When divorced mortgage is divided between spouses. Mortgage when divorced spouses with children and without before marriage and during: how does the marriage contract affect the Rzde

Per last years Growth is noted mortgage lending. For many families, this is almost the only option to acquire its own residential real estate. However, the presence of a large number of broken-produced processes leads to the need to divide the mortgage during divorce. And the spouses have to share and itself real estate, and the remaining obligations to the bank.

This is the most common situation in which husband and wife have equal rights to real estate. At the same time, they also carry solidarial (equal) responsibility for the mortgage taken. That is, mortgage real estate when buying it during the marriage in any case is considered to be shared by property. Consequently, each of the spouses have the right to claim half of the property and must take 50% of the loan obligation.

In practice, it is not easy to manage and share housing, because it is pledged by the bank. Therefore, all actions with a mortgage object must be coordinated with a credit institution.

The section of mortgages during a divorce in the absence of a dispute, as well as complicating circumstances (the presence of children, the only housing, etc.) is possible in the following ways:

1. The ownership of the apartment or the house is issued on one of the spouses, the loan agreement does not change. And among themselves, they sign an agreement on the division and debt division in the 50/50 ratio. Further, ex-husband and wife continue to pay a loan in half. When the loan is paid, they either sell real estate and share money or make out the right to ½ share to everyone.
2. One of the former spouses refuses his share. When he has a different accommodation, then this option is quite acceptable. Refusal it carries free or for monetary compensation. The bank reissues mortgage and housing completely on another spouse and displays a coacher from mortgage contract. However, the credit institution will only take this in the case of sufficient solvency of the remaining borrower.
3. By agreement of the husband and wife, the bank is paid all debt, that is, a loan is quenched early. Next, the apartment or the house is sold, and cash is divided equally (but perhaps in a different order). This option is optimal when the spouses have money for the closure of the mortgage or the balance of the debt is small.
4. The apartment or the house is sold, and money from sale goes to the closure of debt obligations and the remaining divide between the spouses. Of course, such an operation is possible only with the bank's approval. He may not meet and oblige spouses to pay a loan.

A more complex situation occurs if there is a dispute when one of the spouses claim a large share than ½. Justify it he can:

• attachment personal funds in an initial fee by mortgage;
• early payments from money that he had before marriage;
• making a significant amount to the relatives of the spouse and in a number of other cases.

Then mortgage is divided as follows:

1. The global agreement or through court establishes a higher proportion of one of the spouses and the entire mortgage is reissued on it, the remaining debt also passes him. But he pays to the second spouse half of the submitted money for the period joint residence.
2. With the consent of the bank, the loan is divided into two new loans, each spouse receives its own credit contract. Real estate also gets to everyone in the amount that the court will determine. Not every bank will go For this, because his risks increase and if the proceeding goes, then instead of one loan there will be two.

If the mortgage was taken before marriage

When the mortgage is divided into such a situation, the former spouses is important to understand two main points:

1. Property acquired before marriage is the property of one who acquired it. Accordingly, the obligations that remain after the divorce (mortgage loan) are also preserved for the owner of the property.
2. Since the cost for mortgage housing is paid gradually for many years, it is logical that part of the money could be paid exactly from the total family budget During marriage. Consequently, the second spouse may reasonably require from the first half of the funds made to repay the loan (if the first spouse does not prove that absolutely all payments are his personal funds).

Both of these items are taken into account in the courts, although they contradict each other somewhat. The cornerstone under the delicate of such a mortgage is precisely in determining which part of the payments was made from the total money, and which only from personal. That is, mortgage real estate to some extent can be recognized by shared property.

Mortgage when the spouses are divorced in the case of the purchase of housing, one of them is divided into marriage, it is divided by the following ways:

1. The property remains behind the spouse who acquired it. By the court decision or the World Agreement, the amount of funds are determined, which are put on the second spouse. Accordingly, this money pays him owner of housing in the mortgage.
2. Real estate division on the share is commensurately making payments from general family facilities and personal investments of each spouse. However, this option is possible only with the consent of the bank and if the apartment is not one-room, since physically not dedicated shares can not be in pledge.
3. Options are possible similar to the fact that they occur when a mortgage is brought in marriage. But you need to prove that all payments (or most of them) were carried out together. Then the court recognizes real estate with common property with all the ensuing consequences. This situation more often occurs when the mortgage is taken by one of the spouses shortly before marriage registration.

If there are children

The presence of juvenile children's spouses, including those prescribed in mortgage housing, does not affect the section of the remaining debt. But when the real estate itself, the court always takes into account this fact.

The main nuances as divided by a mortgage when divorced spouses with children:

1. To the spouse, with whom a child will live, a large proportion can be allocated, but at the same time, the size of the mortgage debt will be more;
2. If a child has a property share in real estate, it is added to the share of the parent, with whom it remains;
3. When the child is registered in an apartment or house, but only a husband is the owner, his wife has the right to receive a share in this real estate, if it leaves a minor, and she has no other housing;
4. When selling mortgage housing and the presence of a prescribed child in it, it must be discharged;
5. If the child stays with his mother and it is hard to pay a mortgage (finding on maternity leave, disability), then the size of the monthly payment for it can be reduced, and the remaining part will be temporarily assigned to the child's father by a court decision.

It is worth mentioning that the presence of children and their registration does not affect the procedure for the recovery of the mortgage pledge when there is an overdue credit debt.

Divorce with Mortgage Maternal Capital

For mother-owners of maternal capital, the issue of the mortgage section is more than relevant. After all, money from the state is involved in the purchase of housing.

Priest nuances will be as follows:

1. The proportion of the child, which allocated at the expense of maternal capital joins the housing of that spouse, with whom it remains. At the same time, the mortgage obligation is most often divided equally (if there are no other significant factors);
2. After the divorce, the former wife can close all his debt (or part of it) in front of the bank through the maternity capital. However dispose of property to full repayment loans she will not be able;
3. When at the time of divorce, the share of the child was not yet highlighted, in court on parents, it is necessary to do this after paying the whole mortgage;
4. Sell \u200b\u200ban apartment or a house in shares and divide money if involved maternal capital It is simply impossible: the transaction will be invalid, since children cannot be left without housing. If "Turn" such an operation, the spouses will be required to return to the budget of the cash equivalent of maternal capital (for 2019 453,026 rubles).

In the presence of a marriage contract

The conclusion of a marriage contract (contract) largely facilitates the solution of the issue, as the mortgage is divided during divorce. It is prescribed important momentsconcerning the real estate section if spouses are divided. That is, there will be no long-term brokenure process, and the content of the marriage contract will immediately be taken into account.

In particular, in this document, you can specify the following important information:

1. One of the spouses does not claim housing, and is also not responsible for the payment of debt obligations. Or you can register that it can only qualify for monetary compensation in joint payments during the marriage. The option is used more often when the mortgage is taken before marriage, and the owner of the housing has already paid a significant amount. And in cases where, due to a number of reasons (poor credit history, debt, etc.) One of the spouses cannot be a coacher.
2. Accurate real estate shares, the possibility of paying monetary compensation If the share is refusing, as a loan commitment will be distributed when divorced.
3. The mortgage will be repaid together (for example, when taken by one of the spouses shortly before marriage), the order of the housing section is also prescribed, and separately - if children are called.

Be sure to notify the Bank on the presence of a marriage contract.

Whether the military mortgage is divided when divorced

In particular, the current question for military personnel and their spouses is how to divide the military mortgage during divorce. After all, housing within such a program is provided by the Ministry of Defense (MO) of the Russian Federation. It also pays a mortgage.

Therefore, the section of such real estate has the following nuances:

• Since the participant of the program is only a soldier and it is he who appears in the mortgage agreement, then when divorced, it remains the owner in the overwhelming majority of cases. That is, the apartment or the house is not recognized by jointly accurate property.
• Credit contract Military mortgage does not reissue.
• The former spouse (spouse) can claim a share or part of the investment in this property only if you prove that:
  • to buy housing, in addition to public funds, money from the family budget or its personal cash was invested;
  • during the payment mortgage loan The soldier quit from the Armed Forces and payments have already become paid from the total cash of spouses;
• If the former spouse (usually a wife) plans to claim a share, then to achieve a section of housing military Mortgage It is possible only after full closure of the loan. With this housing are impossible and any other operations (sale, exchange, donation). This is explained by the fact that the property is pledged both by the bank and the Ministry of Defense of the Russian Federation.
• With the presence of children and the absence of a former spouse of another housing and when it does not have the right to the mortgage housing of the former husband, the maximum that she can achieve - the court will allow her accommodation in this real estate to her and the child.

Step-by-step section

When dividing a mortgage loan and apartments, the main stages of the spouses will be as follows:

1. A global agreement is drawn up, arranging both spouses. You can advise in advance in a credit institution, which issued a loan, which option will make a bank more. If the agreement does not come, it should be prepared statement of claim to court.
2. After official registration of divorce, the Bank must be reported to this fact and propose to approve its version of the settlement agreement on mortgage real estate and the remaining debt. In the event of a bank failure, you should try to find a compromise that suits all parties.
3. If all three sides will suit the further fate of mortgage real estate and the distribution of debt obligations, it should be referred to a notary to approve this Agreement.
4. Next, both spouses fulfill their obligations under the settlement agreement (they pay all the debt, they receive their credit contract to their hands, exhibit real estate for sale, etc.).

The spouses should be remembered that in the event of their refusal to pay, the bank after a while (when the debt is accumulated for 3-6 months) can start selling real estate. From the revenue money will be closed first indebtedness, penalties and fines. The residue will be divided between the former borrowers (spouses). This is the most disadvantageous and unpleasant way of the section of the mortgage. Therefore, it is recommended to come to a general solution and not to delay the mortgage section by negotiation.

Divorce is always associated with various difficulties and bureaucratic procedures. One of them is the division of property. Some binding spouses believe that only property is subject to separation. But the law states that jointly htched debts are also included in the general property mass, which must be divided. At the same time there are processes simpler (for example, a loan section on a payment card at a divorce) and more complex to which, in particular, refers to a section of a mortgage loan upon divorce.

General principles of the mortgage loan section

For Russians, the division of mortgages between the former spouses remains a question of acute and relevant. This is due to the long-term such loan (which is often often borrowers have to pay it almost all life), and with the presence of an expensive pledge, which the real estate purchased is becoming loan. The main rules of the section of the mortgage are as follows:

1. If the loan has been issued during the marriage period, it is subject to section.
2. The size of the share of each of the spouses is determined by the situation. Provided that the rest of the property also shares equally, the loan is divided between binding in half. If the principles of the property section are different, then mainly a loan is divided in a proportional ratio to the shares of each of the spouses. According to Part 3 of Art. 39 SC RF, the more one of the spouses gets the property, the more his duty will be.
3. The term during which the loan can be divided is three years from the time of the cessation of marriage relations.
4. Initiate the loan section can not only spouses, but also financial organizationwhich issued a mortgage agreement. For example, if for three years from the date of divorce the former spouse, who made a mortgage during the period of marriage, will not be able to pay a loan, the Bank may apply to the court demanding to divide the marital property and debts. Then the court may oblige the second spouse to pay credit debt even after a certain time after termination of the marriage.

Rights of the second spouse in terms of mortgage and real estate

The definition of the share of the second spouse under the division of real estate and mortgage loans purchased in loan should occur taking into account the analysis of the situation. It should be taken into account both the conditions for purchasing housing and debt repayment and existing agreements between spouses. Highlights that are defined by law in terms of the rights of the second spouse, such:

• Initially, the second spouse has the property acquired on credit exactly the same rights as the first. At the same time, credit debt is divided between both equally.
• If the second spouse in writing expressed his protest on the design of the loan, mortgage and collateral real estate on it judicial order It can be recognized by the personal duty and property of the borrower. In this case, the second spouse does not claim real estate and does not participate in repayment of the loan.
• If the initial contribution of the loan and / or most of the debt was paid by one spouse due to his personal savings (gift, inheritance, money from the sale of personal property, etc.), the court and in this case can recognize such a loan to personal. At the same time, the property acquired for these funds will also be classified as a personal property of this spouse.
• In the event of a dispute about the debt section and the real estate purchased by the spouse, whose rights are violated can go to court with relevant evidence.

Options for solving a mortgage issue

It is possible to divide the mortgage and acquired for the funds of the bank can be different. In general, options for dividing real estate are similar to the methods of section of the credit machine during divorce.

Required actions for the mortgage section

To divide the mortgage during the marriage, you can:

1. Conclusion with the second spouse a written agreement on the division of property and debts. If you wish, it can notarize it and conclude not precisely when divorced, but for three years from the moment of termination of the marriage.
2. To conclude marriage contract And there are all the conditions for transferring property (debt) to each of the spouses. This document is necessarily subject to notarization. The conclusion of the agreement (marriage contract) needs to unambiguously notify the creditor bank. Such an agreement can be concluded in any period of marriage.
3. To go to court (if there is a dispute) with a claim for the division of property and debts. Upon termination of marriage or within three years from the date of the divorce, you can conclude an agreement on the division of property or go to court for its partition. The claim (agreement) should be accurately designated, what debts and property are transferred to the ownership of each of the spouses. At the same time, go to court with a claim for the division of property is entitled and a creditor bank, whose requirement can be satisfied due to the implementation of the share of the debtor's spouse (part 1 of Art. 38 of the RF IC).

After receiving any of the above acts (agreements, contract, judgment), the spouses may contact Rosreestr for the registration of their real estate rights, as well as challenge the claims of debt creditors.

Mortgage section decorated before marriage

The definition of the share of each spouse in a mortgage loan, decorated before the beginning of a marital life, in general, occurs according to the principles of the section taken before the marriage of the loan when divorced:

1. Such a mortgage can be recognized as a common (joint) property of spouses and their personal property.
2. Mortgage decorated before marriage is considered the personal debt of that spouse on which it was originally framed.
3. But if during the period of marriage, mortgage duty was redeemed in more than part of it general Spouses, by decision of the court, he and the property acquired for his funds can be recognized jointly charged. However, in the case of the disagreement of the second spouse, this will have to be proved in court.

Settlement of the situation with the bank

For the maximum successful section of the mortgage loan, it is worth organizing communication with the bank correctly:

• The financial organization needs to promptly notify about all the vital changes that in one form or another may affect the payment of the loan.
• It is advisable to take into account the recommendations of your credit specialist and correctly assess your solvency due to a divorce.
• In disagreement with the design of a mortgage loan issued to one of the spouses, the second spouse stands in writing in writing in writing to the bank with the requirement to recognize the credit debt with the personal debt of the borrower. In the event of a bank failure, you can challenge this contract in court and recognize it internally or in terms of recognition of the mortgage with a common marital loan. In most cases, the court makes a decision in favor of spouses, since they have the right to dispose of jointly acquired property within the parties to the marriage relationship.
• All negotiations with the bank should lead in writing. It will be proof of attempts pre-trial settlement spore.
• Even if it is possible to agree on the division of property without a court spouses, it is necessary to inform about their decision to the bank and agree with the agreed partition. Its consent is required, in particular, for the alienation of property to third parties.
• In a situation where spouses need a certain time for the property section or when it is difficult to come to agreement, it is important to continue to pay a loan in a timely manner. In the case of a systematic delay, the Bank may apply to the court for recovery protection property. After that, the property is usually sold with auction at a significantly lower price.

The rational approach to the section of the mortgage and properly organized cooperation with the Bank will allow dividing property and debt with the maximum benefit for both spouses.

The number of divorces in the Russian Federation is growing every year, there may be various circumstances to this, but the result is always one - the collapse of the family. The presence of a mortgage does not make it possible to disperse in different sides without mutual claims.

Spouses have to decide how to divide not only the real estate itself, but also the remaining mortgage debt. The resolution of these issues is often produced in court if it is impossible to agree with each other.

Spouses who have entered into official marriages are endowed with certain responsibilities. They lead a common household and all that they earn and starts to improve life, is considered joint. When divorced, it is necessary to share the acquired between her husband and wife. The property section can be made in several ways:

1. By law, namely equal shares between the spouses.
2. For a joint agreement - in any proportions that arrange each other.
3. On a marriage contract.

Many families today, when marriage enter into marriage, conclude an agreement. This is a convenient form that allows you to avoid many conflicts in the future, if they try to dilute suddenly. It is prescribed any conditions that will be achieved by the parties to married relations.

In the absence of a marriage contract best way The separation of the property is considered mutual agreement. If former husband and wife retained a normal relationship, they can settle questions peacefully, deciding to someone and in what fractions it will get. If you have children, their interests can be taken into account.

Unfortunately, often divorce is accompanied by a serious offense of the sides on each other, which excludes peaceful negotiations and the achievement of a joint agreement. Such situations can occur everywhere and are permitted with the intervention of courts, which are guided by the exceptionally existing legislation in this area.

Legislative regulation

The law regulates the legal relations of spouses among themselves. The Family Code of the Russian Federation in Article 38 regulates that the property of spouses can be divided during the period:

1. Walking in marriage.
2. After its termination.

To file a lawsuit on the section can any of the parties, as well as the lender, which pays for one of the spouses. Family Code provides a section in two ways:

1. By agreement of the parties, the official document is drawn up, which is assigned in the notary.
2. On the court when the section is made on the basis of legislative norms, excluding the wishes of each side.

In the section of the property, except for the RF IC, it is necessary to focus on the following legislative norms:

1. Civil Code RF.
2. Civil Procedure Code of the Russian Federation.
3. Tax Code of the Russian Federation.

In the section of property, various aspects can be taken into account that can increase the share of one spouse and reduce part of the other.

Mortgage decoration in marriage

To buy housing and make real estate in the mortgage often comes in marriage. Reasons to do these are several:

1. Registering relations people, more seriously think about the future and wish to build their joint existence.
2. Planning children or their presence predisposes to acquire their own apartment.
3. The presence of double income is a salary of a husband and wife, allows you to increase general budget. Often, alone, a person is not under the power to take a loan and pay mortgage contributions, but in the family to do it much easier.

When making a mortgage in marriage, a loan is taken by one of the spouses, but the second is the coacher, which does not reduce its rights, but equalizes them with the main borrower. This fact says not only that the apartment belongs to the equal parties to both parties, but also the fact that carrying a mortgage loan obligations is necessary in equal shares.

The credit institution may make claims to any spouse or immediately to two. Since the rights and obligations are divided into robust, then the property is subject to 50/50 by divorce.

Section of the mortgage apartment

When divorced, the spouses seek to divide not only their lives, but also all the property acquired in married. The property purchased in the mortgage is divided by law equally, unless otherwise stated when it acquired in a notarial agreement. The section of the mortgage apartment can be produced:

1. Voluntarily, without going to court.
2. Forced when applying for a lawsuit.

The presence of a voluntary joint agreement implies a greater number of variations. In fact, you can be guided by law or invent your schemes. The main thing is that both sides agree with the decision made and outlined it on paper, assuring her at the notary. There are many options, someone will refuse complaints completely, and someone wants to reissue the mortgage, etc.

When considering Claim through court, concomitant factors will be taken into account, for example:

1. The presence of good circumstances that allow one of the spouses to qualify for most of the real estate. For example, taking into account the interests of juvenile children who remain with her mother or father.
2. The living space was framed solely on one spouse. Such an opportunity exists in marriage, but is more often practiced if the premises were acquired before the conclusion of marriage relations.

The section of the mortgage apartment is made in one way:

1. Real estate, like the remaining debt, is divided into equally between her former husband and wife.
2. In coordination between the spouses, the premises gets only one of them, together with the obligation to repay the loan shifted on it. In this case, the compensation of the part of the property with money to the second spouse should be provided.

Apartment section agreement

Achieving mutual agreements without the attraction of court instances is the best way out of the situation. With such a solution to the question saves time, money and, which is important, nerves. If the spouses are willing to break up peacefully they must resort to the following scheme:

1. Discuss various options and come to one common denominator.
2. Share all the points of agreement on paper.
3. Relaim the agreement at the notary.

Please note that, despite the fact that voluntary agreements can be expressed by any conditions, it is better to adhere to legislative norms. Notary until the point of agreement studies the Agreement. He must testify that everything outlined is voluntary will, and there is no pressure on one side. It is also important to comply with the legality of the distribution of property, if there will be a clear overcast in one direction in the contract, it may cause questions, and subsequently pour into the trial. The more transparent partition scheme, the greater the likelihood that no deception and pressure from any side was observed.

Section through the court

Guided by the current practice, it can be said that it is not always possible to solve the issues of the property of the property in the peaceful thing for former spouses. In the overwhelming majority of cases, the question is solved in court.

To file a claim for a mortgage real estate section can any of the divorced.

By more, it does not matter who the applicant does not matter, and who is the defendant, the court will take into account the interests of both parties, and especially children if they are. If there is no ultimate clarity between the spouses in the issues of property hold, it is better to go to court than "to live" the case on your own. The trial allows you to express the final points on all issues. The judge acts as an edible arbiter in this dispute, while maintaining a cold head and guided by no emotions, but exclusively by legislative norms.

In addition, you should not forget that the outstanding mortgage implies that a member of the dispute is not only husband and wife, but also a credit institution. His opinion is also taken into account, and produce any manipulation without a creditor notification is prohibited. And the judicial instance makes an official decision, which is taken into account by the bank as legal.

Accounting for children

The interests of children in the division of property are not always taken into account. Family Code does not provide a mandatory division of real estate share not only on spouses, but also for children. Today there are considerable disputes on this, but regulations So far do not contain a paragraph about accounting for juvenile interests. Theoretically, when divorced, real estate is divided into equally, but practically the court can take into account the fact of the presence of children and to award a large share of the parent, with whom the minors remain. It should be understood that together with the increase in the share in a mortgage apartment, the amount of credit obligations to the bank increases.

A little different things are the case when part of the housing was acquired for maternity capital. Since this money has a targeted purpose, it is also impossible to say that only parents are already impossible to say that the owners of housing are.

Judicial order

Application for the section of property in court can be:

1. Being in legal marriage.
2. After divorce.

The presence of a previously signed agreement is not an obstacle to the trial and even, on the contrary, it may provoke it if the agreements reached by one of the parties are not respected.

To initiate a trial, the applicant will need to pass the following way:

1. Create a claim.
2. Collect the package of documents.
3. The entire packet of papers to register.

The date of consideration of the claim will be established after the documents will be considered. Both parties are notified about the day of the meeting in writing. The judge will make a decision based on documentary evidence and testimony.

Preparation of documents

The first step K. judicial proceedings Property disputes are considered to collect documentation for submission to court. Start follows from the claim itself. This statement is written in a conditionally arbitrary form, but should not underestimate its importance. Often, it is a competent claim that can increase the chances of the planned outcome of the case. It can be compiled independently, if you first get acquainted with the rules for writing and examples of applications. However, the easiest way to contact a lawyer or a lawyer to not only make a statement, but also to obtain a consultation of a competent specialist.

IKSI is accepted by the court in the event that they are supported by documentary justifications. In each case, the packet of papers will be varied, and it is better to clarify its completeness separately in court or in a lawyer. However, there is a list of mandatory, without which it will not be possible to do the applicant. It includes:

1. Photocopy of passport.
2. Credit agreement for mortgage.
3. Extract from the bank about the amount of the remaining debt on the loan.
4. Documents on the apartment.
5. Certificates of the birth of children.
6. Marriage contract (if it was compiled).
7. Other documents, if they are directly related to the merits of the dispute.

Appeal to the Court

When submitting the entire package of documents do not forget about mandatory payment state duty. It is paid before and in the absence of a receipt, it is not worth counting on the acceptance of the claim. When real estate, the size of the state duty is considered to percentage ratio from the cumulative amount of the claim. Subsequently, the money spent can be divided equally between the participants of the trial.

With full completion of documents, the Secretary of the Court accepts a claim for processing.

For its consideration, the court is given no more than a month. After 2-3 weeks, the first should be appointed court hearing. In most cases, it is not always possible to solve the issues of the section from the first time, therefore additional meetings can be appointed.

The court's decision

The decision of the court makes it in the event that both parties provided an exhaustive amount of evidence and there is nothing to add. Guided by proven facts, the judge displays a decision. A few days later, the judgment of the court outlined on paper is issued to both parties to the participants. Each of the spouses may challenge the decision, submitting an appeal to the superior instance. If there are no disputes about the fairness of the foreclosure, the decision goes to the credit institution, which on its basis shares the accounts of borrowers on established shares.

The court decision may be operated in various ways, including involving bailiffs.

Registration of property rights

Most court decisions redistribute ownership of the real estate. It can be expressed as follows:

1. The previous owner is deprived of rights, and the apartment is transferred to the second spouse, along with a debt on the mortgage.
2. The room is divided by shares between the two owners.

And in that, and in another case, it will have to register property rights. To arrange real estate in your name, you will have to:

1. Collect a package of documents that will be required when state registration, Apply to Rosreestr.
2. Get a certificate of ownership of your name. At the same time, the encumbrance will remain until the mortgage repayment.

Spouses should not forget about their debts before a credit institution. Payment of payments should be carried out on time, which are marked in a loan agreement. If the other side will shy away from paying money for their share, then recovery monetary sum Can be implemented through the judicial authority.

Features of the section of a trunk apartment

Each one knows that the partition bought before marriage is not subject to. But the apartment acquired in the mortgage before marriage is one of the category of real estate and does not always fall under this rule and has other consequences. This is due to the fact that, by the spouse, let him and had to start the procedure before creating a family, but he continues to pay mortgage contributions already in marriage. Debentures Payment for money, which after marriage is considered to be a joint budget. There may be a different situation when the second half, which is actually not related to this real estate, helps to pay a loan by their means. When divorced, the question arises whether the second spouse claims part of the mortgage apartment. By law, it is unlikely possible if the living space is bought before marriage. But another spouse will be able to count on paying monetary compensation.

Arbitrage practice

One of the bright examples of the mortgage real estate section was considered in the Soviet District Court of Voronezh. The primary lawsuit filed a former husband, who put forward the requirements of the section of jointly proven property. The spouse put forward a response lawsuit in which it was about separating all the two minors acquired, taking into account the interests of two minors. It said not only about the apartment bought in the mortgage, but also about another property, in particular, land, country house, car, household appliances and furniture.

Each of the spouses brought its own settlements of the section, justifying them from their point of view of rational arguments. The requirements of both sides were satisfied only partially. As for the mortgage apartment, it was divided equally, as well as the remaining loan debt.

It will be interesting for you

The ability to buy real estate on own funds have not many. Often citizens acquire it in the mortgage. When it comes to the family, it does not matter, whom the spouses property and the mortgage agreement are framed. According to family legislation, property debt is common. In this regard, when divorced before spouses, it may be a sharp question about how to divide the mortgage during divorce.

Apartment in Mortgage How to share when divorced

To date, there is no clear legislation on how to do with mortgage debts during divorce and division of property. When the apartment in the mortgage, on the issue, how to share it, the courts are taking into account the Family Code, the Civil Code and the Federal Law "On Mortgage", a mortgage agreement.

Real estate and debt shares in half. The court does not even take the fact that one of the spouses could not be employed, and did not have the opportunity to give money to repay the loan.
If the apartment was purchased in the house under construction, the right to property is obtained only after putting the house into operation.

Two events development options are possible:

1. If at the time of receipt of the certificate, the debtor binding, is married, then real estate and the remaining mortgage debt are divided by half.
2. If the borrower receives a certificate already divorced, he will pay the former spouse to compensate for the amount spent on the payment of the loan. The right to the apartment and the remaining duty remains for the borrower.

There are often cases when the apartment was bought before marriage, and loan payments were made by both spouses. The former spouse may claim to reimburse the amount spent the amount of mortgage loan. He is not obliged to pay debts on the loan, but can't claim part of the apartment. There are situations where one of the spouses contributed to the loan agreement, the funds available from him before marriage.

If he can prove this fact in court (income received from the sale of inheritance, obtained under the contract of donation and. Etc.), the spouse has the right to:

1. Require the return of this amount from the former spouse.
2. Reducing the amount of payments on the loan own funds without infringement of his share.

How to divide the mortgage after a divorce if spouses from borrowers

Often credit organizations When approving a loan obliges a second spouse to perform with a borrower. This moment Insures the bank from possible unpleasant consequences in the event of the collapse of the family. When division of property in this case, the three stakeholders: spouses and a credit organization. If necessary, divide property on the mortgage, you need to try to solve the problem peacefully. This will help avoid unnecessary litigation and proceedings.

Important. First of all, you need to notify the bank. A credit institution can offer its solutions to the problem.

Divorce does not solve all problems with mortgage

The mortgage debt is not going anywhere during the divorce, before the decision that suits all parties, paying contributions to both spouses.

There are several of the most optimal solutions to the problem:

• The spouses are on jointly paying the mortgage, after repayment of the debt sell an apartment and share money in half. In this case, you need to contact the bank with a request to divide the debt on both spouses. A new treaty will be drawn up, according to which the former spouses will pay for their separate loan amounts. Often credit organizations refuse to divide the contract. The decision of the bank can be challenged in court.
• One spouse refuses real estate and mortgage payments in favor of another.

As a rule, such a procedure is issued through the court. On the basis of a court decision, the Bank reissues a loan agreement with one of the parties.

• Sell \u200b\u200ban apartment with the consent of the bank, fully repayment and divide the remaining funds in half.

This amount can be sent further to the initial contribution to acquire a separate apartment. Banks, as a rule, often offer such a solution to the issue of borrowers. However, this is not the most the best way solutions to the problem.

Why in practice it is unprofitable for former spouses:

1. It is very difficult to sell an apartment at a good price, in the presence of encumbrance
2. There are problems with the client's search for such housing.
3. As a rule, after the sale of the apartment and pay for all debts, the spouses almost nothing remains.

How to share a mortgage when divorced with a child

When children appear in the timing process, the share of property is increasing towards that spouse that wakes up them in the future.
If the apartment is acquired using maternal funds, according to the law, it is decorated in equal shares on all family members. Spouses can only claim to real estate. Payments for the remaining loan are divided equally.

Important. If it is decided to sell an apartment located in a pledge, you must urgently write out children from it. Otherwise, the situation may be interested in guardianship. Parents may threaten the deprivation of rights for the impossibility of ensuring the child to the living conditions.

Such a mortgage has its own characteristics. The military mortgage can only take a soldier, and it wakes up with accommodation. The involvement of the spouses is not required as a coacher. The mortgage duty in fact is not the borrower itself, but the Ministry of Defense of the Russian Federation.

In connection with above, the generally accepted laws in the situation of the division of property in military mortgage do not work. The right to real estate always remains for his spouse. Courts often make a decision on the section of such property, guided by family legislation. However, this is actually impracticable. Decisions are subject to appeal, and the right to property remains for his spouse consisting in military service.

Today, as a rule, banks do not give such a mortgage without registration of a marriage contract. In terms of its conditions, the borrower remains the only owner of the purchased property.

Former spouse refuses to pay for mortgages

What complex the relationship would not be during the divorce, should be remembered about their loan obligations.

Important. Before making a court decision, pay loan contributions are needed in obligatory. Cases when one of the parties ceases to pay a loan for its share quite frequent.

If the loan payment does not receive within three months, while the former spouse does not hurry to abandon its part of the apartment, the bank can make the following decisions:

• Observe to pay the missing amount on a loan to the second side.

If the second spouse is solvent, the bank renews with him a mortgage agreement, the borrower becomes the only owner of the apartment.

• Stay an apartment for sale to pay off debt.

This outcome is unprofitable, as real estate is usually implemented at a low price. Amounts with sales enough only on debt coverage.

Council. If you are paying a loan in full, keep all receipts and checks. In the case of further complaints of the second spouse in the apartment, it will help you to defend your rights in court.

The section of the mortgage property during a divorce is always a complex and long process. The results of the proceedings may be very different. Consultation of a competent lawyer will help in solving housing disputes and will greatly facilitate judicial flavors.

: The procedure for the separation of apartments and obligations between the former spouses. To our office often call and married couples for which the question of the section of the mortgage He became a real life test. The fact is that the division of debts in this case involves the third direction into the dispute: a bank that has given a mortgage loan.

To clearly illustrate the risks and problems, read the main questions of citizens and the responses of the lawyer on them. Contact for legal advice To our lawyers in the section Mortgages. Consultation of a lawyer is free.

Ask a lawyer's question!

Ask a lawyer's question!

Frequent Mortgage Questions when divorced, which are asked to lawyers

1. Mortgage when divorced: section of the apartment

   I purchased an apartment in St. Petersburg before marriage. Only then I met the future wife. They got married, gave birth to a child, they lived together 3 years. During the marriage, I sold my odnushku and money from the sale in the mortgage of a three-room apartment in Shushary. Now the mortgage is paid by 45 percent, but the marriage collapsed. How do we share an apartment, considering that the wife did not put the ruble in a mortgage? Semyon.

   By law, in the division of property that spouses together, they are allocated to 1/2 share, if there was no marriage contract, which dictates other conditions of the section.

   But the court may at its discretion increase the share of one of the spouses to the detriment of the other. This will happen if the court will be presented to evidence that most of the money was invested by the spouse (you) from the sale of property acquired to the property before marriage. It also matters who of the spouses will bring up a child and from other factors.

7 (812) 925-39-24

2. Mortgage when divorced: get a mortgage and divorce

   My husband and I are planning to apply for a divorce. To secure yourself while I am still married, I want to get a mortgage. Her to me, as a woman with her husband, approve of 100%. After that, it is divided. How to do it? Is it true that mortgage at divorce And the apartment will remain me? Inga, SPb.

   After divorce, the mortgage is divided between the former spouses on a par. If your husband does not pay his share - then interest for delay is also divided into two borrowers. But after the divorce, even if your husband won't pay the mortgage, he is not obliged to give up his share in the apartment. He will have the opportunity to make a 1/2 apartment for ownership and live in it.

   If your spouse gives up your share, you will be obliged to pay it 1/2 of the money that was made on the mortgage for the period of the marriage union.

3. Mortgage when divorced: husband demands to give a stake in the apartment

   My husband and I will be divorced. Married bought one-room apartment. The husband wants to completely pick me up with me. But I do not want to give him my share. He threatens that if I don't give 1/2 share for free, he stop paying the loan and all mortgage at divorce will fall on me. Can he do so if he is right? Katerina.

   Your husband violates your rights. Do not let him do it. Since the apartment was acquired during a marriage, she is a joint marital property. When divorced, it is divided between you 1/2 share.

   When divorced, you must pay a mortgage for your share of the apartment, and your husband for your share. You can not deprive the right to this share in any way, except by the court decision. But you can refuse it and get compensation: 1/2 from the money that was paid on the mortgage while you were married.

4. Mortgage when divorced: how to divide the house

   My wife and I took the land and house in the mortgage. Embedded in equal ownership. Five years later - divorced. The wife wants to either sell me his share of the amount twice as much as it is worth it, or demands to give her a lot. Moreover, the amount is insignificant, several times lower than what is worth it. Is it somehow somehow, through the court or more, how, make her sell me a share of the house for real value? You can order an assessment, expertise, and buy her share exactly for the cost, which the assessment will show? Pavel, St. Petersburg

   No, the court is not entitled to oblige your wife to appoint a smaller price of his property. Exit: You sell your share. You can assign any price and offer her to buy your share (she has a preferential right to buy your share). If she refuses, you can sell your share of home to a third party, but for the price is not lower than you offered the spouse. You have the same right if it invites you to buy a lot. If she sells his share to a third party for less costs than it was proposed to you, this deal can be recognized by you invalid.

5. Mortgage when divorced: 1/2

   My husband and I lived in civil marriage to marriage. Then I bought an apartment in the mortgage of 1/2 share for everyone. A year later - officially registered relations. We had a girl and there was another daughter from the first marriage. Because of his drunkenness divorced. You need to divide the apartment, and it is still in the mortgage. I have not implemented maternity capital. Maybe it is more profitable for me to put it in a mortgage so that my share in the apartment is more? Anna.

   Anna, to invest the maternity capital in the mortgage of this apartment is not treated. If you do it, you will have to highlight the share of children. Talk to your spouse, maybe he will agree to give his share to children.

6. Mortgage when divorced: Mortgage section with Tuneev

   Mortgage on the apartment took even to marriage. Before concluding marriage, I paid half of the mortgage. The rest of the money was paid after the wedding. The marriage contract was not. But my husband earned a little, I alone pulled a mortgage. He did not work for several months, arranged for a while and dismissed. Again at home on the sofa lay and lacqual beer. When I'm tired of this, I filed for a divorce. He filed a counterclaim on the property section - he wants half the apartment. What right does he have on my legal property? Irina, St. Petersburg

   Irina, if during the marriage period you paid half of the mortgage, the husband puts forward its demands in part justified. But he was mistaken in the size of his claims.

   It has the right to 1/2 from the money that you have been made by mortgage during a marriage or joint residence and management. common economy. That is, half of the apartment, he certainly will not receive, but half of half, money that was paid "together" - quite possible.

   If you prove in court that you were quenched a loan from the money that received under the contract of donation is another matter. This money is not shared, only yours. In this case, compensation is not allowed.

7. Mortgage when divorced: I can not pay a mortgage after a divorce

   Divide. I don't want to pay a mortgage after a divorce, I don't have such an opportunity. If I give up my half, and the wife will agree to take it and pay a mortgage after the divorce completely, will the obligation to pay contributions? And is it true that if I refuse the property to my share, the wife will pay me compensation for the apartment? Ilya, St. Petersburg.

   Yes, you have the right to compensate when the mortgage section is divided.

8. Mortgage when divorced and ownership

   I have a mortgage on the apartment. Mortgage is not yet paid, but I want to marry. What risks do I have during the collapse of the future marriage? What is the difference if I decorate an apartment before marriage or married? Sasha.

   In the event that you place an apartment to the property before marriage, and the mortgage will be repayed in marriage, your wife will have the right to 1/2 from money that you pay in marriage for the apartment. It does not matter, before marriage or married you made an apartment in the property.

9. Mortgage when divorced: marriage contract

   My wife and We are divorced and divide the property. For a joint life they took a mortgage. Now we are trying to agree: make a marriage treaty. Is it possible to register in it that I compensate for my wife's value in 1/3 of the apartment's cost and give the right to live in an apartment 1 year after a divorce? Nikolai.

   Yes, in your case, you need to sign an agreement on the division of property. It is necessary to prescribe all conditions in the most detail and accurately and assure your contract in the notary.



10. Mortgage when divorced: how to get your money?

    My parents sold our apartment and money divided among themselves and me. I received 2,000,000 rubles. I my husband invested on the apartment as an initial contribution to the mortgage. Now we divorce. I want to get back my money, how can I confirm that parents gave me two million? Polina, St. Petersburg.

    Let your parents write you a donation contract for the transfer of money to you to purchase an apartment. Let them indicate the exact address of the apartment. In the case of a convincing contract of donation, the court will not consider this money by united. In the property section, they will not participate.

    If your husband gets something in the section, but a much smaller amount.

    But you can in court and suggest left the apartment and liabilities on the loan to my husband. Your conditions are paying for you compensation in the amount of 1/2 of money made to the credit account during the marriage.

11. Mortgage when divorced: Go to court?

    Two years ago, my husband and I took a mortgage, he is a borrower, I am a co-worker. Mortgage to pay for another 13 years, but we divorce. How do we be? How to share a mortgage and an apartment? Natalia, St. Petersburg.

    Mortgage when divorced is divided through court. And it is necessary as a third party to attract the bank to court. Bank This process concerns directly, since the apartment is owned by the Bank's loan. With the consent of the bank, it is possible to re-refund the contract for one of the spouses. In this case, the court will decide on compensation to the second spouse.

12. Mortgage when divorced: what to do?

    In marriage, we issued a mortgage of 1/2 for her husband and I am 15 years old. There is a small child. I want to get my share of the apartment, but I can't even pay for a mortgage. Mortgage is paid only for the year. Another 14 years to pay, and there is no place to live and still find work. What to do? Olesya, St. Petersburg

    The owner of the apartment to repayment of mortgage debt is a bank. It needs to be attracted to a law. When divorced, the mortgage apartment is divided between spouses in equal parts. Or is transmitted to one spouse, and the second one receives compensation. If you can't pay a mortgage, choose the option in which the ownership and mortgage commitment will go to former husband And you get compensation.

Ask a lawyer's question!

Ask a lawyer's question!

7 (812) 925-39-24 Section of mortgages when divorced spouses in St. Petersburg

13. Mortgage when divorced: How to divide an apartment?

    My spouse and I purchased an apartment in a mortgage. I made 60% of it from my money from the sale of an apartment in Moscow. After that, the husband did not work anywhere, received income from rare random earnings. Divide in a month. I am ready to pay a mortgage and further, he disagrees to leave me an apartment, trying to get half, 1/2 share. We will be submitted to the court. I have a question: can the court have to give me an apartment completely? Nina, Gatchina.

    And liabilities on the loan occurs only with participation in the Court of Bank. If the Bank in the lawsuit agrees to the section of the apartment and re-issuing a loan agreement, you can establish the amount of cash compensation to your spouse through the court and resolve the issue with the mortgage section. But, in order to prove the court that you paid a mortgage from your funds, and not from family moneyWe will have to show the court relevant documents.

    For such a process, we recommend that you hire an experienced lawyer in the property section. Section mortgage at divorce It has a number of complex nuances. A good negotiator and a specialist with practice in such affairs will help you. Ultimately, you will pay ourselves.

14. Mortgage when divorced: a bank against a court decision

    During the divorce, the court under the division of property and the section of the mortgage. The court decision said that the apartment and credit commitments were awarded to me. Property for an apartment was awarded to me and Rosreestr registered it. In the process, the bank was a third party. But the court did not come to the court. Credit Agreement The Bank did not redo, although the written requirement and decision of the court is sent to him. I pay a mortgage without disorders. How to force the bank to fix the contract in line with judicial decision? Kirill, SPb.

    If you already have a court decision, all parties to the case, including the bank, are obliged to execute it. Contact the bailiff service, which is obliged to trace and promote the implementation of the court's decision. In order to force all the participants of the case to act, get a decision in court in the case and take it to bailiffs. Then - just control the progress.

15. Mortgage when divorced without a marriage contract

    Bought an apartment in a mortgage. My salary is much more wages. I completely paid a mortgage, what I have relevant documents: payment receipts mortgage contributions. On this basis, I would like to get the ownership of the apartment or at least 3/4 of the apartment's share. Timir, St. Petersburg.

    By law, even if you have an equal income with my wife, or one of you did not work at all, all the income of the husband and wife is general (if there is no marriage contract, which says other conditions). In your case, most likely you and by a court decision will remain a borrower of a mortgage. If the apartment will go to you by the court decision, you must pay your wife compensation: 1/2 cash from those that have been listed on the mortgage for the entire time of the marriage union.

16. Mortgage when divorced: section by agreement

    My wife and I will be divorced, we have a joint child, paid a mortgage. She expressed consent to leave an apartment to me. What documents should we sign, so that it does not claim to be further on the apartment? Dmitry E., St. Petersburg.

    First, you need to re-transfer a mortgage loan only for you. If the Bank refuses you in this requirement, you will have to resolve the issue on the court. If you are able to pay for mortgages and can prove your solvency, you can count on a positive court decision.

    Secondly, if the apartment and credit will be reissued to you, set the amount of the amount and pay for the spouse of monetary compensation.

17. Mortgage when divorced and fictitious marriage

    After the wedding, we lived in the apartment of my wife and her parents. Then I removed the apartment and took a mortgage. The co-cooked woman was a wife, although I asked for a bank of someone else to identify as a concern. With wife on removable apartment They did not live together. The farms are generally not led. Money for the primary fee gave me relatives. In a year divorced. After the divorce and before him, the wife did not participate in repayment credit duty. How can I get the whole apartment, not to allocate the share of ex-wife? Mikhail, Vyborg.

    Case in mortgage at divorce Solved through the court. It is necessary to file a lawsuit on the division of the property and the Mortgage section during divorce. If you can prove that the money was presented, your share in the apartment will be enlarged. If you can prove that it was not a joint economy and was a different budget, it is possible that the share in the apartment will be increased. Depending on the court decision, compensation for ex-wife can be appointed.

18. Mortgage when divorced: mortgage debt, what to do?

    I divorced. Have a child. Mortgage was taken marriage with her husband. In the section of the property signed an agreement that he pays half mortgage at divorce. I am the main borrower. I regularly cry a mortgage, and he is not - he has a big debt. In principle, I am ready to pay my share completely early, but I am afraid that the bank will pay me more and the share of her husband and his delay, fines. Elena P., Agalatovo.

    You need to act quickly, without postponing. Suppose to the court to the section of the married property. Otherwise, the Bank has the right to present you requirements in debt payment.

    To protect your interests, contact and find a good lawyer.

19. Mortgage when divorced: What percentage?

    I got acquired in a mortgage three-room apartment. In order to make the first installment - 3,000,000 rubles, I sold my apartment. The rest (two million) - took into a mortgage of 1/2 share. What percentage of mortgage when divorced I will pay? Oleg, Petersburg.

    Through the court you can achieve a fair section of the property. Prove the court that you have invested money from the sale of personal apartment. The court will not include this money in the section.

20. Mortgage when divorced: How to abandon mortgages?

    Mortgage took married. Divide and I would like to get out of the mortgage contract, especially since I am a co-worker. Options for replacement of the concern Is it possible to approve through the court or otherwise? Ivan.

    The question is solved in court. But it is likely that the court will not exclude you from the contefficers. But you can sign the contract with your spouse about the refusal of the right to an apartment and pay compensation to you. Payment can be prescribed arbitrarily or as 50% of the mortgage funds paid.

21. Mortgage when divorced: husband lost his job

    Six years ago they took a mortgage. I am a wife - the main borrower, the husband is a co-worker. After the divorce, the mortgage was paid on equal. Now the husband lost his job and can not pay. Imural was not divided, I live with my daughter in another area. Alimony, he also does not pay. What to do? Alina, St. Petersburg

    Divide the property through the court. For a court, you can either request debt from your spouse or translate all obligations to yourself, transfer the right to an apartment for yourself, to determine the amount of compensation for a former husband. Create it a separate suit.

22. Mortgage when divorced: how to share if there is a child?

    Husband requires compensation for mortgage apartment. I am ready to take a mortgage after a divorce. The husband is ready to abandon her if I pay to him to pay. But we have a child who, when divorced, stays with me. How affects what I bring up our common childIs there an option to pay compensation less than it would be without a child? Catherine

    As a rule, the presence of children does not affect the section of the property between spouses. No matter who the child remains with whom your share in the apartment is 50%. Exception - If you are in the payment of mortgages invested maternity capital, the apartment has a fraction of the child. In this case, the section will occur in other shares.