How an apartment is divided with a mortgage during a divorce. How is an apartment divided in a mortgage during a divorce, if there is a child, if there is a military mortgage?

The number of divorces in the Russian Federation is growing every year, various circumstances may be to blame for this, but the result is always the same - family breakdown. Having a mortgage makes it impossible to separate different sides without mutual claims.

The spouses will have to decide how to divide not only the real estate itself, but also the remaining mortgage debt. These issues are often resolved through judicial procedure, if it is not possible to agree among themselves.

Spouses who have entered into an official marriage relationship are assigned certain responsibilities. They drive general farming and everything that they earn and spend on improving their lives is considered joint. During a divorce, property must be divided between husband and wife. The division of property can be done in several ways:

According to the law, namely equal shares between spouses.
By joint agreement - in any proportions that suit each other.
According to the marriage contract.

Many families today enter into a contract when getting married. This is a convenient form that allows you to avoid many conflicts in the future if they suddenly decide to get a divorce. It specifies any conditions that will be achieved by the parties to the marital relationship.

In the absence of a marriage contract the best way division of property is considered a mutual agreement. If the ex-husband and wife have maintained normal relations, they can settle the issues peacefully, deciding who will get what and in what shares. If there are children, their interests can be taken into account.

Unfortunately, divorce is often accompanied by a serious resentment of the parties against each other, which precludes peaceful negotiations and the achievement of a joint agreement. Such situations can occur everywhere and are resolved with the intervention of the courts, which are guided exclusively by 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:

Being married.
After its termination.

Any of the parties, as well as a creditor who forecloses on one of the spouses, can file a claim for division. The Family Code provides for division in two ways:

By agreement of the parties, an official document is drawn up and certified by a notary.
According to the court, when the division is made based on legislative norms, without taking into account the wishes of each party.

When dividing property, in addition to the RF IC, one must be guided by the following legislative norms:

Civil Code of the Russian Federation.
Civil Procedure Code of the Russian Federation.
Tax Code of the Russian Federation.

When dividing property, various aspects may be taken into account that may increase one spouse's share and reduce the other's.

Taking out a mortgage during marriage

It is often necessary to buy a home and take out a mortgage on real estate during marriage. There are several reasons to do this:

By registering a relationship, people think more seriously about the future and want to build their coexistence.
Planning for children or having them predisposes you to purchasing your own apartment.
Having a double income - the salary of a husband and wife - allows you to increase the overall budget. Often, a person alone is unable to take out a loan and pay mortgage payments, but it’s much easier to do this in a family.

When applying for a mortgage in a marriage, the loan is taken by one of the spouses, but the second is a co-borrower, which does not reduce his rights, but equalizes them with the main borrower. This fact indicates not only that the apartment belongs equally to both parties, but also that it is necessary to bear the obligations on the mortgage loan jointly in equal shares.

A credit institution can make claims against any spouse or two at once. Since rights and obligations are divided equally, property during a divorce is subject to redistribution 50/50.

Mortgage apartment section

During a divorce, spouses seek to divide not only their lives, but also all property acquired during marriage. Real estate purchased with a mortgage is divided equally by law, unless otherwise agreed during its acquisition in a notarial agreement. The division of a mortgaged apartment can be carried out:

Voluntarily, without going to court.
Forcibly when filing a claim in court.

The presence of a voluntary joint agreement implies more variation. In fact, you can be guided by the law or come up with your own schemes. The main thing is that both parties agree with the decision made and put it on paper, having it certified by a notary. There are many options here, some will refuse claims completely, while others will want to re-register the mortgage, etc.

When considering a claim through court, related factors will be taken into account, for example:

The presence of compelling circumstances that allow one of the spouses to claim the majority of the property. For example, taking into account the interests of minor children who remain with their mother or father.
The living space was registered exclusively for one spouse. This possibility also exists in marriage, but is more often practiced if the premises were purchased before marriage.

The division of a mortgaged apartment is carried out in one of the following ways:

The property, as well as the remaining debt, is divided equally between the ex-husband and wife.
By agreement between the spouses, only one of them gets the premises, and at the same time, the responsibility for repaying the loan is transferred to him. In this case, compensation of part of the property in money to the second spouse should be provided.

Apartment division agreement

Reaching mutual agreements without involving the courts is the best way out of the situation. This solution saves time, money and, most importantly, nerves. If the spouses are ready to separate peacefully, they should resort to the following scheme:

Discuss various options and come to one common denominator.
Put all points of the agreement on paper.
Have the agreement certified by a notary.

Please note that although voluntary agreements can be expressed in any terms, it is still better to adhere to legal norms. The notary studies the clauses of the agreement before certification. He must testify that everything stated is a voluntary expression of will, and there is no pressure from any side. It is also important to observe the legality of the distribution of property; if there is a clear bias in one direction in the agreement, this may raise questions and subsequently result in litigation. The more transparent the division scheme is, the more likely it is that there was no deception or pressure from any side.

Division through court

Based on established practice, we can say that former spouses are not always able to resolve issues of property division peacefully. In the vast majority of cases, the issue is resolved in court.

Submit statement of claim Any divorced person can share the mortgaged property.

By and large, it does not matter who the applicant is and who the defendant is, the court will take into account the interests of both parties, and especially children, if there are any. If there is no complete clarity between the spouses regarding the ownership of real estate, then it is better to go to court than to “press out” the matter on your own. The trial allows you to put final points on all issues. The judge acts as a kind of arbiter in this dispute, keeping a cool head and being guided not by emotions, but exclusively by legislative norms.

In addition, we should not forget that an outstanding mortgage during a divorce implies that the party to the dispute is not only the husband and wife, but also credit institution. His opinion is also taken into account, and it is prohibited to carry out any manipulations without notifying the creditor. And the court makes an official decision, which is taken into account by the bank as legal.

Taking into account children's interests

The interests of children are not always taken into account when dividing property. The Family Code does not provide for the mandatory division of shares in real estate not only among spouses, but also among children. Today there is considerable debate about this, but regulations do not yet contain a clause on taking into account the interests of minors. Theoretically, during a divorce, the property is divided equally, but in practice the court can take into account the fact of the presence of children and award a larger share to the parent with whom the minors remain. It should be understood that along with the increase in the share in the mortgaged apartment, the size of the loan obligations to the bank also increases.

The situation is a little different in cases where part of the living space was purchased for maternal capital. Since this money has special purpose, then it is no longer possible to say that only parents are homeowners.

Judicial order

You can file a claim for division of property in court:

Being legally married.
After divorce.

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

To initiate legal proceedings, the applicant will need to go through the following steps:

File a claim.
Collect a package of documents.
Submit the entire package of papers to the court for registration.

The date for consideration of the claim will be set after the documents have been reviewed. Both parties to participation are notified of the day of the meeting in writing. The judge will make a decision based on documentary evidence and witness testimony.

Preparation of documents

The first step to trial property disputes are considered to be the collection of documentation for filing with the court. We should start with the claim itself. This statement is written in a relatively free form, but do not underestimate its importance. Often, it is a competent claim that can increase the chances of the planned outcome of the case. You can compose it yourself if you first familiarize yourself with the rules of writing and examples of statements. However, the easiest way is to contact a lawyer or advocate in order not only to draw up an application, but also to get advice from a competent specialist.

Claims are accepted by the court if they are supported by documentary evidence. In each case, the package of papers differs, and it is better to clarify its completeness separately in court or with a lawyer. However, there is a mandatory list that the applicant cannot do without. It includes:

Photocopy of passport.
Loan agreement for obtaining a mortgage.
An extract from the bank indicating the amount of remaining debt on the loan.
Documents for the apartment.
Birth certificates of children.
Prenuptial agreement (if one has been drawn up).
Other documents, if they are directly related to the essence of the dispute.

Going to court

When submitting the entire package of documents, do not forget about mandatory payment state duty. It is paid in advance and in the absence of a receipt you should not count on accepting the claim. When dividing real estate, the amount of state duty is calculated in percentage of the total amount of the claim. Subsequently, the money spent can be divided equally between the parties to the trial.

If the documents are complete, the court secretary accepts the claim for processing.

The court has no more than a month to consider it. After 2-3 weeks the first appointment should be made court hearing. In most cases, it is not always possible to resolve the issues of the section the first time, so additional meetings may be scheduled.

The court's decision

The court makes a decision if both parties have provided an exhaustive amount of evidence and have nothing to add. Based on the proven facts, the judge announces the decision. A few days later, the court order written down on paper is issued to both parties. Each spouse can challenge the decision by filing an appeal to a higher authority. If there are no disputes regarding the fairness of the conclusion, then the resolution is sent to the credit institution, which, on its basis, divides the borrowers’ accounts into established shares.

The court decision can be enforced different ways, including with the involvement of bailiffs.

Registration of ownership

Most court decisions redistribute ownership of existing real estate. It can be expressed in the following ways:

The previous owner is deprived of his rights, and the apartment is transferred to the second spouse, along with the mortgage debt.
The premises are divided between two owners.

In both cases, you will have to register property rights. To register real estate in your name, you will have to:

Collect a package of documents that will be required when state registration, submit an application to Rosreestr.
Obtain a certificate of title in your name. In this case, the encumbrance will remain until the mortgage is fully repaid.

Spouses should not forget about their debts to the credit institution. Payments must be made within the terms specified in the loan agreement. If the other party evades paying money for its share, then collection sum of money can be implemented through a judicial authority.

Features of the premarital apartment section

Everyone knows that anything purchased before marriage cannot be divided. But an apartment purchased with a mortgage before marriage is included in a different category of real estate and does not always fall under this rule and has other consequences. This is due to the fact that, even though the spouse had to start the procedure before starting a family, he continues to pay mortgage fees while married. Debentures are paid in money, which after marriage is considered a joint budget. Another situation may arise when the other half, which actually has nothing to do with the property, helps pay off the loan with its own funds. During a divorce, the question arises whether the second spouse can claim part of the mortgaged apartment. According to the law, this is hardly possible if the living space was purchased before marriage. But the other spouse will be able to count on payment of monetary compensation.

Arbitrage practice

One of the most striking examples of the division of mortgaged real estate was considered in the Sovetsky District Court of Voronezh. The primary lawsuit was filed by the ex-husband, who put forward demands for the division of jointly acquired property. The wife filed a counterclaim, which involved the division of everything acquired, taking into account the interests of two minor children. It spoke not only about an apartment purchased with a mortgage, but also about other property, in particular about a land plot, country house, car, household appliances and furniture.

Each of the spouses presented their own calculations of the division, justifying them with rational arguments from their point of view. The demands of both sides were only partially satisfied. As for the mortgaged apartment, it was divided equally, as was the remaining loan debt.

What does the law say about this?

The Family Code (Article 33) defines for spouses sharing with their property, unless other conditions are specified in the marriage contract.

The division of a mortgaged apartment during a divorce involves spouses receiving equal shares, again with the caveat that the marriage contract does not provide for a different procedure.

The Federal Law on Mortgage No. 102-F3 dated July 16, 1998 regulates legal relations mortgagee (creditor) and mortgagor (person buying real estate with a mortgage).

A mortgage is a form of security that imposes certain obligations on the mortgagor towards the mortgagee.

In case of failure to fulfill these obligations, the creditor has the right to compensate for its costs by selling the collateral.

During the validity of the mortgage agreement, the user is subject to a number of restrictions on the management of the mortgaged real estate.

Without the permission of the bank (lender), the borrower has no right:

Sell to another person;
Give;
Exchange;
Pledge as collateral to another creditor.

Any redevelopment of the apartment and registration of relatives in it is possible only with the approval of the bank.

Voluntary consent

If after a divorce the relationship is not completely damaged, then a reasonable compromise can be found.

Since the former spouses have equal rights to property, it is possible to agree to pay the remaining loan amount in equal shares or on other terms.

To do this, it is necessary to conclude additional agreements with the bank, in which all the conditions for repaying the loan by each party should be specified in detail.

By mutual agreement Other conditions may also be achieved.

Even if the loan agreement can be re-registered, you will have to pay for this re-registration. Many banks charge a fee for changing the terms of an existing contract; you will also need to renew your insurance. We invite you to watch the video.

If after a divorce one of the spouses does not intend to live in the apartment, then it makes no sense for him to pay the mortgage. In this case rights to property are transferred to one of the spouses, and along with them the loan obligations.

Wherein the spouse leaving the home is entitled to compensation for payments already made.

However, this option is not always possible if the bank considers the income of the spouse to whom the property is alienated to be insufficient to repay the debt.

Prenuptial agreement or court?

A well-drafted prenuptial agreement greatly simplifies the task., which contains clauses about possible divorce and conditions for the division of obligations and property for this reason.

Unfortunately, not all newlyweds consider it necessary to draw up a marriage agreement.

Controversial issues related to the division of mortgages sometimes lead ex-family to court. This body is guided, first of all, by the principle of equal division of both property and liabilities.

If there are minor children in the family, then preference in the distribution of shares of property is given to the party with whom the child (or children) remains. But in this case, the second parent may demand compensation for his share.

Sale of a mortgaged apartment

One of the options for solving the problem of dividing an apartment in a mortgage during a divorce is the sale of a mortgaged apartment so that the proceeds from the sale can be used to repay the remaining portion of the loan.

The remaining amount can be divided between the former spouses. In this case, everyone remains to their own and no one owes anyone.

This can only be done with the consent of the bank that issued the loan. If the bank approves the sale, all that remains is to find a buyer.

If funds allow, you can repay the loan ahead of schedule and put the apartment up for sale without the bank’s participation.

The bank has the right to put the property up for auction in the event of termination of loan payments. This is the worst option and can leave borrowers with nothing.

When is property not subject to division?

Family members do not always have equal rights to living space; in some cases, such rights are absent.

If an apartment was purchased by one of the spouses before marriage, then it is not considered jointly acquired property and after a divorce he remains the sole owner of the property.

The apartment is also not subject to division, if it was received by one of the spouses by inheritance or gift. It does not matter whether this happened before the marriage or after.

Also, during privatization, only one of the spouses can be entered as the owner, which also leaves him with the right to solely use the living space after a divorce.

It happens that during privatization one of the spouses was simply not registered in this room. Under the terms of privatization, the owner privatized apartment Only the person registered in it can become.

If children are registered in the apartment

When dividing property in mandatory the interests of children are taken into account.

The main condition is whether the child is the owner of the home or not. Living space can be received by a child by inheritance or by being included in the list of owners during privatization.

Minors do not have the right to make independent real estate transactions, but the law allows such actions with the written permission of the parents if the child is over 14 years old.

If the child has his own share in the apartment, then when parents divorce, his share is not divided between them, but added to the share of the parent with whom he stayed.

If the husband is the only owner of the home, and the wife does not have her own home, and there are children under the age of majority, then the court often makes a decision to divide the housing in favor of the wife.

How to divide a mortgaged apartment during a divorce is something that spouses who want to divorce and who have taken out a loan to pay for purchased housing often wonder about. All aspects of the division of joint property, as well as the procedure for repaying mortgage debt when dividing mortgaged property, will be discussed in detail in this article.

An apartment with a mortgage - how to divide joint real estate during a divorce

According to Article 33 of the RF IC, the legal regime of ownership of property of a married couple is joint ownership, unless the spouses have specified otherwise in the marriage contract. Article 34 of the RF IC includes movable and immovable things, as well as various incomes (from labor or entrepreneurial activity, benefits, pensions, etc.). In this case, it does not matter with whose funds and in the name of which spouse this property was acquired or registered.

Respectively, general order section of the mortgage apartment will apply if:

the special division procedure is not specified in the marriage contract;
mortgaged apartment acquired by spouses during marriage.

It must be remembered that this is only a paid transaction. If during the marriage the apartment was given to one of the spouses free of charge (by inheritance or as a gift), it does not fall under the regime of joint ownership of the spouses and, therefore, is not subject to division.

How to divide an apartment with a mortgage during a divorce

According to the requirements of Articles 38 and 39 of the RF IC, joint property can be divided in 2 ways:

By agreement of the parties. An agreement can be concluded at any time, both during the period of marriage and after its dissolution. According to the requirements of Article 38 of the RF IC, this agreement is concluded in writing and certified by a notary. In the agreement, spouses can independently determine the size of shares based on the labor contribution of each of them (or other criteria) or indicate which of them owns specific property, including a mortgaged apartment.
Judicially. When making a decision on determining the shares of each spouse, the court must be guided by the principle enshrined in Article 39 of the RF IC, that the shares of the spouses are recognized as equal, unless otherwise established by agreement between them (more information about the judicial division of property is in our separate article).

If the division of property occurs through the court, it should be remembered that this government agency has the right to deviate from the principle of equality of shares of spouses.

This possibility is indicated by paragraph 2 of Article 39 of the RF IC. The reasons for such a court decision are:

interests of minor children (the share of the spouse with whom the children remain can be increased by reducing the share of the other spouse);
the interests of one of the spouses, if the second did not have income for unjustified reasons or used common property to the detriment of the interests of the family.

How are spouses' debts divided?

The procedure for dividing the joint debts of a married couple is determined by paragraph 3 of Article 39 of the RF IC. In relation to debts, the principle is that they are distributed in proportion to the shares that each spouse received. Accordingly, if the property was divided equally, then the debts are divided in half. If, during the division of property, one of the spouses receives a larger share, he, accordingly, will be assigned a larger part of the debt.

Legal issues regarding mortgages

The definition of the concept of “mortgage” is enshrined in Article 1 of the Law “On Mortgage...” dated July 16, 1998 No. 102-FZ. According to this norm, a pledge agreement is recognized as such real estate, the parties to which are the debtor and the pledgee (a bank or other person acting as a creditor of the obligation), who has a preemptive right to foreclose on the pledged item.

Article 7 of Federal Law No. 102 indicates that jointly owned property can also be the subject of a mortgage. In this case, a mortgage can be established even if the shares of the spouses are not determined by a separate agreement.

When pledging joint family property, based on the provisions of Article 322 of the Civil Code of the Russian Federation, the spouses act as solidary debtors to the bank or other creditor. The bank, based on the provisions of Article 323 of the Civil Code of the Russian Federation, may demand fulfillment of the obligation both from all joint and several debtors jointly, and from any of them (in whole or in part). The advantage of a joint and several obligation for the creditor is that if one of the debtors is unable to fulfill the obligation, it can be demanded from others until the mortgage is paid in full.

Accordingly, spouses who have divided the pledged property in the manner prescribed by Article 39 of the RF IC come to the need to change the content of the obligation, which is secured by the pledge of the apartment. However, changing the composition of debtors and the volume of their obligations to the bank is possible only with the consent of the latter, as indicated by the requirements of Article 391 of the Civil Code of the Russian Federation.

Judicial practice on the division of mortgages

Arbitrage practice in cases of mortgage division is not diverse, since banks do not agree to change the loan obligation. As an example of substantiating the bank's position, one can cite civil case No. 2-24\11, heard in the Kalininsky district of the city of Ufa on February 15, 2011. The bank representative noted that Article 14 of Federal Law No. 102 defines the requirements for the content of the mortgage (a document certifying the rights of the mortgagee to the pledged item), according to which, in addition to other information, it must indicate the debtors, as well as the amount of their obligations.

Accordingly, when dividing debt between spouses if the agreement mortgage lending was concluded with only one of them, it is necessary to change the contents of the mortgage (inclusion in its text of information about the second spouse who receives a share in the mortgaged real estate), which is allowed only with the consent of the lender. Without such consent, division of the loan obligation is impossible.

At the same time, paragraph 2 of Article 45 of the RF IC determines that if property received as a result of the occurrence of an obligation (in in this case- mortgage), was spent on the needs of the family, then the penalty for such an obligation is imposed on the common property of the spouses. If common property is not enough to cover the debt, the spouses bear joint liability, including personal property belonging to each of them.

That is, if the loan is not repaid, the bank can foreclose on both the common and personal property of either spouse in full, which provides the bank with sufficient guarantee of fulfillment of the mortgage obligation.

When dividing the debt, each spouse will be a debtor only in part of the mortgage, and the bank’s rights will not be secured by all the property, but only by shares of the apartment, which significantly complicates subsequent debt collection. However, the division of an apartment between spouses in itself does not affect the relationship with the bank regarding the mortgage.

Position of the courts

Making a decision taking into account the position of the bank, the Kalininsky District Court of Ufa decided to divide the disputed apartment between the spouses, but the content of the spouses’ mortgage obligation remained unchanged. As a result, the former spouses will continue to be joint and several debtors until the debt amount is fully repaid.

At the same time, the court also referred to the requirements of Article 450 of the Civil Code of the Russian Federation, indicating that the loan agreement can be changed in court only in cases specified in the law, or in case of a significant violation of the terms of the obligation of one of the parties. The division of a mortgaged apartment is not a basis for changing the content of the mortgage agreement.

A similar decision on this issue was made by the Leninsky District Court of Tomsk on May 20, 2016 in case No. 2-809/2016. Considering the case on the division of mortgage debt, the court indicated that Article 37 of Federal Law No. 102 defines a list of actions (sale, donation, pledge, etc.) with the subject of pledge, the commission of which requires the consent of the mortgagee. However, the division of property between spouses does not apply to such actions.

Accordingly, the division of an apartment between spouses does not violate either the requirements of Federal Law No. 102 or the interests of the creditor. At the same time, the disputed apartment, despite the division of property, still remains pledged to the bank, which, in turn, retains the rights of claim against both debtors. The distribution of marital property affects only the relationship between the spouses and does not affect the rights of third parties.

How a mortgaged apartment is divided during a divorce

To answer the question of how to correctly divide a mortgaged apartment during a divorce, practitioners need to remember the provisions of Article 133 of the Civil Code of the Russian Federation. The requirements of this article indicate that a thing, the division of which in kind is not possible without its destruction, damage or change of purpose, is indivisible and participates in civil circulation as a single object. An apartment is a classic example of an indivisible thing, since its actual division into two or more parts without damage is impossible.

Based on the specifics of an apartment as an indivisible thing, paragraph 3 of Article 133 of the Civil Code of the Russian Federation determines that collection on it can only be made as a whole. It is the provisions of this norm that explain the position of banks that do not give consent to the division of the spouses’ mortgage debt and change the content of the obligation to the bank.

Nevertheless, in practice, several options for the “division” of indivisible things have been developed:

Conversion of common joint property into shared ownership. In this case, the spouses can determine the size of their shares independently by agreement or in court. The shares can be either equal or different. The procedure for using property in shared ownership is determined by agreement of the former spouses or, if they do not independently come to an agreement, by the court.
Transfer of the apartment into the ownership of one of the spouses and payment of a proportionate share of compensation to the other. This option is possible if the share of one of the spouses is insignificant or the second spouse has sufficient funds to pay compensation.

Division if the property mass is significant

When dividing an apartment, you should also take into account the composition and value of other jointly acquired property, since such an option is possible when the share in the mortgaged apartment is compensated by another apartment, car, garage, land plot etc. In this case, the mortgaged apartment completely becomes the property of one of the spouses, while the other receives proportionate compensation (but not in monetary version, but in the form of property).

The bank's consent is not required to carry out the above operations. As a result, the spouses also remain joint and several debtors on the mortgage obligation.

Complex section options

If the spouses do not have enough funds to pay compensation and the option of shared ownership is not acceptable, it is recommended to sell the disputed property so that the proceeds are divided according to the shares due.

A separate subtype of this option is the exchange of a large apartment for two smaller ones in area or cost. If you want to sell or exchange an apartment, you should remember the need to obtain, in accordance with Articles 37 of the Federal Law No. 102 and 391 of the Civil Code of the Russian Federation, the bank’s consent to carry out this operation, since in this case the apartment is removed from the collateral.

So, the division of a mortgaged apartment takes place in the usual manner applicable to any other indivisible thing. However, the division does not in any way affect the spouses’ obligations to the bank, since they will continue to be joint and several debtors under the mortgage obligation.

Newlyweds, confident that they will live “happily ever after”, are in a hurry to get their own home. But they don’t have the full amount to purchase an apartment, and there’s no help to come from... The bank makes a tempting offer profitable terms mortgage lending. And so, the husband and wife lovingly furnish their family nest.

Everything would be fine, but no one plans divorce in advance. In addition to dealing with other thorny issues, spouses must decide how to divide the mortgage after a divorce.

If there were no encumbrances on the marital property, everything would be extremely simple. A husband and wife who are divorced or planning to divorce could enter into a written agreement on the division of jointly acquired property and debts. As a last resort, if it were not possible to conclude a written agreement, the spouses would go to court with a claim for the division of real estate.

What to do if joint real estate is taken out on credit and is under a bank encumbrance? This is where difficulties arise. How to divide a mortgaged apartment and a mortgage loan during a divorce?

Theoretical foundations of mortgage divorce

On what legal grounds does the division of an apartment purchased with a mortgage take place and the division mortgage loan?

Section of an apartment in a mortgage loan

According to the provisions of civil legislation (Article 256 of the Civil Code of the Russian Federation), the jointly acquired property of a husband and wife belongs to them by right of joint ownership. The same provision is approved by family legislation (clause 1 of Article 33 of the RF IC). Even though the apartment was purchased on credit, it becomes the common property of the family, that is, the joint property of the spouses.

If the husband and wife decide to divide joint ownership, their parts will be equal (according to paragraph 1 of Article 39 of the RF IC) - unless, of course, they themselves divide the property differently. After all, according to family law, a husband and wife have the right to divide what belongs to them at their own discretion - by agreement (clause 2 of Article 38 of the RF IC). The same provision applies not only to property, but also to the debts of the husband and wife.

The Federal Law “On Mortgage” does not contradict this. Article 7 of this law states that a mortgage may be established on property that is in common joint ownership of spouses, subject to the written consent of the property owners.

Since the spouses’ shares in the common property are equal, the apartment purchased with a mortgage should also be divided in half between the spouses.

Division of credit debt between spouses

Common debts, like the common property of the spouses, are also divided in half. This means that the credit obligations of the spouses to repay the debt to the bank are equal.

Mortgage divorce - practice

In theory, everything is simple and clear. But why is it so difficult in practice to divide a mortgage during a divorce? First of all, because it is necessary to divide not only property, but also debt. In addition, in addition to the interest of the husband and wife, there is the interest of a third party - a banking institution:

is pledged by the bank shared apartment spouses;
The spouses have debt obligations to the bank.

All transactions related to a mortgage - selling a home after a divorce, transferring a debt to one of the spouses, dividing a loan between spouses, dividing a monthly payment between spouses - must be carried out with the consent of the bank.

According to the provisions of civil legislation (clause 1 of Article 391 of the Civil Code of the Russian Federation), transfer of debt from one person to another (from husband to wife or vice versa) is impossible without the consent of the creditor (banking or credit institution). Most often, applications from spouses to amend the loan agreement remain dissatisfied with the bank. Attempts to divide a mortgaged apartment and a loan in court without the consent of the bank also remain unsuccessful.

Why does the bank refuse to satisfy the application for debt division? According to the terms loan agreement, the bank can demand repayment of the debt from all debtors and from each one separately (in whole or in part). The division of debt leads to a significant change in the loan agreement (joint and several liability of the debtors turns into shared liability). And a dispute between husband and wife is not at all a reason to make changes to the loan agreement and limit the rights of a banking institution. Therefore, the bank does not agree to the division of the mortgage loan between husband and wife.

Based on this, there are several options for dividing the mortgage after a divorce.

If there is an agreement between the spouses

The law provides for the right of spouses to independently determine the fate of their common property. A husband and wife may choose to divide their marital property through a written agreement, both during marriage and after divorce.

If the spouses provide a written agreement on who will pay the debt to the bank and who will own the purchased apartment, the court will not deal with either the division of the mortgaged apartment or the division of the mortgage loan.
If the spouses do not have such a written agreement, the issue of dividing the mortgage will be resolved in court.

Division of mortgage with the participation of the court and the bank

If it is impossible to reach an agreement, one of the spouses must file a lawsuit in court for the division of the mortgaged apartment - ask the court to terminate the right of joint ownership. At the same time, the plaintiff does not make a demand for division of the mortgage loan - the court resolves the dispute only within the framework of the claims in accordance with paragraph 3 of Article 196 of the Code of Civil Procedure of the Russian Federation. There is no need to obtain the consent of the creditor for this - the creditor (banking institution), as a rule, will not have any objections to such a requirement, since his rights are not violated ( mortgaged property is not removed from the collateral, changes are not made to the loan agreement, the debt on the mortgage loan is not transferred from one spouse to another).

Some loan agreements provide required condition for married couples of co-borrowers: notify the bank of any significant changes in life (moving, changing jobs, divorce, birth of children). If such a condition is provided, it is necessary to inform the banking or credit organization about the upcoming divorce.

How can a mortgage be divided in court if the spouses are co-borrowers?

After the judicial division procedure, based on the court decision on the division of the mortgaged apartment, the spouses can apply to a banking or credit institution with an application for debt transfer. If the lender agrees, changes will be made to the loan agreement (the loan agreement will be re-registered to one of the spouses or re-registered into two separate loan agreements .

One more thing needs to be taken into account: for making changes to the loan agreement, the bank may charge a commission in the amount of 0.5-1% of the debt amount.

If the mortgage loan agreement is signed by both spouses (husband and wife are co-borrowers), the loan can be divided with the consent of the bank in one of two ways:

The spouses, by agreement with the bank, make changes to mortgage agreement, replacing joint (common) liability for the loan with shared (separate) liability of each of them to pay their part of the debt.

As a rule, the bank is not very willing to take such a step, because in this case it is deprived of the benefits of joint and several liability of the spouses (for example, collecting a debt from one of the spouses or from both at the same time). But, if the bank agrees, the overall mortgage becomes two separate loans. Typically, the remaining debt is divided in half, with each spouse continuing to pay their portion.

Please note: The bank will carefully check the solvency of each spouse. And only if he is convinced that both spouses have enough funds to make regular payments and repay the loan, he will agree to the division.

The purchased apartment remains in common property spouses, and shares are allocated in kind. That's right - in nature! Division of a mortgaged apartment is possible only if it is multi-room. If there is only one room in the mortgaged apartment, it is simply impossible to divide it into equal parts - which means the mortgage loan cannot be divided. Article 5 directly states this Federal Law“On mortgage” - it is impossible to allocate a part of real estate as the subject of mortgage lending if such allocation contradicts the purpose of the real estate.

So, the husband and wife divide the mortgaged apartment equally - they acquire not joint, but shared property, after which they continue to fulfill loan obligations in proportion to the shares received. For a divorcing couple, this option is not very attractive - after all, if they have no other housing, they will have to live under the same roof, albeit in different rooms.

If the former spouses manage to separate, there is a risk that one of them will stop repaying the loan - those who do not live in the mortgaged apartment, therefore do not feel obligated to pay for it or simply do not have enough funds. How will this end? If the second spouse does not regularly make payments for both, most likely the bank will go to court and receive permission to sell the mortgaged apartment at auction - both spouses will be left without housing and the invested money.

The mortgage agreement is reissued in the name of one of the spouses, and the other provides a written and notarized refusal . In this case, one of the spouses bears full responsibility for repaying the loan, and the second spouse is released from this responsibility. In this case, the second spouse is deprived of ownership rights to the apartment purchased on credit. Of course, this option, like the previous one, is possible only with the consent of the bank.

Banking or credit organisation will give consent only if one borrower is recognized as solvent and can independently repay the loan.

What if the bank refuses to re-issue a loan agreement?

An extremely unfavorable course of events is also possible, such as the bank’s refusal to re-issue the loan agreement.

It must be said that the bank is extremely uninterested in the number of loans growing (after all, the risks of non-repayment are growing), so it will prevent the division of one loan into several; it is much preferable to have several debtors on one loan. In most cases, banks exercise the right to veto and maintain the current position.

If the bank refuses to re-register the loan agreement, both spouses will still remain joint and several debtors under the loan agreement, even if by agreement or court decision the mortgaged apartment will not be divided equally between them or will completely become the property of one of them. What to do in this case?

continue to repay the loan;
find the missing amount of money and repay the loan ahead of schedule. After this, the apartment can be sold at a favorable price, and the proceeds can be divided;
sell the mortgaged apartment with the consent of the banking institution and repay the loan;
appeal the bank's refusal in court.

Thus, the husband and wife will have to come to an agreement on how to fulfill their shared loan obligations. If the loan obligations are not fulfilled, a foreclosure will be imposed on the mortgaged apartment - thus both the housing and the loan payments made will be lost. Read more about this below.

How is a mortgage divided if the borrower is one of the spouses?

There are cases when a mortgage loan was taken out by one of the spouses before marriage. After starting a family, the borrower continues to repay the loan in the same way as before marriage.

If for this purpose the spouse uses exclusively personal funds, in the event of a divorce, the mortgage taken before marriage is recognized as the personal obligation of the spouse, and the apartment is his personal property that is not subject to division.

If you used to pay off the loan general funds spouses, in case of divorce, the second spouse has the right to claim a share of the mortgaged apartment. Or vice versa, if he does not claim co-ownership of the apartment, he may be exempt from mortgage payments, and may also receive back the deposited cash.

Another situation is buying an apartment with a mortgage already during marriage, but as down payment personal funds of the husband or wife were used. This fact must be taken into account when distributing shares or dividing the balance credit debt between spouses.

Note! Conflicts can be avoided by drawing up a prenuptial agreement at the stage of marriage or by drawing up a mortgage during marriage, under the terms of which the mortgage taken out before marriage remains the property of the borrower. And if the borrower does not object to the spouse’s participation in repaying the loan, he should inform the bank about his marriage and formalize joint liability to the bank, that is, make the spouse a co-borrower or guarantor.

If the spouse does not want to enter into a prenuptial agreement or bear equal mortgage obligations, the husband and wife can only look for alternative solutions, for example...

Sell an apartment, pay off a loan, divide the money

If the co-borrowing spouses cannot reach an agreement on further repayment of the debt, if the main borrower cannot pay the debt on his own, if there is no permission from the bank to transfer the debt to the other spouse, there is another way to untangle the mortgage “tangle”.

The mortgaged apartment is sold, the loan is paid in full, and the remainder of the proceeds from the sale is divided between the spouses. And sometimes, despite the banal “nowhere to live” or the emotional “it’s a pity to sell almost “your” home,” selling an apartment becomes the only optimal solution.

First of all, because divorcing spouses are freed from the need to live under the same roof, in addition, they are relieved of the obligation to make loan payments.

But, like other options, this option for solving a problematic issue has its drawbacks:

Firstly, to sell an apartment you also need to obtain permission from the bank. Banks do not always give their consent - after all, when selling an apartment and paying off the loan early, part of the interest is lost.
Secondly, finding a buyer who will be interested in buying an apartment secured by a bank is very difficult.
Thirdly, as a consequence of the previous shortcoming, the mortgaged apartment has to be sold at a significantly reduced price.

Thus, if the bank agrees to sell the mortgaged apartment, the husband and wife will have to find a buyer who will agree to purchase the encumbered home. The buyer will have to pay the balance of the loan and wait for the paperwork to remove the encumbrance from the collateral property. To compensate for the risks and time spent, apartment sellers have to reduce the price of the apartment.

Other options

There is one option that will help you avoid long and fruitless negotiations with a banking or credit institution and simplify the mortgage division process as much as possible. This early repayment loan. The only difficulty is finding a sufficiently large sum of money (by selling other expensive property, taking out another loan). By the way, sometimes the bank itself makes a demand for early repayment of the loan in the event of divorce of the co-borrowers (if the corresponding condition is contained in the loan agreement).

Another option, which, of course, requires responsibility, decency and the ability to make compromise decisions from the husband and wife - not to divide or re-register anything, and to continue paying the loan after the divorce as before. As a rule, this option is practiced if, after the divorce, the spouses continue to live in the mortgaged apartment, or if only one of the spouses with a common child lives in the apartment.

Mortgage section if there is a child

The court may deviate from the principle of equal shares of husband and wife, and divide joint property into unequal shares - if common minor children remain living with one of the spouses. Thus, often the mother gets a larger share of the housing compared to the father, while the loan is paid equally by the parents.

Sometimes maternity capital is used to fully or partially repay a mortgage loan. In this case, the children are entitled to a share in the mortgaged apartment after the loan is repaid. Thus, the division of the apartment will be even more unequal for parents, one of whom remains to live with the children (at the expense of the children’s shares), and the second - without children.

Important! If a child is registered in an apartment, before selling the home you need to obtain permission from the guardianship and trusteeship authorities - to do this you need to prove that the child will be provided with normal living conditions after the sale. Otherwise, parents will bear administrative responsibility and may even be deprived of parental rights.

Is it possible not to pay the mortgage after divorce?

Situations are common when, after a divorce, a husband or wife stops contributing funds to repay the loan. There can be many reasons for this - from lack of money to the desire to annoy a former “other half”, but the consequences are the same for everyone: late payments lead to the accrual and accumulation of penalties - not for one debtor, but for both, regardless of who does not pay. Late and incomplete payment of the loan balance, interest, and penalties leads to an increase in debt. Ultimately, the debt may reach such a size that a banking or credit organization will receive permission through the court to sell mortgage real estate, and the husband and wife will be left homeless and without money.

What to do if the husband or wife refuses to pay? A solution to this problem may be to re-register the loan agreement in the name of a solvent debtor and remove the loan obligations (as well as property rights) from the debtor who is evading payments. The second solution may be early repayment of the loan by one of the debtors, sale of the apartment and division of the proceeds between the former spouses. More details above.

Lawyers joke that a mortgage is more reliable than a spouse. And indeed, if more than 18% of families break up in the first 3 years of marriage, then the loan does not go away, and the former spouses still have an apartment with a mortgage.

How to divide mortgage property during a divorce in 2019? Let's look at all the details.

How to divide a mortgaged apartment during a divorce?

First of all, you need to learn all the intricacies of the partition process. Practice shows that solving a problem can take a long time: until the spouses decide who will get the children, draw up all the divorce documents and agree on who pays, months may pass. However, do not delay: If the loan is not repaid within three months, the bank has the right to dispose of the housing at its discretion. It is in your best interest to complete the process as quickly as possible.

Where to begin? First of all, answer the basic questions:

Are you officially married?
Have you concluded marriage contract?
Was the mortgage taken out before or after marriage?

These three main points will influence your further actions.

Actual defect and drip

Cohabitation, or, as people call it, “civil marriage” (although this usage is fundamentally incorrect) in this case is a sensitive topic, since de facto spouses are not covered by articles of family law.

If the marriage contract was not drawn up, the mortgage (like the apartment) is more likely to remain with the person in whose name it was registered.

If there is a need to prove that both formal spouses participated equally in the mortgage, witnesses and evidence are included, for example:

checks;
personal account statements;
payment receipts;
other;

The same rule applies to renovations in a mortgaged apartment or the purchase of expensive equipment. In this case, it is only possible to prove something in court with the help of a good lawyer.

Marriage contract

Drawing up a marriage contract is something you should think about “on the shore.” The document spells out all aspects of the division of real estate, including a mortgage, even the one taken out before marriage. Since the document is certified by a notary, he will play a key role in the legal process.

If you have entered into a prenuptial agreement, the mortgage will be divided according to the agreement. If not, then you will have to resolve the issue through the courts.

Mortgage before marriage. How to divide?

According to the family code, all property acquired before marriage is considered personal, which means that after a divorce it is not subject to division. However, with the permission of the same family code, the ex-spouse can claim a share in the apartment, since the loan payments were made from total budget. At the same time, even a non-working person can make demands: the income of one of the spouses in a marriage is considered the common family budget.

Judicial practice shows that processes are often completed in favor of such a spouse, especially if there is a good evidence base (checks, statements, etc.) and an experienced lawyer.

The situation is more complicated with apartments taken on a mortgage in a new building. According to the law, ownership of such housing will be given only after the facility is put into operation. Therefore, the situation can develop in two scenarios:

If at this time the borrower is married, then most likely the court will oblige him to allocate a share in the apartment to his ex-spouse during a divorce.
If the borrower divorces before receiving the certificate, the court will order compensation to be paid to the ex-spouse, since according to the law, the loan was paid jointly.

The court's decision on a mortgage taken out before marriage largely depends on the experience of the lawyer.

Mortgage during divorce, if the former spouses are co-borrowers

Statistics show that in more than 70% of cases, ex-spouses are co-borrowers. In this case, before filing a division of the mortgage during a divorce, you need to think about everything possible options and try to resolve the issue peacefully. This will help avoid litigation, loan defaults and other unpleasant moments. You can peacefully resolve the process:

Continue paying your mortgage together;
If one of the spouses refuses the mortgage and apartment in favor of the other;
If the bank agrees, sell the apartment and divide the proceeds in half;
Pay off the mortgage in full, then sell the apartment and divide the funds;

The last option is the simplest in terms of registration, since it does not require lengthy proceedings. However, it is rarely possible to solve the problem this way.

When choosing the first option, you need to contact the bank to draw up a new agreement that will facilitate payments. Then each borrower will pay his share of the loan debt separately. It is worth considering that shares can be voluntary. Judicial practice shows that banks rarely agree to share a loan, since this can result in additional difficulties for them. You must remember that any decision of the bank can be challenged in court.

How to sell an apartment with a mortgage?

Sell an apartment for which the loan has not yet been paid, possible only with the permission of the bank. It won’t work out any other way: the mortgaged housing is pledged to the bank until the loan is repaid in full.

When selling an apartment, each of the former spouses has equal rights to part of the housing, or its cash equivalent.

This method is inconvenient not only because of additional difficulties with the bank, but also in monetary terms, because: Finding a buyer for an apartment encumbered with a mortgage is difficult. Few people are willing to spend money on additional legal checks and execution of the purchase and sale agreement. And you will have to sell your home at a reduced price, otherwise no one will buy it.

What to do if your ex-spouse refuses to pay?

It often happens that one of the former spouses refuses to pay their share of the mortgage. In this case, the contract is reissued to the solvent. The second one is cleared of all litigation regarding payments, but he does not have the right to demand a share in the apartment.

If one of the co-borrowers refuses to pay the mortgage within 3 months, but is in no hurry to sign a waiver of the share in the apartment, there are 2 ways to solve the problem:

The mortgage loan is repaid by one party.
The bank sells the home, and the proceeds go to pay off the loan. Most often, the bank sells housing at a low cost, approximately equal to the amount of debt, which significantly speeds up the process.

Mortgage in case of divorce of spouses with children

If former spouses have minor children, the share of ownership in the home changes in favor of the person with whom they remain. Based on this rule, further division of the mortgage occurs.

Note! If a child is registered in a mortgaged apartment that is for sale, he must be registered with urgently! Otherwise, the parents may become interested in the guardianship authorities, even to the point of raising the issue of deprivation of parental rights due to the inability to provide normal living conditions for the child.

How will we divide?

Contrary to popular belief that during a divorce the apartment is divided in half, the shares in the housing may be unequal. It depends on many aspects, for example:

presence of children;
whether a mortgage was taken out before marriage;
to what extent each borrower participated in the payments;
and others;

The proportions may vary and are determined by the court.

Military mortgage and divorce

The division of property taken under the military mortgage program differs from a regular mortgage because the payment obligations fall not on the spouses, but on the Department of Defense.

A military member becomes a participant in the program, as well as a homeowner, regardless of the presence of a spouse or children.

Therefore, the division of the mortgage does not require the participation of the latter. Also, the participant does not have the right to renew the loan agreement, even if it is necessary to divide the apartment purchased with a military mortgage.

These rules also touch on the other side of the issue: in the event of non-fulfillment of the terms of the CZH contract (non-payment or other force majeure circumstances), the serviceman himself is obliged to return the funds taken under the program, but not his other half, even the former.

Renting a mortgaged apartment Some divorced spouses decide to temporarily rent out their mortgaged home in order to pay off the loan. However, such actions are illegal, since the apartment is pledged to the bank. That is why.

concluding a lease agreement is impossible without the bank’s permission

Video: Mortgage and divorce AND

togas

If you want the mortgage division to end with a positive outcome for you, you need to approach the issue with all responsibility. Try to resolve this issue peacefully: it will save you a lot of effort. If it doesn’t work out, then collect all the papers proving your involvement in repaying the loan and don’t skimp on a good lawyer.

Read also:

17 Comments For any re-registration of the loan agreement banking organization

has the right to charge a fee for changing conditions in the amount of 0.5% to 1% of the amount of the remaining debt,... Hello! I'm wondering which spouse should pay this commission? The ex-husband promised to pay compensation for giving up his share in the apartment to his ex-wife, but now wants to withhold the amount of the commission from her compensation. You can demand some kind of compensation for paying off the mortgage (regardless of whether before or after the divorce) from your spouse if I am the borrower and he is a co-borrower. The mortgage payment was made from my card, but my husband transferred the funds to it. Wherein Lately

both were listed as unemployed. shared ownership for 2 me and my husband. I am a borrower husband with a borrower. Is it possible for him to give up his share of the apartment in favor of me and stop being with the borrower? Or vice versa? We don’t want to share the apartment, we just want someone to own the apartment and the mortgage after the divorce. Is it possible?

During the marriage, a mortgage was taken out with the payment of financial capital, they paid off the mortgage for five years, the divorced husband refused to pay off the mortgage, the bank made demands for full repayment loan and put the apartment up for sale, one child lives with him, the other lives with me, can I return the materiel based on the purchase of housing for children? Or will everything go to the bank from the sale?

My husband and I have been married since 2011, and in 2012 our daughter was born. in 2016, we took out a mortgage and bought an apartment in a new building, which is fully registered in my husband’s name. delivery of the house 3rd quarter of 2017. My husband pays the mortgage. But now we want to get a divorce. What is the right thing to do with an apartment that has a mortgage and has not yet been rented out? What rights do I have to it, and what is the right way to deal with the mortgage. My husband offers a notarial agreement, the apartment supposedly remains for me and the child, can it be re-registered in the name of me and the child? He pays the mortgage himself and gives alimony according to his conscience. what would you recommend?

We have been married for 12 years...we have a 10-year-old son...three years ago we took out a mortgage...it was difficult to pay financially...in the end my husband went to live with his parents and checked out of the apartment...the mortgage was issued to me as an owner and a husband with a borrower... now here I am alone with a child. For some reason, alimony does not come, although it was filed along with the divorce... tell me where to start... The bank allowed the apartment to be put up for sale, but when will it be bought. It’s difficult say... The husband refuses to pay half the amount on the mortgage... will the husband pay half the amount on the mortgage before the sale of the apartment, if I go to court... I just can’t do it alone, I don’t have enough funds. Tell me what’s the best thing to do?

Hello, I have a question... The house was purchased with a mortgage... while married... I am a co-borrower.

We are getting a divorce. The debt remains small, it can be fully paid off in one payment. Three children, two of which are my husband’s and one mine from my first marriage. At the time when we took out the mortgage, his two children did not exist yet... there was my child and daughter our joint one (she later died)...Mat.kopetal was used to pay off part of the mortgage (in full). We pay off the mortgage together from the general budget. Can the house remain for me and the children during a divorce (they are all registered in this house) And what about my husband? then you have to pay interest???

Good evening. The mortgage is in my name. Ex-husband did not qualify as a co-borrower, since at the time of registration of the mortgage he did not have Russian citizenship. The apartment was purchased using maternal capital. I was the only one who made all the mortgage payments, since he didn’t work. The children live and are registered in this apartment with me. The ex-husband was also registered in this apartment after receiving citizenship. Six months after registration, we divorced. I went to court to remove him from registration and was refused. The judge said he couldn't be removed because he was the owner. And he has the right to half the apartment, since it was purchased during marriage. He does not pay alimony, mortgage or utility payments. He refused to share the mortgage and said that he would not pay anything. Am I really going to have to work two jobs for another 18 years to pay off the mortgage payments on an apartment that will never be mine or my children’s? What should I do?

Who was he in the deal? You cannot throw out your official husband during a transaction. He is either a Co-borrower, or a Guarantor, or a party to the Marriage Agreement. If he is a party to the Marriage Agreement, then he has no right to claim the apartment. Bring this agreement to the judge.

Good afternoon Married since 2012, we have children born in 2013 and 2016, all four of them are registered in a mortgaged apartment (they took it in 2013), my husband is a borrower, I am a co-borrower. There is a mat included in the apartment. capital. My husband paid for the checks, we live on my salary, I’m officially in maternity leave since 2013, although in fact I have not worked for a total of a maximum of a year (childbirth and the first months after the birth of children). In the event of a divorce, both children will live with me, how can I divide the apartment in this case? must be paid until 2028. I have no desire to sell, especially since I brought most of the money invested in furnishing the apartment to the family. It’s a pity that I didn’t foresee this outcome in advance and didn’t save the receipts. What should we do now? Thank you in advance for your response.

Tell me please. I was afraid of a 50/50 mortgage. My husband is a borrower, I am a co-borrower. I no longer live in this apartment. He lives. I don't need her. Please tell me how everything will be resolved during a divorce?