How is a mortgage paid off in a divorce? Mutually beneficial options for dividing a mortgage loan during a divorce

Drafting and signing of the marriage contract by the spouses greatly simplifies the divorce process. However, for this, the contract must clearly spell out the principles and rules that will be used in order to separate the property purchased on a mortgage and loan obligations after a divorce. Naturally, the marriage contract must be certified by a notary.

An important feature of the considered legal document is the fact that he can be made in different time periods:

1. before or upon marriage;
2. before applying for a mortgage;
3. after receiving a loan and purchasing an apartment.

In the latter case, the conclusion of the marriage contract must be notified to the credit institution. The second characteristic point of the agreement between the spouses is the impossibility of influencing the procedure for the division of property provided for by it during a divorce by the bank. That is why some financial institutions put forward the preliminary conclusion of a marriage contract in the form established by them as mandatory conditions for mortgage approval. Most often, this requirement is presented when one of the spouses:

• has a bad credit history;
• already a borrower a large number loans;
• has no official income.

What happens to mortgages if you have minor children?

Refusal to pay debts by one of the spouses

In the event that one of the former spouses refuses to participate in the payment of mortgage debt, the situation may develop according to one of two possible options.

First of which provides for making payments on the loan by the second co-borrower. In such a situation, real estate after repayment of the loan, as a rule, is issued to him.

Second option The development of events suggests a gradual accumulation of debt, which with a high degree of probability leads to the bank putting the apartment up for sale. After the sale of real estate, the debt on a mortgage loan is first repaid, taking into account all accumulated interest and penalties. Remaining funds financial institution pays co-borrowers. In practice, a situation often arises when the money received from the sale of an apartment is only enough to pay off obligations to the bank.

Alternative Ways to Solve a Mortgage Problem in a Divorce

by the most in a simple way to avoid the need to divide during a divorce an apartment bought by spouses on a mortgage loan, is the sale of real estate. There are two main advantages of this method of solving the problem. First, co-borrowers repay debts to the bank.

Secondly, the process of dividing common property is noticeably facilitated, since dividing money is much easier than living space in the apartment. It is obvious that the consent of the bank is required for the sale of mortgaged real estate. Usually, credit organization does not object to such a solution, since it allows you to guarantee the return cash, shifting the problems of selling the apartment to the former spouses.

Another alternative solution to the problem of servicing a mortgage loan is to rent an apartment. If we are talking about liquid living space, it is quite realistic to pay interest on a loan at the expense of funds received from the tenant. However, in such a situation, the former spouses themselves will have to rent cheaper housing.

Pitfalls and possible problems with a mortgage during a divorce

A characteristic feature of a significant part of divorce proceedings is the damaged relationship between former spouses. This is what makes the procedure for dividing property extremely problematic and complicated. As a result, the likelihood of concluding a settlement agreement, which is the simplest, fastest and most problem-free solution to issues outstanding mortgage is usually small.

It is also important to note the fact that the division of an apartment purchased on credit during a divorce, from a legal point of view, affects both the family and financial right. Not surprisingly, in most cases the decision is made judiciary. At the same time, its content is largely determined by how qualified lawyers represent the interests of each of the former spouses.

Lawyers joke that a mortgage is more reliable than a spouse. And indeed, if more than 18% of families break up in the first 3 years of marriage, then the loan does not disappear, and the former spouses still have an apartment in the mortgage.

How to divide mortgage property during a divorce in 2020? Let's consider in all subtleties.

How to divide a mortgage apartment during a divorce?

First of all, you need to learn all the intricacies of the partition process. Practice shows that the solution to the problem can take a long time: until the spouses decide who will get the children, draw up all the divorce papers and agree on who pays, months can pass. However, don't overdo it: if the loan is not repaid within three months, the bank has the right to dispose of housing at its discretion. It is in your interest to complete the process as quickly as possible.

Where to begin? First of all, answer the basic questions:

• Are you officially married?
• Have you entered into a prenuptial agreement?
• Did you take out a mortgage before or after marriage?

These three main points will influence your further actions.

Actual marriage and leakage

Cohabitation, or, as people call it, “civil marriage” (although this usage is fundamentally wrong) is a sensitive issue in this case, since the articles of family law do not apply to actual spouses.

If the marriage contract was not drawn up, the mortgage (like the apartment) is more likely to remain on the one to whom it was issued.

If it becomes necessary to prove that both formal spouses participated in the mortgage in the same way, witnesses and evidence are connected, for example:

• checks;
• statements from a personal account;
• payment receipts;
• other;

The same rule applies to repairs in a mortgage apartment or the purchase of expensive equipment. To prove something in court in this case is possible only with the help of a good lawyer.

marriage contract

Making a marriage contract is something to think about “on the shore”. The document spelled out all aspects of the division of real estate, including mortgages, even those that were taken before marriage. Since the document is notarized, it will play a key role in the legal process.

If you have entered into a marriage contract, then the mortgage will be divided according to the agreement. If not, then the issue will have to be settled in court.

Mortgage before marriage How to share?

According to the family code, all property acquired before marriage is considered personal, which means that after a divorce it cannot be divided. However, with the permission of the same family code, the former spouse can claim a share in the apartment, since the loan payments were made from the general budget. At the same time, even a non-working person can put forward demands: the wealth of one of the spouses in marriage is considered the total family budget.

Judicial practice shows that processes often end in favor of such a spouse, especially if there is a good evidence base (checks, extracts, etc.) and an experienced lawyer.

The situation is more complicated with apartments taken on mortgage in a new building. By law, ownership of such housing will be given only after the object is put into operation. Therefore, the situation can develop in two scenarios:

• If at this time the borrower is married, then, most likely, the court will oblige him to allocate a share in the apartment to his ex-spouse upon divorce.
• If the borrower divorces before obtaining a certificate, the court will oblige to pay compensation to the former spouse, since, according to the law, the loan was paid by joint efforts.

The decision of the court on a mortgage taken before marriage largely depends on the experience of the lawyer.

Mortgage upon divorce, if the former spouses are co-borrowers

Statistics show that in more than 70% of cases, former spouses are co-borrowers. In this case, before applying for a mortgage section during a divorce, it is necessary to consider all possible options and try to resolve the issue peacefully. This will help to avoid litigation, loan defaults and other unpleasant moments. You can peacefully resolve the process:

1. Paying the mortgage jointly and further;
2. If one of the spouses refuses the mortgage and the apartment in favor of the other;
3. With the consent of the bank, sell the apartment and divide the proceeds in half;
4. Pay off the mortgage in full, then sell the apartment and share the funds;

The last option is the easiest in terms of design, since it does not require lengthy proceedings. However, it is rarely possible to solve the problem in this way.

Choosing the first option, you need to contact the bank to draw up a new agreement that facilitates payments. Then each of the borrowers will pay their share of the debt on the loan separately. It should be borne in mind that the shares can be moral. Judicial practice shows that banks rarely go for a loan section, since this can turn into additional difficulties for them. You must remember that any decision of the bank can be challenged in court.

How to sell an apartment on a mortgage?

Sell ​​an apartment for which the loan has not yet been paid, possible only with the permission of the bank. It will not work in another way: mortgage housing is pledged to the bank until the loan is paid in full.

When selling an apartment, each of the former spouses has equal rights part of the housing, or its cash equivalent.

This method is inconvenient not only because additional complexities with the bank, but also in terms of money, because: finding a buyer for an apartment burdened with a mortgage is difficult. Few people are willing to spend money on additional legal checks and drafting a sale and purchase agreement. And you will have to sell housing at a reduced price, otherwise no one will buy it.

What should I do if my ex-spouse refuses to pay?

It often happens that one of the former spouses refuses to pay his share of the mortgage. In this case, the contract is re-registered for the solvent. From the second, all litigation for payments is removed, but at the same time he does not have the right to demand a share in the apartment.

If one of the co-borrowers refuses to pay the mortgage within 3 months, but is in no hurry to sign a refusal from the share in the apartment, there are 2 ways to solve the problem:

• The mortgage loan is repaid by one party.
• The bank sells the house, and the proceeds go to pay off the loan. Most often, the bank sells housing at a low cost, approximately equal to the amount owed, which greatly speeds up the process.

Mortgage for divorce of spouses with children

If the former spouses have minor children, the share of ownership in housing changes in the direction of who they remain with. Based on this rule, a further division of the mortgage occurs.

Note! If the child is registered in a mortgage apartment that is for sale, it must be registered in urgently! Otherwise, the guardianship authorities may be interested in parents, up to raising the issue of deprivation of parental rights due to the inability to provide normal conditions for the child to live.

How will we share?

Contrary to popular belief that an apartment is divided in half during a divorce, shares in housing can be unequal. It depends on many aspects, for example:

• having children;
• whether a mortgage was taken before marriage;
• the extent to which each borrower participated in repayments;
• and others;

The proportions may be different, and they are determined by the court.

Military mortgage and divorce

Division of property taken under the military program mortgage lending differs from a conventional mortgage because the obligation to repay does not fall on the spouses, but on the Department of Defense.

A member of the program, as well as the owner of housing, becomes a serviceman, regardless of the presence of a spouse or children. Therefore, the mortgage section does not require the participation of the latter. Also, the participant does not have the right to renew the loan agreement, even if it is required to share an apartment purchased with a military mortgage.

These rules also apply to the other side of the issue: in case of non-fulfillment of the terms of the CHL contract (non-payment or other force majeure circumstances), the serviceman himself is obliged to return the funds taken under the program, but not his other half, albeit the former.

Mortgage apartment rental

Some divorced spouses decide to temporarily rent out a mortgage-laden home in order to pay off a loan. However, such actions are illegal, since the apartment is pledged to the bank. That is why conclusion of a lease agreement is impossible without the permission of the bank.

Video: Mortgage and divorce

And togas

If you want the mortgage section to end for you with a positive outcome, you need to approach the issue with all responsibility. Try to resolve this issue peacefully: it will save you a lot of energy. If it does not work out, then collect all the papers proving your involvement in paying off the loan and do not skimp on a good lawyer.

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22 comments

For any renewal of the loan agreement banking organization has the right to charge a commission for changing the conditions in the amount of 0.5% to 1% of the amount of the remaining debt,... Hello! I am wondering which of the spouses should pay this commission? The ex-husband promised to pay compensation for the refusal of a share in the apartment to his ex-wife, but now he wants to withhold the amount of the commission from her compensation.

It is possible to demand any compensation for the payment of a mortgage (regardless of whether before or after a divorce) from a spouse if I am a borrower and he is a co-borrower. The payment for the mortgage was made from my card, but the spouse transferred funds to it. At the same time, both of them were unemployed.

We want to divorce my husband, we have a mortgage, fractional ownership for 2 me and my husband. I am a borrower, husband and borrower. Is it possible for him to refuse a share of the apartment in favor of me and stop being with the borrower? Or vice versa? We don’t want to share the apartment, we just want someone to own the apartment and the mortgage after the divorce. Is that possible?

In marriage, a mortgage was taken with the introduction of mat.capital for five years, they refused to carve out a mortgage with my husband in a divorce, the bank put forward demands for the full repayment of the loan and put the apartment up for sale, one child lives with him the second with me can I return mat.copylat on the basis of the acquisition of housing for children? Or will everything go to the bank from the sale?

My husband and I have been married since 2011, in 2012 our daughter was born. in 2016, we took out a mortgage and bought an apartment in a new building, which is completely registered to my husband. delivery of the house 3rd quarter of 2017. Husband pays the mortgage. But now we want a divorce. How to deal with an apartment that is in a mortgage and has not yet been rented out. What rights do I have to it, and how to deal with the mortgage. The husband offers a notarial agreement, the apartment allegedly remains with the child, can it be re-registered for me and the child? he pays the mortgage himself and gives alimony according to his conscience. what better advise?

We have been married for 12 years ... we have a son for 10 years ... we took out a mortgage three years ago ... it was difficult to pay financially ... as a result, my husband went to his parents and checked out of the apartment ... the mortgage was issued to me as an owner and a husband with a borrower ... now here is one with a child. For some reason, alimony does not come, although they were issued along with a divorce ... tell me where to start ... The bank allowed the apartment to be put up for sale, but when it will be bought. difficult say... The husband refuses to pay half of the mortgage amount... will the husband pay half of the mortgage amount before the sale of the apartment, if you sue... I just can’t do it alone, there are not enough funds. Tell me what is the best thing to do?

Hello, I have a question... The house was bought with a mortgage... married... I am a co-borrower.

We are getting a divorce. The debt remained small, you can pay it off in full for one payment. Three children, two of which are my husband and one is mine from my first marriage. our joint (she later died) ... Math.kopetal was used to pay off part of the mortgage (all in full) we pay the mortgage together from the general budget. Can the house remain for me and the children during a divorce (they are all registered in this house) And what kind of husband will you have to pay interest?

If the Apartment was taken on a mortgage during marriage and it is fully paid by the spouse, and I am on maternity leave, the child is 1.5 years old, then how will the Apartment be divided upon divorce?

• I have a question, they took an apartment in a mortgage, it was registered for my husband, I'm on maternity leave, he tells me that the apartment is not mine, but his and the bank's, what should I do in this situation?

If the Apartment was taken on a mortgage during marriage and it is fully paid by the spouse, and I am on maternity leave, the child is 10 months old, then how will the Apartment be divided upon divorce? Nested maternal capital. My son from my first marriage, my joint daughter and I are registered in the apartment.

Good evening. The mortgage is in my name. The ex-husband did not pass as a co-borrower, since at the time of registration of the mortgage he did not have Russian citizenship. The apartment was purchased with the help of matkapital. All mortgage payments were made by me alone, since he was not working. Children live and are registered in this apartment with me. The ex-husband, after obtaining citizenship, was also registered in this apartment. Six months after registration, we divorced. I went to court to remove it from registration and was refused. The judge said he couldn't be removed because he was the owner. And has the right to half of the apartment, as it was acquired in marriage. Alimony, mortgage and communal payments he doesn't pay. He refused to share the mortgage and said that he would not pay anything. Do I really have to work two jobs for another 18 years to pay off the mortgage payments on an apartment that will never be mine or the kids. How to be?

• And who was he in the deal? You can not throw out the official husband in the transaction. He is either a Co-borrower, or a Guarantor, or a party to the Marriage Agreement. If he is a party to the Marriage Agreement, then he does not have the right to claim an apartment. Take this contract to the judge.

Good afternoon! Married since 2012, there are children born in 2013 and 2016, all four of them are registered in a mortgage apartment (took in 2013), my husband is a borrower, I am a co-borrower. A mat is enclosed in the apartment. capital. My husband paid by checks, we live on my salary, I'm officially in maternity leave since 2013, although in fact, in total, she did not work for a maximum of a year (birth and the first months after the birth of children). In the event of a divorce, both children will live with me, how do I share an apartment in this case? must pay by 2028. There is no desire to sell, especially since I brought most of the money invested in the arrangement of the apartment to the family. It is a pity that I did not foresee such an outcome in advance, and did not save the checks. How to be now? Thank you in advance for your response.

Tell me please. The mortgage was afraid of 50 to 50. My husband is a borrower, I am a co-borrower. I no longer live in this apartment. He lives. I don't need her. Please tell me how everything will be decided in a divorce?

We bought a house with a mortgage and the first installment was paid with maternity capital and my personal funds. The mortgage is in the name of my husband, I am a co-borrower. How can we divide the house during a divorce? And how can I return the amount of maternity capital and personal funds so that I can buy new housing for my children? The house is registered in the name of my husband, from him there is an obligation certified by a notary that after the payment of the mortgage, he undertakes to provide us with shares. How to achieve the return of the amount of maternity capital and personal funds?

Hello, we took a mortgage in marriage, a mortgage on me, my husband is a co-borrower. We are two owners. The second child was happy and the mat.capital was brought into the mortgage. My question is: how will the apartment be divided in the event of a divorce? Husband gets half or ¼??? (we have two children) the children will be with me because he does not work with children, he never sits and just does not need them and does not help the children financially.

Mortgage for most young families is the only possible way acquisition of residential real estate without agonizing expectations until the required amount is accumulated, and with the prospect of immediately settling in your own apartment or home. Unlike other forms of lending, mortgages are also the most profitable form of financing. Today we talk about.

Given the national divorce rate, it is not uncommon for the division of mortgage debt to be the subject of a dispute between spouses ending a marriage. The main problem is not so much the very fact of dividing an impressive debt obligation, but rather its connection with the need to divide housing purchased on a mortgage. After all, each party, as a rule, wants to receive at least part of the property, and to reduce to a minimum their possible financial costs associated with debt obligations.

Alas, if some compromise is not made, it is unlikely that the situation will be resolved peacefully. In addition, the law and arbitrage practice when considering the issues of division of property and related debts, they do not operate with the concepts of “honestly” and “fairly”, and therefore, relying on the effective resolution of a dispute in court, it is far from always possible to get what you want.

Most The best way share a mortgage. And so that there is no feeling of an unfair division in the future, and possible claims, disputes and litigation do not follow, it is advisable to be guided by the norms and rules that are set out in the laws and which Russian courts operate with.

Partition of a mortgage issued during marriage

In most cases, a mortgage is issued during the marriage. By general rule established in banking practice, the mortgage is issued to one of the spouses, while the second acts as a co-borrower. These circumstances mean:

1. Both spouses are jointly and severally (equally) liable for debt obligation. Accordingly, no matter how the spouses agree among themselves, the bank has the right both during the marriage and after the divorce to make claims regarding the payment of the debt either to any of the spouses, or immediately in relation to both.
2. Both spouses have equal rights to the property acquired on a mortgage, that is, formally, each of them owns half of the property right. The Family Code also proceeds from this, according to which, in the event of a divorce, property will be divided in a 50/50 ratio, and on the basis of this, the mortgage debt will be divided similarly.

The above can be called an ideal situation - one that is not complicated by concomitant factors, among which may be:

• conditions that allow one of the spouses to claim a greater share in the right to real estate acquired on a mortgage, in particular, the presence of children and their residence after a divorce from this spouse;
• registration of ownership of residential real estate only for one of the spouses, which is permissible with the consent of the bank or when applying for a loan before marriage;
• the presence of a dispute over the ownership of housing, which is usually provoked by the fact that one of the spouses during the marriage bore all or most of the financial burden of the mortgage, including investing his personal funds.

If there are no difficulties and disputes, the mortgage can be divided between the spouses as follows:

1. For one of them, the right of ownership of real estate is assigned (formalized), along with the transfer of all obligations under the mortgage.
2. Spouses enter into an agreement between themselves on the division of property and debt in accordance with the agreement reached on shares: standardly - 50/50, or in another ratio. Depending on the situation, compensation may be paid by one of the spouses to the other.

Important : all agreements reached between the spouses regarding the payment of the debt cannot legally affect the terms of the mortgage agreement until the bank gives its consent to change these conditions. But the agreement (written and notarized) can be used as evidence in the event of a dispute between the spouses regarding the execution credit obligation. The same applies to property acquired on a mortgage, since in this case it is a pledge, which spouses do not have the right to dispose of without the consent of the bank, unless otherwise provided by the mortgage agreement.

To comply with all formalities, it is necessary to first coordinate the planned section of the loan and collateral with the bank. If the bank does not make concessions, does not agree to conclude a new agreement or additional agreement to the main thing, unfortunately, it will be possible to finally settle the division of mortgages and housing only in judicial order, including the result of which will be only the approval of the agreement of the spouses. Otherwise, you will have to be guided by the agreement reached at your own risk and rely on the fact that it will be properly implemented without causing claims from the bank regarding the fulfillment of credit obligations.

The presence of children in itself does not affect the section of the mortgage obligation. But it affects the features of the division of property acquired under a mortgage. By a court decision, the spouse with whom the child (children) remains to live may be assigned a larger share in the ownership of housing than the second spouse. However, in this case, the first spouse will also bear a larger share of the loan obligations, which is far from always a good outcome.

As with childless couples, the best option section of the mortgage if there are children is a peace agreement. We must not, again, forget that housing on a mortgage is collateral property, on which the bank can foreclose, regardless of the presence of children and their registration in the disputed living space.

The conclusion of an agreement between the spouses for the conversion of his legal action on loan agreement will require the consent of the bank, both in terms of mortgage obligations and in terms of the conditions for disposing of real estate.

​No matter how the ownership of mortgaged housing is registered, if the mortgage is received during the marriage, all legal relations are subject to the provisions governing general terms and Conditions about mortgage. An apartment or a house, as a general rule, is recognized as jointly acquired property, which is divided 50/50 or according to other shares agreed by the spouses or determined by the court.

Registration of ownership of mortgage housing for only one spouse is quite rare. This is possible if allowed by the terms of the loan or agreed with the bank. But, as a rule, the second spouse will still be a co-borrower or, at least, a guarantor.

However, in practice, several situations are possible:

1. The property is registered to only one spouse insofar as he bears the main or all financial burden on the mortgage, including investing his personal funds in paying off the mortgage debt or down payment. In the event of a dispute, if the spouse proves the circumstances to which he refers, the mortgage property may be:

• recognized as the personal property of the spouse who issued it;
• divided, with a larger share recognized for the spouse who registered the property.

1. The property is registered only for one spouse based on the profitability of the further development of the situation for family budget. Usually they do this to get Better conditions for tax deduction or other preferences. In such a situation, there will be general rules division of property and mortgage debt, and housing is recognized as the joint property of the spouses.

In any case, the division of the mortgage is “tied” to the division of property and the shares of the spouses actually received after that.

Section of the mortgage received before marriage

If the mortgage is issued before marriage, regardless of the reasons for this approach, then formally the obligations under the mortgage, as well as the ownership of real estate, apply only to one spouse. And here the problem of choice usually arises:

• whether it is worth taking on all the obligations of the mortgage, even if in exchange for this you receive a sole, uncontested right of ownership;
• whether it is worth, without having formal grounds, to give away part of your property, for which you partially, and perhaps completely, had obligations during the marriage, in exchange for release from debt.

If there is a dispute, the court will decide:

1. Are there any grounds for contesting the property rights issued to one of the spouses?
2. Is it possible to recognize mortgage real estate joint property of the spouses.
3. When recognizing joint property - what are the sizes of the shares of each spouse.

If the court does not recognize joint ownership, all obligations under the mortgage will be assigned to the spouse who issued it. In this case, you do not need to make any changes to the loan agreement. Otherwise, the debt will be divided according to the shares awarded.

Based on judicial practice in 2015-2016. and according to position Supreme Court RF:

1. Mortgage real estate is shared with an extremely detailed consideration of the issue of which of the spouses, to what extent and at what expense (personal, common) actually contributed money to pay off the mortgage.
2. If the spouse contributed his personal money (recognized by the court as such), then their total amount will be deducted from the property mass to be divided. Contributing personal funds is an important bargaining chip to qualify for a larger share or all of the mortgaged property.

At the same time, it is always worth remembering that obtaining ownership and the size of the share in the mortgaged apartment (house) will directly determine the amount of mortgage debt. Therefore, it is important to look at what will be profitable and what will not. Sometimes it is even easier and more profitable to sell mortgage real estate with the consent of the bank, pay off debts in full and calmly get a divorce without mutual obligations and disputes.

If you still have any questions about how to divide a mortgage during a divorce, then our online lawyer on duty is ready to answer them promptly.

Banks work for money. Therefore, there are only two ways out of the mortgage: pay off the loan or be left without an apartment. But how the spouses will divide the housing between themselves, if they get divorced, the bank does not care at all.

Your rights to square meters you have to defend yourself. Choose one of the methods below - today in Russia these are all possible division options.

1. Payouts as before

Suitable if you do not want to notify the bank of the divorce (if the bank considers that financial position spouse deteriorated, he may require early repayment mortgages). You pay the mortgage together, and upon completion of the payments (when the bank removes the encumbrance) you can sell and divide as common marital property.

If your spouse makes payments to the bank, and you transfer your share to him in cash or by transfer, take a receipt.

2. One spouse pays, the other is eliminated

I pay

You need to choose one of two solutions:

• Ask the second spouse for a document waiving his claims to housing. This may be a donation agreement or an agreement on the division of property.

• To demand in court that the spouse reimburse you for his part of the payments.

Remember the deadline limitation period in 3 years (clause 7, article 38 of the RF IC). It is not counted from the date of divorce: in your case, the countdown goes for each payment separately. The court will review all payments you report, but will only order your spouse to repay those you have made in the last three years.

your risk. If the second spouse refuses the contract, and you are sure that there is nothing to recover from him in court - it makes sense to refuse the mortgage. There is a high risk that you will have to share the apartment you paid for - or pay a ransom for it: the spouse has the right to demand the division of housing acquired in marriage.

From life

Spouses with a child took a mortgage for 10 years, divorced after 5, but periodically lived together. My husband paid the entire mortgage and paid off in 2012. It never occurred to him to collect her part of the payments from his wife - she did not apply for an apartment. In 2015, the 3-year period during which he could sue something expired.

Almost immediately, the wife went to court for the division of property and won, receiving half the apartment as a former spouse. Alas, the second half of the apartment also went to her - for alimony debts (after all, formally they were divorced a long time ago).

Paid by the spouse we are divorcing

You may be ready to give up both housing and mortgage payments, and your spouse may pay, but is afraid that after you will demand a share. Sign the documents that you transfer your part of the housing to him along with the loan obligations. To do this, they conclude an agreement on the division of property (if the apartment is jointly owned) or a donation agreement (if each spouse has been allocated their own share).

your risk. Formally, you will remain indebted to the bank: for him, the personal agreements of the spouses are not important, he gave the two of you money and considers you both debtors. If your ex stops paying, you are unlikely to lose money, the bank will simply sell the apartment. But your credit history will be spoiled by "non-fulfillment of the mortgage obligation." Whether you will be given another mortgage later is unknown.

3. Re-registration of a mortgage loan for one

The bank concludes a new contract with a more solvent spouse. He is left with an apartment and responsibilities for the loan. The second may demand from him a share of payments already made (if these payments were made from common family funds).

4. Partition of a mortgage obligation for two

The Bank concludes a new loan agreement with each of them - for half of total debt(reissuance will cost 0.5–1% of the remaining debt), Rosreestr will issue new certificates of law.
Now each is liable only for his share and is not responsible for the delay of the other. If the spouse does not pay the loan, the bank will offer you to buy out his share (Article 255 of the Civil Code of the Russian Federation), if you refuse, he will put it up for auction.

Mortgage for odnushku / studio

Such a mortgage cannot be divided into two, only reissued into one. This is due to the fact that one-room housing cannot be divided “in kind” (into two isolated rooms), each one owns only a part. And a mortgage is not issued for part of the room (clause 4, article 5 102-FZ).

5. Sale of an apartment

This is quite a hassle for the buyer, so you will most likely have to make a discount.

How to sell an apartment with an unpaid mortgage

• Obtain bank approval for the sale.
• Decide on the cost of the apartment, dividing it into 2 parts: your debt to the bank + your income from the sale.
• Independently find a buyer and conclude with him at the notary preliminary agreement purchase and sale. The buyer will transfer the amount of your debt to the bank. The bank will remove the encumbrance - and you will become the owner of an ordinary apartment.
• Complete the sale: conclude the main sale and purchase agreement, receive the balance (your income) from the buyer and register the transaction with Rosreestr, transferring ownership to the new owner.

As soon as the bank has received the money and removed the encumbrance, the sellers still remain the owners and may refuse the transaction or raise the price of the apartment. This is the risk of the buyer, therefore they conclude a preliminary agreement, and the seller’s share is given only after re-registration of ownership (before that, the money is stored in safe deposit box).

6. Mortgage prepayment

The easiest way. People usually don’t have money for it, but it’s impossible not to mention it. You return the entire debt, the bank removes the burden, the apartment becomes ordinary common property: it can be divided into shares or sold.

The bank - whichever method you choose above - can also offer loan restructuring, that is, a reduction monthly payments. If you abandon payments completely and evade negotiations, the bank will sell the apartment at auction (even if this is the only housing and you have children).

It's not very profitable. Yes, such issues are not resolved quickly and, probably, you will not be able to be evicted instantly, for how many months you will still live. But, firstly, it is more important for the bank to quickly return your funds, so housing will be sold at a low price, and fines / penalties will still be withheld from you - in the end, you will still be evicted, and very little will be returned from the proceeds. Secondly, your credit history will be damaged.

Summary

• Family relations are not significant for the bank - both in marriage and in divorce, you will remain a borrower and a co-borrower, and both owe the entire amount (you can take a mortgage in marriage for one in only one way - sign a prenuptial agreement. The second spouse will have neither a share nor loan debt). Paying your half and not worrying about the other won't work. If the spouse stopped making payments, you need to pay for two or give up the apartment.

• The bank does not care in what shares you divide the apartment among yourself. You and your spouse decide this - either by agreement or by law.

• The law is based on whether you paid your rent with public or personal funds. If you have added personal funds to the cost of the apartment, you have the right to increase your half of the housing by this amount. But the court will require proof. Save everything if possible: donation agreements, transfer statements from parents, inheritance documents, etc.

The divorce process with the division of property and the determination of the place of residence of the child is complex even without additional aspects. Mortgage in case of divorce of spouses with children becomes an additional problem.

Divorce and division of mortgage property in a mortgage: general provisions

Prosperous spouses who have an apartment in a mortgage do not even think about how to divide during a divorce. But when a conflict arises, this issue becomes acute. There are two urgent issues that need to be addressed:

• in case of divorce;
• who remains mortgaged property purchased with borrowed funds.

Low legal literacy and euphoria that accompanies years of happy living together play a cruel joke: it is very difficult to accurately determine the percentage invested in a mortgage purchase and the degree of participation in repayment of a mortgage loan by each of the spouses. All investments are taken into account, including social benefits. How maternity capital can be used for a mortgage,.

A separate circumstance is the presence of minor children, whose interests are necessarily taken into account in real estate transactions in which the child is registered. Actions that worsen the living conditions of children can be qualified by the guardianship authorities as insufficient fulfillment of duties by parents. In this case, actions are provided up to the deprivation of parental rights and state custody of such a child.

The first thing to do for parents planning to carry out operations with mortgage-encumbered housing during a divorce is to discharge the child and provide him with alternative registration.

The fate of a mortgage issued before marriage during a divorce

Property and obligations under a loan issued before marriage are property that is not subject to division. This situation in the practice of divorce with children in the presence of a mortgage is the simplest. The court or mutual agreement of the parents determines the place of residence of the minor: this issue does not apply to the situation with the apartment. But the court, which is obliged to ensure the protection of the interests of children, may take into account the fact of the presence or absence of housing. What will be the decision on determining the place of residence, when a parent who has all the rights to an apartment in a mortgage enters into a dispute, and the second, who does not have his own housing and does not apply for it, will depend on many aspects.

How to avoid common problems

In order not to face negative situations associated with a mortgage apartment, it is strongly recommended to conclude a marriage contract in advance.

According to current legislation, this can be done not only before marriage, but also during the period of immediate family life.

For many people, however, this approach seems unacceptable from a moral point of view - only 5% of Russians use such an agreement.

A compromise alternative would be a mortgage agreement. It is issued with the help of a bank and can significantly reduce the risks of both the bank and the divorcing party. Although they are primarily interested in this credit institutions, because for them it is a guarantee of payment in any case, even if one of the parties refuses to pay the mortgage. It is more beneficial for spouses before a divorce - after all, a mortgage agreement can make them co-borrowers on a loan and make the amount and conditions issued better.

Section of an apartment registered for co-borrowers

A married couple can be co-borrowers from the moment of execution of the mortgage agreement or from the date of marriage. In the latter case, the degree of participation in payments can be confirmed by an amendment to the contract or by retained payment receipts. The generally accepted opinion that by default property is divided into two equal parts is erroneous. With a peaceful settlement of the issue of how to get a divorce, if the apartment is in a mortgage, the bank will consider the solvency of each of the applicants, taking into account the changed marital status and other adjustments in life circumstances. If it is necessary to divide by the court, the following are taken into account:

• the presence of children;
• the degree of participation in the repayment process of each;
• solvency in general and the level of income.

The obligation to confirm the fact that one of the co-borrowers paid more or even completely repaid the debt rests with him.

Lawyers recommend, conducting payment transactions monthly interest be sure to keep all receipts and documentary evidence of sources of funds. Only in this case it is possible to prove to the court the right to claim a large part of the property in case of division, defined as jointly acquired, or to the corresponding amount of compensation in case of disproportionate division.

Credit obligations for the unpaid share are divided in proportion to the parts of the transferred property. The one who receives more is obliged to pay in the same amount.

The fate of the apartment and the loan can be decided by agreement of the parties or through the court:

1. An equivalent division of property, in which the fate of obligations to the bank is determined by its experts. An insolvent citizen may be relieved of the obligation to share the payment by the decision of the bank, but the second will be forced to pay the debts in full. The most difficult cases - section one-room apartments, in which the shares will have to be determined before the restructuring of the contract.
2. Proportional division, in which a large share remains with the guardian of the children or with the parent who paid most of the loan burden.
3. Voluntary refusal to share meters from one of the parties. Together with the property, loan obligations also pass, which gives the bank the right to refuse such re-registration. If study financial condition there is no doubt about solvency and the contract is renegotiated, the second of the spouses, who invested money during their stay in marriage, may demand compensation. If it is not possible to resolve the issue voluntarily, the court issues instructions on how to divide the shares.
4. Selling an apartment simplifies the division. The proceeds are divided into a share for early repayment of debt and the balance. The second part of the spouses can be divided among themselves both by agreement and in court. The right to a specific share will also have to be documented.

Protecting the rights of children in a divorce situation with a mortgage

Transactions with real estate, listed as the place of registration of a minor, are closely monitored by state guardianship authorities. As a result of the transactions, he should not be left without housing, and living conditions after the division cannot be significantly worsened.

Before deciding how to sell a mortgage apartment during a divorce and divide the funds, you will have to write out the children and determine their new place of residence. banking rules time for such operations. When dividing the apartment itself, the parent with whom the child remains is also assigned a large part of the area with a proportional load in the form of interest on the loan.

If the rights of a minor to housing are violated, parents can be held accountable: the relevant authorities will deal with the issue of deprivation of parental rights, determining the place of stay and appointing guardianship.