Husband’s apartment after divorce: how to divide it, how to discharge your husband

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Divorce in most cases is accompanied by the division of all jointly acquired property, and the main disputes concern the apartment as the most important for each of the spouses and expensive property. Will an apartment registered to one of the spouses be divided? What is the best way to divide shared ownership housing?

Is it possible to divide an apartment after a divorce?

The possibility of dividing an apartment upon divorce depends on the circumstances of its acquisition. Only property that is in common joint ownership can be divided, that is, that which was acquired during the marriage using the common funds of the spouses.

It does not matter whose ownership the purchased apartment is registered in. If it was purchased during marriage with common money, it can be divided between the spouses, regardless of the formal owner.

What funds will be considered common? Any income of a husband or wife is considered joint, with the exception of:

• premarital income or savings;
• payments with a special purpose (for example, payments to liquidators of the consequences of the disaster at the Chernobyl nuclear power plant, housing certificate for military personnel, maternity capital, etc.);
• funds received as a gift, inheritance or other gratuitous transactions.

Accordingly, if the apartment was purchased during marriage with money received from employment, entrepreneurship, activities in the field of copyright and patent law, non-targeted pensions and benefits, it can be divided between the former spouses.

The fact that both spouses worked in the family or one does not play any role - housekeeping and caring for children are equal in importance to work and give the spouse who actually did not work the right to a share in the common property.

How does the division of an apartment take place?

The division of the apartment can occur by concluding an appropriate agreement or through the court. The first option is less expensive and simpler, but the second - judicial - is inevitable in the presence of conflicts.

Agreement

If you want to come to an amicable agreement and draw up an agreement on the division of property, the procedure is as follows:

• preparing a draft agreement on the division of property - this step is best left to lawyers, because if disagreements suddenly arise in the future, the court will be guided mainly by the terms of your agreement;
• approval of the final version of the agreement and its signing;
• certification of the agreement by a notary.

In the agreement, the parties can determine a variety of options for dividing the apartment:

• division in equal or unequal shares;
• transfer of an object to one of the spouses with or without payment of monetary or property compensation;
• transfer of an apartment to one of the spouses while the second retains the right to reside in it, etc.

Important! The separation agreement does not require a special form - a simple written document will be sufficient. But if you want to protect yourself from challenging the transaction in the future, it would be a good idea to have the agreement certified by a notary.

Division through court

If each spouse has his own point of view on the legal fate of the apartment and it is not possible to reach an agreement on the voluntary division of property, only the court will help resolve the conflict.

A statement of claim for the division of an apartment, taking into account its value, is filed exclusively with the district court at the location of the real estate.

For a sample claim for division of an apartment and the specifics of its preparation and filing, see the article at the link

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If there are several real estate objects subject to division, the claim must be filed in court at the location of the most expensive of them or the largest part of the real estate.

The procedure for judicial division is as follows:

• drawing up a statement of claim for division of property - the claim may concern all the property of the spouses or only the apartment, this is decided only by the parties to the case;
• collecting a package of documents for the court - there must be documents confirming the circumstances specified in the claim: copies of marriage and divorce certificates, documents for the apartment, an appraiser’s opinion on its value, etc.,
• government payment a fee, the amount of which depends on the price of the claim, calculated based on the cadastral or market value of the apartment. The detailed amount of the state duty is indicated in Art. Art. 333.19, 333.20 of the Tax Code of the Russian Federation;
• filing a claim in the district court at the location of the apartment - you can file it on purpose, submitting documents in person to the court, or by mail;
• participation in a court hearing;
• receiving a court decision;
• if the decision does not suit the plaintiff - appeal by appeal to a higher court;
• after passing through all the authorities and the judicial act entering into force, obtaining a writ of execution;
• contacting the bailiff service to initiate enforcement proceedings (if the defendant fails to comply with the decision).

When calculating the state duty, the cost of the claim is not considered the cost of the entire apartment as a whole, but only the cost of the share in the housing claimed by the plaintiff. So, if the cost of the apartment is determined to be 2 million rubles, the plaintiff insists on recognizing his right to ½ of the apartment, then the value of the claim used to calculate the duty will be considered the amount of 1 million rubles.

For more information on determining the amount of state duty for dividing an apartment, read a separate publication.

How to divide an apartment during a divorce

By agreement, the apartment can be divided in any way as long as the law is not violated. For example, if minor children are registered in the apartment, its division is possible only with the written permission of the guardianship and trusteeship authority.

According to the court, an apartment can also be divided in different ways:

• determine the ideal shares of each spouse;
• make a division in kind according to the shares and the procedure for using the property (not suitable for a one-room apartment, the sharing of which is physically impossible);
• transfer the entire property into the ownership of the ex-husband or ex-wife with payment of monetary or property compensation to the second spouse;
• agree on the sale of the apartment with the subsequent division of the proceeds.

How will the spouses' shares in the apartment be determined? According to the general rule enshrined in family law, the apartment is divided in half - each gets ½ share. However, in practice, the court deviates from equality of shares if it sees grounds for this, for example:

• presence of minor children;
• the spouse has no other housing and a low level of income;
• spouse's illness;
• actual termination of family relationships a long time ago;
• an increase in the cost of an apartment due to the labor or personal funds of one of the spouses, etc.

The presence of any of the above circumstances does not mean an automatic change in the size of shares. Each case is considered by the court individually and a decision is made after analyzing all the circumstances of the case.

List of documents for the section

The division of property, like any legal act, requires documentary support and execution. So, what documents are needed to divide an apartment?

• Certificate of marriage and its dissolution (if the marriage is dissolved) – confirms the existence of marital relations and the purchase of an apartment during marriage;
• Sale and purchase agreement or other documents on the purchase of an apartment (for example, a certificate of payment of a share, a decision of the general meeting on admission to a housing cooperative and the allocation of housing);
• Documents allowing to identify the property - technical. passport, extract from the Unified State Register, etc.;
• Documents confirming the purchase of housing using general funds - checks, receipts, bank statements, savings book, income certificate, etc.;
• Court decisions recognizing ownership of the disputed residential premises (if any);
• Evidence of the absence of an agreement on the division of the disputed property (if any) - for example, a judicial act recognizing the marriage contract as not concluded, the division agreement as invalid, etc.

If the apartment is registered to the husband

For the legal regime of a residential property, it does not matter to whom it is registered - a husband or a wife.

Even if there is only one owner according to the documents, in fact the property belongs to the spouses jointly, therefore all of the above rules for the division of property will apply.

IMPORTANT: The division does not include housing inherited by the husband or given to him by relatives or other persons, since such property is considered his personal property.

If the apartment is registered to the wife

If property acquired during marriage using common funds is registered in the name of the wife, then the husband still has the right to ½ share, and maybe more (if the court considers this fair).

Registration of the property in the name of the wife only means that the shares in the property rights between the spouses have not yet been determined. The presumption of common ownership applies even if, according to the documents, the husband does not own an apartment.

The wife’s personal property, gifted to her, inherited, or purchased before marriage or with premarital savings, is not subject to division.

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Division of an apartment purchased before marriage

An apartment acquired before marriage is exclusively the personal property of the person who acquired it and is not subject to division during a divorce. But there is an exception to this rule: in some cases, the court may recognize premarital property as jointly acquired and after that it is divided between the spouses.

In what cases can private property be recognized as joint property? If the premarital apartment has been significantly improved with the help of the money or labor of the second spouse or from common family funds.

For example, the second spouse paid for European-quality repairs with money accumulated before marriage, or carried out all the repair work himself.

In any case, recognition of individual property as joint property remains at the discretion of the court, and the law does not specify an exhaustive list of circumstances leading to recognition of an apartment as joint property.

Premarital property, unlike joint property, can be divided by agreement of the parties. Such an agreement could be a prenuptial agreement or a separation agreement. For example, spouses have the right to take into account a premarital apartment as joint property by agreeing on this.

How to divide an apartment during a divorce if it is divided into shares

The apartment in which the shares are determined may be located:

• jointly owned;
• in shared ownership.

It would seem that the definition of shares excludes this property from the joint regime, but this is not always the case. Let’s say that when buying an apartment, the spouses themselves determined the shares and registered 2 owners with shares, for example, 1/3 and 2/3. Will the housing be in shared ownership or joint ownership?

The position of the courts on this issue is ambiguous. The courts of the Moscow region recognize such property as shared property, because division can also be made in marriage.

However, in the regions the opposite situation occurs: courts ignore such a definition of shares with reference to the fact that the basis for shared ownership can only be a properly formalized family agreement.

Since the spouses did not enter into either a marriage contract or an agreement on the determination of shares or division, the shares listed in the certificate of ownership do not terminate the regime of joint ownership.

If the residential premises are in shared ownership, then the division can occur by:

• Determining the procedure for using property;
• Allocation of shares in kind;
• Payments of compensation to cover the cost of the spouse's share.

Determining the procedure for using property

This version of the section involves drawing up some kind of agreement or residence schedule. Each spouse can be assigned an isolated room, and rules for the use of auxiliary rooms (bathroom, kitchen, balcony) can be established.

In this case, the property in the Unified State Register remains unchanged; it still has 2 owners who pay utilities and taxes in proportion to their shares.

Allocation of share in kind

The second option is quite rare due to the technical complexity of the procedure. Allocation in kind means the legal and technical division of a single object into two separately used residential premises.

Read also: School for disabled children: benefits, training, food

In this case, the following conditions must be met:

• both the allocated and the remaining part must be isolated living quarters no smaller than a room;
• each part should have a separate entrance and its own utility rooms (kitchen, bathroom, corridor);
• the allocation must correspond to the share belonging to the spouse. It is possible to allocate a living space larger or smaller than the spouse’s share with monetary compensation for the difference in area.

Usually the allocation is accompanied by redevelopment or reconstruction of the apartment, and if it is carried out by the court, then by construction, technical and appraisal examinations. As a result of the separation, shared ownership is terminated, and individual ownership of parts of the house arises. Payment receipts are sent to each person separately.

Payment of compensation

This option is the most convenient and most common partition method. In this case, the premises are transferred into the hands of one owner, who undertakes to pay proportionate compensation to the second. The calculation is made at the market price.

Compensation may be:

• monetary;
• property - transfer in exchange for other things, for example, a car, a garden house or a plot of land proportional to the value of the share in the apartment.

In case of voluntary division, the cost of the apartment is determined by agreement or, if agreement cannot be reached, on the basis of an assessment report. In court, in any case, you will have to confirm the market value of the property with an appraiser’s report.

Arbitrage practice

The division of property can be made both during the marriage and at any time after its termination. Often ex-spouses forget about the division for a long time, remembering it only when the question of deregistration arises. Is it possible to divide property after 10, 15, 20 years?

The statute of limitations for this category of cases is 3 years, but it begins not at the moment of termination of the marriage, but when the spouse learned of a violation of his right to a share in the apartment.

For example:

• from the moment of receiving a refusal to voluntarily divide joint property;
• from the moment the claim is filed in court.

On 02/06/2018, the Tuymazinsky Interdistrict Court of the Republic of Bashkortostan considered a case regarding the division of an apartment acquired during marriage, but registered in the name of the spouse and sold by the ex-wife during the trial.

The plaintiff asked the court to remove her ex-husband from the registration register, who has not lived in the disputed apartment for many years. The ex-husband disputed the purchase and sale transaction and asked to divide the property in half.

The transaction for the sale of housing was declared invalid, the apartment was recognized as joint property.

In the appeal ruling of the Judicial Collegium for Civil Cases of the Supreme Court of the Republic of Belarus against the decision of the Tuymazinsky Interdistrict Court, it was stated that the period for going to court began to run at the time of filing a claim for deregistration, and not at the time of divorce.

In disputes about the division of an apartment as joint property, it is strongly recommended to seek help from an experienced lawyer. The success of resolving a property division case will depend on the timeliness and professionalism of legal assistance.

• Due to constant changes in legislation, regulations and judicial practice, sometimes we do not have time to update the information on the site
• In 90% of cases, your legal problem is individual, so independent protection of rights and basic options for resolving the situation may often not be suitable and will only lead to a more complicated process!

Therefore, contact our lawyer for a FREE consultation right now and get rid of problems in the future!

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Source: http://allo-urist.com/razdel-kvartiry-posle-razvoda-mezhdu-suprugami/

How to expel an ex-husband or wife from an apartment during a divorce: an option with municipal, privatized and mortgage housing

The problem of evicting an ex-husband or wife from an apartment has always been relevant, and in market conditions it has acquired even greater significance, since property relations have become much more complex and varied. Because of this, it can be helpful to learn about the pitfalls that can arise with evicting a former family member in a divorce.

Is it possible to discharge a former spouse without his consent?

In Art. 40 of the Russian Constitution states that every person has the right to housing. No one can be deprived of it arbitrarily, that is, this will require a basis in the form of a court decision.

In order for a judge to be able to oblige one of the former spouses to move out after a divorce, a number of prerequisites are necessary, which are associated with a lot of nuances. These primarily include the regime of ownership, possession and use of housing, that is:

• whether it is municipal;
• privatized;
• private property;
• acquired through a mortgage;
• purchased before or during marriage;
• accepted as a gift;
• do children live in it;
• whether the spouse actually lives in the living space;
• whether there are debts on utility bills;
• whether a marriage contract relating to real estate has been signed;
• Are there any alimony obligations?

Extract from a municipal apartment

According to Art. 69 of the Housing Code of the Russian Federation, the very fact that the spouses divorced has nothing to do with eviction from a municipal apartment, because spouses have the same rights.

Articles 69, 83, 91 of the Housing Code provide for several reasons why an ex-husband or wife is subject to eviction:

1. No payment has been made for housing and communal services for a period exceeding six months.
2. Illegal actions have been committed that exclude cohabitation and are systematic in nature.
3. There is a mismanagement of housing maintenance, which leads to its partial or complete destruction.
4. There is a use of living space for a purpose that is not related to residence (as an office, industrial premises).
5. A decision has been made to deprive the child of rights, and it is impossible for such a parent to live with him.
6. A former family member moved out of the apartment.

One of the above reasons will be sufficient for eviction, but it is necessary to take into account:

1. Art. 17 of the Housing Code of the Russian Federation allows that professional activities related to legal, creative, scientific, i.e., can be carried out in an apartment. when for its implementation there is no need to transfer housing to the category of non-residential premises. It must also meet fire safety and hygiene requirements.
2. Art. 71 of the RF Housing Code says that if a person does not temporarily live in a social square, this does not automatically deprive him of his rights to it. Evicting him from the apartment will be possible when, for example, he rents out part of it for an office or production, or does not participate in paying for utilities - that is, a combination of factors is necessary.

Where and with what documents to apply

A municipal apartment is not the property of any of the family members living in it, but belongs to the local authorities. Therefore, for eviction, you need to contact the appropriate administration service by writing a statement and presenting evidence of the commission of the above-mentioned offenses by your ex-spouse.

Evidence may include:

• Payment documents for housing and communal services;
• Administrative protocols on violations of public order, receipts for accrued fines;
• Acts on damage caused to housing;
• Confirmation of the use of the premises as non-residential: lease agreement, checks or bank statements confirming payment;
• Court decision on deprivation of parental rights.

If the municipal authority does not resolve the issue of eviction, you need to go to court with this evidence, and also provide:

1. Statement of claim.
2. Receipt for payment of the duty.
3. Divorce certificate.
4. Social rent agreement.
5. Extract from the house register.

Extract from a privatized apartment or private house

The situation with eviction from municipal housing differs from that of eviction from a house or apartment that is private property.

In this case, divorce is a reason for eviction of the ex-spouse if the property does not belong to him in whole or in part, because the husband or wife ceases to be a member of the family.

This is stated in Art. 31 Housing Code of the Russian Federation. This rule applies if the spouses do not have other agreements drawn up in the prescribed manner - a marriage contract certified by a notary, or a settlement agreement approved by the court.

If the property is common property (according to Article 256 of the Civil Code of the Russian Federation, acquired during marriage), then eviction is impossible without the consent of the other party. You will have to divide the square meters amicably or through the courts.

At the same time, we must not forget that:

1. The personal property of each spouse is real estate that:

• belonged to him before marriage;
• received by inheritance;
• accepted as a gift.

1. as joint property if investments were made from common funds or personal funds belonging to one of the spouses that significantly increased their value. For example, during major repairs or redevelopment.

Even if the evicted spouse does not have rights to real estate, desire alone is not enough to evict the ex - a court decision is necessary. To do this, you will need to collect the same documents as when moving out of municipal housing, only instead of a social tenancy agreement, you need to submit title documents for real estate in the form of:

1. Purchase and sale or gift agreements.
2. Extracts from the Unified State Register or certificates of ownership.

Nuances of the right to use residential premises

In accordance with Art. 31 of the Housing Code of the Russian Federation, when upon divorce a husband and wife cease to be members of the owner’s family, they may retain the right to use in cases where:

• the former non-owner spouse does not have the opportunity to apply for other housing or settle in another place, for example, with relatives;
• his financial situation or other reasons do not allow him to buy living space.

In such cases, the court gives him some time to resolve the housing issue. The law does not specify an exact deadline. The Supreme Court orders lower authorities, when determining such a period, to be guided by the principle of reasonableness, taking into account specific circumstances.

As a rule, this period of time is in the range of six months to a year. If the eviction does not occur at the time appointed by the court, coercive measures are taken.

According to Art. 51 of the Housing Code of the Russian Federation, for the owner in this situation there are no restrictions regarding the desire to sell, exchange or donate housing. Then the former spouse’s right to residence is automatically canceled, even if the period of time designated by the court has not yet expired. And the new owner will have to go to court with an eviction claim.

In addition, there is an option according to which the former spouse has the right to demand that he and his family members be provided with housing if he has alimony obligations. More information about them can be found in Art. 30, 80 -105 of the Family Code of the Russian Federation.

Features of eviction from a privatized apartment

Eviction in this case has its own nuances, which depend on the order in which it was privatized. In accordance with the provisions of the Civil Code of the Russian Federation and Law No. 1541-1 On Privatization dated July 4, 1991:

1. If at the time of privatization both were its participants, then each of the spouses is the owner.
2. If at this time one of the former partners who has a residence permit expresses his refusal to privatize, he does not lose the right to use the living space throughout his life.
3. If the husband or wife was not registered and did not participate in privatization, then after the divorce the spouse-owner can apply to the court with a request for eviction, attaching a document on ownership and a privatization agreement.

If the second spouse is with a child

It is quite difficult to discharge an ex-wife or husband with whom the child remains to live. The courts often side with such parents.

Read also: Divorce without a marriage certificate: is it possible to apply?

The state, represented by the guardianship and trusteeship authorities, strictly protects the interests of children, so the number of cases when the parent with whom the children remain can be discharged by the court can be counted on one hand.

In this situation, we can talk about the discharge of the mother or father of the child by court in the following cases:

• their actual residence at a different address has been proven;
• the property is subject to sale;
• it is possible to buy or acquire the right to use living space after a divorce;
• the child remains to live with the parent – ​​the owner of the property.

Often judges take the side of a parent with a child who does not want to move out:

• Firstly, as mentioned above, if a spouse has child support obligations, then the courts may decide that the parent provides housing for them. Consequently, the parent with whom the child remains (by court or by agreement) must also be provided with housing;
• secondly, there are precedents when courts award parents the right to live with a child until he turns 18;
• thirdly, when the child is disabled;
• fourthly, if maternity capital funds were used to purchase an apartment.

How to evict a mortgaged apartment

Eviction from an apartment with a mortgage is problematic. The rules regarding the common property of spouses, prescribed in Chapter. 7 RF IC.

Regardless of the basis on which a loan was taken out for the purchase of an apartment by a husband and wife - both as co-borrowers, and with the involvement of one of them as a guarantor, in the event of a divorce, the property will be joint.

The exceptions when the court may make a different decision are the following cases:

1. The condition that the mortgaged apartment in the event of a divorce goes to one of the spouses is included in the marriage contract.
2. The common property, similar in value to the size of the mortgage, was not spent on family needs.
3. The ex-husband did not provide for the family during the mortgage payment period for unjustified reasons.
4. He has arrears in alimony equal to the cost of his home.

However, in such situations, it is taken into account whether the evicted party can provide himself with another place of residence, and most often he is awarded a certain share.

Procedure for filing a claim and extracting

An eviction claim is filed with the district court at the location:

1. residence or stay of the defendant;
2. the location of his property or last place of stay, if what is specified in paragraph 1 is unknown.

After a court decision on eviction, you need to deregister your ex-husband or wife, that is, deregister, because the first deprives the former spouse of the right of residence in the legal sense, and the second - in the actual sense. Therefore, it is necessary to contact the Ministry of Internal Affairs, where deregistration will be carried out within three days from the date of submission of documents. To do this you need to submit:

• statement;
• a copy of the court decision on eviction;
• a copy of the evicted person's passport.

The Ministry of Internal Affairs will issue a disposal certificate. If at any of the two stages the owner receives a refusal, then it can be appealed. The court's refusal to satisfy the claim to evict the ex-spouse is being challenged in the appellate instance, and the Ministry of Internal Affairs is challenging it in the district court.

Download a sample eviction claim

How does forced eviction work?

In a situation where you have a positive court decision and a certificate of departure, and the citizen refuses to leave the living space, you need to submit an application to the court, which will make a decision in the order of writ proceedings and issue a court order for eviction. Based on it, you can carry out the forced eviction procedure yourself or contact the bailiffs.

Forced eviction involves:

• termination of the right to use housing;
• expulsion of a person subject to eviction;
• removing things that belong to him.

Eviction actions are carried out by bailiffs with the involvement of police officers and witnesses.

Source: https://SemPravoved.ru/zhilspory/vypiska-posle-razvoda/

How is property divided during a divorce if the owner is the husband?

How is property divided during a divorce if the owner is the husbandAverage rating 5 from 2 users

The main issues related to creating a family and divorce are regulated by the Family Code of the Russian Federation. In addition, in matters of division of property between spouses, the Civil Code of the Russian Federation and the Code of Civil Procedure of the Russian Federation may be involved.

In some cases, federal laws will also be required. For example, Federal Law No. 117 on military mortgages or Federal Law No. 256 on the provision of maternity capital. As well as some by-laws and regulations. Let's take a closer look at how an apartment is divided during a divorce in 2020 and which specific articles need to be appealed to.

Right of joint property of spouses

The RF IC (Article 34) establishes that all property acquired by spouses during the period of marriage is their joint property. These include:

• all income received by the husband and wife for work and any cash payments, except those that have a designated purpose (for example, except for maternity capital and disability pension);
• movable and immovable property that spouses purchased with funds from the common family budget;
• bank accounts, securities;
• shares of enterprises.

Spouses have equal rights to these things. And in case of divorce, they divide them in half. Even if one of them did not work during the existence of the family, but was engaged in housekeeping and children. The rule of common property also applies to property that was purchased with joint money during the marriage, but was legally registered only in the name of one of the spouses.

There is also such a category of things as personal property. It can be purchased during marriage with joint money, but for the personal use of one of the spouses or children: clothing, electronics, musical instruments. Such things are not subject to division in the event of a divorce between spouses. The exception will be luxury items (antiques, jewelry) and fur products.

Also, in 2020, property received under a gift or inheritance agreement cannot be classified as joint property if it was registered in the name of only one of the spouses. Even if this happened during the period of marriage. And also the property that was acquired by everyone before the wedding (Article 36 of the RF IC).

Ownership of a privatized apartment

The rights to an apartment that has become property as a result of privatization are no different from the rights acquired as a result of the purchase and sale procedure, donation or inheritance.

According to Federal Law No. N 1541-1, every citizen of the Russian Federation has the right to participate in privatization if he has permanent registration in the privatized apartment.

Its implementation is possible for everyone only once. Those. if a husband or wife previously participated in privatization (for example, parents’ apartments), then they subsequently lose this right.

And then the apartment becomes the property of only one of the spouses.

Similarly, the spouse receives sole rights to the privatized living space if the second one issues a legal refusal (it will not have retroactive effect). A minor child also has the right to participate in privatization, even without permanent registration in the apartment being registered, on the grounds that it is being privatized by one of his parents.

How to divide an apartment during a divorce if it was privatized by the husband.

When drawing up most contracts (except for those created at the dawn of the signing of the law), each participant is allocated a share in the apartment. On its basis, during a divorce, the property will be divided.

If there is a child in the marriage

The Family Code (Article 60) establishes that a child has no right to the property of his parents. Likewise, parents cannot claim the property of their children.

Based on these provisions, the presence of a child in the family will not affect the division of property in any way.

  This means that if it was acquired during marriage and is jointly acquired, it will be divided in half, provided that the marriage contract or settlement agreement on division has not established otherwise.

If minor children own property (for example, they got a share in a privatized apartment), then it is not divided between the parents. A different order cannot be established either by agreement or contract. This property is subsequently disposed of by the parent with whom the child remains after the divorce, and only with the consent of the guardianship and trusteeship authorities.

There is only one option when the court can deviate from the rule of equal shares in the division of joint property in the presence of a minor child. It is possible during the division of housing (Article 39 of the RF IC).

If the parent with whom the child remains has a much worse financial base compared to the second, then he may be allocated a larger share in the apartment.

But according to a court decision, the spouse (or husband), and not the child, will receive ownership rights to it.

If the owner is a husband, but the property was purchased during marriage

It so happens that property is acquired during marriage with common money, but only the husband is noted as its owner in the documents. This situation does not mean that only the husband has property rights. If the property was not acquired before marriage, received as a gift or by inheritance, then the issue of division is resolved in favor of both spouses.

In this case, the wife does not need to look for evidence that the property was purchased with common money. It is enough to present in court a marriage certificate and documents confirming ownership rights. If the terms coincide, then such property is considered jointly acquired during marriage, which means, according to the RF IC, it will be divided in equal shares between the spouses.

If the second spouse is registered in the apartment

If real estate was acquired by one of the spouses before marriage, received as a gift or as an inheritance, then such an apartment during a divorce in 2020 will remain the property of this spouse.

It so happens that the owner-husband registers his wife in his living space during marriage (or vice versa). In such a situation, after an official divorce, the spouse who is not the owner is required to submit an application to the passport office and be deregistered.

If he does not want to do this voluntarily, then the issue can be easily resolved through the court (Article 31 of the RF Housing Code).

If there is one owner in the apartment, is it necessary to divide the property? The only negative point that can await the owner is that if the ex-wife does not have housing to which she could move, the court may decide to grant her the right to live in the apartment until she finds suitable living space for herself (but maximum six months). If, in the same situation, the couple has a minor child, then the court may make a decision granting him the right to live in the apartment until he reaches adulthood, and with him the mother. Provided that the court rules that the child remains with her.

If the owner is the wife

Russian legislation, when vesting citizens with rights and responsibilities, does not take into account gender differences. Therefore, for the division of property during a divorce, it does not matter who owns it - the wife or the husband. Those.

if the spouse bought it or it was given to her or received as an inheritance, then such property will remain her property.

In jointly acquired property, without a serious reason, she will also not be allocated any special part, but everything will be divided equally between both spouses.

Read also: Maternity capital 2020: size, indexation, increase, for the first child

Division of property if both spouses are owners

After being married for many years, spouses acquire a large number of things and buy real estate. If money from the family budget was used for acquisitions, then both husband and wife are the owners. The division of such property during a divorce is usually the simplest.

For this, the law defines two ways:

1. Divide through court.
2. Make a division by mutual agreement.

If the spouses agree on the distribution of ownership rights to property, then they can settle them without the intervention of judicial authorities. To do this, you need to draw up a separation agreement. This document regulates the distribution of ownership rights to jointly acquired property. The RF IC allows you to sign it both during the existence of the marriage and after the wedding.

The agreement must be certified by a notary. Such an agreement does not allow for the redistribution of ownership rights to personal property. To do this, you will have to draw up a gift agreement.

Property rights can be redistributed to any property, even not yet acquired, if a marriage contract is drawn up. But spouses can sign it only before the wedding and during the existence of the marriage. After a divorce, this is prohibited.

If the spouses cannot reach an agreement regarding the property, then they have the right to file a claim for division in court. Provided that the amount of claims is less than 50 thousand rubles.

, a statement of claim should be filed in the magistrate’s court, and if more, then in a court of general jurisdiction. You should contact the authority at the place of residence of the defendant.

If for some reason this is impossible, then at the location of the property that is subject to division.

On our website you can see a sample statement of claim to the court for the division of a privatized apartment by spouses during a divorce.

Judicial practice shows that the division of joint property, as a rule, occurs in equal shares between spouses.

In what cases is an apartment not divided during a divorce?

The law establishes that in some cases an apartment will not be divided between spouses, even if it was acquired during marriage. These include:

• the apartment was purchased by one of the spouses before marriage and during the existence of the family no significant funds from the family budget (for example, for repairs) were spent on it;
• the property was purchased entirely with the personal money of one of the spouses, for example, that which he received from the sale of his own property;
• housing became property under a gift or inheritance agreement;
• the apartment was registered as a military mortgage, and all payments on it were made by the state without using funds from the family budget.

In some cases, the court will not divide the apartment, but may make a decision according to which the owner will be obliged to pay monetary compensation to the spouse. Provided that joint money was invested in this property not to purchase it, but to improve it.

When spouses divorce in 2020, property is divided in two main ways: with the involvement of the court or by mutual consent. There are several categories of property that are not subject to division.

Source: https://razdel-imushhestva.org/nedvizhimost/sobstvennik-muzh.html

How to expel your ex-husband from an apartment after a divorce: without his consent, the wife is the owner

Last modified: January 2020

It’s a natural thing that after a divorce, former spouses do not want to live in the same living space. But in reality they have to live in one apartment, which is their property. The owners can be both spouses or one of them.

And very often the vital question arises: how to expel your ex-husband from the apartment after a divorce without his consent. It is clear that if there is consent to this, then there will be no problems with the discharge. And when this is not his will, legal grounds and, often, the help of a lawyer are needed.

According to the legislation of the Russian Federation, only a court has the right to deprive a person of registration.

How to expel a husband from an apartment if the owner is a wife

According to the 2nd part of Article 256 of the Civil Code of Russia, if one of the spouses owned an apartment before living together, getting married, and also received it during marriage as an inheritance or by gift, it remains the property of one of the spouses. But there are several points, according to the mentioned article, if the other married party invested large amounts of money in this apartment during their cohabitation, thereby making its value more expensive, has the right to a part of it. So if a major renovation was carried out in the apartment, it was rebuilt, etc. during married life, then this fact will be an obstacle to the husband’s eviction from their apartment.

After the divorce, the wife managed to prove that she is the owner of the property and formalize this as a legal fact. The next step, in order to begin the process of deregistering her husband, she needs to file a claim in court in the manner prescribed by law, to which she must attach the following documents:

• main – certificate of divorce;
• identification document of the owner of the apartment;
• court payment receipt;
• all pages of the house register (copies).

The claim is usually filed at the place of residence of the defendant. However, in the cases provided for in Part 1 of Article 29 of the Code of Civil Procedure, if the defendant does not have registration or it is not possible to establish registration, then the claim is filed at the place of residence of the defendant’s last known place of residence or where the property itself is located.

After the court ruling, if it is satisfactory and takes legal force, you must contact the territorial authorities of the Ministry of Internal Affairs, which will discharge your ex-husband.

It is important to know that discharge and eviction are two different things.

By discharging the husband from the living space he occupies, we will solve only half the problem; if he is not going to move out of it of his own free will, we cannot kick him out onto the street.

The next step is to initiate another lawsuit, in which there should be a ruling that the ex-spouse is deprived of the right to live in this apartment. In this case, he will be required to leave the apartment.

If the spouse did not privatize the apartment, he, therefore, acquired the right to use it indefinitely. But if the plaintiff can prove the totality of the following facts, he will have a chance to discharge the defendant from the occupied living space:

• the person who refused to privatize the apartment did not live in it for more than six months;
• left the apartment without having temporary reasons for leaving, such as study, business trip, vacation, sanatorium, treatment, etc., but only permanent ones, and at the same time took out his belongings;
• he left the apartment voluntarily, and not because he “survived”;
• did not participate in paying for utilities or in repairing the apartment.

And another important fact: for more than six months he did not attempt to return to the apartment, and if he tried, no one interfered with him, for example, they did not change the locks, did not kick him out, etc.

Restrictions preventing the discharge (the wife is the owner and the plaintiff)

The court cannot always make a positive decision on the plaintiff’s application to remove her husband from the apartment.

According to Part 4 of Article 31 of the Housing Code of the Russian Federation, if the husband does not have other housing and does not have the funds to purchase or rent it, then the court may set a certain period during which the ex-spouse cannot be discharged. Several factors are taken into account: whether there are children, what funds the spouse has, where he works, etc.

Discharge from a municipal apartment

In this situation, the discharge procedure will be different, since the spouses lived in the apartment because they signed an agreement for social rental of living space. According to Part 4 of Article 69 of the Housing Code, he has the same rights as his wife. Those. Divorce is not a reason for which the right to use living space may be lost.

In such cases, there are several points, if violated, the husband can be discharged, these are:

• the husband did not pay for utilities for more than six months;
• regularly committed illegal acts, drinking, fighting, etc.;
• treated the apartment dishonestly, broke furniture, damaged windows, doors, etc.;
• used the apartment for other purposes, for example, rented it out to others, used it as a storage room, etc.

• If any of the above can be proven, the wife, without hesitation, should file an application with the court.
• To file a lawsuit, the following documents are required:

• confirmation of divorce;
• house book (extracts or copies);
• other documents confirming violations made by the spouse; these may include inspection reports of the premises, receipts for payment or debt, etc.

The application must be filed in the district court. Once you have made a positive decision to discharge your husband, contact the territorial authorities of the Ministry of Internal Affairs, which will carry out the discharge.

From a mortgaged apartment

 

If a wife decides to write her husband out of a mortgaged apartment, this can be done in two ways: through the court or at the husband’s own request.

It is clear that if before marriage a marriage contract was drawn up in which all these points were discussed, then it will be necessary to act as stated in the contract.

If there is none, and the husband does not agree to be discharged voluntarily, the court can help resolve this issue.

The reasons why you can discharge your ex-husband are approximately the same as in previous cases, mainly these are:

• reluctance to pay rent;
• amoral behavior;
• causing material damage to the home, etc.

The determining factor will be the following point: to whom the mortgage is issued, and what share the other party has. Naturally, if he did not pay his share, refused to pay further, there are no obstacles to his discharge. But if the husband paid his share in good faith, therefore, he has every right to part of the housing and to register it, in this case, there is practically no chance.

During a divorce, the plaintiff should initiate the division of property and stipulate the terms of the mortgage payment there. If the husband does not make concessions on paying the mortgage, perhaps there is a chance to agree to exchange the apartment for two smaller ones or cheaper ones.

In any case, it is necessary for the court to decide what share the plaintiff will remain after the division of property, and how much should be paid to whom. Therefore, the plaintiff must initiate the process of division of property and indicate these points in the statement of claim.

Such agreements should not be concluded verbally. Then there will be no evidence in court.

If the plaintiff still has claims against her husband regarding his behavior or failure to fulfill obligations, this must be stated in the claim for filing in court. This can then serve as a further basis for the discharge of the spouse if he systematically violates court orders.

The plaintiff will have a chance to discharge the ex-spouse from the mortgaged apartment if he proves at the court hearing that the defendant (ex-spouse) did not take any part in paying the mortgage.

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