Contents of the claim
- Personal information about both parties to the lawsuit (full name, place of residence, contact information, etc.).
- The name and details of the authority to which the application will be submitted.
- Complete information about the credit institution with which the loan agreement was signed.
- Cost of the claim. The price includes the amount to be divided according to the plaintiff.
- The legal status of the monetary debt and a description of the circumstances that caused its formation. The plaintiff must indicate in the application the dates of registration of marriage and divorce, signing of the loan agreement (its details). They also describe the purpose of using the money and the amount of the loan.
- Contents (name) of the document: “Claim for division of debt obligations.”
- The application includes documentation that confirms the joint disbursement of loan funds.
- The plaintiff informs about his requirements and the scheme for dividing the debt, indicates the motivation (why a certain division order and a specific method).
- Information about the balance of loan funds, the algorithm for repaying the entire amount and the share paid to the bank. The applicant must indicate which of the two parties repaid the loan and in what amount.
- A correctly drafted statement of claim contains references to specific articles of the law that describe a certain sequence of division of loan funds. Information about judicial practice in similar processes (if any) would be useful.
- The final part of the claim must contain the signature of the applicant, the date of its filing, and a list of additional documentation.
How to divide a mortgaged apartment?
In accordance with Article 38 of the RF IC, property acquired during marriage can be divided by spouses by mutual consent. If a dispute arises between them regarding the composition of the property and the shares due, the final decision is made by the court.
When dividing an apartment purchased with borrowed funds, the mortgage loan is divided at the same time. The following options for resolving a dispute between spouses are possible.
Sale of an apartment and division of proceeds
Spouses sell residential real estate if the bank where the mortgage was issued has given its consent. The proceeds are used to repay the loan. The spouses divide the remaining money equally or agree on shares taking into account the interests of the children.
Important! If the bank does not give its consent to the sale of the apartment, the division is carried out in court. The credit organization is involved by the court as a third party.
Division of property and credit between spouses
Spouses often act as co-borrowers on a mortgage loan. In this regard, they bear equal obligations to the bank. If the apartment is registered in the name of only one of them, during the division a decision is made to transfer the share in ownership to the second spouse. The loan agreement is also reissued separately for the husband and wife.
Re-registration of an apartment and mortgage for one spouse with payment of compensation to the other
If one of the spouses intends to retain the right to housing for himself, he may offer to re-register the property in his own name and pay monetary compensation to the husband or wife. With the consent of the bank, the loan agreement is drawn up for one borrower and from that moment he is independently responsible for debt obligations.
Application form
The statement must be drawn up in an official style of speech, without “water”, with a detailed statement of the essence of the problem. This is an important procedural document that must comply with civil procedural legislation, namely Articles 131-132 of the Code of Civil Procedure of the Russian Federation. Emotionally charged statements and obscene speech should be avoided. The claim must be filed accurately, without corrections, errors or similar unacceptable defects.
The plaintiff submits an application in a certain number of copies (one for each party participating in the trial). You also need to provide a list of application documents (copies). The court will only consider a claim that fully complies with certain sections of the civil legal code. Documentation with irregularities in execution is returned to the applicant for revision (a specific deadline is assigned).
Before filing a property claim, it is best to consult with a qualified family/civil law attorney. Practice shows that the majority of claims are returned by the court office for correction. A person who is completely unfamiliar with the nuances of procedural law is capable of making a serious mistake, which can lead to negative results in a dispute over a property debt.
In the process of preparing a claim, all the features of family relationships must be taken into account, and all the conditions and circumstances of the case are carefully considered and studied.
Attached documentation
In addition to the statement of claim, you must provide additional documents. Sample list of documentation:
- Copy of the passport.
- Original receipt for payment of state duty.
- Photocopies of the claim for each participant in the trial.
- Photocopies of the marriage certificate and/or documents that confirm that when the monetary debt was created, the parties were legally married and living together.
- Copies of children's birth certificates.
- A photocopy of the divorce certificate, documents confirming the termination of the marital relationship or cohabitation.
- To confirm the waste of material resources by one or both parties, you must provide copies of checks and receipts.
- Power of attorney of the plaintiff's representative.
- Copies of loan agreements, certificates, bank statements confirming the debt.
The above list of additional documents is approximate. When considering each individual property claim in detail, the court takes into account the individual aspects of the case. To collect a complete set of documentation for a specific episode, it is better to seek advice from a qualified lawyer. He will study in detail the features, circumstances, evidence of the case, and then provide professional assistance.
Government duty
Important: Payment of the state fee is considered a mandatory condition for the acceptance of the claim by the judicial authorities. The plaintiff is also required to provide a receipt for payment for the service. The amount of state duty on property debt depends on the value of the claim (the share claimed by the applicant). The state duty includes a minimum amount fixed by law of 400 rubles plus an interest rate (4%). The higher the price of the claim itself, the lower the interest rate and the higher the fixed amount. The maximum amount of state duty is 60 thousand rubles.
Claimants often make the same mistake when calculating the state fee by reducing the cost of the claim by the balance of the debt. This approach is incorrect according to Letter of the Ministry of Finance of the Russian Federation No. 03-05-06-03/05. You can correctly calculate the amount of the claim, as well as obtain payment details from the court office.
An example of calculating the state duty: Plaintiff Loskutnikova A. filed a claim in court for the division of loan debts with the defendant, ex-husband - Ignatenko V. Loskutnikova A. indicated that in the last year of marriage, loans were issued for the purchase of equipment, the amount of which was 12 thousand rubles. The plaintiff provided documents confirming the fact that the loan was received for family needs. Thus, the cost of the claim is 6,000 rubles (½ share of the debt for each). The state duty was calculated as follows: Cost of claim (6000) multiplied by 4% = 240 rubles. The minimum amount is 400 rubles. As a result, you need to pay 400 rubles to file a claim.
You can pay the state mandatory fee through the court office, post office or bank office. When payment for a service is made through an online banking service, confirmation of the transaction must first be obtained from the bank. It is necessary to print out the receipt and take it to the bank for certification by an authorized employee.
According to the law, the amount of the state fee may be reduced or the plaintiff may be entitled to payment in installments. This is possible when the applicant is not able to pay the entire amount at once for a number of valid reasons (for example, dismissal, illness, difficult financial situation). Such concessions must be documented.
Payment to the budget for consideration of the claim by the court
The Tax Code of the Russian Federation regulates the appeal of citizens to court when considering the division of an apartment during a divorce. The primary action is to pay the state fee, which accompanies almost any application of citizens to court, or other participation of the state in public processes.
Before you go to pay, you need to calculate the fee. It consists of the following components:
- the property considered in the statement of claim (appraised apartment with a mortgage);
- amount owed at the time of application.
In order to have a clearer idea of what we will have to deal with, we will consider a specific example of citizens filing a claim for the division of an apartment with a mortgage and other property. Upon divorce, spouses divide property acquired as a result of cohabitation, including debt obligations:
- a car worth one million two hundred thousand rubles;
- non-residential premises valued at two million rubles;
- mortgage debt for an apartment in the amount of three hundred thousand rubles.
As a result, the property in question and the debts in the statement of claim are valued at a total of two and a half million rubles. Firstly, it is worth paying attention to the nuance - cases with a total amount of up to a million and exceeding it are considered. In this case, half a percent of the assessment results exceeding a million is taken. Secondly, the rate for the statement of claim is thirteen thousand two hundred rubles.
The total amount is made up of the rate and interest. In our case, this is thirteen thousand two hundred rubles and seven thousand five hundred rubles as a percentage of the amount of the claim. The plaintiff will pay a state fee in the amount of twenty thousand seven hundred rubles. Only after this the court will consider the application. After paying the necessary fees and filling out the application, you can once again review the necessary additional documents that the court will most likely request.
Deadlines for submitting an application, where it is accepted and considered
Cases in this category have a certain statute of limitations. An application for the legal division of property obligations can be submitted within three years. Court proceedings on property issues are conducted at the defendant’s place of residence.
If the claim contains demands for the division of real estate between former spouses (for example, the division of living space purchased on credit), then the document is submitted at its location. The price of the claim also determines which court it will be filed in - city or world. If the cost of the claim is less than 50 thousand rubles, then the case is under the jurisdiction of the magistrate court. If the amount exceeds 50,000 rubles, the case is transferred to the city court.
To apply you can:
- Contact the court office.
- Send the claim by registered mail.
- Submit the claim through a proxy (this procedure requires a power of attorney approved by a notary).
The countdown for going to court begins not from the moment of dissolution of the marriage contract, but at the moment when one of the spouses learns of a violation of his property rights. Such violations may include, for example, failure to pay a debt by one of the spouses or the imposition of any fines on the amount of the debt.
The judicial authorities are reviewing the application and additional documentation. If everything is drawn up according to all the rules, then the claim is taken up, the authorities prepare the case for hearing. If violations are found in the application, the case is “frozen” and a ruling with explanations is issued. A deadline is set for the removal of all violations.
General provisions on the division of debts
From a legal point of view, the term “property” in relation to family law in a broad sense includes:
- asset – directly movable and immovable property, as well as property rights (for example, the right to demand payment for services rendered or repayment of a debt);
- liability – property obligations or debts.
Taking this into account, the basic rule for the division of debts looks quite logical: debts are distributed between the ex-husband and wife in proportion to their shares in the common property. Most often they are divided equally.
The key issue in the division of debt obligations of spouses is the determination of their shares in the common property. As a general rule, the shares of husband and wife are assumed to be equal.
Deviation from this principle is possible if:
- the spouses provided otherwise in the contract;
- the court, in the interests of spouses or children, considered it necessary to distribute the shares differently;
- one of the spouses did not have a regular income for an unjustifiable reason and through his actions contributed to the waste of common property.
Thus, if after a divorce the jointly acquired property was divided in half between the spouses, then all debts under agreements (no matter with the bank or with a neighbor) are divided 50/50. If the spouse’s share in the property after the divorce was 1/3, and the spouse’s 2/3, then the former common debt was distributed in exactly the same shares.
There are 2 ways to divide family debt obligations:
- by means of a contract;
- by filing a lawsuit.
The contractual method of dividing debts, as well as other features of the procedure for dividing obligations, are described in detail in a separate publication.
Counterclaim
Often a situation arises when, during a divorce, one of the parties files a statement of claim, but does not take into account the fact that the property was purchased with credit funds from the other party. Often, in such cases, the debt is partially repaid. The defendant has to file a counterclaim. The judicial authorities accept such or a similar application for consideration only when it meets several conditions:
- When the judicial authority fully or partially satisfies the claims of the first applicant without considering the counter document, then this decision will provoke an infringement of the rights of the defendant during the trial.
- There is a cause-and-effect relationship between the claims. Documents are reviewed during one trial, which makes it possible to effectively resolve a specific problem between opponents.
Can the bank require early repayment?
Unfortunately it can. Moreover, this is exactly what he is guaranteed to do if this is stipulated in the loan agreement.
And this will be an absolutely legal step (Federal Law No. 102-FZ, 2020 edition).
The bank will do the same if there was a large debt at the time of the divorce..
So it turns out that the spouses find themselves in a trap. On the one hand, the issue of payments cannot be resolved through the head of the credit committee.
On the other hand, a requirement for early repayment may follow. It is necessary to decide what to do with the mortgage during a divorce, and for this you need to clearly understand how the mortgage is divided during a divorce.
When is a claim filed?
A counterclaim can be filed:
- At any time during the trial.
- At the very beginning of the process.
- After receiving a copy of the second party's claim.
When the defendant wants the judicial authorities to consider his claim quickly and render its verdict, it is recommended to provide counter documentation before the start of the proceedings or immediately after the plaintiff’s claims are completed. In this situation, the court will consider a specific case, taking into account the arguments of both parties.
If the defendant is not ready for the hearing, he needs to collect all the documents or perform other activities, then lawyers advise filing a property claim in the middle of the trial. The defendant has a chance to petition to postpone the hearing to another time (there is an opportunity to collect the necessary documents and evidence).
