Mortgage in case of divorce of former spouses: ways to get out of co-borrowers. Mortgage during divorce of spouses: divided or not? What to do during a divorce if the apartment is in a mortgage
The division of jointly acquired property after a divorce is a complex process. The situation can be exacerbated by the presence of an outstanding mortgage loan. The section of the mortgage apartment is characterized by some features.
How to divide an apartment in a mortgage during a divorce?
Making a divorce in the presence of mortgage obligations is characterized by difficulties. In the divorce process, the interests of not only the spouses are taken into account, but also the interests of a third party - the creditor.
A mortgage is a joint loan commitment. In the contract, one of the spouses is the borrower, the second acts as a co-borrower or guarantor.
Attention! By law, spouses are equally liable for a mortgage loan. Including if one of the spouses does not have a job and income.
If there are property disputes between the spouses, the divorce takes place in court. It is necessary to notify the lender who issued the mortgage on the apartment. The bank will help to properly divide the mortgage housing during the divorce.
Attention! After a divorce notice, the lender may demand early repayment of the mortgage.
Most banks prescribe in the contract the requirement for early repayment of the loan in the event of a divorce. Or at the stage of registration of the mortgage, the lender obliges the spouses to draw up a marriage contract. It specifies the rights and obligations of the parties, the distribution of the mortgage loan in the event of a divorce.
Divorce is a stressful situation for both parties. Being in a difficult emotional state, it is difficult for spouses to come to an agreement. While the parties shift the loan obligations to each other, the debt accumulates during the divorce, as a result, the bank can select and sell the mortgaged apartment.
When there are minor children, part of the mortgage loan can be paid with maternity capital. The parent in charge of the child is entitled to a reduction in the monthly payment. If credit housing has a small area and a low cost, it cannot be divided.
Attention! If there are children, the division of a one-room apartment in a mortgage is not possible. One of the spouses must vacate the property.
What to do and what to do with a mortgage during a divorce
- If the mortgage was taken by one of the spouses before marriage, after the divorce, all loan obligations remain with this spouse. If there was a union of plots in the mortgage during marriage and marriage, then the debt payments are divided between the spouses in half.
- In an amicable agreement on the distribution of shares between spouses in a mortgage, each party pays the debt in proportion to its share.
- There are circumstances in which a peaceful solution of the issue is impossible. For example, one of the spouses alone occupies the living space. Repaying the mortgage after a divorce, if the wife kicked her husband out, becomes the responsibility of the wife in full. Also, the spouse can challenge the share in the mortgage apartment through the court.
Ways to Divide a Mortgage in a Divorce
In practice, there are several ways to separate mortgage real estate and loan obligations:
- Registration of mortgage obligations for one of the spouses. For this, an application is submitted to the bank. After checking the solvency of the person, the lender reissues the loan agreement. Attention! A commission of up to 1% of the remaining amount of the debt may be charged for the renewal of a mortgage agreement.
- Mortgages taken during marriage are equally divided upon divorce. Former spouses continue to pay monthly payments, dividing them in equal shares.
- Sale of a mortgage apartment. Proceeds from the sale are used to repay the loan. To implement the sale, you need to contact the bank (mortgage holder). Sale of mortgage housing is carried out by agreement with the lender. The remaining amount after payment, the spouses divide among themselves. Selling real estate in a mortgage during a divorce is possible only by mutual agreement of the former spouses, for example, if the husband is a guarantor, his consent is required.
These methods are available to those couples who were able to peacefully decide who will get a mortgage apartment or money in a divorce.
Separation of bills and payments under a mortgage agreement
The division of payments under a mortgage agreement can occur both peacefully and through the courts. When making a decision, the court must calculate the real costs of the spouses to repay the loan if the apartment was in a mortgage, take into account the presence of dependents, as well as the financial condition of each.
The court makes the following decisions:
- Assigns credit obligations to one of the spouses;
- Distributes mortgage obligations in equal shares;
- Divide payments in proportion to the shares in the mortgage apartment.
Attention! In the presence of children, pregnancy, maternity leave, the court is authorized to reduce the amount of debt to one of the spouses, while allocating a large share in mortgage housing.
What to do if the ex-spouse does not pay the mortgage
If mortgage payments are divided between the spouses, it is possible that one of the parties may fulfill the loan obligations in bad faith. Late payments lead to the formation of penalties and debts.
In this case, the spouse who pays the monthly mortgage payments on time must go to court. Unpaid debt will be recovered in court.
Exchange and division of an apartment in a mortgage by a court decision
Real estate purchased with a mortgage during the marriage is jointly acquired property. Family law defines the division of such real estate in half.
If the parties have not reached an agreement on the division of joint property and mortgage debt, they go to court.
If unequal shares are determined in the apartment, then the section of mortgage payments is determined in proportion to the shares.
If there are valid circumstances (pregnancy, maternity leave, the presence of a dependent minor child), it is possible to reduce the monthly payment on the loan. A lawsuit is being filed to refinance mortgage debt after a family divorce.
When one of the spouses is unable to fulfill the debt obligations, the remaining amount of the debt falls on the second spouse. At the same time, the spouse who has withdrawn from his mortgage obligations can apply for compensation payments for the period when the mortgage was paid from the joint budget. The amount of mortgage compensation for divorced spouses is determined by the court.
Divorce with a mortgage and a child - judicial practice
Registration of divorce proceedings in the presence of children is carried out through the court. When dividing mortgage real estate, the court takes into account the interests of children. In practice, for a parent who is dependent on minor children, the judge is authorized to order a reduction in the amount of monthly payments and an increase in the share in the mortgage apartment.
Attention! Mortgage housing of small area and low market value, in the interests of children, is transferred to the sole use of the parent with whom they live. The second spouse is entitled to compensation in proportion to his share.
If there are two or more minor children, the share of the second spouse is reduced in accordance with the number of children.
What documents are needed for a divorce through the court, if there are children and a mortgage
The presence of children obliges to file a divorce in the magistrate's court. One of the spouses files a divorce suit and accompanies it with documents:
- Marriage certificate;
- Certificates of all minor children;
- Information about the composition of the family from the ZhEK;
- Receipt for payment of state duty.
The issue of the division of mortgage housing and debt is decided in the district court. The documents:
- Mortgage agreement and all available documents for real estate;
- Spouses' passports;
- Birth certificates of children;
- Divorce certificate;
- Bank statement showing the balance of the mortgage loan.
How to withdraw a co-borrower or get out of a mortgage during a divorce
When applying for a mortgage, one spouse is the title borrower, the other is a co-borrower. The credit obligations of the parties end after the repayment of the mortgage debt in full.
If one spouse cannot make monthly mortgage payments, they have the right to get rid of the mortgage after the divorce.
You can refuse a mortgage and withdraw a co-borrower in the following ways:
- Draw up an agreement on the division of real estate in a mortgage in favor of one of the spouses. The former spouse must renounce mortgage obligations in writing, sign a waiver of a share in an apartment, transfer joint property in a mortgage from husband to wife and vice versa. Consent must be certified by a notary. After approval by the credit institution, an additional agreement will be drawn up.
- Cease to be (be) the owner of the mortgage in the event of a divorce by a court decision. After the relevant decision of the judge in the Rossreestr, a new certificate of ownership is issued. Bank permission is not required in this case.
Attention! The consequences of refusing a mortgage during a divorce are not only the absence of credit obligations, but also the loss of the right to claim a share in a mortgaged apartment.
Shared apartment for sale
Selling a mortgage apartment is one way to divide property. To do this, you need to get permission from the lender. Part of the proceeds from the sale of funds should be directed to repay the loan debt, the remaining amount is divided between the spouses.
In case of disputes, the former spouses go to court. Disputes arise if one of the spouses did not work and all payments were made by the other spouse. The legislation defines any property purchased in marriage as jointly acquired. The amount of contribution to the family budget of each of the spouses is not taken into account.
Mortgage or car loan after divorce, if there is a prenuptial agreement
The conclusion of a marriage contract when applying for a mortgage or a car loan greatly simplifies the resolution of property disputes in the future.
The agreement must define:
- Who bears the credit obligations;
- Who will become the owner of the property after the loan is repaid, in what shares it will be divided;
- How will the debt obligations be divided in the event of a divorce;
- The procedure for the division of property in a divorce;
- Compensation and other payments in case of divorce.
If the mortgage is issued before marriage
If the apartment is bought (purchased) in a mortgage before marriage during a divorce, credit obligations and the apartment belong to the borrower. If the spouse later registered her husband in it, he may demand compensation. Through the court, a person has the right to return half of the funds spent on paying off the mortgage debt during the marriage period.
A pre-marital mortgage order only applies to the spouse who received the order. For example: the spouse took out a mortgage in the first marriage, after the divorce, the court established the share that he must pay. Upon re-marriage, credit obligations, as well as the right to a share in a mortgage apartment, do not apply to a new spouse.
Is a mortgage loan before marriage considered jointly acquired by one of the spouses
A mortgage issued before marriage does not apply to jointly acquired property. The second spouse can sue half of the amount paid for the mortgage apartment during the marriage.
If the mortgage is issued using maternity capital
The use of maternity capital to repay a mortgage loan is regulated by Federal Law No. 256. The legislator determines that real estate acquired with maternity capital is registered in equal parts for all family members.
The parent, on whose dependent children remain, has the right not only to his share, but also to the shares of his wards. In this case, the division of the mortgage debt will be carried out in proportion to the shares.
When a marriage is dissolved, only the shares of the spouses are divided. Shared property of children is not subject to division. Until the age of majority of the children, their shares are at the disposal of the guardian.
The statute of limitations for the division of an apartment in a mortgage
The section of the loan apartment can take place:
- Married;
- During the termination of the union;
- After the divorce.
The limitation period is 3 years.
Start of the statute of limitations:
- One of the spouses has limited access to the apartment;
- Sale of apartment unknown spouse.
The deadline may be delayed if:
- Obstacles to going to court (force majeure, natural disasters);
- The service of one of the spouses in the army;
- Suspension of an obligation.
Lawyer's advice on sectioning a mortgage loan in a divorce - where to start
- Draw up a peace agreement.
- Determine the procedure for paying monthly payments;
- Decide who will own the property after the debt is paid;
- After paying off the loan, sell the apartment and share the funds received.
A peace agreement on the division of obligations and real estate will save not only the nerves of the spouses, but will also help to avoid additional costs for litigation.
Questions and answers
Is a fictitious divorce possible with a mortgage and minor children?
The legislator does not provide for the concept of "fictitious" divorce. In the presence of a loan and minor children, debt obligations, as well as obligations to provide for children, are fully preserved after a divorce.
How is a mortgage maintained by virtue of law when a land plot is divided?
Mortgage obligations for a land plot are divided between the spouses in half when filing a divorce. Unless otherwise provided by a marriage contract or agreement.
Only I pay for the mortgage, how to protect myself during a divorce?
If the divorce has not yet been formalized, it is necessary to conclude a marriage contract. It must specify the distribution of shares in jointly acquired real estate during a divorce. Otherwise, all property purchased during marriage is divided in half.
How to survive after a divorce and with a mortgage in Moscow?
If the financial condition does not allow fulfilling the obligations on mortgage payments, it is necessary to apply to the court. By proving your insolvency to the judge, you can count on deferred payments, reducing the monthly installment or canceling mortgage obligations. In the latter case, mortgage obligations will be transferred to the spouse in full.
How is the mortgage paid in case of divorce in Ukraine?
The legislation of Ukraine obliges spouses to bear equal obligations on mortgage loans after a divorce. Under certain circumstances, the court makes exceptions. For example: The apartment is in the use of one of the spouses. The court may cancel the collection of debt from the second spouse;
The husband pays his mortgage from the general budget, can it be recovered?
If your spouse pays off a pre-marital mortgage, you are entitled to half the amount you spent paying off the mortgage during your married life.
An apartment for parents, I paid for a mortgage with a card, my wife demands her share, what should I do?
Parents took out a mortgage on themselves, which means that mortgage obligations, as well as the rights to a loan apartment, belong to them. The spouse of the husband in this case has no rights to this housing.
Greetings!
The plans of a young family concluding a mortgage lending deal with a bank are based on a dream: someday, finally, to pay the last installment and feel like full-fledged owners of a home that has become their own. In most cases, this is what happens.
But sometimes reality hits the dream painfully, and everyday problems lead the spouses to decide to break up with each other.
At the same time, part of the mortgage has already been paid, and how now, during a divorce, to divide the mortgage property? This is a difficult question, but quite solvable.
What to do with a mortgage if the spouses are going to divorce?
Mortgage housing is not only a roof over your head. These are, first of all, debt obligations of one or both spouses.
These obligations must be fulfilled by them until the last day of the loan agreement.
In accordance with the agreement, failure to fulfill the terms of the mortgage threatens the couple with the loss of collateral. This scenario is understandable and does not raise any questions from borrowers.
But what to do with the mortgage and how to divide the partially paid property? After all, during the validity of the mortgage agreement, the family could have time to have children, the wife could become a housewife, and all the support for the family would fall on the shoulders of the head of the family.
That is, since the conclusion of the contract, all family circumstances could change dramatically, but does this mean that the rights of the members of a married couple to jointly acquired property have also changed?
In order for both parties to agree on a property dispute during a divorce, it is important to put aside all other claims and calmly discuss all the details of the future divorce process.
The standard situation in which spouses who have filed for a divorce share housing bought on credit is regulated by laws in the following documents:
- housing code of the Russian Federation;
- civil code of the Russian Federation;
- family code of the Russian Federation,
as well as federal law No. 102-F3, issued on July 16, 1998 No.
Collecting all the laws together and making the right conclusion without the help of a competent lawyer will not only be difficult, but in principle impossible.
How to start the division of property
Divorce usually takes place against the backdrop of emotional stress and constant searches for someone to blame for what is happening. Therefore, calm down and make all decisions deliberately - this is the first thing any lawyer will offer to do to a married couple who have decided to officially terminate the marriage bond.
This approach will allow the former spouses to adequately assess the arguments of the lawyer and not bring the case to serious litigation.
In addition, it is relatively easy to share what has material value - a TV, a car, a summer house, an apartment. And how to properly divide debt obligations, which, in addition to material, also have a legal side? This question can only be answered after a careful analysis of the loan agreement and consultations with a specialist.
There are two contracting parties involved in the ordinary divorce proceedings: husband and wife.
But in the case when they both have mortgage obligations, a third party comes into play - the bank that issued the funds to pay off the mortgage loan.
The creditor bank has certain risks in connection with the unpaid part of the debt, and there is also uncertainty in the question: from whom, after a divorce, to demand the rest of the payments.
Of course, it is impossible to foresee all the options for divorce proceedings. But when concluding an agreement on mortgage lending, some clauses providing for such situations are negotiated and necessarily included in the contract.
If the divorce of the spouses takes place in a normal environment, where both parties are attentive and attentive to each other's requirements, then the mortgage section can be regulated using the provisions specified in the loan agreement.
The usual set of basic bank requirements in the event of a divorce proceeding looks something like this:
- mortgage sale ban for which the bank has not been paid the full amount of funds indicated in the contract;
- if in the contract the main borrower is only one of the spouses, then at the conclusion of the agreement the second is also invited to become a co-borrower, which equally distributes debt obligations after the termination of family relations;
- as an option, in accordance with the agreement, the spouses may be offered to pay off their debt obligations ahead of schedule and finally. This removes the bank from participating in the further division of the apartment as a joint property.
In any case, the two parties to the divorce process need to consult with a third party, the mortgage financer, who may have their own view of the ongoing process.
The way out, which, it would seem, may have a debt issue - the sale of mortgage housing - is not welcomed by the bank and therefore falls out of the possible options for resolving the issue of property division.
An extremely disadvantageous option for former spouses when they cannot come to an agreement and stop making mortgage payments, thereby leaving the bank the right to own their apartment or house.
Housing placed at the disposal of the bank will mean not only the loss of a roof over your head, but also a certain (and not a small) part of the money.
The bank will sell the apartment at salvage value, that is, one third cheaper than its market price. At the same time, he will return to its former owners only the amount from which he will subtract all his costs and expenses for the sale, as well as the balance of the debt and penalties for lost profits in the form of interest on the remaining payments.
Those who nevertheless take the risk of finding buyers for their housing on their own should expect that the amount received from the transaction will not be much higher than that which they would receive from the sale of the apartment by the bank. Such an outcome will be influenced by the limited period for which it is necessary to have time to sell housing and the encumbrance of the property being sold with unfulfilled debt obligations.
The algorithm for dividing an apartment in a mortgage during a divorce in the video:
Divorce and mortgage
The division of the property of the spouses in a divorce can be carried out in different ways. The simplest is a contractual process that will lead to a mutually beneficial solution to the issue.
This will mean that payments on a mortgage loan will be credited to the bank account on time and without changing the monetary amount.
If one of the spouses who are co-borrowers cannot or does not want to pay their part of the debt, then only the judicial authorities can impute the fulfillment of debt obligations to him.
When considering a case on the division of a mortgage, the court, first of all, takes into account the specific time when the mortgage agreement was concluded - before the couple entered into an official marriage or after the moment the marriage documents were drawn up.
Mortgage issued to future spouses before marriage
If only one borrower is listed in the loan agreement, then the fulfillment of all debt obligations is his direct responsibility, because he is considered the sole owner of mortgage housing.
Such housing, taken by one of the spouses on credit before marriage, is the property that was acquired before the onset of official relations and is not subject to division in the event of a divorce.
The borrower must make all payments before the end of the loan agreement, regardless of who lives in his apartment.
These are the main provisions on which the court relies when deciding on the division of mortgage lending.
The court has no right to force the owner to divide the property belonging to him, acquired before entering into an official marriage.
You can find the answer to the question of which spouse will have to pay the mortgage without bringing the case to court.
If the only borrower, who is also the owner of the home, has the ability and desire to leave the apartment along with the rest of the payments to his former spouse, then this can be done simply by reissuing the contract.
Mortgage after marriage
All property that the spouses have acquired during marriage has the status of jointly acquired, and in the event of a divorce, it is subject to division equally between the former husband and wife.
An important role in property relations during a divorce is played by the fact of the conclusion of a marriage contract between the spouses.
This document, of course, provided that it is drawn up by competent lawyers, can regulate all the difficult moments of the divorce process.
If there is none, or if it does not provide for a division of mortgage obligations, then the issue will have to be resolved on the basis of the provisions of legislative acts common to all.
According to them, after the marriage, the apartment, which is mortgaged, as well as the rest of the property acquired during this period of time, is considered the joint property of the family and is divided into shares, regardless of whether one or both spouses are indicated in the contract as borrowers.
It states that all property acquired by a married couple during their marital relationship belongs to both of them, and includes:
- money received in the form of income of both persons who are married: their wages, pensions, non-targeted payments (allowances, material assistance), income from other (entrepreneurial, intellectual) activities;
- things for various purposes, money placed on income deposits, rights to a share in joint capital, papers of value, as well as any property acquired during the jointly lived time, regardless of which of the spouses it was acquired and for whose money.
Even if one of the spouses during the time spent in marriage did not bring a permanent income to the family budget, but at the same time fulfilled his family obligations - looked after the children, ran the household, then he is not deprived of the right to own common property.
Article No. 39 of the Family Code of the Russian Federation, which defines the shares of both spouses as equal to each other, if there are no other conditions stipulated by the marriage or other contract concluded between spouses.
If the division of property has reached the court, then the judge has the right to decide to whom and in what amount the property acquired during the jointly lived period of time belongs.
To make a fair decision, a number of factors are taken into account: the interests of other cohabiting family members; unjustified refusal of one of the spouses to participate in the fulfillment of their family obligations; spending common money and property is not in the interests of one's own family.
The income of the family and its debt obligations are considered common and are distributed in accordance with the shares designated by the court.
In a divorce, the standard court approach to the division of mortgaged housing is to issue a decision that states that shares in such housing can only be distributed after full settlement with the creditor bank.
If the spouses are listed as co-borrowers in the contract, the court usually orders them to equally pay the entire remaining amount of the debt.
When one of the spouses does not fulfill his obligations, the second has a choice: to pay the entire amount and become the sole owner of the housing, re-issuing the contract for himself, or to sue the co-borrower.
When most of the mortgage payments are left behind, the most reasonable option is to go through this path to the end and obtain ownership of the mortgaged housing, so that it becomes possible to choose the most suitable and profitable option for both ex-spouses to proceed with the division of this property.
Child factor at partition
Children registered as one of the owners of the dwelling have the full right to a share in this dwelling.
A child who was born after the property rights were established, when dividing the housing received on a mortgage, increases the share of the spouse with whom he remains to live after the divorce and division of property.
Re-registration of a mortgage agreement
The final decision on the division of a mortgage loan occurs in the event that the two parties fully fulfill all the obligations specified in the agreement concluded between the borrower and the lender.
If the term of the contract has not expired, and part of the payments remains unpaid, then the borrower can re-register his right to property and, therefore, transfer all obligations to his former second half.
This is possible provided that there is no clause in the contract prohibiting such a scenario of actions.
In order to positively resolve the issue of reissuing a loan with a bank, former spouses need to:
- come to an agreement among themselves;
- prepare documents certifying the solvency of the person to whom the loan is being reissued;
- with identification documents and a valid mortgage agreement, personally come to the experts of the credit department with a request to consider the issue of reissuing the agreement.
The expert, having considered the reason for the change in the contract of the identity of the borrower, having verified the data obtained, may grant the request and appoint the former spouse as the borrower.
The nuances of a mortgage with a share of maternity capital
When funds from maternity capital are involved in mortgage lending payments, then in the event of a divorce proceeding, the mortgage is divided between the parents with the obligatory condition that 30% of the area of the entire apartment is registered as the property of the child. If there are two children, then each child is transferred to the ownership of 25% of the total area.
With participation in the mortgage of maternity capital, the best way out for parents and children will be early repayment of the mortgage loan and the allocation of shares in their own apartment due to each. The search for another way out will surely leave everyone without housing and without maternity capital.
Spouses who have decided to divorce, but have an outstanding mortgage loan, should remember that their housing is pledged to the bank and is actually its property. Therefore, despite the divorce, it is their duty to make timely monthly payments.
If such a scenario is impossible, then there is only one thing left - to address your problems to the judiciary.
Rules for dividing an apartment in a mortgage during a divorce in the video:
Often, couples reach a dead end, and the only way to solve relationship problems is divorce. The current situation becomes even more dramatic when the question arises about the mortgage on real estate issued by the spouses. Separating spouses want to get a divorce and have nothing more in common, but a divorce mortgage does not give them such an opportunity. More often than not, this issue cannot be resolved amicably. After all, the bank that issued the mortgage to the family has no emotions, it is focused only on practicality.
Mortgage and divorce: how to divide mortgage real estate during a divorce without nerves and problems? In this situation, the spouses may have a lot of questions about how to share a mortgage apartment and who will pay the loan during a divorce. It should be noted that each individual case has its own characteristics. At present, there were no precedents in domestic judicial practice that judges could be guided by when making decisions in similar situations. Even similar cases have completely different verdicts from the judges.
As a rule, during the divorce proceedings with the division of mortgage property, the interests of one of the former spouses or the creditor are infringed. It is quite difficult to find a golden mean in such disputes. As a result, the bank takes the mortgaged apartment, on which they stopped paying the mortgage. At the same time, the borrower who has lost his apartment and has to pay the debt for many years also suffers.
Although it is not easy to divide an apartment in a mortgage, it is quite realistic. When parting, each spouse must be aware that any property acquired during the marriage is their mutual property, despite the fact that it can only be registered to one person and to the one who paid the mortgage on the property. If the wife of the borrower was not employed and did not receive income, she has the same rights to an apartment as the spouse who independently paid the debt, having the required level of income to obtain a mortgage.
Real estate division methods
There are several options that allow you to share an apartment that is in a mortgage during a divorce. The first method is the most popular and easiest. Former spouses sell the apartment and pay the bank the debt from the amount received. The funds that remain after the repayment of the loan debt, the spouses divide among themselves in equal shares.
The next option is to split the mortgage payments between the ex-spouses equally. In this case, each of them will pay only their share.
Sometimes former spouses agree that one of them remains the owner of the home, while compensating for the cost of the second spouse's share of the apartment.
Usually, legislation does not allocate ownership of individual rooms to owners, since certain conditions must be met for this, and, as a rule, they are not in typical apartments. In the event of problems in the division of real estate under mortgage, the court has the right to establish a certain procedure for the use of housing.
What does the court take into account when making a decision? Usually, when dividing apartments that are in a mortgage, the court is directly involved. In doing so, it takes into account the following factors:
- Who is the owner of the apartment?
- Who paid the initial fee?
- Are there children under the age of 18 among the owners?
If minors have rights to an apartment, then their rights should not suffer. The court assigns most of the apartment to the one with whom the child will live together after the parents divorce. Most often, one of the spouses brings more income, and therefore he pays a significant part of the mortgage debt. However, this does not mean that this particular person will have the right to property in the division of real estate.
If during the registration of a marriage a marriage contract could be drawn up, which, as a rule, prescribes the procedure for dividing mortgage property during a divorce, then it will be almost impossible to derogate from the terms of this agreement. There are cases when banking institutions offer borrowers to sign an agreement in which a divorce cannot affect the payment of a loan debt.
It often happens that spouses make changes to the mortgage agreement and sign additional agreements. For example, one loan can be divided into two smaller loans. But banks rarely offer such conditions.
The main nuances of a mortgage during a divorce
Often, when making a marriage, one of the spouses already owns real estate taken in a mortgage. After marriage / marriage, the borrower makes payments, as before. In this situation, he will remain the full owner of the home even with a divorce. At the same time, the other spouse will be able to claim those mortgage payments that were made to repay the loan after marriage, since these payments were made from the family budget. If people took out a mortgage on an apartment or plot, it will be divided between divorced spouses.
You can avoid misunderstandings when dividing a mortgage apartment during a divorce. To do this, the borrower must inform the bank about marriage, registering his spouse as a guarantor. In this case, the second spouse is also responsible for credit obligations. There is another option: you can draw up a marriage agreement (contract), noting in it the nuances regarding the mortgage, including divorce.
If one of the spouses proves that a certain part of the loan, for example, the first installment, was paid by him at his own expense, then the court will divide the apartment, increasing the share of this person in proportion to the amount he contributed.
Currently, not all families want to formalize their relationship. This does not prevent them from running a joint household, having a family budget, raising children, etc. At the same time, according to the law, such families are not official. Therefore, the norms and laws of the Family and Civil Codes do not apply to them. In such families, it is not easy to divide mortgage real estate. Usually in such a situation, parting people spend a lot of time on the division of property and resort to the help of lawyers, repeatedly going to court. The right of ownership and obligation under the loan remains with the spouse who issued the loan, and it does not matter who repaid it.
Underwater rocks
The presence of a mortgage during a divorce can cause a lot of trouble for the parting spouses associated with the division of such real estate. If there is a mortgage, then during a divorce, it is better to immediately contact a specialist or think through all the points regarding the mortgage even before the start of a life together.
Before you start dividing mortgage real estate, you should remember a few key points. For example, an apartment purchased before marriage belongs to the spouse to whom it was originally registered. But payments made during the period when the family lived in marriage are considered joint. Therefore, the second spouse in the event of a divorce is entitled to receive monetary compensation or an appropriate share of real estate. At the same time, it is important to understand that it will be quite problematic to prove from what funds (personal or general) mortgage payments were made.
The situation can become even more interesting if the apartment was purchased in a house under construction. For example, a borrower made a down payment on a mortgage, paid off a mortgage loan, and before the new house was completed, he got married. In this case, the owner may lose half of the living space, since the ownership of the apartment was registered when he was married, and the apartment will be considered jointly acquired real estate.
Things to Consider When Dividing a Mortgage
Divorce and mortgage: what points should you pay attention to? There are cases when the money for the first installment is donated to the newlyweds by their parents or the money for the down payment is taken from the sale of a room or cottage inherited by one of the spouses. According to the law, each spouse who has received property as a gift or inheritance is its owner, and this property is not considered to be acquired during marriage. In order to prove the fact of paying the mortgage with funds received as a gift or inheritance, all actions carried out with them must be documented. It would be optimal to transfer money, for example, from the inherited room from a personal account to the seller's account, then send it through the bank to pay the down payment or loan. But since in Russia many people prefer to make payments in cash, it is very difficult to confirm in court that the purchase of real estate was carried out with those funds.
Remember, if the marriage between the spouses was not formalized, it will not work to claim the division of property during a divorce. Ownership and credit obligations under a mortgage arise only from the person for whom the loan is issued. Currently, some banks have begun to issue mortgage loans to families living in a civil marriage.
A prenuptial agreement in most disputable situations helps to avoid problems. You can discuss all the nuances in advance, including the division of the mortgage during a divorce, by drawing up an agreement before marriage or during it.
In our country, only 5% of the population agree to marriage contracts. As a rule, these people are about 35-45 years old and they already know what divorce is, and have experienced all the delights of the division of property.
Divorcing a mortgage is not easy, but it is possible. There are several ways out of this situation: a loan section, the sale of an apartment or a marriage contract, which will help you insure yourself in advance and solve the problem peacefully.
Three sides of the conflict
When married, one of the spouses acts as a direct borrower, and the second is a co-borrower. But in a divorce, both spouses have to bear responsibility to the bank. According to the Family Code of the Russian Federation, any property acquired in marriage must be divided in half, as jointly acquired. This also applies to apartments bought with a mortgage. At the same time, it does not matter to whom the loan was originally issued, if other options were not provided for in the contract.
In the mortgage property section three sides- two spouses and a creditor bank. A financial institution protects its interests by giving you a mortgage, so the apartment is owned by the bank until the final payment of the loan. Therefore, in the event of a divorce, you need to contact the creditor bank and report the situation.
What can the bank offer?
Most likely, the bank will offer you favorable conditions for itself. For example, demand full repayment of the loan, or shift all responsibility for paying the mortgage to the main borrower. However, the final decision remains with you, and this issue can be considered in court. With a high probability, the court will rule in your favor and oblige the bank to accept conditions that will suit both spouses.
He never issues a loan without the consent of the second spouse or co-borrower, so the second party is always aware of the purchase of an apartment, ”explains Sergei Yashenko, lawyer, partner at the Moscow Bar Association GRAD. - “Usually payments come from the family budget. In the event of a divorce, the obligations under the loan fall on the main borrower. But the problem is that property purchased during marriage is jointly acquired. If this issue cannot be resolved peacefully, then you will have to go to court. And when dividing property, the court will proceed from the fact that it is an equal share, unless otherwise provided by the marriage contract. When the property is divided, the main borrower is left with half of the property, despite the fact that the loan was issued for the full area.
In this case, the second spouse can receive compensation if he refuses to claim a share in the apartment. But, if the co-borrower does not refuse the share, then the court, taking into account the position of the bank, can divide the apartment as a common share. In this case, the obligations under the loan are also divided, and the bank will know whose share it can take if the borrower violates the obligations under the loan.
The bank, by virtue of the standards determined by the Central Bank, transfers or takes other measures to return funds, sells an apartment or a share, ”adds the lawyer.
So, without selling the apartment, the issue with the mortgage Divorce can be resolved in two ways.:
1. Spouses share shares in the apartment and obligations to pay the mortgage through the court. In this scenario, the bank and the court take into account the income of the spouses, and with a difference in wages, the amount of monthly payments for each of the borrowers may vary.
If one of the former spouses for some reason stops paying his part of the monthly payments, then the second can take over his obligations and collect compensation.
2. A mortgage loan is registered for one of the former spouses, and the second in a notarial form waives claims for an apartment. In this case, the main borrower assumes all obligations under the loan, and the second ex-spouse loses the rights to real estate. This path is possible only with the approval of the bank. In order to transfer obligations to repay a loan to one of the borrowers, the bank must recognize its solvency and the ability to independently close debts.
But even here everything is not so simple. For example, if mortgage housing is the only apartment, and there is simply nowhere for the second ex-spouse to live after the divorce. In this case, it is possible to sell the apartment.
Is it possible to sell a mortgage apartment during a divorce?
Re-read the loan agreement and check with the bank whether you have the right to sell the property. This is a rather radical way, but effective.
You sell housing, pay off the bank loan ahead of schedule from the amount received, and if there is any amount left, divide it between the spouses. In this case, you immediately get rid of obligations to the bank, and also have a better chance of resolving the housing problem peacefully with a minimum number of claims. In one case or another, one of the spouses will bear most of the financial responsibility if they decide to leave the mortgage.
The procedure is not so simple, but quite real:
1. You report your decision to the bank. The credit institution gives approval for the sale of the apartment.
2. The buyer pays the bank the amount remaining under the contract. The bank relieves you of the burden on the loan.
3. The new owner of the apartment pays you the balance that you share.
In this case, it is better to contact real estate professionals. Most often, a bank can provide such specialists.
Also, the obligation to sell an apartment can be assumed by a credit institution. Then the bank puts the property up for auction, but the cost of housing can be significantly reduced. In addition, you will have to pay separately for the auction procedure.
Mortgage and marriage contract
A prenuptial agreement will help solve the problem of "little bloodshed". It can be concluded both before marriage and at any stage of family life. However, you will definitely have to notify the bank about the conclusion of the marriage contract.
If your apartment was bought in a marriage with a mortgage, then you need to notify the bank of the marriage contract, as the bank is a mortgagee and may claim a violation of its right, ”explains Sergey Yashenko. - “The marriage contract helps to share the obligations of the spouses. It can also specify the amount of payments depending on the difference in wages.
The marriage contract is concluded in a notarial form, it can prescribe not only property rights, but also loan obligations. But remember that the terms of the contract also affect the interests of the bank, therefore, so that the credit institution does not declare an infringement of its rights, agree on the terms of the contract with it.
An amicable agreement or re-registration of a mortgage on one of the spouses will help to leave the apartment in the property, but in the future it may cause claims from one of the parties. The sale of the apartment with the consent of the bank and the division of the balance will help reduce the number of claims to the property. Of course, not all advice is universal, and each situation will have to be considered separately. However, as our lawyer jokingly noted at the beginning of the conversation, in this case it is better not to get a divorce.
Banks work for money. Therefore, there are only two ways out of the mortgage: pay off the loan or be left without an apartment. But how the spouses will divide the housing between themselves, if they get divorced, the bank does not care at all.
You have to protect your rights to square meters on your own. Choose one of the methods below - today in Russia these are all possible division options.
1. Payouts as before
Suitable if you do not want to notify the bank of the divorce (if the bank considers that the financial situation of the spouses has worsened, it may require early repayment of the mortgage). You pay the mortgage together, and upon completion of the payments (when the bank removes the encumbrance) you can sell and divide as common marital property.
If your spouse makes payments to the bank, and you transfer your share to him in cash or by transfer, take a receipt.
2. One spouse pays, the other is eliminated
I pay
You need to choose one of two solutions:
- Ask the second spouse for a document waiving his claims to housing. This may be a donation agreement or an agreement on the division of property.
- To demand in court that the spouse reimburse you for his part of the payments.
Remember the limitation period of 3 years (clause 7, article 38 of the RF IC). It is not counted from the date of divorce: in your case, the countdown goes for each payment separately. The court will review all payments you report, but will only order your spouse to repay those you have made in the past three years.
your risk. If the second spouse refuses the contract, and you are sure that there is nothing to recover from him in court - it makes sense to refuse the mortgage. There is a high risk that you will have to share the apartment you paid for - or pay a ransom for it: the spouse has the right to demand the division of housing acquired in marriage.
From life
Spouses with a child took a mortgage for 10 years, divorced after 5, but periodically lived together. My husband paid the entire mortgage and paid off in 2012. It never occurred to him to collect her part of the payments from his wife - she did not apply for an apartment. In 2015, the 3-year period during which he could sue something expired.
Almost immediately, the wife went to court for the division of property and won, receiving half the apartment as a former spouse. Alas, the second half of the apartment also went to her - for alimony debts (after all, formally they were divorced a long time ago).
Paid by the spouse we are divorcing
You may be ready to give up both housing and mortgage payments, and your spouse may pay, but is afraid that after you will demand a share. Sign the documents that you transfer your part of the housing to him along with the loan obligations. To do this, they conclude an agreement on the division of property (if the apartment is jointly owned) or a donation agreement (if each spouse has been allocated their own share).
your risk. Formally, you will remain indebted to the bank: for him, the personal agreements of the spouses are not important, he gave the two of you money and considers you both debtors. If your ex stops paying, you are unlikely to lose money, the bank will simply sell the apartment. But your credit history will be ruined by "mortgage default". Whether you will be given another mortgage later is unknown.
3. Re-registration of a mortgage loan for one
The bank concludes a new contract with a more solvent spouse. He is left with an apartment and responsibilities for the loan. The second may demand from him a share of payments already made (if these payments were made from common family funds).
4. Partition of a mortgage obligation for two
The bank concludes a new loan agreement with each - for half of the total debt (reissuance will cost 0.5-1% of the remaining debt), Rosreestr will issue new certificates of law.
Now each is liable only for his share and is not responsible for the delay of the other. If the spouse does not pay the loan, the bank will offer you to buy out his share (Article 255 of the Civil Code of the Russian Federation), if you refuse, he will put it up for auction.
Mortgage for odnushku / studio
Such a mortgage cannot be divided into two, only reissued into one. This is due to the fact that one-room housing cannot be divided “in kind” (into two isolated rooms), each one owns only a part. And a mortgage is not issued for part of the room (clause 4, article 5 102-FZ).
5. Sale of an apartment
This is quite a hassle for the buyer, so you will most likely have to make a discount.
How to sell an apartment with an unpaid mortgage
- Obtain bank approval for the sale.
- Decide on the cost of the apartment, dividing it into 2 parts: your debt to the bank + your income from the sale.
- Independently find a buyer and conclude a preliminary contract of sale with him at the notary. The buyer will transfer the amount of your debt to the bank. The bank will remove the encumbrance - and you will become the owner of an ordinary apartment.
- Complete the sale: conclude the main sale and purchase agreement, receive the balance (your income) from the buyer and register the transaction with Rosreestr, transferring ownership to the new owner.
As soon as the bank has received the money and removed the encumbrance, the sellers still remain the owners and may refuse the transaction or raise the price of the apartment. This is the buyer's risk, which is why they conclude a preliminary agreement, and the seller's share is given only after the re-registration of ownership (before that, the money is kept in a safe deposit box).
6. Mortgage prepayment
The easiest way. People usually don’t have money for it, but it’s impossible not to mention it. You return the entire debt, the bank removes the encumbrance, the apartment becomes ordinary common property: it can be divided into shares or sold.
The bank - no matter which method you choose above - can also offer loan restructuring, that is, a decrease in monthly payments. If you abandon payments completely and evade negotiations, the bank will sell the apartment at auction (even if this is the only housing and you have children).
It's not very profitable. Yes, such issues are not resolved quickly and, probably, you will not be able to be evicted instantly, for how many months you will still live. But, firstly, it is more important for the bank to quickly return your funds, so housing will be sold at a low price, and fines / penalties will still be withheld from you - in the end, you will still be evicted, and very little will be returned from the proceeds. Secondly, your credit history will be damaged.
Summary
- Family relations are not significant for the bank - both in marriage and in divorce, you will remain a borrower and a co-borrower, and both owe the entire amount (you can take a mortgage in marriage for one in only one way - sign a prenuptial agreement. The second spouse will have neither a share nor loan debt). Paying your half and not worrying about the other won't work. If the spouse stopped making payments, you need to pay for two or give up the apartment.
- The bank does not care in what shares you divide the apartment among yourself. You and your spouse decide this - either by agreement or by law.
- The law is based on whether you paid your rent with public or personal funds. If you have added personal funds to the cost of the apartment, you have the right to increase your half of the housing by this amount. But the court will require proof. Save everything if possible: donation agreements, transfer statements from parents, inheritance documents, etc.