Divorce of spouses and division of mortgages. How to divide a mortgaged apartment and outstanding loans during a divorce

Opportunity to buy real estate own funds Not many have. Often citizens purchase it with a mortgage. When we're talking about about the family, it does not matter which spouse has the property and the mortgage agreement. According to family law, property debt is shared. In this regard, during a divorce, spouses may face the pressing question of how to divide the mortgage during a divorce.

An apartment with a mortgage: how to divide during a divorce

To date, there is no clear legislation on how to deal with mortgage debts during divorce and division of property. When an apartment is mortgaged, on the issue of how to divide it, the courts take into account the family code, the Civil Code and the Federal Law “On Mortgage”, and the mortgage loan agreement.

Real estate and debt are divided in half. The court does not even take into account the fact that one of the spouses might not be employed and would not be able to provide money to repay the loan.
If an apartment was purchased in a house under construction, the right to ownership is obtained only after the house is put into operation.

There are two possible scenarios:

1. If, at the time of receiving the certificate, the divorcing debtor is married, then the real estate and the remaining mortgage debt are divided in half.
2. If the borrower receives the certificate after a divorce, he will pay his ex-spouse compensation for the amount he spent on the loan. The right to the apartment and the remaining debt remains with the borrower.

There are often cases when an apartment was purchased before marriage, and loan payments were made by both spouses. The ex-spouse may be eligible for reimbursement of the amount spent on the mortgage loan. He is not obliged to repay the loan debts, but he cannot claim part of the apartment either. There are situations when one of the spouses contributed funds available to him before marriage under a loan agreement.

If he can prove this fact in court (income received from the sale of an inheritance, received under a gift agreement, etc.), the spouse has the right:

1. Demand the return of this amount from the ex-spouse.
2. Reducing the amount of loan payments by the amount of own funds without prejudice to its share.

How to divide a mortgage after a divorce if the spouses are borrowers

Often, when approving a loan, credit institutions oblige the second spouse to act with the borrower. This moment insures the bank against possible unpleasant consequences in the event of family breakdown. When dividing property, in this case there are three interested parties: spouses and a credit institution. If it is necessary to divide property under a mortgage, you should try to resolve the problem amicably. This will help avoid unnecessary litigation and proceedings.

Important. First of all, you need to notify the bank about the divorce. The credit institution can offer its own solutions to the problem.

Divorce does not solve all mortgage problems

Mortgage debt does not go away during a divorce; until a decision is made that suits all parties, both spouses need to pay the fees.

There are several best options for solving the problem:

• The spouses continue to jointly pay the mortgage, after repaying the debt, they sell the apartment and divide the money in half. In this case, you need to contact the bank with a request to divide the debt between both spouses. Will be compiled new agreement, under which the former spouses will pay their own separate loan amounts. Often credit institutions refuse to divide the agreement. The bank's decision can be challenged in court.
• One spouse gives up real estate and mortgage payments in favor of the other.

As a rule, such a procedure is formalized through the court. Based on the court decision, the bank re-registers loan agreement on one of the sides.

• Sell ​​the apartment with the consent of the bank, repay the debt in full and divide the remaining funds in half.

This amount can be used in the future for an initial fee to purchase a separate apartment. Banks, as a rule, often offer such a solution to the issue to borrowers. However, this is not the most the best option solving the problem.

Why in practice this is disadvantageous for ex-spouses:

1. It is very difficult to sell an apartment at a good price if there are encumbrances
2. There are problems finding a client for such housing.
3. As a rule, after selling an apartment and paying off all debts, the spouses are left with almost nothing.

How to divide a mortgage when divorcing a child

When children are involved in divorce proceedings, the share of property ownership increases in favor of the spouse who will raise them in the future.
If an apartment was purchased using maternity capital funds, by law it is registered in equal shares for all family members. Spouses can only claim their shares in real estate. Payments on the remaining loan are divided equally.

Important. If a decision is made to sell an apartment that is mortgaged, it is necessary to urgently discharge the children from it. Otherwise, the guardianship authorities may become interested in the situation. Parents may face deprivation of their rights for failure to provide their child with living conditions.

This type of mortgage has its own characteristics. Only a military serviceman can take out a military mortgage, and housing is registered for him. Involving your spouse as a co-borrower is not required here. The mortgage debt is in fact paid off not by the borrower himself, but by the Russian Ministry of Defense.

In connection with the above, generally accepted laws in the situation of dividing property under a military mortgage do not work. The right to real estate always remains with the spouse. Courts often decide on the division of such property, guided by family law. However, this is not actually feasible. Decisions are subject to appeal, and the right to property remains with the spouse in military service.

Today, as a rule, banks do not provide such a mortgage without a prenuptial agreement. According to its terms, the borrower remains the sole owner of the acquired property during a divorce.

Ex-spouse refuses to pay mortgage

No matter how difficult the relationship may be during a divorce, you should remember your loan obligations.

Important. Before the court decision is made, it is mandatory to pay the loan installments. Cases when one of the parties stops paying the loan for its share are quite frequent.

If the loan payment is not received within three months, and the ex-spouse is in no hurry to give up his part of the apartment, the bank can make the following decisions:

• Oblige the other party to pay the remaining amount on the loan.

If the second spouse is solvent, the bank renegotiates the mortgage agreement with him, and the borrower becomes the sole owner of the apartment.

• Put the apartment up for sale to pay off the debt.

This outcome is unprofitable, since real estate is usually sold at a low price. The amount from the sale is only enough to cover the debts.

Advice. If you are paying off the loan in full yourself, keep all receipts and receipts. In the event of further claims by the second spouse to a share in the apartment, this will help you defend your rights in court.

The division of mortgaged property during a divorce is always a complex and lengthy process. The results of the proceedings can be very different. Consulting a competent lawyer will help in resolving housing disputes and will significantly facilitate judicial red tape.

Last updated February 2019

Not every family can afford to purchase their own home with the money they earn through honest labor and accumulated savings. cash. Therefore, the only way out for them is to purchase housing with a mortgage.

Regardless of which spouse the mortgage loan agreement is drawn up, according to family law, this debt falls on the shoulders of both. Just like an apartment purchased using mortgage funds, from the moment of purchase it becomes the joint property of the spouses.

For this reason, the question of how an apartment is divided in a mortgage during a divorce baffles almost every breaking up married couple. According to the law, everything is clear: both the apartment and the mortgage debt are divided in half between the former. What happens in practice? Let's try to figure it out.

You need to notify the bank

IN last years The practice of issuing mortgage loans to married couples is such that one of the spouses acts as the main borrower, and the second is his co-borrower or guarantor. This does not change the essence - they still bear a joint obligation to banking organization who issued the loan.

If you decide to divorce or have already divorced, you must notify the credit institution about this. She will be the one who will offer you acceptable options for dividing the mortgaged apartment and the mortgage debt itself.

Acceptable primarily for them. But she may not agree with the decision made by the court or specified in the marriage contract (settlement agreement on the division of property).

Optimal section options

Sell ​​the mortgaged apartment, repay the loan from the proceeds, and divide the rest equally between the spouses.

This is almost an ideal option, because it relieves those getting divorced from both the need to live under the same roof and the obligation to repay the loan. But it is not always feasible. There are several reasons for this.

• Firstly, you need to coordinate the sale with the bank that issued the loan, and they are not always willing to give their permission to this, because they lose a considerable part of the interest charged to the borrower for using the loan. But if both borrowers are solvent, then the banking organization can accept this scenario and offer them, after the sale of housing, to use the proceeds for a down payment to purchase two separate apartments and obtain two new mortgage loans.
• Secondly, it is unlikely that it will be possible to find a buyer who wants to get involved in the purchase of housing that is pledged to the bank.
• Thirdly, the spouses will most likely have to deal with the sale of the apartment together, but for rare divorcees this can evoke positive emotions.

Loan payments are divided equally between the ex-husband and wife, and each begins to bear individual, rather than joint, responsibility for repaying the mortgage loan.

Former spouses, in accordance with the letter of the law, remain equal owners of the apartment, but they are also obliged to pay off the debt together - only each one has his own part. This is not entirely convenient, especially if neither of them has any other housing and they have to live under the same roof. There are situations when one of the co-borrowers simply stops making payments on his part of the loan because:

• does not live in a mortgaged apartment and does not consider himself obligated to pay for it
• does not pay intentionally so that the bank issues mortgaged apartment forced to auction
• does not have sufficient funds for this purpose, etc.

As for the first and second cases, the spouse who regularly makes mortgage payments needs to understand that this situation is to some extent to his advantage. Provided that he repays both his part of the loan and that which the ex-spouse must pay, he has a good chance in the future to claim a larger share in the apartment. That is, it is necessary to make payments in full, otherwise a situation related to the second case, described below, may occur.

One of the spouses, who is tired of living together in a mortgaged apartment with his ex-wife (or husband), may deliberately stop paying the loan. Sooner or later, this will lead to the bank going to court and receiving a decision on the forced seizure and sale of the apartment with a mortgage. After selling the home at auction, both exes may be left with nothing - after all, its cost will be much lower than the market price, but this is a good chance to get rid of family ties and living together completely.

This also includes a sub-option in which one of the spouses repays his part of the mortgage loan ahead of schedule, then the second remains the only borrower and is already individually responsible for its repayment. Then it becomes not very clear how to divide the apartment in a mortgage, what will be the fate of the housing itself. Or rather, she will also remain in joint ownership, but the spouse who repaid the loan ahead of schedule will not be able to dispose of his share until the encumbrance is finally removed from her.

It must be borne in mind that with this option, the bank will definitely and very carefully check the solvency of both spouses. And only after making sure that both of them can actually pay off the part of the debt due to each, will he agree to split the payments.

One of the spouses waives his rights to the mortgaged apartment in favor of the other and at the same time is exempt from loan payments.

This option is very convenient when it is impossible to repay the loan immediately or sell the mortgaged home, and the refusing spouse has another living space. The banking organization that issued the loan can accept this option only if the borrower remaining in the only person, will be recognized as fully solvent.

It is important to know that for any re-issuance of a loan agreement, a banking organization has the right to charge a fee for changing the terms in the amount of 0.5% to 1% of the amount of the remaining debt, but in general it is very reluctant to change the terms of the agreement.

Other options

The most ideal option that can suit any credit institution and facilitate the procedure for dividing an apartment in a mortgage during a divorce is to repay the mortgage loan ahead of schedule. To do this, you can find the necessary funds by:

• sale of other expensive jointly owned property
• apply for another loan for one of the spouses
• sell a mortgaged apartment, etc.

You need to be prepared for the fact that some credit institutions, having learned about the divorce of co-borrowers and their desire to share solidarity on the mortgage loan, may put forward a requirement for mandatory early repayment of the loan. This condition may be stipulated in advance in the loan agreement. Also, when issuing a loan, banks may require borrowers to draw up a marriage contract in order to avoid possible problems with a mortgage in the future. And in Lately this happens quite often.

There are also such ex couples who do not re-register anything, but continue to pay the loan after the divorce on the same terms. This is possible in cases where the relationship between the ex-spouses has not deteriorated, they continue to live in a mortgaged apartment together or pay a loan for the apartment in which they live common child(children).

If there are children

When dividing an apartment with a mortgage, if there is a child, the court may deviate from the rule under which everything acquired jointly by spouses during marriage will be divided in half upon divorce. Quite often there are cases when the court leaves the mother and children a larger share in the apartment, while the ex-spouses continue to pay the loan in equal shares.

And if the mother has special circumstances, such as disability due to health, temporary disability due to pregnancy or child care, etc., then her loan payment may even be reduced by the court in relation to the amount that the father will pay. But again, this is possible only with the consent of the credit institution.

Often for complete or partial repayment The mortgage loan uses maternity capital funds. In this case, the child (or children), by law, must be allocated shares in the mortgaged housing after the encumbrance is removed (see. So the share in housing of the parent with whom the children will remain after the divorce conditionally increases due to this.

Military mortgage

When purchasing an apartment under a military mortgage and divorce, the above rules and laws will not apply. And all because, in fact, the mortgage loan is repaid with funds allocated by the Ministry of Defense of the Russian Federation, and not by the serviceman himself and his wife.

Three basic rules of military mortgage:

• a loan agreement for the purchase of housing can only be concluded by the serviceman himself (without the participation of his wife),
• the maximum loan amount under the military mortgage program is 2,350,000 rubles,
• the serviceman will be the sole owner of the mortgaged housing,
• he will not be able to renew the loan agreement in the event of division of housing.

In the event of a divorce, spouses face a lot of problems when dividing such an apartment. Courts, as a rule, make decisions according to family law and require the division of housing between spouses in half, but in practice this is almost impossible.

Often, when obtaining a military mortgage, credit organizations require the borrower to enter into a prenuptial agreement, under the terms of which he will remain the sole owner of the apartment and executor of the loan obligations in the event of a divorce. Spouses often draw up such a document in order to purchase their home, without thinking about possible consequences when, during a divorce, family members of a military personnel may be left without a roof over their heads.

Mortgage before marriage

It is not uncommon for a husband or wife to buy an apartment with a mortgage before they got married. However, mortgage loans, as a rule, are long-term and costly, and both of them subsequently have to pay the loan legal spouses from the general wallet.

If life together does not work out, then the second spouse will not only be exempt from mortgage payments, but will also be able to recover from the first, who is the borrower, his share of the funds allocated to repay the loan. And this is quite fair, because the latter remains the sole owner of the mortgaged housing purchased before marriage, and the other cannot lay claim to it.

There are also situations when an apartment is purchased with a mortgage already during marriage, but the down payment was made using funds received by one of the spouses from the sale of “premarital” housing, inherited or donated (that is, his sole). When proving this fact in the event of a divorce in court, he may well count on a reduction in his share in the mortgage loan or on the priority right in the division of such housing.

In the event of a divorce and there is a mortgage on the apartment, it is important, even before going to court and the banking organization, to choose the best division option for both of you. If you have compelling reasons and arguments, you can always try to come to an agreement and find a solution that will suit everyone.

If you have questions about the topic of the article, please do not hesitate to ask them in the comments. We will definitely answer all your questions within a few days. However, carefully read all the questions and answers to the article; if there is a detailed answer to such a question, then your question will not be published.

Often married couples reach an impasse, and the only way to solve relationship problems is divorce. The current situation becomes even more dramatic when the question arises about a mortgage on real estate issued by the spouses. Separating spouses want to get a divorce and no longer have anything to do with each other, but a divorce mortgage doesn't give them that option. Most often, resolve amicably this question does not work. After all, the bank that issued the mortgage to the family has no emotions, it is focused only on practicality.

Mortgage and divorce: how to divide mortgaged property during a divorce without nerves and problems? In this situation, spouses may have a lot of questions regarding how to divide the mortgaged apartment and who will pay the loan in the event of a divorce. It is worth noting that each individual case has its own characteristics. Currently, there are no precedents in domestic judicial practice that judges could rely on when making decisions in similar situations. Even similar cases have completely different verdicts among judges.

As a rule, during the divorce process with the division of mortgage property, the interests of one of the former spouses or the creditor are infringed. It is quite difficult to find a middle ground in such disputes. As a result, the bank takes away the collateral apartment for which they stopped paying the mortgage. At the same time, the borrower also suffers, who has lost his apartment and must pay the debt for many years.

Although it is not easy to divide an apartment with a mortgage, it is quite realistic. When separating, each spouse must understand that any real estate acquired during the marriage is their mutual property, despite the fact that it can only be registered in the name of one person and the person who paid the mortgage on the property. If the borrower’s wife was not employed and did not receive income, she has the same rights to the apartment as the spouse who paid the debt on his own, having the required level of income to obtain a mortgage.

Methods for dividing real estate

There are several options that allow you to divide an apartment that is under a mortgage during a divorce. The first method is the most popular and simplest. The ex-spouses sell the apartment and pay the bank the debt from the amount received. The funds remaining after repaying the loan debt are divided between the spouses in equal shares.

The next option is to split the mortgage payments equally between the ex-spouses. In this case, each of them will pay only their share.

Sometimes ex-spouses agree that one of them remains the owner of the property, while compensating for the cost of the second spouse’s share of the apartment.

Typically, legislation does not provide owners with ownership rights to individual rooms, since this requires fulfilling certain conditions, which, as a rule, do not exist in typical apartments. If problems arise during the division of real estate under mortgage, the court has the right to establish certain order use of housing.

What does the court take into account when making a decision? Usually, when dividing apartments under mortgage, the court is directly involved. In doing so, it takes into account the following factors:

1. Who is the owner of the apartment?
2. Whose funds were used to pay the down payment?
3. Are there any children under 18 among the owners?

If minors have rights to an apartment, then their rights should not suffer. The court assigns most of the apartment to the person with whom the child will live together after the parents’ divorce. More often than not, one spouse brings in more income and therefore pays a significant portion of the mortgage debt. However, this does not mean that this particular person will have the right to property during the division of real estate.

If at the time of registration of marriage a marriage contract, which, as a rule, prescribes the procedure for dividing mortgage property during a divorce, in this case it will be almost impossible to deviate from the terms of this agreement. There are cases when banking institutions offer borrowers to sign an agreement in which divorce cannot affect the payment of the loan debt.

It often happens that spouses make changes to the mortgage agreement and sign additional agreements. For example, one loan can be divided into two small loans. But banks offer such conditions extremely rarely.

The main nuances of a mortgage during divorce

Often, when registering a marriage, one of the spouses already owns a mortgaged property. After marriage, the borrower makes payments as before. In this situation, he will remain the full owner of the home even in the event of a divorce. In this case, the other spouse will be able to claim those mortgage payments that were made to repay the loan after the marriage, since these payments were made from the family budget. If people have taken out a mortgage on an apartment or plot, it will be divided between the divorced spouses.

It is possible to avoid misunderstandings when dividing a mortgaged apartment during a divorce. To do this, the borrower must inform the bank about the marriage, registering his spouse as a guarantor. In this case, the second spouse is also responsible for loan obligations. There is another option: you can draw up a marriage agreement (contract), noting in it the nuances regarding the mortgage, including in case of divorce.

If one of the spouses proves that some certain part loan, for example, the first installment, was paid by him at his own expense, then the court will divide the apartment, increasing the share of this person in proportion to the amount he contributed.

Currently, not all families want to formalize their relationship. This does not prevent them from running a joint household, having a family budget, raising children, etc. At the same time, according to the law, such families are not official. Therefore, the norms and laws of the Family and Civil Codes do not apply to them. In such families, dividing the mortgaged property is not easy. Typically, in such a situation, separating people spend a lot of time dividing property and resort to the help of lawyers, repeatedly going to court. The right of ownership and responsibility for the loan remains with the spouse who took out the loan, and it does not matter who paid it.

Underwater rocks

Having a mortgage during a divorce can cause the separating spouses a lot of troubles associated with the division of such real estate. If you have a mortgage, then during a divorce it is better to immediately contact a specialist or think through all the points regarding the mortgage before you start living together.

Before you start subdividing your mortgage, there are a few basic things to remember. For example, an apartment purchased before marriage belongs to the spouse for whom it was originally registered. But payments made during the period when the family lived in marriage are considered joint. Therefore, during a divorce, the second spouse has the right to receive monetary compensation or an appropriate share of real estate. At the same time, it is important to understand that it will be quite problematic to prove from what funds (personal or general) mortgage payments were made.

The situation can be even more interesting if the apartment was purchased in a building under construction. For example, the borrower made a down payment on a mortgage, paid off the mortgage loan, and, before new house completed, he got married. In this case, the owner may lose half of the living space, since ownership of the apartment was registered when he was married, and the apartment will be considered jointly owned property.

Important things to consider when dividing a mortgage

Divorce and mortgage: what points should you pay attention to? There are cases when the money for the down payment is given to newlyweds by their parents, or the money for the down payment is taken from the sale of a room or dacha inherited by one of the spouses. According to the law, each spouse who receives real estate as a gift or inheritance is its owner, and this property is not considered acquired during the marriage. To prove the fact of payment of the mortgage with funds received as a gift or inheritance, all actions carried out with them should be supported by documents. It would be optimal to transfer money, for example, from a room left as an inheritance from a personal account to the seller’s account, then send it through the bank to pay the down payment or loan. But since many people in Russia prefer to make payments in cash, it is very difficult in court to confirm the fact that the purchase of real estate took place with exactly those funds.

Remember, if the marriage between the spouses has not been formalized, you will not be able to claim division of property during a divorce. Ownership rights and credit obligations under a mortgage arise only with the person for whom the loan is issued. Currently, some banks have begun to issue mortgage loans to families living in civil marriages.

A prenuptial agreement helps to avoid problems in most controversial situations. You can discuss all the nuances in advance, including the division of the mortgage in the event of a divorce, by drawing up an agreement before or during the marriage.

In our country, only 5% of residents agree to marriage contracts. As a rule, these people are about 35-45 years old and they already know what divorce is and have experienced all the delights of property division.

Welcome! Today we continue to answer questions from readers of our project and talk about the division of an apartment with a mortgage. When spouses decide to end their life together, the most disputes usually arise around the housing in which the family lived during the marriage. This issue becomes especially acute when the mortgaged apartment is to be divided. Indeed, in this case, not only the ownership of part of the residential premises is divided, but also the obligation to pay the loan debt to the bank.

The situation with the division of an apartment with a mortgage is complicated by the presence of a third interested party - the bank. For him, divorce is not a valid reason to violate or change the terms of the loan agreement. The bank does not care how you divide your property and debts. The main thing that he will be interested in is the fulfillment by borrowers of their obligations to pay the debt in full without delay.

The question “How to divide a mortgaged apartment during a divorce?” causes ex-spouses a lot of trouble. It is necessary to agree not only on the division of real estate, but also on the procedure for repaying the debt to the banking organization that issued the loan for it. In this case, the bank must arrange decision, otherwise he has the right of veto.

Housing under a mortgage during a divorce is subject to division between spouses according to generally accepted rules. Each person will get half of the apartment, unless a different division order is agreed upon in the marriage contract. Dividing the mortgage payments accordingly will be much more difficult.

In most cases, under a mortgage agreement, spouses are co-borrowers and are equally responsible to the bank for the repayment of the debt and interest accrued on it. Credit organizations are very reluctant to divide mortgages into separate loan agreements. In this case, the risks of non-repayment of funds increase, since everyone will be obliged to pay only their part of the debt.

Mortgage property is not subject to division if there is sufficient evidence that the property was purchased with inherited money or received from the sale of housing that was the personal property of one of the family members before marriage, and monthly payments were paid only from his income.

Division of the mortgage agreement and removal of the former spouse from among the co-borrowers

A mortgage after a divorce can be divided only if the apartment purchased with borrowed funds consists of several rooms. A mortgage on a one-room apartment cannot be divided.

With the consent of the bank, there are two options for changing the terms of the loan agreement:

1. The division of the mortgage debt is proportional to the share of each co-borrower in the apartment.

Before making such a decision, the bank will carefully check the financial solvency of each borrower. If there is any doubt about their ability to pay monthly payments, a new contract will not be concluded.

Divorced spouses in this case also bear a certain risk. The apartment, previously jointly owned, will be divided into shares. In case of refusal or inability of one of the owners to pay for their share, the bank has the right to put the entire residential premises up for sale. The second owner will also lose his home and the money invested in it.

1. Removal of the ex-spouse from the list of co-borrowers with simultaneous deprivation of his rights to residential premises.

Former husband and wife may decide to transfer ownership of an apartment acquired during marriage to one of them in full. If you have a notarized written refusal one of them from its share, the bank can withdraw it from the number of co-borrowers on the mortgage. This opportunity will be realized only if the remaining sole borrower confirms the ability to pay monthly payments on time.

Sberbank necessarily requires a court decision on the division of property and mortgage. Based on this decision, the co-borrower will be removed.

Sale of housing pledged to the bank

The most convenient solution for both spouses upon divorce would be to sell the existing apartment and then divide the proceeds. If an apartment was purchased with borrowed funds and is under an encumbrance, then it can only be sold with the consent of the bank. Here again a number of problems arise:

• It is very difficult to obtain the bank's consent to sell;
• Before purchasing a mortgaged home, the future owner will have to first repay the debt and wait for the encumbrance to be lifted;
• The increase in the time frame for transferring housing to the new owner will need to be compensated by a decrease in its value.

We talked about how to do this correctly in the last post.

The second way to sell an apartment purchased with a mortgage would be full early repayment loan balance. This is the best option if the ex-spouses have sufficient funds, especially if the debt balance is small. The property, after the encumbrance is removed from it, can be sold without any problems at market value.

Division of an apartment using a mortgage purchased before marriage

An apartment pledged to the bank could be purchased by one of the spouses before marriage. According to Russian legislation After a divorce, such housing cannot be divided between spouses. A husband or wife who did not participate in the purchase of real estate can only claim the money spent on mortgage payments during the marriage.

How to divide an apartment with a mortgage taking into account the interests of children

After parents divorce, children usually remain living with one of them. Its share in shared housing will be increased taking into account the interests of children. Divide the apartment in which you are invested maternal capital, it won’t be possible to split it between parents. In this case, most likely, the mortgage payment by court decision will be divided equally between both spouses, as those bearing joint responsibility for the maintenance of their common children.

To sell a mortgaged apartment in which children claim a share, you will need not only the consent of the bank, but also the consent of the guardianship authorities. And they give their consent only if the children are provided with residential premises equivalent in cost and living conditions to the property being sold.

Infringement of the interests of children during the division of common marital property can result in serious problems for parents, including deprivation of parental rights.

Division of an apartment in a mortgage in the presence of a marriage contract

In the West, concluding a prenuptial agreement is a common practice. In Russia, this agreement regulating the division of property under a mortgage is drawn up quite rarely. Few newlyweds think about the prospects of a possible divorce and related property problems. However, the presence of this kind of document will significantly speed up and facilitate the process of dividing housing in a mortgage during a divorce.

Nuances of a prenuptial agreement if you have a housing loan

To avoid judicial division between divorcing spouses of an apartment purchased with a mortgage, the prenuptial agreement must contain certain clauses:

• Shares owned by each spouse. According to the provisions of the Family Code of the Russian Federation, all real estate purchased during marriage is divided equally between spouses. In the marriage contract, you can specify other shares of each person in the residential premises, or the sole ownership of it by one of the spouses.
• Mortgage payment percentage. The marriage agreement must also contain the procedure for payment by each of the married people of the loan received for the purchase of housing.

The procedure for concluding a marriage contract and invalidating it

An agreement between spouses can be concluded:

• before marriage registration;
• in progress family life, including after signing the mortgage agreement.

In the latter case, the married couple is obliged to notify the bank about the preparation of the above agreement.

The marriage contract becomes legal document after notarization. A decision to recognize it as invalid may be made in a court hearing upon the application of one of the parties. The bank that issued the mortgage can also go to court in case of disagreement with the procedure for dividing the mortgage after a divorce, if the agreement was signed by the spouses after assuming obligations on the loan.

Features of the division of property acquired under a military mortgage

Many problems arise when delimiting the rights to property of married couples, one of whose representatives is a serviceman who participated in the military mortgage program.

It is impossible to split a mortgage for which the Ministry of the Armed Forces of the Russian Federation, and not the borrower himself, actually pays. Ensuring this condition usually occurs through the conclusion of a marriage contract between the spouses, which states the wife’s refusal to claim an apartment purchased with a military mortgage.

As a rule, it is issued for one military personnel. The spouse and children do not have property rights, but there are cases when both parents are military personnel and purchase housing together using funds from the Ministry of Defense. In this case, you need to go to court to formalize the division of property and debts, and then to the bank with a request to either withdraw the borrower, or allocate shares and divide the debt, but the most realistic way is to close the mortgage and divide the property.

What to think about before signing a mortgage agreement in marriage

No matter how cloudless life is married couple, you can never predict what might happen in a couple of years. No one plans to get divorced while standing at the marriage altar. Buying and selling an apartment is a serious matter associated with large financial costs. If it is planned that the future family nest will be purchased with a mortgage, then the young people should determine in advance all the possible nuances of such a step.

Most main mistake, which co-borrowers of a mortgage loan do after a divorce - suspension of monthly payments until the court makes a decision on the division of the apartment and mortgage. It should be remembered that for the bank, family force majeure circumstances of borrowers are not grounds for deferring loan payments.

Even if the spouses divorce, they must continue to pay the debt in full. The bank may require early repayment of the mortgage if it has doubts about the repayment of the borrowed funds. In the event of a long delay in payment, the mortgaged property may be put up for sale at a price much lower than its market value.

Even before going to the bank, it is recommended to draw up a marriage contract that will regulate the actions of the spouses in relation to the purchased apartment and mortgage if they suddenly decide to get a divorce. This will avoid many problems, save nerves and time on resolving the issue of dividing the apartment with a mortgage.

Divorce in the family is a big problem, if there is also a mortgage, then this procedure turns into a real headache. Sign up for a consultation with our lawyer to get free expert help and pass this difficult path division of property with the reliable support of an experienced lawyer.

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Today, more than 50% of all new buildings are purchased using a loan, and for some developers the figure reaches 70%. Mortgages are especially in demand among young families. Alas, the divorce statistics look disappointing: last year in Russia there were less than a million marriages, and more than 600 thousand broke up. The presence of a mortgage encumbrance can greatly complicate the life of a divorcing family.

Options for obtaining a mortgage for an apartment during marriage may vary. “A family can buy an apartment in common joint property(without allocating shares, while the legislator defines the shares of spouses as equal), to the general shared ownership (by defining the shares as equal or indicating that the shares are not equal, but for this a marriage contract must be concluded between the spouses), - Olga Lyubomirova, head of the legal support department for transactions at the Dream Realty real estate agency, lists the options. - You can arrange an apartment for one of the spouses" But even in this case, the apartment is still considered common property, if the loan agreement was drawn up during marriage and there was no prenuptial agreement that specified other conditions, emphasizes Vladimir Starinsky, managing partner of the Starinsky, Korchago and Partners bar association.

The third one is not superfluous

At all stages of the mortgage transaction, a third person is invisibly present next to the couple - a credit institution, the same bank that issues a mortgage to the family. Without the bank's approval, it will not be possible to decide how the mortgaged apartment will be registered, who will be the borrower and co-borrower, etc.

If a divorce looms on the horizon, the couple will also have to first report their problems to the bank - since divorce is a significant violation of the loan agreement.

Ideally, you first need to go to the bank, and only then to the court and the registry office.

Divorcing spouses will have to agree on options for dividing property with the bank, unless these options have already been taken into account when issuing the loan (prenuptial agreement or marriage contract).

Ideally, first to the bank, and only then to the court and the registry office. But if it was not possible to warn the credit institution before the divorce, upon the fact of the divorce you need to go to the bank as soon as possible.

If the spouses are in conflict and do not make payments, after three months of non-payment, the bank has the right to go to court to get their funds back through the courts.

Alexander MoskatovManaging Director of the brokerage department of Miel-Network of Real Estate Offices

“It is necessary to inform the bank that the essential terms of the agreement have changed,” explains Alexander Moskatov, managing director of the brokerage department of Miel-Network of Real Estate Offices. - If the spouses are in conflict and do not make payments, after three months of non-payment, the bank has the right to go to court in order to get their funds back through the courts. This could be a sale of property in court at a price that is unattractive to sellers; the proceeds from the sale will be used to repay the loan. Of course, this is the most unpleasant decision for borrowers; there are often cases when, even after the sale, they remain in debt to the bank.”

In the event of a trial, by the way, the interests of not only the spouses, but also the credit institution will be considered (the bank is involved as a third party that does not make independent claims).

I'll say hello

If an apartment is divided “peacefully”, without trial, there are four main division scenarios, says Vladimir Starinsky.

• Agreement between spouses, which sets out the procedure for repaying the loan after a divorce. The document is agreed upon with the bank before the divorce and cannot violate the rights of children. If available marriage contract, the apartment is divided as provided in the document. The contract must be concluded before the mortgage is issued. Since the document greatly simplifies the division of property, many banks, when issuing loans, directly recommend concluding a marriage contract providing for the division of property.

“It should be remembered that a marriage contract concluded before the state registration of marriage comes into force on the day of the marriage. That is, if, having bought an apartment, young people do not get married, their marriage contract will not have legal force, clarifies Natalya Shatalina. “In this case, an independent written agreement is concluded, stipulating the mutual obligations of the parties.”

• One of the spouses waives rights for an apartment, the second receives both real estate and loan obligations. The waiver of rights to real estate must be certified by a notary and must be agreed upon with the bank (otherwise the waiver will not take effect). In fact, in this case the old contract is terminated and a new one is concluded with one of the spouses. “This is possible if the income level of one of the spouses allows you to repay the loan, then the bank will most likely agree to the refusal of the co-borrower. However, such situations are considered by banks individually,” says Alexander Moskatov. The second spouse may demand the return of funds paid for the mortgage during the marriage, notes Dmitry Petrov, lawyer at the Yukov and Partners Bar Association.
• Can I sell my apartment?, pay off the debt and divide the money (if there is any left). And again, a prerequisite is the bank’s consent to the transaction. In practice, not all banks agree to the sale. “Banks often establish penalties in contracts for the sale of an apartment with a mortgage, since in the event of such a sale, credit institutions lose profits associated with interest payments for the use of borrowed funds,” recalls Dmitry Petrov. - That is, the sale of an apartment that is mortgaged by the bank is possible. But there will likely be additional costs associated with paying the bank a commission for the sale of the apartment.” Plus, an encumbered apartment will most likely be sold at a discount from the market value.
• And finally, the bank may offer to sell the mortgaged apartment and divide the money received between the spouses so that they can use the funds as a down payment when each purchases their own apartment. Thus, one mortgage “turns” into two. This option is possible if both spouses have a stable, high income.

the apartment was purchased before marriage

If an apartment was purchased by one of the spouses before marriage, and they later paid it off together, in the event of a divorce, the apartment (and all obligations on the loan) remains with the buyer. The second spouse may demand the return of funds invested by him in repaying the loan during the marriage.

Court and case

“By default,” as Dmitry Petrov says, according to Art. 34 of the Family Code of the Russian Federation, jointly acquired property is joint property. “If the shares of the spouses are not established, they are assumed to be equal,” says the lawyer. - Accordingly, the debts of the spouses will be recognized as equal. However, if the case goes to court, circumstances may be taken into account that influence the determination of shares in the apartment: for example, if one of the spouses made a larger contribution when purchasing a home, the court may take this into account and award one of the spouses a larger share in the ownership of the apartment "

“Most often, everything is divided in half: both debts and apartments,” says Olga Lyubomirova. - But there is arbitrage practice when, after a divorce, an apartment registered in the name of one of the spouses remains the property of that spouse. These are mainly cases where the spouse is the sole borrower and title owner of the apartment. In other cases, the courts leave the spouses as participants in shared property.”

If one of the spouses manages to prove that part of the loan (for example, the down payment) was paid by him from personal funds (from money donated or inherited), then in the event of division of the spouses’ property through the court, the court may increase the share of this spouse in proportion to the amount contributed .

Natalia ShatalinaGeneral Director of the company "Miel-Novostroiki"

Children's question

If there are minor children in the family, the court may deviate from an equal division of shares. For example, if you get divorced the large family and all children will remain with one of the spouses, his share will most likely be larger. The same applies to the division of an apartment if there are disabled children in the family. In addition, if one of the spouses has other housing, but the child remains with the second spouse, who has no other housing, the court may redistribute the shares in favor of the “poor”.

If the mortgaged apartment is small, and during the division the child will not be provided with the required minimum space, it is likely that the apartment will be left to the parent with whom the child remains. True, in this case the court will oblige the second spouse to pay the cost of the share. Combined with mortgage payments, the expense can become overwhelming.

ex-spouse does not pay the loan

“In our practice, there is a case when an apartment belongs in shares to former spouses, a spouse and a child live in it, ex-husband lives with another woman,” says Natalya Shatalina. - At first he regularly repaid the loan, but for about a year and a half he has not paid the loan and practically does not communicate. The apartment is the only home for the ex-wife and her child; the monthly payments are too high for her. While she does not allow delay, we are trying to start a dialogue with ex-husband about selling the apartment, repaying the loan and dividing the remaining amount between them, but there is still no result.”

An important point: if maternity capital was used when purchasing a mortgaged apartment or paying monthly payments, the apartment is registered in the name of all family members. Those. If such a family has three children, the apartment is divided into five shares. And since the guardian controls the children’s shares until their 18th birthday, in the event of a divorce, the parent with whom the children will live can claim ⅘ shares in the apartment.

Military mortgage

If the apartment was purchased under the military mortgage program, the military spouse cannot claim a share: the earmarked funds do not belong to joint property. Only the military man himself pays the loan. The “second half” may have the right to part of the housing if she has invested her own funds (in proportion to the investments - and in proportion to them she will pay the loan).