If the mortgage is issued to one of the spouses. Mortgage in case of divorce of spouses with and without children before marriage and during: how does the marriage contract affect the section
The number of divorces in the Russian Federation is growing every year, this may be due to various circumstances, but the result is always the same - the disintegration of the family. The presence of a mortgage does not make it possible to disperse in different sides no mutual claims.
The couple will have to decide how to divide not only the property itself, but also the remaining mortgage debt. The resolution of these issues is often carried out in judicial procedure if it is impossible to agree with each other.
Spouses who have entered into a formal marriage relationship are endowed with certain responsibilities. They run a common household and everything that they earn and use to improve their everyday life is considered joint. In the event of a divorce, one has to divide the acquired between the husband and wife. The division of property can be done in several ways:
- According to the law, namely in equal shares between the spouses.
- By joint agreement - in any proportions that suit each other.
- Under the marriage contract.
Many families today conclude a contract upon marriage. This is a convenient form that allows you to avoid many conflicts in the future, if they decide to suddenly get divorced. It prescribes any conditions that will be achieved by the parties to the spousal 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 issues peacefully, deciding who will get what and in what shares. If there are children, their interests can also be taken into account.
Unfortunately, often a divorce is accompanied by a serious resentment of the parties against each other, which excludes peace 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 the existing legislation in this area.
Legislative regulation
The law regulates the legal relationship between spouses. 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 can file a claim for division, as well as the creditor who forecloses one of the spouses. The Family Code provides for section in two ways:
- By agreement of the parties, an official document is drawn up, which is certified by a notary.
- According to the court, when the division is made on the basis of legislative norms, without taking into account the wishes of each party.
When dividing property, except for the IC of the Russian Federation, 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.
The division of property can take into account various aspects that can increase the share of one spouse and reduce the share of the other.
Registration of a mortgage in marriage
It is often during a marriage that one has to buy housing and arrange real estate on a mortgage. There are several reasons to do this:
- When registering relationships, people think more seriously about the future and want to build their coexistence.
- The planning of children or their presence predisposes to purchase their own apartment.
- The presence of double income - the salary of the husband and wife, allows you to increase total budget... Often, a person alone cannot take a loan and pay mortgage payments, but in a family it is much easier to do this.
When registering a mortgage in marriage, a loan is taken by one of the spouses, but the other is a co-borrower, which does not diminish his rights, but makes them equal to 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 of the mortgage loan jointly in equal shares.
A lending institution can make claims against either spouse or two at once. Since the rights and obligations are divided equally, then the property in case of divorce is subject to redistribution 50/50.
Mortgage apartment section
In a divorce, spouses strive to share not only their lives, but also all the property acquired in the marriage. Real estate purchased with a mortgage is divided equally by law, unless otherwise agreed upon when purchasing it in a notary agreement. Section of a mortgage apartment can be made:
- Voluntarily, without going to court.
- Forcibly when filing a claim with the court.
Having 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 and put it on paper, having assured it at a notary. There are many options, someone will abandon the claims completely, and someone will want to reissue the mortgage, etc.
When considering a claim through the court, accompanying factors will be taken into account, for example:
- The existence of compelling circumstances that allow one of the spouses to claim most of the property. For example, taking into account the interests of minor children who stay with their mother or father.
- The living space was registered exclusively for one spouse. This possibility also exists in marriage, but it is more often practiced if the premises were acquired before the marriage was concluded.
The division of a mortgage apartment is done in one of the following ways:
- Real estate, like the remaining debt, is divided equally between the ex-husband and wife.
- By agreement between the spouses, only one of them gets the premises, at the same time, the obligation to repay the loan is shifted to him. In this case, compensation for 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, which is important, nerves. If the spouses are ready to part peacefully, they should resort to the following scheme:
- Discuss the different options and come to one common denominator.
- Set out all the points of the agreement on paper.
- Certify the agreement with a notary.
Please note that although voluntary agreements can be expressed in any terms, it is best to stick to legal regulations. The notary examines the clauses of the agreement until the moment of certification. He must testify that everything stated is a voluntary expression of will, and there is no pressure from either side. It is also important to comply with 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 legal proceedings. The more transparent the partitioning scheme is, the more likely it is that no deception and pressure from any side was observed.
Section through the court
Guided by the established practice, we can say that it is far from always possible for former spouses to resolve issues of division of property peacefully. In the overwhelming majority of cases, the issue is resolved in court.
Submit statement of claim on the section of mortgage real estate can be any of the divorced.
By more it does not matter who is the applicant and who is the defendant, the court will take into account the interests of both parties, and especially children, if any. If the spouses do not have the utmost clarity about the ownership of real estate, then it is better to go to court than to "squeeze" the case on your own. The trial allows you to settle the final points on all issues. The judge acts as a kind of arbiter in this dispute, keeping a cool head and guided not by emotions, but exclusively by legislative norms.
In addition, do not forget that an outstanding mortgage in case of divorce implies that not only the husband and wife, but also the credit institution are parties to the dispute. His opinion is also taken into account, and it is prohibited to perform any manipulations without notifying the creditor. And the court makes an official decision, which is considered by the bank as legal.
Taking into account the interests of children
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 for spouses, but also for children. Today there is a lot of controversy about this, but regulations do not yet contain a clause on taking into account the interests of minors. Theoretically, in a divorce, real estate is divided equally, but in practice the court can take into account the fact of having children and award a large share to the parent with whom the minors remain. It should be understood that along with an increase in the share in a mortgage apartment, the size of loan obligations to the bank also increases.
The situation is a little different in cases where part of the living space was purchased for maternity capital. Since this money has special purpose, then it is no longer possible to say that only parents are home owners.
Judicial order
You can file a statement of claim for the division of property in court:
- Being legally married.
- After divorce.
The presence of a previously signed agreement is not an obstacle to legal proceedings and even, on the contrary, can 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 path:
- Draw up a statement of 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 the participation are notified of the day of the meeting in writing. The judge will make a decision based on documentary evidence and testimony.
Preparation of documents
The first step to litigating property disputes is the collection of documentation for filing in court. You should start with the claim itself. This statement is written in a conditionally free form, but do not underestimate its importance. Often, it is a competent claim that can increase the chances of a planned outcome of the case. You can also compose it yourself, if you first familiarize yourself with the rules for writing and examples of applications. However, the easiest way is to contact a lawyer or attorney in order not only to draw up a statement, but also to get advice from a competent specialist.
Claims are accepted by the court if they are supported by documentary substantiation. In each case, the package of papers is different, and it is better to clarify its completeness separately in court or with a lawyer. However, there is a mandatory list, which the applicant cannot do without. It includes:
- Photocopy of your passport.
- Loan agreement for obtaining a mortgage.
- An extract from the bank on the amount of the remaining debt on the loan.
- Documents for the apartment.
- Birth certificates of children.
- The marriage contract (if it has been drawn up).
- Other documents, if they are directly related to the merits of the dispute.
Going to court
When submitting the entire package of documents, do not forget about the mandatory payment state duty... It is paid in advance and in the absence of a receipt, you should not count on accepting a claim. When dividing real estate, the amount of state duty is calculated as a percentage of the total amount of the claim. Subsequently, the money spent can be divided equally among the participants in the trial.
If the documents are complete, the court clerk accepts the claim for processing.
The court is given no more than a month for its consideration. After 2-3 weeks, the first court hearing should be scheduled. In most cases, it is not always possible to resolve the issues of the section the first time, therefore additional meetings may be appointed.
The court's decision
The court makes a decision in the event that both parties have provided an exhaustive amount of evidence and they have nothing to add. Based on the proven facts, the judge announces the decision. A few days later, the court ruling set out on paper is issued to both parties to the participants. Each spouse can challenge the decision by filing an appeal to a higher authority. If there are no disputes about the fairness of the conclusion, then the decision is sent to the credit institution, which, on its basis, divides the accounts of the borrowers according to the 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.
And in fact, and in another case, 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 for state registration, submit an application to Rosreestr.
- Obtain a certificate of ownership in your name. In this case, the encumbrance will remain until the full repayment of the mortgage.
Spouses should not forget about their debts to a credit institution. Payments must be made within the time frame specified in the loan agreement. If the other party evades paying money for its share, then the recovery sum of money can be implemented through a judicial authority.
Features of the section of the premarital apartment
Everyone knows that what was bought 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 the family was created, he continues to pay mortgage fees while married. Debentures paid in money, which after marriage is considered a joint budget. Another situation may arise when the second half, which actually has nothing to do with this property, helps to pay off the loan with its own funds. In case of divorce, the question arises whether the second spouse can claim part of the mortgage 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 the payment of monetary compensation.
Arbitrage practice
One of the striking examples of the division of mortgage real estate was considered in the Soviet District Court of Voronezh. The primary claim was filed by the ex-husband, who put forward demands for the division of jointly acquired property. The wife filed a response claim, in which it was a question of dividing everything acquired, taking into account the interests of two minor children. It spoke not only about an apartment bought 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 section, justifying them from their point of view with rational arguments. The demands of both sides were met only partially. As for the mortgage apartment, it was divided equally, like the remaining debt on the loan.
It will be interesting for you
Hello! Our readers are often interested in the question of how the mortgage is divided in case of divorce. Statistics show that more than half of all marriages in Russia end in divorce. By the time of the breakup, most families manage to acquire jointly acquired property, including housing, taken on credit. When a person who has taken out a home loan gets divorced, he faces big problems associated with the division of the acquired property. Mortgage in case of divorce becomes one of the stumbling blocks between already ex-spouses. Questions "How to divide an apartment?" and "How to re-register a mortgage?" becomes even more important when there are children whose rights also need to be considered. There are a lot of nuances affecting the mortgage section in case of divorce. Let's dwell on the main points in more detail.
How the mortgage apartment is divided in the event of a divorce is highly dependent on the time the loan is issued. The conclusion of a loan agreement before or after the official registration of marriage will affect the legality of the division of the acquired real estate upon dissolution of family ties.
Mortgage before marriage
Divorce with a mortgage taken before registering a relationship with a registry office is one of the easiest options. If one of the spouses bought a home on a mortgage before marriage, then he remains the sole owner of the apartment and will pay the rest of the debt on his own. The second spouse can apply for a share in the property or compensation payment, if he is able to prove that during his family life he participated in the payment of monthly payments on the loan or that the apartment was renovated at his expense.
According to the law, all debts and property are divided equally between the spouses, so it is quite realistic to submit a claim to the court for compensation to the spouse who has no property left.
Mortgage section in a civil marriage
According to Russian legislation people living in a civil marriage do not have an obligation to divide the property after the termination of the relationship, as in the case of a divorce in a registered family.
Housing acquired during the period of cohabitation will remain with the one who owns it according to the certificate of ownership.
A mortgage before an official marriage can be divided between former lovers only if the apartment was registered for two, and the common-law wife and husband were co-borrowers.
Mortgage during marriage
A home acquired through marriage automatically becomes the joint property of both spouses, even if there is only one owner on the title deed. If the apartment was bought on credit, taken by one of the spouses, then the other, in the overwhelming majority of cases, is a co-borrower. Thus, both receive joint responsibility for repaying the debt to the creditor. When family ties are broken, all property is usually divided equally. The question of how to divide an apartment in a mortgage may lead to a dead end , especially if the divorces have a decent debt to the bank.
- If the spouses maintain good relations at the dissolution of the marriage, then the already divorced can continue to pay the mortgage together. But you still have to notify the bank about the divorce, especially if this item is spelled out in the mortgage agreement.
- Former spouses, in most cases, prefer to split the property and monthly payments into equal shares. However, today banks very rarely decide to re-register a mortgage, because they risk getting two overdue loans instead of one. Moreover, in the event of a divorce, the bank may require the entire amount of the debt to be repaid ahead of schedule.
- You can pay off the debt to the bank, and sell the apartment and divide the proceeds in half. If the balance of the mortgage debt to the bank is small, then this will be the best solution to the problem.
- One of the spouses can give up his share in the apartment. In this case, banks are going to withdraw it from the mortgage agreement, if financial capacity the second is to make monthly payments on time.
If the apartment was purchased during the marriage, but personal funds in bank accounts or inherited were used as a down payment, then, if there is sufficient evidence, the spouse who actually bought the house for own funds, can expect to remain its sole owner. In case of divorce, the mortgage will be left to him, and the second spouse will be entitled to compensation in the amount of half of the monthly payments paid during the period of cohabitation.
A special situation arises if the housing was purchased under the program " Military mortgage". According to its terms, the owner of the apartment, as well as the borrower on the loan, can only be a military man. After a divorce, his family members will not be able to apply for square meters in a living space that is contrary to the provisions of the Family Code. Banks solve this problem by making mortgage agreement clause on the mandatory conclusion of a marriage contract between the spouses.
The effect of having a prenuptial agreement on a mortgage in case of divorce
Divorce in the presence of a mortgage can be significantly delayed. Spouses of co-borrowers are able to speed up this process by prescribing how to divide the loan housing and who will pay the mortgage after the divorce in the prenuptial agreement.
A marriage contract, certified by a notary, can be drawn up both before marriage and during family life, including after buying an apartment on a mortgage. In the latter case, it is imperative to notify the bank about signing it. To dispute how the mortgage is divided after the divorce of the spouses under the marriage contract, credit organization can only through the courts.
In most cases, banks require you to sign a prenuptial agreement before applying for a mortgage. Most often this is due to the fact that one of the spouses interferes with a positive decision on the mortgage. The main reasons may be:
- Bad credit history;
- Debt;
- Lack of official income of the spouse and, as a result, the general insolvency of the family.
This prenuptial agreement prescribes everything that can happen that is important for the bank, namely:
- The second spouse waives the claim. the division of an apartment into a mortgage upon divorce will be in favor of the main borrower.
- Refuses to commit and is not responsible for paying for drips.
Algorithm for the division of the mortgage in case of divorce
To figure out what to do with a mortgage in case of divorce and how to divide it between a divorcing married couple without a trial, we will compose step by step algorithm actions:
- If the mortgage was registered in marriage and the spouses decided to divorce, then they need to conclude an amicable agreement on the division of the apartment and the rest of the debt;
- With this agreement, the borrowers are sent to the bank's loan manager in charge of the mortgage. This should be done after the divorce has been officially registered. The bank will need to provide a mortgage agreement and certificates of income of each co-borrower for the last six months;
- In case of a positive decision of the lender on the division of the mortgage, two new mortgage agreements are drawn up for each of the borrowers and adjusted payment schedules are issued. For the renewal of documents, you will most likely have to pay a commission in the amount of 1-2% of the debt amount. Or one of the co-borrowers is removed from the debtor and deprived of the right to real estate.
It should be remembered that banks do not like to take risks. The situation when co-borrowers on a mortgage get divorced, in itself is not a reason for them to divide payments and the balance of the loan into two parts or to withdraw the spouse from the list of borrowers. It is extremely difficult to get approval for such a deal. Therefore, it is advisable to discuss in advance what to do if the bank refuses to change the terms of the agreement.
What will happen to the mortgage in case of divorce of spouses with minor children
Mortgage in case of divorce of spouses with children , as well as jointly acquired property, it can only be divided by the court. The mortgage apartment is divided taking into account the interests of minor children.
An apartment on a mortgage in the event of a divorce of a family where there is a child can be divided between the spouses only if it consists of several rooms. A one-room apartment in a mortgage cannot be divided in case of divorce, since it is impossible to allocate shares in kind. If a husband leaves his wife with a small child in one-room apartment, he may be paid part of the cost of housing in the form of compensation.
What are the options for the section, if the apartment is in a mortgage with a divorce, there is a child:
- If he refuses to share in the apartment, banks draw up the remaining loan debt to the ex-spouse only if she has enough funds to pay the payments. If ex-wife will not be able to pay the loan, then even in the absence of claims for housing, the husband will remain among the co-borrowers, and will be forced to pay mortgage payments.
- Those who stay with a minor child most often get a large share living quarters... The court can divide the mortgage equally, or in proportion to the shares in the property. In the presence of certain circumstances (the mother is on maternity leave, disability or temporary incapacity for work), with the consent of the creditor, the share of the spouse who remains with the child in the monthly payment may be reduced. Alimony and mortgage will become the responsibility of the second parent for the time specified by the court.
- Mortgages and minor children can be linked with the help of maternity capital. After the birth of their second child, many families use the subsidy they receive to partial repayment mortgage debt or an initial fee... In this case, the obligation arises for parents to introduce their children into the number of apartment owners. In the event of a divorce, the share in the apartment of the parent who remains with the children will be increased at the expense of the child's share. The loan debt is likely to be divided equally between both parents, since they are both responsible for supporting the children together.
- After the divorce of the spouse and the division of the mortgage, the mother can pay off her part of the debt maternity capital... But she will not be able to dispose of her part of the apartment until the ex-spouse fully repays the remaining part of the loan.
Refusal to pay a debt by one of the former spouses
If the parting husband and wife do not agree on how to pay the mortgage in case of divorce, then if one of them refuses to pay monthly payments, arrears will increase. In the event of a delay of more than three to four months, the lender has the right to take away the mortgaged housing in order to sell it and pay off the debt.
Often a situation arises when the co-borrowers on the mortgage divorced, and the apartment remained with one of them. The ex-spouse who left the apartment may refuse to pay his part of the payment to the bank, citing the fact that he does not use the apartment. If, at the same time, he refuses from his share in the apartment, then the mortgage after the divorce, with the consent of the bank, can be reissued to the remaining borrower.
If the ex-husband or wife refuses only from the obligation to pay the debt, then the second spouse will have to extinguish both parts of the payment on his own or wait for the bank's sanctions for the delay in repaying the loan. Banks usually wait several months, charging interest on the overdue amount, and then take the apartment and put it up for auction.
The selected apartment can be sold at a cost significantly less than its market price. The proceeds from the sale will be used to pay off the balance of the mortgage debt, including interest and late fees. The remaining amount will be returned to the co-borrowers. As a result, a conscientious payer may be left homeless and without money.
What else can you do with housing in a mortgage in case of divorce
It is much easier to divide money in a divorce than housing. Therefore, spouses may try to sell mortgage apartment... To do this, you will need to obtain the consent of the bank and find a buyer who agrees to purchase real estate under encumbrances. Since buying an apartment on a mortgage is a rather lengthy procedure, the loss of time for the buyer will have to be compensated for with a decent discount from the market value.
Cohabitation after a divorce is rarely liked by anyone. If you can't sell an apartment and divide its cost to buy another home, you can go to a rented home and wait for the mortgage to expire. However, without the approval of the bank, the owners will not be able to rent out the apartment. So, to pay at the expense lease payments Housing loan will not work. But this bank requirement is rarely actually applied. Mortgage apartments are rented without problems.
Today, the fate of housing bought on credit and the remainder of the debt for it to the bank is most often decided in court. Arbitrage practice , formed according to the section of an apartment purchased with a mortgage, is rather controversial in case of divorce.
The decisions made by courts located in different regions can be diametrically opposed. The result largely depends on the legal knowledge of the spouses or the talent of a lawyer. Therefore, when choosing a mortgage as a way of acquiring a family home, you should consider and foresee any options for the development of events in advance.
If you need legal support in divorce and mortgage division, then sign up for a free consultation with our online lawyer in a special form in the corner. Until the end of the year, there is a special promotion. With its help, it is quite possible to receive compensation from your spouse and leave the apartment for yourself and protect the interests of children in case of divorce.
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One of urgent problems arising in the event of divorce is considered property division. In case of divorce, an apartment in a mortgage adds even more complexity. In each specific situation there are some nuances. In this regard, there is currently no unambiguous algorithm for the distribution of responsibilities for the collateral object. Let's consider further how to conduct.
Relevance of the issue
So the problem accompanying section of the apartment - mortgage. Arbitrage practice to date, has not developed a unified approach to making decisions. Therefore, different authorities often take opposite decisions. The situation is complicated by the fact that disputes involve the interests of three parties - a husband, a wife and a credit institution. In many cases, the allocation of responsibilities significantly infringes on the rights of any participant. For example, in practice, there are many cases when a former spouse, deprived of an apartment (or part of it) during the division, is forced to repay the loan for a rather long time. Banks often have problems as well. For example, those wishing to sell real estate that is overdue are faced with the fact that, according to a court decision, it is no longer the sole property of the debtor.
Regulatory regulation
The difficulties that accompany section of an apartment purchased with a mortgage, are caused primarily by insufficient legal regulation of this issue in civil and family laws. The authorities considering such disputes are guided by the provisions of the IC, Civil Code, as well as Federal Law No. 102. In addition, the terms of the agreement concluded with the bank are taken into account. When analyzing these acts, the following principle can be distinguished. acquired by spouses in marriage on mortgage funds is considered as by them. This, in turn, entails corresponding legal consequences. It is customary to divide joint property equally between the spouses, unless a different procedure is determined by the marriage contract. When considering disputes, it does not matter to whom the object is registered. Financial liabilities are imposed equally on the spouses, regardless of whether they are co-borrowers, or whether the loan was issued to one or the other. Thus, the 50/50 principle applies. In the meantime, actually spend section of an apartment in a mortgage, not so easy. The fact is that the object is pledged by banking organization... The spouses, being formally the owners, cannot freely dispose of the property.
Marriage contract
In order to avoid various problems, lawyers recommend newlyweds to conclude an agreement. At the same time, the legislation allows the execution of a contract both before the registration of marriage, and after it. Meanwhile, despite the obvious advantages of this document, not many draw up it (no more than 5%). Various conditions can be written in it. As a rule, the agreement establishes the procedure for the division of property, the maintenance of minors and other important points.
Bank guarantees
Credit institutions are trying to play it safe. When drawing up the main contract, they make up and agreement on the division of the apartment in the mortgage of the spouses... Credit institutions that have repeatedly faced difficulties have acquired sufficient experience in disputes. Agreement on the division of an apartment in a mortgage allows the bank to minimize risks. Majority credit institutions try to make husband and wife co-borrowers. This, in general, is beneficial for the citizens themselves. In this case, they can pool their income and get more credit. Many banks include in the agreement a clause stating that upon dissolution of the marriage by the co-borrowers, the terms of the agreement will not change. This moment is an additional guarantee for the credit structure. If the citizens who agree to this condition dissolve the marriage, and one of them subsequently refuses to repay the loan, the financial obligations in full will go to the co-borrower. This condition protects, of course, exclusively the interests of the banking organization.
Solutions to the problem
So, how can you minimize risks and conduct property division? Apartment in a mortgage- property, the rights to which are limited. Therefore, co-borrowers can, after divorce, continue to pay off the loan or quickly find the missing amount to repay it ahead of schedule. When the debt is liquidated, the property is put up for sale. Having realized the object, the former co-borrowers share the amount among themselves. There is another option. Co-borrowers can sell the property with the consent of the bank. It should be said that it is rather difficult to predict the answer of a credit institution in this case. The bank may agree to the proposal of co-borrowers, demand to repay the loan ahead of schedule, since the dissolution of the marriage would violate the terms of the main agreement, or oblige to continue repaying the debt without selling the object.
Possible actions of the credit institution
Many banks agree to sell real estate. In this case, the organization minimizes the risk of non-payment of debt. After obtaining consent, the spouses need to find a buyer who is ready to purchase the object with such an encumbrance. To new owner received the right of ownership, he must first of all reimburse the credit structure for the amount of debt. He will have to wait until the process of removing the encumbrance is completed. Only after that the buyer will be able to formalize his right. Not all purchasers agree to such conditions, since the risks are quite high. At the same time, regardless of the development of the situation with the implementation of the object, the former co-borrowers will be obliged to continue to pay off the debt. Otherwise, their situation may deteriorate significantly.
Bank rights
A credit institution that does not receive payments on debt can independently sell real estate. For this, an auction is organized. It should be said that the cost of the object in this case will be much lower than the market price. From the amount received from the sale, the credit structure withholds the principal debt, penalties, fines, non-deducted interest and the costs of organizing the auction. The remainder will be distributed among the former co-borrowers. Taking this into account, spouses may generally be left without housing and without money.
An important point
The norms set several requirements for co-borrowers who begin property division. Apartment in a mortgage is formally in the possession of persons who have agreed to the terms of the bank. Among them is the duty of co-borrowers to notify about all changes in their lives. Accordingly, they must notify the bank about the divorce.
Possible results
If the parties cannot come to an agreement, you will have to go to court. But, as it was said above, it is impossible to unambiguously predetermine the outcome of the proceedings. The court may oblige the bank to carry out the prescribed procedures with real estate, renew the agreement for one of the co-borrowers, or order the ex-wife and husband to continue repaying the loan. This is not all possible options solving the problem. If the co-borrowers are ready to continue repaying the loan in order to sell the living space later, they can spend section of the apartment. In a mortgage debtors are very dependent on the bank. Therefore, before any action, they need to contact the credit structure to obtain approval. Accordingly, if the co-borrowers decide to hold before the official divorce, then they need to write a joint statement about this. But even in such a situation, there can be problems. For example, a bank has the right to refuse co-borrowers. The credit organization may not be satisfied with the amount of income of one of the debtors, who will subsequently act as an independent obligated person. It may also happen that it is impossible for technical reasons. For example, it consists of one room, and you cannot allocate a share. However, co-borrowers can challenge the decision of the credit structure.
Alternative option
How else can you navigate a section property of the spouses? Apartment in a mortgage is reissued to one of them, and the second waives the rights to real estate free of charge or for a certain amount. In this case, the first takes on the obligation to continue to repay the loan. If the bank is satisfied with the solvency of the co-borrower, the latter can register the transfer of rights to itself with the authorized body. Usually the bank takes a commission for reissuing the agreement (0.5-1% of the remaining debt).
Section of an apartment for a military mortgage
The process differs in that the obligations to pay off the debt are not imposed on citizens, but on the Ministry of Defense. An employee acts as a participant in the lending program, as well as the owner, regardless of whether he has a family. In this regard, does not require the participation of the wife / husband. The latter are not involved in other cases either. For example, in the event of delays or other violations of the loan agreement, the obligation to repay the loan rests only with the employee.
Actual marriage
The above was considered division between the spouses of the apartment. Mortgage, meanwhile, can be formalized and cohabitants - persons who are in a "civil" marriage. As you know, the provisions of the UK do not apply to such cases. If at the same time the man and the woman did not enter into a written agreement, then with a high probability the apartment will remain with the person for whom the loan was issued. Of course, not everyone will be satisfied with this, since both allocated funds to pay off the obligation. In such cases, you will have to prove joint participation in the payments. To do this, you need to provide documents confirming the deductions. These can be receipts, account statements, checks, etc. The same should be done if there is a desire to prove joint repairs or the purchase of expensive household appliances. It is advisable to involve a qualified lawyer in the case.
Loan before marriage
As stated in the UK, everything that is acquired during the period of officially registered marriage is common. If something was purchased before marriage, then it belongs to the person's personal property. But family law contains a number of reservations. In particular, in accordance with the norms, the former spouse has the right to count on the share of the apartment if the mortgage payments were made jointly even before the registration of the relationship. In this case, a non-working citizen can also make demands. The income of one spouse in such a situation will be considered common. Disputes are often resolved in favor of the unemployed person.
Housing in a new building
The situation with the division of apartments in buildings under construction is rather complicated. According to the norms, the ownership of the living space can be issued only after the commissioning of the structure. In practice, there are two possible scenarios for the development of events:
- If the borrower dissolves the marriage at this point, he will be obliged to pay compensation to his husband / wife. When making such a decision, the court takes into account the fact of joint payment of the loan. However, the competence of a lawyer will also be of great importance in this situation.
- If the borrower is married before receiving the certificate, the court will oblige to allocate a share of the apartment before the divorce.
If one of the former co-borrowers evades payments
What to do in this case? In this situation, the credit institution renews the contract for the solvent ex-spouse. In this case, all obligations are removed from the second subject. But in return, he is deprived of the opportunity to demand a share of the living space. In some cases, the delay of one of the co-borrowers may exceed 3 months, but at the same time he does not want to give up his rights. In such situations, there are two ways to solve the problem:
- The loan is repaid by a solvent co-borrower.
- The bank sells real estate, and the funds received are directed towards payment.
As a rule, a credit institution sells an apartment at a reduced price, approximately equal to the principal debt. This significantly speeds up the procedure.
Mortgage for divorce with children
The legislation prescribes that in any actions related to family property, the interests of minors should be taken into account. Based on this rule, the dispute resolution authorities make appropriate decisions. When dividing mortgage housing, the share of children in any case will be registered with the spouse with whom they remain. If a decision is made to sell housing, and a minor is registered in it, he must be discharged to mandatory... Otherwise, the guardianship and guardianship authorities may become interested in the situation.
Rental of secured housing
In some cases, the spouses decide to rent out the mortgage apartment. It should be noted that such actions are illegal. The fact is that the apartment has been pledged to the bank, and accordingly, it is encumbered. If the situation is critical, and the co-borrowers do not have enough funds to repay the loan, then in order to rent out the living space, they must obtain the consent of the financial structure.
Conclusion
Divorce is often accompanied by various problems. In general, divorce is not a very pleasant procedure, since it concerns not only personal relationships, but also property interests. Often, former loved ones become real enemies. It is clear that everyone wants to protect themselves. Citizens, applying for a mortgage, as a rule, do not expect any difficulties in the future. However, anything can happen in life. Therefore, lawyers recommend protecting yourself for the future by concluding a marriage contract. This document will help to avoid many problems, to save nerves, money and time. The marriage contract is certified by a notary, which gives it legal force. If a dispute nevertheless arises, and it will be necessary to regulate it through the court, the document will become irrefutable proof of rightness.
Divorce is always associated with various complexities and bureaucratic procedures. One of them is the division of property. Some divorcing spouses believe that only property is subject to division. But the law states that jointly acquired debts are also included in the total property mass, which must be divided. At the same time, there are processes that are simpler (for example, the section of a credit on a payment card in case of a divorce) and more complex, which, in particular, includes the section mortgage loan in case of divorce.
General principles of the mortgage loan section
For Russians, the division of mortgages between former spouses remains an acute and urgent issue. This is due both to the long-term nature of such a loan (which is why borrowers often have to pay it off almost all their lives), and to the presence of expensive collateral, which becomes the real estate purchased on credit. The basic rules for the mortgage section are as follows:
- If the loan was issued during the marriage, then it is subject to division.
- The size of the share of each of the spouses is determined according to the situation. Provided that the rest of the property is also divided equally, the loan is divided between the divorced in half. If the principles for the division of property are different, then basically the loan is divided in proportion to the shares of each of the spouses. According to Part 3 of Art. 39 of the RF IC, the more property one of the spouses gets, the more his debt will be.
- The period during which the loan can be divided is three years from the date of termination of the marriage relationship.
- Not only spouses can initiate a loan section, but also financial institution, which has drawn up a mortgage agreement. For example, if within three years from the date of the divorce, the former spouse who took out the mortgage during the marriage is unable to repay the loan, the bank may go to court with a requirement to separate the matrimonial property and debts. Then the court can oblige the second spouse to pay credit debt even after a certain time after the divorce.
Second spouse's rights regarding mortgages and real estate
Determination of the share of the second spouse in the division of real estate bought on credit and a mortgage loan should be carried out taking into account the analysis of the situation. It is necessary to take into account both the conditions for the acquisition of housing and the repayment of the debt, and the existing agreements between the spouses. The main points that are determined by law in terms of the rights of the second spouse are as follows:
- Initially, the second spouse has exactly the same rights to the property acquired on credit as the first. In this case, the credit debt is divided equally between both.
- If the second spouse expressed his protest to the bank in writing about the loan, mortgage and collateralized property on it, in a judicial proceeding, it can be recognized as personal debt and property of the borrower. In this case, the second spouse does not apply for real estate and does not participate in the repayment of the loan.
- If the initial loan installment and / or most of the debt was paid by one spouse at the expense of his personal savings (gift, inheritance, money from the sale of personal property, etc.), the court may also recognize such a loan as personal. At the same time, real estate purchased with these funds will also be classified as the personal property of this spouse.
- In the event of a dispute over the division of the debt and the real estate purchased on credit, the spouse whose rights are violated can go to court with the appropriate evidence.
Mortgage solution options
It is possible to separate the mortgage and the real estate purchased with the bank's funds in different ways. In general, the options for dividing real estate are similar to the methods for dividing a credit machine in case of divorce.
Way | Description | Comments (1) |
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1. Early repayment of the loan |
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This option allows not only to reduce the overpayment of the loan, but also to quickly receive real estate the property. At the same time, by agreement, one of the spouses can redeem the second part of the real estate from the other and become its sole owner. |
2. Co-payment on schedule |
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This method can be difficult to implement if relationships between ex-spouses are poor. In addition, it does not remove the problem of joint and several liability, in which, in the event of termination of payments by one of the spouses, the other will have to repay the loan in full. |
3. Single-handed repayment of a loan on schedule and ownership of real estate |
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For most ex-spouses, this option is psychologically simpler than option number 2, and more achievable than option number 1. If, for some reason, there is no property comparable in value that can compensate the second spouse, you can discuss payment in installments for a certain period. |
4. Termination of repayment of mortgage debt |
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In this case, the sale of real estate is coordinated with the bank and it controls the entire process. The disadvantage of this option may be to receive a significantly lower amount than the real value of the property. This is due to the fact that the bank will be focused on the fastest possible implementation of the collateral at a price that will at least simply allow the debt to be fully repaid. |
Steps to take for the mortgage section
To split the mortgage during marriage, you can:
- Conclude a written agreement with the second spouse on the division of property and debts. If desired, it can be notarized and concluded not just in case of divorce, but within three years from the date of divorce.
- Conclude a marriage contract and stipulate in it all the conditions for the transfer of property (debt) to each of the spouses. This document must be notarized. The creditor bank must be clearly notified of the conclusion of the agreement (marriage contract). Such an agreement can be concluded at any time during the marriage.
- Go to court (if there is a dispute) with a claim for the division of property and debts. Upon divorce or within three years from the date of divorce, you can conclude an agreement on the division of property or apply to the court for its division. The claim (agreement) must clearly indicate which debts and property are transferred to the ownership of each of the spouses. At the same time, the creditor bank, whose claim can be satisfied through the sale of the share of the debtor's spouse (part 1 of article 38 of the IC RF), has the right to apply to the court with a claim for the division of property.
After receiving in your hands any of the above acts (agreement, contract, judgment) spouses can apply to Rosreestr for registration of their rights to real estate, as well as challenge creditors' claims for debts.
Pre-marriage mortgage section
Determination of the share of each spouse in a mortgage loan, issued before the start of marriage, generally follows the principles of dividing a loan taken before marriage in case of divorce:
- Such a mortgage can be recognized as the common (joint) property of the spouses, and their personal property.
- A mortgage issued before marriage is considered a personal debt of the spouse for whom it was originally issued.
- But if during the marriage mortgage debt was repaid for the most part already for the common funds of the spouses, then by a court decision he and the property acquired for his funds can be recognized as jointly acquired. However, if the second spouse disagrees, this will have to be proven in court.
Settlement of the situation with the bank
For the most successful section of a mortgage loan, it is worthwhile to properly organize communication with the bank:
- The financial organization needs to be promptly notified of all life changes that in one form or another may affect the payment of the loan.
- It is advisable to take into account the recommendations of your loan officer and correctly assess your solvency in connection with a divorce.
- In case of disagreement with the registration of a mortgage loan issued to one of the spouses, the second spouse should, within a year from the moment of such registration, apply to the bank in writing with the requirement to recognize the loan debt as a personal debt of the borrower. If the bank refuses, you can challenge this agreement in court and invalidate it in full or in terms of recognizing the mortgage as a general matrimonial loan. In most cases, the court makes a decision in favor of the spouses, since they have the right to dispose of jointly acquired property within the parties to the marriage relationship.
- All negotiations with the bank should be carried out in writing. This will be evidence of attempts at pre-trial settlement of the dispute.
- Even if it is possible to agree on the division of property without a court, the spouses need to inform the bank about their decision and agree on the agreed section with it. His consent is required, in particular, for the alienation of property to third parties.
- In a situation where the spouses need some time to divide the property or when it is difficult to come to an agreement, it is still important to continue to pay the loan on time. In case of systematic delay, the bank can go to court for recovery collateral... Thereafter, the property is usually auctioned off at a significantly lower price.
A rational approach to the division of mortgages and properly organized cooperation with the bank will allow the division of property and debt with maximum benefit for both spouses.
The complexity of divorce is compounded by the need to divide the property. But not only rights are considered joint, but also obligations that have arisen in marriage.
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How to divide a mortgage apartment in 2019 in case of divorce? The procedure for divorce is regulated by law in some detail.
Current standards and prevailing arbitrage practice allow you to divide almost any joint property.
At the same time, the practice of purchasing housing on credit is widespread. How is an apartment divided in case of divorce, if it is on a mortgage in 2019?
General points
The principle of dividing mortgage property is to divide it equally between the spouses. This also applies to an apartment purchased with a mortgage during the marriage.
Moreover, who the loan is issued to is not so important. Financial obligations are equally borne by both spouses, and they are obliged to fulfill them even after the dissolution of the marriage.
The best option is the joint payment of the mortgage after the divorce on the same terms. After removal, the former spouses peacefully decide how to divide the apartment.
Ideal if possible early repayment credit. Then the apartment can be sold and the proceeds can be divided between the spouses.
In practice, such solutions are extremely rare. More often, after a divorce, spouses do not want to have joint obligations, preferring to immediately divide all the property.
The borrower for a mortgage loan is the person with whom the loan agreement... It is the borrower who is fully responsible for the return of funds.
But along with the borrower, the co-borrower can participate in the transaction, who bears the joint loan.
As a rule, the spouses act as co-borrowers on the mortgage. That is, they are equally responsible for repaying the debt. But other situations are also possible.
Actual, or civil marriage, is not uncommon today. In this case, the norms of family law do not apply to spouses, since cohabitation is not officially recognized as a marriage.
The mortgage apartment goes to the person for whom it is issued. Of course, it can be proven that the second formal spouse was involved in the payment of the mortgage.
But for this you will need to provide witness testimony and strong evidence. For example, about payment, checks and so on.
Litigation of the situation will require the services of a professional attorney. If the mortgage was issued before marriage by one of the spouses, then the apartment cannot be divided upon divorce.
The ex-spouse can claim part of the apartment, since payments were made from the general family budget.
But again, you will need the help of an experienced lawyer and a good evidence base. There will be no problems with the mortgage housing section if available.
If the spouses have agreed on the division of property even before marriage or during marriage and have documented in detail the procedure for division, then you will not need to go to court.
The mortgage will be divided according to the terms of the contract. Particularly noteworthy is the purchase of an apartment in a mortgage.
The right to such housing arises only after the commissioning of the object. And there are two possible scenarios for the development of events.
If the apartment is transferred into ownership at the time of marriage, then the main borrower is obliged to allocate a share to the former spouse in case of divorce.
When the divorce occurs before the actual receipt of the apartment, the non-primary borrower spouse can only claim co-payment compensation.
And yet the section of a mortgage apartment is very controversial. The situation can be complicated by various nuances. This is the presence of children, and the use of state subsidies when registering a mortgage, etc.
Permissible reasons for divorce
The reasons for divorce can be different circumstances - incompatibility of characters, adultery, material difficulties, domestic violence, etc.
Or the loan was partially paid for by means of a relative donated to the spouse. Evidence that the payments were made only by one of the spouses or that the payments were paid from the joint budget may become confirmation.
You can use documents confirming the use of various, etc.
At any stage of the trial, a conclusion is permissible if the spouses can independently agree on the procedure for dividing the apartment.
Section order
Sometimes it is quite difficult to divide a mortgage apartment due to objections from the lender.
Banks do not welcome changes to the mortgage agreement, and even an agreement between the spouses on the division of debt obligations is not a guarantee of concluding a deal on new terms.
Lawyers advise filing an initial division of joint property without mentioning the division of joint debts.
In this case, the court is obliged to be guided exclusively by family law. The lender's consent becomes optional.
The procedure looks like this:
Submission of a claim by one of the spouses for the division of common property Since the bank, when dividing an apartment, does not lose the right to demand the fulfillment of obligations, its consent is not required for the court to make a decision Contacting Rosreestr and re-registering ownership of an apartment In accordance with the decision of the court. A record is made of the share in the apartment of each spouse Applying to the creditor bank with the provision of a court decision Joint statement of former spouses and supporting documents for the apartment, where the share of each spouse is indicated Renewal of a mortgage agreement And the creation of two separate contracts for each share of the apartment. Since the property has already been divided and formalized, there is no reason for the bank to object The RF IC says about the equal rights of spouses, therefore the apartment is divided equally. But circumstances of unequal division or transfer of housing to the sole ownership of one spouse are also possible.
If there are children
According to the law, children cannot claim their parents' property and vice versa. How is an apartment divided in a mortgage in case of divorce, if there is a child?
The presence of children in a married couple can affect the unequal division of the apartment, increasing the share of the parent with whom the children stay.
For example, raising a child with disabilities allows a parent to qualify for an increase in living space.
If, in the process of division, minor children have to move to housing with worse living conditions, then the court may leave the apartment in the sole use of one spouse (with children), obliging him to pay the cost of the share to the former spouse.
When a family is recognized as having many children and all children remain to live with one of the parents, the share of the other spouse decreases in proportion to the number of children.