So, what is maternity capital? Maternity capital is assistance from the state to families in which the second and subsequent children were born. This program has been running since 2007. According to the law, money allocated by the state can be spent on: improving living conditions, education of children or mother’s pension. However, during a divorce, disputes arise between spouses about what to do with maternity capital?

In order to avoid disputes, it is necessary to figure out which spouse owns the maternity capital? Only mothers or maybe it is common? Let's look at how to solve this issue using an example. So, a young family, having been married for several years, filed for divorce. They cannot resolve the issue of dividing property peacefully, and the wife turned to a lawyer for help.

The essence of the problem is that the husband demands that the property be divided equally. Including a house that was purchased during marriage. The wife and children are registered in the house, and it would seem that the house should remain with the wife, but the husband insists that the house was purchased with maternal capital, which means it should be divided equally. Although the funds with which the house was purchased belong to the wife, because it was she who sold her own apartment to buy this house.

The husband probably means the law, which states that all property acquired during marriage is divided in half. And he is right about this. However, if we talk about maternity capital, then many lawyers insist that the person who owns this capital, therefore the mother, can dispose of it. Based on this, the spouse has no right to the apartment, even taking into account the fact that it was acquired during a joint marriage.

It turns out that the capital belongs only to the mother and it cannot be divided. The entire remaining amount for the purchase of the house belonged to the spouse, which means that the house belongs to the wife and children, and cannot be divided in any way between the spouses. In order for this situation to be resolved in favor of the woman, she must document to the court that the money spent on the apartment belonged to her. If she manages to prove this to the court, then the apartment should remain with the mother and children.

In case of divorce, maternity capital cannot be divided between spouses. If the amount was spent on purchasing an apartment that was purchased when the spouses were legally married, then the wife will have to prove to the court that the money for the apartment was hers, in which case the court will give the apartment back ex-wife. If the funds for the apartment were shared, then the apartment belongs to the division between the spouses. But ex-husband may give up the apartment to pay off alimony.

Thus, the topic of dividing an apartment during a divorce is very complex and requires a competent approach. In order for the court to satisfy your requirements, you need to hire a competent lawyer who will tell you how best to proceed in a given situation.

Whether maternity capital is divided during a divorce is often of interest to spouses who have decided to end their marriage and have had a second (or third, etc.) child. Let's consider the general provisions on maternity capital (you need to know them to understand this issue), and also explain whether it is possible to divide this state payment in principle, which of the parents can claim it and how the property acquired using maternity capital will be divided.

General provisions on maternity capital

You can decide on the fate of maternity capital in the event of a divorce by familiarizing yourself with the general provisions of the legislation on the procedure for providing this payment, and the norms of the RF IC. Main normative document regulating the procedure for using family capital is the law “On additional measures of state support for families with children” dated December 29, 2006 No. 256-FZ.

Maternity capital, in accordance with clause 2 of Art. 2 of this legal act is a measure of support from the state and is paid to families from the federal budget. Financial assistance is transferred to the Pension Fund, which, in turn, provides payments to the final recipient. Government program is aimed at increasing the birth rate, stimulating it and helping those families who have the right to support.

Originally established by Part 1 of Art. 6 of Law No. 256-FZ, the amount of family capital is 250 thousand rubles. - was indexed more than once and as of 2018 reached 453,026 rubles. Since 2018, its annual increase taking into account the level of inflation has been suspended.

How and what can you spend your maternity capital on?

These funds, in accordance with clause 3 of Art. 7 of Law No. 256-FZ, can be aimed at the following purposes:

1. Purchase of housing under construction or finished housing.
2. Major repairs or reconstruction of existing housing.
3. Payment for educational services for one or more children.
4. Replenishment of the funded part of the mother's pension.
5. Purchasing goods and services necessary for a disabled child related to his adaptation to society.
6. Receipt monthly allowance, equal to the subsistence minimum per child, until he reaches 1.5 years of age, provided that the average per capita family income is less than 1.5 living wages per person in the relevant region.

By virtue of paragraph 1 of Art. 7 of Law No. 256-FZ, the holder of a personal state certificate can dispose of these funds. The options for its use and the procedure for registration are described in detail in our other articles.

How is maternity capital divided when spouses divorce?

Norms of paragraph 2 of Art. 34 of the RF IC indicate that the legal property regime of spouses presupposes the receipt of all acquired property into their joint ownership. Among other property, monetary payments from the state are also mentioned, which can be spent for any purpose.

Thus, state support, which has a special purpose and can be spent only on the purposes for which it is directed, is not joint property. By virtue of clause 3 of Art. 2 of Law No. 256-FZ, the certificate for maternal capital is a personal document and is issued to persons entitled to receive this state support and designated in Art. 3 of the same law.

Don't know your rights?

Consequently, maternity capital is not subject to division between spouses during a divorce, since:

• issued to a specific person;
• has a purpose (mostly related to the interests of the child);
• is not the joint property of the spouses.

Who will get maternity capital after a divorce?

Maternity capital after divorce is not divided and remains with one of the former spouses, similar to personal property. Who will receive maternity capital in the event of a divorce is determined by Art. 3 of Law 256-FZ: as a general rule, in two-parent families, the recipient of the payment is the mother of the second or subsequent child (that’s why the capital is called maternal capital). However, in exceptional cases provided for in paragraph 3 of this article, after the termination of the marriage relationship, the right to use state support funds passes to the father.

Among such cases, the law identifies:

• deprivation of mother maternal rights in accordance with Art. 69 RF IC;
• recognition of the mother as guilty of committing an intentional crime against her child, liability for which is provided for in Section VII of the Criminal Code of the Russian Federation (causing harm to health, violation of sexual integrity, involvement in the commission of a crime, etc.);
• declaration of the mother as deceased or her death.

In these cases, the father can use the capital himself, provided that he himself has not committed crimes and parental rights did not lose.

Divorce with a mortgage with maternity capital

So, maternity capital itself is not divided during a divorce, but in practice there are often situations when property, such as an apartment, was purchased with these funds. The division of an apartment purchased with borrowed funds (with a mortgage) in itself presents a certain complexity.

Within the meaning of sub. “d” clause 8 of the Rules for the allocation of funds (part of the funds) of maternity (family) capital to improve housing conditions, approved by Decree of the Government of the Russian Federation of December 12, 2007 No. 862, housing purchased with the participation of maternity capital funds must be registered in the common ownership of the certificate holder (or both spouses) and all his/their children. By virtue of clause 3 of Art. 224 of the Civil Code of the Russian Federation, housing acquired in this way must belong to the mother and children on a shared basis, since the legislation does not provide for a joint ownership regime of parents and children.

Consequently, the share of one of the spouses is the joint property of both (in the absence of other rules established marriage contract), and the children's shares remain directly behind them.

According to the general rule enshrined in paragraph 1 of Art. 39 of the RF IC, when dividing the specified part of the residential premises that does not belong to children, the shares of each spouse in it will be equal. Since the joint debts of the spouses, on the basis of clause 3 of this norm, are also divided in proportion to the share received, the obligations on the mortgage loan must also be divided equally.

So, maternity capital is provided by the state as an additional measure of support for parents of two or more children, as well as as a means of stimulating the birth rate. At the same time, it is a targeted payment, the certificate for it is personal. Matkapital is not subject to division either by agreement of the parties or in judicial procedure(at the request of one of the spouses or a creditor of one of them). As a general rule, the certificate is issued in the name of the mother and only in exceptional cases specified in the law can it be used by the father (or adoptive parent). The procedure for dividing an apartment purchased with a mortgage using capital funds is no different from the procedure for dividing housing purchased without maternity capital: the children’s shares remain theirs, the spouses receive their shares in the remaining part, the mortgage is divided in proportion to the shares received.

1. I have questions about maternity capital
1. After divorcing my first husband, I received mat capital, 5 years later I got married for the second time and we decided to buy an apartment without a mortgage using mat capital. Is my spouse entitled to a share if he has nothing to do with the children?
2. Who will be the owner of the apartment in this case?

1.1. If you buy an apartment only using maternity capital funds, then the owners of this apartment will be those who are indicated in the certificate, that is, you and your children.

2. After divorce ex-wife I bought an apartment with a mortgage and used maternity capital. Does the ex-husband have the right to a share in this apartment?

2.1. No, it does not, if at the time the wife filed an application for the use of maternal (family) capital, the spouses were already divorced. In this case, shares in the apartment are allocated only to children.

3. After the divorce, I bought an apartment using maternal capital in equal shares with the children, adding most of my own funds. To sell it I need permission from the children's father. Does the father of the children have a share of this in this apartment? If yes, which one? And after the child turns 18, do he need permission to sell and does he have the right to part of this apartment after 18 years? Thank you!

3.1. You need the permission of the guardianship and not the ex-spouse. If the apartment was purchased precisely after the divorce in court, the ex-husband has no rights to the shares. After 18 years, no consent is required from anyone except the owner himself.

4. Does the husband have the right to part of the maternity capital during a divorce, if after using the capital in the marriage, the capital was not distributed.

4.1. Hello, no, it does not.

5. After a divorce, the husband claims a share in the house built with maternity capital, 1 year has passed since the divorce, the house is registered in the name of his wife, the 1st owner. DOES THE EX-HUSBAND HAVE THE RIGHT TO A SHARE OR NOT? The statute of limitations is 3 years, but even after 3 years you can prove the right.

5.1. TO common property spouses includes property acquired during the marriage for general funds(Article 256 of the Civil Code of the Russian Federation, Article 34 of the RF IC). Maternity capital was received from the state free of charge. Therefore, the husband cannot lay claim to the property acquired with maternity capital. If he had been allocated a share, he would have been entitled to it.

5.2. You had to allocate shares to your husband and children. Your B\M can apply to the court with a claim for the allocation of the appropriate share. (v. 10 Federal Law dated December 29, 2006 N 256-FZ “On additional measures of state support for families with children”)

5.3. Housing purchased (built) with maternity capital funds is not subject to division.
However, if the housing was built with maternity capital during the marriage, then you are obliged to fulfill your obligation to allocate shares to all family members, including the husband. Thus, if you are still the sole owner of the property, then you have violated your obligations.
The prosecutor's office always checks the actual fulfillment of the specified obligation to allocate shares to all family members during the acquisition (construction) of housing and, in the event of a violation of the rights of any of the family members, goes to court with a corresponding claim.
Don't wait for a lawsuit, do everything required by law.

6. After a divorce, can my ex-husband claim maternity capital if I invest it in buying a home with children?

6.1. Hello.

Of course not.

6.2. Yulia, in such circumstances, you will be required to allocate a share in the purchased housing to your husband.

6.3. The ex-husband cannot claim any swearing funds. capital, nor a share in housing purchased using mat funds. capital.

7. After the divorce, the wife went with the children to the house she bought with maternal capital. I stayed in the house we rented with all our loans. Due to circumstances, I was asked to move out of this house. Because there was nowhere to go, I came to my ex. He explained the situation, saying it wouldn’t last long. But housing is tight, and wages plus loans do not allow me to rent any housing. After living for more than two years, she began to reproach me for everything, first with hints and now openly. To leave. I am not registered with her. What to do, what to do? I love children and they love me. Do I have the right to a share in this house? To just live.

7.1. No, he does not have the right to this house.

7.2. Hello!
In order to answer the question you asked, it is necessary to understand when the house was purchased? If you are married, then you have the right to 1/2 share in the common ownership of this house, regardless of whether a mat was inserted there. capital or not. If the situation is different, you should describe it in more detail.

7.3. If the house was purchased during marriage, then you have the right to legally demand recognition of your share in the ownership of it. If after registration of divorce, you cannot claim a share in the house.

8. Please tell me, my husband and I bought a house with maternity capital; after a divorce, can he sell his share to a stranger.

8.1. Hello, Elena.
Yes, it can, but first I must offer you a buyout on the basis of Art. 250 of the Civil Code of the Russian Federation.
According to Art. 250 of the Civil Code of the Russian Federation When selling a share in the right of common ownership to an outsider, the remaining participants in shared ownership have the preemptive right to purchase the share being sold at the price for which it is sold, and on other equal conditions, except in the case of a sale at public auction, as well as cases of sale of a share in the right common ownership of a land plot by the owner of a part of a building or structure located on such a land plot or by the owner of premises in the specified building or structure.

8.2. First, I must definitely offer it to you, in writing.

8.3. Good afternoon Write a claim to the store for an exchange of goods or a refund. If your claim is not satisfied, you will need to go to court.

9. Please tell me how to share after a divorce an apartment that was purchased with maternity capital and part of the money.

9.1. Hello! You can make a division in 2 ways: 1) voluntarily, by agreement, determine the shares (for yourself, your husband, your children); 2) determine shares in court at the discretion of the court.

10. If the house was bought with maternal capital and after a divorce, does the ex-husband have the right to demand division of the house.

10.1. Hello Svetlana. Yes, it has.

10.2. Hello, Svetlana, at in this case Your ex-spouse has the right to go to court with a claim for division of property. Requirements for the division of a house purchased using maternity capital will be considered taking into account the interests of the children.

11. Maternity capital was invested in the construction of a house, after the divorce the construction stopped, the land was registered in the name of the ex-husband, it is not possible to live on this plot. Recently I learned from random people that my ex-husband is selling this area, is it even possible? Tell me what to do in this case, how to return the money to the state? In fact, there is no housing and no maternity capital either. I really need advice.

11.1. Hello, the land plot and the unfinished capital structure must be recognized as jointly acquired property and divided in court.
Currently, it is necessary to submit an application for a ban on registration actions to Rosreestr regarding alienation to third parties.

12. After a divorce, I purchase an apartment using maternity capital, but there is an outstanding loan - do bailiffs have the right to take this apartment?

12.1. Hello.
If this apartment is your only home, then they can NOT, if you take out a mortgage to buy it, they can, if there is other housing, they can.

12.2. I agree with Federal Law 256 when buying an apartment for obscenities. the capital in it will have to be allocated shares to children.
Therefore, they will be able to seize it if the credit organization goes to court, but they will not be able to take it away.
And when the children reach adulthood, the deadlines will all expire and the arrest will be lifted through the court.

12.3. They won’t be able to take it away, but they can impose a ban on registration actions until the debt is repaid.

13. After a divorce, I buy an apartment with a mortgage using maternal capital... does my ex-husband have a share in this apartment?

13.1. After a divorce, the ex-husband loses the right to a share when using swear words. capital.

13.2. In accordance with Part 4 of Article 10 of the Federal Law of December 29, 2006 N 256-FZ (as amended on October 30, 2018) “On additional measures of state support for families with children”

Article 10. Direction of maternal (family) capital funds to improve housing conditions

Residential premises acquired (built, reconstructed) using funds (part of funds) of maternal (family) capital are registered as common property parents, children (including the first, second, third child and subsequent children) with the determination of the size of shares by agreement.

According to the law, your ex-spouse is the parent of the children, and therefore has the right to a share.

14. My husband and I bought a house with maternal capital! Now we are divorced! After the divorce, does he have a legal connection to this house or not! Can I now register a person without his permission?

14.1. Yes, he is the owner and you cannot register it without his consent.

14.2. Hello. A house purchased by spouses during marriage is jointly acquired property. Divide the house through court in kind. Register your part of the house with the Registration Chamber. Draw up a house register and register whoever you want in your half. Good luck. If you need help, please contact 89283473099

15. After a divorce, can a man return part of his maternity capital if he used it to buy a house for 310,000 rubles before the divorce, and used the rest of the money to buy materials for the house?

15.1. If you have a share in the house, then up to the share you can claim. If you refused your share, then you cannot.

15.2. No, he has the right to a share in the ownership of this house.

16. The question is this. There was a divorce on the apartment with a mortgage. If after the divorce I contribute maternity capital as part of the mortgage repayment, will I allocate 1/2 of my share of the apartment to the children?

16.1. Galina, no, your apartment will be divided into shares according to the number of children and you and your ex-husband. For example, if there are two children, then each should have 1/4 share.

17. After a divorce, does a mother have the right, when purchasing an apartment using maternity capital funds, not to allocate a share? ex-spouse?

17.1. Hello. The share of the spouse, even the former one, must be allocated.

18. We bought a house with maternity capital after the divorce. But we live and manage the household together. The wife allocated 1/3 shares for herself and the children. Can we conclude an agreement on the redistribution of shares, 1/4 to each? Or sue?

18.1. Hello! If your wife is not against it, then you can redistribute it by agreement; if she is against it, then only in court and there is little chance since the house was bought after a divorce.

19. Division of property after divorce; a house was purchased using maternity capital; how to submit an application correctly.

19.1. Hello! You need to handle statement of claim to the court for the division of marital property.

20. The apartment was purchased during marriage using maternity capital; after a divorce, when selling the apartment, does the ex-husband have a share?

20.1. You need to look at the documents; as a general rule, if an apartment was purchased possibly during marriage by one of the spouses, then it is common property and is divided between the spouses in equal shares.

20.2. The law “On measures of state support for families” (Part 4, Article 10) states that housing purchased with maternal capital must be registered as the common property of both parents and children (and all children, and not just those which became the reason for receiving money from the state). Each person gets their share.

Therefore, the husband will have a share in the division of property.

21. After a divorce, is it possible to purchase property using maternity capital? And will the ex-husband claim a share?

21.1. You can buy real estate and yes, you need to allocate a share to your husband.

22. The ex-wife involved maternity capital after the divorce, but did not allocate the share to the child. Where can I go to get checked and forced to allocate a share?

22.1. Hello. If you want to challenge this transaction, then you need to file a claim in court.

23. After the divorce, I purchased real estate with maternity capital. The ex-husband went to court and wants a share in this house! What does this mean for me?

23.1. Hello. I don't think there's any danger. In the worst case, you will have to allocate a small share to him.
All the best to you and successful resolution of your problems.

24. I received maternity capital when I was married. After divorcing my husband, I bought an apartment with a mortgage. According to the notarial obligation, I must allocate shares to all members of my family. Should I, after removing the encumbrance from the apartment, allocate a share to my ex-husband?

24.1. Hello, Olesya!
You need to study documents related to your situation. How you received the money and bought an apartment after the divorce is not entirely clear.

25. After the divorce, the husband found out that the apartment purchased with maternity capital was registered only in the name of the spouse (according to the Unified State Register of Real Estate) Where to go?

27. After a divorce, can an ex-wife take away the share of a house purchased with maternity capital?

27.1. No, your ex-wife cannot take away your share.

27.2. Hello! How to understand take away?! If the property belongs to you, then you have the right to dispose of it at your own discretion.

Alas, sometimes young people cannot withstand the difficulties that the family life. 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 legal right manage 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, state 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 mothers are provided with an undeniable right of disposal, regardless of whether they are on this moment 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 is conducting 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.