In this article, we will guide on how to sell a house after divorce
According to the Family Code , the property that a husband and wife acquired during marriage is joint property. In a divorce, the joint property is divided in half.
An apartment bought in marriage is also divided equally. It does not matter in whose name the property is registered and who paid for its purchase. For example, an apartment was bought with a mortgage. The husband regularly paid contributions to the bank, and the wife did not work, because she was on maternity leave with a child. Spouses have equal rights to the apartment.
How to sell a House after divorce
However, there are cases when even joint property is divided not equally. And also according to the law, property can be not only joint, but also personal.
Personal property is that which belonged to the spouses before marriage, was received as a gift, inherited or privatized.
Also, property is not divided if:
- one of the spouses bought it with personal money during the marriage;
- it is intellectual property;
- these are personal items for individual use, such as clothing;
- is money received as compensation for harm
|❌ Property is not divided|
|✅ The property is divided in half|
|Everything that appeared in the spouses in marriage. Any thing:
There are other cases when even jointly acquired property is not divided in half, for example, if a marriage contract is drawn up. It immediately prescribes to whom what property belongs now and how new property will be divided in the future. For example, an apartment – to the wife, a car – to the husband, and a dacha and shares – in half, as jointly acquired.
The marriage contract can be amended. For example, if a car is bought, you can immediately decide who will get it. Any changes to the contract must be certified by a notary
If the apartment is jointly owned
If you need to divide joint property between spouses, you will have to allocate shares. A share in an apartment with common shared ownership between spouses can be sold.
By law, the right of first refusal from the second spouse. That is, if the husband decided to sell his share, then first he must offer to buy it to his ex-wife.
Plans to sell the share of the second owner must be notified in writing. It is more reliable if the letter is sent through a notary: in which case it will be possible to prove the implementation of the law.
If the second owner refuses, keeps silent and does not buy the share of the former spouse within a month, then it can be sold to another buyer. Moreover, the transaction price must be the same as in the notification to the former spouse, and on other equal terms. An exception is the sale of shares at public auction.
Refusal to purchase the second owner must be notarized. Without assurance, the refusal to sell a share in the apartment will not work, the court may consider such a transaction invalid.
If the former spouse agrees to buy a share in the apartment, then you can draw up a contract of sale.
If the apartment is in a mortgage
A mortgage apartment bought in marriage is also divided in half, and with it the debt to the bank.
Sometimes a mortgage is issued for only one spouse, but in a divorce, both will have to pay a loan. If the shares in the apartment were not allocated immediately upon concluding an agreement with the bank, then they are distributed after the divorce. To do this, you need to inform the bank about the divorce and ask to re-register the property.
You can also ask the bank to rewrite the debt for only one spouse. For example, the ex-husband goes to the bank with a request to issue the entire debt to him, the wife does not mind.
However, the bank may refuse to re-register a mortgage apartment and a loan for only one spouse. The bank wants to be paid off the debt, and having two co-borrowers is more reliable.
If the bank refuses, you can apply to the court for the division of property.
The mortgage apartment can be sold, and the proceeds can be used to pay off the balance of the loan. If the former spouses do not want to live in a mortgaged apartment, then you need to contact the bank for written consent to sell the mortgaged apartment. The money from its sale will be used to pay the balance of the debt.
Spouses can not change anything in the loan agreement of the bank, but agree among themselves on monetary compensation. For example, the husband will continue to contribute the loan amount of 26 thousand rubles, and the wife will compensate him for half, that is, 13 thousand rubles. In this case, you need to have a receipt for the transfer of money and the fulfillment of obligations.
One of the spouses can give up ownership of the apartment, but remain a co-borrower. This can happen if one of the spouses gives up his part of the apartment in favor of the second owner. At the same time, the bank will still have two co-borrowers. If one cannot pay the loan, the bank will turn to another for debt collection.
If the former spouses have children
The division of property during the divorce of parents does not affect the child in any way, because children do not have rights to the property of their parents.
If there is a child, the apartment is divided in half between the spouses as jointly acquired property. At the same time, the child retains the right to live in the apartment after the divorce.
According to the law, when married couples with children divorce, the apartment is not always divided equally between the spouses. But these are exceptional cases. They can only be considered by the court, and one of the former spouses will have to prove why it is necessary to deviate from the equality of shares.
If the apartment was bought with maternity capital
Part of the apartment, which was bought with the capital, is divided equally between parents and children. This must be done within 6 months of paying off the mortgage.
The rest of the apartment is divided only between the spouses. And during a divorce, the division occurs according to the general rule – as jointly acquired property.
If the mortgage with the involvement of mother capital has not yet been paid, and the spouses are getting divorced, then the apartment is re-registered as a common shared property. In this case, the court decides which of the spouses to allocate what share. It takes into account the ratio of: the spouses’ own funds, maternity capital funds and the loan amount.
For example, an apartment cost 6 million rubles. When buying, the wife invested 1.5 million rubles, or 25%, which she gained from the sale of the studio bought before marriage. The husband invested 500 thousand rubles or 8%. Matkap covered 10% of the cost. In this case, upon divorce, 10% will be divided equally between parents and children. The wife gets 25% and the husband 8%. The remaining 57% will be divided between the spouses.
- All property acquired during marriage is joint property.
- Joint property is divided in half upon divorce.
- Personal property is not divided and belongs to only one of the spouses.
- In the marriage contract, you can prescribe to whom and what property belongs and what is common.
- In case of joint ownership, it is necessary to allocate shares to each of the spouses.
- When selling a share, you need to notify the second owner about this and offer to buy it first for him.
- A mortgage apartment is also joint property, and it is divided in half. Mortgage debt is paid equally.
- If the spouses have children, then they cannot claim shares in the apartment, because they do not have rights to the property of their parents.
- Sometimes the apartment is not divided in half between spouses with children: most of it can go to the spouse who stays with the child. This right must be proven.
- The share of the apartment purchased with the involvement of maternity capital is divided equally between parents and children. The rest of the apartment – in half between the spouses, if they did not contribute personal funds.