One of the forms of state support for families with children is the provision of maternity capital. The right to receive a personal name belongs to women who have more than one, the last of whom was born after January 1, 2007. To obtain a certificate, children must have Russian citizenship.

The main goal of family capital is the objective possibility of providing for children, therefore the allocated funds must be spent in the interests of the child. Based on the legislation of the Russian Federation, money can be used to either increase the size of the mother’s future pension.

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Has the right to receive family capital only in the absence of the mother. A man who has two or more children has the right to count on receiving a cash certificate. The right to capital is also acquired from the father of the family in the event of the death of his wife or, for example, in the event of deprivation of her parental rights.

Legal grounds

The receipt and further use of family capital is clearly regulated at the legislative level. Illegal use of cash is subject to prosecution.

Federal Law No. 256-FZ dated December 29, 2006 (as amended on December 28, 2016) “On additional measures of state support for families with children” stipulates all possible procedures for using maternity capital.

The main provisions are:

• A list of legislative acts and government bodies that regulate support for families with children on the territory of the Russian Federation.
• Rules for maintaining and registering the federal register of persons who receive additional state support.
• The categories of citizens entitled to receive social assistance are clearly defined.
• Rules for registering maternity capital and issuing the corresponding certificate.
• Amount of cash payments.
• Possibilities for using family capital:
  • to improve living conditions;
  • for children to receive education;
  • for the purchase of materials and services;
  • for the formation of the funded part of pension payments.
• Peculiarities of consideration of an application for the right to dispose of funds.
• Transfer of funds to the account of the Pension Fund of the Russian Federation.

In order to understand how maternity capital is divided during a divorce, it is worth turning to the regulations. The procedure for dividing property is regulated on the basis of the Family Code of the Russian Federation.

Chapter 7 details the legal regime for joint property between husband and wife:

• concepts of acquired property;
• a list of rights to dispose, own and carry out transactions;
• approval of personal property as joint property;
• the share of the spouses in the division of property;
• section of common capital.

Property acquired under the maternity capital program is not subject to division between spouses after divorce

Who can apply

Family capital, in most cases, is registered in the name of the mother. Adoptive parents also have the right to receive family capital. Even if both spouses were involved in the registration of guardianship in equal parts, the right to the certificate belongs only to the wife.

The capital is allocated to himself and the father raising children alone, if the mother:

• committed a crime against her own child;
• passed away;
• declared dead or missing by the court;
• deprived of the right to be an adoptive parent in court;
• deprived of parental rights.

Targeted material assistance, social benefits and subsidies are not the common property of the spouses, therefore they are not subject to division. If maternity capital funds were not used at the time of divorce, then the certificate remains with its previous owner. The second spouse cannot claim this money.

General essence of the procedure

When filing for divorce, there are many nuances to consider.

Chapter 14 of the Family Code of the Russian Federation stipulates the alimentary responsibilities of former spouses:

• list of obligations for mutual maintenance;
• the rights of former spouses to alimentary support;
• the amount of monetary payments recovered from spouses after litigation;
• exemption from mandatory payments or regulation of payment terms.

The presence of maternal (family) capital is important in divorce proceedings. Alimony is paid to the spouse with whom the children remain. The right to use the children's real estate remains with the parent in whose care they remain. On behalf of the child, the legal representative can carry out transactions with property.

The targeted expenditure of funds is monitored by the guardianship and trusteeship authorities. If the rights of minors are violated or if shared property is unevenly distributed, legal proceedings are initiated. For such an offense the court may impose criminal liability.

Special points that should be taken into account if you want to use maternity capital funds:

• After completing a transaction - purchasing a home using a family certificate - the child must be allocated a share of the property within six months. At the expiration of 6 months Guardianship and trusteeship authorities have the right to impose penalties.
• Disposal of family capital funds for the purpose of obtaining education can be used until the child reaches 25 year old age.
• Part of the funds under the certificate can be issued in an amount not exceeding 50 thousand rubles.

How is maternity capital divided in case of divorce?

Divorce does not in any way affect the right of parents to use maternity capital. Since the certificate is a registered security, even in the event of termination of marriage, its owner retains his rights to use. If the purchase of new housing, taking into account capital funds, occurs after a divorce, then its full owners are the mother and her children.

Resolving the issue regarding the purchased house

If a house was purchased using maternal (family) capital, then when registering common shared ownership, it is necessary to take into account all family members. After divorce, each owner can claim an equal share. This rule is the same, regardless of the total cost of housing, as well as the method of purchase.

In case of divorce, the ex-husband has the legal right to claim his part of the housing, but there are a number of features:

• The father of the children is the owner of the apartment, and therefore has the right to live in this territory.
• Without the consent of the ex-husband, strangers cannot live in the house.
• Only the children's parents have the right to decide what to do with their ex-spouse's share of property. Even the court does not have the right to oblige the sale of housing and division of funds.

When dividing the common living space in the event of a divorce, a voluntary agreement can be concluded. To simplify the procedure, the agreement stipulates that the children remain under the care of the mother. The husband formalizes his share as a gift for one of the children, in return receiving other real estate, for example, a car garage. The father has the right to voluntarily transfer the right to his part of the housing in order to pay alimony.

In any case, the voluntary agreement must be documented. While respecting the rights of children, further division of property is carried out in court in accordance with the reached consensus.

If voluntary agreement cannot be reached between the former spouses independently, then the matter is resolved through judicial proceedings.

When contacting the legislative body, the plaintiff, in addition to the application, must provide the following documents:

• bill of sale;
• registration documents of ownership;
• loan agreements;
• a document confirming the use of the maternal certificate.

To sell real estate purchased with MK funds, it is necessary to obtain consent from the guardianship authorities, and in addition, parents may be required to provide an official document that indicates the deadline for allocating a share of the sale of the apartment to their children

Problems related to mortgage

How is maternity capital divided during a divorce if it was used as a partial repayment of mortgage debt?

The divorce procedure, burdened by this factor, becomes extremely complicated:

• Regardless of how the apartment is purchased, taking into account the funds from the mother’s certificate, the common shared ownership must be registered.
• Mortgages are jointly owned assets and are therefore divided equally in a divorce. Even though the share in the apartment will be no more than ¼, the return of funds to the bank, according to the law, is paid equally by both spouses.
• An unpurchased mortgaged apartment may be subject to sale. To start the process, you need to go to court and terminate the loan agreement. In this case, the loan transaction is redirected to the bank, and the client will lose about 30% of the value of the property. Since the collateral debt is also deducted from the sales amount, the amount returned to your hands will be even less. The sale of an apartment before the mortgage encumbrance is removed is possible with the permission of the creditor bank, the Pension Fund of the Russian Federation and the guardianship authorities.
• If the divorce process is hidden from the bank, management may demand a full refund of the funds.

If the spouses no longer intend to be married, then the mortgage payments will have to be paid to everyone in full.

“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

What is maternity capital?

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:

• improvement of living conditions;
• payment for the child's education;
• increase in mother's funded pension.

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 spouses are divorced, can maternity capital be used?

The emergence and termination of the right to maternity capital occurs under the conditions provided for by the 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 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 ones.

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.

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.

Alas, sometimes young people cannot withstand the difficulties that family life presents to them. Constant quarrels and accusations of each other for various everyday mistakes ultimately lead the husband and wife who once loved each other to the decision to divorce.

According to articles of Russian legislation, the division of spouses' property is carried out on the basis of certain rules and norms established by the Civil Code of the Russian Federation. But what then to do with the money received from the state as assistance for children? Can a wife lose part if her husband demands half? How is maternity capital divided during a divorce and is such a division even possible? How is such a point reflected in the legislation?

What is maternity capital?

Before moving on to the issue of division, it is worth determining what kind of assistance this is and in what form it is provided. Maternity capital is one of the measures to provide support from the state. Issued in the form of a document issued in the name of the mother. Only she has the legal right to dispose of this amount of money. Therefore, the question of whether maternity capital is subject to division during a divorce is quite logical.

What can a family certificate be used for?

This amount has a strictly limited range of possibilities for use. Its use is aimed only at one of the following purposes, strictly defined by the law of the Russian Federation:

1. Qualitative improvement of living conditions;
2. Child's education fee;
3. Transfer of the amount to increase the funded component of the mother’s pension.

As practice and reviews from certificate holders show, expanding and improving housing is the main way to use assistance from the state for a second child.

Can government trust money be divided between ex-spouses?

First of all, this is money that goes to the family. Therefore, quite often during the period of divorce, the question arises: is maternity capital divided when spouses divorce? Is it possible to divide this amount between the ex-husband and wife, as you do with the rest of the property?

The answer to this question will probably disappoint some. Relying on the fact that the law determines the division of all joint property, including finances, one has to face the indisputable fact that the earmarked money paid for children cannot be divided.

And in this case, government financial assistance is precisely targeted. And accordingly, it is not divided. Based on the above regarding maternity capital, in the event of a divorce, who will receive this subsidy? The entire amount goes to the person listed in a special document (certificate) issued to a single recipient.

Usually this is the mother, of course. However, it happens that the recipient can also be the father.

Does divorce affect the use of government subsidies?

Granting the right to receive money from the state aimed at providing for children, as well as terminating its validity, is possible under the conditions specified by law. The content of this law does not indicate that the process of divorce of spouses may have an impact on the provision of the above right.

State payments to mothers are provided with an undeniable right of disposal, regardless of whether they are currently legally married or not. Even when the marriage is considered officially dissolved, the ex-wife still has the right to use maternity capital when the spouses divorce.

If, after the official breakup, the mother uses the money to purchase housing, then she and the children will be the main owners.

Is the mother the only owner of the family certificate?

So, when a marriage is annulled, the intended money, as a rule, remains with the mother. That is, the official breakup of relations does not provide any reason to think about whether maternity capital is divided during a divorce. Everything remains with the ex-wife.

However, there are several provisions under which the child’s father acquires the right to dispose of maternal capital.

In what cases can an ex-husband dispose of maternity capital?

This happens if:

1. It has been established that the mother committed a criminal act against her own child;
2. The mother was declared dead;
3. The court officially declared the mother either dead or missing;
4. The process of adoption of a child by the mother has been officially terminated, and the father carries out this procedure, being the main adoptive parent;
5. The mother officially loses her rights to the child by court verdict.

In all of the above cases, the right to own maternity capital passes to the ex-husband. However, and this is completely undeniable, this has nothing to do with the procedure for official termination of relations.

How is the division of property acquired with the target money carried out?

It happens that part of the amount, or the entire amount, has already been used for its intended purpose, corresponding to one of the provided spending conditions. For example, the money was spent on purchasing a new home, or making a mortgage payment, or paying part of a home construction bill. Is maternity capital divided during a divorce in this case and how to correctly determine the procedure for dividing property? First of all, it is necessary to determine the provisions of the law in the case of using earmarked money when purchasing a home.

According to the existing norms of current legislation, housing purchased in this way involves an equal division of property between family members. That is, a family that bought an apartment using targeted funds receives as a result an equal share of the apartment for each family member, regardless of the number. It is this provision that provides a comprehensive answer to the question - is maternity capital divided during a divorce? Yes, and in equal shares. Here again it is worth noting that everything happens within the framework of the law. No new agreements on a different, unequal distribution can arise. Otherwise, this will be interpreted as a violation of the law.

When a marriage is dissolved, the former husband and wife retain the right to claim their shares from the jointly acquired property. According to the law, in order to make a division in such a decision, the spouses must obtain a written agreement, or resolve the controversial issue in court.

You can divide real estate, where each spouse has their own legal share, using one of several available options. For example, you can allocate a share to your ex-spouse that implies something in kind, that is, provide him with compensation, either as an equivalent property element or in the form of a financial payment. The basis for division is strict respect for the rights of children, who also have their own rights. They are equally characterized as their parents as full holders of their shares. Based on this fact, at the time of sale of residential property, in order to subsequently divide the money received, consent must be obtained from organizations involved in protecting the interests of children.

What if the family capital is a mortgage contribution?

In the case of purchasing housing with a mortgage loan and using it, either to repay part of the debt or the entire loan, the money provided by the state as a family certificate is always governed by the same rules as in the case of purchasing housing without using a loan.

Again, the main rule for how maternity capital is divided during a divorce is that each family member claims an equal share of property.

Maternity capital during a divorce: features of division during a mortgage

However, the procedure for dividing this property contains some nuances:

1. Divorcing spouses will have to pay the mortgage loan together, strictly in half, despite the fact that the share of each of them, taking into account the shares belonging to the children, may be much lower than the mortgage payments;

2. Until the mortgage debt is repaid, it is extremely difficult to put the purchased residential space up for sale. Similar procedures are carried out by financial institutions. The cost of the apartment will be much lower than the market price, and the debt amount will be taken from the money paid in the end. To sell an apartment on your own, you will first have to obtain a bank permit. In addition, it is necessary to obtain documentary permission from the guardianship authority for children. Which, according to many parents, is quite problematic to obtain.

If maternity capital is used for repairs and reconstruction of housing?

The use of a family certificate for real estate repair, redevelopment or reconstruction, as in all other cases, is the main condition for the registration of equal shares between family members. Only in this case, the question of whether maternity capital is divided during a divorce can be answered positively. The division of real estate in this case occurs on a general basis.

Maternity capital is divided during a divorce only if it is used to improve living conditions during the marriage. A valid certificate cannot be divided between spouses.

When deciding on the residence of children after divorce, maternity capital becomes the main topic of dispute. The law establishes that spouses have the right to equal shares of jointly acquired property.

What to do in case of divorce from maternity capital? Is it divided upon divorce?

Exception from the legal regime of family property

In family life, both spouses bring feasible contributions to the household budget:

• wages;
• benefits;
• amounts received as financial assistance, etc.

Property and finances are considered jointly owned, regardless of documentation, with the exception of personal belongings.

At first glance, it seems logical that the payment for the second child also applies to the family budget. But if you carefully read the federal law, it becomes clear that the certificate is personal.

The legislation clearly shows that this financial assistance is not common marital property; the right of disposal belongs to one parent to whom the document was issued. These funds are allocated for the implementation of program goals:

• expansion and improvement of residential real estate, including;
• providing accommodation for the duration of the child’s education and payment for education;
• integration into society of children with disabilities.

The concept that the certificate is not part of the common property of the spouses explains its indivisibility upon divorce. State support funds are not canceled, but remain the responsibility of only one of the parents; the other party will no longer be able to use them after the divorce.

Using the certificate outside of marriage

Interesting questions are raised by the legislative name of the document, which sounds ambiguous, since capital is called not only maternal, but also family. If the spouses did not use the certificate and separated, a logical question arises: is it permissible to manage the funds alone?

Separately living parents with one or more children can receive a certificate and use the capital in the same way as registered married couples. The state program for such family financing is designed to support and stimulate motherhood and childhood; accordingly, the use of funds remains possible for the party that legally owns the maternal certificate.

Note: the law does not limit the rights of citizens to receive a document in the absence of a registered relationship; single mothers and fathers have the right to participate in the program on an equal basis with couples who have officially registered their marriage.

Allowed for strictly defined purposes. The owner is allowed to use the entire amount of the certificate or spend part of the funds.

Table. The volume of maternity capital since the beginning of the program. Source: Consultant Plus.

Important! If the funds under the certificate are not fully spent, subsequent indexation is made only for the remaining amount, regardless of where the allocated part of the money was sent.

After the divorce, spouses can legally use the family capital or part of it. The state allows you to spend money without marriage restrictions. The only condition is personal personal ownership of the certificate.

Husband's rights to maternity capital

Despite the fact that the father is obliged to participate in the maintenance of the children after a divorce, if they remain living with the ex-wife, the capital funds remain at the disposal of the mother, regardless of the husband’s share of investments in expenses. Maintenance obligations do not give the right to dispose of the certificate.

The husband acquires the opportunity to own maternity funds only in exceptional cases. If the father is single-handedly raising several of his own or adopted children, a certificate is issued for him; in other circumstances, the document is provided to the mother.

Re-registration is carried out if the woman who gave birth to the child:

1. She died.
2. Convicted of a deliberate crime against the person of a child.
3. For irresponsible upbringing or termination of adoption of a child, parental rights are deprived.

It is not always the case that children remain with their mother after divorce. Often, a woman’s financial situation or living conditions do not allow her to provide a decent living for her child, and she is forced to leave him with his father. If she is not deprived of parental rights, maternity capital funds remain at her disposal.

During divorce proceedings, the husband can declare that the children remain to live with him. If such a decision is not contested by the spouse, the certificate can be reissued to the father.

Transferring the right to dispose of maternity capital is a complex procedure. In Russia, there has historically been a tradition of women giving priority to raising children. When divorcing, the father must have very strong reasons and evidence for the judge to make a decision to separate the child from the mother.

Mothers are also given the exclusive opportunity to manage family capital funds - directing them towards their own pension. It is provided by law only for women; in other cases this option is not considered.

Attention! When the certificate is transferred to the father, children or another person, the right to direct funds towards pension savings is lost.

Division of property acquired with the participation of maternity capital

The divorce procedure becomes significantly more complicated when dividing property acquired with the investment of maternity capital. Regardless of the share of personal finances, the acquired property becomes the joint property of the family.

As a general rule, the use of funds under a certificate is allowed only after the child reaches 3 years of age, but there are exceptions that allow the amount to be spent for the intended purpose.

Many families are trying, citizens are trying to invest them in real estate as soon as possible. When purchasing housing, spouses do not plan to separate, so division of real estate is not considered at the initial stage; only in rare cases do couples enter into a prenuptial agreement to avoid misunderstandings and litigation in the event of a divorce.

House, apartment or room

The peculiarity of the division of property acquired during marriage lies in the legal regime established by the Family Code of the Russian Federation.

If the funds in the form of a certificate are indivisible between husband and wife, a logical question arises: what to do with real estate acquired with the participation of maternity capital in a divorce?

Until recently, during the dissolution of a marriage, many unclear issues with the division of housing surfaced, until a significant precedent occurred in the Krasnodar Territory. The court decision defined a new approach to the division of property acquired with the participation of maternal (family) capital. You can get acquainted with the innovation by watching a short video:

The Supreme Court helped the mother get justice

The legislation provides an unambiguous indication for purchase: square meters purchased with the participation of maternity capital are registered as the common property of all family members (parents with the first, second, third and subsequent children). Thus, an apartment, room or house acquired during marriage is automatically considered joint property of the spouses.

The interests of the spouses are allowed in different shares. The law does not oblige equal distribution of square meters of living space, therefore a husband and wife have the right to draw up an agreement on unequal division. An excellent option is a prenuptial agreement, which solves many difficult issues in the event of divorce in advance.

The division of property in the absence of an agreement takes place on a general basis; consideration of the interests of children is necessarily included in the transaction when making a purchase.

The following example shows the situation of equal distribution of shares in common property and the subsequent division of an apartment.

Spouses. The obligatory condition of shared ownership was fulfilled by allocating equal parts to the husband, wife and two children. The property was divided into ¼ share for each person.

Upon divorce, the spouses own half of the apartment, which is already divided into common shared ownership, so the divorce does not change anything; the husband and wife each get a quarter of the available space.

The children's own shares are not affected when their parents divorce.

Mortgage

If the initial payment on the mortgage loan was maternity capital, the division of housing does not differ from the usual procedure. Each spouse is entitled only to his legal share of the property.

Interest and loan repayment

When the certificate funds are spent, the right is granted to use them to pay off a previously acquired mortgage (housing) loan. This option also provides for the division of joint property in half, obliging the property to be registered in the common ownership of family members.

A distinctive feature of a divorce with existing debt obligations is that both spouses bear the burden of the unpaid amount on loans in equal shares, and not in accordance with their share of the property.

Housing reconstruction

The use of maternity capital funds for the repair or reconstruction of a house or apartment at the family’s disposal involves a contribution to the common property. As with the purchase of housing, the main condition is the registration of real estate in common shared ownership with the inclusion of children and spouses.

Upon divorce, the funds spent on repairs or reconstruction are taken into account as part of the jointly acquired property, as in previous cases, the division of housing is carried out on the usual grounds of the legal regime.

The problem of joint property after divorce

It is difficult for former spouses to separate; in modern living quarters, allocating a personal share may be impossible in kind. Most apartments and houses are not designed to have separate rooms for each family member, so in practice it is not possible to live independently on your own square meters after a divorce, but getting rid of an apartment encumbered by a mortgage is not easy. And if parents decide, they will face a number of difficulties. This complex process involves several stages of cooperation with stakeholders. Practice shows that guardianship authorities very carefully check such transactions, and banking conditions severely reduce the cost of housing that is pledged.

Spouses who decide to divorce should carefully consider the best options for dividing real estate. Invested maternity capital limits the right to sell in common ownership.

The guardianship authorities will prohibit the transaction if the parents do not provide the required number of square meters for each child in the subsequent living space, which must be no less than what is due according to the share being sold.

The targeted allocation of maternity capital funds when purchasing real estate, conditioned by registration in common shared ownership, is guaranteed to protect the interests of children in the event of divorce and division of property between spouses.

Author: . Higher legal education: North-Western branch of the Russian Academy of Justice (St. Petersburg) Work experience since 2010. Contract law, consulting on taxation and accounting, representation of interests in government agencies, banks, and notaries.
July 8, 2017.

Maternity capital is allocated by the state in the form of a targeted subsidy to families with. Both the mother and the child have equal rights to receive it.

Therefore, in the event of a family breakdown and the dissolution of the parents’ marriage, the question arises of dividing the amount of family capital if it has not been spent on.

Dear readers! The article talks about typical ways to resolve legal issues, but each case is individual. If you want to know how solve exactly your problem- contact a consultant:

APPLICATIONS AND CALLS ARE ACCEPTED 24/7 and 7 days a week.

It's fast and FOR FREE!

In the case of purchasing housing with MSK money, which, in addition, is pledged to the bank (mortgage), and, as required by law, must belong to all family members (including minors) in shares, the situation with division becomes even more problematic.

Mentions in the law

There are special legislative norms that regulate all processes in any way related to family capital. Federal Law “On additional measures of state support for families” dated December 29, 2006 No. 256 is a fundamental act regulating relations related to the acquisition and implementation of the right to maternal money.

This document regulates the main points related to MSC funds:

• the effect of the law, its basic terms and definitions, the right to receive state assistance;
• maintaining a register of persons - holders of MSK certificates, the procedure for issuing a certificate and its use;
• , his ;
• management of MSC money (for pension purposes, for children’s education, for home improvement, for social adaptation of disabled children);
• the procedure for considering the application, the documents attached to it, making a decision on the transfer of funds, the transfer process itself.

Divorce proceedings and division of property are regulated by the following rules of law: legal regime of property acquired during marriage, disposal of joint property, sole property in marriage, joint property, whether common property is divided, determination of shares during division (Articles 33-39 of the RF IC).

The responsibilities of spouses are also described in detail in family law, in particular, by the rules on mutual maintenance, on alimony after divorce, on the procedure for calculating maintenance payments, on the possibility of exemption from them (Articles 89-92 of the RF IC).

The partitioning process and the use of MSCs have features that you should pay attention to:

• if, purchased with capital funds, is not allocated to the child within six months, guardianship may initiate a procedure for collecting them from the parent;
• money for education should be spent up to 25 years old children's age;
• selection of mat. capital in the amount up to 50 thousand rubles. can be done in cash.

General points

The contractual regime of property acquired during marriage does not apply to property acquired with the participation of MSC funds. In practice, the question still remains difficult: is the purchased apartment divided between the father and mother of the children in the event of a divorce, if it was purchased with MSK money (using it)?

Since checkmate. capital is an amount of money allocated by the state for certain purposes; it will be impossible to divide it between spouses! If the child remains with the father, then in this case he will dispose of the certificate, and vice versa.

The procedure for dividing family capital is completely illegal and may result in punishable consequences.

Who is eligible for the certificate

The following can receive targeted assistance for family support:

• a woman who gave birth (adopted) a second or subsequent child;
• the man who adopted the second or subsequent child, if he is the only adoptive parent;
• father in case of deprivation of mother's parental rights;
• minors upon termination of the right to payments of both parents;
• an adult (up to 25 years old), studying full-time in the absence of the right of parents (adoptive parents) to receive mat. capital.

You can obtain the right to issue an MSK certificate once, starting with the birth of your second child.

A certificate is a personal document that cannot be the subject of a dispute during division. First of all, the mother (adoptive parent) of the second and subsequent children has the right to it. If these persons are deprived of the right to receive payment, it passes to 3 persons.

Judicial practice interprets that payments under the MSK can go to the father, adoptive parents and children, despite the fact that the certificate itself is personal. As a rule, a document on the mat. the capital remains with the person whose name is written on it.

However, the rights to the state. support can go to the father if the following circumstances exist:

• the absence of a mother or a man’s independent adoption of a child;
• the passing of the child's mother;
• announcement of the deceased mother of a minor, missing;
• deprivation of mother's rights in relation to the child;
• cancellation of adoption in relation to the mother;
• mother committing an unlawful act against children.

The mother of the child cannot be the recipient of the state. support in case of divorce and the presence of the above conditions. The right to receive mat. capital can be allocated to minors and adult children who need help and are in training. Children become legal beneficiaries if the father and mother are deprived of rights in relation to them.

How is maternity capital and property divided when spouses divorce?

The certificate for MSC is exclusively personal, i.e. is issued to a specific citizen. This fact does not depend on whether the spouses live together or not, whether they are married or simply cohabit without legitimizing their relationship.

Whatever family model exists in practice, it should be remembered that the certificate is issued exclusively for one person, but must be spent, first of all, in the interests of minors and the entire family as a whole.

The law in force in 2019 gives citizens the right to dispose of capital at any time, regardless of when it was received. Therefore, situations often occur that the family breaks up, but the capital money has not yet been spent or not the entire amount has been spent.

Despite the fact that everything acquired during a marriage is a priori joint, maternity capital is not subject to division in the event of a divorce. The motivation for this is the norm of Art. 34 of the RF IC, which stipulates that money that has a designated purpose and received by one of the spouses is not divided.

As for real estate purchased with the participation of MSK funds, it is subject to division, since the law obliges such property to be registered in shares between all family members. Consequently, during a divorce, any spouse can claim his share if it has not yet been registered in his name.

In practice, the following section options are used:

• the second parent is compensated for his share in monetary terms;
• other property subject to division is transferred, its value equal to its share in the real estate;

• the purchased apartment is sold, and the proceeds are distributed.

The latter option can only occur with the participation of guardianship authorities, since permission to alienate the shares of minors can be made by their order. At the same time, this body, as a rule, allows such a sale under the condition of purchasing other housing in the name of the children, commensurate with the alienated shares.

A more complex situation arises when dividing an object that is pledged to a bank. By law, all debts of the spouses are common and are divided in half. Collateral real estate can be sold only through the bank and with its consent, or independently.

The second option is problematic as follows: it is necessary to obtain permission to sell from the bank, the Pension Fund of the Russian Federation and the guardianship, and also to find an adequate buyer who is ready for a long wait for all the documents to be completed.

In any case, the division of mortgaged housing purchased with the participation of MK in the event of divorce is very problematic, so it is better for the parties to reach an amicable agreement.

If a peaceful option is not possible, then the division will take place only in court with the involvement of a credit institution, guardianship authority and pension fund in the case.

Dispute about purchased apartment

Difficulties in practice are caused by cases of dividing an apartment purchased with maternity capital funds. The civil legislation of the Russian Federation provides for the principle of equal division of everything acquired during marriage, regardless of which spouse’s name it is recorded in.

But it is important to keep in mind that the purchase of an apartment with the participation of capital means the mandatory allocation of a share in it to the child (children). This occurs upon completion of registration of the purchase and sale transaction, if the entire cost of housing is paid at a time, or immediately after the removal of the encumbrance from the mortgaged property. The pension fund even requires the owner to present a certificate when submitting an application for an obligation to allocate a share to a child, certified by a notary.

The consequence of violating this obligation may be the withdrawal of maternity capital funds with the imposition of an obligation on its owner to return the money.

An example is the following life situation. In a registered marriage, the family bought an apartment on credit using its security (mortgage). When purchasing, part of the property was paid for using MSC funds. The ownership of the specified object was registered to the head of the family.

After repaying the loan debt, all family members became co-owners of the apartment in equal shares. The total amount of purchased housing was 5 million rub., of which 450 thousand rubles.- MSC money. The difference between the indicated amounts is equal to 4 million 550 thousand, will be divided among all family members.