Property purchased during marriage and registered in the name of one of the spouses (husband)

RAZVOdis.RU Divorce Division of property

Dividing real estate acquired during marriage is always difficult and time-consuming. There are many nuances in this case, some of which are enshrined in law, while others must be proven during the consideration of the case.

Problems can arise in many cases: if the apartment is privatized after marriage, the owner is one spouse, or if there are children in the family. Before starting the divorce process, it is necessary to take into account all the details and refer to the family and housing codes. The spouses will be required to provide all property documents, income certificates, and often the conclusions of an expert bureau.

About the form of ownership

The form of ownership can be private, shared or joint.

As for the shared part, it can be private or general. Often this type of property is used to privatize apartments or rooms. It involves assigning share rights to each family member. Everyone has a separate share and a certificate of the right to dispose of it. Such a share can be sold. Thus, a single housing unit can turn into a communal apartment that has been fragmented. However, before the sale of the share, it is offered to be purchased by other shareholders, and only if they refuse, can it be sold to third parties.

Private ownership is the ownership of property by one person. In most cases, this type of property is common among young people before marriage. An apartment is considered shared after the appearance of joint property. In this case, all family members who took part in this transaction will be taken into account, they will all receive equal shares.

Joint ownership implies the absence of indication of shares. The division of property is carried out in equal shares between spouses and their minor children. The shares are not separate. They cannot be divided and sold separately. In this case, only one person is listed on the title deed, but everyone actually owns it. That is, when deciding to sell an apartment, one of the owners must obtain consent from the others.

Based on the information provided, it becomes clear that for spouses who are worried about the division of property, the priority option would be to register housing as shared ownership. If necessary, it can be issued in unequal shares. If joint ownership has been registered, when dividing the property, this will have to be done through the court. Usually he divides the property into equal shares, but if the husband or wife provides evidence of the right to a larger part, a decision will be made on the division not in equal shares.

If housing was purchased during marriage and registered in the name of the husband or wife, it will also be considered joint property. For example, if an apartment was purchased during marriage and registered in the name of the wife, in the event of a divorce the husband has the right to half of it.

How can a husband divide property if it is registered in his wife’s name?

It all started when our client received a subpoena. As it turned out, two months after another scandal and a rather long separation from her wife, she finally decided to file for divorce. Mikhail instructed us not to ask for a time limit for reconciliation; he had already come to terms with the idea of ​​divorce. However, he was worried that his wife would not let him into the apartment, claiming that he had no rights to it. Referring to the fact that the apartment is registered in her name and according to the documents she is its sole owner.

We explained to our principal that all property acquired during marriage is jointly acquired, and despite the fact that the apartment is registered in the name of the spouse, he has exactly the same rights to it.

In order to receive his share during a divorce, he must either enter into an agreement with his wife on the division of property, or file a claim for the division of joint property in court. The first option in this case was not even considered by Mikhail’s wife.

Therefore, at a court hearing appointed by the magistrate on the issue of divorce, we filed a counterclaim for the division of the apartment in equal shares between the spouses.

In this case, the magistrate must accept the claim and transfer the entire case to the district court.

However, judicial practice has developed in such a way that it is easier for justices of the peace to refuse counterclaims and make a decision on a divorce case than to send all the materials to a higher court. In this case, this is exactly what happened. The judge refused to divide the property and made a decision on the divorce case.

In order not to waste time, we did not appeal the judge’s ruling and wait for the divorce decision to come into force, but literally a few days later we filed a lawsuit in the district court. The requirements were still the same, to divide the apartment in equal shares.

Husband's statement of claim for division of a jointly owned apartment registered in his wife's name

The ex-wife, in turn, filed a counterclaim for the division of the land plot, acquired two years earlier by the apartment and registered in Mikhail’s name.

Each party filed a motion to seize the property while the case was being considered. This is necessary so that by the time the court decision is made, the property is valuable and safe, and has not been donated or sold to anyone.

Determination of seizure of property

At the court hearing, the wife’s representative asked to reduce our principal’s share in the apartment in the interests of the minor child who remains to live with his mother.

The defendant herself insisted that the disputed apartment was purchased not at the expense of her and Mikhail’s common income, but with the money she received from the sale of her apartment, which she had once inherited. Therefore, she believed, our principal’s share should be less than 1/2.

According to the documents, it turned out that in February the woman sold her apartment, and in May the couple bought another one, three times more expensive than the one sold.

Sufficient evidence was not presented that the disputed apartment was partially purchased with money from the sale of the apartment inherited by the defendant. There were almost 4 months between transactions, no cash movements were traced.

The court came to the conclusion that the apartment and land plot are jointly acquired; they were acquired during the marriage, through compensated transactions using the common funds of the spouses. Their shares in the jointly acquired property are equal.

The court recognized for each 1/2 share in the ownership of an apartment in Moscow and 1/2 share in the ownership of a land plot in the Moscow region.

Court decision on division of jointly acquired property of spouses

After the decision was made, we filed an application with the court to remove the previously imposed seizure from the property, since it is not automatically lifted.

Determination to lift the seizure of property

About tax refund

When housing is purchased during marriage, income tax is deducted, taking into account certain features. It is jointly owned by the husband and wife, but tax deductions can be provided in different ways, depending on the form of ownership chosen by the spouses when purchasing housing.

In order to receive a tax deduction, you need to pay attention to the fact that if the apartment is registered in the name of one spouse, and the payment papers are in the name of the other, the deduction may be denied.

Note: In order for income tax to be refunded, you will need to provide papers confirming payment of funds for housing and ownership of it.

The deduction can be divided between two spouses if each has regular official income. This is the only way to get your tax refunded.

You can request a full tax refund for one spouse. Then the other will have the opportunity to use the deduction in the future.

○ What documents need to be kept in case of divorce if the apartment belongs to one spouse.

Documents required to prove ownership of housing:

• Apartment purchase agreement.
• Loan agreement.
• Donation agreement.
• Documents confirming inheritance rights.
• Statements from personal bank accounts.
• An extract from the personal account for the apartment, where the full name is indicated. its owner and reflects all financial transfers for utility services.
• A receipt indicating receipt of the amount for the purchase of real estate.
• Agreements on the supply of utilities and their payment by the owner of the apartment during the premarital period.
• Checks for the purchase of property and building materials during the premarital period;
• Contracts for repair work and so on.

Thus, to avoid all property disputes during a divorce, it is recommended to conclude a prenuptial agreement that covers all possible property and financial issues. This step will save in the future time spent on disputes and money paid for the work of a qualified property specialist.

Rights to receive deduction payments

If housing is registered as joint ownership, both spouses or one of them can count on receiving payments. The latter case implies the need for the second spouse to write a refusal to receive payments in favor of the other.

When registering an apartment as shared ownership, each spouse receives a separate payment, which is commensurate with the share owned.

The general rule determines the amount of deduction for one apartment at 200 thousand rubles. The cost of housing is divided proportionally. This is how the deduction is determined for each spouse only if the cost of the apartment is no more than 2 million rubles. If the cost exceeds the specified amount, 2 million rubles will be deducted for each spouse, multiplied by his share.

When a spouse is on maternity leave, she has no taxable income, which means that during this time she will not receive a personal income tax refund. However, the spouse will retain his right in future purchase and sale transactions of any real estate.

When spouses buy an apartment not for the first time, if one of the spouses receives the maximum amount of payments earlier, the second spouse has the opportunity to receive a full deduction this time.

How does the division take place?

• If the court determines that each spouse after a divorce is entitled to a share of the apartment or house, then there are 2 options for events.
• Both spouses remain to live in that part of the apartment that the court determined for them.
• The apartment is sold and the money is divided between the spouses.

When it comes to a house, the most popular practice is to divide the living space in half and create separate entrances. This allows you to create 2 houses from one and solve the housing problem.

If a plot of land is divided, then everyone receives a certain number of square meters. Their number is determined by the court. If at the time of the divorce the house is not completed, then the court examines the project and evaluates the spouses’ ability to complete the housing. If construction continues, then the final result is divided.

Attention! Due to recent changes in legislation, the legal information in this article may be out of date! Our lawyer can advise you free of charge - write your question in the form below:

Marriage contract

Often, spouses discuss in advance their rights, responsibilities and specifics of the division of property during a divorce. In this case, they turn to a lawyer to draw up a marriage contract. It will specify who will get the apartment in the event of a divorce. It does not take into account which spouse paid for it when purchasing it.

Also, the marriage contract will contain information about the presence or absence of the right to transfer housing to a minor child with the right for one of the parents to live in it until the child turns 18, as well as the need to remove one of the spouses from registration in the event of a divorce.

Thanks to a prenuptial agreement, the division of property during a divorce can take an unusual path. However, this document can also be considered invalid. To avoid such a situation, some rules should be taken into account when concluding a contract.

First of all, it is impossible to draw up a marriage contract if one of the parties is put in a disadvantaged position by the conditions that the other party wants to include in the contract. If such conditions exist, you can challenge the contract in court.

What is shared and what is joint property

When concluding a purchase and sale agreement for an apartment, the new owner is granted ownership of the property. And if there is only one owner, then everything is clear with this situation. But most often, an apartment is purchased during marriage or by several individuals, it is inherited by children, and a deed of gift can also be issued for several people. In this case, the answer is ambiguous, and means that the property becomes not individual, but common. In turn, common property has two options: joint and shared.

Shared ownership is when a property has several owners, whose shares are strictly distributed among them. Everyone is issued a certificate of ownership, which clearly indicates how many shares belong to a particular person in a particular apartment. Such a share is separate, which means it can be sold. It is with shared ownership that you can sell part of the apartment, thus breaking it up and turning a single piece of real estate into an actual communal apartment. Of course, before you sell your share, you must offer to buy it back to the owner of the second share, and under the same conditions as on the free market. If he refuses, then the share can be sold to anyone on a general basis.

As for joint common property , it arises most often in marriage. Joint property cannot be split up, divided, part of it sold, etc. It is a single object owned by two people. In this case, on paper the apartment has one owner - for example, one of the spouses, but in fact it is owned by two. And do something with the apartment - sell, exchange, mortgage, etc. – it is impossible without the consent of the other party.

When purchasing an apartment, by default the property is considered joint, but if the spouses wish, it can be divided into shares.

Applying for a family mortgage

Most Russian banks set the following requirements for a family deciding to buy an apartment with a mortgage:

• age from 18 to 60 years;
• presence of Russian citizenship;
• work experience in the last place for at least 6 months;
• family income not lower than the subsistence level;
• the need for the family to improve living conditions.

If all the rules are followed, you can collect documents. Of these you will need:

1. Passports and birth certificates (for minor children).
2. Marriage certificate.
3. Property documents (if any).

If necessary, the bank may require additional information. In addition to the original documents, copies will be required.

A down payment will also be required. The percentage will be different for each bank. The average contribution is 10-30 percent.

Housing that was purchased with a mortgage will be encumbered by the bank until the debt is fully paid.

The mortgage can be issued in joint ownership or for one spouse.

You can issue a mortgage for two spouses, and register property rights for one, or vice versa, a mortgage can be issued for one person, and property rights for two. In any situation during a divorce, debts will be distributed between husband and wife in equal shares.

If the spouses want, they can draw up a prenuptial agreement, specifying who will own the home after the divorce and who will make the monthly payments.

What is considered personal property rather than community property?

The list of things that do not apply to joint ownership is quite long. For example, personal property includes:

• Property purchased before marriage

If you already owned real estate, cars, expensive items and financial assets before marriage, they do not become community property and are not divided during a divorce. But you may need documents confirming your property before marriage.

If personal property is changed or improved using family money and its price increases significantly, then during a divorce the court may recognize it as community property.

For example, you bought an apartment before your wedding, and then together with your spouse you made major renovations to it. In such a situation, it happens that the court recognizes the property as joint property and determines what share belongs to each spouse. Or, say, if a husband changes all the parts in his wife’s old Zaporozhets and turns it into a Mercedes, during a divorce he will be able to claim part of the cost of the car.

• Gifts and inheritance

If during your marriage you inherited or received an apartment, a car or a bank deposit as a gift, you will not have to divide them during a divorce. They are considered your personal property. It is only important to save documents - for example, a certificate of inheritance or a gift agreement. In some cases, eyewitness accounts are also suitable.

But again: if the property inherited or received as a gift was completed or improved at the expense of common funds or the personal money of the second spouse and, as a result, greatly increased in value, the court may consider it common.

• Target payments

Direct payments in case of divorce are not divided. For example, if one spouse is injured due to an accident or illness, disability payments are considered his money and not family income.

• Personal items

Clothes and shoes, razors and curling irons, as well as other personal items remain with the person who used them. But jewelry and luxury items are considered common property. That is, inexpensive jewelry remains with the wife, but gold jewelry with diamonds purchased during marriage will need to be divided equally or half of its value must be paid to the spouse.

At the same time, the concept of luxury goods is very vague. For example, a court in Norilsk may consider a mink coat to be clothing—in a northern climate one cannot live without warm clothing. And a fancy, expensive fishing rod can be considered a luxury item, since it is quite possible to do without it. The court examines all the circumstances each time before making a decision.

If the luxury item was a gift, it may be considered personal property. But you will need to prove that the item was given as a gift. Not only the notarization of the gift is suitable, but also witness testimony. For example, in the case when a husband presented his wife with a necklace at a family holiday, relatives will be able to confirm this.

• Intellectual property

If you invent something, write a book, compose a song, or make a movie, those works are your intellectual property. The spouse cannot claim them during a divorce.

Royalties and royalties paid to you during the marriage are considered joint income and will be divided. But only the author can count on all deductions after the divorce.

• Children's things and money

Clothes, shoes, school supplies and sports equipment, musical instruments, children's books and other things of children are not divided during a divorce. They are transferred to the parent with whom the children remain to live.

Deposits in the name of children are also not divided, regardless of which parent opened and replenished them. They are considered to belong to children, not parents.

• What the couple bought while living separately

It happens that people do not formally get divorced, but actually live separately and do not maintain a common household. If during this period the husband or wife acquires some property, the court may recognize it not as common property, but as personal property.

Who should I register housing for?

So which spouse should I register housing for? What's the best way to proceed? According to the law, when registering housing as joint property, both husband and wife have equal rights to its share (Article 39, paragraph 1).

The distribution of shares will depend on the presence or absence of a marriage contract or other type of transaction, on the basis of which one of the spouses can be allocated a larger share (deed of gift, etc.). If the listed ones are available, the shares will be distributed according to these documents.

If housing is purchased from scratch using funds that have been accumulated by both spouses, shares may not be indicated at all during registration; the contract simply indicates that the housing is being purchased as joint ownership. In this situation, both husband and wife will be the official owners of the apartment.

Are debts also divided in half?

Not always. If a husband and wife are co-borrowers on a loan, this is their joint debt. A loan taken by one of the spouses is considered his personal debt.

Total debts

distributed between spouses in the same proportion as shares in joint property. For example, if a husband and wife took out a mortgage loan for an apartment together, then after the divorce each of them will receive half of the living space - and half of the remaining loan.

If, according to the marriage contract after the divorce, the spouse receives, say, a quarter of the common property, then under the common credit or loan he will have to pay only a quarter of the debt. But this is provided that the creditor knew about the prenuptial agreement. Otherwise, the former spouses will be answerable to the creditor on equal terms.

Moreover, if the spouses acted as co-borrowers, the creditor may require both of them to repay the debt in full at once, and not in half. But the spouse who has paid the creditor for both can go to court and demand that the second spouse pay him his share.

For personal debts

each one responds with his own property. Creditors, debt collectors or bailiffs have no right to demand payments from the spouse of such a debtor - either during or after the marriage.

However, in cases where a person took out a loan for himself, but spent the borrowed funds on the needs of his family, the debt can be recognized as general. Only the court can do this - the debtor spouse will have to prove that he spent the money specifically for family purposes. If this succeeds, when dividing the property, the debt will also have to be divided.

What will happen to the apartment after a divorce, if it is registered for one spouse?

If one spouse owns the home, it will remain with him during a divorce. If the second spouse disagrees, you can file a lawsuit, describing in detail the reason for recognition of the share or residence.

Each case is individual. If the apartment was purchased during marriage, but was registered to one spouse, you will need to prove your rights by providing, for example, statements from the joint account from which money was transferred to pay for the apartment.

If a husband or wife acquired an apartment by gift or inheritance, it is not subject to division.

What is divided in a divorce?

The court is guided by the main provision: in the event of a divorce, all property acquired jointly during marriage is divided equally. Moreover, only spouses can share among themselves, without the participation of children and relatives.

Even if one family member provided for the family, all property acquired after marriage is considered common. This list includes:

• land;
• house and apartment;
• cash deposits;
• business;
• other material assets (cars, household items).

Important! Gifts, inheritances and personal items belonging to one spouse are not considered marital property and are not divided.

Any large purchases made after marriage are considered joint family property and are divided into equal parts between the spouses. But there are many features that can affect the division of property (especially living space). Not all of them are easy to prove during the trial, but with a good lawyer and a sufficient evidence base, you can achieve a change in the shares of the spouses. Court decisions take a lot of time, therefore, at the request of the parties, during this period the property can be seized or the place of residence of the spouses can be determined.

Is consent or refusal required for the sale from the wife/husband?

There is no need to provide consent to the sale of the apartment from the second spouse in the following situations:

1. The apartment was received by inheritance or as a gift.
2. The spouse purchased the home before marriage.
3. The apartment was privatized for one of the spouses, and the second gave consent to this.
4. Availability of a marriage contract indicating points of consent or refusal.

In other cases, when purchasing an apartment in joint ownership, a refusal or consent is required. They must be certified by a notary.

In this case, you need to submit an application to the notary's office. The notary will sign an agreement indicating the validity period of the consent or refusal. This paper, along with the rest of the collected documents, is submitted to the registration chamber.

○ Buying a home while married.

Buying an apartment while married should begin with determining the form of ownership of it. In this regard, there are several options for the development of events.

Possible acquisition schemes.

1. Shared ownership, when the living space is divided into shares and is common (this option is also possible in case of cohabitation without registering a marriage).
2. There is a non-share ownership method, when this issue is not documented, that is, shares are not determined (only for spouses).
3. Property rights may belong to one of the spouses.
4. Acquisition of living space by a spouse using his own funds. In this case, during the trial you will have to prove the fact of donating money.
5. To reinsure yourself for the future, formalize your relationship by concluding a marriage contract, including including a clause on the purchase of living space and its future fate.
6. Mortgage purchase. If the loan is issued to one person, then the second person provides consent to this. If this point is specified in the marriage agreement, then permission is not required. Applying for a loan for both, but with registration of ownership in one person. It is possible to register ownership of an apartment on both. In both cases, upon divorce, the debt will be divided between the spouses.

Which option is better? Those spouses who are afraid of being left without housing or of its unfair division can arrange the purchase using the shared method, and the shares can be different; this issue is resolved individually. Without shared ownership, the apartment is divided into two equal halves. The partition process will be carried out by the court. The procedure for dividing residential meters will follow the same procedure in the case of one owner per apartment.

Important! The concluded agreement for the purchase of property involves the return of a tax deduction - the amount by which the spouse can reduce the income subject to taxation.

To receive a deduction you need to take into account:

• The paperwork and payment document must be in the name of one of the spouses.
• Receiving official earnings by both to split the deduction between two.
• The possibility of returning to the address of one, the second leaves the right to take advantage of the deduction in the future.

✔ Who owns it?

Persons who may own an apartment after a divorce:

• Spouse.
• Spouse.
• Their children (until they reach adulthood, one of the parents will act on their behalf).

How to divide property during a divorce

In this case, it turned out that the apartment and house were purchased using funds that belonged to the wife before marriage. Some of them were inherited from her, and some were earned during her entrepreneurial activities before she got married. This means that the capital for which real estate was purchased during marriage is not joint, and therefore the shares of the spouses are not allocated from the apartments and houses purchased for it. The property belongs entirely to the wife.

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