Mortgage when divorced spouses with children: problems and solution. Mutually beneficial options for the section of the mortgage loan upon divorce

The division together is a pretty unpleasant process for a prequering pair, but even worse, the section of the mortgage during divorce. The fact is that this process is associated with banks, therefore, turns from the bilateral proceedings into a tripartite.

For mortgage spouses, this is usually joint commitments to be divided. So the Articles of the Family Code (SC) say. Everyone defends their own interests so as not to be the only debtor.

The banking institution is interested in the spouses - co-coaches continued to make funds. Therefore, it is completely legitimate in the process, trying to protect his money.

We will analyze how the mortgage is divided when the spouses are divorced, which circumstances affect the final decision on the fulfillment of obligations on the loan after a divorce and in what situations the debt is obliged to pay only one party.

Legislative foundations of the mortgage section

Regulatory requirements for the section of real estate acquired by a pair are contained in paragraphs 38 - 39 SC. In particular, from their content proceed when they decide how the apartment in the mortgage is divided by divorce. Nothing is said about the debts themselves. They are taken into account indirectly, as part of the joint.

Logic is as follows:

Spouses after the wedding:
- law;
- contractual.
In the latter case, the section of the mortgage apartment is described in a contract.
With legal mode (it is installed automatically) everything is well joint, that is, belongs to both at the same time.
After termination, bonds can be divided in two ways:
- compiling a voluntary agreement;
- trial in court.
The court of debt will be included in the list of jointly htizable. How will the section will occur based on the norms of legislation.

Tip: The mortgage section is more profitable to carry out a voluntary agreement. Below we will examine why.

To figure out how the mortgage apartment is divided, it is necessary to find out the starting conditions. There are factors that change the logic of the process radically. They need to be dealt. Such, for example, are:

registration of official marriage or the absence of such;
was property purchased:
- married;
- before the wedding;
lied marriage contract;
whether a couple of or more couples acquired.

Thus, it is impossible to explain one thing ones, as the section of the property of partners of partners in the mortgage will occur. Each situation has its subtleties and nuances.

Civil marriage

Attention: Partners living without official registration are not subject to the RF IC. Their relationships are civil and are considered on the basis of the Civil Code (GC).

From the above rule, a mortgage apartment at the divorce will be given to the one at whom property has been framed:

one of the partners;
both in certain documents.

Thus, who will remain real estate, are judged by property registration papers. Moreover, this citizen It will be forced to pay for the bank debts on their own.

There are exceptions to this rule. IN judicial order It is possible to prove that the mortgage taken to buy housing was paid for funds for the second partner (not the owner). Then it will be possible to qualify for some square meters. The court will allocate exactly as much as it was paid by the owner.

As evidence of the fact that a person paid an apartment in Mortgage, they are accepted:

payment documents;
bank certificates;
checks;
extracts and other.

Consider an example. Sidorkin and Ivanchenko during a civil marriage acquired an apartment on credit. Mortgage and real estate decisions decided to hold on a man. After a certain time, they broke up. Sidorkina decided to divide the apartment, as he spent on paying the loan to the funds along with a civil husband.

A man for the selection of property share did not agree. I had to go to court. As evidence of its rightful Sidorkin brought an extract from the bank. This document contained information about the transfer of funds to the institution issued by the loan.

The court ordered Ivanchenko to allocate part of the Sidorkina ownership, equal to the amount of funds made by it in recalculating square meters (at a market price).

Real estate acquired in mortgage to marriage or married

In this case, paragraph 36 SK is taken into account. He suggests that property acquired before the design of Uz is personal property. Consequently, the section of the apartment is not produced. She, as well as debt before financial institution, remains the owner.

In this case, former spouses have full law Modified both. But for this it is necessary for the voluntary consent of the owner of square meters. This decision is made to the contract on the division of property.

Otherwise, the owner may not file a claim for the recovery of a part of funds from a former partner. Proof of investment family facilities The loan repayment is a certificate from the banking institution about making money to the account during the existence of the family.

Attention: if the repayment was carried out by other persons, for example, relatives, then the money will not work out. In addition, the owner cannot claim housing.

Consider an example. Ivankina appealed to a lawyer for advice. She was interested in the following: "If I interfered with my husband, on which mortgage was framed, can you claim an apartment?".

The lawyer explained that when divorced it loses the right to housing, as it was not shared. However, it may require half of money made during the marriage to the bank. The situation was complicated by the spouses to extinguish the credit of her husband's parents. They contributed money to the bank. And it can be proven:

checks;
testimony.

In addition, Ivankina itself did not work, the family budget did not replenished. And although this circumstance does not affect the recognition of the whole prolonged joint (article 34), this will affect the situation dramatically. If the mortgage was paid for donated with means, then to recover them will be quite difficult. The lawyer advised the woman to leave this idea. Since the trial is unlikely to lead to positive results.

In this situation, it does not matter to whom a loan is issued. Divorced equally are:

owners of housing;
linds.

Partners have a choice, how to do after the divorce:

reach an agreement;
go to court.

Divorce in the presence of a mortgage gives rise to another obligation: to warn the creditor on the change of circumstances (Article 46).

Practice shows that split mortgage apartment And debts are better by mutual agreement. Most of consisions Ends in this way. Those who are trying to figure out how to share debts should be understood:

The state practically does not interfere in agreement of the parties. How to divide the apartment and debts are their personal matter. The state responds only in two cases:
- in the presence of a claim (the court disassemble);
- in disruption of the rights of minors (may intervene the body of the guardianship or prosecutor's office).
The fission process depends only on the opinions and interests of declared. They can develop conditions suitable by both:
- in equal parts;
- shifting responsibility only per one;
- in unequal parts:
  - own;
  - debt.
- Restriction apply:
  - if there are children;
  - if budget funds used.

The agreement on the section of housing and debts can be:

when people are bred, but formally, the parting is not issued (during the reality of marriage);
after receiving the evidence of the break of the UZ.

Tip: notarization of the document does not require a law, but it is better to get it. This measure will protect against the complaints of the partner with which they divorced. He will not be able to give up his signature.

Most often, partners do not find agreement in how to divorce debts and property. The law allows one of them or both to go to court. At the same time, it should be understood the logic of this body. That is, to focus on what norms the court is based on a divorce, as it takes the section, what factors take into account.

The logic of the judge is such:

sharely acquired must be divided equally after termination of UZ;
communals are required to make the same contributions to debt repayment;
an exception is the case if there is a child (ability).

The court does not take into account such factors personal life Arguing:

lack of income or employment;
health status.

For the court it is important whether the mortgage was framed before marriage or after. When solving the issue, it will rely on the norms of family legislation, that is, it will make a divorced pair to pay in equal shares.

Mortgage when divorced spouses with children or with budgetary funds

The state is to protect the rights of minors. This affects how the debts of the spouses are divided. So, a smaller share can be awarded to the parent with whom children remain if he:

is disabled (disabled);
temporarily does not work;
located on vacation for a juvenile child.

In addition, the section of debts and acquired property is influenced by the fact of pregnancy of a declared woman. This is a little more accurate.

The court can not completely free from the payout. It comes from the principle of the equality of spouses. That is, the mortgage is obliged to be owned both. But a voluntary agreement can be released one of the parties from financial obligations.

There is another factor that should be considered in the presence of minor children. Juvenile must have accommodation. Consequently, the court will insist on the allocation of most square meters to the partner with whom they remained. The process of guardianship is often attracted to the process.

Finding out what to do with the mortgage must take into account the ways to finance it. There are several improvement programs in the state housing conditions. The most common:

military mortgage.

Each option has its own characteristics in case of divorce:

When using the Matteripal, all members of the family (including those who are not born) become owners of housing. Square meters will be divided into equal parts.
Military mortgage is funded by the Ministry of Defense. Property is drawn up in the ownership of the military. To sue the former partner part of the meters is difficult.

Participation of creditor

Viewing what to do with a mortgage when divorced, it is necessary to take into account the third party - the bank. Financiers do not like risks. They relate to the change in the marital status of borrowers with suspicion and distrust. The bank may require:

repair a loan agreement;
return funds by taking new Credit On the worst conditions.

Tip: Points of this should be in the mortgage agreement.

The bank has such rights:

participate at the court session;
put forward proposals for distribution of debts;
protest:
- decision of the judicial instance;
- conditions of voluntary agreement.

People who have decided to divorce, experts advise the following options for solving a mortgage problem:

You can sell housing and return funds. The same, as a rule, offers a bank institution. The option is considered the most advantageous for divergent.
If you cannot implement square meters, then you can:
- Divide housing and debts into two separate contracts (not welcomed by the bank). The institution will offer disadvantageous conditions to those partners who made a divorce when reissuing the loan agreement on the mortgage for two.
- One of the divergent can refuse property. Then the money will pay the one who will get the apartment.

The section of mortgage debt between spouses depends on:

Credit timing time:
- before marriage;
- during the period of Uz.
Ways to solve the problem:
- by drawing up agreements;
- in a court.
Availability of children or pregnancy.
Attracting budgetary funds.

In solving questions, the section participates a bank institution. It has fairly broad rights.

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Given the percentage of divorce in the country, quite often the section of debt on the mortgage becomes the subject of a dispute between the cessparts with spouses. The main problem is not so much the fact of the section of the impressive debt obligations, so much of its conjugacy with the need to partition acquired by the housing mortgage. After all, each side, as a rule, wants and get at least part of the property, and reduce its possible financial costs associated with debt obligations to a minimum.

Alas, if not to go on some compromise, it is hardly possible to resolve the situation in peaceful way. In addition, law and judicial practice, when considering the issues of the property section and the debts associated with it, do not operate with the concepts of "honestly" and "fairly", and therefore, relying on the effective resolution of the dispute in court, it is not always possible to get the desired.

Most the best way divide the mortgage - agree. And in order not to be in the future sense of the unfair section, and there were no possible claims, disputes and litigationIt is advisable to be guided by the norms and rules that are set out in the laws and which they operate Russian courts.

The section of mortgages decorated during the period of marriage

In most cases, the mortgage is drawn up during the period of marriage. By general ruleThe mortgage was made in banking practice, the mortgage is made on one of the spouses, while the second acts as a coacher. These circumstances mean:

Both spouses carry solidarial (equal) responsibility for debt. Accordingly, the spouses among themselves did not agree, the Bank is entitled to and during the marriage, and after the divorce to present claims on the payment of debt or any of the spouses or immediately in relation to both.
Both spouses have equal rights to the real estate acquired on mortgage, that is, each of them belongs half in the right of ownership. From this, the Family Code comes from this, according to which, in the case of divorce, property will be divided into 50/50 ratio, and on the basis of this and the mortgage duty will be divided similarly.

The above can be called an ideal situation - such that is not complicated by concomitant factors, among which may be:

the conditions allowing one of the spouses to qualify for a greater share in the right to real estate acquired on the mortgage, in particular, the presence of children and their accommodation after a divorce with this spouse;
registration of ownership of the residential real estate only on one of the spouses, which is permissible if there is a consent of the bank or when issuing a loan before marriage;
the presence of a dispute about the right of ownership of housing, which is usually provoked by the fact that one of the spouses during the period of marriage of the whole or most of the financial load on the mortgage, including invested its personal funds.

If there are no difficulties and disputes, mortgage can be divided between spouses as follows:

At one of them is fixed (issued) property ownership with the transition of all mortgage obligations.
The spouses conclude an agreement on the division and debt section in accordance with the agreed agreement reached: standard - 50/50, or in another ratio. Depending on the situation, one of the spouses compensation can be paid by one of the spouses.

Important : All agreements achieved between spouses about paying the debt cannot legally affect the conditions mortgage contractAs long as the bank does not give his consent to change these conditions. But the agreement (written and notarized) can be used as evidence in the event of a dispute between the spouses about the execution of the loan obligation. Similar concerns the property acquired on mortgage, since in this case it is a key to dispose of which without the consent of the bank, unless otherwise provided by the mortgage agreement, the spouses are not eligible.

To comply with all formalities, it is necessary to initially agree on the planned section of the loan and collateral with the bank. If the bank does not make concessions, it does not agree to conclude a new treaty or an additional agreement to the main, unfortunately, it is possible to finally resolve the section of mortgages and housing, it will be possible only in court, including the result of which will only be approved by the Agreement of Spouses. Otherwise, the risk will also have to be guided by agreement and relying on the fact that it will be properly implemented without causing complaints from the bank on the execution of credit commitments.

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The presence of children by itself does not affect the section of the mortgage obligation. But it affects the features of the property acquired on the mortgage. By the court decision for the spouse, with whom the child (children) remains, the larger share in the right of ownership of housing can be enshrined than for the second spouse. However, in this case, the first spouse will also be entrusted with a larger share of loan obligations, which is not always a good outcome.

As in the case of childless couples, the best option The mortgage section in the presence of children is a peace agreement. It is impossible, again, forget that housing for mortgage - mortgaged propertywhich the Bank may draw a penalty regardless of the presence of children and their registration on the disputed living area.

Conclusion of the agreement between spouses to appeal it legal action The loan agreement will require the consent of the Bank, both in terms of mortgage commitments and in terms of the conditions for the disposal of real estate.

No matter how property has been done on mortgage housing, if the mortgage is obtained during the period of marriage, the provisions regulating provisions to all legal relations general terms and Conditions about mortgage. The apartment or the house, as a general rule, is recognized by the progressive property, which is divided by 50/50 or according to other shares that spouses agreed, or who determined the court.

The design of ownership of mortgage housing is only rarely found for one spouse. This is possible if permissible lending conditions or agreed with the bank. But, as a rule, the second spouse will still be a coacher or at least the guarantor.

At the same time, in practice there are several situations:

Property is decorated only for one spouse, because it carries the main or all of the financial burden on the mortgage, including invested his personal funds to repay mortgage debt or the initial contribution. In the presence of a dispute, if the spouse proves the circumstances to which it refers, mortgage real estate can be:

recognized by the personal property of his spouse;
divided, at the same time for his spouse, made a property, the larger share is recognized.

Property is executed only on one spouse based on the profitability of further development of the situation for family budget. Usually do so to get better conditions for tax deduction or other preferences. In such a situation, the general norms of the division of property and debt on mortgage will be operated, and housing is recognized joint property spouses.

In any case, the section of the mortgage is "tied" to the property section and actually received after this shares of spouses.

The section of the mortgage received before marriage

If the mortgage is decorated before marriage, regardless of the causes of this approach, then formally liabilities on the mortgage, as well as the ownership of real estate, apply only to one spouse. And here it usually arises the problem of choice:

is it worth picking up all mortgages obligations, even if in exchange for this you get the sole, untarished ownership;
it is worth it, without formal reasons, to give part of his property, for which partially, and perhaps, and fully carried out the obligation during the marriage, in exchange for exemption from debt.

If there is a dispute, the court will decide:

There is a reason for challenging the ownership of one of the spouses.
Is it possible to recognize mortgage real estate with the joint property of spouses.
When recognizing the ownership of collaboration - what are the size of the shares of each spouse.

If the court does not recognize the ownership of the joint, all mortgage obligations will be assigned to that spouse, which issued it. In this case, do not need to make any changes to the loan agreement. In the opposite case, the debt will be divided according to the awarded shares.

Based judicial practice 2015-2016 And according to the position of the Supreme Court of the Russian Federation:

Mortgage real estate to share with extremely detailed consideration of the question, which of the spouses, in which volume and at the expense of what funds (personal, general) actually contributed money to repay the mortgage.
If the spouse made his personal money (recognized by the court such), their cumulative volume will be deducted from the property mass to be separated. Making personal funds - An important trump card that allows you to qualify for a greater share or all mortgage real estate.

At the same time, it is always worth remembering that obtaining property rights and the size of the share in the mortgage apartment (home) directly determine the amount of mortgage debt. Therefore, it is important to watch what will be profitable and what is not. Sometimes it is even easier and more profitable to sell mortgage real estate with the consent of the bank, pay off on debts in full and calmly divorce without mutual commitments and disputes.

If you have any questions about how to divide the mortgage when divorced, our duty lawyer online is ready to answer them quickly.

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:

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.
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 the mortgage and housing completely on another spouse and displays a coacher from the mortgage agreement. However, the credit institution will only take this in the case of sufficient solvency of the remaining borrower.
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.
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 of 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:

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.
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:

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.
Since the cost of mortgage housing is paid gradually for many years, it is logical that part of the money could be paid precisely from the total family budget during the 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:

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.
The division of real estate on the share is commensurately making payments from the general family funds 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.
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:

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;
If a child has a property share in real estate, it is added to the share of the parent, with whom it remains;
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;
When selling mortgage housing and the presence of a prescribed child in it, it must be discharged;
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:

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);
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;
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;
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:

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.
Accurate real estate shares, the possibility of paying monetary compensation If the share is refusing, as a loan commitment will be distributed when divorced.
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:

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.
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.
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.
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.

Our readers ask how the mortgage will be divided by the divorce of spouses having children. The divorce procedure itself is not the reason for changing the conditions for housing loan. Spouses will continue to bear joint mortgage responsibility.

What does the legislation say?

In the Family Code of the Russian Federation, the following spouse rights are indicated, which have children, mortgage apartment and bred:

The common property of spouses is any property that was married (it does not matter to whom it is framed).
Previously, payments were paid at the expense of the common property of her husband and wife
Since the spouses carry a solidarity responsibility, the bank will force them after the divorce to jointly repay the loan.
It is divided into two equal halves. But if there are children in the family, then the parent with whom they will live, gets most of the housing.

The responsibility for the mortgage is carried by both spouses, regardless of who concluded a contract with the bank. Some banks may require early repayment Obata, learning about the upcoming divorce. Read more about how to properly extinguish a mortgage home or apartment, you can read in this article.

IMPORTANT: In each such case there are many nuances that will necessarily be taken into account banking organization. If you and the former spouse you can not come to a single solution, which would suit both sides, you can always go to court. To be guided by the Family Code, Civil Code, federal law "About mortgage", and, of course, your contract.

But here it is worth remembering that there is no single scenario for the development of events, for each case there will be absolutely unique solutions, precedents for a reference point simply does not exist. Unfortunately, it is very hard to come to consent, because There must be taken into account the opinions of several parties at once.

How can real estate and debt?

It is worth noting that such a division does not always occur according to the standard scenario, each case is individual. All different circumstances, income.

The following options are possible:

In the presence of the Bank's consent, it is possible to make changes to the mortgage agreement and share responsibility for repayment of debt to certain parts.
If there is a marriage contract or through court, the apartment can be divided by agreement.
The apartment is divided into a court, sometimes possible if one of the spouses can prove that only he participated in.
The transaction can only be reissued to one, but only if the bank is to make sure its solvency, good credit history, reliability as a payer. The future borrower is important to know how to save credit history Positive, in spite of everything, this review will tell about this in detail.
If one of the spouses refuses to make money on the repayment of the loan, then after divorce the debt completely turns on the shoulders of the second co-coacher. If he does not agree, the apartment will be exhibited by the bank for sale.
The spouse that will cover all the debt to the lender may require monetary compensation from the second, in accordance with the amount submitted.
If mortgage contributions do not arrive within 3 months and more, housing will be put up on the auction, and the borrowers will receive the balance of funds after the sale and repayment of debt. If a child is registered in the apartment, then it needs to be written. The court can give a delay to find a new housing. If, by the court decision, the child will not be discharged on time, the guardianship authorities can raise the issue of imprisonment of parental rights on the basis that parents cannot provide normal conditions for children.
Mortgage apartment can be sold for a former husband and wife to pay off debt. The residue is divided between spouses. About how to sell accommodation under mortgage, read.

Important moments

Before you decide on some actions, read your loan agreement carefully, please contact the Bank to receive advice on your issue. Very often in the contract it is written that the spouses become coaches, which is beneficial for everyone - increasing income, for the bank is additional insurance, etc.

What turns out to be in practice? Often there is another sequence, which states that when divorced, the terms of the contract do not change. This means that if one of the parties refuses to continue payments, then all obligations will completely switch to the second co-coacher. And it will be very difficult to challenge it.

In fact, you will have only 3 options for the development of events: continue to pay together, find the missing amount of debt for early repayment, or sell a departure to the bank. In many cases, the third option is used to satisfy the interests and lender and debtors.

: 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.

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Frequent Mortgage Questions when divorced, which are asked to lawyers

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

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.
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.
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.
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.
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.
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.
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.
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 the 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.

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.
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.
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 a 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.

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

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.
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 your service bailiffswhich 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.
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.
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.
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.
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.
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.
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.
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.
Mortgage when divorced: how to share if there is a child?

The husband requires compensation for a 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.