Sharing an apartment after a divorce with a child. Common property of the spouses. What does it include? How is an apartment bought BEFORE marriage divided during a divorce?

Divorce is an incredibly difficult emotional process. It is even more difficult for those who cannot divide common property. Additional scandals and showdowns begin. Therefore, it is best to think over the issues of property division in advance. In this article, we will look at how the apartment is divided during a divorce, if the wife is the owner.

Will the apartment be divided during a divorce if the wife is the owner?

In principle, the process of division of property has a lot of features. There is legislation that clearly defines the distribution process itself, that is, the process of dividing property.

Let's define how the division of property is carried out. And also find out if the second spouse can claim real estate, which is owned by his wife.

All property that was acquired during marriage falls under the division;
Not only movable, but also immovable property falls under the division;
Spouses have the right to an equal division of property that is in common ownership;
Spouses have equal right on property, if it was acquired during marriage, but registered exclusively for one spouse.

That is, in other words, if the apartment is registered to your wife, you can claim to receive half of this property. But, there are certain conditions:

The division does not include property that was acquired during the marriage;
The section does not include property that was issued to the spouse by gift.

Let's take a look at an example. If the wife had an apartment before marriage, which she purchased with personal funds, after which she signs with a man and registers him in her apartment, in which they live, then the husband cannot claim this property. That is, when dividing property, the apartment entirely goes to the wife.

However, there are also exceptions in the event that the apartment is acquired in common marriage, but the wife will be able to prove that you did not allocate any funds for the acquisition and maintenance of real estate. For example, an apartment is purchased during marriage and is registered in the name of the wife. During the divorce process, the husband declares his claims to the property. The wife also provides documents stating that all the funds that were spent on real estate are her own. For example, it can be proved that the husband has not worked for a very significant amount of time and, in principle, was dependent on the woman, in which case, with the normal defense of a lawyer, the apartment will not be divided.

Rules for the division of property

It is not uncommon for a husband and wife to painstakingly raise funds in order to purchase such a coveted apartment. In the process of registration, in order to eliminate unnecessary bureaucracy and expenditure of funds, the apartment is issued to the wife. IN this case, the property is still considered common property, since the funds that were spent on its acquisition were jointly collected. In this case, the husband has every right to receive half of the apartment.

Sometimes, to protect your rights in the matter of division of property on your own is simply unrealistic. It is for this reason that you should immediately turn your attention to the possibility of cooperation with an experienced lawyer who will quickly be able to determine all aspects of your defense, help you quickly collect all the necessary evidence and documents, and will guard your interests and legal rights. That is, if you are not sure that you will be able to protect your property rights on your own, then it is best to get the representation of a lawyer in court.

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What do you do if you don't get along? Divorce? What if there is nowhere else to live? These questions are of concern to many Russians, since the issue of the division of property is very sensitive. Many people know that everything should be divided in half. But is it really so simple in reality? Let's see how the division of the apartment occurs during a divorce.

By law, as you know, joint property and, of course, the apartment, divided in half between husband and wife. But it is impossible, for example, to cut in half country house or urban housing.

How does the court determine the shares of husband and wife?

Since, after a divorce, people who seek help from the legislature, as a rule, cannot independently agree, the court sets equal conditions, establishing exactly how the division of housing will occur during a divorce.

1. The court determines the rights of relatives to a specific room in the disputed apartment. Each is assigned the right to use and dispose of a certain part

2. The law establishes the procedure for monetary payments to one of the spouses, if his share is less than half of the total cost of housing. In this case, the owner is paid monetary compensation from the missing amount.

3. Decides on options for dividing property "in kind" or in other ways.

1. Peaceful option. A mutual agreement is concluded on the exchange of a common apartment for two others.

2. Section of the money received from the sale of the apartment. This option is also organized by the court.

According to statistics, in 2013 the number of divorces was 80% of all marriages, while in the 90s it was about 60%. Accordingly, the number of divorce proceedings and property disputes has increased. The division of an apartment during a divorce of spouses is not a simple, but a forced procedure.

Take note

Immediately note that an apartment is not subject to division, which:

was purchased before marriage
was received by him during the marriage as a gift, inheritance or privatized
was purchased for a child

Also, do not forget: when dividing absolutely any housing former spouse has the right to temporarily (the term is set by the court) to live in the apartment of the other spouse, to which he does not have the right to own and, if he cannot move immediately. After this period, the right to temporary residence ends, and he must vacate the living space. Referring to Art. 38 of the Family Code, property can be divided during marriage, during and after the divorce process.

How to share an apartment?

Now let's get straight to the heart of the matter. There are several partition alternatives.

It is especially easy to divide property when a husband and wife have agreed on everything in advance. If you have marriage contract, which spells out all the conditions for the division of housing during a divorce, then you do not have to argue and swear with ex-husband- everything is already distributed and legally registered. If some conditions are prescribed in your marriage contract, and you want to separate for others, then you can (with the consent of the husband and wife) change them. It is very difficult to challenge a marriage contract, it is possible only under certain conditions.

By mutual agreement

Everything is clear here. The husband and wife agreed on the terms of the division - it is necessary to write them down in the form of an agreement and notarize them. You can divide the apartment not equally and even completely donate it to each other.

Through the court

According to part 7 of Art. 38 of the Family Code, the spouse may file a claim in court for the division of property within three years after the dissolution of the marriage.

First of all, it must be said that it is impossible to share an apartment that is not your property. Municipal, service, social, and even more rented and rented apartments are not subject to division. Now they have canceled the possibility of dividing personal accounts in order to eradicate communal apartments. But there are other options:

Swap one for several. For example, exchange a three-room apartment for two one-room apartments.
Pay the necessary money to buy two different apartments.
Privatize an apartment and divide it (see the section on privatized housing)

Municipal flat

Let's say you live in a municipal apartment. Then your rights to it depend on registration.

if one spouse is not registered in the apartment, then with the dissolution of the marriage, his right to live in it also ends.
if both husband and wife are registered, then both have the right to live on their own square meters, both are obliged to pay for the apartment (art. 69. part 4 family code). It is impossible to privatize such a room without the consent of all tenants.

If you received housing under a social tenancy agreement, it is worth reissuing the document, since both spouses, if they are included in the social tenancy agreement, have the right to use housing, even if they are not tenants.

service apartment

The employee has the right to live in the apartment received from work and can evict the husband (wife) in the event of a divorce. Do not forget only about the right to temporary residence in the absence of other housing for the ex-spouse (and his children). If he leaves the position, then his former family loses the right to use housing, even if they have nowhere else to live.

There are several ways to make a section of a privatized apartment during a divorce of spouses:

Peacefully, exchanging the apartment for several.
Section of the money after the sale. This is possible both peacefully and in judicial order.
Section in kind (build new walls, make separate exits)

When dividing a one-room apartment, it will be necessary to determine (peacefully or in court) the shares of each spouse. Sell it and divide the money based on the shares. If the housing is owned by one spouse, then the second is deprived of the right to reside in it and the right to own it. There is an article under which a spouse may be required to provide housing for him former family if he pays alimony to one of them. "Former" can state their claim in court. If the apartment is owned by both, then it is necessary to determine the shares (usually 50/50), and on their basis, one of the above proposed options to divide it.

Definition of shares

An apartment in common ownership, as a rule, is divided equally by the court. But even here there are exceptions, according to which the size of the shares can be changed:

If one of the spouses did not receive income for unexcused reasons (with housekeeping / raising children / incapacity for work being a valid reason).
If together with a husband or wife remains minor child
If the spouse misused family funds

Mortgage apartment

Be sure to coordinate your actions with the bank and change the mortgage agreement. Can:

divide the mortgage between spouses

Banks are reluctant to take this step: in many respects, it is more convenient for them to have two borrowers for one loan at once. The bank itself decides whether to divide the loan or not, it is not obliged to meet you halfway. If the bank agrees, then both housing and mortgage accounts will be divided according to the established shares. Moreover, if one of the spouses does not have the opportunity to pay all 50%, then you can divide the loan in a different way. But then the living area will be divided in accordance with the shares.

apply for a loan for one of the spouses

Then mortgage payments and real estate are received by one of the spouses. Another cannot live in this apartment.

pay off the mortgage early, sell it and split the proceeds

Pay attention to the fact that if a person took out a mortgage before marriage, and it was paid out of family budget, then the property will remain in the property of the spouse, and his ex couple costs and expenses are paid.

Children

Taking into account the interests of the child, the court may increase the share of the spouse with whom the child remains. This is clearly spelled out in Article 38 of the Family Code of the Russian Federation:

The court has the right to deviate from the beginning of equality of the shares of spouses in their common property based on the interests of minors.

If a minor child has shares in the apartment, then a parent can act on his behalf. Then the shares of the parent and the child add up, and, accordingly, they will receive more residential square meters.

If the child is also the owner of the apartment, then you will not be allowed to sell his share just like that. Guardianship authorities must be sure that the child will retain his housing. Even the law forbids a minor to give up his share in favor of another person, as adults can do.

It is possible to sell an apartment, the owner of which (or part of it) is a child. But this takes time and effort. There is a mandatory condition that the new apartment must be no worse than the previous one, and the child's share in the apartment must remain the same as before. For example: a child had a share of ½ in a previous apartment of 60 sq.m. It turns out that he owns 30 sq.m. At the time of buying new apartment an area of 70 meters, the share of the child remains the same. That is, half of 70 m is equal to 35 m.

In conclusion, it remains to wish you patience with this difficult process. It will be better if you contact a lawyer of the specialization you need. In this case, you will save your nerves and a large number of time. According to statistics, the average duration of a divorce process is 2 months. Depending on the disagreements between the spouses, this figure can vary from 1 month to a year, or even more.

Lawyer's answer.

The presence of common children directly affects not only the procedure for filing a divorce, but also the procedure for dividing common property. Thus, the division of real estate, carried out in a general manner equally, will require mandatory consideration of the property rights and interests of minors, which in some cases may become the basis for allocating to the spouse with whom the child lives, greater share in joint ownership.

However, such a solution to the issue of division is possible only in court, if there is a dispute between the parties. In his absence, the division of common property is carried out by concluding a mutual agreement, by which the husband and wife can resolve all issues of interest to them.

Accounting for the rights of children in the division of property of spouses

Taking into account the rights of minor children is a priority not only for the norms of domestic family law, but also for each of the activities of any democratic state as a whole. It is obvious that such an orientation should also be traced during the division of property, especially considering that the most vulnerable in the divorce process are just minor children.

The most striking manifestation of the protection of the property rights of children in the division of property by their parents is enshrined in paragraph 2 of Art. 39 of the RF IC, according to which the court may deviate from the equality of shares in their common property, and increase the share of the spouse with whom the children will live.

This issue causes a lot of controversy in law enforcement practice, in particular, regarding interests of children to be taken into account in such cases. In addition, it is necessary to remember about other nuances of the implementation of the property rights of minors:

Since a municipal apartment cannot be jointly owned by the spouses (at least until the moment of its privatization), it cannot be divided between them in a divorce.

Questions from our readers and answers from a consultant

Can an agreement on the division of property involve the allocation of part common child?

An agreement on the division of property between spouses has the form of a transaction, which allows them to provide for any legal obligations of the parties (Article 421 of the Civil Code of the Russian Federation). So, the division agreement may well contain a condition on the obligation of the spouses after the division of property to allocate to the common child a part of the share received by him.

What part of the municipal apartment can a mother with a child claim when it is divided as part of a divorce?

Art. 38 of the RF IC provides for the division of property jointly acquired by the spouses, which is part of the common property. The municipal apartment is the property of the municipality, which is why it is not included in the property of the spouses, and therefore cannot be divided. To do this, it must be privatized in accordance with the Federal Law "On Privatization of the Housing Fund of the Russian Federation."