Mortgage during divorce, or everything equally?

Issues that arise during divorce and division of property cannot be ignored, especially if there are children and the apartment is under mortgage.

Whether the division of a mortgaged apartment will be successful in the event of a divorce depends on a number of factors:

whether there was an official marriage between the spouses;
when the housing was purchased with a mortgage - after marriage or before registration (for example, partners lived in the same living space);
Is there a prenuptial agreement?

In accordance with the legislative norms of the Russian Federation, all property (movable, immovable) purchased by spouses after an official marriage is considered jointly acquired (that is, both husband and wife have equal rights to dispose of it). At the same time, it does not matter which of them received the loan - both bear equal responsibility for timely payment of bank payments.

The Family Code of the Russian Federation does not regulate civil marriage (simply put, cohabitation), therefore the above rules do not work in the case of a woman and a man living together in the same living space.

If, as part of a trial (property division), one of the common-law spouses wants to prove his “involvement” in mortgage payments, he must provide the judge with the following documents:

bank statements from personal accounts;
receipts, checks.

The most reliable way to protect yourself from problems with the division of property in a mortgage after a divorce is to sign a marriage contract and indicate in advance in this document all the subtleties of the upcoming procedure.

How to divide a mortgaged apartment between ex-spouses

After a divorce, a husband and wife can, in accordance with legal norms, divide in half all movable and immovable property acquired by them together during the years of marriage. Moreover, the legislation of the Russian Federation provides for the fact that both spouses have the right to claim a share of the mortgaged real estate that was purchased by one of them before the official registration of the marriage. This is due to the fact that subsequent mortgage payments were made from the family budget.

With an apartment in a building under construction , taken out on a mortgage before/during marriage, the situation is somewhat different. As provided by law, a residential visit acquires the status of ownership only after it is put into operation.

During a divorce, there are several legal ways to get out of a difficult situation:

postpone separation until the debt is repaid, then divide the mortgaged property in appropriate shares;
if the divorce took place before obtaining ownership of the property, then one of the spouses is obliged to pay the other a monetary compensation of the established amount (justification - the mortgage debt was repaid from the family budget).

Who pays the mortgage after divorce?

According to the law, spouses jointly pay the bank. An exception is made if there is a prenuptial agreement with clearly defined criteria for real estate ownership.

Divorced spouses and an apartment with a mortgage? Possible situations:

nothing changes, but if the title borrower for various reasons avoids fulfilling his obligations, the bank demands money from the co-borrower;
ex-spouses share both rooms and obligations. Everyone pays their share. Husband won't pay mortgage after divorce? The bank will foreclose on his share;
one of the co-borrowers waives his obligations and rights to the property. Everything is transferred to the second one.

How is a mortgaged apartment divided during a divorce if there is a child?

If the former spouses have a common minor child, then the partner with whom he remains to live after the divorce, when dividing the mortgaged apartment, will certainly receive a larger share of the housing.

So, if a child is registered in an apartment that is under a bank lien and it is subject to sale to pay off the debt, he should be discharged immediately. This measure will help avoid problems with trustee bodies in the future.

The size of each spouse’s share of the mortgaged living space after a divorce depends on a number of factors:

having a common child (or several children);
when exactly the mortgaged property was purchased (before the official marriage or after the procedure);
How actively did the husband/wife participate in monthly loan payments.

How to divide an apartment with a military mortgage during a divorce

To solve the problem of providing military personnel with housing, the state introduced military certificates. A lieutenant, captain or major, having served 20 years, can count on receiving an amount of 2,268,456 rubles. Money is not issued in cash. The purpose of financing is the purchase of residential real estate.

Differences between a military mortgage and the standard version:

The loan agreement is tripartite. It is signed by the borrower, a representative of the bank and Rosvoenipoteka;
sale of an apartment, exchange, allocation of shares is impossible until the deposit is removed. Divorce? The wife has no rights to the property. We'll talk about a small exception below;
the spouse does not become a co-borrower and is in no way responsible for her husband’s debts;
The borrower cannot under any circumstances transfer the debt to another person.

There is no clear answer to the question of what to do when an apartment is mortgaged during a divorce, if the Ministry of Defense is the mortgagee. Neither the court nor an appeal to the conscience of the owner of square meters will help.

The only way for the other half to get part of the living space is to prove that their money was invested in the purchase. This may be a down payment from savings or an inheritance received. The likelihood of division also increases in a situation where the cost of living space significantly exceeds the amount allocated by the Ministry of Defense.

The only exception is the return of personal money paid for square meters in the event of a divorce with a mortgage. Did the wife have pre-marital savings? She has the right to get them back. The main thing is the presence of evidence.

Is a military mortgage divided in a divorce? Yes, you will first have to pay the bank in full and make sure that the housing costs at least 2,300,000 rubles.

Spouse co-borrowers

The division of property by spouses-co-borrowers acquired with a mortgage loan, in this case, is as follows:

one of the partners can renounce his share in favor of the second (that is, the husband or wife alone receives both the housing and the debt obligations to pay for it);
joint (equal or shared) mortgage payments;
sale of a mortgaged apartment after a divorce, followed by an equal division of the funds received.

What to do if there is no payment after divorce

Sometimes taking a joint mortgage during a divorce can cause a lot of trouble. If, after a divorce, the husband or wife refuses to fulfill their debt obligations to the bank, the agreement is registered in the name of the solvent person. The violator is relieved of all responsibilities, but at the same time he is deprived of his share.

If one of the spouses refuses to pay the loan for 3 months, but is also in no hurry to give up his part, the legislation offers two ways to resolve the conflict:

the debt is repaid by one of the parties;
The apartment is put up for sale by the lender, with the proceeds going to pay the mortgage. Often, real estate is sold at a low market value, which makes the payment procedure significantly faster.

Possible difficulties

What to do if the co-borrower is in no hurry to give up his share in the mortgage, but does not make payments on the loan for three or more months:

the second co-borrower must “accept” the financial obligations of the first. When one of the former spouses is disabled, the ex-wife is registered with a doctor due to pregnancy, or has taken maternity leave, the amount of the mandatory monthly mortgage payment will be significantly reduced;
ex-spouses can offer the creditor bank to sell the mortgaged housing, and use the funds received to pay off the debt. Of course, the benefits of using this method are very doubtful, because the financial institution will put the apartment up for sale at a reduced price. The main advantage is that the payment problem will be quickly resolved.

The main difficulties that arise when dividing an apartment

When dividing an apartment with a mortgage, several problems may arise:

One of the spouses refuses to repay the loan. In this case, the second owner will have to close the mortgage alone.
The financial institution did not allow the spouses to sell the apartment. In this case, the ex-husband and wife will have to jointly close the mortgage after the divorce.
Both spouses refuse to repay the loan. In this case, the financial institution can take away the apartment taken by the borrowers as a mortgage.

Down payment and donation in the matter of dividing the mortgage upon divorce of spouses with children

If the spouses decide to divorce, then they need to familiarize themselves with the following points:

The down payment on the mortgage can be divided between the spouses. However, this is possible if the loan was repaid by both the husband and wife.
If there is a need to recover the down payment from a spouse, this can only be done by filing a lawsuit in court.
If one of the parents wants to issue a deed of gift for a child, this can only be done after the mortgage is closed. This is due to the fact that the minor will not be able to repay the loan.

How is a mortgage issued using maternity capital divided?

If maternity capital was used to pay off the mortgage, then the child has rights to real estate. The spouses themselves determine the share of property that will belong to the minor. For this purpose, an agreement is concluded between the parents.

The portions that husband and wife assign to their children may not be complete. According to current legislation, a minor may be allocated a share that is proportional to the amount of maternity capital allocated to repay the mortgage.

When the mortgage is closed, part of the real estate is transferred to the child. This can be done in one of the following ways:

Draw up a gift agreement.
Draw up an agreement on determining shares.

The mortgage was issued before marriage to one of the spouses

If the mortgage was issued by one of the spouses before marriage, then the real estate pledged is not jointly acquired property. If a couple wants to divorce, then the apartment cannot be divided.

However, it is important to take into account one point: if after marriage the spouses lived in an apartment with a mortgage and also repaid the loan jointly, then such real estate is considered jointly acquired property.

Ex-spouse's refusal to pay debts

You can refuse to repay the loan using one of the following methods:

The spouse draws up the refusal in writing and then has it certified by a notary.
The spouse goes to court and files a claim.

If the marriage contract concluded between the parties states that one of the spouses will not claim the apartment in the event of a divorce, then refusal to pay debts is implemented in this way.

Military mortgage program

If the participant in the military mortgage and the owner of the property is a military personnel. At the same time, whether he is officially married and whether he has minor children does not matter. Divorce will not affect loan payments in any way - the borrower undertakes to single-handedly contribute all loan funds towards the mortgage housing, regardless of marital status.

Dividing a mortgaged apartment if there is a child is not an easy task, a peaceful solution to which is not available to all ex-spouses. To prevent excessive financial costs for the services of lawyers, as well as to protect yourself from nervous and emotional shocks, it is better to take care in advance of “simplifying” this procedure - to conclude a marriage contract and spell out in detail all the nuances of the section.

Division of mortgage if there are minor children in the family

An important issue among citizens is how the mortgage is divided in the event of a divorce with children, since they are under the protection of the state. If there is a child, then in the process his place of residence is determined with the mother, so she is often allocated a large part of the real estate with the expectation of a minor citizen. Responsibility for fulfilling loan obligations to the financial organization is distributed in equal shares between the former spouses.

If the mother provides documentary evidence of her disability, then her payment may be significantly reduced, in this case, compelling reasons and approval from the credit company are required.

How to divide a mortgage in case of divorce and having children - options for repaying a mortgage loan

The first option , which allows spouses to resolve the issue of dividing a mortgage loan without going to court, we indicated above ( with a settlement agreement ).

If the spouses cannot use this method, then the problem will have to be resolved through the courts.

The second option for dividing a mortgage in the event of a divorce and the presence of children is to go to court.

The procedure for dividing a mortgage in case of divorce and the presence of children through the court is as follows:

The husband or wife draws up a statement of claim for the division of jointly acquired property. There is no need to make demands for the division of the mortgage loan. The judge will consider the case only within the scope of the stated claim and will divide the common property, in particular the mortgaged housing, equally between the spouses.
The plaintiff must wait until the decision of the judicial authorities comes into force.
Then, with the court decision, he is sent to the State Cadastre Service or Rosreestr to draw up new documents for housing.
Also, with the court decision, the spouses must contact a banking or credit organization and write an application requesting changes to the mortgage agreement. Since the property has already been divided and registered, there should be no problems with changes to the contract.

So, it turns out that when resolving the issue through the court, it is better to divide the acquired property. But, if you decide to reimburse part of the expenses incurred for paying the mortgage, then you should prepare an evidence base and a corresponding statement of claim.

There are other ways to divide a mortgage if you have children.

Let's list them:

The third option is refusal to pay the debt. One of the spouses must refuse to pay the mortgage debt. After the entire debt is repaid, the mortgage housing will be issued to the spouse who paid the debt. And the one who refused will remain without rights to this housing.
The fourth option is the sale of the apartment by a banking organization. In this case, borrowers may not repay the mortgage debt. The debt will grow and the bank will put forward its demands for the sale of property. After the sale of the property, the loan will be repaid, and the remaining funds will be paid by the lenders to the borrowers. But, as practice has shown, the proceeds from the sale almost always cover the remaining debt, accrued interest and penalties, so the spouses are left with nothing.
The fifth option is the independent sale of mortgage housing. Spouses can sell the home themselves and use the proceeds to pay off the mortgage debt. If some portion of the sale remains, they can divide it among themselves. Thus, the encumbrance on the housing will be removed, the contract will be automatically terminated, and there will be no obligations of the spouses to each other. Except for the obligations of parents to their children.
The sixth option is renting out housing. Of course, this is not a division of housing, but if there is no way to sell it or pay off the mortgage debt, then it is better to rent out the housing. This way, ex-spouses will be able to pay off their mortgage debt with funds coming from their employers.

Let us remind you that in any case the rights of children should not be infringed. New housing should not be worse than the current one, the same goes for living conditions.

In addition, for any manipulations with real estate in which children are registered, it is necessary to obtain the consent of the guardianship and trusteeship authorities.