Is it possible to write out to a spouse when she redeems her share from the apartment (right 1/2), with a divorce? Thank.
Hello! upon redemption of its share you can write
If you redeem its share, then in case of its refusal to deregister voluntarily, you can do this in court.
if she has this desire, if she has other housing and her share is insignificant or accommodation is impossible (for example, one-room apartment). In the absence of the consent of the spouse, the solution of the issue only in court
My parents are divorced. Can I redeem a share of my father’s apartment during the division of property?
You can redeem after the section.
If father sells it to you, no problem. If the father does not want to sell, then you cannot.
When sharing the jointly acquired property of the spouses, the type of common ownership will be changed to share, each of the spouses will receive a certificate of registration of the right to share in the apartment.
Accordingly, at the will of the father to sell his share, you can conclude a contract of sale of the share of the apartment if you are an adult legally capable person.
Also, before selling a share to a third party, it is necessary to notify the owners of other shares by means of a notarial notice containing all the conditions of sale.
For more detailed information on your question, you can apply for a free consultation at the following address: 54a Lenin Avenue, office 117.
Sincerely, YurStandard Group of Companies. Polina Purtova
Ownership of the house
According to the provisions of the family legislation of the Russian Federation, all property acquired by husband and wife during the period of family life is considered joint property. Divorce does not entail termination of joint ownership. So, a joint home is subject to a fair division between husband and wife in equal shares.
So, regardless of whether the co-owners are married or not, they have the right to own property together, to dispose of it by mutual agreement or to make a fair division, and after that - to manage each of their shares.
Can children claim property of divorcing parents? No, according to paragraph 4 of Art. 60 SK RF, children do not participate in the division of parental property.
However, one should distinguish between joint and personal property. If the house was received as a gift or inherited by a husband or wife, if it was acquired by a husband or wife before marriage, it is considered personal property and is not divided.
So, the house, which is the subject of joint ownership, can be divided between the co-owners by agreement.
Before the house will be divided into shares, as well as before the shares will be allocated (if allocation of shares is possible), it is required to determine the size of the shares of each owner in the common property. As a general rule, the division of joint ownership implies the equality of shares, unless otherwise provided by law, court or agreement. Therefore, the owners can agree on an unequal division of the house, about which an agreement should be concluded - in writing with a notarial certificate.
If it is impossible to reach an agreement, you will have to contact the judicial authority for the division of the house. One of the co-owners can file a lawsuit, and the owners of the house can also file a joint statement of claim. The court should be contacted at the place of residence of the defendant or at the location of the house.
The separation of the house and other property does not have to be done simultaneously with the divorce. This can be done sooner or later.
Documents to the court
- Passports of co-owners
- Certificate of marriage or divorce,
- Birth certificate of a child,
- Prenuptial agreement (if concluded)
- Agreement on the division of property upon dissolution of marriage (if it was concluded),
- Title documents proving personal or joint ownership of the house,
- Valuation documents confirming the value of the house,
- Receipt of payment of state duty for filing a claim,
- Additional documents that may be required in special cases.
How is the division of the house in court? After filing a statement of claim and documents, it is necessary to take part in the court session, which, as a rule, is appointed after 1 month. Based on the results of the judicial review, the court makes a decision on the division of the house, which will come into force in 1 month.
How to split a house after a divorce?
So, if the house is subject to division into parts from a technical point of view, the court determines the shares of the co-owners and allocates shares in kind.
If, from a technical point of view, a division is possible, but the actual parts of the house do not correspond to legal shares, the shares are allocated in kind, but monetary compensation is assigned to that of the co-owners whose share is reduced after the division.
If the house is not technically subdivided, you will have to make an alternative decision:
- establish a sharing procedure and continue to be co-owners at home,
- transfer the house into the ownership of one owner and pay monetary compensation to another in proportion to his share,
- sell the house and divide the proceeds in accordance with the shares.
In any case, the court decision must be fair, the rights of co-owners should not be violated.
Sometimes divorcing spouses share an unfinished house. In this case, the actual division can only be carried out if the construction object meets the technical conditions, allowing to separate parts with the subsequent completion of construction. Otherwise, the section is performed using one of the above methods. In addition, the building materials required to complete the construction are subject to the section.
As mentioned above, the shares of the husband and wife in joint property are recognized equal, unless otherwise provided by a marital agreement or marriage contract.
However, family law allows for derogation from the principle of equal shares in exceptional circumstances.
So, first, the court determines the shares of each co-owner, after which it establishes which property is personal (which means it is not subject to division) and which is joint (therefore, divided into shares). After that, the court determines the procedure for the actual division, if any.
If the house was purchased with maternity capital
Separately, mention should be made of how to partition a house acquired using maternity capital. Such a house belongs to the whole family (including minor children) under the right of common shared ownership. From this it follows that during a divorce, the house will be divided not only between spouses, but also between other family members.
Minor children must necessarily obtain ownership of a share in the house acquired with maternity capital.
The size of the shares of each family member is determined in one of the ways - by concluding an agreement by adult family members or by going to court. Without the consent of the guardianship authority, it is impossible to make transactions with such housing. By the way, it is the guardianship and trusteeship body that can help to increase the proportion of the parent with whom the children will remain after the divorce.
If there are children
In most cases, the presence or absence of children does not significantly affect the court’s decision to divide the house. Family law says that property acquired in a marriage is shared only between husband and wife, while children cannot claim it.
However, as mentioned above, the Family Code allows the court, at its discretion, to increase the proportion of the spouse with whom the child remains. The court does not always take into account the presence of minor children in the process of division of real estate, however, if a petition is separately stated in the framework of the judicial process, the court will pay attention to this issue.
It should be noted that a parent who lives with a disabled child or with several minor children is more likely to increase the proportion. It will not be superfluous to place special emphasis on this circumstance in the statement of claim or in the petition for increasing the share in jointly acquired property.
Is the property of the child divided?
It should also be noted the following - property belonging to children cannot be shared between divorcing parents, regardless of by whom and by whose means it was acquired. The value of the property also does not matter - whether it be toys, a computer, a musical instrument or even a house. The child’s property is transferred to the parent with whom the child remains after the divorce, no compensation is paid to the second parent.
Note! In order to avoid a dispute regarding the property belonging to the child, it should be separately listed in the statement of claim.
Litigation of the section of the house with a child
Judicial practice indicates that the division of real estate takes into account the interests of minor children. A court decision is often made in favor of the parent with whom minor children or a disabled child remain - the court increases its share in the jointly acquired property.
The presence of a minor child provides another advantage - the plaintiff parent can appeal to the court at his own place of residence.
Note! The trial of the division of real estate takes place with the mandatory participation of the guardianship authority if the parents decide to sell the house. As a rule, the court calls the representative of the guardianship and trusteeship body at the hearing, however, the parties can obtain the necessary permission in advance and attach it to the statement of claim so as not to delay the trial.
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