Divorce with a mortgage apartment. Mortgages during the divorce of former spouses: ways to exit co-borrowers
Availability of outstanding mortgage loan and the division of real estate burdened with a mortgage adds a lot of complexity to a divorce.
In this situation, the divorcing spouses immediately have a lot of questions. How to divide an apartment that is pledged to a credit institution? Who and in what part should pay the mortgage loan in the future? How to resolve the issue with co-borrowers?
At the same time, each situation has many specific nuances, so there is no unambiguous solution and algorithm for the division of duties on mortgages and collateral real estate yet. Moreover, law enforcement arbitrage practice has not yet developed precedents to date that would serve as guidelines for the courts to make decisions in similar situations.
It is not surprising that in similar cases completely different judicial decisions are made, up to the opposite.
The situation with mortgages is also complicated by the fact that these legal relations affect the interests of three parties at once (the divorcing spouses and the bank), in contrast to the division of property not burdened with a mortgage, where it is enough to reach an agreement only for the former spouses. Therefore, finding a solution that satisfies all stakeholders at once can be much more difficult.
In many cases, when dividing mortgage housing and obligations to repay a loan, the interests of one of the parties are significantly infringed. For example, there are precedents when a borrower deprived of an apartment during a divorce is forced to repay a loan for a long time. Or a bank that wants to sell a mortgaged apartment for which the loan is not repaid faced a situation where the mortgaged apartment is no longer considered the sole property of the borrower by a court decision.
Legal regulation
These difficulties in the division of mortgage housing in the event of a divorce are associated primarily with insufficient legal regulation this issue in Russian family and civil law.
The courts, when considering cases of divorce, where the issue of mortgage is affected, are guided by the Family Code, Civil Code and the Federal Law "On Mortgage", as well as a mortgage agreement drawn up between the bank and the borrower.
The basic principle of the division of mortgage property in a divorce, as set out in the aforementioned legal acts, is that:
- residential premises acquired by spouses during the marriage at the expense of mortgage funds are jointly acquired property, which entails appropriate legal consequences;
- joint property former spouses should be divided in half, unless a different procedure is prescribed in the marriage agreement;
- when dividing property acquired by spouses into borrowed funds, including a mortgage apartment, it does not matter at all who the mortgage loan was issued to.
Financial obligations to the bank are also assigned equally to divorced spouses, regardless of whether they acted as co-borrowers or the mortgage was issued to one of them.
Thus, based on the requirements of Russian family law, the fifty-fifty principle applies when dividing any joint property of the spouses. However, in practice, dividing a mortgage apartment in half is rather problematic, since the housing is pledged to a credit institution, and the owners cannot take any legal actions with it.
How to avoid partition problems
Most conflicts and disputes related to a mortgage apartment can be avoided by pre-marital agreement. Russian legislation allows you to draw up a marriage agreement both before the registration of the family, and during the period of family life. Nevertheless, statistics show that, despite all the advantages of marriage contracts, no more than 5% of Russians draw up such contracts.
Another important legal guarantee that is used to protect the interests of all parties to a mortgage is the mortgage agreement. Currently credit institutions, who have repeatedly encountered problems in the payment of mortgages by former spouses, have gained quite a solid experience in litigation mortgage disputes. As a result, mortgage agreements executed by banks minimize the lender's risks in the event of a divorce of the borrowing spouses.
The vast majority of banks try to make both spouses co-borrowers on a loan, which, in principle, is beneficial for the married couple itself, since you can combine income and get a large amount loan.
In addition, many banks began to include in their mortgage agreement important condition: "In case of termination of family relations between spouses-co-borrowers, the terms of the mortgage agreement do not change." Such an agreement is additional insurance for the bank. If the spouses who agreed to this condition of the mortgage agreement divorce, and one of them refuses to pay the mortgage, then the financial responsibility for payments will completely pass to the other.
Such a legal guarantee, unfortunately, protects only the interests of the bank, and divorcing spouses will still have to defend and protect their interests.
In fact, divorcing spouses have only three options:
- continue to pay the loan;
- find the missing monetary money and pay off your mortgage early. After that, you can sell the apartment at a bargain price and divide the proceeds in half or by agreement of the parties;
- sell a mortgage apartment with the consent of the bank.
To make a section mortgage apartment, you can contact the credit institution that issued the mortgage directly with a request to approve the sale of a common matrimonial apartment.
It is difficult to predict the reaction of a particular bank to such a proposal. A credit institution in this situation can:
- agree to the sale of a mortgage apartment;
- demand early repayment mortgage spouses, justifying this by the fact that the upcoming (or already registered) divorce violates the agreed conditions loan agreement;
- oblige the spouses to pay the mortgage without selling the apartment.
In many cases, the bank agrees to the sale of the mortgage apartment, as this reduces the risk of non-payment of debt by divorced spouses. If the consent of the bank is obtained, the spouses need to find a buyer for their mortgage housing who agreed to purchase an apartment with an encumbrance.
In this situation, the buyer, in order to take ownership, must first compensate the bank for the amount of debt on a mortgage loan and wait until the entire process of removing the encumbrance from the purchased apartment is completed.
Of course, not all buyers will agree to such a difficult option, as risks increase and time is delayed. Therefore, divorced spouses who want to sell a mortgage apartment often have to reduce the price of their housing in order to interest a potential buyer.
Regardless of the development of the situation with the sale of an apartment by a divorced spouse, you need to continue to make payments on a mortgage loan. Otherwise, the situation can only worsen. A bank that does not receive payments on the loan has the right to sell the mortgaged apartment at an auction, and the price of the sold housing, as a rule, is much lower than the market price.
Of the proceeds from the sale credit organisation will withhold the principal, fines, penalties, unpaid interest and auction costs, and only the remaining amount will be divided between the former spouses. As a result, you can be left without housing, and without financial compensation.
Another important rule in case of divorce of persons who are borrowers of mortgage funds, it is necessary to notify the credit institution of the divorce. Under the terms of any mortgage agreement, borrowers are required to immediately notify the bank of significant changes in their lives, including divorce.
If the parties to the mortgage agreement fail to agree, you need to go to court. As already mentioned, there is no unambiguous development of the situation in the trial. The court can force a credit institution to perform transactions with a mortgaged apartment, oblige to reissue a mortgage agreement for one of the divorced spouses, oblige the spouses to continue payments until the loan is repaid. Other solutions are also possible.
If the spouses decide to pay off the loan in order to then sell the apartment, it is possible to divide the mortgage property into shares during the divorce period. To do this, they need to apply to the creditor bank with an application.
However, problems and pitfalls are also possible here. For example, the bank will refuse such an option. He may not be satisfied with the income of one of the spouses, who, when registering shared ownership, must act as an independent borrower. Or a mortgage on a one-room apartment, the division of which into shares in kind is not possible. Such property, according to the Federal Law "On Mortgage", should not act as an independent subject of mortgage.
The refusal of the bank can also be appealed to the courts.
Another variant of the division during a divorce - one of the divorcing spouses, free of charge or for monetary compensation, signs a waiver of his share in the common housing burdened with a mortgage, and the other agrees to take over all payments on the mortgage loan.
If the bank is satisfied with the solvency of the second spouse, then the transfer of ownership of mortgage housing is registered with the territorial registration authority. As a rule, the bank charges a commission for reissuing a loan agreement (0.5% - 1% of the remaining debt).
Welcome! Our readers are often interested in the question of how the mortgage is divided when the spouses divorce. Statistics show that more than half of marriages in Russia end in divorce. By the time of the break, most families manage to acquire jointly acquired property, including housing, taken on credit. When a person who has taken a home loan gets divorced, he faces big problems related to the division of the acquired property. A mortgage during a divorce becomes one of the stumbling blocks between already former spouses. Questions "How to share an apartment?" and “How to renew a mortgage?” become even more important if there are children whose rights also need to be taken into account. There are a lot of nuances that affect the division of a mortgage during a divorce. Let's take a closer look at the main points.
How the mortgage apartment is divided during a divorce is highly dependent on the time the loan was issued. Conclusion loan agreement before or after the official registration of marriage will affect the legality of the division of the acquired property upon termination of family ties.
Mortgage before marriage
Divorce with a mortgage taken before registering the relationship with the registry office is one of the easiest options. If one of the spouses purchased housing on a mortgage before marriage, then he remains the sole owner of the apartment and will pay the balance of the debt on his own. The other spouse can claim a share in real estate or compensation payment if he can prove that during his family life he participated in the payment of monthly payments on the loan or at his expense the apartment was renovated.
According to the law, all debts and property are divided equally between the spouses, so it is quite realistic to file a claim with 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 obligations to divide property after the termination of relations, as in 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 marriage can be officially divided between former lovers only if the apartment was registered for two, and the civil wife and husband were co-borrowers.
Mortgage during marriage
A home purchased during a marriage automatically becomes the joint property of both spouses, even if only one owner appears on the title deed. If the apartment was bought on credit, taken by one of the spouses, then the second in the vast majority of cases is a co-borrower. Thus, both receive joint and several liability for the return of the debt to the creditor. When family ties are dissolved, all property is usually divided equally. The question of how to divide an apartment in a mortgage can lead to a dead end , especially if the divorcees have a decent debt to the bank.
- If the spouses maintained a good relationship during the dissolution of the marriage, then the already divorced can continue to pay the mortgage together. But you still have to notify the bank of the divorce, especially if this item is spelled out in the mortgage agreement.
- Former spouses in most cases prefer to divide the property and monthly payments into equal shares. However, today banks very rarely decide to re-register mortgages, because they risk getting two overdue loans instead of one. Moreover, in the event of a divorce, the bank may demand that the entire amount of the debt be returned ahead of schedule.
- You can pay the debt to the bank, and sell the apartment and divide the money in half. If the balance of the debt from the mortgage to the bank is small, then this will be the best solution to the problem.
- One of the spouses can refuse their share in the apartment. In this case, banks go to withdraw it from the mortgage agreement, with financial opportunity The second is to make monthly payments on time.
If the apartment was purchased during the marriage, but personal funds that were in bank accounts or inherited were used as a down payment, then if there is sufficient evidence, the spouse who actually bought the apartment for own funds may expect to remain its sole owner. Upon divorce, the mortgage will be left to him, and the second spouse will be compensated 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. Members of his family after the divorce will not be able to apply for square meters in such a dwelling, which is contrary to the provisions of the Family Code. Banks solve this problem by introducing a clause in the mortgage agreement on the mandatory conclusion between spouses marriage contract.
The effect of having a prenuptial agreement on mortgages in a divorce
Divorce in the presence of a mortgage can be significantly delayed. Spouses co-borrowers are able to speed up this process by prescribing how to divide credit housing and who will pay the mortgage after a divorce in a 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, be sure to notify the bank of its signing. To challenge how the mortgage is divided after the divorce of the spouses under the marriage contract, the credit institution can only judicial order.
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 load;
- 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 claims. the division of the apartment into a mortgage during a divorce will be in favor of the main borrower.
- Refuses to commit, and is not responsible for the payment of drips.
Algorithm for dividing a mortgage during a divorce
To figure out what to do with a mortgage during a divorce and how to divide it between a divorced married couple without a trial, we will draw up step by step algorithm actions:
- If the mortgage was issued during 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 credit manager dealing with mortgage issues. This should be done after the official registration of the divorce. The bank will need to provide a mortgage agreement and certificates of income of each co-borrower for the last six months;
- If the lender makes a positive decision 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 reissuing documents, you will most likely have to pay a commission of 1-2% of the debt amount. Or one of the co-borrowers is removed from the list of debtors and loses 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 is not in itself a reason for them to divide payments and the balance of the loan into two parts or to remove 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 contract.
What will happen to the mortgage in case of divorce of spouses with minor children
Mortgage for divorce of spouses with children , as well as jointly acquired property, can only be divided by the court. The mortgage apartment is divided taking into account the interests of minor children.
An apartment in a mortgage during a family divorce, 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 during a divorce cannot be divided, since it is impossible to allocate shares in kind. If a husband leaves his wife with a small child in a 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 during a divorce there is a child:
- When he refuses a share in the apartment, banks draw up the debt remaining on the loan to the former 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.
- The one who stays with a minor child most often gets 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 staying with the child in the monthly payment can be reduced. Alimony and mortgages will become the responsibility of the second parent for a time set by the court.
- Mortgages and minor children can be linked with the help of maternity capital. After the birth of a second child, many families use the received subsidy for partial repayment mortgage debt or an initial fee. In this case, the obligation of parents to introduce children into the number of owners of the apartment arises. In the event of a divorce, the share in the apartment of the parent staying with the children will be increased from the children's shares. The loan debt is likely to be divided equally between both parents, since they are both responsible for the maintenance of joint children.
- After the divorce of the spouse and the division of the mortgage, the mother can repay her part of the debt with maternity capital. But she will not be able to dispose of her part of the apartment until the rest of the loan is fully repaid by her ex-spouse.
Refusal to pay debts by one of the former spouses
If the parting husband and wife do not agree on how to pay the mortgage during a divorce, then if one of them refuses to pay monthly payments, the arrears increase. If the delay is more than three or four months, the creditor has the right to take away the mortgaged housing in order to sell it and pay off the debt.
Often a situation arises when co-borrowers on a mortgage divorced, and the apartment remained with one of them. A former spouse who left the apartment may refuse to pay his part of the payment to the bank, referring to the fact that he does not use housing. If at the same time he refuses his share in the apartment, then the mortgage after the divorce, with the consent of the bank, can be re-registered for the remaining borrower.
If the ex-husband or wife refuses only the obligation to pay the debt, then the second spouse will have to pay off both parts of the payment on their own or wait for bank sanctions for late repayment of the loan. Banks usually wait several months, accruing interest on the overdue amount, and then they will take the apartment and put it up for auction.
The selected apartment can be sold at a cost significantly lower than its market price. The proceeds from the sale will pay off the balance of the mortgage debt, including penalties and late fees. The remaining amount will be returned to the co-borrowers. As a result, a conscientious payer may be left without housing and without money.
How else can you deal with housing in a mortgage during a divorce
Dividing money during a divorce is much easier than housing. Therefore, spouses may try to sell a 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 encumbrance. Since buying an apartment in a mortgage is a rather lengthy procedure, the buyer will have to compensate for the loss of time 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 move to rented housing and wait for the mortgage to expire. True, without the approval of the bank, the owners will not be able to rent out the apartment. This means paying out rent payments Housing loan will not work. But this requirement of the bank is rarely actually applied. Mortgage apartments are rented without problems.
Today, the fate of housing bought on credit and the balance of the debt for it to the bank is most often decided in court. Arbitrage practice , formed by the division of an apartment purchased with a mortgage, during a divorce, is rather ambiguous.
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, choosing a mortgage as a method of acquiring a family home, one should think over and foresee any scenarios in advance.
If you need legal support with 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 the spouse and keep the apartment for yourself and protect the interests of children during a divorce.
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When a marriage is dissolved, all wealth is divided between husband and wife. All families know this. But, few are aware of what to do with a mortgage during a divorce.
Legislation
When dividing a mortgage loan between spouses, the judge is guided by the following legislative acts:
- Family and Civil Codes;
- Federal law on mortgages.
The terms of the contract concluded between the creditor and the spouses are also taken into account. The division does not take into account in whose name the loan was issued if the property was purchased in a legal marriage.
The law provides for the division of real estate in equal shares, unless otherwise provided by the marriage contract. In practice, it is quite difficult to divide an apartment that is pledged to a bank.
Banks' opinion
RF SC states that common property and the joint debts of the spouses are divided 50/50. At the same time, the Civil Code of the Russian Federation indicates that when dividing debts, it is necessary to obtain the consent of the creditor. But banks are reluctant to meet their customers.
This is due to the fact that the liability of borrowers in this case changes its legal status from joint and several to shared. In this case, the bank loses the opportunity to claim the loan amount from both parties.
court order
In order to carry out a divorce in the presence of a mortgage and not lose ownership of real estate, the spouses should try to agree that the remaining part of the debt is paid by one person, to whom the apartment will be re-registered. The other party may receive compensation.
For this you need:
- file a claim for the division of property without requiring the division of obligations;
- apply for the withdrawal of one of the co-owners from the list of pledgors;
- after receiving a court decision, submit documents to Rosreestr to change the owner;
- ask the lender to amend the contract.
Since the apartment is already divided by decision judicial authority and issued in the manner prescribed by law for one owner, the bank will go towards its customers and renegotiate the contract.
Important to know: With such a scheme, it does not matter who was the original borrower and who was the co-borrower on the mortgage.
Early repayment
It happens that after parting, neither of the spouses wants to repay the loan. In this case, you can sell the apartment, pay off the debt, and divide the remaining money equally. To do this, you must obtain the permission of the pledgee, that is, the bank.
You can also stop paying monthly premiums altogether. In this case, the lender will independently sell the property at auction, withhold the amount of the debt from the proceeds, and give the remaining share to the spouses.
So that later there are no questions, during a divorce, who pays the mortgage, it is better to discuss all the details in advance and fix your decision with a marriage contract certified by a notary.
The prenuptial agreement prescribes not only who will get the property in the event of separation, but also indicates all the important stages of obtaining and maintaining a mortgage.
Banks welcome the conclusion of prenuptial agreements when applying for a mortgage loan, as this helps to avoid unnecessary formalities or litigation in the event of a separation of a married couple. At the same time, the material interests of each of the spouses are protected and the issue of loan payments is peacefully settled.
Interesting: You can conclude a marriage agreement, both immediately before the wedding, and at any stage of family life.
If the apartment was purchased with funds allocated to a serviceman from a special state fund, then the property remains in the possession of the person to whom the money was allocated.
- served more than three years;
- dismissed for health reasons or when the military unit was disbanded;
- relocated to another duty station.
The division of such property is not provided for by law. The soldier remains the borrower and payer of the mortgage.
Apartment purchased before marriage
When one of the spouses, while still a free citizen, took out a mortgage loan, and then got married, during a divorce, he remains the sole owner of the apartment and the payer on the loan.
The other party has no right to claim this property. The apartment will not be shared between husband and wife. But, the second spouse can recover compensation through the court Money, which were spent from the joint budget for the payment of a mortgage loan.
Having children
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Divorce in the presence of a mortgage and minor children is complicated twice. The decision on the division of living space and the balance of the debt is made by the court. At the same time, he primarily takes into account the interests of the child.
The parent who stays with the child, as a rule, gets most of the apartment. In this case, the mortgage, at the discretion of the court, can be divided in proportion to the shares or equally. If the ex-wife cannot repay her part of the debt, then the husband will help her with the payment.
Pre-trial order
Spouses can decide on the division of property and mortgage debt without going to court. To do this, they need to involve a lawyer and draw up a written agreement on the parts in which the apartment and the loan debt will be divided. The document must be notarized.
Attention: To conclude an agreement on the division of property pledged to the bank, the consent of the creditor is required.
How compensation is calculated
If a court or a married couple decides to transfer real estate to the full possession of one of the spouses, then all mortgage payments are transferred to him. The other party receives compensation, which is determined by:
- independently husband and wife;
- based on the amount of the paid debt on the loan;
- according to market value.
Compensation can be paid in parts or in full at a time.
Maternal capital
If maternity capital funds were used when buying an apartment, then the apartment is issued to all family members in equal shares. Thus, the parent who will get the children after the divorce will receive ¾ of the property.
Refusal to pay
If the spouses failed to agree on the division of property and obligations to pay the loan, then one of them may simply stop paying contributions. In this case, the second party will have to repay the full cost of monthly payments.
Otherwise, there will be an increase in arrears. In case of delays of more than four months, the bank has the right to select housing, sell it at auction and take the funds to pay off the debt.
The advice of lawyers on divorce with a mortgage agrees on one thing - it is more profitable for a husband and wife to agree on all the conditions for paying off the debt. If this is not done, then they will lose real estate and money already paid on debt obligations.
Courts in different regions make diametrically opposed decisions on the division of mortgages. Much depends on the legal literacy of the spouses or the talent of lawyers. When applying for a mortgage loan in marriage, it is necessary to foresee options for the development of events when the marriage is dissolved.
Attention! In connection with latest changes in legislation, the legal information in this article could be out of date! Our lawyer can advise you free of charge - write a question in the form below:
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 says that jointly acquired debts are also included in the total property mass, which must be divided. At the same time, there are simpler processes (for example, sectioning a payment card loan during a divorce) and more complex ones, which, in particular, include a section of a mortgage loan during a divorce.
General principles for the division of a mortgage loan
For Russians, the division of mortgages between former spouses remains an acute and relevant issue. This is due both to the long-term nature of such a loan (due to which borrowers often have to repay it for almost their entire life), and to the presence of expensive collateral, which becomes a property 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 by the situation. Provided that the rest of the property is also divided equally, the loan is divided between the divorcees 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 greater his debt will be.
- The period during which the loan can be divided is three years from the date of termination of the marital relationship.
- Not only spouses can initiate a loan section, but also financial institution, which issued a mortgage agreement. For example, if within three years from the date of the divorce, the former spouse who took out a mortgage during the marriage cannot repay the loan, the bank may go to court demanding the division of marital property and debts. Then the court can order the other spouse to pay credit debt even after a certain time after the dissolution of the marriage.
Rights of the second spouse in terms of mortgage and real estate
Determination of the share of the second spouse in the division of real estate purchased on credit and a mortgage loan should take place taking into account the analysis of the situation. It is necessary to take into account both the conditions for acquiring housing and repaying the debt, as well as the existing agreements between the spouses. The main points that are defined 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 regarding the execution of the loan, the mortgage and collateral real estate on it can be recognized in court as a personal debt and property of the borrower. In this case, the second spouse does not claim real estate and does not participate in the repayment of the loan.
- If the down payment on the loan 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 in this case may 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 debt and real estate purchased on credit, the spouse whose rights are violated can go to court with relevant evidence.
Options for solving the mortgage issue
You can separate the mortgage and the property 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 car during a divorce.
Way | Description | Comments |
---|---|---|
1. Early repayment of the loan |
|
This option allows not only to reduce the overpayment on the loan, but also to quickly get real estate to the property. At the same time, by agreement, one of the spouses can buy the second part of the property from the other and become its sole owner. |
2. Scheduled joint repayment |
|
This method can be difficult to implement with poor relations between former spouses. In addition, he 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 second will have to repay the loan in full. |
3. Sole repayment of the loan on schedule and ownership of real estate |
|
This option for most ex-spouses is easier psychologically than option #2 and more achievable than option #1. period. |
4. Termination of repayment of mortgage debt |
|
The sale of real estate in this case is coordinated with the bank and it controls the entire process. The disadvantage of this option may be to receive a much smaller amount than the real value of the property. This is due to the fact that the bank will be focused on the fastest possible sale of collateral for a price that, at least, will simply allow you to fully pay off the debt. |
Necessary actions for the mortgage section
To split a 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 during a divorce, but within three years from the date of dissolution of the marriage.
- 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 conclusion of an agreement (marriage contract) must be clearly notified to the creditor bank. Such an agreement can be concluded at any time during the marriage.
- Apply to the court (if there is a dispute) with a claim for the division of property and debts. Upon dissolution of marriage 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 become the property of each of the spouses. At the same time, the creditor bank is also entitled to apply to the court with a claim for the division of property, whose claim can be satisfied by selling the share of the debtor spouse (part 1 of article 38 of the RF IC).
After receiving any of the above acts (agreement, contract, judgment) spouses can apply to Rosreestr for registration of their rights to real estate, as well as to challenge the claims of creditors for debts.
Premarital mortgage section
The determination of the share of each spouse in a mortgage loan issued before the start of married life, in general, takes place according to the principles of dividing a loan taken before marriage during a divorce:
- Such a mortgage can be recognized as both the common (joint) property of the spouses and their personal property.
- A mortgage issued before marriage is considered a personal debt of the spouse to whom it was originally issued.
- But if during marriage mortgage debt 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, in case of disagreement of the second spouse, this will have to be proved in court.
Settlement of the situation with the bank
For the most successful section of a mortgage loan, it is worth organizing communication with the bank correctly:
- The financial institution must be promptly notified of all life changes that in one form or another may affect the repayment of the loan.
- It is advisable to take into account the recommendations of your loan officer and correctly assess your ability to pay in connection with a divorce.
- In case of disagreement with the execution of a mortgage loan issued to one of the spouses, the second spouse should, within a year from the date of such registration, apply in writing to the bank with a request 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 whole or in part, recognizing the mortgage as a common marital 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 boundaries of the parties to the marriage relationship.
- All negotiations with the bank should be in writing. This will be evidence of attempts to pre-trial settlement of the dispute.
- Even if it is possible to agree on the division of property without a trial, the spouses must report their decision to the bank and agree on the agreed division 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 reach an agreement, it is important to continue to pay the loan on time anyway. In the event of a systematic delay, the bank may apply to the court to recover collateral. After that, 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 divorce process with the division of property and the determination of the place of residence of the child is complex even without additional aspects. Mortgage in case of divorce of spouses with children becomes an additional problem.
Divorce and division of mortgage property in a mortgage: general provisions
Prosperous spouses who have an apartment in a mortgage do not even think about how to divide during a divorce. But when a conflict arises, this issue becomes acute. There are two urgent issues that need to be addressed:
- in case of divorce;
- who remains mortgaged property purchased with borrowed funds.
Low legal literacy and euphoria that accompanies years of happy living together play a cruel joke: it is very difficult to accurately determine the percentage invested in a mortgage purchase and the degree of participation in the repayment of a mortgage loan by each of the spouses. All investments are taken into account, including social benefits. How maternal capital can be used for mortgages.
A separate circumstance is the presence of minor children, whose interests are necessarily taken into account in real estate transactions in which the child is registered. Actions that worsen the living conditions of children can be qualified by the guardianship authorities as insufficient fulfillment of duties by parents. In this case, actions are provided up to the deprivation of parental rights and state custody of such a child.
The first thing to do for parents planning to carry out operations with mortgage-encumbered housing during a divorce is to discharge the child and provide him with alternative registration.
The fate of a mortgage issued before marriage during a divorce
Property and obligations under a loan issued before marriage are property that is not subject to division. This situation in the practice of divorce with children in the presence of a mortgage is the simplest. The court or mutual agreement of the parents determines the place of residence of the minor: this issue does not apply to the situation with the apartment. But the court, which is obliged to ensure the protection of the interests of children, may take into account the fact of the presence or absence of housing. What will be the decision on determining the place of residence, when a parent who has all the rights to an apartment in a mortgage enters into a dispute, and the second, who does not have his own housing and does not apply for it, will depend on many aspects.
How to avoid common problems
In order not to face negative situations associated with a mortgage apartment, it is strongly recommended to conclude a marriage contract in advance.
According to current legislation, this can be done not only before marriage, but also during the period of immediate family life.
For many people, however, this approach seems unacceptable from a moral point of view - only 5% of Russians use such an agreement.
A compromise alternative would be a mortgage agreement. It is issued with the help of a bank and can significantly reduce the risks of both the bank and the divorcing party. Although credit institutions are primarily interested in this, because for them it is a guarantee of payment in any case, even if one of the parties refuses to pay the mortgage. It is more beneficial for spouses before a divorce - after all, a mortgage agreement can make them co-borrowers on a loan and make the amount and conditions issued better.
Section of an apartment registered for co-borrowers
A married couple can be co-borrowers from the moment of execution of the mortgage agreement or from the date of marriage. In the latter case, the degree of participation in payments can be confirmed by an amendment to the contract or by retained payment receipts. The generally accepted opinion that by default property is divided into two equal parts is erroneous. With a peaceful settlement of the issue of how to get a divorce if the apartment is in a mortgage, the bank will consider the solvency of each of the applicants, taking into account the changed marital status and other adjustments in life circumstances. If it is necessary to divide by the court, the following are taken into account:
- the presence of children;
- the degree of participation in the repayment process of each;
- solvency in general and the level of income.
The obligation to confirm the fact that one of the co-borrowers paid more or even completely repaid the debt rests with him.
Lawyers recommend that when conducting operations to pay monthly interest, be sure to keep all checks and documentary evidence of the sources of funds. Only in this case it is possible to prove to the court the right to claim a large part of the property in case of division, defined as jointly acquired, or to the corresponding amount of compensation in case of disproportionate division.
Credit obligations for the unpaid share are divided in proportion to the parts of the transferred property. The one who receives more is obliged to pay in the same amount.
The fate of the apartment and the loan can be decided by agreement of the parties or through the court:
- An equivalent division of property, in which the fate of obligations to the bank is determined by its experts. An insolvent citizen may be relieved of the obligation to share the payment by the decision of the bank, but the second will be forced to pay the debts in full. The most difficult cases - section one-room apartments, in which the shares will have to be determined before the restructuring of the contract.
- Proportional division, in which a large share remains with the guardian of the children or with the parent who paid most of the loan burden.
- Voluntary refusal to share meters from one of the parties. Together with the property, loan obligations also pass, which gives the bank the right to refuse such re-registration. If study financial condition there is no doubt about solvency and the contract is renegotiated, the second of the spouses, who invested money during their stay in marriage, may demand compensation. If it is not possible to resolve the issue voluntarily, the court issues instructions on how to divide the shares.
- Selling an apartment simplifies the division. The proceeds are divided into a share for early repayment of debt and the balance. The second part of the spouses can be divided among themselves both by agreement and in court. The right to a specific share will also have to be documented.
Protecting the rights of children in a divorce situation with a mortgage
Transactions with real estate, listed as the place of registration of a minor, are closely monitored by state guardianship authorities. As a result of the transactions, he should not be left without housing, and living conditions after the division cannot be significantly worsened.
Before deciding how to sell a mortgage apartment during a divorce and divide the funds, you will have to write out the children and determine their new place of residence. banking rules time for such operations. When dividing the apartment itself, the parent with whom the child remains is also assigned a large part of the area with a proportional load in the form of interest on the loan.
If the rights of a minor to housing are violated, parents can be held liable: the relevant authorities will deal with the issue of deprivation of parental rights, determining the place of stay and appointing guardianship.