Divorce partition mortgage in the shares of 2 children. How is an apartment divided in a mortgage during a divorce. When the apartment is not divided into equal parts

Newlyweds, confident that they will live "happily ever after", are in a hurry to acquire their own housing. But they don’t have the full amount to buy an apartment, and there is no help from anywhere ... The bank offers temptingly favorable mortgage lending conditions. And so, husband and wife lovingly equip their family nest.

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

If there were no encumbrances on marital property, everything would be extremely simple. A divorced or just planning to divorce husband and wife could conclude a written agreement on the division of jointly acquired property and debts. In extreme cases, if it would not be possible to conclude a written contract, the spouses would go to court with a claim for the division of real estate.

And what to do if the joint real estate is taken on credit and is under bank encumbrance? As a result, difficulties arise. How to share a mortgage apartment and a mortgage loan during a divorce?

Theoretical foundations of divorce with a mortgage

On what legal grounds is the division of an apartment purchased on a mortgage and the division of a mortgage loan carried out?

Section of an apartment in a mortgage loan

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

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

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

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

Partition of debt between spouses

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

Divorce with a mortgage - practice

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

• the joint apartment of the spouses is pledged to the bank;
• the spouses have debt obligations to the bank.

All transactions related to mortgages - the sale of housing after a divorce, the transfer of debt to one of the spouses, the division of the loan between the spouses, the division of the monthly payment between the spouses - must be carried out with the consent of the bank.

According to the provisions of civil law (paragraph 1 of article 391 of the Civil Code of the Russian Federation), the transfer of debt from one person to another (from husband to wife or vice versa) is impossible without the consent of the creditor (banking or credit institution). Most often, the spouses' applications for amendments to the loan agreement remain unsatisfied by the bank. Attempts to separate a mortgage apartment and a loan in court without the consent of the bank also remain unsuccessful.

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

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

If there is an agreement between the spouses

The law provides for the right of spouses to independently determine the fate of their common property. Husband and wife may, at their discretion, divide joint property by entering into a written agreement, both during marriage and after divorce.

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

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

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

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

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

After the judicial division procedure, on the basis of a court decision on the division of a mortgage apartment, the spouses can apply to a banking or credit institution with an application for the transfer of debt. If the lender agrees, the loan agreement will be amended (the loan agreement will be reissued to one of the spouses or reissued into two separate loan agreements .

It is necessary to take into account one more thing: for making changes to the loan agreement, the bank may charge a commission in the amount of 0.5-1% of the amount owed.

If the mortgage lending agreement is drawn up for both spouses (husband and wife are co-borrowers), you can divide the loan with the consent of the bank in one of two ways:

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

As a rule, the bank is not very willing to take such a step, because in this case it loses the benefits of the joint and several liability of the spouses (for example, debt collection from one of the spouses or from both at the same time). But, if the bank agrees, the general mortgage loan turns into two separate loans. As a rule, the residual debt is divided in half, each of the spouses continues to pay his part.

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

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

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

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

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

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

If the bank refuses to reissue the loan agreement?

Such an extremely unfavorable course of events as the bank's refusal to re-register the loan agreement is also possible.

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

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

• continue to pay off the loan;
• find the missing amount of money and pay off the loan ahead of schedule. After that, the apartment can be sold at a bargain price, and the proceeds can be divided;
• sell a mortgage apartment with the consent of a banking institution and repay the loan;
• appeal the refusal of the bank in court.

Thus, the husband and wife will have to agree on the procedure for fulfilling common loan obligations. If the loan obligations are not fulfilled, a penalty will be imposed on the mortgage apartment - thus, both the housing and the payments made on the loan will be lost. More on this below.

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

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

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

If the joint funds of the spouses were used to repay the loan, in the event of a divorce, the second spouse has the right to claim a share of the mortgage apartment. Or vice versa, if he does not claim co-ownership of the apartment, he can be exempted from mortgage payments, and can also receive back the deposited funds.

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

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

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

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

If the spouses-co-borrowers cannot reach an agreement on further repayment of the debt, if the main borrower cannot pay the debt on their own, if there is no permission from the bank to transfer the debt to another spouse, there is another way to unravel the mortgage "tangle".

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

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

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

• Firstly, to sell an apartment, you also need to obtain permission from the bank. Banks do not always agree - after all, when selling an apartment and repaying a loan early, part of the interest is lost.
• Secondly, finding a buyer who will be interested in buying an apartment secured by a bank is not easy.
• Thirdly, as a result of the previous shortcoming, the mortgaged apartment has to be sold at a significantly lower price.

Thus, if the bank agrees to the sale of a mortgage apartment, the husband and wife will have to find a buyer who will agree to purchase housing with encumbrance. The buyer will have to pay the balance of the debt on the loan and wait for the paperwork to remove the encumbrance from the mortgaged property. To compensate for the risks and time costs, apartment sellers have to reduce the price of the apartment.

Other options

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

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

Mortgage section if there is a child

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

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

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

Can You Stop Paying Your Mortgage After a Divorce?

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

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

: the procedure for dividing the shares of the apartment and obligations between the former spouses. Our office is often called and visited by couples, for whom mortgage issue became a real life test. The fact is that the division of debts in this case also involves a third party in the dispute: the bank that gave the mortgage loan.

To clearly illustrate the risks and problems, read the main questions of citizens and the lawyer's answers to them. Contact our mortgage lawyers for legal advice. Legal advice is free.

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Frequently Asked Lawyers About Divorce Mortgages

1. Mortgage during divorce: section of the apartment

   Before marriage, I bought an apartment in St. Petersburg. Only then did he meet his future wife. They got married, had a baby, lived together for 3 years. During the marriage, I sold my odnushka and invested the money from the sale in the mortgage of a three-room apartment in Shushary. Now the mortgage is paid off by 45 percent, but the marriage has fallen apart. How can we divide the apartment, given that the wife has not invested a single ruble in the mortgage? Semyon.

   According to the law, when dividing the property that the spouses have jointly acquired, they are allocated 1/2 of the share, if there was no marriage contract that dictates other conditions for the division.

   But the court may, at its discretion, increase the share of one of the spouses to the detriment of the other. This will happen if evidence is presented to the court that most of the money was invested by the spouse (you) from the sale of property acquired in the property before marriage. It also matters which of the spouses will raise the child and the presence of other factors.

7 (812) 925-39-24

2. Divorce Mortgage: Get a Mortgage and Divorce

   My husband and I are planning to file for divorce. To support myself while I'm still married, I want to get a mortgage. I, as a woman with her husband, will approve her 100%. After that, we'll get divorced. How to do it right? Is it true that divorce mortgage and the apartment will remain to me? Inga, St. Petersburg.

   After a divorce, the mortgage is divided equally between the former spouses. If your husband does not pay his share, then the interest for the delay is also divided between two borrowers. But after a divorce, even if your husband doesn't pay the mortgage, he doesn't have to give up his share of the apartment. He will have the opportunity to take ownership of 1/2 of the apartment and live in it.

   If your spouse refuses his share, you will be required to pay him 1/2 of the money that was paid on the mortgage during the period of the marriage.

3. Mortgage during divorce: husband demands to give a share in the apartment

   My husband and I are divorcing. In marriage, they bought a one-room apartment. My husband wants to completely take away my apartment. But I don't want to give him my share. He threatens that if I don’t give him 1/2 of the share for free, he will stop paying the loan and all divorce mortgage lay down on me. Can he do that, is he right? Katerina.

   Your husband is violating your rights. Don't let him do it. Since the apartment was purchased during the marriage, it is joint matrimonial property. In a divorce, it is divided between you in 1/2 shares.

   In a divorce, you will be required to pay the mortgage on your share of the apartment, and your husband on his share. You cannot be deprived of the right to this share in any way, except by order of the court. But you can refuse it and receive compensation: 1/2 of the money that was paid on the mortgage while you were married.

4. Mortgage during divorce: how to divide the house

   My wife and I took a mortgage on a plot of land and a house. Issued in equal shares in the property. We're getting divorced in five years. The wife either wants to sell me her share for twice what she's worth, or wants me to give her my share. Moreover, for an insignificant amount, several times lower than what it costs. Is it possible somehow, through the court or in some other way, to force her to sell me a share of the house for the real value? Is it possible to order an appraisal, expertise, and buy its share exactly for the cost that the appraisal will show? Pavel, St. Petersburg

   No, the court does not have the right to oblige your wife to set a lower price for her property. Exit: you sell your share. You can set any price and offer her to buy your share (she has the pre-emptive right to buy your share). If she refuses, you can sell your share of the house to a third party, but for a price no lower than what you offered your spouse. You also have the same right if she offers you to buy a share. If she sells her share to a third party for less than what was offered to you, this transaction may be invalidated by you.

5. Mortgage during divorce: 1/2 each

   My husband and I lived in a civil marriage before marriage. Then we bought an apartment in a mortgage for 1/2 share for each. A year later, the relationship was officially registered. We had a girl and had a daughter from our first marriage. We get divorced because of his drunkenness. You need to share an apartment, but it's still in the mortgage. I have unrealized maternity capital. Maybe it’s more profitable for me to invest it in a mortgage so that my share in the apartment is larger? Anna.

   Anna, do not rush to invest maternity capital in the mortgage of this apartment. If you do this, you will have to allocate a share to the children. Talk to your spouse, maybe he will agree to donate his share to the children.

6. Mortgage during divorce: mortgage section with a parasite

   She took out a mortgage before she got married. Before marriage, I paid off half of the mortgage. The rest of the money was paid after the wedding. There was no marriage contract. But my husband did not earn much, I alone pulled the mortgage. He did not work for several months, got a job for a short time and quit. Again, at home, he lay on the couch and lapped up beer. When I got tired of it, I filed for divorce. He filed a counterclaim for the division of property - he wants half of the apartment. What right does he have to my lawful property? Irina, St. Petersburg

   Irina, if during the period of marriage you paid off half of the mortgage, the husband puts forward his demands partly justified. But he was mistaken in the amount of his claims.

   He is entitled to 1/2 of the money that you contributed to the mortgage during the period of marriage or cohabitation and common household. That is, of course, he will not receive half of the apartment, but half of the money that was paid "jointly" is quite possible.

   If you prove in court that you repaid the loan from the money that you received under the donation agreement, that's another matter. This money is not jointly acquired, only yours. In this case, he is not entitled to compensation.

7. Divorce Mortgage: Can't Pay Mortgage After Divorce

   We are getting divorced. I don’t want to pay a mortgage after a divorce, I don’t have such an opportunity. If I give up my half, and my wife agrees to take it and pay the mortgage after the divorce in full, will the obligation to pay contributions be removed from me? And is it true that if I give up ownership of my share, my wife will pay me compensation for the apartment? Ilya, St. Petersburg.

   Yes, you are entitled to compensation when divorcing a mortgage.

8. Divorce Mortgage and Ownership

   I have a mortgage on an apartment. The mortgage is not paid yet, but I want to get married. What are my risks in the event of a broken marriage? What difference does it make if I register an apartment as a property before marriage or married? Sasha.

   In the event that you register the apartment as a property before marriage, and you repay the mortgage in marriage, your wife will be entitled to 1/2 of the money that you pay in marriage for the apartment. It doesn’t matter if you registered the apartment as a property before marriage or during marriage.

9. Mortgage during divorce: prenuptial agreement

   My wife and I are divorcing and dividing property. We took out a mortgage for our life together. Now we are trying to negotiate: draw up a marriage contract. Is it possible to write in it that I compensate my wife for the cost of 1/3 of the cost of the apartment and give the right to live in the apartment for 1 year after the divorce? Nikolay.

   Yes, in your case, you need to sign an agreement on the division of property. It is necessary to specify all the conditions and terms as detailed and accurate as possible and to certify your contract with a notary.



10. Mortgage during divorce: how to get your money?

    My parents sold our apartment and divided the money between themselves and me. I received 2,000,000 rubles. My husband and I invested this money in a mortgage on an apartment as a down payment. Now we are getting divorced. I want my money back, how do I confirm that my parents gave me two million? Polina, St. Petersburg.

    Have your parents write you a donation agreement to give you money to buy an apartment. Let them indicate the exact address of the apartment. In the case of a convincing donation agreement, the court will not consider this money to be common property. They will not participate in the division of property.

    If your husband will receive something during the division, but already a much smaller amount.

    But you can in court and offer to leave the apartment and loan obligations to your husband. Your conditions - payment of compensation to you in the amount of 1/2 of the money deposited in the credit account during the marriage.

11. Mortgage during divorce: going to court?

    Two years ago, my husband and I took out a mortgage, he is a borrower, I am a co-borrower. Mortgages to pay another 13 years, but we are getting divorced. How can we be? How to separate a mortgage and an apartment? Natalia, St. Petersburg.

    Mortgage during divorce is divided through the court. Moreover, it is necessary to bring the bank to court as a third party. This process concerns the bank directly, since the apartment is owned by the bank until the loan is repaid. With the consent of the bank, you can re-register the contract for one of the spouses directly in court. In this case, the court will decide on compensation to the second spouse.

12. Mortgage during divorce: what to do?

    In marriage, we issued a mortgage for 1/2 for my husband and me for 15 years. There is a small child. I want to get my share of the apartment, but I can't even pay half the mortgage. Mortgage paid only for a year. Another 14 years to pay, but nowhere to live and still need to find a job. What to do? Olesya, St. Petersburg.

    The owner of the apartment until the mortgage debt is paid off is a bank. He needs to be brought to trial. During a divorce, the mortgage apartment is divided between the spouses in equal parts. Or transferred to one spouse, while the second receives compensation. If you can't pay the mortgage, choose the option where the ownership and obligation of the mortgage passes to your ex-husband and you get compensation.

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7 (812) 925-39-24 Section of the mortgage in case of divorce of spouses in St. Petersburg

13. Mortgage during divorce: how to share an apartment?

    My husband and I bought an apartment with a mortgage. I contributed 60% for it from my money from the sale of an apartment in Moscow. After that, the husband did not work anywhere, he received income from rare odd jobs. We're getting divorced in a month. I am ready to pay the mortgage further, he does not agree to leave me an apartment, he is trying to get a half, 1/2 share. We will sue. I have a question: can the court award me an apartment in full? Nina, Gatchina.

    And the obligations under the loan occurs only with the participation of the court of the bank. If the bank in a lawsuit agrees to the division of the apartment and the renewal of the loan agreement, you can set the amount of monetary compensation to your spouse through the court and resolve the issue with the division of the mortgage. But, in order to prove to the court that you paid off the mortgage from your own funds, and not from family money, you will have to show the relevant documents to the court.

    For such a process, we recommend that you hire an experienced property division lawyer. Chapter divorce mortgages has a number of complex nuances. A good negotiator and specialist with experience in such matters will help you. In the end, they will pay for themselves.

14. Mortgage during divorce: bank against court decision

    During the divorce, there was a court for the division of property and the division of the mortgage. The court decision said that the apartment and credit obligations were awarded to me. The ownership of the apartment was awarded to me and Rosreestr registered it. In the process, the bank was a third party. But his representatives did not come to the court. The bank did not remake the loan agreement, although a written request and a court decision were sent to it. I pay the mortgage without violations. How to force the bank to correct the contract in accordance with the court decision? Kirill, St. Petersburg.

    If you already have a court decision, all parties to the case, including the bank, are required to comply with it. Contact the bailiff service, which is obliged to monitor and facilitate the implementation of the court decision. In order to force all participants in the case to take action, get a court decision on the case and take it to the bailiffs. Then - just control the progress of execution.

15. Mortgage during divorce without a marriage contract

    We bought a married apartment with a mortgage. My salary is much more than my wife's salary. I paid the mortgage in full, which I have the relevant documents: receipts for payment of mortgage payments. On this basis, I would like to obtain ownership of the apartment, or at least 3/4 of the share of the apartment. Tamir, St. Petersburg.

    By law, even if you and your spouse do not have equal income, or one of you did not work at all, the entire income of the husband and wife is common (unless there is a prenuptial agreement that states different conditions). In your case, most likely you will remain a borrower in a mortgage by a court decision. If the apartment at the same time passes to you by a court decision, you will be obliged to pay compensation to your wife: 1/2 of the money from those that were transferred on the mortgage for the entire time of the marriage.

16. Mortgage during divorce: section on consent

    My wife and I are getting a divorce, we have a joint child, we paid a mortgage. She agreed to leave the apartment to me. What documents should we sign so that she does not apply for an apartment in the future? Dmitry E., St. Petersburg.

    First, you need to re-register a mortgage loan in a bank only for you. If the bank refuses you this requirement, you will have to resolve the issue in court. If you are able to pay your mortgage and can prove your ability to pay, you can count on a positive court decision.

    Secondly, if the apartment and the loan are re-registered for you, set the amount and pay your spouse monetary compensation.

17. Mortgage in case of divorce and fictitious marriage

    After the wedding, we lived in the apartment of my wife and her parents. Then I rented an apartment and took out a mortgage. The co-borrower was my wife, although I asked the bank to designate someone else as a co-borrower. My wife and I did not live together in a rented apartment. There were no common households. The money for the down payment was given to me by relatives. Divorced a year later. After the divorce and before him, the wife did not take part in repaying the loan debt. How can I get the whole apartment, not allocate a share to my ex-wife? Michael, Vyborg.

    Case by divorce mortgage decided by the court. It is necessary to file a lawsuit in court for the division of property and the division of mortgages in a divorce. If you can prove that the money was donated, your share in the apartment will be increased. If you can prove that they did not run a joint household and had a different budget, it is possible that the share in the apartment will be increased. Depending on the decision of the court, compensation to the ex-wife may be assigned.

18. Mortgage during divorce: mortgage debt, what to do?

    I'm divorced. Have a baby. The mortgage was taken in marriage with her husband. When dividing the property, they signed an agreement that he pays half divorce mortgages. I am the main borrower. I regularly pay the mortgage, but he doesn’t - he has a big debt. In principle, I am ready to pay my share in full ahead of schedule, but I am afraid that the bank will force me to pay also the share of my husband and his delays, fines. Elena P., Agalatovo.

    We need to act quickly, without delay. File a lawsuit for division of matrimonial property. Otherwise, the bank has the right to present you with requirements for the payment of the debt.

    To protect your interests, contact and find a good lawyer.

19. Mortgage during divorce: what percentage?

    My wife and I bought a three-room apartment with a mortgage. In order to make the first installment - 3,000,000 rubles, I sold my apartment. The rest (two million) - took a mortgage on 1/2 share. What percentage of the mortgage will I pay in a divorce? Oleg, Petersburg.

    Through the court, you can achieve a fair division of property. Prove to the court that you invested in the apartment the money received from the sale of your personal apartment. The court will not include this money in the section.

20. Mortgage during divorce: how to refuse a mortgage?

    We got a mortgage while we were married. We are getting divorced and would like to get out of the mortgage agreement, especially since I am a co-borrower. Can the option of replacing a co-borrower be approved through a court or otherwise? Ivan.

    The issue is decided in court. But it is likely that the court will not exclude you from co-borrowers. But you can sign an agreement with your spouse to waive the right to an apartment and pay you compensation. Compensation can be assigned arbitrarily or as 50% of the mortgage funds paid in marriage.

21. Divorce mortgage: Husband lost his job

    We took out a mortgage six years ago. I am the wife - the main borrower, the husband - the co-borrower. After the divorce, they paid the mortgage on an equal footing. Now the husband has lost his job and cannot pay. We didn’t share the property, I live with my daughter in another region. He doesn't pay child support either. What to do? Alina, St. Petersburg

    Divide the property through the court. In court, you can either claim a debt from your spouse or transfer all obligations to yourself, transfer the right to an apartment to yourself, determine the amount of compensation to your ex-husband. Demand a separate claim from him.

22. Mortgage during divorce: how to divide if there is a child?

    The husband is demanding compensation for the mortgage apartment. I am ready to take over the mortgage after the divorce. My husband is ready to give it up if I pay him compensation. But we have a child who, in the event of a divorce, will live with me. How does the fact that I am raising our common child affect, is there an option to pay compensation less than it would be without a child? Catherine

    As a rule, the presence of children does not affect the division of property between spouses. Regardless of who the child stays with, your share in the apartment is 50%. An exception is if you invested maternity capital in paying a mortgage, there is a child's share in the apartment. In this case, the division will take place in different shares.

Divorce is an unpleasant thing in itself. And when the spouses have minor children and an apartment taken on a mortgage, the process becomes much more complicated. If you have children, you can only get a divorce through the courts. There, first of all, the interests of the children and the parent with whom they will stay will be taken into account.

The main difficulty of the divorce process in the presence of mortgage obligations and minor children is that it is necessary to take into account the interests of three parties at once (former spouses and the creditor).

How to start divorce proceedings

When obtaining mortgage loans, one of the spouses acts as the main borrower, and the second guarantor. From this, the essence does not change, since both bear the same responsibility to the creditor.

If the decision to divorce is made, it is necessary to notify the organization that issued the loan for the apartment. The bank will offer the best options for resolving contentious issues regarding the division of the mortgaged apartment itself and for repaying the loan. But it is worth noting that in this case the bank operates with options that are beneficial to it. If, during a divorce, the spouses are not satisfied with them, it makes sense to consider other prospects for resolving the situation.

The best options for dividing a mortgage apartment during a divorce

The monthly loan payments are divided equally. Each spouse becomes individually responsible for paying off the mortgage. Spouses have equal rights to property, but each makes a payment for his share. This option is not always convenient and reliable: firstly, if the spouses have no other housing, they will be forced to continue living under the same roof. Secondly, one of the owners may simply stop paying their share of the loan due to various circumstances:

• the spouse does not live in this apartment, therefore, does not consider it necessary to pay for it;
• the spouse has financial problems that do not allow him to pay his part of the loan;
• the spouse deliberately stopped payments in order to force the credit institution to put the property up for sale.

In the first two cases, provided that one of the borrowers in good faith pays his share and the share of the ex-spouse, he can count on some advantages. The fact that in the future the apartment is not divided into equal shares, but taking into account the fact that the second spouse paid more.

Note: the bank does not care who pays and who does not. Each month, a fixed amount must be paid for a certain mortgage loan, if it is not received for a long time, the bank has the right to put the apartment up for auction.

Bringing to the auction is highly undesirable, since the apartment will be sold at a price much lower than its real value. It is possible that this amount will not even be enough to pay off the mortgage and the spouses will remain in debt during a divorce, but already for non-existent property.

Another scenario is possible. One of the owners closes its loan obligations ahead of schedule. But, he does not have the right to dispose of his share, since the apartment is still pledged to the bank. In this case, the credit institution carefully examines the solvency of both borrowers and, if the results are satisfactory, the payment is divided into separate parts, with a further opportunity to freely dispose of the share of the apartment for which the mortgage has been repaid.

One of the borrowers disclaims the obligation to repay the loan and waives ownership in favor of the second borrower. This option is practiced quite often. The bank agrees to re-register a mortgage loan for one of the spouses, if the latter is recognized as solvent.

Important: for any renewal of a mortgage agreement, a credit institution has the right to charge a commission in the amount of 0.5 to 1 percent of the remaining debt. But in general, banks are rather reluctant to agree to this procedure.

Sell ​​the apartment, pay off the amount of the debt on the loan, and divide the remaining money equally between the spouses. An excellent option that allows you to solve several problems at once: firstly, the spouses will get rid of the need to continue their life together. Secondly, the issue of repayment of the loan will be closed. But this option is not always possible for several reasons:

• To sell a mortgage apartment, you must obtain permission from the bank that issued the loans. Credit organizations do not take such a step with great pleasure, as they lose interest on loans. And this is a considerable amount. But if both spouses are solvent people, then the bank will approve the sale of one mortgage apartment, offering to take two separate living spaces on the same lending terms.
• Finding a buyer willing to deal with an apartment that is in a mortgage is quite difficult.
• The sale of a mortgage apartment is a joint activity of two borrowers-spouses. But few people, having decided on a divorce, want to spend so much time together doing common chores, visiting all the necessary authorities.

More possible options

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For the bank and the spouses, the best option is the early repayment of the mortgage payment (the payment is divided into equal shares or in court). You can find funds for this in different ways:

• sell other property acquired in a joint marriage;
• apply for a new loan for one of the ex-spouses.

Note: after notifying the bank about the divorce of the spouses, he may demand to repay the mortgage loan ahead of schedule.

Either banks provide for such a development of the situation even in the contract - they prescribe the mandatory early repayment of the payment in the event of a divorce or demand that a marriage contract be drawn up, in which all the nuances will be spelled out. It is worth noting that the marriage contract helps out not only in controversial situations with mortgage housing, but also in other, no less difficult situations. The prescribed obligations will help to avoid scandals, waste of time and money, as well as save the nerves of both the spouses themselves and their children.

But there are also couples who, even after a divorce without court decisions, continue to pay the loan in equal or agreed shares. This happens if the spouses separated and remained on friendly terms or their common child lives in a mortgage apartment (if there are minor children).

Divorce mortgage with children

If the divorcing owners of a mortgage apartment have minor children, the court has the right to deviate from the standard rules for dividing loan payments. There may be several scenarios for the development of events:

The parent, on whose support the minor child remains, in most cases receives a large share in the mortgage apartment.

Important: the division of a one-room apartment in a mortgage is not possible if there are minor children.

Only a parent with a child can stay in a mortgage apartment, the second will have to vacate the living space, having received compensation. Divorce with a mortgage and minor children can be much easier if each of the spouses comes to a consensus amicably. This applies not only to determining the place of residence of children, but also to resolving the issue of paying debts to the bank.

Attention! Due to recent changes in legislation, the legal information in this article may be out of date! Our lawyer can advise you free of charge - write a question in the form below:

Divorce statistics in our vast country show deplorable results. The findings of social surveys and the results of court decisions put the Russian Federation in fourth place in the ranking of the whole world.

These figures indicate that the family has become not such a great value. During their life together, the spouses have a lot of jointly acquired property and common children. What happens in a divorce if there is a child? How to behave in this situation and what does judicial practice say? This question is difficult to resolve, since an impressive amount of evidence is needed.

As a rule, the priority of the court is the mother

There are cases when, during the marriage, the family decides to take out a mortgage loan. If the loan is taken after the registration of the relationship in the registry office, then the living space becomes joint property and, upon divorce through the court, is divided on a common basis.

In this case, the Family Code of the Russian Federation comes into force in part of Chapter 4 of the Civil Code of the Russian Federation, in terms of the division of property and the payment of alimony for children, the Constitution of the Russian Federation and international legal acts, in particular the Convention on the Rights of Children.

Taken together, this range of documents determines the procedure for considering divorce cases by judges, where the issue of determining children with one of the parents is decided, and third parties in the form of representatives of a financial organization act as plaintiffs. So, if there are no children, then the mortgage is divided between the divorcing spouses in equal shares, if they themselves have not settled this issue. Mortgage-related actions are possible only upon agreement with the bank, regardless of the type and complexity.

Possible options:

• sale of mortgage housing and full settlement with the bank;
• division of shares and renegotiation of the contract for two persons;
• division of shares and housing by court decision.

Based on the situation when a child appeared during a joint married life, it should be understood that he is an equal party to the dispute. Divorce in the presence of children is possible only through the court. Guardianship and guardianship authorities are involved in the court session in order to control the observance of the rights of the child, as well as to play the role of specialists and advocates. The same advice issues a conclusion on the verification of each of the parents and the advisability of leaving the child with one of them.

As a rule, the priority of the court is the mother. The child is usually left with her, in connection with which the share in housing increases, and the share in paying the mortgage decreases. When determining the payment of alimony, the monthly amount of payments for the person who will pay the alimony is reduced, the loan period is correspondingly increased.

Required documents for divorce

To initiate a divorce proceeding, it is necessary to file a lawsuit at the place of registration and location of the plaintiff. According to Art. 16 of the Family Code, one of the spouses, as well as a guardian, has the right to submit an application, but only if the person is recognized as incapacitated. Filing an application for divorce by one person is allowed if one of the spouses has died.

Within a year after the birth of the child and during the pregnancy of the spouse, the husband is not entitled to file for divorce, as it is foreseen that the spouse and unborn child will be unlawfully harmed. Even if there are common minor children, the marriage can be dissolved in the registry office only in the following cases:

• there is a court order declaring the spouse incompetent;
• the spouse has been convicted of an intentional crime for more than three years;
• a court decision was made to recognize the person as missing.

These are exceptional cases. As for the mortgage, in the event of the above cases, part of the debt, if the contract was concluded for two persons, is assigned to one of the spouses. If these cases have arisen in relation to the borrower, then in the first case - the debt is assigned to the guardian, in the second - to the second spouse, in the third case - the payment is suspended for up to 6 months until the heirs enter into possession and disposal of property. The mortgage, as a part, is assigned to the debtor's successor.

In addition to applying to the judicial authority for divorce, you must submit:

• identity documents;
• copies of the birth certificate of the child or children;
• certificate of the State Unitary Enterprise on F No. 6 on registration at the place of residence of family members;
• an extract from Rosreestr (MFC) on the presence / absence of real estate;
• an extract from the BTI on the presence / absence of other property (garages, etc.)
• bank statement showing the availability of accounts.

Most often, spouses try to hide part of the property, since property not registered on the spouse cannot be included in the division object. In the presence of a mortgage, a child at birth is registered in the share of living space. That is why he appears in the court case as an interested party.

Drawing up a mortgage payment agreement during a divorce is the best way out of this situation. The divorce proceedings are not grounds for suspending monthly payments on the body of the loan, and interest charges continue to accrue, and the debt increases.

Considering that the divorce process does not happen quickly, then if the delay is more than four months, the housing may become the property of the creditor, while the repaid amount is not returned, since the debtor did not fully fulfill the obligation and used the acquired property, which, without fail, is a pledge loan.

When dividing mortgage housing in a bank, an account is opened for the child, where part of the funds from the sold property is transferred, if the apartment, with the consent of the bank, is sold. With the consent of the parties, part of the share is taken by the spouse with whom the child remains. Renting out housing will not work in any way, since the consent of the bank is required. If this fact is nevertheless found out, the bank has the right to demand lost profits.

Some options for dividing mortgage housing with a child

Neither spouse has the right to dispose of the property until the loan is fully repaid

As a rule, the bank does not care from which deductions the contributions for mortgage housing will come. This can be done from maternity capital at the birth of a child.

During a divorce, this fact is taken into account and the spouse must be prepared for the fact that he will not own housing, since he will not be a responsible payer, and his biological contribution to the creation of the child is not taken into account, since it is not a legal fact, except in cases of recognition of paternity.

If the court recognizes the fact that both spouses are co-borrowers in equal shares, but one party proves that after the divorce it will not have the opportunity and means to repay its obligations to the bank, the obligation to pay rests entirely with the other party.

It is worth remembering that even if the housing remains intact, without division, neither spouse has the right to dispose of the property until full repayment. This condition is mandatory and even spelled out in the mortgage lending agreement.
Another tricky way is to shift your responsibilities to another spouse.

This case arises in a court decision if the spouse proves that he does not use housing and is not going to pay his part. Here the bank will be the plaintiff, since often the second spouse refuses to accept this part and renegotiate the contract with the bank. This is possible only by force, but the time will be stretched, and the bank will have no choice but to re-register monthly installments and recalculate the entire mortgage loan. It's easier to get a home.

Some peaceful options for getting out of the situation

Divorce in the presence of children causes stress and psychological trauma to the child. After all, in a trial, the child becomes the epicenter of the struggle, since the right to own and dispose of the seized property is “tied” around him. In this case, parents can reduce the degree of tension and go the following way:

• conclude an amicable agreement on the division of property and the future provision of the child. This option is widely used in the West and in world practice. This is a universal way to protect your property and nerves. It is easier for the court to make a decision if such an agreement is provided;
• submit the contract and the court decision to a banking institution, along with income statements, since the contract is renewed for two persons in accordance with the decision made by the court and the financial capabilities of each of the divorced spouses;

Each contract is paid. Usually the bank takes 2% of the total debt. This payment can be made to the bank's cash desk immediately, or it will be considered as part of the debt of each of the spouses.

Banks try to protect themselves and rarely make a positive decision if a mortgage loan is taken by young families, or spouses who have a bad credit history in another bank, have two or more loans in other financial institutions, and lack a permanent income (more often for individual entrepreneurs). In this case, the bank offers to conclude a prenuptial agreement regarding a mortgage, where all the nuances of a possible division of property are prescribed.

As you can see, divorce in the presence of a mortgage and children in the family is troublesome and somewhat nervous. That is why, before starting the divorce proceedings, it is worth visiting a lawyer and assessing all your options. Before applying for a mortgage, if the marriage is not quite strong, it is advisable to conclude a prenuptial agreement. This will eliminate misunderstandings during the divorce process, facilitate the work of the court and lead to a positive decision for both divorcees.

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Discussion: 2 comments

In the countries of the former USSR, unfortunately, it is not customary to conclude marriage contracts, everyone believes that this is not a necessity, but in vain, I would make a law that would force all young people to conclude a contract.

Answer

And girls

Answer

Often, many couples rush to seal their relationship with marriage as soon as possible. This haste leads to the fact that, having been married for several years, the spouses still get divorced.

And immediately the division of property begins, including the apartment acquired in marriage, but what if the family nest is taken on credit, how will the mortgage be divided after a divorce?

When the question immediately arises: how to divide the apartment? This can be especially difficult to do if the apartment was purchased with a mortgage. Such a loan is issued for a period of 10 to 20 years. Its payment does not depend on the level of family relations and must be made exactly on time. In this case, both spouses are co-borrowers. This situation is not easy. Many do not know what to do in such cases with an imminent divorce.

Often, after a divorce, ex-spouses try to shift credit obligations to the other half. According to the law, the purchase of an apartment is qualified as joint ownership, regardless of the share of participation of each of the parties. Accordingly, the rights to it for both spouses are also equal. Moreover, if the apartment is registered in the name of one of the former spouses, then the second of them has an equal right to ½ part, which can be replaced by material compensation.

Even when both spouses apply to the bank for the purpose of taking a mortgage loan, the bank, insuring itself, puts forward an undeniable requirement, on the basis of which the spouses become co-borrowers. This is done to insure the bank in case the spouses decide to dissolve the marriage. In this case, on the basis of a pre-signed demand, both spouses are equally liable for this loan after the dissolution of the marriage.

In reality, everything does not always work out so simply and smoothly. Not in all cases, both spouses are able to pay after the divorce process at half the amount of the monthly loan rate. An example of such a situation is the presence of a small child in the family, when the mother is still on maternity leave and all the cash benefits she has are spent on the child.

In recent years, spouses have been trying to draw up a marriage contract when entering into marriage, which is subsequently welcomed by banks. This agreement contains clauses relating to debt obligations for possible future loans. It discusses each spouse's down payment shares, addresses housing entitlements and mortgage repayment options in the event of a divorce. In this case, the bank removes a number of paperwork and taking a mortgage noticeably accelerates.

What are the mortgage payments after a divorce? The answer to this question must be sought in the Family and Civil Code. All jointly acquired property is considered to be the property of the spouses. At the same time, it does not matter how much of their hard-earned funds each of them invested. Therefore, a mortgage taken in marriage is considered to be part of the family budget.

It is worth noting that, regardless of which of the spouses was the main borrower of funds and who was the guarantor, everyone has the right to receive either compensation for the paid mortgage or a share in the apartment.

The opinion of lenders about mortgages after a divorce

If the mortgage is taken by official spouses, then bank employees, drawing up a loan agreement, must prescribe which of the spouses is the borrower and which is the co-borrower. In addition, a mandatory item is the registration of real estate acquired in a mortgage in joint ownership.

As a result, it turns out that the mortgage, after the spouses have been divorced, must be paid by both spouses. At the same time, the bank does not delve into family problems, so it does not matter to him what kind of relationship the former spouses are in. The most important thing is that the minimum monthly payment is received on time and in full.

But things don't always go so smoothly. Sometimes it happens that after a divorce, one of the spouses flatly refuses to take part in paying off the mortgage. What should the other side do in this case?

What does the refusal of one spouse to pay the mortgage promise? When one of the spouses refuses to pay a mortgage after a divorce, this, of course, will affect the credit history of both. In turn, this will lead to the fact that in the future, if one of them wants to take out a loan again, they may face a refusal from the bank.

In order for the situation not to escalate to the limit and the matter does not reach litigation, there are several peaceful ways to resolve this conflict.

Ways to peacefully resolve the issue of paying a mortgage loan

1. . This is the most optimal and common option. The contract is drawn up in writing and must be certified by a notary. It can be concluded before or during marriage. Usually, in the marriage contract, the spouses prescribe all situations, including the question of how and by whom the mortgage will be paid after the divorce.
2. An alternative option is the sale of acquired real estate. However, in this case, the spouses will face a number of problems. In addition, such a transaction will be somewhat different from a standard sale. The funds received from the sale of the apartment must be used to pay off the mortgage, and the rest of the funds are divided between the former spouses.
3. Another option is refinancing. A previously drawn up agreement between the spouses and the bank can be modified or you can take a mortgage loan from another bank and pay off the previous one. In this case, you can draw up an agreement on new, more favorable terms. This option also involves close cooperation with the bank and requires permission from the lender.

When changing the contract, both spouses must be present, only in this case any changes can be made. You can change both the composition of borrowers and the size of the monthly payment.

If one of the parties is ready to take over all payments after the divorce, then refinancing can also be carried out. In this case, the other spouse must write a waiver of payment obligations. Then he will not have legal rights to the apartment.

As experience shows, not every bank is ready to go for it. Therefore, it is easier to use the services of another bank in order to cover the previously taken mortgage.

Ultimately, one can come to the conclusion that any dispute, even the most heated one, is best resolved peacefully and not brought to the point where drastic measures are required.

If the mortgage was taken out before marriage

If a mortgage loan was taken before marriage, then when a person has a family, the bank does not have the right to recalculate the amount of the monthly payment. However, after the divorce, the second spouse has the right to claim a share in this apartment, but in this case he will be obliged to pay half of the mortgage.

By the way, as soon as the borrower has entered into marriage, he is obliged to report this to the bank, which in turn must reflect this in the contract, having issued the newly-made spouse as a guarantor.