Recently, many owners of residential premises are increasingly wondering how to divide an apartment into shares. This is possible and the current legislation does not prohibit such actions. However, the procedure depends primarily on who currently owns the apartment in full or in shares.

If the apartment is fully owned by one person, then he has the right to sell, donate the entire apartment or a share in it to any person at will.

If the apartment belongs to several persons in shares, then each share owner has the right to dispose of his share as he pleases.

However, if a share in a privatized apartment is to be sold, then the other share owner must be notified in advance and offered to buy the share, since the other owner has the pre-emptive right to purchase. This rule does not apply to legal relations on the gift of a share.

The right to share ownership and the size of shares

Right fractional ownership regulated in Art. 244 of the Civil Code of the Russian Federation, and the conditions for the disposal of shared property are fixed in the Federal Law "On state registration real estate” dated July 13, 2015 No. 218-FZ. Thus, the shares of individual owners are determined for a single object of immovable property. At the same time, transactions that can be carried out with a share owned by the right of ownership must be notarized and registered with the Rosreestr authorities.

The size of shares can be established depending on the grounds for the emergence of shared ownership. The share in the right of common shared ownership is usually expressed as a fraction and is indicated in the certificate of state registration of ownership. In accordance with the norms of civil law, the shares of the participants are assumed to be equal, unless otherwise follows from the law, the contract or the essence of the relations that have developed between them.

An important circumstance is that each participant has the right to dispose of his share in the right common property independently - to sell, give and so on.

The size of the share in the right of common shared ownership can be changed depending on various reasons: a change in the composition of participants, the introduction of improvements made by the owner to the real estate object, etc.

Important! The exercise of the right of common shared ownership occurs by mutual agreement of all owners. If the co-owners do not have agreement on the issues of ownership and use of common property, then they have the right to resolve the dispute in court.

The right of each participant to dispose of his share in the common property is real and protected by law from encroachment by the owners of other shares, if this right is properly executed.

How to divide an apartment into shares?

The grounds and types of division of common shared ownership, as well as the division of a share in the right of common shared ownership, are different. At the same time, if a share of any of the participants is allocated, then the right of ownership for him is terminated. But in both cases, such actions are possible both with the consent of all co-owners, and by a court decision.

It is possible to divide an apartment into shares in three different ways:

• by concluding an agreement on the division of shares in the apartment;
• entering into a marriage contract;
• judicially.

Agreement on the division of shares in the apartment

I would like to note that the common ownership of real estate can be both shared and joint. In the first case, the shares have already been determined and each owner has a certificate for a specific share in the apartment. In the second case, the shares are not defined.

Joint ownership arises on the property of the spouses (if there is no marriage contract or agreement on the division of property, or if the shares are not defined), on property in dacha cooperatives, on property farming(if there are no agreements on the definition of shares).

In other cases, shared ownership is formalized when the size of the share is indicated in the ownership documents.

If your apartment is in shares, then it makes no sense to determine the shares, since it is already divided into shares. If one of the persons wishes to increase his share, then the other person must sell or donate the entire share or part of it.

In most cases, the agreement on the determination of shares in real estate is concluded by the spouses.

An agreement on the division of property between spouses is the most variable document, its provisions are determined by the spouses themselves at their own will and consent, in contrast to a marriage contract, the terms of which are strictly regulated by law.

In the agreement on the division of property by shares, it is necessary to indicate what property and in what shares is determined for each of the spouses. Also, according to the established practice, the agreement prescribes:

• name and details of the parties;
• the subject of the agreement;
• rights and obligations of the parties;
• their responsibility;
• settlement of disputes;
• final provisions on the entry into force and the procedure for its termination.

In addition, the division of shares in the apartment to children and the spouse is necessary in case of acquiring real estate with funds maternity capital. Shares are allocated after the repayment of a loan or mortgage obligation. Spouses, by their agreement, have the right to allocate any shares in real estate to themselves and their children and their size is not limited by law.

Marriage contract

Spouses can share the apartment both during the period of marital relations and after their completion. At the same time, if a marriage contract was concluded between the spouses, then it determines the method of allocation of property assets. A prenuptial agreement may define different property regimes for spouses:

1. shared ownership;
2. joint property;
3. individual property.

When concluding a marriage contract and determining shares in the event of a divorce, the spouses do not need to find out how to divide property assets, since they are already fixed. It is worth considering the fact that the marriage contract is notarized and has legal force both during the period of marriage and after the termination of the marriage, until property disputes are resolved.

Judicial section

If during the period of divorce, a marriage contract was not concluded between the spouses and a voluntary agreement was not reached on the division of jointly acquired property, then it is necessary to file a claim with the court. The partners' shares in the apartment, in this case, may be recognized by the court as equal.

The term for filing such an application is general and is three years. That is, if the spouses divorced, then one of the participants in the former marital relationship can file a claim with the court within three years.

When submitting an application for the purpose of allocating a share in an apartment, the plaintiff has the right to indicate the option for dividing the joint property and even which share he preferred.

Important! When the shares of each of the spouses are determined in court, they should be properly registered with Rosreestr, only in this case the allocation of the share will be legally fixed.

Judicial practice shows that such disputes often end in the division of jointly acquired property in equal shares. If such a division is impossible in principle, then one of the spouses may provide the other with compensation in monetary form and own the apartment as the sole owner. The amount of compensation is determined in proportion to the value of the share of the second participant.

Dividing an apartment into shares

The available options for dividing an apartment into shares directly depend on the legal regime of the property assets of each of the participants in the common property. In accordance with Art. 254 of the Civil Code of the Russian Federation, property is joint property if the shares of each participant are not defined in it. Consider the most common options for dividing an apartment into shares.

Separation of shares from joint property

When allocating a share from joint property, it is necessary to comply with the following conditions established by Art. 254 of the Civil Code of the Russian Federation:

• separation of the share of one of the co-owners is possible only after a preliminary determination of the share of each of the participants in the right to common property;
• when allocating a share from common property, unless otherwise provided by law or by agreement of co-owners, their shares are recognized as equal;
• the procedure for allocating a share from the common property is carried out within the framework established by Art. 252 of the Civil Code of the Russian Federation.

Any participant in shared ownership has the right to demand the separation of his share from the common property. If a division in kind is not possible, since the damage to the common property in such a case would be disproportionate, then the other participants must pay compensation to him in proportion to the value of his share. As soon as the funds in the form of compensation are received by the participant, his ownership of the share ceases.

If the apartment is privatized

The right to own housing can be obtained by privatizing the apartment, which the participants received on the terms social recruitment. For privatization, one should write a joint application to the local authorized body and obtain a privatization agreement. It is in the privatization agreement that it will be written which part (share) of the apartment will be assigned to each. In this case, the right of ownership will arise only after the state registration of the contract in Rosreestr.

After registration, the division of an apartment between co-owners can be done in the following ways:

• each citizen is given a share established as a result of privatization;
• distribution of property assets equally, if a joint form of ownership has been established;
• if the property was acquired during marriage by the spouses, then the division of the apartment after the divorce is carried out either on the basis of a marriage contract, or by concluding a voluntary division agreement, or in a judicial proceeding.

If the apartment was bought for maternity capital

If an apartment was bought by a family using maternity capital, then it is drawn up between family members by shares. Also, the acquired apartment (room, house) can be registered as the property only for children. In this case, after the dissolution of the marriage, the housing will not be included in the jointly acquired property of the spouses and is not subject to division.

If the apartment is registered for all family members, then when dividing the apartment in the event of a divorce, each participant gets the share that is registered for him in the title documents.

Of no small importance is the size of the maternity capital and the cost of the acquired housing. If parents add a smaller amount for the purchase of an apartment than maternity capital, then the living quarters must be registered for the children.

If the apartment is in a mortgage

If the apartment was acquired by the spouses during the marriage with the help of mortgage lending, then in accordance with the Federal Law of July 16, 1998 No. 102-FZ “On Mortgage (Pledge of Real Estate)” and Art. 37, art. 39 of the RF IC, it is recognized as jointly acquired property and is subject to division in equal shares.

At the same time, the bank can analyze the solvency of each of the partners, and on the basis of this, it has the right to offer to sell mortgage housing, pay off the debt on mortgage loan, and the remaining from the sale cash to be divided equally among the spouses.

If one of the spouses wants to keep the apartment for himself, then the option of buying out the share of the other co-owner is possible.

How many shares can the apartment be divided into?

The legislator leaves this issue to the discretion of the owner. That is, in this case, the principle of freedom of disposal of one's property applies. The owner has the right to divide his property into 2,4,10,100,1000, etc. shares. No restrictions have been set.

However, the definition of shares in real estate, from the point of view of the possibility of subsequent disposal of one's shares, is inappropriate.

Important! Having presented or sold his share to any person, the owner loses the right of ownership to this share. That is, it will be possible to dispose of only your share. Of course, the other co-owner will not be able to sell the share without prior notice to the other co-owner. However, this obligation is well managed in practice, by donating part of the share to a third party with subsequent sale.

After all, it will be unpleasant to live in an apartment or a private house with strangers, and if an agreement is not reached on the procedure for using the property, it will have to be established in court.

That is, the determination of shares in real estate is always associated with the risk of improper performance or non-fulfillment of obligations for the possession, use, disposal of shares by another share owner.

So, in this article, we examined the nuances of dividing real estate into shares, concluding an appropriate agreement and possible obstacles if you want to alienate a share.

ATTENTION! In connection with latest changes in legislation, the information in the article could be out of date! Our lawyer will advise you free of charge - write in the form below.

At the legislative level, the procedure for separating accounts is called "allocation of a share in the payment of housing and communal services."

By law, each owner of a part of a privatized apartment has the right to pay only for his part of the services provided.

Accounts are generated taking into account the following factors:

1. The total area of ​​the premises.
2. List registered in the apartment.

This information is subject to accounting when drawing up contracts for the provision of housing and communal services.

By default, the contract is drawn up with one of the owners of the residential premises. The owner of a part of the living space, with whom the contract is signed, is issued a receipt for payment for services. All other owners are jointly and severally liable.

At the same time, the law allows for the allocation of a share of the payment to each owner of the premises and the formation of a separate account. The procedure for the procedure is contained in and 249 of the Civil Code of the Russian Federation and 155 of the LCD of the Russian Federation.

The process is possible subject to the following requirements:

The property should be privatized. Cannot take action in public housing, since the local government is the sole owner of it, and the residents act as tenants.

The owners of the generated accounts must be the owners. If the apartment is joint property, without determining the shares of each, division cannot be made.

The division is made on the basis of certificates for real estate. Family relations between property owners are not taken into account when forming separate payments.

The division of accounts in a one-room apartment is not allowed by law.

Grounds and reasons

Separation of personal accounts in a privatized apartment by shares, allows you to calculate the amount of payments for payment of housing and communal services directly for each tenant.

Such a need arises most often when divorced spouses, strangers, families living together under the same roof live together.

How to divide a personal account in a privatized apartment?

If you need to take action, the situation can develop in two ways:

Division through the UK

This option is possible with the consent of all owners.

In this case, from each owner to the address management company an application must be sent, to which a copy of the Certificate of Ownership should be attached.

Managers will accept all applications and make calculations on the distribution of payments in proportion to the shares in the apartment. From now on, several invoices will be issued for one dwelling, according to the number of persons owning real estate.

Each owner will be able to pay their part of the amount of housing and communal services and liability for the debts of the co-owner will not apply to him.

With the help of the court

Carrying out the procedure by filing a claim with the judicial authorities is the only way to solve the problem in case of disagreement with the division individuals. The initiator of the process must submit an application demanding the division of personal accounts in accordance with the shares in the premises.

Attached to the application:

1. Applicant's passport.
2. Technical documentation for housing.
3. Extract from the house book.
4. Certificate of ownership.
5. Copy of personal account.
6. State duty receipt (300 rubles).

The application is submitted to the district court for the location of the property.. The case is being considered in simplified procedure that does not require the presence of all property owners.

The meeting takes place 30 days after the receipt of the application., then within 10 days the applicant receives a decision on the basis of which the accounts are divided after applying to the Criminal Code.

The statement of claim to the court must contain the personal data of the owners, the reasons for the separation of the l / s, information about the living quarters.

In the main part of the claim a request is made to determine the procedure for payment of housing and communal services in accordance with the shares in the premises and the requirement to oblige the Criminal Code to make the actual separation of payment documents. At the end of the claim, the documents attached to it are listed.

The reason for going to court may also be a situation where, with the consent of all owners of the Criminal Code, it refuses to carry out the procedure for dividing receipts.

Such actions of managers are a violation of Russian law.

Alternatively, you can file a complaint with the prosecutor's office about the illegal actions of the Criminal Code.

Writing an application to the Criminal Code

There is no strict form, therefore it is drawn up according to the general rules for compiling business papers.

The application must contain the following items:

1. The name of the organization to which the applicant is applying.
2. Applicant's personal details.
3. Information about owners of additional accounts.
4. Information about the distribution of shares of the premises.
5. Owner's signatures.

Separating accounts in an apartment does not mean turning it into a communal one.

In addition, this action does not entail the redistribution of shares between the owners, in relation to real estate, each of them remains in their own interests.

Restrictions

Disputes over payment of housing and communal services arise not only between the owners of the premises, but also between the owner of the premises and the residents registered in it. According to law the invoice can be issued exclusively for the owner of square meters.

If, besides him, other persons are registered in the apartment, they must pay utility bills on a voluntary basis. The allocation of accounts to citizens registered in an apartment, but having shares in it, is not provided for by the legislation of the Russian Federation.

Separation is also impossible in an apartment registered in joint ownership.

In this situation, you will need to start with the procedure for allocating shares.

The owners of the premises should contact the notary's office to draw up and sign an agreement on the allocation of shares.

The procedure is carried out in accordance with the regulations described in Article 16 of the Civil Code.

After signing the agreement on the allocation of shares, the owners of the premises must apply to Rosreestr to obtain Certificates of Ownership.

After receiving this document, the division procedure is carried out in the order described earlier.

If it is not possible to achieve participation in the payment of housing and communal services by all owners of the premises on a voluntary basis, the separation of l / s - the smartest way out.

Each property owner will only pay for his part of the consumed services, and the reasons for conflicts will disappear by themselves. We hope our article was helpful to you.

Useful video

This video contains the recommendations of a lawyer on the division of l / s in a privatized apartment, by shares:

If you find an error, please highlight a piece of text and click Ctrl+Enter.

But if you cannot sell the apartment as a whole, then you can sell your share in the right of common shared ownership of the apartment to an outsider. How to divide an apartment into shares if there is one owner, and if agreement is not reached - in the manner established by the court. A participant in shared ownership has the right to provide for his possession and use of a part of the common property commensurate with his share, and if this is not possible, he has the right to demand appropriate compensation from other participants who own and use the property attributable to his share. Each participant in shared ownership is obliged, in proportion to his share, to participate in the payment of taxes, fees and other payments on common property, as well as in the costs of maintaining and preserving it (Article 249 of the Civil Code of the Russian Federation) , 30 km from Moscow Ring Road.

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Attention

Our Comment Before Considering possible ways To solve this problem, let us recall some of the provisions on shared ownership. If the apartment is in the shared ownership of several persons, then a specific share of each owner in the right of common ownership of the entire apartment is established. For example, an apartment may be in the shared ownership of three persons, while each of them does not own the entire apartment, but only its share.

These shares may be equal (for example, each owner owns 1/3 of the share of the apartment), but they can also be unequal (for example, one of the owners owns 1/2 of the apartment, and the other two - 1/4 of the share). The determination of the size of the shares of each participant in shared ownership is established by law or by their joint agreement.

Five ways to legally divide an apartment

Privatized housing is considered to be housing transferred by the state into ownership in private hands. The right of common shared ownership is regulated by Article 244 Civil Code Russian Federation. Various circumstances may lead to the need to divide the privatized apartment between the owners.
1

Info

In cases where only one of the spouses participated in the process of privatization of property, the second does not have the right to a share, since this form of transaction is free of charge. Such property is not subject to division. In all other cases, each owner of a share has the right to allocate his share in kind or receive an equivalent amount of money. 2 It is possible to divide a privatized apartment either by mutual agreement of the owners, or in a judicial proceeding. In the first option, housing can be exchanged or sold, the second option is applied if one of the owners does not agree with the section.

How to share a privatized apartment

Print publication Add to bookmarks The acquisition of residential premises in common ownership by several persons has long been a widespread phenomenon. The law gives the owner the right to independently dispose of his share: sell it, having received a certain amount of money, donate it, bequeath it, etc. However, when faced with this problem in practice, it turns out that everything is not so simple.
The procedure for making transactions with an apartment that is in shared ownership, as well as with individual shares of this apartment, has its own characteristics, which may limit the ability of a shared owner to dispose of his share. Let's try to understand these problems on specific examples of our readers who have applied to us for legal assistance.

How to sell an apartment if the second owner is against it?

As illustrative examples, consider several options when a section of an apartment is required. Division of the apartment in case of divorce No family is immune from divorce. And often in such cases, you need to think about the division of joint property.

In fact, there is no secret or certain difficulties here. But there are some circumstances that can reduce the share of one of the spouses, or reduce it altogether. How to sell a share if the 2nd owner is against it? Accordingly, shared ownership implies that the shares of the spouses have already been established, and each at the dissolution of the marriage receives his share, which he has the right to own, use and dispose of at his own discretion.

Of course, one of the simplest and, probably, fairest ways to resolve your issue is the joint sale, by you and your ex-wife, of the entire apartment and the division of the amount of money received equally.
Part of the apartment due to one of the spouses may be replaced by the court for monetary compensation. 3 A non-privatized apartment cannot be sold. In a divorce, it must be divided between the spouses in equal shares. If the spouses do not want to live in the same apartment, it can be sold with preliminary privatization.

4

The presence of children in the family makes its own adjustments to the court decision. By decision of the court, the part of the husband's or wife's housing may be increased if small or non-working adult children live with them. In this case, the reason for the unequal division of the apartment may be the refusal of the spouse to pay alimony or their insufficient amount.

5 In a situation where an apartment was bought by one of the spouses before marriage or received as a gift (by inheritance) during marriage, he is not obliged to share it with the second spouse.

If the apartment has one owner, how to divide it into a second owner

If the share of one owner is less, but he uses the apartment to a greater extent, then it is advisable to determine the part of his expenses in a certain sum of money or attribute most of them to him. This option is also possible in situations where a person, being the owner of a share, actually lives elsewhere and pays for a communal apartment there. Then, by agreement, he can only pay maintenance costs and pay heating fees.
All other services are paid, according to the readings of metering devices, by the owner living in a common apartment. When drawing up an agreement, its parties have the right to determine any mode of payment that is convenient for them and does not contradict the law. If previously existing agreements change, then an amendment to the agreement is required, which are also certified by a notary.

Such an agreement must be notarized, and then presented to operating company. In turn, the service organization, in accordance with the terms of the agreement reached, calculates the amount of payments and issues a separate document to each owner. Additionally, the CC may require such documents as:

• application from each owner to provide him with a separate invoice for payment of services
• copies of certificates of registration of shared ownership
• extract from Rosreestr
• data on the place of residence, in cases where the owner of the property is registered at a different address
• information about the verification of metering devices
• when paying payments on separate accounts (gas, telephone, Internet, etc.);

• Shared ownership of housing: how to divide, sell and rent

• How to divide an apartment during a divorce, if the owner is a husband or wife, if there are children

• Kommunalka "in parts
• Rules of good conduct for owners of apartment shares
• Profession Realtor
• How to re-register a share in an apartment
• The nuances of selling an apartment in shared ownership
• How to sell a share if the 2nd owner is against it?
• How to divide an apartment into shares if there is one owner
• Deal with an apartment in common ownership: beware of apartment invaders
• Sale of a share in real estate in the absence of one of the owners

How are the shares of two owners actually allocated in a 1-room apartment? It will not work to make a communal apartment out of such an apartment due to the fact that two rooms cannot be made from one room.

But in this case (when the allocation of a share in kind is not allowed), the law allows the separated owner (wife) to demand payment of the value of his share by other participants in shared ownership (husband). Therefore, the wife has the right to make such a claim in court. In practice, this option has significant drawbacks.

Important

The first drawback is related to the assessment, i.e., to the determination of the value of the share of the separated owner (in this case, the wife). Already at this stage, a dispute is inevitable: it is beneficial for the wife that her share be priced as high as possible, while the husband benefits from the lowest possible assessment. Consequently, each party will be forced to order its own assessment from an independent appraiser.

It is still unknown what the court will decide (with what assessment it will agree).

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Divorce today no longer surprises anyone, and this event has become the norm. Regardless of how long both spouses lived together. An acute problem during the divorce process remains. According to article 34 of the Family Code of the Russian Federation, all jointly acquired property during marriage after a divorce is divided equally between the spouses. But many people ask the question, to what extent does this right apply if the apartment was issued under a privatization agreement? I would like to say right away that this type of housing is also subject to division, however, given its special legal status, this is not done on a general basis. What features of the section imply? We have provided a solution to this topical issue in our article.

Privatization is the transfer of state or municipal immovable property to the personal property of a citizen on a gratuitous basis. In practice, the essence of privatization is that a citizen who lives in a house or apartment under an agreement concluded with the state can get it for himself absolutely free of charge. Not all citizens of the country can use this right.

The right of privatization cannot be exercised more than once. The transfer of property into possession can occur both to a citizen living in this apartment, and to the whole family. Then everyone will get their share. It all depends on the number of participants in the transaction. Also, if the spouses are married and one of them does not want to participate in the privatization procedure and tax payment, then he can refuse it. But then he does not have the right to claim this housing after a divorce.

That is, privatization is quite profitable proposition, however, in order to use it, you previously had to move into a state-owned apartment by social program. Living in it without privatization, you have no right to this property and cannot dispose of it. Therefore, many families, without hesitation, privatize an apartment, and when they decide to get a divorce, they puzzle over how this property is divided according to the law?

The question of the division of privatized property is answered by Federal Law No. 1541, as well as the Family and Housing Code.

When division of property is not possible

If one of the spouses, before or during marriage, received property in his name under a gratuitous transaction, then such property is considered his personal property, and therefore is not subject to division (Article 36 of the RF IC). According to the prescribed law, if you single-handedly privatized an apartment, regardless of when it happened - before marriage or during an already registered family, then neither the children nor the second spouse after the divorce have the right to claim a share of this housing.

The only right acquired by the second spouse, who did not participate in the privatization procedure, is full free living in this apartment after the divorce, until he finds himself a new home. This condition is also preserved if the second spouse has a residence permit in this apartment, especially if common children registered at this address live with you.

The problem of such a condition (further cohabitation of the family, even after the officially adopted decision to divorce the spouses), imposes restrictions on the possibility of carrying out any legal actions with the apartment - to sell, exchange, rewrite. This creates certain difficulties and inconvenience. But, despite this, the legislative side has nothing against and cannot forcibly evict other family members from the apartment if they previously refused to participate in the registration of privatization rights, but are registered in the apartment.

How shares are distributed

Shares are distributed depending on whether a particular family member participated in the privatization deal. If the spouses during the marriage for two issued an apartment, then after the divorce it will be divided equally. They can sell the apartment or exchange, thus everyone will take their part. If the shares are different, then the property is divided according to the specified shares in the contract. An important moment is the presence of children, who are also assigned property shares. If the children stay with one of the parents, then their share is summed up, thus it will be more than that of the other, therefore, according to general rule the apartment remains with them, and the second spouse is paid financial compensation or other equivalent, calculated this share, property.

How to share privatized property

The ideal option is considered to be the case when both spouses acted as tenants of an apartment under a social program, later jointly carried out the privatization procedure and entered into ownership of housing. Then the apartment after the dissolution of the marriage will be divided according to the fixed shares under the contract. In such cases, usually disputes do not arise, unless the issue of the residence of children arises. And if the privatization of the apartment took place without a clear allocation of shares, then this problem is solved through the judiciary on a common basis. It all depends on the specific family situation, shares can be divided both proportionally and disproportionately.

The issue of division of property, including privatized property, is discussed in more detail in Articles 33-39 of the Family Code.

By mutual agreement

If the spouses are in good relations, they want to disperse peacefully without involving the judiciary, then it is better to discuss all aspects of the division of property together and come to a mutual agreement. So that after a divorce, everyone fulfills their agreements and does not change the decision in their favor, this agreement must be notarized in order to give it legal force. As a result of the fact that the contract is marked and signed by a notary, it will be extremely difficult to challenge such an agreement in court. It is better to draw up an agreement before filing for divorce so that the court cannot appeal against its effect. Resolving the issue by mutual agreement is a quick and easy way to resolve issues related to the divorce process (Article 38, Article 2 of the RF IC).

Under the terms of the marriage contract

The next option for the division of property by the decision of the spouses is the conclusion of a marriage contract. It can be drawn up before marriage or after entry. The marriage contract is also concluded in the presence of a notary, after which he not only signs it, but also attaches legal effect, but also checks for correctness of compilation. Subject to this rule, the provisions of the Family Code do not apply, but are replaced by the clauses of the marriage contract.

It must indicate the procedure for dividing property, the rights and shares of each of the spouses, their size. They may be equal or unequal. By . A separate clause should be devoted to the interests and rights of children, even if they were not yet born at the time the contract was drawn up. Although many people today are not disposed to such a solution to problems, this document will save you from lengthy litigation.

Through the court

The division of property through the court occurs in the absence of the above agreements or if the spouses do not come to a common opinion. This process is not a quick one, it exhausts the morale of both spouses, and is also quite costly. To start the division procedure, it is necessary to file with the district court and, accordingly, about the division of property (if the spouses have not previously been divorced through the registry office). A lawsuit is accepted by the court if one of the spouses does not agree with the terms of ownership of privatized property after a divorce.

Sometimes, after consideration by the bailiff of the case, arguments, documents, the decision may not always be made according to the established rules, the shares may be changed. An increase in the share of one of the spouses at the discretion of the judge may occur under the following conditions:

• a minor child stays with one of the parents;
• disabled child, lives with mother or father;
• the spouse is recognized as disabled and cannot fully support himself;
• wife is in maternity leave or pregnant;
• the absence for a good reason of a permanent income from one of the spouses.

Through the court, issues are also resolved if one of the spouses privatized real estate before registering the marriage, thereby acting as the sole owner under the contract and does not want to share it with the second spouse after the divorce, but the other side insists on division having its own reasons. It is possible to count on a positive decision and granting the plaintiff a share of the privatized apartment only if he took part in the increase in the total market value of this housing: made a major overhaul, made a restructuring, reconstruction, equipped with the necessary equipment and decoration, etc. If he manages to prove this fact in court financial investments in an apartment, then he will be able to receive a part of the property commensurate with his waste.

Section with children

If the children appeared after the privatization of the apartment and, accordingly, their names are not in the property agreement, then the apartment will be divided only between the spouses in equal shares (unless the court accepts the difficult situation of one of the parties and does not increase the share at its discretion). Even if the children do not have a property right to this apartment, but are registered in it, the parent who remains housing does not have the right to evict them with their mother until they reach the age of majority.

And if the parents decide to enter the shares of children in this property, then they do not have the right to claim this part of the apartment, that is, it is not subject to division and remains with them until they come of age (Article 60 of the RF IC). In addition, a parent who, after a divorce, continues to live in this apartment with children who have their own share, does not have the right to sell or exchange housing, since he is responsible for the safety of the part of the children's family property assigned to them by law.

Terms of consideration and the amount of state duty

After you have filed an application with the court for the division of an apartment previously privatized, then in addition to a lawsuit and required documents you are required to pay the stamp duty. The amount of the state duty depends on the value of the claim (Article 333.19 of the Tax Code of the Russian Federation). The price of the claim is the full cost of the apartment, if it passes into the full possession of one spouse, or the monetary equivalent of its share, if it is divided between two participants in the divorce proceedings. Depending on the cost of the apartment, the amount of the state duty will be from 0.5 to 4%. The cost of an apartment can be determined:

• according to Cadastral data or Rosreestr;
• assessment of market value, which occurs with the participation of a specialist;
• according to BTI.

If the immovable privatized property is divided between two spouses, then they pay the state duty separately, according to the established share of each and its value calculation, multiplied by the percentage of taxation.

With regards to the consideration period, the division of an apartment received under a privatization agreement takes place on the same rules as other property disputes. If the claim is filed with the world court, then the consideration period is 30 days, if in the district court, then 60 days. However, as in all other court cases, the period may increase if the bailiff decides to re-assess the property.

Now let's summarize all of the above. You, as a spouse, have every right to share a privatized apartment after the dissolution of the marriage, provided that you took part in this process, and your name is written in the contract. If the process of privatization of the apartment took place during the marriage, but only one spouse dealt with this issue, thereby subsequently becoming the full owner, then this housing, and according to the established norms of the law, it is not subject to division.