Housing issue in divorce

Housing issue in divorce
Vasily Maximov. Family section. 1886

For example, in Moscow, according to the latest data from the State Statistics Committee, every 5-6 marriage out of 10 prisoners breaks up, and this happens most often in the first five years of marriage. On average, in the Russian Federation, the decision to divorce is made by about 69% of all married couples, so that not even every second couple, but a much smaller number of couples, has a chance to live together to a ripe old age..

And if from a universal human point of view, divorce is primarily a mass of negative emotions, quarrels, tears, mutual claims and children, often left without attention and care of one of the parents, then from a material point of view, divorce is just a division of property, in first of all, of course, real estate – apartments or houses.

And it is the housing issue that usually becomes a stumbling block in resolving disputes between spouses – no one would like to be left without housing, and not everyone can afford to pay half the cost of an apartment. But you also need to take into account the interests of children, the contribution of each family member to the acquisition of real estate, and so on. There are a lot of nuances and peculiarities in the complex procedure for dividing an apartment or a house during a divorce, and most often it is impossible to do without a trial.

If the apartment is transferred to the spouse under a donation agreement, it belongs to him personally and will not be shared in case of divorce.

First of all, it is worth deciding exactly what kind of real estate is subject to division. In dry legal language – only jointly acquired, that is, the property that was acquired precisely during the period when the husband and wife were legally married. An apartment that was received by one of the spouses under a donation agreement (more often called simply a donation) or inherited, as well as real estate acquired by a person before his marriage is not subject to division.

That is, if during a wedding banquet, for example, one of the husband’s relatives solemnly declares – here, the newlyweds, we decided to give you an apartment, then the other half should not rejoice too violently – if the apartment is transferred to the spouse under a donation agreement, it belongs he personally will not share in divorce.

The same applies to immovable property received by inheritance – even if during this period a person is legally married, the apartment that he received according to a will or by right of direct inheritance remains his personal property and is not subject to division.

With the purchase of an apartment before marriage, everything is also quite clear – while he lived and worked alone, he managed to save up for an apartment, bought it, and after that he got married – according to the law, the apartment does not fall under the category of “jointly acquired property” and, accordingly, is not divided. It is very easy to prove that the home was purchased before the marriage was concluded – the dates of registration of the relationship and the conclusion of the contract of sale are the best evidence of sole ownership of the home.

In other cases, the purchase or purchase on credit, committed precisely during the period of a joint married life, makes real estate jointly acquired property and such an apartment or house will have to be divided in accordance with the norms established by law.

Here it is worth mentioning one more feature – even if the apartment was purchased with funds accumulated personally by one of the spouses, or with money donated by the parents of one of them, that is, the second family member did not invest a dime in the acquisition of property, such housing is still considered acquired jointly, since at that moment the buyer of the apartment was already married.

The easiest way to divide real estate is to divide strictly in half.

In addition, real estate, which becomes the subject of a division in a divorce, must be formalized in accordance with the requirements of the law. Thus, any squatter building – erected near the house and unregistered garage, built without registration in the BTI country house – is not subject to division, such real estate must first be legalized.

The easiest way to divide real estate
Evgeny Ryabov. Sawing firewood

The easiest way to divide real estate is strictly halving. And it’s good if the ex-husband and wife managed to agree peacefully, exchange the apartment for two smaller ones or the spouse who remains in the apartment, agreed to pay the half of the market value of the apartment due to the second member of the broken up family.

Unfortunately, it is not often possible to negotiate peacefully and then the case on the division of real estate is sent to the court of the district in which the apartment is located, which became the subject of the proceedings..

Usually the court decides on the division of real estate in equal shares, however, if one of the spouses can prove that his contribution to the improvement, renovation, redevelopment and furnishing of this apartment is much more significant than the contribution of the former “second half”, then the court may decide to increase the proportion of those who have proven their human rights.

For example, if during the cohabitation the wife did not work and all the funds for redevelopment, major repairs or an extension were paid into the family budget from the man’s salary, he, theoretically, can claim a large share in real estate. However, at the same time, the ex-spouse needs to prove that the wife who was not working during this period of time did not undergo training and neglected her household duties – she did not take care of children, did not help with the housework, and so on..

Property division
Marc Chagall. Drunkard. 1910-1912

If the woman was the main earner in the family, and the spouse drank and was not engaged in home improvement, the wife can also claim most of the property. It is clear that it is quite difficult to prove who invested how much in the purchase, renovation and arrangement of the apartment, who drank more, and who spent a lot of time and effort on the renovation. In such a situation, it will be necessary to provide not only certificates of wages, receipts for the purchase of, for example, building materials, but also bring witnesses to court who could confirm that the former spouse did not provide assistance in the implementation of repairs and neglected his family responsibilities.

Also, the share of one of the spouses in jointly acquired real estate may be increased by the court, taking into account the fact that minor children remain to live with him..

The easiest way is to divide an apartment during a divorce, which was privatized at a time when the couple was legally married – during privatization, each participant in the process is immediately allocated a certain share, recorded in the technical passport for the apartment, and minors also take part in the privatization children.

Thus, if at the time of privatization a family of four lived in the apartment – dad, mom and two children, and none of the spouses wrote a written, notarized refusal to participate in privatization (which happens, in fact, quite rarely), then each of them owns 25% of real estate, so there are no questions about divorce. Another thing is how the family will divide their property physically, who should pay how much to whom, and whether the former family member will be able to sell only his part of the property. The main nuance is that if a spouse plans to sell his part of a privatized apartment, then first of all, according to the law, he must offer to redeem his share to other participants in privatization and only after their refusal to put it up for sale.

In the event that the apartment was purchased with a mortgage, there are two options for the development of events in a divorce. Most often, a mortgage is issued for both spouses – thus banks are reinsured in case of divorce of homeowners, and the income of only one family member is usually not enough to obtain a mortgage loan. In this case, the property is unambiguously divided in half, and the former spouses decide jointly whether to sell the apartment in order to share the funds equally or leave it in common use..

If the mortgage is issued to one of the former spouses, then the final decision is usually made by the court – it is possible that the division of property will take place according to the share determined by the monthly installments on the loan, which were paid after the marriage, that is, this part of the apartment becomes jointly acquired property. … If the initial payment for the apartment was paid by the recipient of the loan even before the marriage was formalized, then part of the apartment or its cost, minus the initial payment, is subject to division in equal shares..

Of course, when real estate is divided in equal (or increased, according to a court decision) shares, existing debts for utility bills will be proportionally divided.

And one more important nuance – there is a limitation period, according to which the division of property after a divorce is given 3 years. That is, it is necessary to divide the property immediately after the dissolution of the marriage; after 3 years, former family members have no right to claim any part of the apartment. The only exceptions are cases when the former spouse can prove that all this time he did not have the opportunity to go to court because of illness (his or other family members) or for other significant reasons. The statement – “I did not know there was a limitation period” – this is not.

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