Division of a residential building between spouses during divorce

When a cottage or mansion is built or purchased, no one assumes in advance that there is a possibility of breaking family ties, and the planning is carried out without taking this sad circumstance into account.

 

How to divide a house after a divorce to satisfy both parties?

Conditions for dividing a private home during divorce

As Art. 38 of the RF IC, only what has been acquired through common efforts during the period of official marriage can be divided.

If a house was bought by a husband or wife before the date of marriage, then it is impossible to divide such housing unless there is the good will of its owner, who is not at all obliged by law to give his personal property to the ex-spouse.

The common property of the family can be divided peacefully - through a voluntary agreement, and if it is impossible to conduct a dialogue, it is necessary to go to court, where each of the former couple will be assigned his part of the house on paper. At the same time, it is not necessary to run to court immediately after filing a divorce: the law allows for 3 years from this date to file a lawsuit and divide the home.

It is important to know that division involves the arrangement of one residential building - two separate dwellings, each of which must have an entrance, its own bathroom, kitchen, etc.

If one of the couple thinks that because of the children remaining to live with him, he will be awarded the lion's share, then he is sorely mistaken: children, as paragraph 4 of Art. 60 of the RF IC, mom and dad have no rights to property, although, of course, this circumstance can play a role (clause 2 of Article 39). The court will allocate each of the ex-spouses his part of the house in shares.

Is a house a joint property?

If the residential premises, including a residential building, during the period of the official marriage:

• acquired;
• built and registered ownership;
• received as a result of an exchange for real estate that was the property of the family after the marriage.

Under such circumstances, the house will be considered joint property and subject to division.

One of the couple has the right to refuse the physical part of the house, subject to payment to him of the value of his share. It is important to know that the fact of registration of ownership of a residential building in the name of one of the four does not matter, nor does it matter on whose behalf the act of sale or exchange was made .

When a residential house was inherited by one of the spouses or received as a gift under a gift agreement, then such property is not subject to division, since it is not jointly acquired.

Forensic technical examination

This procedure is carried out by specialists in the field of construction or real estate.

Professionals will fairly judge, after studying the drawings and visiting the division site, how best to make a dividing wall (if there is no other option) so that the area is roughly divided in half, or how to organize a separate exit for each half, etc.

The tasks of forensic technical examination are as follows:

• determine shares that are as close as possible in size and convenient for both parties to use;
• establish the market value of the entire building and each part separately;
• the amount that needs to be invested to remodel a residential building as required by the experts’ verdict.

Moreover, it is important to understand that the issue of dividing a residential building will affect not only the building, but also the land - access and passage must be provided to each part.

When can a house be divided?

The statute of limitations for dividing a common residential house of a former family is 3 years from the date of divorce; during this period you can apply for division. A residential building can be divided if it is not too cramped (when it is physically impossible to divide the living space into two parts) and if the building is so old and dilapidated that its value is practically negligible.

What to do if the house is not completed?

When a residential building is under construction, its division in previous times was impossible: unfinished construction cannot be registered, and what is not in the state. register, it does not legally exist.

Now, the unfinished building, which began construction during the existence of the family union, is also subject to division - such a legal action has become real thanks to the decision of the RF Armed Forces.

The point is this: Art. 130 of the Civil Code of the Russian Federation indicates that real estate is not only land, but also the buildings located on it, both finished and not completely finished. Based on this statement, the Supreme Court of the Russian Federation considered it possible, by a court decision, to formalize property rights, and then to divide housing during a divorce.

Having unfinished real estate, the family must go to the court at the place of residence, which will verify the real existence of such an object and issue a verdict on the legalization of ownership, followed by its division.

Ways to divide a house after divorce

Let's look at how to divide a house after a divorce.

After a break in marriage, the division of a residential building can occur in one of the following ways:

• allocate each spouse a share in kind, that is, a real room (or more than one);
• when the shares in reality turned out to be unequal (due to the peculiarities of the layout), then the amount of additional payment is determined for the person who received the smaller part;
• if the relationship does not allow staying on the same territory or when one of the couple has another option for living, then the entire house can be transferred to one spouse, subject to payment of compensation to the other.

There is not only a judicial option for resolving the problem, but also a peaceful one.

Agreement between spouses

1. unofficial, that is, not sealed by an official document, but is an oral agreement on the division of rooms in reality, on the sale of a house and the division of money;
2. official, when an agreement is drawn up in writing with the signatures of both parties.

An agreement is a document that has legal significance. Notarization is not a mandatory measure, but a desirable one, since a notary lawyer will not sign an incorrectly drawn up paper and will make his own adjustments.

An agreement after notarization is not so easy to challenge if conflicts and non-fulfillment of conditions arise. A good option is to draw up an agreement at a time when the marriage is not yet in danger of being dissolved, and excellent relations allow you to calmly share the goods on paper.

Going to court

The procedure for the initiator of the proceedings is as follows:

• order a market valuation of real estate;
• compare the result with the cadastral value;
• using the higher figure, determine the state duty and pay it;
• draw up a statement of claim and provide it with attachments, file a lawsuit.

The issue of dividing a private house is a complex one, so it is better if a specialist deals with this issue.

Statement of claim

The statement of claim is drawn up according to the usual scheme:

• name of the court;
• details of the plaintiff, including passport details and contacts (also in relation to the defendant);
• the descriptive part - how many years the marriage lasted, when exactly the house was purchased or built;
• a request to the court - usually this is a call to fairly divide the living space;
• plaintiff's signature, date, list of attachments.

If there are special circumstances - the defendant did not work for a long time, and the plaintiff’s funds were invested in improving or building the house, the presence of children, etc., then all this should also be briefly and clearly, without unnecessary details, brought to the attention of the court.

Required documents

A basic list of papers looks something like this:

• statement;
• passports of ex-spouses;
• receipt of payment of state duty;
• marriage certificate;
• title documents for the house;
• expert opinion on the actual cost of the house;
• certificate of those registered at this address;
• certificate of absence of debt for housing and communal services.

If you have children, you should attach their birth certificates, as well as other documents proving your right to a larger share of the dividend.

It is important to decide on the size of the shares - who is owed how much (in the absence of a prenuptial agreement). In this matter, the court will take into account all the circumstances set out in the application, but only if there is documentary evidence.

A share is a part of a residential building in which it is possible to arrange a separate dwelling with an entrance, a bathroom, a kitchen and a room (at a minimum).

If the parties agree to use the common spaces of the corridor, kitchen, bathroom, or at least the entrance, then the task is simplified, and if this is not possible, propose a redevelopment that would suit both parties. If the house is cramped and cannot be divided, then one of the former couple who is lucky enough to stay living here is obliged to reimburse half the cost to the one who leaves.

The division of a jointly owned private cottage, mansion or apartment meters is a painful, delicate issue and requires taking into account all the circumstances. If dialogue and drawing up an agreement are unrealistic, the court will help respect the rights of each of the participants in the family drama.

Tips for dividing a house during divorce

According to the current legislation, the division of property jointly acquired by spouses is carried out for all its movable and immovable objects. Today I will talk about how to divide a private house between spouses and what nuances are possible in this case.

Methods for dividing a residential building

Spouses can divide a private house between themselves as follows:

• draw up a voluntary settlement agreement;
• draw up a marriage contract;
• apply to the court with a claim for division of the disputed property.

When drawing up a settlement agreement, the spouses themselves determine the shares of property that go to each of them.

The size of property shares can be equal or increased in favor of one of the spouses. The document is drawn up in simple written form and does not require mandatory notarization. If there is a risk of its cancellation by one of the spouses, then it is better to notarize the agreement.

Such a document also specifies the property shares of each of the former spouses after the dissolution of the official relationship.

When ex-spouses cannot reach an agreement, they will have to go to court to resolve a property dispute.

The court will need to provide the following documents:

• statement of claim for division of real estate;
• the right establishing documents for it;
• certificate of divorce;
• receipt of payment of state duty.

Let me explain that it is not necessary to divide a jointly owned house during divorce proceedings, but it is necessary to remember the statute of limitations for this category of cases. Today, spouses can divide jointly acquired property within three years after the official termination of their relationship.

How is a house divided when spouses divorce?

The division of a jointly owned private house is carried out, in accordance with current legislation, in equal parts between the former spouses.
The division of a private house is carried out together with the land plot on which it is located. It is impossible to subdivide just one residential building without affecting the land.

The house can actually be divided into shares, provided that each spouse gets an isolated room with a total area of ​​at least 8 square meters.

To determine the suitability of the house for division, it will be necessary to conduct a construction and technical examination, the conclusion of which will become fundamental when making a court decision.

In cases where it is impossible to actually divide a residential building into shares, the court may decide to provide the second spouse with material compensation and secure the house for the use of the first spouse.

The division of a residential building purchased using a maternal certificate is carried out with the allocation of mandatory shares for each of the spouses and their minor children. At the same time, during the division of such a property, deviations from the principle of equality of shares are allowed.

Most of such a house goes to the spouse, with whom the minor children remain to live.
If a residential building has been privatized and one of the spouses has renounced ownership rights to it, he will not be able to receive his property share, but will retain the right of indefinite residence and registration in it.

You can divide a private house purchased with a mortgage in the following ways:

• equally between the former spouses. At the same time, loan payments also last in half;
• re-register a mortgage loan agreement for one of the spouses. At the same time, the second spouse will lose the right to his property share in this building;
• sell the disputed property with the consent of the bank that provided the loan. This way, the remaining mortgage debt can be paid off and the remaining funds can be divided between the spouses.

Let me clarify that the division of the land plot on which the residential building is located is carried out after the mandatory land surveying procedure. There is no arbitrary allocation of shares on the site.

Adviсe

The most optimal solution when dividing a jointly owned house is to sell it.
The proceeds can be divided equally between the spouses. It is possible to increase the share of the parent with whom minor children remain to live. Such a decision is made at the discretion of the court.

The most profitable way is to divide the house in such a way that there are two separate entrances with separate toilets and kitchens. To implement this plan, you need to get advice from the design office.

Spouses who live without formalizing their relationship must register real estate as common shared ownership upon purchase. In the event of a break in such relations, it will be very difficult to divide the disputed residential property.

If a private house was acquired by one of the spouses before the marriage, the second spouse cannot claim to divide it. Exceptions are cases where the second spouse has significantly improved the premarital property at his own expense. To resolve such a controversial issue, it will be necessary to provide the court with strong evidence confirming the applicant’s correctness.

In conclusion, buying a house is much easier than subdividing it. When making such an expensive acquisition, it is better for spouses to discuss in advance the possible options for dividing it. Each case of property division is individual. Knowledge of the necessary laws will help spouses save their money and nerves during the divorce process.

Division of a house in case of divorce between spouses

During a divorce, the division of property, including real estate, causes a lot of controversy. Additional difficulties arise when it comes to a private house. How the house is divided when spouses divorce and what additional factors influence the distribution of shares.

Ownership

Only property acquired during marriage is subject to division. Thus, if the house belonged to one of the spouses before the wedding, after separation he remains its full owner.

A house purchased after marriage is considered joint property. According to the general provisions of the Family Code of the Russian Federation, both spouses have equal rights to it. However, there are exceptions to this rule.

For example, if a house was inherited, it will not be joint property. Likewise, the sole owner of the property is the spouse who received it as a gift.

But during a divorce, you will need to confirm this fact in court.

But in practice, it can be difficult to prove that the second spouse did not participate financially in the purchase of the house. If at least a small part of his funds was invested in the transaction, the court will most likely recognize the property as joint property and decide on its division.

However, the owner can challenge the principle of equality of shares and achieve a change in proportions in his favor.

Even when the house is legally the property of one of the spouses, the other in some situations has the right to demand monetary compensation after a divorce. But to do this, you will need to prove that after the wedding, repairs or reconstruction were carried out in the house, which significantly increased its value (Article 37 of the RF IC). The amount of compensation is determined by the court; usually it is equal to half of the funds spent. If, in addition to the spouses, third parties are the owners of the house, their share is excluded from the division.

Allocation of shares

Before dividing real estate, it is necessary to allocate the shares of each spouse in kind. Unless otherwise provided by the marriage contract, the property is divided in half (Article 39 of the RF IC). The law gives the right to deviate from this provision, but these requirements will need to be justified.

First of all, this is due to the interests of minor children. Often the court decides to increase the share of the parent with whom they remain. The likelihood of such a decision increases if there are several children or the child is disabled.

The court may also accommodate the interests of the disabled spouse.

The share of one of the spouses may be reduced if during family life he had no income without a good reason or spent common funds to the detriment of the family. In practice, it can be quite difficult to prove this, since the law does not provide specific criteria.

For example, housekeeping and raising children are not considered disrespectful reasons (Article 34 of the RF IC). Therefore, if the owner of the house is the husband, and the wife was a housewife throughout the marriage and did not have her own income, this will not be a reason to deprive her of the right to her share.

The court may recognize, for example, alcoholism or drug abuse as unjustified reasons. It is also possible to challenge the right to joint property if, at the time of its acquisition, the spouses did not actually live together and did not run a joint household (Article 38 of the RF IC).

However, all these arguments will need to be confirmed.

There are several ways to divide a house after a divorce:

1. The actual division is into two parts. This possibility must be confirmed by technical expertise. After which the building is reconstructed: a wall is installed between the parts of the house, and a separate entrance is equipped for each. If the actual division of the house does not correspond to the allocated shares, the owner of the larger one pays monetary compensation to the other owner. It is also possible to divide rooms in a house without physically creating boundaries between them. However, in this case it should also be possible to allocate a separate bathroom and kitchen to each spouse.
2. Sell ​​the house and divide the proceeds in proportion to the allocated shares.
3. The house goes to one of the spouses, the second receives compensation for his share in monetary or property equivalent.
4. The spouses continue to live in the house together and use it without actually dividing their shares. In this case, none of them can prevent the other from exercising their rights. Such prohibitions are grounds for going to court. At the same time, the law establishes a statute of limitations of no more than 3 years from the date of divorce.

It should be taken into account that if there are minor children among the owners, their share is added to the share of the parent with whom they will continue to live in the future.

Voluntary section

The spouses themselves can agree on a solution that suits both of them. To do this, you will need to draw up an agreement and have it certified by a notary (Article 38 of the RF IC). With it, the spouses apply to Rosreestr to register their shares. At the same time, there are no requirements for the division of property: you can even renounce your ownership rights free of charge or for symbolic compensation.

The only condition is that the division should concern only property belonging to the spouses themselves. It is impossible to refuse a share owned by children. At the same time, the law gives the right to transfer one’s share of real estate to children in payment of alimony. If both spouses agree to such a transaction, an alimony agreement is drawn up and certified by a notary.

When spouses have drawn up a marriage contract before or during marriage, the house is divided according to it.

Also, the court may declare a marriage contract invalid if its terms significantly infringe on the interests of one of the parties (Article 44 of the RF IC).

Division of a house through court

Before filing a claim, it is advisable to order an assessment of the value of the house from independent experts. First of all, this will be required to pay the state duty - its amount depends on the amount of the claim. At the same time, it is not recommended to artificially lower the price - if the court has suspicions, an additional examination will be ordered. The other party may also request a re-evaluation.

The statement of claim for division of property is standard. It states:

• name and address of the court;
• details of the parties: full name, addresses, telephone numbers;
• the cost of the claim;
• content: when the marriage was concluded, a description of the disputed property and the conditions for its acquisition. If there are circumstances on the basis of which the court may deviate from the principle of equality when dividing property, they are also listed;
• request to the court to divide property;
• list of attached documents;
• date and signature.

The following will need to be attached to the agreement:

• copy of passport;
• a copy of the divorce or marriage certificate, if the divorce process has not yet been completed;
• copies of title documents for the house: sales contract, deed of gift, will, etc.;
• extract from the Unified State Register of Real Estate;
• a copy of the appraised value of the home;
• if the house was purchased with a mortgage - a copy of the agreement with the bank;
• a copy of the child(ren)'s birth certificate;
• additional documents confirming the plaintiff’s position;
• receipt for payment of state duty.

After the court makes a decision, the parties have a month to appeal it. If this is not done, it will take effect. The document serves as the basis for re-registration of ownership in Rosreestr.

When a house is purchased with a mortgage that is not paid off at the time of the divorce, many disputes arise. Added to the question of how to divide the property is the need to determine who will pay the contributions in the future.

Legally, until the mortgage is repaid, the house is the property of the credit institution. This complicates the process of dividing property. To sell real estate or change the payer, it is necessary to obtain the consent of the bank, which participates in the legal process as a third party.

There are several options:

• the loan is reissued to one of the spouses, who becomes the sole owner of the property. The second one is paid monetary compensation. Typically, its size is determined as half of the loan payments made. But options are possible depending on whose funds were used to repay the loan (for example, some of them were donated by relatives);
• the house is for sale. The proceeds are used to repay the loan, and the remainder is distributed between the spouses in equal shares;
• the spouses continue to share the house and pay the mortgage.

Depending on the decision made, a new agreement is concluded with the bank or an additional agreement is drawn up to the existing one.

When a mortgage was taken out before marriage but not paid off before marriage, a dual situation arises. On the one hand, a house is not jointly acquired property. On the other hand, after the wedding, the income of the spouses legally becomes common. Consequently, both of them are full participants in repaying the loan and, after a divorce, have the right to claim either money or a share in housing.

Much depends on the terms of the contract, the circumstances of the particular case, the arguments of the parties and the qualifications of the lawyers. For example, if the borrower’s parents actually provided the money to repay the loan, the spouse’s right to compensation can be challenged, since such income is not included in the general budget. It is best to consult a lawyer on this issue.

If maternity capital was used

When maternity capital funds were used to pay for real estate, it becomes the common property of all family members, including children.

The distribution of shares of a house purchased with maternity capital occurs in accordance with an agreement between adult family members. If it has not been drawn up, the issue is resolved in court.

Moreover, when it comes to the interests of minors, the division of real estate is controlled by representatives of the guardianship authorities. It is impossible to dispose of the child’s share without their permission.

Guardianship authorities can also take the initiative to ensure that the parent with whom the children remain after the divorce has an advantage in the division of real estate.

If the house is not completed

Sometimes the object of dispute is not the finished house, but the one under construction. Formally, such a house is not a real estate property - neither a cadastral passport nor ownership documents are issued for it. However, it also applies to marital property and can be divided in a divorce.

The specific decision largely depends on the degree of readiness of the structure and the ability to make structural changes to the project. Judicial practice here is very diverse - from the division of building materials between spouses to the completion of construction with changes to the project. In the latter case, the house is divided into two separate parts in proportion to the allocated shares.

Last changes

In 2023, there are no significant changes in legislation on this issue. Our experts monitor all changes in legislation to provide you with reliable information.

How is a house divided in a divorce?

A private house is inextricably linked with the land on which it is located. Ownership of these real estate objects is registered simultaneously. Therefore, when it becomes necessary to divide a house, the land plot will also be the subject of division.

Based on the general norms of family law, real estate that spouses acquired while married is recognized as common property. The marriage must be legal, i.e. registered in the prescribed manner. In relation to a “civil marriage”, the provisions on joint property do not apply, even if the couple has children.

Regardless of who the house is “registered” to, according to the law, it will have to be divided equally. In this regard, it is necessary to consider the features of the implementation of these rules of law.

• Spouses can divide a private house equally, and along with it a plot of land, before a divorce, directly during the divorce process, or within three years after. The building must be purchased or erected during the marriage using the joint savings or income of the husband and wife. If one of the spouses did not earn money, but was engaged in housework, raising children, or for other valid reasons did not work, part of the real estate still belongs to him by right. In a number of cases, if it is proven that the spouses did not live together, and the house was purchased or built exclusively at the expense of one of them, the court may exclude this object from the total amount of joint property.
• If a spouse received a house as a gift, by inheritance, or by concluding a gratuitous contract, then it will not be possible to divide such property with the second spouse. However, if the “other half” actively participated in the implementation of major repairs, refurbishment or reconstruction of the house, through personal labor or investing their own funds, the court may recognize the building as common and divide it in equal shares.
• When, during the privatization of a private house, one of the spouses renounced his share in favor of the other, in the future, during a divorce, he has no right to claim it. Husband and wife will not be able to divide the property equally. The spouse who renounces his share of the property can only claim to live in this house. To do this, he must be registered in it, and for permission to reserve this right he must go to court.
• A house that a spouse bought or built before marriage cannot be divided. This provision also applies to cases where the parties were already living together and purchased a house with common savings, but the ownership was registered only in one person’s name. This situation occurs as a result of the legal illiteracy of the party. In this regard, it is important to know that any real estate that is acquired by persons before marriage must be registered as common shared ownership. Otherwise, it will subsequently become impossible to divide it, even through the courts.

In what cases can a house be divided into different shares during a divorce?

Property in half is a general rule of family law. There are other ways regarding how real estate can be divided between spouses.

• Conclusion of a marriage contract. Such a transaction can be carried out at any time during the marriage or before it. In the text of the document, the parties are entitled to stipulate the shares of each person’s real estate that need to be divided. They can be distributed in any way, taking into account the interests of children and other family members. The marriage contract must be drawn up in writing, personally signed by both parties and certified by a notary.
• Agreement between the parties on the division of real estate. Spouses can draw up such a document at the time the decision to divorce is made or within three years from the date of divorce. In it, in addition to other provisions regarding the distribution of property, individuals also decide how to divide the house among themselves. The agreement must be in writing and certified by a notary.
• Judicial order. If a dispute arises regarding into what parts and what size the house should be divided, persons have the right to appeal to the district court. Only a judge has the authority to resolve issues of this kind if the husband or wife does not agree with each other’s arguments. Thus, the court may decide to either increase or decrease the shares of the parties, as well as include or, conversely, exclude the “disputed” house from the total mass of joint property.

Division of a house during divorce

Spouses who have decided to divorce and divide property have many questions about determining the composition of the property to be divided. A family lawyer or property division lawyer will help you sort everything out.

Algorithm for dividing real estate during divorce

Particularly difficult is the division of an apartment and the division of a house during a divorce. Sometimes there is a need to divide a plot of land.

The Family Code of the Russian Federation clearly defines that property acquired by spouses before marriage is the personal property of each of them and is not subject to division.

The same applies to property acquired by spouses through inheritance or gift. But everything acquired during marriage belongs to the husband and wife as joint property.

The division of property occurs in three stages:

1. Determination of division proportions. The size of the share that each spouse will receive is established.
2. Determination of the composition of property that is subject to division. It is established what is the joint property of the husband and wife, and what belongs to each of them as personal property.
3. Partition method selection and actual partition.

How is a private home divided during a divorce? The answer to this question depends on several circumstances.

Firstly

It is necessary to determine when the ownership of this house arose? If the husband or wife owned this property before marriage, then the house cannot be divided. Many are sure that children can lay claim to this house or part of it. This is wrong. Children do not have rights to the property of their parents, which is clearly stated in Article 60, paragraph 4 of the Family Code of the Russian Federation.

Secondly

If a house was bought, built or acquired through barter during marriage, it is considered jointly acquired property and is subject to division. In this case, it does not matter which of the spouses is registered as the owner of the house and on whose behalf the purchase and sale or exchange agreement was concluded.

In order to legally divide marital property, one of the spouses must file a claim for division of property in court. A husband and wife can also submit a joint application for division of property. According to paragraph 1 of Art. 39 of the Family Code of the Russian Federation, when dividing property, the shares of the spouses are recognized as equal, unless otherwise provided by the marriage contract or other agreement between the spouses.

But if one of the spouses did not work for an unjustified reason, or spent common property to the detriment of the interests of the family, the court may recognize the interest of the second spouse as such that it deserves attention. But in order to convince the court, it will be necessary to provide evidence of these facts.

The division of a house after a divorce and during a divorce can take place without a trial if the spouses have reached an agreement and entered into an agreement on the division of property.

At first glance, the issue of agreement between husband and wife on the division of common property does not seem difficult. People in a civilized manner came to a solution that suits both.

But when the subject of this agreement is real estate that is subject to state registration, the execution of the agreement between the spouses must be carried out taking into account the legislation that governs the procedure for registering real estate.

That's why

When you want to draw up an Agreement on the division of jointly acquired property, contact a property division lawyer. He knows the specifics of the legislation on the division of property and on state registration of real estate and will help you draw up a legally competent agreement.

Actual division of the house

Often in practice it turns out that the house remains in the actual use of one of the spouses. Then the second will have to look for another refuge and be content with the fact that he has a share in the common house, which is determined in court.

For example

The court can determine the rooms that each spouse will use, but not everyone agrees to live under the same roof with their ex-husband or wife. And if the house has, for example, one room and a kitchen, no court will be able to divide this house in such a way as to satisfy the interests of both parties.

• A private house is subject to division into parts only if it can technically be divided into parts that correspond to the size of the marital shares.
• If division is technically possible, but with a deviation from the share of one of the spouses, the court usually conducts a division with a determination of monetary compensation for the spouse whose share has decreased.
• If it is technically impossible to divide the house into parts, one of the spouses pays compensation to the other for the share, which becomes his property.

Payments of such compensation are a subject for a separate discussion and a reason for concluding separate agreements, and by mutual agreement of the parties. Therefore, when dividing a house, it is better to contact an experienced lawyer for oral consultation and drawing up claims and agreements.

Division of a house during divorce

As a rule, the division of real estate in a divorce is complicated by the fact that in reality it is impossible to divide an object such as a house. That is, the design of this object does not allow the house to be divided so that each owner can use this property autonomously.

This means that such an object must have several entrances; the layout of the house allows it to be divided into symmetrical parts.

If the design of the house allows such a division of property, then such a house can be divided in kind, but in other cases we have to talk about the allocation of shares in the right to use the property.

Agreement on the division of property (on the division of a house during a divorce)

One of the most effective ways to divide the property estate of spouses who want to divorce is to enter into a property division agreement. This transaction will allow the spouses to determine the fate of already acquired property (both movable and immovable, as well as property rights, etc.).

How to formalize the division of a house during a divorce using an agreement?

Determine the objects to be divided; if these are real estate (house, apartment, land), then the agreement must include all the details of this property (address, area, cadastral number, etc.). Remember that when dividing a house, the land is also divided.

The agreement must be drawn up in writing and also certified by a notary, so it is necessary, after completing the document electronically, to contact a notary office to have this transaction certified to you. Without notarization, this agreement will be invalid.

Since we are dividing real estate, which is subject to registration in the state register (Rosreestr), such an agreement will need to be submitted to the authorized body to make the appropriate changes.

Another way to determine the property relations of spouses is a marriage contract. Unlike an agreement on the division of property, this transaction is somewhat broader in content. So, for example, with the help of an agreement it is possible to determine the fate of property that has not yet been acquired and only possibly will end up in the property of the spouses.

So it can be stated that the house will be in the common joint property of the spouses, but after the divorce it becomes completely the personal (separate) property of the wife, and the husband is paid monetary compensation in the amount of 50% of the market value of the house.

How to draw up an agreement?

If you draw up a document in electronic form, it will be more convenient to hand it over to a notary.

We write down the provisions of the agreement, how the property will be divided, in what proportions, etc.

If it is necessary to divide a specific object, then the details of this property are used (Certificate of registration, number, series, cadastral number, footage, address)

We contact a notary, then state and other registers (if, in addition to the house, you decide to divide shares or other property)

We notify creditors of the conclusion of the agreement.

Perhaps the most drawn out and difficult way of dividing property. If the spouses fail to divide the property peacefully, then they have to go to court; perhaps this issue should be considered in a separate article. But for now we will describe how the court will most likely act when dividing such property.

And the cost of these objects is approximately identical, then the court can determine which spouse gets which house.

Then the court can completely determine the house to be the property of the spouse whom it recognizes as the less protected party in the dispute.

The court may simply determine ownership, for example ½ of a house. Or determine the market value of the house, while determining that the house completely becomes the property of one of the spouses, with compensation of ½ the cost of the house to the second spouse.

How to divide a house during divorce

Buying a home is always a very important step in the life of a family, because acquisitions of this kind are one of the most expensive purchases, perhaps in a lifetime.

It is very difficult to save money for a good house, therefore, as a rule, real estate is purchased using mortgage funds.

In this article, you will receive information about how to divide a house during a divorce, what division options exist, and what to do with the house if the mortgage on it has not yet been paid off.

It is worth considering that each case is unique, and solving a separate issue requires an individual approach.

To find out how to act specifically in your case, we recommend using a free consultation at 8 (499) 755-64-00 or write to us through the contact form.

So, the issue of dividing a house after a divorce is probably the highest priority immediately after deciding the issue of the further residence of common children; this property can be divided in the following ways:

• Sign an agreement on the procedure for sharing a common house after a divorce. This method is the least popular, because it is unlikely that the spouses will continue to live together after the annulment of the marriage, without thinking about further building their personal lives.
• The division of a house after a divorce can be done in such a way that the property in full goes to one of the spouses, who, in turn, pays the other monetary compensation in the amount of his/her due share.
• The joint house is sold to another owner, and the funds received from its sale are divided among citizens depending on their shares.

It is impossible to divide a house if it was purchased by the husband or wife before the wedding with personal funds or with the finances of the parents, and also property inherited by one of the spouses by inheritance or as a gift from close relatives is not subject to division.

However, every rule has its exceptions.

There are often situations when a residential building purchased before the wedding was in a condition unsuitable for comfortable living, and in the process of living together, the other spouse invested a large amount of personal money in this property, making cosmetic or major repairs to the building. In this case, the division of the house after a divorce is between both spouses, but in different shares, the main thing is to prove the fact that the second spouse spent money on restoring the premises.

In addition, it is important to know that if, during the privatization process, you give up your own share of this building in favor of your spouse, then it will no longer be possible to divide the house equally after a divorce. Having abandoned part of the property at one time, you will not be able to regain your rights to own this property and will only be able to live in this house with the permission of your spouse.

Methods for dividing a house when spouses divorce

According to the legislative framework of our country in the field of family law, the division of any property, including real estate, acquired during family life can be done in three different ways:

• Nowadays, it has become relevant to draw up a marriage contract, in which the spouses initially spell out all the conditions necessary to be fulfilled in the event of the dissolution of their marriage. Accordingly, it is in this document that you can prescribe the option of dividing the house in the event of a divorce. This contract has the highest legal force for the division of property, and the court will rely on the requirements of each citizen specified in it.
• In the process of family life or right before the divorce procedure itself, you can enter into a voluntary agreement in which you can peacefully agree on the division of the house after the divorce of the spouses, and all property in general.
• The last way to determine a part in a common house is to divide the property with the help of a court. In this option, only the evidence provided by both parties, as well as the high-quality defense of the lawyer, will play a role, but in one case or another, the decision will be made in strict compliance with the laws.

How to divide a house into shares after a divorce

The division of a house into shares is carried out only on paper, i.e. formally, and not directly by allocating a separate room for each citizen.

As a rule, if the house was purchased during marriage, the shares are divided equally between the ex-spouses.

But, again, when dividing a house into shares after a divorce, there are various factors that can influence the judge’s decision and divide the house into different shares for each citizen.

The main reasons for the uneven division of shares may be: the presence of common children who remain to live, for example, with their mother, who need more space for a comfortable stay, as well as the amount of personal investments of each spouse in the improvement or repair of a common house.

You need to understand that when choosing this method of dividing a house during a divorce, you will not have separate premises to which the other spouse will be prohibited from accessing. All property remains in common use, but each party knows what part of the property it can claim and what expenses it must bear depending on its share.

How to allocate a share in kind from a common house when spouses divorce

This procedure can be carried out either by mutually agreeing on exactly this option for dividing the house after a divorce, or by making a court decision. Which option you use is a personal matter, but initially you need to understand what steps you have to go through.

So, in order to allocate a share in a common house during a divorce, first of all you need to sign a voluntary agreement with the signatures of each citizen. In the document, both spouses should indicate how the common house was mutually divided and who gets which premises.

Next, it is necessary to redevelop the building in such a way that each citizen has a part of the house isolated from the other spouse.

After receiving a new extract from the Unified State Register of Real Estate, the spouses become the owners of two separate shares of the common house.

If the allocation of a share in a common house upon divorce of spouses is carried out through the court, then to all of the above steps, the court adds two more stages:

• an examination that will show whether it is possible to redevelop a common property without harming the structure;
• an appraisal examination, with the help of which an analysis will be carried out of the compliance of the allocated share of each spouse with his real part in this house, as required by law.

How to divide a house bought with funds from maternity capital

Maternity capital is provided to those families with more than two children. One option for using these funds is to invest them in real estate in which the family will live.

If a husband and wife decide to annul their marriage, then in order to divide a house purchased with funds from maternity capital, you will need to take into account a couple of nuances: any real estate purchased with these funds will belong to the family in general, and not just father and mother.

Accordingly, when dividing a house into shares between spouses, children will also be taken into account, since they are full members of this unit of society. Therefore, when spouses divorce, shares in the common house will also be allocated to minor citizens.

This means that the parent with whom the teenagers remain to live after the divorce receives both their share of the house and the shares due to the children.

How to divide a house with a mortgage during a divorce

As mentioned earlier, a mortgage is the best option for buying a home. As a rule, contracts for the purchase of real estate are concluded for a sufficiently long period of time during which the spouses can decide to dissolve their marriage. To divide a house with a mortgage during a divorce, you can use the following options:

• The purchased house is divided into certain shares between the spouses, and then each citizen contributes funds to pay off the mortgage in an amount equal to the size of his share.
• One of the spouses becomes the owner of the shared house, which is under a mortgage, taking on the obligation to further repay the loan. This option can be used if the mortgage agreement was drawn up shortly before the breakdown of the marriage, and the other spouse, due to his financial insolvency, cannot contribute money to repay the loan.
• The purchased house is sold to third parties, after which the mortgage debt is paid off, and the remaining funds of the ex-spouse are divided equally among themselves.