How to divide a mortgaged apartment during a divorce without consequences in 2020

Welcome! Our readers are often interested in the question of how the mortgage is divided when spouses divorce. Statistics show that more than half of marriages in Russia end in divorce. By the time of the breakup, most families manage to acquire jointly acquired property, including housing taken out on credit. When a person who took out a home loan gets divorced, he faces big problems related to the division of the acquired property. A mortgage during a divorce becomes one of the stumbling blocks between former spouses. Questions: “How to divide an apartment?” and “How to renew a mortgage?” become even more important if there are children whose rights also need to be taken into account. There are a lot of nuances that affect the division of a mortgage during a divorce. Let's take a closer look at the main points.

How can a mortgage be arranged?

Depending on how the mortgage agreement was drawn up, the division of living space occurs during a divorce. There are several options for obtaining a mortgage:

1. The spouses took out the mortgage jointly, that is, they are co-borrowers. In this case, they are jointly and severally liable.
2. The loan was issued to one of the spouses, while the second was the guarantor and agreed to conclude the mortgage agreement. In this case, the second spouse is responsible for the mortgage payments only if the person who took out the loan does not repay it.
3. The mortgage was taken out before the marriage. Responsibility for loan payments lies only with the spouse who executed the mortgage loan agreement.
4. The loan for the apartment was taken out jointly by spouses living in a civil marriage. When parting, both are responsible for it.
5. The mortgage is issued to one of the spouses, and a marriage agreement has been concluded. The second spouse does not bear any responsibility for the loan, but also does not have any right to the residential premises.

When dividing an apartment, the court takes into account all these nuances and, depending on how the mortgage loan is issued, who is responsible for repaying it, the division of the living space and the procedure for repaying the balance of the loan will be carried out.

Banks' reaction to mortgage refusal

The reaction of a credit institution to a mortgage refusal depends mainly on the mortgage agreement and, to a lesser extent, on the proposals of the borrowers. If the ex-spouses refuse to pay the mortgage payment, the bank will most likely decide to sell the home at a special auction.

If borrowers offer to sell the apartment and pay off the remaining debt, the banking institution may agree to this step or oblige the couple to continue making payments. In some cases, the lender will insist on early repayment of the mortgage, citing that the divorce process violates the terms of the contract. In such cases, all that remains for borrowers is to hope for a trial.

The bank may also refuse to refinance the mortgage. Practice shows that banking organizations extremely do not like to divide the debt into two parts; it is much more convenient for them to leave the loan to one person.

In any case, the credit institution will try to at least “stay in line.”

It is also necessary to remember that all loan agreements contain a condition that obliges borrowers to notify their lender about all important changes in life, which include the divorce process.

Three sides of the conflict

In case of a mortgage issued during marriage, the direct borrower is one of the spouses, and the other is a co-borrower. But during a divorce, both spouses have to bear responsibility to the bank. According to the Family Code of the Russian Federation, any property acquired during marriage must be divided in half, as joint property. This also applies to apartments purchased with a mortgage. It does not matter to whom the loan was originally issued, unless other options were provided for in the agreement.

There are three parties to the division of mortgaged property - two spouses and the creditor bank. The financial institution protects its interests by issuing you a mortgage, so the apartment remains the property of the bank until the final payment of the loan. Therefore, in the event of a divorce, you need to contact the creditor bank and report the current situation.

What can the bank offer?

Most likely, the bank will offer you favorable conditions. For example, demand full repayment of the loan, or shift all responsibility for paying off the mortgage to the main borrower. However, the final decision remains yours, and this issue can be considered in court. Most likely, the court will rule in your favor and oblige the bank to agree to conditions that will suit both spouses.

The bank never issues a loan without the consent of the second spouse or co-borrower, so the second party always knows about the purchase of an apartment,” explains Sergei Yashenko, lawyer, partner of the Moscow bar association GRAD. “Usually payments come from the family budget. In the event of a divorce, the loan obligations fall on the primary borrower. But the problem is that property purchased during marriage is jointly acquired. If this issue cannot be resolved peacefully, then you will have to go to court. And when dividing property, the court will proceed from the fact that it is equal, unless otherwise provided by the marriage contract. When dividing the property, the main borrower remains with half of the property, despite the fact that the loan was issued for the full area.”

In this case, the second spouse may receive compensation if he renounces his claims to a share in the apartment. But, if the co-borrower does not renounce the share, then the court, taking into account the position of the bank, can divide the apartment as a common share. In this case, the loan obligations are also divided, and the bank will know whose share it can take away if the borrower violates the loan obligations.

The bank, by virtue of the standards determined by the Central Bank, transfers the payment outstanding for more than 30 days into arrears, or takes other measures to return the funds, sells the apartment or share,” the lawyer adds.

So, without selling the apartment, the issue of a mortgage during a divorce can be resolved in two ways :

Be sure to read it! Application for refusal to privatize an apartment: sample

1. Spouses share shares in the apartment and obligations to pay the mortgage through the court. In this situation, the bank and the court take into account the income of the spouses, and given the difference in salary, the amount of monthly payments for each borrower may vary.

If one of the former spouses for some reason stops paying his part of the monthly payments, then the second one can take over his obligations and collect compensation.

2. The mortgage loan is registered in the name of one of the former spouses, and the second, in a notarial form, renounces claims to the apartment. In this case, the main borrower assumes all obligations under the loan, and the second ex-spouse loses the rights to the property. This path is only possible with the approval of the bank. In order to transfer the obligation to repay the loan to one of the borrowers, the bank must recognize its solvency and the ability to independently pay off the debts.

But here everything is not so simple. For example, if the mortgaged housing is the only apartment, and the second ex-spouse simply has nowhere to live after a divorce. In this case, it is possible to sell the apartment.

Mortgage and marriage contract

A prenuptial agreement will help solve the problem with little effort. It can be concluded both before marriage and at any stage of family life. However, you will definitely have to notify the bank about the conclusion of the prenuptial agreement.

If your apartment was purchased during marriage with a mortgage, then you must notify the bank about the marriage contract, since the bank is the mortgagee and may claim a violation of its rights,” explains Sergei Yashenko. – “A prenuptial agreement helps to divide the obligations of the spouses. You can also specify the amount of payments depending on the difference in salary.”

The marriage contract is concluded in notarial form; it can stipulate not only property rights, but also loan obligations. But remember that the terms of the contract also affect the interests of the bank, therefore, so that the credit institution does not claim infringement of its rights, agree on the terms of the contract with it.

A settlement agreement or re-registration of the mortgage for one of the spouses will help to keep the apartment as a property, but in the future it may cause claims from one of the parties. Selling an apartment with the consent of the bank and dividing the balance will help reduce the number of claims against the property. Of course, not all advice is universal, and each situation will have to be considered separately. However, as our lawyer jokingly noted at the beginning of the conversation, in this case it is better not to get a divorce.

Is it possible to divide an apartment taken on a mortgage?

An apartment with a mortgage, just like any other property of the spouses, is their joint property, therefore, after a divorce, both have the right to a part of it. An exception is a marriage contract, in which case the apartment is divided in accordance with the document.

The difficulty of dividing a mortgaged apartment is that there is a third party - a credit institution that provided the spouses with a mortgage loan. Until the debt is repaid, the residential premises are pledged to the bank and the latter can impose any restriction permitted by law.

Any owner of an apartment with a mortgage does not have the right to:

• sell an apartment;
• make an exchange;
• give;
• put it up as collateral to another credit institution.

In addition to these actions with residential premises, spouses cannot carry out redevelopment or register other relatives in the apartment without the permission of the bank. All these restrictions significantly complicate the already difficult procedure of divorce and division, especially since the bank during a divorce may try to force the divorcing spouses to repay the loan debt ahead of schedule.

Of course, the bank can accommodate the former spouses and agree to re-register the mortgage or sell the home, especially if the court insists on this. In many ways, options for solving the problem of dividing an apartment will depend on the conditions specified in the loan agreement.

Important. Former spouses are required to notify the credit institution of their divorce and the upcoming division of property. This condition is often specified in the mortgage loan agreement.

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, a military mortgage 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.

How is property divided during a divorce if the apartment was purchased with a mortgage before marriage?

In accordance with the RF IC, all property acquired before marriage is considered personal and is not subject to division. However, if the mortgage was not repaid before marriage and part of the payments were made from the general family budget, then the second spouse has the right to claim part of the apartment.

Moreover, even a non-working spouse has the right to put forward a demand for division of real estate, since the income of the second spouse is recognized as common money.

It is more difficult with apartments taken on a mortgage in a building under construction. According to the law, a citizen who bought an apartment with a mortgage in a new building receives ownership rights only after putting it into operation. Is this apartment divisible? In such cases, there are two scenarios for the development of events:

1. If at the time of registration of ownership of the apartment the borrower was already married, then in the vast majority of cases the court will allocate the share to the second spouse.
2. If the divorce occurs before receiving the certificate of ownership, the court will oblige the defendant to pay monetary compensation to the plaintiff, since the mortgage was paid from the family budget.

Conclusion: in the event of a divorce, only that part of the property that was paid for jointly is subject to division.

Children's interests

The derogation of equality of shares for spouses has already been mentioned above. Moreover, this applies not only to the disputed real estate, but also to the remaining installments as part of loan servicing.

Attention is paid to the rights of minors when the family has many children and the children remain living with one of the parents. The same applies to the situation with a small apartment.

Often, mortgage and maternity capital are inextricably linked . Indeed, according to the law, the latter is allowed to be used as a down payment for living space.

Then, during a divorce, division is carried out according to the following mechanism. That part of the apartment, which is equivalent in value to the assistance received from the state, is distributed equally between parents and children according to the rules of common ownership. The remaining share of the property is divided between the spouses.

How is a mortgage taken out during marriage divided?

Most often, when applying for a mortgage loan, spouses act as co-borrowers, that is, they bear equal responsibility for loan payments and have equal rights to the apartment. In this case, during a divorce and division of housing, it is advisable to consider all division options in advance and try to solve the problem amicably. This will help to avoid lengthy legal proceedings, possible delays on the loan, and, therefore, considerable financial losses.

There are several options for peaceful division of an apartment with a joint mortgage:

• repayment of the mortgage jointly and severally in the future;
• one of the spouses gives up the apartment in favor of the other, in which case he is exempt from loan payments and receives half of the amount already repaid as compensation;
• both spouses petition the bank for permission to sell the apartment, pay off the remaining debt and divide the remaining funds equally;
• The parties repay the loan in full, then sell the residential premises and divide the proceeds equally.

The latter option does not require lengthy legal proceedings; it is quite simple to complete. But spouses do not always have enough available funds to implement it.

Having chosen the first option, the former spouses must draw up a new loan agreement, in which each of them will have to repay their part of the debt regardless of the opponent, while the shares of payments may be unequal. But banks do not often agree to such a division of the mortgage, as this creates additional difficulties for the lending institution.

Important. If the bank refuses to divide the mortgage, then this decision can be challenged in court, but you will have to prove to the judicial authority that both ex-spouses are financially wealthy and will be able to pay their part of the loan.

If spouses are co-borrowers, then the residential premises belong to them in equal shares, and they also bear equal responsibility for the mortgage. But during a divorce, the mortgaged apartment is not always divided equally: if there are children, the interests of the child must be taken into account.

Algorithm for dividing a debt apartment upon divorce

Remember that only an experienced lawyer can give practical advice during a divorce involving a mortgage and a child. Divorce in the presence of children and a mortgage obliges spouses to behave as follows:

1. They draw up a peace agreement, where they divide the property in a way that suits both the mother of the two minors and their father. You can ask in advance for advice from a lawyer at the credit institution that issued the loan.
2. When the divorce is officially formalized, the bank must be notified about this and an existing amicable agreement on the mortgage apartment or house and the debt must be offered. Sometimes a credit institution may refuse, then you need to look for a compromise.
3. If all parties are satisfied with the loan decision, you need to visit a notary to formalize the agreement.
4. The last step is for both spouses to fulfill the established obligations.

In this case, there will be no question of how the existing mortgage will be divided during a divorce, or what a woman with two minors in her arms should do. In most cases, the division is performed in favor of the mother, especially if two or more minors remain with her. Or the property is divided equally. It’s easier to draw up a peace agreement to avoid questions in court, quickly get a divorce and divide the mortgaged housing.

If everything cannot be resolved peacefully, you need to prepare to go to court. There, the existing mortgaged apartment after a divorce from the child will be divided by law with the obligatory registration of the latter’s share. In other words, the judge will divide so that the minor is not deprived.

Civil marriage

It is more difficult to divide property between spouses who were in an unregistered (civil) marriage. If a mortgage agreement is drawn up during such a marriage, then the banks enter into an agreement with joint liability, of course, if both spouses apply to a credit institution. In this case, the property is registered as the property of the main co-borrower.

In the event of a divorce, the second spouse will have to file a claim in court, and he will have to prove not only the payments made from the joint budget, but also the very fact of the marital relationship.

Today, credit institutions are more loyal to civil marriage. Many banks, when filling out a mortgage application form, ask you to indicate in the “marital status” column what kind of marriage the spouses are in (official marriage/civil marriage). In this case, the real estate is acquired as joint ownership and upon separation, the apartment, as well as the remaining debt, is divided equally between the former spouses.

Content

1. Problems arising during the peaceful division of mortgaged housing
2. What is the difference between shared division of property and a 50/50 division?

3. Documentation required to conclude a settlement agreement

4. Sample agreement on the division of mortgage housing

5. Procedure and cost of drawing up a settlement agreement

Spouses who have decided to break the marriage bond may have housing purchased with a mortgage. In this case, the ex-husband and wife have a number of obligations not only to each other, but also to the credit institution. The apartment (a house or half a house) will be divided equally, and so will the obligations to the bank. In some cases, spouses may divide the debt to the bank not in half, but in unequal shares.

Recently, Russian citizens are increasingly trying to disperse without conflicts and court hearings. They draw up peace agreements. One of the spouses can leave to the other both the apartment and the mortgage on it, and take other property for themselves - movable or immovable non-residential. But even in this case, do not neglect the advice of a lawyer. A settlement agreement is a legal document that must be drawn up in accordance with legal rules and regulations.

Marriage contract

The solution to all problems during divorce and subsequent division of real estate could be a marriage contract. This document, which can be concluded either before marriage or at any time after marriage, specifies all possible options for dividing property in the event of divorce, as well as responsibility for the mortgage loan.

Most often, a marriage contract is concluded by spouses, one of whom does not have the opportunity to become a co-borrower or does not want to become the owner of a mortgaged apartment at all, regardless of the reasons. In this case, during the divorce, the second spouse remains the full owner of the property, bearing full responsibility for the mortgage and will not have to share anything.

Also, the marriage contract may indicate other important circumstances in case of divorce, for example:

• the share that will be due to each spouse in the event of divorce;
• the ability to compensate for the mortgaged apartment with other property;
• distribution of mortgage payments;
• the amount of compensation to one of the spouses in the event of his refusal of the share in favor of the other.

Special cases

When there is a mortgage, different factors are taken into account when divorcing spouses. In particular, the time of signing the agreement with the bank and registering ownership of the residential premises plays a role.

The future fate of the property is directly affected by the notarial agreement between husband and wife. Due to the norms of the RF IC, its content has priority over legislative requirements.

The sources of funds for the down payment are also taken into account. An example is the situation with maternity capital described above.

It makes sense to dwell on some cases in more detail. Here is just an incomplete selection.

Mortgage loan taken out before marriage

The situation is quite interesting; the key point in it is the moment of registration of ownership of real estate. When this fact occurred before the creation of the family, the property is considered personal and is not subject to division.

Otherwise, the property is considered joint. And it is almost impossible to prove the opposite in court.

As for payments made during the existence of the marital relationship, they are divided in half upon divorce. The interested party will have to prove that the mortgaged housing was used by the husband and wife for living together.

The apartment was purchased with a military mortgage

One of the forms of solving the housing problems of people in uniform is a military mortgage. Briefly, its essence boils down to the following. The state transfers money annually to a special account of the military personnel within the framework of the savings and investment system.

After 3 years, these funds are used as a down payment on a mortgage loan. When the entire amount is not enough, the spouses have the right to make additional payments with personal funds or take out a bank loan.

For a long time, there was uncertainty as to how a military mortgage was divided during a divorce, namely housing purchased for a serviceman. The Supreme Court put an end to it, explaining that property is joint and general rules apply to it. As for loans, obligations taken outside of the military mortgage are subject to division.

A marriage contract was concluded

This is the best option for spouses to resolve amicably all issues with both the apartment and mortgage payments. People have the right to conclude the agreement in question both before the wedding and after, but before the divorce is finalized.

It allows for a variety of options. One of them is to assign housing to one of the spouses and assign the responsibility for repaying the mortgage to the other.

There is one obligatory condition - the marriage contract is certified by a notary. Likewise, adjustments will be made to it in the future.

In addition, in order to avoid problems with the bank, due to the provisions of Art. 46 of the RF IC he must be notified of the signing, amendment or termination of the transaction.

How is a mortgaged apartment divided during a divorce if there are children?

If there are minor children, the apartment is not divided equally; the share of living space increases in favor of the parent with whom the child remains. Subsequently, based on the size of the share of each spouse, the mortgage loan is divided.

Important. If, during the division of a mortgaged apartment put up for sale, minors remain registered in it, they must be deregistered and registered in another residential premises. Failure to comply with this rule is fraught with close attention from the guardianship authorities; several cases have been recorded when they tried to raise the issue of deprivation of parental rights based on the fact that the child is losing the conditions for normal living.

In cases where the ex-husband and wife were unable to agree and share the mortgaged apartment peacefully, they have to resort to litigation. The court always takes into account the interests of minor family members, especially if the child has a share in the residential premises or is an heir.

In cases where the child has his own share, his part of the apartment is added to the share of the parent with whom the minor remains after the divorce.

It is also necessary to allocate a share of residential premises from an apartment, the owner of which is one of the spouses, but in which a minor is registered. If a child remains with a second spouse who is not entitled to a share in the apartment, if he does not have another home of his own, the share due to the child is allocated to this spouse.

For example, the ex-husband took out a mortgage before marriage, that is, he is the sole owner of the apartment. A child registered in a residential area has the right to a part of the apartment, and if he remains after a divorce from his mother, his share is transferred to the ex-wife of the apartment owner.

If maternity capital is invested

Most often, a maternity certificate is used to improve living conditions, and in most cases, with its help, families pay off part of the mortgage. The combination of a certificate and divorce with the division of an apartment is not a rare problem, and in such cases it is not easy to figure out how to divide the living space, part of which was paid not with joint money, but with a certificate.

In the vast majority of cases, the court recognizes maternity capital as personal property, since it is provided to one person (usually the mother) and can be classified as a gift transaction. In this case, the part of the living space paid for through the certificate is also personal property and is not divided between the spouses.

There are exceptions to this rule. For example, if the mother subsequently abandoned the child or was deprived of parental rights, then the share of the apartment paid for using the certificate is transferred to the father, but only if the child remains to live with him.

What happens to the mortgage if spouses with minor children divorce?

In the event of a divorce between spouses and children , like jointly acquired property, can only be divided by a court.
The mortgaged apartment is divided taking into account the interests of minor children. An apartment with a mortgage in the event of a divorce in a family where there is a child can be divided between spouses only if it consists of several rooms. A one-room apartment with a mortgage cannot be divided during a divorce, since it is impossible to allocate shares in kind. If a husband leaves his wife with a small child in a one-room apartment, he may be paid part of the cost of housing in the form of compensation.

What are the division options if the apartment is mortgaged during a divorce and there is a child:

• If he renounces his share in the apartment, banks will issue the remaining debt on the loan to the ex-wife only if she has enough funds to pay the payments. If the ex-wife cannot pay the loan, then even in the absence of claims for housing, the husband will remain among the co-borrowers and will be forced to pay mortgage payments.
• The one who remains to live with the minor child most often gets a larger share of the living space. The court may divide the mortgage equally or in proportion to the shares in the property. If there are certain circumstances (the mother is on maternity leave, disability or temporary incapacity for work), with the consent of the creditor, the share of the spouse remaining with the child in the monthly payment may be reduced. Child support and mortgage will become the responsibility of the second parent for a time established by the court.
• Mortgage and minor children can be connected using maternity capital. After the birth of their second child, many families use the subsidy they receive to partially repay their mortgage debt or make a down payment. In this case, the parents become obligated to include their children among the owners of the apartment. In the event of a divorce, the share in the apartment of the parent remaining with the children will be increased at the expense of the children's shares. The loan debt will most likely be divided equally between both parents, since they are both responsible for supporting their joint children.
• After a divorce and division of the mortgage, the mother can pay off her part of the debt with maternity capital. But she will not be able to dispose of her part of the apartment until her ex-spouse fully repays the remaining part of the loan.

How to divide an apartment with a mortgage during a divorce in court

If, when dividing the mortgage, the spouses could not agree, then they will have to file a claim for the division of property. The initiator of the legal proceedings must set out in the statement of claim all the circumstances preceding the dispute, namely:

1. When was the disputed apartment purchased?
2. Who is the loan agreement for?
3. Exactly what funds were used to pay off the mortgage.
4. How does the applicant request to divide the mortgaged apartment?

Required documents

For division in court, you will need to submit the following documents:

• establishing title to the disputed residential premises;
• a document confirming that the apartment is encumbered with a mortgage (extract from the Unified State Register of Real Estate with a corresponding note);
• a mortgage lending agreement, from which you can determine the degree of participation of each spouse in the mortgage transaction (who is the borrower, who is the co-borrower);
• a document from the bank indicating the balance of the loan;
• copies of passports of the parties to the process;
• divorce certificate;
• documentary evidence in the case and information about witnesses who need to be called to court;
• receipt of payment of state duty.

As evidence, the plaintiff must attach documents that confirm the sources of loan payments:

• statements from bank accounts from which loan payments were made;
• gift agreement, if funds donated to one of the parties were used to pay off the mortgage;
• documents on entry into inheritance, if inherited funds or money received from the sale of inherited property were used;
• other documents that can prove that payments on the mortgage were made by one of the parties.

Confirmation may also include testimony that the mortgage was paid from the general family budget or that only one of the spouses participated in repaying the loan with personal funds.

State duty

The amount of the state duty is calculated based on the cost of the claim, which, in turn, is calculated depending on what share in the mortgaged apartment the plaintiff claims.

For example, if the full cost of the mortgage is equal to 3 million rubles, and the plaintiff wants to get half of the mortgaged apartment in court, then the amount of the claim will be one and a half million and the state duty must be paid based on this figure.

Table 1. Amount of state duty when filing a claim for division of living space after divorce

Cost of claim, thousand rubles	Amount of state duty, rubles
20 — 100	800 plus 3% of the amount over 20,000 rubles
100 — 200	3,200 plus 2% of the amount over 100,000 rubles
200 — 1 000	5,200 plus 1% of the amount over 200,000 rubles
Over 1,000	13,200 plus 0.5% of the amount over 1 million rubles

When making a verdict, the court will necessarily take into account the requirements of not only the former spouses, but also the credit institution, as a third party to the process. Since the bank, until the mortgage is fully repaid, is not only the lender, but also the mortgagee of the real estate, its consent is required for the possible division of debt obligations.

Section order

Often it is the bank’s position that is the stumbling block when dividing a mortgage. Credit organizations do not welcome any change in the loan agreement, as they risk problems with loan repayment, therefore, even a voluntary agreement of former spouses on the division of a mortgage loan cannot be a guarantee for concluding a new agreement.

Experienced lawyers in cases of division of a mortgaged apartment advise first filing a claim for the division of jointly acquired property, without affecting joint debts on the mortgage; in this case, the court is guided by the RF IC and the creditor’s consent to the division of property is not required.

The procedure looks like this:

1. One of the spouses files a claim for division of property without affecting debt obligations to the bank.
2. After the court decision on division, the parties apply to Rosreestr to re-register ownership based on the court verdict. Entries are made in the Unified State Register of Real Estate about the shares of the apartment belonging to each party.
3. The next step will be to contact a credit institution with an application to reissue the loan based on a decision of the judicial authorities and conclude separate agreements with each of the owners in accordance with its share. In such cases, when the division has already occurred, there is no point in the bank objecting.
4. Renewal of the mortgage loan agreement and conclusion of two separate agreements.

The RF IC specifies equal rights of spouses to real estate in the event of their divorce. But in court proceedings, special circumstances may be identified that could affect the division in unequal shares or the transfer of the entire apartment into the ownership of one of the spouses.

Options for solving this problem

Spouses who have decided to divorce and are co-borrowers on a mortgage obligation must:

1. Conduct mortgage payments as usual . without changing the conditions for the return of funds and ownership of the premises. In this case, the spouses, after informing the bank, make payments according to the previous rules;
2. Apply for the transfer of property rights to only one spouse. In this case, it is necessary to apply to the banking organization with an application to transfer the debt to one of the spouses. If the application is satisfied, the bank draws up an additional agreement, which specifies the rights and obligations of the sole borrower, and also establishes a new frequency of payments and their amount;
3. Divide the ownership rights to real estate in court . as well as obligations to repay mortgage debt. To do this, you should file a civil lawsuit in court asking for the division of joint property. During the hearing, the court, based on the ratio of the spouses’ shares in property, will establish the procedure for subsequent payment of mortgage payments;
4. Pay off your mortgage early and then sell the property. Having chosen this way of resolving a controversial situation, please note that until the debt is fully repaid, the sale of property is unacceptable, since the property has the status of encumbered;
5. Refuse to fulfill obligations and wait for the property to be sold at auction by a banking organization. In this case, the encumbered apartment will be sold by the banking organization independently. The money received from the sale of real estate will be counted towards the repayment of the mortgage.

Regardless of the decision made, spouses must inform the banking organization about the divorce.

Notify the bank about the divorce and what determines the division of the mortgage

If you decide to get a divorce and you have a mortgage, then you need to start by informing the bank where you took out the loan.
The credit institution itself will offer you options for dividing the apartment and mortgage debt. The spouses no longer want to live under the same roof, but the roof itself cannot be divided. It's all about the nuances here.

• When did you purchase the property: before the wedding or after?
• Was the marriage officially concluded, or are we talking about cohabitation without paperwork?
• Was there a prenuptial agreement?
• Who is the loan issued to?

This issue usually does not require going to court. You need to go to the bank as quickly as possible and decide what will happen to the apartment, who will get it and who will pay the payments. But in judicial practice there are cases when a spouse says that they also want a share in the apartment, although they have not paid a single payment. We tried to answer this in this article.

The mortgage was taken out before marriage

When real estate is acquired before marriage, the family code defines it as personal property. It cannot be divided. But there are nuances. When common money was invested in this property, or the second party repaired the property and contributed to increasing its market value, its interests will be taken into account by the court. This means that real estate acquired before marriage can be divided in court.

Reader's question

“I took out a mortgage on an apartment while I was unmarried. After that I got married, the marriage lasted 5 years. They filed for divorce. Now the husband demands a share in the apartment. Is this legal?

Lawyer's answer

"Yes, it is quite. All income of the husband and wife is considered joint. Even if the spouse did not work, and the spouse made payments on the loan, her income is also considered common: this is the family budget. This means that the husband can claim the property as a co-owner.”

Theoretically this is true, but in practice the court will definitely find out all the circumstances.

1. Was there a good reason why the husband did not work?
2. Did the spouse really pay the contributions? They look at the accounts.
3. What housework did your spouse do? Maybe he did a major overhaul with his own hands?

Depending on the circumstances, the ex-husband may receive a share in the apartment, or compensation for his contribution. If he receives a share, the loan payments will be calculated in accordance with his part. The husband received half and will pay half of the monthly payments.

If the mortgage is issued for two spouses

There are often situations when spouses bought an apartment with a mortgage for two and are now getting divorced . What are the options?

1. Does one spouse wish to give up his share in favor of the other with or without additional payment?
2. Will the bank allow the division of real estate and payments on it? The apartment is actually owned by the bank, any manipulations occur with its consent. Payments can be divided between spouses, so that everyone pays their part for themselves.
3. The property is sold after paying off the entire cost of the debt. The funds are divided between the spouses, in accordance with what shares will be assigned.

If one of the spouses refuses the apartment, it is completely transferred to the use of the other party. All payments are made by the owner. This can be done free of charge, or taking into account compensation for your share and payments made. The amount will be determined by the court.

An apartment taken on a mortgage can be divided between spouses only after full payment of the debt to the bank . Then the spouses have the right to dispose of their shares as they wish.

The spouse can pay for his share, or the apartment can be sold as a whole and the funds divided. You cannot sell an apartment for which the mortgage has not been paid . Only the bank itself can do this.

Be sure to read it! Civil claim in criminal proceedings: implementation of the rights of the plaintiff and defendant in 2020

If the mortgage is issued during marriage to one of the spouses

How to divide an apartment in a mortgage during a divorce if it is registered in the name of one of the parties? The spouse who is not a co-borrower is not required to pay contributions, but has the right to the apartment.

The court makes a decision based on the circumstances of the case.

• Do the spouses have children?
• Who made the payments?
• Were repairs carried out and at whose expense?

These and other circumstances influence the judge's verdict. If the owner paid the contributions on his own, his legal spouse can also count on getting a share. Common children who are registered at the place of registration in this property will also receive a share as direct heirs. Accordingly, it can be divided into three parts. And the payments will have to be paid in half.

If one of the spouses made payments or made repairs, the court may order the owner to pay compensation. But this fact needs to be proven. To do this, they bring witnesses, checks, and bank card statements to track payments.

In marriage, husband and wife share everything equally: this is enshrined in law. Let only one person appear in the contract, this is a formality. All acquired property is considered common. Therefore, the court will divide the apartment into parts. The only question is what these parts will be.

When does one of the spouses want to keep the apartment for themselves?

If the husband pays his wife the value of her share, and she agrees to this voluntarily, the property completely becomes his property. So is mortgage debt. This can be done through negotiations. Also, if the marriage contract prescribes such an outcome in the event of divorce, you can do without negotiations.

Draw up a marriage contract

Lawyers strongly advise thinking through in advance the situation in which you will have to share an apartment. All conditions specified in the marriage contract will be fulfilled, provided that the husband and wife have signed it. If it states that the apartment completely belongs to the husband, it will be useless for the wife to go to court. Here the court is guided not by the law, but by the marriage contract. The contract must be signed by a notary.

Refuse to pay your mortgage to the bank

Can one of the parties refuse obligations to the bank? If during a divorce there is a mortgage on the apartment, the defendant often states that he is not going to pay for a place where he no longer lives. Then the contract is completely re-signed to the other party. All mortgage payments fall on the shoulders of the other party. refuses to make payments, he also renounces his claims to own the property .

If both parties declare that they will not pay for this apartment, it is sold, as a rule, for next to nothing. The amount is deliberately reduced in order to quickly sell the property in the shortest possible time. The amount is set to be enough to cover the debt to the bank. The spouses are deprived of their property.

Changing the terms of the loan agreement

There are several ways to remove a co-borrower

1. Voluntarily, when contacting a banking institution with a corresponding application. In this case, the main borrower needs to find an additional second co-borrower instead of the retiring one. The retiring spouse, in turn, must express in writing his consent to withdraw from the obligation; this consent must be certified by a notary. If the banking organization agrees, as previously indicated, an additional agreement will be drawn up that will meet the new conditions;
2. The issue of distribution of obligations can be resolved without the participation of a credit institution. To do this, you must go to court. After the court’s decision has been made and it has entered into legal force, you should apply to the Russian Register for the issuance of a new certificate of ownership. The basis for issuing a new document will be a court decision. Next, with a court decision and a new certificate, you should contact the bank with an application to change the terms of the mortgage agreement.

Re-registration of rights to real estate

Since ownership of the mortgaged property is registered until the encumbered loan is fully repaid, the co-borrower spouses cannot independently implement the procedure for re-registration of rights to the property.

In order to re-register property rights, the bank's consent is required . In this case, the bank will issue an agreement in which, instead of the previous co-borrowers, the data of only one spouse (the main borrower) will be indicated. This document will be the basis for the registration authority to re-register ownership and issue a corresponding new certificate of ownership. In this case, the property will continue to be under encumbrance.

Another option for re-registration of property is a court decision . For the registration authority, it is also the basis for entering new data about the person recognized as the owner.

Arbitrage practice

From the numerous judicial practices of dividing mortgaged apartments, it is clear that most often the division of mortgage debt occurs simultaneously with the determination of the share of property of each spouse. As a rule, real estate (house or apartment) is divided equally.

If a married couple has minor children, then the spouse with whom the child remains receives a larger share of the property, most often depending on the number of children (can be two-thirds or more).

For example, if the owner is a husband, but the family has a minor child who remains with his mother, then in this case the property will be divided as follows: half of the apartment goes to the wife and the minor child living with her, and the second half remains with the ex-spouse.

There are often options in which one of the spouses renounces his share in exchange for monetary compensation. In such cases, a court decision follows, which determines the amount of compensation and the procedure for its payment.

Applications

The statement of claim must be accompanied by copies of all documents mentioned in the claim itself and confirming the arguments specified in the document.

A standard set will look something like this:

1. A copy of the claim for the defendant and the third party.
2. Copy of the passport.
3. A copy of marriage and divorce certificates.
4. Copies of documents about children.
5. Loan agreement (copy).
6. On the right about the amount of debt.
7. Documents for property purchased on credit (certificate of registration of ownership).
8. Receipt for payment of state duty.

Additionally, depending on the circumstances of a particular case, the following documents may be submitted:

• certificate of place of residence of children and spouses;
• information about the plaintiff’s income (to justify the possibility or impossibility of repaying the loan);
• marriage contract (if any);
• documents on other property subject to division.

The main difficulties that arise when dividing an apartment

Any division of property has its own difficulties, especially if this property is taken on credit and the debt is not fully repaid, here the situation becomes more complicated many times over. The most difficult situations in this section include the following:

1. One of the former spouses categorically refuses to bear responsibility for the mortgage, in which case all credit obligations are assigned to the second owner.
2. The bank does not agree to the sale of the mortgaged property and the former spouses are forced to jointly repay the loan even after the divorce without the possibility of dividing the apartment until it is paid in full.
3. In the event of a noisy and scandalous divorce, both spouses refuse to pay mortgage payments, the debt grows, in which case the credit institution may even take away the apartment that is pledged.

There is one way out of all these situations - to protect your rights through the court.

As you can see, a divorce and division of property complicated by an outstanding mortgage loan has many different nuances. There are many options, and only a qualified lawyer can understand which one is suitable for a specific family history. You should not try to understand all the intricacies of family law on your own; this is fraught with loss of time, nerves, and, sometimes, large financial losses.

By contacting a lawyer, at least for an initial free consultation, you can avoid many of the pitfalls of the complex section of mortgage real estate.

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What to think about before signing a mortgage agreement in marriage

No matter how cloudless the life of a married couple is, 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. The most important mistake that co-borrowers of a mortgage loan make after a divorce is suspending 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 a 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 go through this difficult path of property division with the reliable support of an experienced lawyer.

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How to correctly write a settlement agreement on the division of a mortgaged apartment?

Content

An agreement between spouses on the division of a mortgage and/or a mortgage loan is not a mere formality. This document must contain essential terms that both spouses agree to - co-owners of the mortgaged apartment and debtors to the bank. Who will own and use the mortgaged apartment, by whom and in what order will the loan be repaid, how do the spouses intend to dispose of the mortgaged apartment, and other provisions.

To avoid mistakes and not to include provisions in the document that would be contrary to the law, seek professional help from a lawyer. This way you will save yourself from the need to delve into complex aspects of the law and protect yourself from possible abuses and violations.

Form

The agreement must be in writing . In addition, the document must be notarized - after this it acquires legal force.

The following information is included in the agreement:

• Place and date of conclusion;
• Details of the spouses (full name, date of birth, place of residence, passport details);
• Marriage or divorce certificate data;
• Data about the apartment or other real estate purchased with a mortgage (location, floor, type of house, area, number of rooms);
• Data of title documents (if the apartment is pledged to the bank - certificate of ownership or extracts from the Unified State Register, if not yet - data of the loan agreement, purchase and sale agreement) and cadastral documents for the apartment;
• The procedure and method for dividing property and property obligations between spouses;
• Liability for violation of the terms of the agreement;
• Dispute Resolution;
• Date of signing the document;
• Signatures of the spouses;
• Signature and certification record of a notary.

Sample agreement on the division of an apartment in a mortgage 2020

Registration procedure

The agreement prepared with the help of a lawyer must be submitted to the notary’s office, attaching the following documents to it:

• passports of spouses;
• cadastral and title documents for the apartment;
• loan agreement.

The notary examines the documents, checks the legality of the terms of the transaction and then certifies the agreement.