Recommendations for dividing a mortgage during a divorce. How a mortgaged apartment is divided during a divorce

So, the family boat has crashed into everyday life, and divorce seems to be the only way to untangle the tangle of problematic relationships. But not everything is as simple as it seems - the drama of the moment is aggravated by a mortgage. The couple would be happy to take a break from each other, but the mortgage loan tied them together more tightly than the wedding ceremony. And the most unpleasant thing is that the issue is unlikely to be resolved amicably. After all, a mortgage is a “love” triangle, where the third party is bank– an organization devoid of emotions and focused solely on practicality.

In such a situation, the spouses still immediately have many questions. How is a mortgage divided in a divorce? Moreover, every special case has a lot of features. And it is worth noting that on this moment in Russian judicial practice there are no precedents that judges can rely on when making decisions in similar situations. Even similar cases can have completely different verdicts among different servants of Themis.

When considering divorce cases, when necessary mortgage section in divorce, very often the interests of either one of the spouses or the creditor bank are infringed. Finding a middle ground in such disputes is extremely difficult. As a result, when bank decides to take away the collateral housing for which the loan has stopped being repaid, it turns out that based on a court decision it no longer belongs to the borrower. On the other hand, one can understand the borrower - he was deprived of his apartment, but he has a debt that needs to be paid for another twenty years.

That is why at the end of March, individual State Duma deputies initiated amendments to the Family Code. The essence of the proposed changes to legislation is to bank, who issued the mortgage loan, was always involved as a third party in the divorce proceedings.

But it is worth noting that while deputies are considering proposals, arguing and adopting amendments (and this is a rather lengthy process, unless banks act as a lobby), the country continues to make decisions on the basis of current legislation. In divorces where a mortgage is involved, judges and lawyers operate with several basic documents: the Civil and Family Codes, the Law on Mortgages and, in fact, the mortgage agreement itself, which is protected by law.

Let's find out how a mortgage is divided during a divorce in practice.

We divide everything in half!

The “fifty-fifty” principle is laid down in the Family Code. And the Federal Law “On Mortgages” confirms that housing acquired during marriage through mortgage lending is considered jointly acquired property. It does not matter which spouse the loan was issued to.

Theoretically, that is, by law, the mortgage is divided in half during a divorce. But the property is pledged to the bank, and no legal actions can be taken with the housing. If the division occurred without the participation of the bank (a case, admittedly, not frequent, but still encountered), then the spouses can agree and continue to repay the loan (for another couple of decades). Such an agreement, you see, looks ephemeral. Therefore, you can contact directly bank requesting consent to sell the apartment.

The bank's actions are quite difficult to predict. The institution can go two ways - agree to the sale or demand early repayment mortgages, citing that the divorce violates the terms of the loan agreement.

Therefore, during the trial, it is better to inform bank, since all problematic issues can be resolved in court. Moreover, the judge may force bank perform operations with collateral that suit you. For example, sell an apartment, or re-register a mortgage agreement for one person.

How to sell a mortgage

Often bank ready to go for sale mortgage apartment. The logic here is simple - we’d rather lose on interest, but we’re guaranteed to repay the principal. Then the spouses will need to find a buyer who will first compensate the bank for the amount of your debt on the loan, and then wait until all the procedures for removing the encumbrance on the property and the sellers taking ownership have been completed.

Naturally, this is an extra headache for the buyer. Firstly, the risks increase, and secondly, time drags on. There is only one way out - to interest the buyer by reducing the price of the apartment itself.

Finding such buyers on your own is not an easy task, so it is recommended to contact a real estate agency that specializes in such transactions. The monetary difference remaining after the sale of the apartment and repayment of the loan is received by the spouses and can be divided in half (well, or as they agree among themselves).

Selling an apartment can also be done by bank, putting the property up for auction, but as practice shows, this option is not the best. Here the price always turns out to be significantly lower than the market price. In addition, the proceeds will have to cover the costs of organizing the auction.

When bank I don't mind

Today, banking institutions have already acquired solid experience in mortgage disputes, which also applies to mortgages during divorce. Therefore, when applying for a mortgage loan, they try to make spouses co-borrowers. Often it is beneficial for ourselves married couples– this way you can count on a higher loan amount.

Only now in the mortgage agreement you can see the clause: “If the marriage between the co-borrowers is dissolved, the terms of this agreement do not change.” The bank offers this option as additional insurance: if divorce proceedings arise and one of the spouses refuses to pay, then the financial responsibility will fall entirely on the other. And there, who is right and who is wrong, let the husband and wife decide at least family council, at least in judicial procedure. Bank employees won't care.

Special case

To clarify the picture, let's look at a specific example. The family took out a mortgage for a one-room apartment. The loan amount turned out to be relatively small, so only the husband was the borrower. A couple of years later the question of divorce arose. How is a mortgage divided in a divorce? in this case?

In accordance with Russian legislation, this “one-room apartment” is jointly acquired property. This means that housing should be divided in half between spouses. But the position of the creditor bank is also important here.

In practice, it is not possible to divide a one-room apartment - each spouse has the right to count only on a share of the living space. But a share of property, according to the Federal Law “On Mortgage,” cannot act as collateral. And if bank does not agree to renew the mortgage agreement, then all responsibility for repaying the loan falls on the husband, as the only borrower (it does not matter whether he lives there or not). But, at the same time, the husband has the legal right to demand compensation from his wife for mortgage payments in the amount of the share received for the apartment.

Bank– “a credit institution that has the exclusive right to carry out in aggregate the following Bank operations: attracting deposits Money physical and legal entities, placement of these funds on one’s own behalf and at one’s own expense on the terms of repayment, payment, urgency, opening and maintaining bank accounts of individuals and legal entities” (excerpt from Federal Law No. 395-1 “On Banks and Banking Activities”). For a mortgage holder, it is important who will provide him with a loan and under what conditions ((we often met operators on the market who, not being banks, issued mortgage loans). Therefore, it is not so important where to get a loan, what is important is the conditions on which it is issued (for example, what are the requirements for real estate) and what are the down payment and the final overpayment? At the same time, you should be wary of various types of consumer cooperatives and mutual aid funds (practice shows that even the most enslaving mortgage is several times better (cheaper) than these forms of lending, so it is strongly recommended not to do so. We recommend contacting any cooperative companies).

However, this is not the case, especially if the spouses have property obligations to each other and minor children. It’s good if the property is property - personal or joint spouses, but what to do if the property is under mortgage? How to divide it, who will pay the debt, and do common children have the right to claim it? To answer all these questions, it is necessary not only to refer to the legislation of the Russian Federation, but also to take into account a number of additional conditions - when was the apartment purchased and how was it paid for? Therefore, we are required to bring everything important points procedure for dividing collateral property.

It doesn’t matter when the mortgage was taken out - before or after marriage registration, the bank must be aware of the change in the borrower’s status, since divorce may change property rights and obligations under the mortgage agreement. As a result, the credit institution draws up an additional agreement to the main agreement. Both spouses sign it. This option is possible with a peaceful settlement of the issue of dividing the mortgaged apartment. If the spouses cannot voluntarily divide the property, then the conflict will be resolved by the court in the presence of a third party - the bank.

Apartment division rules

Property acquired during marriage is considered joint property, regardless of who earned it and how much. This rule is regulated by the Family Code, Article 39, paragraph 1, and speaks of equal division between spouses. However, given a number of different family circumstances, the partition may not always be equal. Let's consider each case separately.

Mortgage taken out before marriage

According to the Family Code, property acquired before marriage is classified as personal property (Article 38 of the RF IC). This rule does not exclude credit property. However, very often in practice it happens when the borrower took out a mortgage on the property, paid it off for a certain period of time, and then got married and lives in this apartment together with new family. If the apartment continues to be paid jointly after entering into family relationships, then the second spouse, who is not registered in the contract as the owner, has every right to also claim a share of the real estate, since the family budget is jointly acquired property which, after a divorce, is necessarily divided equally between the spouses. This rule will be observed even if one of the spouses did not work, for example, took care of the house and raised children.

As judicial practice shows, usually the second spouse can claim a smaller share of the apartment, which is equal to his legal half in the total amount of repaid loan funds from the family budget. The situation is more complicated the situation is at . Until the housing is put into operation, it cannot be divided.

Thus, if the apartment was purchased before marriage, the following outcome of the division is possible:

The apartment is not divided if it was purchased before marriage and paid for.
The apartment will be divided if part of the loan was paid during marriage from the common family budget. But it will be divided according to the proportion of the invested funds, since the owner paid off part of it on his own before marriage.
The apartment will remain to the borrower, and the second, according to the paid funds for which the second spouse is claiming, may be paid compensation or transferred other property equivalent to his monetary participation.
If the second spouse participated in the payment of the mortgage, then the apartment can be sold or the funds received can be divided equal to their investment.

Here it is very important to provide evidence in court that family money was spent to repay the loan - check, receipts, bank statements, etc.

Division of mortgage in a civil marriage

There is no such thing as a civil marriage provided for by the Family Code, and the residence of two people in the same living space does not equate to an official relationship. And, therefore, the law does not apply to them. Therefore, everything that they acquire together during their time together will not be divided equally according to the law. Resolve the issue of division if each spouse civil marriage bought any type of property, it is possible only by agreement, peacefully. If disputes arise on this basis, then the apartment will be the sole owner, that is, of the person in whose name the mortgage is issued. The only exception would be if you manage to prove that you spent your money to repay someone else’s loan. And then, based on the evidence, you can file a lawsuit to force the owner of the apartment to either return the invested funds or allocate a part of the apartment commensurate with the investment.

If there is a marriage contract

The only case when the norms of the Family Code. The marriage contract is signed voluntarily, after everyone has agreed important points family life and including future division after divorce. It is necessary to specify in it all the conditions for the division of property, the procedure for property rights, shares, as well as the possible equity participation of children. You can draw up an agreement both before and after marriage registration. Its presence will significantly simplify the divorce process, and also eliminate possible conflicts during division. Today, unfortunately, married couples rarely resort to this method. legal regulation family issues, only 5%.

If there is a prenuptial agreement, a copy of it must be filed with the bank’s general mortgage file.

Mortgage taken out during marriage

Let us return once again to Article 39 of the RF IC, which clearly states the rule for dividing jointly acquired property between spouses after a divorce in equal shares, and a mortgaged apartment is no exception. If the spouses decide to take out a mortgage after registering the relationship, then regardless of who the loan agreement is drawn up, the second spouse acts as a co-borrower, that is, if there is debt, the responsibility for payments falls on his shoulders. That is why he lays claim to this type of real estate in equal shares.

The division can be made after full repayment of the debt or the apartment can be sold with the consent of the bank and the proceeds divided in half. If, after a divorce, one of the spouses is no longer able to pay the balance of the mortgage, then he can refuse the apartment in favor of the second (Article 252 of the Civil Code of the Russian Federation), or after full payment he will automatically claim a smaller share. This issue is quite complex and controversial, so it is most often resolved through the courts.

How to divide an apartment if you have children

This question is raised quite often, but according to the law, Article 39 of the RF IC, jointly acquired property applies only to spouses, children do not take part here. They can apply for an apartment only as a result of the death of their father or mother. That is, the children themselves do not receive any share in the property, but can mitigate the circumstances during division if they remain living with one of the parents. For example, by a court decision, mothers with children may be awarded a large share of real estate (Article 39, paragraph 2 of the RF IC), especially if:

the child or mother is temporarily or permanently declared incompetent or incapable of work;
they do not have their own living space to live after the divorce;
the husband caused significant damage to the family budget without good reason.

That is, bailiffs may deviate from the generally accepted framework of the law for the purpose of... This situation is not an isolated case. The main thing is to prove the need for these actions. But this rule by law does not apply to the repayment of credit debt. In order to receive their share of the property, both spouses must pay off the balance of the debt equally, unless the father himself takes the initiative to take on a larger share, taking into account financial situation mother with child. Then this rule must be documented so that disputes do not arise after the mortgage is paid in full.

Children may also own part of the property if the parents themselves have expressed a desire to include them in the contract. However, you can dispose of your share only after your 14th birthday. If a child has a share of the mortgaged property and remains to live with one of the parents after a divorce, then their shares are summed up.

Credit debt section

As you understand, the division of a mortgaged apartment can occur in completely different ways, it all depends on the specific situation, the conditions of purchase and the invested funds. As for the balance of the loan debt, it is correct here if the debt is divided between the spouses, starting from the property share of each, that is, proportionally (Article 39 part 3 of the RF IC). If the situation is standard, then, just like jointly acquired property, debts should be divided equally. This issue is subject to dispute up to 3 years after the divorce, so you have enough time to fairly divide the credit debt and receive the due share of the apartment.

Spouses have the right not only to jointly manage the common family budget, regardless of who earned more, but also must jointly be responsible for existing debt obligations (Article 45 Part 2 of the RF IC).

One of the spouses refuses to pay their share

No less rare is a situation where one of the spouses, after a divorce, cannot or does not see the point in continuing to repay the loan, thereby allegedly relieving themselves of this responsibility. Although, according to the Family Code, he must do this and has no right to make a decision on his own. Otherwise, if the entire burden of the debt falls on the shoulders of one spouse, then property rights may automatically transfer to the correct payer. If the refusalr has nothing against it, then it is better to immediately write a refusal and re-issue the loan agreement for one spouse. This action occurs only with the consent of the bank.

Another situation is when one of the spouses refuses to pay the loan, regardless of the reasons, but does not renounce his share, which legally belongs to him. Not everyone who makes such a decision thinks about the consequences. When a large amount of debt accumulates (sometimes just 4-5 months of non-payment is enough), the bank not only adds up the debt, but also charges a penalty on it, and this is not always a small percentage, as a result of which the total debt on the loan only increases.

If a huge amount of debt accumulates, the bank is exposed to great risks of non-repayment, as a result of which it may put the property up for sale (after several warnings to the client). The apartment is usually put up for auction, where its price is set below the market price. That is, in fact, the bank sells the property at a reduced price in order to compensate for the balance of the loan, and gives the difference to you. As you understand, this difference may be much less than what you paid for the entire loan period. Therefore, you will lose on two positions at once - you will not receive an apartment, and the monetary difference will be significantly less. But if this is the only option for resolving a difficult situation, then the money received after the sale of the mortgaged apartment will be divided, either in half, or by agreement between the spouses, depending on the contribution of each when repaying the loan.

Military mortgage

Article 36 of the Family Code directly answers this question– targeted state funds, including labor income, do not belong to jointly acquired property, and therefore are not subject to division. The military program, which is aimed at providing housing for military personnel, belongs to this number. is that the state allocates 2.4 million rubles for the purchase of an apartment by drawing up a mortgage agreement, and while the serviceman is working in the Ministry of Defense, he pays for him from insurance contributions and loan payments. That is, if a serviceman complies with the terms of the contract and serves the state all this time, then he gets the apartment free of charge. This means that this apartment cannot be divided or re-registered to another family member, since gratuitous transactions are the personal property of one of the spouses. Members of the first family can claim it only after the death of the owner.

But, as always, it is necessary to mention rare cases that relate to non-standard situations. Since under the NIS program the state takes on only 2.4 million rubles, and in regional cities this amount is not always enough to buy a good apartment, the spouses could contribute additional funds from their family budget. It is not difficult to prove the fact of an increased loan amount. Therefore, the difference will be divided between the spouses when dividing property in half. The difference can be paid from the owner’s personal funds or after full repayment of the loan and sale of the apartment. It is also possible to replace the monetary difference between the funds under the NIS program and the actual cost of the apartment with other property, so as not to sell it after full repayment.

Since the apartment is military program is the sole property, the owner must repay the loan debt independently.

Mortgage with maternity capital

Article 10 of Federal Law No. 256, paragraph 4 states that. It doesn’t matter what part of the loan public funds were used for - to deposit down payment or to reduce the total debt, as a result, the paid apartment is divided equally among everyone, for example, if there are 4 people in a family - 2 parents and 2 children, then each gets ¼ of the part. It will not be possible to sell real estate and divide the funds received equally, since maternal capital cannot be expressed in monetary form; this is strictly monitored by the guardianship authorities and the pension fund, which are responsible for their intended use. If, after a divorce, it is no longer possible to pay the loan, then the bank, together with the guardianship authorities, can agree to the sale, but subject to the following conditions:

that the children’s living conditions will not worsen;
their equal shares will be assigned to other real estate;
smaller housing will be purchased, but without the participation of additional borrowed funds, but at the same time maintaining the allocated square footage for each child;

If only the parents’ share is sold or exchanged for a smaller apartment, retaining only the children’s shares in order to close the mortgage, then permission from the guardianship authorities will not be needed.

That is, the situation is quite complex and must be resolved jointly not only by the two spouses, but also with the participation of the banking organization, as well as the guardianship authorities. It’s good if you use the help of a lawyer experienced in these matters, who will suggest a more competent way out of this situation. Remember that if you decide to get around this situation in a cunning, deceptive way, then the court may declare this deal invalid, which is why you will have neither money nor an apartment.

Sell the apartment, pay off the debt, split the rest of the money

We have already considered several options for selling an apartment, based on the method of purchasing an apartment. This solution to the issue sometimes remains the only correct one, since dividing the shares is very difficult, it is impossible to continue living together, and paying off the loan balance for several more years is not always advisable, especially when there is no actual housing. Therefore, it is better to lose a little on the cost of the apartment, but get the money that was previously paid for it. To implement such a decision, you must first obtain consent from the bank. If you find a buyer yourself, you may not lose anything in value by selling for the same price or even higher (which happens infrequently, since not everyone wants to deal with the re-registration of mortgage rights). If a credit institution is involved in the sale, then the price of the property is almost always lower than the market price, since it will be put up for auction.

As you understand, the issue of dividing a mortgaged apartment after a divorce remains one of the most difficult, since each case has its own subtleties. If you do not want to lose your legal share of the property, then treat this problem responsibly. Check out similar cases judicial practice, consult with a lawyer and weigh the pros and cons, and only then make a decision.

The first thing you need to know and remember is that in this case there are three parties to the divorce: you, your spouse and the bank. Yes exactly. And the first thing you should do to avoid further problems with the bank is to notify it in writing about the current situation.

It’s worth immediately emphasizing that the main characters are, after all, the divorcing spouses, and it’s up to them to decide what to do and how to act. The bank may try to impose its own conditions, and even demand full repayment of the loan. According to the contract, he may have the right to do so. But since the decision rests with you, consideration of this issue in court will most likely lead to the fact that the scale of justice will tilt in your favor, and the court will oblige the bank to agree to terms that suit the divorcing spouses. For example, give permission to sell, or re-issue a loan.

The main thing is that the family, united against the backdrop of an external enemy, does not make the bank its enemy. Still, the bank is not to blame for the collapse of the social unit, and the only thing it wants is its money back. It’s a completely natural desire, isn’t it?

What to do with a mortgage during divorce

The only answer to this question is to pay. And here How- there are options here.
If you decide to keep the living space for yourself, then the only way to do this is settlement agreement about who will get the property and in what form. If it is not possible to reach an amicable agreement, the court will take the decision upon itself.

It would be wiser to get rid of real estate and debts radically. That is, sell the home, pay off the loan to the bank, and divide the remainder, if any, between the spouses. In this case, both the bank is happy and the spouses disagree. different sides With minimum quantity claims and obligations. Start off new life, bearing the mortgage burden of a property that does not belong to you (and this is exactly what will happen with one of the spouses) is difficult.
The process of selling a mortgaged home is not easy, but it is possible.

The bank gives the go-ahead for the sale.
New owner deposits the amount remaining under the agreement into the bank.
The bank removes the encumbrance.
The owner pays the remaining amount to the spouses.
The spouses divide the remainder.

It is difficult for an ignorant person to carry out this procedure flawlessly on his own, so real estate professionals are usually involved in the sale. And most often provided by the bank.

Or the bank completely takes over the sale procedure, putting the apartment up for auction. This significantly reduces the cost of housing for mortgage holders. And the auction procedure itself will need to be paid separately.

If the mortgage is issued to one of the spouses

According to the Family Code of the Russian Federation, any property acquired during marriage is divided fifty-fifty, as joint property, including mortgage property. And it doesn’t matter which spouse got the mortgage.
Sooner or later, with or without the help of the court, the spouses may come to a decision to repay the loan jointly. However, it is still worth formalizing such a decision. You never know how life will turn out.
If a mortgage agreement is drawn up for one of the spouses, the bank may not agree to re-issue the loan to another family member and will oblige him to pay the entire amount, according to the agreement, before receiving the property. The court will still divide the property in half, and the person for whom the loan is issued can demand compensation.

IN Lately banks have become smarter. Increasingly, in order to obtain a larger loan amount, both spouses become co-borrowers. And the agreement with the bank stipulates the conditions that in the event of a divorce, if one of the spouses refuses to pay the loan, the remaining co-borrower is fully obliged to pay the entire amount specified in the agreement. How's it going there? ex-spouses agree among themselves, be it a settlement agreement or trial, the bank doesn't care.

How to divide a mortgaged apartment

The ideal situation is when the spouses, during or before marriage, or when taking out a mortgage for an apartment, agreed on its division in the event of a divorce. To do this, an agreement is concluded in writing, taking into account all the nuances of the section. It can be certified by a notary. But this is done rather for one’s own peace of mind. Although the same legal force They also have uncertified agreements.
The remaining cases are special. They will be considered in court. Including the share of common children. They do not participate in the division of property, but their presence is considered as a reason for increasing the share. And only through the court. Or, as already mentioned, with the help of a settlement agreement.

If the apartment cannot be divided in kind, for example, it is one-room, then the division occurs in shares. A share in an apartment cannot be the subject of collateral for a bank, so we return to the previous sections.
Is it possible to exchange a mortgage on an apartment?

Miracles happen. And only if the bank agrees. The possibility of such an outcome is actively approaching zero. It is easier to act through the sale of an apartment. But it also requires permission from the bank.

How is a mortgage divided in a divorce?

As already mentioned, in half, unless otherwise agreed. With the permission of the bank, you can reissue the mortgage to one of the spouses. But only with the consent of the bank, which will assess the solvency of the new borrower. Even the spouse for whom the mortgage was issued will be recognized as new. After all, the previous loan was issued under different financial conditions, where the second spouse acted as the guarantor.
If the bank does not consider it creditworthy, then re-registration is impossible. Unless by court decision. And this is delaying the process, because the bank will most likely object.

So, let's summarize. The following general options for dividing a mortgage are possible:

settlement agreement and re-registration of the mortgage for one of the spouses with the permission of the bank;
settlement agreement and continuation of shared payments by the former spouses before taking ownership, further division of property provided for in the settlement agreement;
sale of an apartment with the consent of the bank, repayment of the mortgage loan, amicable division of the balance of funds, if any.

And yet the most The best way to solve such a complex issue - to find the strength to save the family. Whatever one may say, love and family are the most important things in the life of any person.

Our readers ask how the mortgage will be divided when spouses with children divorce. The divorce procedure itself is not a reason to change the terms of a home loan. The spouses will then be jointly and severally liable for the mortgage.

What does the law say?

The Family Code of the Russian Federation specifies the following rights of spouses who have children, a mortgaged apartment and are getting divorced:

Common property of spouses is any property that was acquired during marriage (it does not matter to whom it is registered).
Previously, payments were made from the common property of the husband and wife
Since the spouses are jointly and severally liable, the bank will force them to jointly repay the loan after the divorce.
is divided into two equal halves. But if there are children in the family, then the parent with whom they will live receives most of the housing.

Both spouses are responsible for the mortgage, regardless of who entered into the agreement with the bank. Some banks may require early repayment of the loan upon learning of an impending divorce. You can read more about how to properly repay a mortgage loan on a house or apartment in this article.

Important: in each such case there are many nuances that will definitely be taken into account banking organization. If you and your ex-spouse cannot come to an agreement that would suit both parties, then you can always go to court. In this case, you need to be guided by the Family Code, the Civil Code, the federal law “On Mortgage”, and, of course, your agreement.

But even here it is worth remembering that there is no single scenario for the development of events; absolutely unique decisions will be made in each case; there are simply no precedents for reference. Unfortunately, it can be very difficult to come to an agreement, because... the opinions of several parties must be taken into account.

How can real estate and debt be divided?

It is worth noting that such a division does not always occur according to a standard scenario; each case is individual. Everyone has different circumstances and incomes.

The following options are possible:

If you have the bank's consent, you can make changes to the mortgage agreement and divide the responsibility for repaying the debt into certain parts.
If there is a marriage contract or through the court, the apartment can be divided by consent.
The apartment is divided in half by the court, otherwise it is possible if one of the spouses can prove that only he took part in it.
The transaction can be re-issued for only one person, but only if the bank is convinced of his solvency, good credit history, and reliability as a payer. It is important for a future borrower to know how to maintain a positive credit history, no matter what, this review will tell you in detail about this.
If one of the spouses refuses to contribute money to repay the loan, then after the divorce the debt is completely transferred to the shoulders of the second co-borrower. If he does not agree, the apartment will be put up for sale by the bank.
The spouse, who covers the entire debt to the creditor, can legally demand monetary compensation from the other, in accordance with the amount paid.
If mortgage payments are not received for 3 months or more, the home will be put up for auction, and borrowers will receive the remaining funds after the sale and repayment of the debt. If a child is registered in the apartment, he must be discharged. The court may grant a deferment to find new housing. If, by a court decision, the child is not discharged on time, the guardianship authorities may raise the issue of deprivation parental rights on the basis that the parents cannot provide normal conditions for children's accommodation.
The mortgaged apartment can be sold ex-husbands and his wife to pay off the debt. The remainder is divided between the spouses. Read about how to sell a home with a mortgage.

Important points

Before deciding to take any action, carefully read your loan agreement, if possible, contact a bank branch for advice on your issue. Very often, the agreement stipulates that spouses become co-borrowers, which is beneficial for everyone - the total income increases, for the bank this is additional insurance, etc.

What happens in practice? Often there is another postscript, which states that during a divorce, the terms of the contract do not change. This means that if one of the parties refuses to continue making payments, then all obligations will completely transfer to the second co-borrower. And it will be very difficult to challenge this.

In fact, you will only have 3 options for the development of events: continue to pay together, find the missing amount of debt for early repayment, or sell the mortgaged apartment to the bank. In many cases, it is the third option that is used to satisfy the interests of both the creditor and debtors.

Divorce in itself is an unpleasant procedure, and if there is a mortgage during a divorce, the situation becomes more complicated. The peculiarity of such a divorce process is that there are three participants, i.e. husband, wife and bank. The reader will learn about what to do in the event of a divorce with a loan encumbrance from this article.

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The Russian Investigative Committee regulates legal relations in the family. Specifically, Article No. 33 contains norms and rules, the main of which is the division of property acquired in the union, i.e. the property acquired by spouses during marriage. Thus, when applying for a mortgage loan, after a divorce it is also subject to division, incl. and debt obligations.

By the way, the Federal Law “On Mortgage”, adopted in 1998, does not provide for any restrictions on the division of living space, registered according to this species lending. But Article No. 7 of the same law contains information that joint mortgage real estate can only qualify if there is a documented consent of the parties. Please note that an oral agreement is not enough - a written medium is needed.

Based on these acts, it turns out that a divorce in the presence of a mortgage will occur in accordance with the IC of Russia (Article No. 39, paragraph 1), which states that upon dissolution of a marriage, property acquired during the marriage is subject to the establishment of shares for each of the parties, and they must be equivalent. Of course, every law contains exceptional cases, which will be discussed in the following sections.

And if everything is more or less clear with the property itself, then what about the mortgage during a divorce? With debt obligations, not everything is so transparent and most often the court’s actions are based on Article No. 39, paragraph 3, which regulates spouses who have a loan to distribute the debt in the same proportions that took place when dividing the rest of the property. Simply put, the housing is divided 50/50, and they will repay the loan in the same share. However, if everything is so simple, then why do so many nuances arise? The fact is that there is a 3rd participant here - a financial institution.

Bank actions in case of mortgage divorce

A mortgage in the event of a divorce is burdened with one main difficulty - the property is pledged as a guarantor for payment of payments. This means that after the dissolution of the union of people, it is not possible to do anything with the apartment unless there is the consent of the bank. Accordingly, the spouses cannot sell it, exchange it, or re-register the mortgage in the event of a divorce to one of the parties to the marriage. In other words, without a bank it is impossible to do anything with real estate, not even split payments.

Whether to continue paying the mortgage or selling the apartment is also up to the bank to decide. By the way, transactions for the sale of collateral property are approved only in extreme cases, especially during divorce proceedings. But at the same time, obliging one party to pay the bills is quite problematic, given that spouses most often act as co-borrowers. Moreover, this condition is spelled out in the Civil Code of Russia (Article No. 391, clause 1), which states that the transfer of debt from one to another is possible with tripartite agreement.

Regarding the question of what to do to re-register the mortgage during a divorce and give the debt burden to someone alone, in this case, division is possible if the apartment has more than 1 room. If this is a one-room apartment and it is impossible to divide it into equal parts, then the loan obligations cannot be divided. This is stated in the same federal law on mortgage lending, namely in Article No. 5.

Exceptional cases

There are two situations that suggest a mortgage divorce:

Personal mortgage loan. If there is a fact of acquiring real estate on own funds one party to the marriage, both during it and before it. This is indicated in the IC of Russia (Article No. 36) - that property that is listed as personal and is not included in the inventory of common property is not subject to division.

Such property may be:

personal financial savings;
property.

That is, all finances and property acquired before entering into an official relationship or purchased/spent during marriage, but received before it, will be listed as personal.

Military mortgage loan. This is not as clear as with the first case. For example, some lawyers argue that the norms of the Russian Investigative Committee specified in Article No. 34 can be attached here, which indicates that common property is also labor income, the result of intellectual labor, etc., incl. benefits without specific purpose. Other legal experts believe that a military mortgage should not be divided after a divorce, because... targeted funds, i.e. aimed at purchasing residential space. And in this case, former spouses cannot claim a share if they are not military personnel.

Let us note that everything would be logical and legal, if not for one “but”. Funds for the purchase of an apartment for a serviceman, in the amount of just over two million rubles, are allocated by the Ministry of Defense of the Russian Federation, which means that in fact it must pay the lion's share of the mortgage. However, in a situation where there are not enough funds, additional funds can be taken from the family budget.

This situation is complex, and in order to resolve it legally, we suggest consulting with a lawyer on our portal. Legal assistance is provided free of charge. This enables citizens to have not only legal knowledge, but also to apply it in practice, if necessary.

Effective methods for dividing mortgage housing

You already know what to do if a mortgage was issued before marriage, based on the information above. But what to do with the mortgage and how to divide the living space if you decide to get a divorce.

In this situation, the payment amounts required to pay off the debt will be divided between the parties in equal proportions. In this case, each of the married couple will bear their own responsibility. With a mortgage, both spouses have equal rights, as well as obligations to repay the debt. This option is not entirely convenient, because... due to two factors:

If one of the couple does not have his own home, then the spouses will also live together.
The other party may, under certain circumstances, stop paying its share.

As for the second situation, this can happen for various reasons. For example:

He does not live in this apartment, so he believes that it is not his responsibility to pay for it.
Availability money problems, because of which it is not possible to pay.
Intentional cessation of payments to encourage the bank to put the property up for auction.

Speaking about the first two situations, it must be emphasized that if one of the borrowers pays regularly, and the second refuses to pay his share, then the solvent person has a number of advantages. For example, during a trial he may claim a large share of the property.

Note: Financial organization it doesn’t matter which spouse pays the loan during a divorce. The account must be replenished monthly according to a schedule with a fixed amount. If there is no payment on the day the payment is written off, the bank has the right to terminate the contract and demand a one-time payment or put the property up for auction.

Mortgage and divorce, although a difficult procedure, are very undesirable to bring to auction, because... the property is sold at the minimum price, i.e. below market. And there is a chance that the entire proceeds will not be enough to close the personal account. That is, the spouses will not only not receive money, but will also remain in debt.

There are two more options for solving the problem:

One of the owners repays personal loan obligations ahead of schedule. However, the divorcing person will not be able to dispose of the share until the deposit is removed. With this approach, the credit institution will consider the level of solvency of both parties. If the result is positive, the loan taken will be divided into 2 parts. Further, you can calmly get a divorce and freely dispose of your property.
The spouse disclaims responsibility for paying the loan obligations with the subsequent renunciation of claims to the property in favor of the other party. It is noteworthy that this method is used most often, because the bank almost always agrees to this if the second party, after considering solvency, is accepted by the only borrower.

Important information: To use the service for re-registration of a mortgage agreement, you will need to pay a commission in the amount of 0.5% -1% of the remaining debt amount.

And finally, let’s give one more possible variant. But let us immediately note that banks do not treat him very well. We are talking about selling real estate, followed by repaying the debt and dividing the remaining funds. Of course, this option is not only simple, but also convenient, because:

makes it possible to live separately;
credit obligations are no longer a burden.

But it is not possible if there is no consent of the bank to sell the collateral that issued the loan. This is due to the fact that when agreeing to this option, the bank loses the pledged profit when applying for a mortgage, i.e. he will end up receiving only a portion of the interest. Believe me we're talking about O large amounts. However, if both parties are recognized as solvent, then the credit institution will agree to the sale, subject to the provision of separate apartments on similar credit terms.

By the way, today it is quite difficult to find a client for an apartment with an encumbrance, because... The real estate market is developing high speeds. Therefore, experts recommend that both parties make every effort to find such a client, because This will allow you to save your living space.