.

The agreement is drawn up in free form. The fundamental point is the value of the property, on the basis of which the amount of the state duty is calculated. Therefore, an assessment is required.

To certify the contract with a notary, you will need the passports of both spouses. You may also need a birth certificate of the child for whom maternity capital was issued, documents proving the intended use of the payment, and a property valuation report.

What the law says

Whether maternity capital is divided is determined by the RF IC. In Art. 38 and Art. 39 provides for the division of only property acquired during marriage. It also includes non-targeted cash payments - pensions and benefits, income from intellectual work, amounts for damage compensation.

Maternity capital has a specific purpose, so it can be spent exclusively on housing, increasing the mother’s funded pension, and child’s education. Accordingly, such a payment is not included in the joint property, and division is impossible. The owner of the certificate is the person in whose name it was issued. Usually it's mom.

Loan repayment

If the spouses spent money on repaying the mortgage debt or part of it, the issue of division is no different from the situation with the purchase of a home for real money.

The division is carried out on the basis of the allocation of shares.

The division of an apartment purchased with a mortgage is a complex thing in itself; read about it in more detail here.

As for the division of the remaining debt, it is divided exactly in half between the spouses. Naturally, in some cases the court takes into account the financial situation of the parties and with whom the children remain, but with a greater degree of probability it should be assumed that the debt will be divided in half.

Repair work

If a wife and her husband decide to use money to improve their living conditions by carrying out repairs, and after some time the family falls apart, the division of property takes place according to the standard scheme - division by shares.

Problem situations

The former head of the family can still claim to receive maternity capital as a result of a divorce, but not by a court decision.

For example, if as a result of divorce proceedings the mother was deprived of parental rights, but she has already managed to obtain a certificate for herself, the right to these funds passes to the father. The mother will not be able to manage this money.

As for the use of maternity capital for the education of a child or mother, as well as the transfer of funds towards the mother’s pension, the second party clearly does not have the right to claim this money.

So, maternity capital during a divorce is not subject to division, only if it has not yet been realized. If the money was used to purchase housing or improve living conditions, division is possible, but taking into account the rights of the child. Carefully study the governing documents and do not commit stupid and reckless actions regarding unreasonable claims in court.

Source: https://mydigitalart.ru/denezhnaya-kompensatsiya-materinskiy-kapital-razvode/

How is maternity capital divided when spouses divorce?

Home / Divorces / How is maternity capital divided when spouses divorce?

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“My husband and I are getting divorced, we have two children. The maternity capital certificate was issued in my name. The husband threatens to take away half of the maternity capital in the process of dividing joint property. Is he really entitled to half? Olga, Moscow

The issuance of maternity capital is one of the measures of state assistance to families with children. Maternity capital is issued in the form of a personalized certificate in the name of the mother who gave birth to or adopted a second, third or next child. And only she, as the recipient of the certificate, can dispose of the capital.

The size of the monetary amount of maternity capital depends on the number of children in the family (for example, for the third child the mother will receive a larger amount than for the second). Capital can be used for one of the purposes provided by law:

One way or another, mat capital comes to the family. Therefore, in the process of divorce and division of property, spouses ask a reasonable question - how maternity capital is divided during a divorce.

Is maternity capital divided?

According to the norms of family law, not only movable and immovable joint property, but also monetary payments are subject to division between divorcing spouses. An exception to this rule is targeted cash payments (benefits and subsidies from the state).

Therefore, maternity capital is considered a state targeted payment - it is not considered jointly acquired property and is not subject to division between spouses. In the event of a divorce, the maternity capital certificate will go to the person in whose name it was issued.

As a rule, it is issued in the name of the mother. But in some cases, the father also has the right to receive a certificate.

If the spouses are divorced, can they use maternity capital?

The emergence and termination of the right to maternity capital occurs under the conditions provided for by the Federal Law “On Additional Support Measures...” No. 256 of December 29, 2006. And in this law there is not a word that the divorce of spouses in any way affects the right to use maternity capital.

As mentioned above, the maternity capital certificate is personal. In most cases, it is the mother who receives it, regardless of whether she is married or divorced. Even if the mother’s marriage to the children’s father is dissolved, she still has the right to use maternity capital.

If housing/a share in an apartment is purchased using maternal capital after a divorce, its owners will be the mother and children. What will be the procedure for dividing housing purchased before the divorce, read below.

Does a husband have the right to maternity capital during a divorce?

No! Divorce and division of property are not grounds for transferring the right to maternity capital to the father.

But really, the child’s father has no right to claim maternity capital, at least for a small part?

In some cases, the mother loses the right to maternity capital, and the father of the children gains it. For example, if:

• the mother committed crimes against her own child;
• mother died;
• the mother is declared dead or missing by the court;
• adoption by the mother of the child is terminated;
• the mother lost her parental rights.

In addition, a father can receive maternity capital if he is raising two or more children alone, including adopted children.

In these cases, the ex-husband acquires the right to maternity capital. But it is quite obvious that these cases have nothing to do with divorce.

Division of property purchased with the participation of maternity capital

If at the time of the divorce the maternity capital certificate has not yet been used for its intended purpose, it remains with the person in whose name it was issued. But what if the capital funds have already been used for one of the purposes?

As a rule, mat capital funds are used to improve housing conditions, for example, to purchase a home, pay a down payment when concluding a mortgage agreement, contribute a share to the account for the construction of residential real estate, and so on.

How is an apartment/house/mortgage purchased with maternity capital divided during a divorce?

If maternity capital is used to purchase an apartment or house

According to the norms of the Federal Law “On measures of state support for families with children,” residential real estate acquired using maternity capital is registered in the name of all family members - in equal shares.

For example, if a family of four (father, mother and two children) purchased an apartment using maternity capital funds, each family member receives 1/4 share of the apartment.

No agreement on the distribution of shares can be concluded - shares are distributed strictly in accordance with the law.

Upon divorce, each spouse can only claim his or her share of the joint real estate. To divide such property, the spouses will have to independently enter into a written agreement on the division of property or go to court to resolve the controversial issue.

There may be several options for dividing real estate owned by spouses under the right of shared ownership (for example, allocating a share in kind, receiving compensation in the form of other property or a monetary payment).

The main thing is that during the division the rights of children, who are also the owners of their shares, are not infringed.

Therefore, to sell a home for the purpose of dividing the proceeds, it is necessary to obtain permission from the guardianship and trusteeship authority.

If maternity capital is used as a down payment when drawing up a mortgage agreement or in the form of repaying part of a mortgage loan

• When purchasing residential real estate with a mortgage loan using maternity capital, the same rules apply as when purchasing real estate without a loan.
• The main rule is that the shares of property of all family members (father, mother and children) must be equal.
• But the process of dividing this property has several features:

• the obligation to repay the mortgage loan between divorcing spouses is divided strictly in half, although their shares in the common property may be smaller (for example, 1/4 for each if there are two children in the family);
• Until the loan is paid off, it will not be easy to sell the mortgaged apartment. Such a transaction will be carried out by the bank, the price of the property will be lower than the market price, and the amount of debt will be deducted from the proceeds. To sell an apartment yourself, you must obtain permission from the bank. In addition, you need to obtain permission from the guardianship authority.

Read also: Train tickets for large families: all discounts and benefits in 2020

You can read about how the mortgage is divided in the event of a divorce with children here.

If maternity capital is used to repair residential real estate, expand or rebuild

As in previous cases, the main requirement is to register residential real estate as common shared ownership. In this case, the shares of each family member must be equal. The division of real estate is carried out on a general basis.

Still have questions? Ask our lawyers. Your case probably requires detailed consideration. To assess the risks and take into account the interests of children, the second spouse and third parties, you need to analyze the situation and develop an action algorithm. The lawyer will tell you who will receive the capital and how to divide the mortgage or remaining property between the spouses.

Source: http://law-divorce.ru/kak-delitsya-materinskij-kapital-pri-razvode/

How is maternity capital divided when spouses divorce?

Home » Division of property » How is maternity capital divided during a divorce?

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Maternity capital is a state payment due to a woman after the birth of her second, third or subsequent child. It is issued strictly in the name of the wife and has a specific purpose. So, it can be used to:

• Pay for the child's education.
• Increase mother's pension.
• Improve living conditions.

Formally, all this is somehow connected with the family’s finances, and therefore, during a divorce, questions may arise about how to divide the money.

Is maternity capital divided during divorce?

Is mat capital subject to division? No. Only property acquired during marriage can be divided, with some exceptions. According to Article 34 of the RF IC, any monetary payments that have a designated purpose are not divided during a divorce. In this case, this includes maternity capital. It remains in the mother's personal use until it is used for its intended purpose.

Who is maternity capital divided into when buying an apartment?

Maternity capital is not subject to division during divorce, regardless of the conditions and features. It may belong to either the mother or the father, and if used to improve living conditions, it may belong to the children.

How is maternity capital divided during a divorce?

As was written above, maternity capital is not subject to division. But you need to understand under what conditions and to whom it will belong in order to correctly divide property during a divorce.

When buying an apartment

According to the law “On State Support Measures for Families with Children” (Part 4, Article 10), if real estate was purchased using maternity capital funds, it must be registered in equal shares for all family members, including children. In this case, it does not matter what part of the amount was reimbursed by the state.

Example : The Kovalev family purchased an apartment using maternity capital. The family has two adults and two children. The property must be registered in equal parts for each family member. The father and mother receive 25% of the apartment, and each of the children receives another 25%.

When registering shares, you should take into account not only the child who became the reason for receiving maternity capital, but also the first son or daughter, since without him receiving government assistance would also be impossible.

Thus, in the event of a divorce, the ex-husband and wife will share only half of the apartment among themselves (25% for each), and not the whole of it. This does not apply to the rest of the property.

When applying for a mortgage on an apartment, the bank usually requires that the additional co-borrower be the spouse of the main borrower. In a divorce, they simply divide the remaining debt into two parts and each pays their share.

Example : The Kovalevs, who have two children, buy an apartment with a mortgage. The first payment is made at the expense of maternity capital. In the event of a divorce, each of them will be required to pay 50% of the loan, regardless of the fact that they actually own only 25% of the property.

Even before the divorce, it is recommended to notify the bank of your plans. Together with the lender's representative, you can find the most optimal way to solve the problem. Otherwise, the financial institution has every right to demand early repayment of the debt.

When carrying out major repairs and/or other construction work aimed at improving housing conditions, maternity capital is calculated in the same way as when used to purchase real estate. As a result, children automatically receive their share and sharply reduce the amount of property that parents can divide among themselves during a divorce.

Section methods

There are 4 main ways to divide real estate acquired using maternity capital

• Replacement. The husband or wife with whom the children remain offers their ex-other half to exchange her share in the apartment for other property. For example, for a garage, car, cottage, household appliances, land, and so on.
• Compensation. This is the actual sale of a share to a second party. For example, a wife may suggest to her husband that he transfer his share in exchange for monetary compensation in an amount corresponding to the cost of this part of the apartment.
• Sale. A rarely used option, especially in situations with maternity capital. In theory, the ex-spouses sell the property and each gets their share. It should be taken into account that when purchasing a new home, the area allocated for each child should not be less than it was in the previous apartment.
• Isolation in kind. The least popular option. It is understood that the spouses continue to live in the same living space, but it is actually divided into several parts, one of which goes to the husband. In practice, it is impossible to divide an apartment in this way, if only because the kitchen, toilet and bathroom in it are usually presented in one copy. Relevant only if several apartments were purchased during marriage, later combined into a single living space.

Between children

Maternity capital is primarily intended not for parents, but for children. This is implied even in the intended purpose. Property is divided between children in equal parts, regardless of their number.

Example : The Kovalev spouses have two children. They buy an apartment. It is issued to four owners, each of whom (two spouses and two children) receives 25%.

If a third child (5th family member) is born, the parents are obliged to redistribute the shares in the real estate, distributing them now into 5 parts. In such a situation, everyone will receive 20%.

The same is true at the birth of each subsequent child.

With husband

Maternity capital is not divided between husband and wife. However, it may not belong to the mother, but to the father. This is implied in Federal Law No. 256, Article 3. This situation can only arise in exceptional conditions:

• A mother commits a crime against her child.
• The mother was killed, declared dead or missing.
• The mother was deprived of parental rights or abandoned the child.

Also, the father receives the right to maternity capital in the case when he independently raises more than 1 child, including adopted children. Under such conditions, even if the man subsequently marries and plans to divorce, this money will also not be subject to division.

If a former spouse claims part of maternity capital or an apartment purchased using public funds, the problem will have to be resolved in court. In this case, numerous questions may arise, which we can answer during a free consultation. We are also ready to represent your interests in court so that the situation is resolved with maximum benefit.

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Source: https://ros-nasledstvo.ru/kak-delitsya-materinskij-kapital-pri-razvode-suprugov/

Maternity capital in case of divorce

Young families with children strive to obtain the right to maternal (family) capital. The advantages of using it are obvious.

By receiving a certificate for maternity capital, the spouses do not plan to divorce in the future.

When this happens, many questions arise about the use and division of maternity capital, as well as property acquired with its participation. Perhaps this article will help you find answers to them.

How is maternity capital divided when spouses divorce?

Maternity capital is not divided during divorce . The Family Code of the Russian Federation establishes that upon divorce, property acquired jointly by the spouses during the marriage is divided . Such property includes various incomes of each spouse, pensions, benefits received by them, and other monetary payments without a special purpose.

Maternity capital (hereinafter referred to as MK) is assigned in accordance with the law “On additional measures of state support for families with children” No. 256 of December 29, 2006. The law does not mention the possibility of dividing MK funds upon divorce.

MK is federal budget money allocated to a family with children as a measure of state support. This is a state targeted payment to parents used in the interests of children.

MK is not joint marital property and is not subject to division after divorce.

What rights does an ex-husband have?

The right to maternity capital is confirmed by a certificate - a personal document issued most often in the name of the mother, who manages it even after a divorce.

A certificate for MK can be issued to the father in the following cases:

• the father independently applied to the Pension Fund, providing the necessary documents;
• the mother lost the right to dispose of MK in cases established by law;
• After the divorce, the children remained with their father.

The ex-husband cannot receive maternity capital in the form of a payment, but as a father he has the right to participate in choosing the direction of using MK.

For example, a mother wants to buy a better apartment, but a father insists on paying for the child’s education. If the former spouses do not come to an agreement, then such a dispute may be considered by the court. In this case, the court in its decision will take into account the interests of the children, and not the opinion of the parents.

Is it possible to use maternity capital if the spouses are divorced?

The separation of spouses does not affect the use of MC. The owner of the certificate submits an application to the Pension Fund to send MK amounts to pay off his obligations, attaching supporting documents.

Read also: Benefits for major repairs: pensioners, veterans, disabled people

Let's say a mother bought an apartment using MK, having already lost the right to dispose of it. The court may invalidate such a deal if it determines that it does not take into account the interests of the children.

In this case, the father may not go to court on his own. It is enough to report the controversial transaction of the ex-wife to the guardianship authority or the prosecutor's office.

These authorities will conduct an inspection and begin legal proceedings.

Division of property acquired with maternity capital

As mentioned above, it is impossible to divide the rights to MK in the form of cash payments during a divorce. But property purchased with the help of MK is possible.

Purchased an apartment

Such real estate is divided between former spouses very simply.

Federal Law N256-FZ contains a clear provision that housing purchased using MK is registered as the common property of parents and children, and the size of the shares is determined by agreement.

Without fulfilling this requirement, the Pension Fund body will recover the spent MK funds from the federal budget. And such an agreement already establishes the shares of the spouses, and there is nothing to divide during a divorce.

Read also: Regional maternity capital

Another question is how the person leaving the family can use his or her part of the common housing. For example, to purchase another. The simplest option is for the ex-spouses to agree on the payment of monetary compensation for the ex-husband’s share, provided that the children remain with the mother.

Otherwise, you can find an option to exchange or exchange for housing of a smaller area with an additional payment. If an agreement is not reached, then you can demand the exchange or exchange of housing through the court forcibly. The court will clarify the attitude towards the upcoming exchange or exchange of children who have reached the age of majority by this time.

They can also be addressed with a demand for payment of compensation for the value of the ex-spouse’s share.

Spent on mortgage

Former spouses are faced with what to do with the balance of debt on a mortgage loan taken out from a bank to purchase an apartment. If both the apartment and the loan were paid for with one’s own funds, then the apartment pledged to the bank is sold with the consent of the bank and the proceeds are used to pay off the balance of the mortgage debt.

But this option is not suitable if MK was involved in the transaction. Mandatory shares for children must be allocated in residential premises. Such an apartment is sold with the permission of the guardianship authorities, who will require guarantees that the children will be allocated rights to another residential premises. In such a situation, there may be different options for repaying mortgage debt:

• When purchasing housing with a mortgage, state registration of rights to housing with the allocation of mandatory children's shares is completed only after the mortgage encumbrance is removed. The apartment can be sold with the permission of the bank, without allocating children's shares in it. Then permission from the guardianship authority to sell the apartment will not be needed. In order to report on the intended use of state subsidies, it is necessary to buy other housing for children. Here parents can stumble upon a big pitfall. If most of the proceeds from the sale of a mortgaged home are spent on paying off the loan debt, then there will be nothing to buy another home with. And if you don’t purchase it, then the guardianship authorities and the prosecutor’s office will intervene and demand in court that the MK amount be returned to the budget by the parents who did not allocate their children’s shares. Such parents are not subject to special liability in the form of a fine or other punishment. Everything is limited to collecting money from them in the amount of spent MK. There is already a known case in judicial practice where the father tried to voluntarily return MK funds to the Pension Fund, which is not provided for by law. Then the father deliberately did not allocate the children’s shares, which prompted government agencies to collect MK from him through the court.
• former spouses can agree among themselves on the further payment of mortgage obligations, and not divide property until the mortgage obligations are paid off. The disadvantage of this option is that the issue of a second home is not resolved during the period of payment of the mortgage balance;
• parents can contact the bank with an application to reissue the existing mortgage loan into two loans equal in amount to the balance for each of the spouses. In this case, the obligations of each spouse will decrease; each will pay off the loan independently, without regard to the other. After completing the loan re-issuance procedure, the collateral encumbrance on the apartment will be removed. But the bank may refuse if it considers one of the former spouses insolvent;
• a trial in which not only property, but also jointly acquired debts will be divided. The court will divide both the apartment, with the allocation of the children's shares, and the balance of the common debt between the former spouses, and, in agreement with the bank, will draw up a new payment schedule. When deciding on the division of debt, the court will take into account the financial and housing situation of each party after the divorce, as well as which parent the children remain with. Therefore, the court may not divide the debt equally.

Read also: How you can use maternity capital funds

MK spent on repairs

Source: https://gosuslugi365.ru/materinskij-kapital/pri-razvode-suprugov.html

Is maternity capital divided during a divorce in 2019: can it be divided between spouses

If difficulties arise in the family that cannot be overcome, one of the spouses or both spouses decide to divorce. Divorce is accompanied by the division of jointly acquired property, ranging from real estate to household items. But is maternity capital divided during a divorce?

Division of maternal capital upon divorce

Can the certificate be divided in case of divorce? Based on Art. 38, 39 of the family law, joint property that was acquired during the existence of the family is subject to division during a divorce.

In accordance with Art. 34 of the RF IC, payments that do not have a designated purpose are also subject to division:

• wages, pension payments, benefits, etc.;
• income from business and intellectual activities;
• bank accounts, shares, shares in capital, etc.

Maternity capital funds have a specific purpose. It consists of providing state support for families in order to create conditions sufficient for a decent standard of living.

The certificate is issued in the name of the mother or father, who is the sole adoptive parent, and cannot be divided between spouses. The certificate remains with the person in whose name it was issued.

In certain situations, legislators have provided for the possibility of transferring maternity capital to the father:

• if the mother died or was declared dead;
• when the mother is deprived of her parental rights;
• the mother committed a crime against the children;
• if the documentation for the adoption of the child for whom the capital was received is cancelled;
• if the man himself adopted the 2nd and subsequent children.

It is worth considering the fact that men who are stepfathers of the first child cannot apply for maternity capital.

How is an apartment purchased using maternal capital divided?

Capital funds can be used to purchase housing, reconstruct it, or build a house.

An apartment purchased using maternal capital money acquires the status of common property. In accordance with the agreement concluded between family members, each of them is entitled to a share in the apartment, including all children.

In the event of divorce, only their shares are divided between the spouses. Each child's shares are inviolable. In accordance with Art. 60 of family law, parents cannot become owners of children's property and vice versa. Children's shares cannot be divided even if the house has not yet been completed.

In such a situation, you can act in several ways:

1. The sale of a property with the subsequent division of the proceeds between the shareholders. To sell children's shares, you will need to obtain permission from the guardianship and trusteeship authorities. Specialists will monitor the execution of the transaction and the procedure for crediting funds to the child’s bank account. The amount must correspond to the market value of the minor child's share. In order not to transfer money, the parent can provide the child with housing. It should not be worse than the property sold.
2. Sale of housing and payment to the spouse left with the children, the amount corresponding to the shares. Money can be replaced by other objects of property. Their price must correspond to the cost of the share.
3. Natural allocation of share. This method can be used when it comes to individual houses. The premises must be equipped with a separate exit, bathroom, and postal address. The market value of the real estate should not decrease, and the interests of shareholders must be respected.

If the mother remains with the children, then the father can waive his share to pay child support. To do this, you will need to enter into an agreement and specify in it the procedure by which the cost of the share will be deducted from the amount of monthly payments.

In the case where the residential property was fully paid for from maternal capital, and the shares of family members were not allocated, during a divorce, the housing is divided into equal parts between all family members.

If maternity capital funds are involved in a mortgage loan

If maternity capital funds were used when applying for a mortgage loan to purchase housing, then the law requires, as in the case of purchasing a property without a mortgage, the determination of shares for each family member. The shares of parents and children must be equal.

To divide a mortgaged home, the following steps will be required:

1. Debt to a financial institution is distributed equally between parents, despite the fact that their share in housing may be 1/3 or ¼ (depending on the number of children).
2. Contacting a banking organization for the purpose of selling a property. In addition to the bank, permission must be issued by the guardianship authorities. It is also possible that the bank itself sells the apartment. But in this situation its market price will be underestimated. In both cases, the proceeds will need to be used to repay the debt to the financial institution, and the remainder is divided among all family members.
3. One of the parents can pay off the debt to the bank. In the future, you can recover half of the amount paid after the divorce from the other parent.

Use of maternity capital after divorce

The maternal certificate is a personal document. In the vast majority of cases, its recipients are mothers. It does not matter whether the woman is married or divorced. If a woman received a certificate in a marriage that later broke up, then she has every right to use the maternity capital at her own discretion after a divorce.

When purchasing housing using certificate funds after the dissolution of the family union, the owners of the purchased property will be the mother and her children.

Let's sum it up

Thus, maternity capital funds do not belong to the joint property of spouses even if the certificate was received during marriage. The document is issued to a specific person and is intended for specific purposes, so its division is impossible. But the father of the children can transfer it to himself in some cases.

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Source: https://pravovoiexpert.ru/razdel-imushhestva/delitsya-li-materinskij-kapital-pri-razvode/