In the event of a divorce, who will get the living space purchased with a military mortgage?

When wondering whether a military mortgage is divided in a divorce, you must first consider all the nuances that affect this situation. For example, the method of repaying the loan, the presence of repairs or redevelopment, the condition of the serviceman (in service or retired), the presence of common children, etc. are important. In most cases, the issue can only be resolved through court. Before this, you will have to study judicial practice and the position of the spouses at the time of filing the claim. It’s worth starting by finding out the possibility of dividing property.

Is it possible to divide the living space?

According to the law (), any of the spouses can demand their share in the living space acquired at the time of marriage. But, despite the direct indication in the law, the division of an apartment under a military mortgage during a divorce is at odds with the usual procedure (if the loan were issued by a civilian).

Some of these differences are referred to. And it says that funds provided for certain purposes are not divided among family members. Considering that financing from the NIS is used exclusively for the purchase of residential space, they are targeted (). Therefore, dividing an apartment using a military mortgage is legal if:

1. In the process of settlement with the financial organization, part of the family savings received not from state funds was invested;
2. The wife's personal money was used to pay for the loan (a gift from friends or colleagues, an inheritance, etc.);
3. At the expense of the party claiming ownership rights, improvements were made to living conditions;
4. The spouse with whom the agreement was made to provide the money resigned, after which the loan was repaid jointly.

In fact, you can get yours after closing the loan. Until this moment, the object is collateral for the loan. If the above conditions are met, an apartment on a military mortgage can be divided during a divorce, but the shares are determined in proportion to the funds invested in it.

How to divide an apartment with a military mortgage

Divorce with a military mortgage is complicated by the fact that state support for Russian military personnel is targeted funding. That is, borrowed funds are provided to a specific person and do not relate to jointly acquired property. Thus, property rights cannot be divided in equal shares as with a regular mortgage in this case.

Circumstances

The amount of targeted financing for a military mortgage is limited to 2.4 million rubles. It is believed that this amount should be enough not only for the down payment, but also to service the loan for the entire term. In practice, it turns out that this amount is not enough. The reason is the high price of real estate, the need to pay insurance and bank commissions. All this was not taken into account when the relevant law was adopted. Therefore, in some cases, the borrower has to contribute part of his own funds.

In this case, the spouse of a serviceman, in accordance with Art. 34 of the Family Code of Russia has the right to compensation for funds spent from the family budget. But this is not the entire amount of payments, but only half of it. In this case, documentary evidence of spending money from the family budget is required. These could be checks, bank statements, contracts with an insurance company, etc.

Also, the right to claim compensation for real estate arises if, during the process of owning real estate, a spouse spent money from the family budget or their labor on redevelopment, major repairs or reconstruction of housing and other actions that led to an increase in its market value. This is regulated by Art. 37 of the Family Code of the Russian Federation. In this case, confirmation in the form of documents will also be required: checks, bills, contracts, permission to make changes to the design of the object from the BTI and the bank.

In any case, if a serviceman gets divorced, housing can be divided either through a peaceful agreement or through the court.

When it is impossible to share housing

Situations when such a measure is not allowed follow from the rules listed above. It turns out that the procedure is impossible if:

• the loan has not yet been repaid;
• the second spouse did not invest money;
• the loan was paid only from NIS funds;
• The soldier is still on duty.

It will not be possible to divide housing in other cases provided for by law. To complete the picture, it is worth taking into account the nuances of this process, which specifically highlight lending to military personnel.

Is a military mortgage divided in a divorce?

A very pressing question today is whether a military mortgage is subject to division in a divorce. Since housing under a military mortgage is purchased by a military personnel, but at the same time remains the property of the bank, it cannot be divided during a divorce.

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If a serviceman violates the terms of the loan and mortgage agreement, the Ministry of Defense has the right to insist that the balance of the debt be paid from the borrower’s own funds.

Features of the section and differences between such a mortgage and a regular one

It is important to know such nuances and be able to operate with them. In order to correctly divide an apartment during a divorce on a military mortgage, you need to understand what differences exist in this type of lending. These are the features of the procedure.

1. Considering that the state allocates preferential finance for the purchase of square meters, until the loan is repaid, they are pledged not only to the bank (), but also to government agencies (). This means that it is impossible to divide them without their permission.
2. In the event of a divorce, you will have to notify the financial institution and Rosvoenipoteka about the decision made. Any subsequent action with the object of pledge is carried out with their consent.
3. It is not allowed to have a co-borrower under a loan agreement - money is issued only to a military personnel. Therefore, in the event of dividing an apartment purchased with a military mortgage, you will have to go to court to defend your rights to the property.
4. If the housing has been divided before all loan payments have been made, the serviceman has the right to file a claim for division of loan obligations in part of the remaining amount.

Compared to a regular loan for the purchase of living space, its military version involves more restrictions. This is due to the provision of financial benefits by the state. And the party to whom the loan agreement is drawn up has more rights.

Possibility of dividing an apartment obtained under a military mortgage

Based on Art. 256 of the Civil Code of the Russian Federation and Art. 34 part 1 of the Russian IC, the property of spouses acquired during marriage is divided in half upon divorce. If housing was purchased with a mortgage, then when dividing the property, the court will recognize the unpaid part of the loan as a joint debt and will also divide it in half.

Art. 34 part 2 of the Russian Investigative Committee indicates that real estate acquired using designated funds is not joint property and upon divorce it cannot be divided between spouses.

Military mortgages are funds for a specific purpose. An apartment purchased under this program remains the serviceman’s property even after a divorce.

What can a spouse count on?

By law, this party to the dispute has equal rights with the husband, but this rule applies to standard marital unions. When it comes to marrying a military person, slightly different rules apply. If during a divorce the military mortgage is shared with the wife, several options for the development of the situation are allowed:

• the apartment remains only for the husband or wife (usually a military man);
• the second spouse can pay compensation to the first for real estate;
• the housing is re-registered as shared ownership (if the loan has been repaid);
• the cost of living space is taken into account when calculating the price of the remaining property.

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All this is possible with a voluntary solution to the problem. When friction arises, it is worth considering the rights of each party. Former spouses have the rights:

• division of property that is recognized as joint;
• living in the same area with her ex-husband.

The second situation is allowed if the spouse is looking for her own housing after a divorce. If she does not have a share in the object of the dispute, the serviceman can write her out when the divorce procedure is completed. The remaining rights of a wife under a military mortgage during a divorce are similar to those of the parties in a regular union (where the husband is a civilian). Although there are nuances in situations where the loan has already been repaid.

Military mortgage during divorce: does the wife have the right to it?

The experience of litigation shows that the court usually does not satisfy the claims of a military spouse to half of the housing purchased on a military mortgage during a divorce. Thus, dividing a military mortgage during a divorce is practically impossible. The serviceman for whom the mortgage loan agreement was issued is the sole owner of the home. Moreover, ownership rights arise only when the mortgage is fully repaid.

Many people are concerned about the question of whether spouses of military personnel have rights to a share of the military mortgage during a divorce? That is, does a military spouse have a chance to receive part of the real estate in a divorce? Yes it is possible.

The fact is that the legislation has nuances that make it possible to start a property dispute regarding real estate acquired under a military mortgage and receive at least monetary compensation equal to the personal or family funds invested in this housing.

For this purpose, you should apply to the court with a statement of claim, and also attach all documents confirming that you invested money in the design or improvement of housing purchased with a military mortgage. For example, these could be receipts for monthly loan payments, receipts for the purchase of construction and finishing materials, receipts for the transfer of money, etc. Also, the court's decision may be influenced by the presence of children in the family, their number, the duration of the marriage relationship, the loan repayment period, and so on.

• In some cases, having studied all the circumstances of the case and the evidence base, the court takes the side of the husband/wife of the serviceman . If the proposed evidence seems convincing to the court, then the likelihood of it making a positive decision is quite high.
• Until the housing loan is fully repaid, there is a double burden (on the part of the bank and Rosvoentekhnika of the Ministry of Defense of the Russian Federation) . That is why you can go to court with a claim for the division of real estate acquired under the NIS no earlier than the mortgage debt has been fully paid.
• In the event that you did not have to invest your own (personal or family) funds to purchase housing with a mortgage, neither the spouse of a military personnel nor other relatives have the right to claim a share of the real estate or monetary compensation . In other words, claims are possible only within the framework of family or personal funds invested in the common cause.
• During the trial, the clauses of the marriage contract (if one was concluded) relating to property rights and division of property during divorce will be taken into account.

Thus, military mortgage is a government program aimed at providing military personnel with housing and protecting their property rights from the claims of third parties. This position of the law is fully justified by the complexity and danger associated with service in the Armed Forces of the Russian Federation.

How to divide living space after repaying the loan

This option is the simplest of all. But when trying to determine whether an apartment is divided under a military mortgage, you must first take into account whether the borrower has paid off his debt obligations. If the calculation is made, you must:

• remove the encumbrance;
• register rights;
• divide the property into shares.

When you have a young child, you can register the apartment in his name by signing a gift agreement. The wife will remain in this living space with the baby, paying compensation to her husband. Its size is determined based on the state benefit, through which this housing was purchased.

Or an apartment with a military mortgage after a divorce is divided according to a previously drawn up agreement between family members. If a controversial situation arises or you need to determine the size of shares, taking into account the invested finances of each party, you will have to order an examination and go to court. However, even this case is simpler than division at the time of loan repayment.

Divorce of a military family and division of mortgage housing

Then the owner of the apartment can demand compensation from the ex-wife or ex-husband for the costs of purchasing a home. When going to court, a situation may arise when, when drawing up documents for a mortgage, a marriage contract was attached among the documents, in which the property of the home was registered as the property of the borrower. In this case, ex-wives of military personnel will not be able to obtain housing through the courts.

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Division of living space when it is collateral for a loan

While the property remains pledged, the apartment can only be divided under a military mortgage through payment of compensation. The spouse will not own the home, but will return the money invested in its purchase or renovation. Do not forget about the presence of a third party - the bank that financed the purchase. Any actions with property are permitted with his permission.

When it comes to court proceedings, the creditor will be involved in the case as a third party. Although many financial organizations have already specified in the contract how the apartment is divided under a military mortgage. If such instructions are available, simply follow them to avoid difficulties.

The serviceman will pay off the remaining debt when the marriage is dissolved. But he can apply to the court for the division of this amount with his ex-wife. Compensation will also be required in a situation where the lender requires you to deposit the remaining funds before the end of the loan term. Additional difficulties arise if you have young children and pay part of the loan. capital.

Arbitrage practice

In order for a claim filed for a share in an apartment purchased under a military mortgage to be effective, the ex-spouse, who believes that the property was purchased with her participation, must carefully document and present to the court as evidence all financial documents indicating that as She participated in additional payments or repayment of loan installments with her own funds (belonging to her personally, received by inheritance, as a gift, won in the lottery).

Or prove that funds that are the joint property of the spouses were used as additional payment. This is especially true for women who are military wives, during the period of payment of additional payment (down payment), who are on maternity leave and child care up to 3 years.

During this period of time, women are unable to work and usually do not have their own source of income. But this does not mean that they lose the right to claim part of the apartment (payment of compensation). The money received by the husband as allowance is jointly acquired property and is subject to division equally.

Difficulties with collecting evidence, the intricacies of the legal intricacies of military, civil, family and banking law force people to turn to professional lawyers (advocates) to represent their interests in court.

In most cases, the courts take the side of the military man and do not divide the apartment between spouses if it was purchased under the NIS program.

What to do if part of the funds was contributed using the maternal certificate

Initially, only the military man is recognized as the sole owner after the division of the apartment received under a military mortgage, even if it was paid for with mat. capital. But in practice it becomes clear that it is possible to share housing. The courts have already made relevant decisions, and the Constitutional Court has given appropriate explanations.

Information. The obligation to register real estate as shared ownership when using maternity capital to pay for it is specified in Decree of the Government of the Russian Federation of May 25, 2020 No. 627.

The outcome of the proceedings depends on the situation. The following features will have to be taken into account:

• whether the loan is closed;
• how it was repaid;
• the presence of the defendant in the service, etc.

In any case, dividing an apartment on a military mortgage with children is complicated. If the outcome is favorable, the spouses agree to re-register the property for the child. Or children are allocated a share in proportion to the amount of mat. capital.

Features of a military mortgage

The essence of a military mortgage is the provision by the Ministry of Defense of a certain benefit for the purchase of your own home.

Basic conditions:

• maximum amount – 2.4 million rubles;
• the mortgage agreement is concluded only with the military personnel, the spouse is not responsible for non-payment of the loan;
• mortgage term – no more than 25 years (at the time of full repayment, the borrower’s age should not exceed 45 years);
• purchasing an apartment is possible if the serviceman has been a member of the savings mortgage program for more than 3 years;
• down payment – ​​from 10% of the value of the property;
• the provisions of the loan agreement cannot be changed after signing by the parties;
• after full repayment of the loan, the property becomes the personal property of the serviceman;
• dismissal is not grounds for termination of mortgage payments - they are made at the expense of the borrower’s personal funds (exception - dismissal);
• registration of third parties on living space under a military mortgage is possible only with the written permission of the bank.

If you used your own funds to purchase the property

This happens often, given the limited amount of funds issued under the target program. The limit on the amount provided to a military personnel is limited to 2,400,000 rubles. To acquire decent housing and apply for a loan for a higher amount, spouses use their savings, salary or other funds.

If this happens, the division of an apartment purchased with a military mortgage is simplified. It is necessary to allocate half of the funds invested from the general money to the second party. Or a share in the living space is transferred, proportional to the amount indicated above.

A similar situation arises when repairs were carried out with your own money (from your salary or savings). It is necessary to confirm the amount of investment through the court. The result will be the allocation of a share commensurate with the funds spent (50% of this amount). However, a military mortgage is divided during a divorce according to slightly different rules if the service member is discharged. In this case, he ceases to be a member of the NIS ().

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Typical questions

Let's look at some common questions related to military mortgages and the rights of spouses during divorce.

Who divides property during a divorce?

Spouses have the right, through an amicable agreement, preferably notarized, to decide who will get what from the property during a divorce. If the peaceful method is unacceptable, then you should go to court.

As a rule, the claim is filed by women who do not agree that they do not have rights to an apartment purchased under the NIS. As noted above, there are cases when there really are no rights, but situations are possible in which appealing to a judicial authority will provide the opportunity to live in an apartment.

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Is an apartment purchased with a military mortgage a common property?

An apartment purchased with a military mortgage can be recognized as common property only if the spouses additionally took out a loan from the bank and both participated in its repayment.

If all obligations were solely on the husband and were financed by the Ministry of Defense, then this is the personal property of the serviceman.

Spouse no longer serves

When this happens, he is no longer covered by the target state. programs. This means that he will contribute the rest from his own pocket. In this situation, there are two possible options:

1. If the military mortgage is not paid after the divorce, then it will be divided in the same way as square meters (often the bank demands that the entire amount be paid ahead of schedule);
2. When the loan is completely closed, you will only be able to divide the residential property, and this will happen on a general basis.

The direct allocation of shares depends on the amount of funds invested by each party, the presence of a marriage agreement, and the use of mat. capital and other things.

The spouse paid for the loan with donated or inherited money - the portion due to her may be increased. Or the husband will have to pay compensation. The easiest way is to divide the military mortgage during a divorce on a voluntary basis. But here, too, some features need to be taken into account.

How to voluntarily share housing

Even when the spouses found a common language and were able to come to an agreement, the previously stated rule applies: the loan has not yet been closed - it will not be possible to divide the square meters. Therefore, we will consider the situation when the military mortgage has already been repaid during the divorce of the spouses. In this case, they have the right:

• leave real estate to someone alone;
• agree on the amount of compensation for part of the living space;
• re-register it for two (or three if there is a child);
• register housing for a child or children (by signing a deed of gift);
• offset when calculating the value of other items of property;
• sell the object of dispute and divide the proceeds.

Spouses are limited only by their own wishes. Sometimes a prenuptial agreement can help you understand how to divide a military mortgage during a divorce. Its observance also applies to the voluntary division of housing. Although often it is not possible to reach an agreement even with such an agreement. As a result, you have to go to the courts.

When to apply for division in court

If any dispute arises regarding real estate, a claim must be filed. But if the loan has not yet been repaid, the prospects for a court decision for the second family member are minimal because:

• the agreement with the creditor is not concluded with him;
• it cannot be re-signed to your spouse;
• it doesn’t matter if there are children in the family.

The judicial practice of dividing an apartment under a military mortgage shows that a claim should definitely be filed when joint money was spent to repay the loan. This fact increases the chances of a successful resolution of the case for the plaintiff.

You can count not only on monetary compensation, but also on the allocation of square meters. The main thing is to attach to the claim papers indicating the contribution of your own or family finances. And it is important to confirm that they went to decorate the living space. This could be receipts, a document confirming inheritance, an account statement, etc.

In the event of a divorce, a military mortgage is divided through the court and in the presence of a previously concluded agreement, if one of the parties does not comply with it. In any case, you will first have to remove the encumbrances from the collateral, repay the debt, and only then file a claim. Otherwise, the most you can count on is compensation for part of the costs. Do not forget also that after the marriage is dissolved, they may be required to close the loan before its expiration, and the spouse has the right to apply for the division of loan obligations.

Changes in military mortgage

In 2020, Rosvoenipoteka plans to launch a pilot project for mortgage refinancing. All contracts for military personnel in the savings mortgage system will have a fixed payment, and all contribution amounts will be indexed.

Since May 2020, an order has come into force that allows you to use maternity capital to pay off military mortgage debt. Many participants in the savings mortgage system who have two or more children have already appreciated the possibility of purchasing more living space. But you need to understand that if maternity capital funds were used to repay the loan, then during a divorce both the children and the second spouse can claim the purchased property. In this case, the guardianship and trusteeship authorities carefully monitor the observance of the rights of minors. They will not allow the child to be deprived of a share in the apartment or other deterioration of his living conditions.

Taking into account all the nuances, before purchasing an apartment with a military mortgage, military personnel and members of their families should calculate the situation and all possible ways of its development. It happens that even excellent family relationships collapse after taking out a home loan. Therefore, even if you live soul to soul, before purchasing you need to calculate even situations that at first glance are impossible. In this case, consultation with an independent lawyer will not be superfluous.

Division of income from the sale of housing after divorce

This option is most popular among families preparing to dissolve their marriage. What to do when the military mortgage is paid off and how is it divided in case of divorce? You can choose the simplest option - sell the property by dividing the money. This situation is permissible in a voluntary decision on the division of property. However, such alienation implies that the loan has been paid in full and the encumbrance has been removed. If this is not done, the Rosreestr authorities will not allow the deal to pass.

When selling a home, the income belongs in equal shares to both spouses. It is not the target amount, which means that the funds will be divided in half, unless there are other circumstances indicating the need for other proportions.

If the division of a military mortgage after a divorce occurs through the court, the judge may take into account the interests of the children by giving the family member with whom they remain a larger portion of the proceeds from the sale.

Is such an apartment divided between former spouses after divorce?

Military mortgage is a project to support persons engaged in military service . The main document regulating this issue is Federal Law No. 117-FZ of August 20, 2004. “On the savings-mortgage housing system for military personnel.”

An important condition for providing military housing is the prevention of encroachments by third parties on real estate acquired in this way. Therefore, this property is not subject to division. In practice, there are deviations from the rules.

According to the legislation of the Russian Federation (Article 34 of the Family Code), jointly acquired property is subject to division. An apartment or house purchased with a military mortgage is not jointly acquired property, because the acquisition was carried out not at the expense of own funds, but under a social program from the budget.

In this case, the housing is completely owned by the serviceman, and he also bears full responsibility for repaying the debt in the event of early dismissal (you can find out more about what happens to the mortgage in the event of dismissal from service here). Neither rights nor obligations apply to family members. It is impossible to transfer part of the property to a spouse, even if he is ready to assume the obligation to repay the loan. The loan agreement for a military mortgage cannot be reissued .

However, there is another scenario. In some cases, the court may make a positive decision on the division of property acquired under a military mortgage. There must be compelling reasons for this. In addition, former spouses have the right to resolve this issue peacefully.

Features of the process in the presence of children

The presence of children in a military family greatly complicates the process of dividing real estate . If the former spouses cannot make a common decision on this issue, further proceedings take place in court. The Family Code of the Russian Federation provides for the protection of the interests of vulnerable persons (children). According to paragraph 2 of Article 39 of the Family Code, the court can determine the share of property not in equal parts, taking into account the rights of the child.

It is not the full cost of the apartment that is subject to division, but only that part of it that was paid from the family budget. The fact is that the maximum amount allocated under the military mortgage program is 2.2 million rubles. Often it is not enough to purchase housing, as a result of which part of the costs is borne by the direct owner of the property. It is these costs that are joint, and a military spouse can claim for them in a divorce.

Attention : In accordance with Article 31 of the Housing Code of the Russian Federation, family members of the owner of the property can use housing to the same extent as the owner.

This means that in the event of a divorce, the child has the right to live in an apartment purchased with a military mortgage, regardless of which parent he stays with. If the spouse of the homeowner does not have rights to even part of the property, the situation becomes more complicated if there are minor children. If the mother does not have housing, the child may be registered at the father’s place of residence . In some situations, the ex-wife may also remain registered in this apartment.

If you are just planning to purchase housing under the military mortgage program, we recommend that you read the publications of our experts on this topic:

• Pros and cons for the military, and what requirements are put forward for the purchased property?
• List of reliable banks working with this program.
• How profitable is early repayment?
• A package of necessary documents and stages of registration.
• Is it possible and how to sell an apartment obtained under a military mortgage?

What you need to know about compensation

Often, such funds are paid by the party that receives the housing (). But payments are made only if the second family member has the right to count on the same square meters. The procedure begins after the military mortgage in case of divorce is paid, and it looks like this:

1. A compensation agreement is drawn up, which specifies the amount, the market value of the housing and other agreements of the parties.
2. After signing the papers, the real estate is registered under the new and sole owner.

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All registration actions are carried out through Rosreestr. But first you need to determine whether the military mortgage is divided during a divorce in your case. This is done simply - follow the rules described at the beginning.

How does the situation change when you have a child?

First you need to understand which parent the child will live with when they separate.

1. If she lives with her father, the wife also receives part of the residential property. Its size does not exceed one third of the total area of ​​the object.
2. If he lives with his mother, he can be registered on the territory belonging to his father.
3. If the military mortgage in the event of a divorce between spouses and children has already been closed, and the wife and child are registered together, each is given their own share (children receive less than adults).

If you cannot reach an agreement, you will have to turn to the courts to resolve the dispute.

How and when to inform the bank and Rosvoenipoteka

If you decide to dissolve your family union or have already carried out this procedure, you need to notify the credit institution and other mortgage holders about this. This rule especially applies when the loan is repaid from common money. In such a situation, there is a risk that one of the spouses will not pay the debt. Then the bank has the right to demand payment of the balance of funds before the end of the contract.

A military divorce lawyer with a military mortgage will help resolve this situation quickly. He will tell you when to inform the bank and Rosvoenipoteka, and will also draw up an appeal in accordance with the law. The document must indicate the date of divorce, information about the spouses and income. You can send such a letter before the divorce or after it ends.

Rights and obligations of a military personnel

Both single and married military personnel can become a participant in the program. An important aspect is that when applying for a military mortgage, the consent of a military spouse is not required, unlike standard lending for the purchase of real estate.
The fact is that the main and only borrower in this case is the military - a participant in the NIS. His or her significant other does not have any rights to housing, as well as obligations regarding payments.

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In the event of a divorce, the apartment cannot be re-registered to a spouse who is not in the military; the apartment must remain the property of the person to whom the loan was issued. This is due to the fact that payments are made by the Ministry of Defense, which is only interested in helping military personnel.

Attention! When applying for a military mortgage, banking organizations insist on concluding a marriage contract between spouses, according to which, in the event of a serviceman’s dismissal, the family is excluded from the NIS, which means that rights and responsibilities are distributed between the spouses. This can be done, but is not necessary.