Divorce of a husband and wife with a mortgage. Mortgage in case of divorce of former spouses: ways to get out of co-borrowers. What the law says

For most Russians, buying a home with a mortgage is the only way to improve their living conditions: the cost of apartments in some regions of the country is so high that saving up the required amount can become an impossible task.
However, in a divorce, a mortgage can significantly complicate the situation. How is the division of a mortgage apartment and what to prepare for if you have children?

The correct division of a mortgage apartment during a divorce if you have a child or children

An apartment on a mortgage during a divorce is subject to division in the same way as any other property acquired during the couple's marriage.

As a general rule, property acquired during marriage is divided in half, unless there are other conditions (for example, a marriage contract is concluded between the spouses).

Divide property in kind between spouses is possible only if it has two or more rooms.

It is impossible to share an apartment with one room in this way, former spouses can only become co-owners of ½ shares. In cases where one of the spouses remains in a one-room apartment, the other can count on monetary compensation as a reimbursement of part of the cost of housing.

In cases where the spouses do not have a dispute regarding real estate, they can conclude an agreement according to which the obligations for the loan are transferred to the one who remains the sole owner of the apartment.

You should be aware that if one of the spouses does not have enough funds to repay the loan on time, then the second will remain a co-borrower even if there are no claims for housing.

When the spouses fail to reach an agreement, the division of acquired property, as well as debts, begins the court.

If a child (children) remains to live with one of the spouses, the court may allocate a large share of the living quarters to him. The loan in such a situation can also be divided in proportion to the shares awarded. In some cases (disability, raising a child with a disability, etc.), the spouse's share of the monthly payment may be reduced.

If the parents used maternity capital in any way (for example, they made it as a down payment or paid off part of the debt on a mortgage loan), the children acquire the right to part of the purchased housing.

Consequently, in a divorce, the share of the parent with whom the children remain will be increased by their shares. At the same time, the loan debt will be divided equally between the spouses, since both the mother and the father are equally obliged to support their children.

The apartment was bought with a mortgage in marriage: what will happen during a divorce

Housing, like other property purchased in marriage, automatically becomes the joint property of both spouses, even if only one of them appears as the copyright holder on paper.

If the apartment was purchased with borrowed funds taken by one of the spouses, then in most cases the second of them has the status of a co-borrower, which leads to their joint and several liability to the bank.

The scenario of how a divorce with a mortgage and a child will take place depends on various factors, the main of which is the relationship of the former spouses.

When a divorce goes through lengthy litigation, ex-spouses can continue to pay the mortgage together. For example, a man can move out of a one-room apartment, leaving it to his child and ex-wife, but continue to pay half the monthly payment or the entire amount. However, such divorces are rare, and the division of property and debts is often much more dramatic.
Former spouses can conclude an agreement between themselves and distribute shares in the apartment and the amounts payable from each of them. Such an agreement requires agreement with the bank, and, if approved, the credit institution will “make” two out of one loan agreement. This method is very rarely used in practice, since the bank bears the risk of an increased risk of non-repayment of funds and not one loan, but two.
One of the spouses has the right to voluntarily give up his share and withdraw from the mortgage agreement, but, like the previous method, this option requires the consent of the bank and convincing evidence of the solvency of the second spouse.
If there are savings, a divorcing couple can pay off the debt to the bank, sell the apartment and share the proceeds. This method is the easiest to implement, but not always the couple has savings in the right amount.

If no agreement is reached, the dispute on the division of property and debts shall be resolved in court.

Mortgage before marriage, how to be in a divorce

The situations of divorce and division of property, when the property was acquired by mortgage by one of the spouses even before the official registration of marriage, are among the easiest from a legal point of view.

Mortgage before marriage leads to the fact that such an apartment is not subject to any division and its owner is the person who is indicated as the right holder in the extract from the state register of real estate.

The second spouse cannot claim part of the apartment, but he has the right to count on compensation! This happens because from the moment of the marriage, the money at the expense of which the apartment was repaired, furniture was bought or the obligation to the bank was repaid becomes common, even if the second spouse did not work a day and had no income.

The spouses can resolve this issue on their own if they agree on the amount of compensation, however, practice shows that this rarely succeeds in a divorce. More often, the second spouse has to apply to the court with a statement and prove the validity of their claims there.

It is possible to share an apartment bought with a mortgage before marriage or in a civil marriage only in one case: the cohabitants decided to buy real estate, officially being co-borrowers, and, therefore, co-owners of housing.

How to sell a mortgage apartment in a divorce

Divorcing spouses often prefer to sell the apartment, pay off their mortgage debt from the proceeds, and split the balance between themselves. This method allows the spouses to leave, having a certain amount of money with them and not forcing them to live under the same roof.

To conclude a transaction for the sale of an apartment that is pledged, it is necessary to obtain the approval of the mortgagee for the transaction.

In our case, this is a bank that is unlikely to willingly agree to sell an apartment, because as a result, it will lose part of the profit in the form of interest on the loan collected from the borrower.

Thirdly, when selling real estate, spouses will often have to communicate with each other and agree on various issues, which can provoke unnecessary conflicts.

How to exchange a mortgage apartment in a divorce with children

After a divorce, it is possible to exchange a mortgage apartment in the traditional sense in only one way: the apartment is exchanged with a significant surcharge in your favor, which can be used to pay off debt to the bank.

This method is inconvenient because, in addition to the consent of the bank, you will have to make a lot of efforts to find a person who is ready to enter into such a transaction. The usual sale of mortgage housing with the subsequent purchase of another is made much easier and faster than an exchange.

How to Divide a Mortgage in a Divorce

In a divorce, not only property is subject to division between spouses, but also debts, including mortgages. The process of sectioning a loan issued for the purchase of housing can be reduced to the following steps:

Apply to the court with a claim for the division of property acquired in marriage. In most cases, the loan is distributed between the spouses in proportion to the shares of each of them: the larger the part of the property, the greater the amount of debt. The statute of limitations for cases of this category is three years.
Get a court decision, register your ownership in Rosreestr and get an extract.
Notify the bank of the court decision by sending an extract with a cover letter.

The credit organization that issued the loan funds also has the right to apply to the court with a claim for the division of property and debts of the former spouses. Such a situation may arise when the person to whom the mortgage is issued is not able to make a monthly payment on the loan, and at the same time, the division of property and debts between the former spouses has not yet been made.

It is also necessary to know that the bank's requirement can be satisfied by selling the share owned by the debtor spouse.

Judicial practice in divorces with mortgages and children

Judicial practice in divorce proceedings, in which the court has to resolve issues related to the division of mortgage debts, contains a large number of different examples.

Despite the apparent commonality, the situations can differ in the smallest details, which is why the courts make completely opposite decisions in seemingly similar cases.

In general, the following factors are of great importance for the consideration of the case by the court:

the presence of common children (including adopted);
determining the permanent place of residence of children after a divorce;
income level of each spouse;
position of the credit institution.

Thus, the Lazarevsky District Court of Sochi issued a decision on the claim to exclude the former spouse from the number of borrowers under the mortgage agreement. The plaintiff in the lawsuit indicated that the apartment was acquired by her and the defendant during the period when they were married, while the spouses acted as co-borrowers.

After the dissolution of the marriage, the former spouse decided to give up his share in favor of the plaintiff and their common minor child, having issued his will in writing (notarized by a receipt).

In addition to the receipt, the plaintiff, in support of her claims, presented to the court payment documents confirming that she has been single-handedly contributing the necessary amounts to repay the loan for four years.

The court considered it possible under such circumstances to exclude the defendant from the list of mortgage debtors and to divide the total debts of the former spouses.

At the same time, the Pervomaisky Court of Omsk refused to satisfy the plaintiff's similar claims in connection with the position of the credit institution (the mortgage loan was taken by the spouses from Sberbank).

The representative of the bank explained that the mother's income is 29 thousand rubles, while the monthly mortgage payment is 24 thousand rubles. While the couple were married, this amount was about 40% of their total income. If the ex-spouse takes possession of the entire apartment, then almost all of her salary will go to the monthly payment, which is prohibited by bank lending rules.

Consider another example from judicial practice: a loan for the purchase of housing was received by one of the spouses even before marriage was registered and was repaid exclusively from the borrower's personal funds. After marriage, the borrower continued to make payments on the loan from his own salary, since the spouse was initially not employed, and subsequently could not go to work due to the birth of a child.

Considering this case, the court decided that the ex-wife has the right to half of all funds paid on the loan from the moment the marriage was registered: although the spouse contributed amounts from his salary, this money was already the general, family budget.

Divorce from wife if there are both children and unpaid mortgage, the default cannot be simple! The court will certainly protect the interests of the ex-wife and children, even if the husband worked at night for the benefit of the family, and the wife only spent what she earned.

Raising a child (children) and housekeeping is a good reason why a spouse may not work, so it is simply impossible to sue part of the property in this regard.

Each case of divorce and division of property and debts going through the court is unique, and it is impossible to predict in advance what this or that case will lead to. Therefore, contacting a lawyer will be a very good decision!

Is it possible to avoid litigation and unexpected decisions in cases of this kind?

Yes, there are two ways: to try to live happily ever after, or to conclude a marriage contract, which can be drawn up and signed by the spouses both before and after the wedding. It can approve the most beneficial way for everyone to divide property after a divorce, which allows you to protect your interests in advance.

Termination of a marriage union is an unpleasant procedure in itself, and if there is a mortgage during a divorce, the situation becomes more complicated. The peculiarity of such a divorce process is that there are three participants, i.e. husband, wife and bank. The reader will learn about what to do in the event of a divorce with a loan encumbrance from this article.

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The IC of Russia regulates legal relations in the family. Specifically, Article No. 33 contains norms and rules, the main of which is the division of property acquired in the union, i.e. the property acquired by the spouses during marriage. Thus, when applying for a mortgage loan, after a divorce, it is also subject to division, incl. and debt obligations.

By the way, the Federal Law “On Mortgage”, adopted in 1998, does not provide for any restrictions on the division of living space, issued for this type of lending. But Article No. 7 of the same law contains information that joint mortgage real estate can be qualified only if there is a documented consent of the parties. Please note that a verbal agreement is not enough - a written medium is needed.

Based on these acts, it turns out that a divorce in the presence of a mortgage will occur in accordance with the IC of Russia (Article No. 39, clause 1), which states that upon dissolution of a marriage, property acquired in marriage is subject to the establishment of shares for each of the parties, and they must be equal. Of course, each law contains exceptional cases, which will be discussed in the following sections.

And if everything is more or less clear with the property itself, then what about the mortgage during a divorce? With debt obligations, not everything is so transparent and most often the actions of the court are based on Article No. 39, clause 3, which regulates spouses who have a loan to distribute the debt in the same proportions that took place when dividing the rest of the property. Simply put, housing is divided 50 to 50, and they will pay the loan in the same share. However, if everything is so simple, then why are there so many nuances? The fact is that the 3rd participant appears here - a financial institution.

Bank actions in case of divorce with a mortgage

A mortgage during a divorce of spouses is burdened with one main difficulty - the property is pledged as a guarantor of the payment of payments. This means that after the dissolution of the union of people, it is not possible to do something with the apartment if there is no consent from the bank. Accordingly, the spouses cannot sell it, exchange it, and also re-register the mortgage in the event of a divorce to one of the parties to the marriage. In other words, without a real estate bank it is impossible to do anything, even split the payments.

Paying the mortgage further or selling the apartment is also decided by the bank. By the way, transactions for the sale of collateral are approved only in extreme cases, especially during the divorce process. But at the same time, it is rather problematic to oblige one party to pay the bills, given that spouses most often act as co-borrowers. At the same time, this condition is spelled out in the Civil Code of Russia (Article No. 391, clause 1), which states that the transfer of debt from one to another is possible with a tripartite agreement.

Regarding the question of what to do in order to re-register in a mortgage during a divorce and give the debt burden to someone alone, then in this case the division is possible if the apartment has more than 1 room. If this is a “odnushka” and it is impossible to divide it into equal parts, then credit obligations cannot be divided. This is spelled out in the same federal law on mortgage lending, namely in Article No. 5.

Exceptional Cases

There are two situations that involve a divorce with a mortgage:

Personal mortgage loan. In the event that there is a fact of acquiring real estate at the own expense of one of the parties to the marriage, both during it and before it. This is indicated in the IC of Russia (Article No. 36) - that property that is quoted as personally and not included in the inventory of common property is not subject to division.

Such property may be:

personal financial savings;
property.

That is, all finances and property acquired before entering into official relations or bought / spent during marriage, but received before it, will be quoted as personal.

Military mortgage. This is not as clear-cut as in the first case. For example, some lawyers argue that the norms of the IC of Russia specified in Article No. 34 can be attached here, which indicates that common property is also labor income, the result of intellectual labor, etc., incl. grants without purpose. Other legal experts believe that military mortgages should not be divided after a divorce, because. targeted funds, i.e. directed to the acquisition of residential space. And in this case, the former spouses cannot claim a share if they are not military personnel.

Note that everything would be logical and legal, if not for one "but". Funds for the purchase of an apartment for a serviceman, in the amount of just over two million rubles, are allocated by the Ministry of Defense of the Russian Federation, which means that in fact it must pay the lion's share of the mortgage. However, in a situation where funds are not enough, additional funds can be taken from the family budget.

This situation is complex, and in order to legally resolve it, we suggest consulting with the lawyer of our portal. Legal assistance is provided free of charge. This makes it possible for citizens to possess not only legal knowledge, but also to apply it in practice, if necessary.

Effective Methods for Dividing Mortgage Housing

About what to do if a mortgage is issued before marriage - you already know, based on the above information. But what to do with a mortgage and how to divide the living space if a decision is made to get a divorce.

In this situation, the amounts of payments necessary to pay off the debt will be divided between the parties in equal proportions. In this case, each of their married couple will bear their own responsibility. With a mortgage, both spouses have equal rights, however, as well as obligations to repay the debt. This option is not very convenient, because. due to two factors:

If one of the marriage does not have its own housing, then the spouses will also live together.
The other party, under certain circumstances, may stop paying its share.

As for the second situation, it can happen for various reasons. For example:

He does not live in this apartment, so he believes that it is not his responsibility to pay for it.
The presence of financial problems, due to which it is not possible to pay.
Deliberate termination of payments, to stimulate the bank to put the property up for auction.

Speaking about the first two situations, it must be emphasized that if one of the borrowers regularly pays, and the second refuses to pay his share, then the solvent person has a number of pluses. For example, during the course of a trial, one may claim a larger share of the property.

Note: The financial institution does not care which of the spouses pays the loan in the event of a divorce. The account must be replenished monthly, according to a schedule with a fixed amount. In the absence of such on the day the payment is debited, the bank has the right to terminate the contract and demand a one-time payment or put the property up for auction.

Mortgage and divorce, although a difficult procedure, but it is very undesirable to bring it to bidding, because. the property is being sold at a minimum price, i.е. below market. And there are chances that the entire proceeds will not be enough to close the personal account. That is, the spouses will not only not receive money, but will remain indebted.

There are two more options for solving the problem:

One of the owners repays ahead of schedule personal loan obligations. However, the divorcing person will not be able to dispose of the share until the bond is removed. With this approach, the lending institution will consider the level of solvency of both parties. If the result is positive, then the loan taken will be divided into 2 parts. Further, you can safely divorce and freely dispose of property.
Spouse(a) disclaims responsibility for payment of credit obligations with the subsequent waiver of claims for property in favor of the second party. It is noteworthy that this method is used most often, because. the bank almost always agrees to this if the second party, after considering solvency, is accepted by the only borrower.

Important information: In order to use the service for reissuing a mortgage agreement, you will need to pay a commission in the amount of 0.5% -1% of the remaining amount of the debt.

And finally, let's give another possible option. But we note right away that banks do not treat him very well. We are talking about the sale of real estate, with the subsequent repayment of the debt and the division of the remaining funds. Of course, this option is not only simple, but also convenient, because:

makes it possible to live separately;
credit obligations are no longer a burden.

But it is not possible if there is no consent from the bank to sell the collateral that issued the loan. This is due to the fact that when agreeing to such an option, the bank loses the pledged profit when applying for a mortgage, i.e. he ends up getting only a fraction of the interest. Believe me, we are talking about large sums. However, if both parties are recognized as solvent, then the credit institution will agree to the sale, subject to the provision of individual apartments on similar credit terms.

By the way, today it is rather difficult to find a client for an apartment with an encumbrance. The real estate market is developing at high speeds. Therefore, experts recommend that both parties make every effort to find such a client, because. this will allow you to save your living space.

Valery Isaev

Valery Isaev graduated from the Moscow State Law Institute. Over the years of work in the legal field, he has handled many successful civil and criminal cases in courts of various jurisdictions. Extensive experience in legal assistance to citizens in various fields.

Newlyweds, confident that they will live "happily ever after", are in a hurry to acquire their own housing. But they don’t have the full amount to buy an apartment, and there is no help from anywhere ... The bank offers temptingly favorable mortgage lending conditions. And so, husband and wife lovingly equip their family nest.

Everything would be fine, but no one plans a divorce in advance. In addition to dealing with other painful issues, spouses have to decide how to divide the mortgage after a divorce.

If there were no encumbrances on marital property, everything would be extremely simple. A divorced or just planning to divorce husband and wife could conclude a written agreement on the division of jointly acquired property and debts. In extreme cases, if it would not be possible to conclude a written contract, the spouses would go to court with a claim for the division of real estate.

And what to do if the joint real estate is taken on credit and is under bank encumbrance? As a result, difficulties arise. How to share a mortgage apartment and a mortgage loan during a divorce?

Theoretical foundations of divorce with a mortgage

On what legal grounds is the division of an apartment purchased on a mortgage and the division of a mortgage loan carried out?

Section of an apartment in a mortgage loan

According to the provisions of civil law (Article 256 of the Civil Code of the Russian Federation), the jointly acquired property of a husband and wife belongs to them by the right of joint ownership. The same provision is approved by family law (clause 1 of article 33 of the RF IC). Although the apartment was bought on credit, it becomes the common property of the family, that is, the joint property of the spouses.

If the husband and wife decide to divide the joint property, their shares will be equal (according to paragraph 1 of Article 39 of the RF IC) - unless, of course, they themselves divide the property differently. After all, according to family law, a husband and wife have the right to share what belongs to them, at their discretion - by agreement (clause 2 of article 38 of the RF IC). The same provision applies not only to property, but also to the debts of the husband and wife.

The Federal Law “On Mortgage” does not contradict this either. Article 7 of this law states that a mortgage may be established on property that is in common joint ownership of the spouses, with the written consent of the owners of the property.

Since the shares of the spouses in the common property are equal, the apartment purchased with a mortgage must also be divided between the spouses in half.

Partition of debt between spouses

Common debts, like the common property of the spouses, are also divided in half. And this means that the credit obligations of the spouses to pay the debt to the bank are equal.

Divorce with a mortgage - practice

In theory, everything is simple and clear. But why is it so difficult in practice to divide the mortgage during a divorce? First of all, because it is necessary to share not only property, but also debt. In addition, in addition to the interest of the husband and wife, there is the interest of a third party - a banking institution:

the joint apartment of the spouses is pledged to the bank;
the spouses have debt obligations to the bank.

All transactions related to mortgages - the sale of housing after a divorce, the transfer of debt to one of the spouses, the division of the loan between the spouses, the division of the monthly payment between the spouses - must be carried out with the consent of the bank.

According to the provisions of civil law (paragraph 1 of Article 391 of the Civil Code of the Russian Federation), the transfer of debt from one person to another (from husband to wife or vice versa) is impossible without the consent of the creditor (banking or credit institution). Most often, the spouses' applications for amendments to the loan agreement remain unsatisfied by the bank. Attempts to separate a mortgage apartment and a loan in court without the consent of the bank also remain unsuccessful.

Why does the bank refuse to satisfy the application for the division of the debt? According to the terms of the loan agreement, the bank may demand repayment of the debt from all debtors and from each separately (in whole or in part). The division of the debt leads to a significant change in the loan agreement (the joint and several liability of the debtors turns into shared liability). And a dispute between a husband and wife is not at all a reason to amend a loan agreement and limit the rights of a banking institution. Therefore, the bank does not agree to the division of the mortgage loan between husband and wife.

Based on this, there are several options for dividing a mortgage after a divorce.

If there is an agreement between the spouses

The law provides for the right of spouses to independently determine the fate of their common property. Husband and wife may, at their discretion, divide joint property by entering into a written agreement, both during marriage and after divorce.

If the spouses provide a written agreement on who will pay the debt to the bank, who will own the purchased apartment, the court will not deal with either the division of the mortgage apartment or the division of the mortgage loan.
If the spouses do not have such a written agreement, the issue of dividing the mortgage will be decided in court.

Section of the mortgage with the participation of the court and the bank

If it is impossible to reach an agreement, one of the spouses must file a claim with the court for the division of the mortgage apartment - ask the court to terminate the right of joint ownership. At the same time, the plaintiff does not claim to divide the mortgage loan - the court resolves the dispute only within the framework of claims in accordance with paragraph 3 of Article 196 of the Code of Civil Procedure of the Russian Federation. It is not necessary to obtain the consent of the lender for this - as a rule, the lender (banking institution) will not have any objections against such a requirement, since his rights are not violated (the collateral property is not released from the pledge, no changes are made to the loan agreement, mortgage debt credit is not transferable from one spouse to another).

Some loan agreements provide for a mandatory condition for married couples of co-borrowers: to notify the bank of any significant changes in life (moving, changing jobs, divorce, birth of children). If such a condition is provided, it is necessary to inform the banking or credit organization about the upcoming divorce.

How can a mortgage be divided in court if the spouses are co-borrowers?

After the judicial division procedure, on the basis of a court decision on the division of a mortgage apartment, the spouses can apply to a banking or credit institution with an application for the transfer of debt. If the lender agrees, the loan agreement will be amended (the loan agreement will be reissued to one of the spouses or reissued into two separate loan agreements .

It is necessary to take into account one more thing: for making changes to the loan agreement, the bank may charge a commission in the amount of 0.5-1% of the amount owed.

If the mortgage lending agreement is drawn up for both spouses (husband and wife are co-borrowers), you can divide the loan with the consent of the bank in one of two ways:

The spouses, by agreement with the bank, amend the mortgage agreement, replacing the joint (general) liability for the loan with the shared (separate) liability of each of them to pay their part of the debt.

As a rule, the bank is not very willing to take such a step, because in this case it loses the benefits of the joint and several liability of the spouses (for example, debt collection from one of the spouses or from both at the same time). But, if the bank agrees, the general mortgage loan turns into two separate loans. As a rule, the residual debt is divided in half, each of the spouses continues to pay his part.

Please note: the bank will carefully check the solvency of each spouse. And only if he is convinced that both spouses have enough funds to make regular payments and repay the loan, he will agree to the section.

The acquired apartment remains in the common property of the spouses, and the shares are allocated in kind. That's right - in nature! The division of a mortgage apartment is possible only if it is a multi-room apartment. If there is only one room in a mortgage apartment, it is simply impossible to divide it into equal parts, which means that the mortgage loan cannot be divided. Article 5 of the Federal Law "On Mortgage" directly states this - it is impossible to allocate a part of real estate as a subject of mortgage lending if such allocation contradicts the purpose of real estate.

So, the husband and wife share the mortgage apartment equally - they acquire not joint, but shared ownership, after which they continue to fulfill loan obligations in proportion to the shares received. For a divorced couple, this option is not very attractive - because if they have no other housing, they will have to live under the same roof, albeit in different rooms.

If the former spouses manage to separate, there is a risk that one of them will stop paying the loan - those who do not live in a mortgage apartment, therefore do not feel obliged to pay for it or simply do not have enough funds. How will it end? If the second spouse does not regularly make payments for two, most likely, the bank will go to court and get permission to sell the mortgage apartment at auction - both spouses will be left without housing and invested money.

The mortgage agreement is reissued to one of the spouses, and the second one provides a written and notarized refusal . In this case, one of the spouses is fully responsible for paying off the loan, and the other spouse is released from this responsibility. In this case, the second spouse is deprived of ownership of the apartment purchased on credit. Of course, this option, however, like the previous one, is possible only with the consent of the bank.

A banking or credit organization will give consent only if one borrower is recognized as solvent and is able to repay the loan on its own.

If the bank refuses to reissue the loan agreement?

Such an extremely unfavorable course of events as the bank's refusal to re-register the loan agreement is also possible.

I must say that the bank is not interested in the growing number of loans (after all, the risks of non-repayment are growing), so it will prevent the division of one loan into several, it is much more preferable to have several debtors for one loan. In most cases, banks exercise the right to veto and maintain the status quo.

If the bank refuses to re-register the loan agreement, both spouses will still remain joint and several debtors under the loan agreement, even if, by agreement or court decision, the mortgage apartment is divided between them not equally or completely becomes the property of one of them. What to do in this case?

continue to pay off the loan;
find the missing amount of money and pay off the loan ahead of schedule. After that, the apartment can be sold at a bargain price, and the proceeds can be divided;
sell a mortgage apartment with the consent of a banking institution and repay the loan;
appeal the refusal of the bank in court.

Thus, the husband and wife will have to agree on the procedure for fulfilling common loan obligations. If the loan obligations are not fulfilled, a penalty will be imposed on the mortgage apartment - thus, both the housing and the payments made on the loan will be lost. More on this below.

How is the mortgage divided if the borrower is one of the spouses

There are cases when a mortgage loan was issued by one of the spouses before marriage. After creating a family, the borrower continues to repay the loan in the same way as before marriage.

If for this the spouse uses exclusively personal funds, in the event of a divorce, the mortgage taken before marriage is recognized as a personal obligation of the spouse, and the apartment is his personal property, not subject to division.

If the joint funds of the spouses were used to repay the loan, in the event of a divorce, the second spouse has the right to claim a share of the mortgage apartment. Or vice versa, if he does not claim co-ownership of the apartment, he can be exempted from mortgage payments, and can also receive back the deposited funds.

Another situation is the purchase of an apartment on a mortgage already during marriage, but the personal funds of the husband or wife were used as a down payment. This fact must be taken into account when distributing shares or dividing the balance of credit debt between spouses.

Note! Conflicts can be avoided by drawing up a prenuptial agreement at the stage of marriage or by registering a mortgage in marriage, under the terms of which the mortgage taken before marriage remains the property of the borrower. And if the borrower does not object to the participation of the spouse in the payment of the loan, he should inform the bank about his marriage and issue joint and several liability to the bank, that is, make the spouse a co-borrower or guarantor.

If the spouse does not want to enter into a prenuptial agreement or bear equal mortgage obligations, the only thing left for the husband and wife is to look for alternative solutions, for example ...

Sell an apartment, pay off a loan, divide money

If the spouses-co-borrowers cannot reach an agreement on further repayment of the debt, if the main borrower cannot pay the debt on their own, if there is no permission from the bank to transfer the debt to another spouse, there is another way to unravel the mortgage "tangle".

The mortgaged apartment is sold, the loan is paid in full, the rest of the proceeds from the sale of the money is divided between the spouses. And sometimes, despite the banal “nowhere to live” or the emotional “it’s a pity to sell almost “your” housing”, selling an apartment becomes the only optimal solution.

First of all, because divorcing spouses are relieved of the need to live under the same roof, in addition, they are relieved of the obligation to pay loan payments.

But, like other options, this option for solving a problematic issue has its drawbacks:

Firstly, to sell an apartment, you also need to obtain permission from the bank. Banks do not always agree - after all, when selling an apartment and repaying a loan early, part of the interest is lost.
Secondly, finding a buyer who will be interested in buying an apartment secured by a bank is not easy.
Thirdly, as a result of the previous shortcoming, the mortgaged apartment has to be sold at a significantly lower price.

Thus, if the bank agrees to the sale of a mortgage apartment, the husband and wife will have to find a buyer who will agree to purchase housing with encumbrance. The buyer will have to pay the balance of the debt on the loan and wait for the paperwork to remove the encumbrance from the mortgaged property. To compensate for the risks and time costs, apartment sellers have to reduce the price of the apartment.

Other options

There is one option that will help you avoid long and fruitless negotiations with a banking or credit organization and simplify the mortgage division process as much as possible. This is an early repayment of a loan. The only difficulty is finding a sufficiently large amount of money (by selling other expensive property, obtaining another loan). By the way, sometimes the bank itself makes a claim for early repayment of the loan in the event of dissolution of the marriage of the spouses-co-borrowers (if the corresponding condition is contained in the loan agreement).

Another option, which, of course, requires responsibility, decency and the ability to make compromise decisions from the husband and wife is not to divide or re-register anything, to continue paying the loan after the dissolution of the marriage in the previous mode. As a rule, this option is practiced if, after the dissolution of the marriage, the spouses continue to live in a mortgage apartment, or if only one of the spouses with a common child lives in the apartment.

Mortgage section if there is a child

The court may depart from the principle of equality of shares of husband and wife, and divide joint property into unequal shares - if common minor children remain with one of the spouses. So, often the mother gets a larger part of the housing compared to the father, while the loan is paid equally by the parents.

Sometimes maternity capital is used to fully or partially repay a mortgage loan. In this case, the children are entitled to a share in the mortgage apartment after the loan is repaid. Thus, the division of the apartment will be even more unequal for parents, one of whom remains to live with children (at the expense of children's shares), and the second - without children.

Important! If the child is registered in an apartment, before selling the housing, you need to obtain permission from the guardianship and guardianship authorities - for this you need to prove that the child will be provided with normal living conditions after the sale. Otherwise, parents will bear administrative responsibility and may even be deprived of parental rights.

Can You Stop Paying Your Mortgage After a Divorce?

Situations are common when, after a divorce, a husband or wife stops contributing money to pay off a loan. There can be many reasons for this - from lack of money to the desire to annoy the former "soulmate", but the consequences are the same for everyone: late payments lead to the accrual and accumulation of penalties - not for one debtor, but for both, regardless of who does not pay. Late and incomplete payment of the loan body, interest, penalties - leads to an increase in debt. Ultimately, the debt can reach such proportions that a banking or credit organization will receive permission through the court to sell mortgage real estate, and the husband and wife will be left homeless and without money.

Relentless statistics speak of a high percentage of divorces: up to 18% of families break up in the first three years.

By the time of the official break in relations, many families had acquired children, property, and an apartment on a mortgage.

The problem is relevant enough. The division of a mortgage apartment during a divorce often raises many questions and disputes.. How to do this in 2020, we will understand further.

This word is "Divorce"!

If both spouses have finally decided to leave and decide what to do with the mortgage during a divorce.

The time when the mortgage loan for an apartment was concluded is important.. There are several options here.

If the mortgage was taken before marriage, then it is usually not difficult to solve. After the dissolution of the official marriage, the apartment will be given into the ownership of the spouse who bought it before marriage. He will pay the remaining debt to the bank.

The second spouse cannot claim real estate, even if he lived in this apartment. He can satisfy his claims in monetary terms.

To do this, you must document that you participated in mortgage payments, made repairs for your own money.

But the same Family Code says that the other spouse has the right to a share in the apartment, because payments to pay off the debt to the bank came from the general family budget.

At the same time, a person does not have to work: the salary of one is considered the total income.

What will be the decision of the court depends on the evidence base (receipts, checks) and the level of experience of the lawyer.

Section of an apartment in a civil marriage

This is the easiest option.

The apartment with all mortgage obligations is owned by the person who is the borrower from the bank for this apartment.

Mortgage real estate may fall under the division of ownership if the former cohabitants are co-borrowers of the mortgage.

The question of how a marriage mortgage is divided during a divorce is more complicated than others and is often aggravated by factors that slow down this process.

Any property acquired during marriage is classified as jointly acquired.. Moreover, it does not matter which of the former spouses is recorded in the certificate of ownership.

But in most cases, the bank, trying to protect itself, takes the second spouse as a co-borrower. Thus, during a divorce, both spouses receive the same debt obligations to the bank.

If there are no other factors affecting how an apartment in a mortgage is divided during a divorce, the process occurs according to several scenarios:

Former spouses can enter into a property division agreement, under which they continue to pay the mortgage loan together until they pay it off in full. They both continue to be owners of the apartment. But the bank itself should be notified that a divorce process has taken place.

The second way is the most common. Former spouses want to renew the mortgage and choose to divide the apartment into equal shares and the mortgage debt equally. The bank is reluctant to make such transactions: after all, instead of one loan, it receives two at once. Moreover, there is a risk of non-payment on the part of borrowers. Sometimes the bank requires you to pay off the debt to it in full if the spouses divorced.

The third option is suitable for those who have a small mortgage debt. With the permission of the bank (it is pledged to the bank until the mortgage loan is repaid), the apartment is sold, the debt to the bank is repaid, and the remaining amount is divided in half between the former spouses, the owners of the apartment.

Sometimes they meet when one of the spouses refuses his share in the apartment, which means he gets rid of debt obligations to the bank. There is a catch - the bank may not approve such a way out of the situation, because the spouse who leaves the apartment may not be able to cope with payments alone due to low income.

Despite exactly how the former spouses want to resolve the issue of what to do with the mortgage in a divorce, everything rests on the opinion of the bank.

He is not obliged to change the terms of the contract if the co-borrowers (part-time spouses) are in the process of divorce.

The court will take into account the opinion of the bank as a third party concerned.

When buying an apartment on a mortgage during marriage, it is possible to use personal funds that have been in the bank account of one of the spouses since the premarital period as a down payment.

In the event of a divorce, he may demand their return or become the sole owner of the home. The second is issued compensation in the amount of half of the paid mortgage loan for the period of marriage.

Factors Affecting the Process of Dividing a Mortgage Apartment

The options for dividing an apartment in a mortgage are considered above, which are quite easily resolved by the former spouses themselves through a peace agreement or decided by a judge if there is a claim from one of the parties.

Difficulties arise when a family has children, the mortgage was issued on special conditions: with maternity capital, a marriage contract or a military mortgage.

Mortgages in the case of a divorce of spouses with children are often divided in court. The presence of minor children affects the court decision on the division of an apartment in a mortgage.

The share more than that of the other spouse is received by the one with whom the children remain.

If the former husband and wife decided to sell the apartment (not without the consent of the bank), the child (children) must be discharged from this apartment to another place.

Otherwise, guardianship will intervene and may raise the issue of deprivation of parental rights if the presence of normal living conditions for the child does not correspond to reality.

Maternity capital is a state allowance for a mother for the birth or adoption of a second and subsequent child.

A mortgage with maternity capital assumes that the former spouses have at least two children whose rights must be respected.

This has been mentioned above. The maternity capital is issued to one of the spouses and cannot be divided upon divorce.

But there are moments when dividing an apartment with maternity capital:

the apartment becomes the shared property of both spouses and their children;

shares for children are allocated after the repayment of the mortgage loan;

in the event of a divorce proceeding, the apartment will be divided into existing shares.

The division of an apartment bought with a mortgage can take a long time. To facilitate the task, you can draw up a marriage contract.

It is signed at any time before the dissolution of the marriage: before marriage, during the entire period of marriage, as well as before or after buying an apartment in a mortgage.

In the latter case, the spouses are required to notify the bank that they have a marriage contract signed by a notary.

A credit institution can challenge the clause on the division of a mortgage apartment only by filing a claim with the court.

Sometimes banks require the signing of a prenuptial agreement when receiving funds for the purchase of an apartment.. This condition is explained by the fact that one of the spouses prevents the bank from issuing a positive decision.

More often this is due to a bad credit history, the presence of several loans, the lack of official earnings.

In the marriage contract, it is necessary to indicate what is important for the bank as a third interested party: the second of the spouses waives all mortgage obligations and claims. The decision of the court in the presence of such an agreement will be in favor of the main borrower.

The peculiarity is that the owner of the mortgage loan and the apartment itself after the divorce remains the military man himself. It doesn't matter if he has a wife and children.

The division of the apartment takes place without the participation of the latter. Also, a military man cannot renew a mortgage, even if necessary, to divide an apartment purchased under a military mortgage.

There is another side to such a mortgage loan. A military mortgage means by itself that in case of non-payment for a mortgage, the responsibility lies entirely with the soldier himself. The wife, even the former, is exempt from such an obligation.

When deciding how to divide an apartment in a mortgage during a divorce and whether it is possible to divide the loan into two independent ones, the following rules must be followed:

This is the answer to the question of how to renew a mortgage and how to get out of co-borrowers. Often banks refuse such a decision, because they do not want to take risks.

In an apartment for which two loans are issued, you can stay together, registering it as a communal one, and everyone gets an isolated living space (room), separate utility bills.

To the question of the spouses “Is it possible to divide a one-room apartment in this way?” only negative. And getting two separate loans from the bank instead of one for a one-room apartment will not work.

Here's some more legal advice:

You can exchange an apartment with several rooms for two. Their total cost will be equal to the amount that is offered for a mortgage apartment. But the exchange process can take a long time.

When there is a divorce procedure, spouses who have not agreed to pay the debt may allow incomplete repayment, delays in payments.

If there was no payment on the mortgage for several months, the bank can take the apartment and sell it at auction.

Often, when an apartment and a mortgage are divided into two independent loans, the former spouses do not get along together and one of them remains to live in the apartment. The one who left the apartment may ignore the loan payments and refer to the fact that he no longer lives.

How to protect yourself in this case? The second will have to pay part of it if he wants to prevent the sale of a share in the auction apartment at a lower cost.

He may demand to rewrite the mortgage loan for himself, relieving his ex-spouse of debt obligations and the share in the apartment itself.

Another way is to sell the apartment at auction and pay off the loan debt to the bank. The rest of the money will then be divided between the former spouses.

An encumbered apartment will cost less than the rest, because there will be little demand for it.

Not everyone agrees to buy an apartment for which the mortgage is not paid. Compensation for the inconvenience will be a discount on its purchase.

If you can’t share or sell an apartment, and it’s impossible to live together, then you can go to temporary housing.

According to the law, it is impossible to rent a mortgage apartment and extinguish a loan with its help, because there is no consent of a third party (bank). In practice, such apartments are successfully rented out.

To date, issues on the division of a mortgage apartment are more often resolved in court.

Judicial practice in such cases across the country is very different, and court decisions in different regions of the country can differ dramatically.

Success in protecting your interests in relation to an apartment often depends on the legal knowledge of the former spouses themselves, the literacy and experience of a lawyer.

Video: How is the mortgage divided during a divorce?

Last update: 02.02.2019

Not every family can afford to purchase their own housing with hard-earned and accumulated money. Therefore, the only way out for them is to purchase housing in a mortgage.

For which of the spouses a mortgage loan agreement has not been drawn up, according to family law, this debt falls on the shoulders of both. Just like an apartment bought with mortgage funds, from the moment of purchase it becomes the joint property of the spouses.

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

You need to notify the bank

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

If you decide to dissolve the marriage or have already divorced, you must notify the credit institution about this. It is she who will offer you acceptable options for dividing an apartment that is in a mortgage and the mortgage debt itself.

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

Optimal section options

Sell a mortgage apartment, repay the loan from the proceeds, and divide the rest equally between the spouses.

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

First, you need to coordinate the sale with the bank that issued the loan, and they are not always willing to give their permission for this, because they lose a large part of the interest charged from the borrower for using the loan. But if both borrowers are solvent, then the banking organization can accept this scenario and offer them, after the sale of housing, to use the proceeds for a down payment to buy two separate apartments and receive two new mortgage loans.

Secondly, it is unlikely to be able to find a buyer who wants to get involved in the purchase of housing that is pledged to the bank.

Thirdly, spouses will most likely have to deal with the sale of an apartment together, but this can cause positive emotions for rare divorcees.

Loan payments are divided equally between the ex-husband and wife, and each begins to bear no longer joint, but individual responsibility for repaying the mortgage loan.

Former spouses, in accordance with the letter of the law, remain owners of the apartment on an equal footing, but they are also obliged to pay off the debt together - only each has its own part. This is not very convenient, especially if neither one nor the other has any other housing and you have to live under the same roof. There are situations when one of the co-borrowers simply stops making payments on their part of the loan, because:

does not live in a mortgaged apartment and does not consider himself obliged to pay for it

does not pay intentionally, so that the bank puts the mortgage apartment up for auction forcibly

does not have sufficient funds for this, etc.

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

One of the spouses, who is sick of living together in a mortgage apartment with an ex-wife (or husband), may intentionally stop paying the loan. Sooner or later, this will lead to the fact that the bank will go to court and receive a decision on the forced withdrawal and sale of the apartment in a mortgage. After the sale of housing at auction, both former ones may be left with nothing - after all, its cost will be much lower than the market value, but this is a good chance to get rid of family ties and life together completely.

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

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

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

This option is very convenient when it is impossible to repay the loan immediately or sell mortgage housing, and the spouse who has refused has another living space. The banking organization that issued the loan can accept this option only if the borrower, remaining in a single person, is recognized as fully solvent.

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

Other options

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

sale of other valuable property from among the jointly acquired

apply for another loan for one of the spouses

sell a mortgage apartment, etc.

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

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

If there are children

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

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

Often, maternity capital funds are used to fully or partially repay a mortgage loan. In this case, the child (or children), by law, must be allocated shares in mortgage housing after the encumbrance is removed from it (see. So the share in the housing of the parent with whom the children will remain after the divorce, conditionally increases also due to this.

military mortgage

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

The three basic rules of a military mortgage are:

a loan agreement for the purchase of housing can be concluded only by the serviceman himself (without the participation of his wife),

the maximum loan amount under the military mortgage program is 2,350,000 rubles,

the soldier will be the sole owner of the mortgage housing,

he will not be able to reissue the loan agreement in the event of a division of housing.

In the event of a divorce, the spouses encounter a lot of problems when dividing such an apartment. The courts usually rule under family law and require that the property be divided in half, but in practice this is almost impossible.

Often, when obtaining a military mortgage, credit organizations require the borrower to conclude a marriage contract, under the terms of which, in the event of a divorce, he will remain the sole owner of the apartment and the executor of the loan obligations. Spouses often draw up such a document for the sake of buying their own home, without thinking about the possible consequences when, during a divorce, family members of a serviceman may be left without a roof over their heads.

Mortgage before marriage

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

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

There are still situations when an apartment is purchased on a mortgage already in marriage, but the down payment was used for the funds received by one of the spouses from the sale of “premarital” housing, inherited or donated (that is, his sole proprietorship). When proving this fact during a divorce in court, he may well count on a decrease in his share in a mortgage loan or on a pre-emptive right in the division of such housing.

In the event of a divorce, if you have an apartment in a mortgage, it is important to choose the optimal partition option for both of you even before going to court and a banking organization. If there are good reasons and arguments, you can always try to negotiate and find a way out that will suit everyone.

If you have questions about the topic of the article, please feel free to ask them in the comments. We will definitely answer all your questions within a few days.