Mortgage after divorce, if the spouses are co-borrowers. Family tragedy: what will happen to the mortgage in a divorce? What to do if the husband refuses to pay the mortgage

According to Rosstat, half of registered marriages are dissolved in Russia - in 2012, for example, 641.9 divorces accounted for 1.2 million marriages. How many of these couples paid off a mortgage loan, Rosstat does not specify, however, according to bankers, a mortgage with a divorce is quite common.

What to do with the apartment, if it is impossible to continue living in it together, and the spouses did not conclude a preliminary agreement? Since, when applying for a loan, the apartment was acquired in common joint ownership, the rights to this property are equal for both parties. This means that in the event of a divorce, both spouses have equal rights to the acquired property.

If the loan was taken by common-law spouses who are not legally related to each other, the apartment, as a rule, is registered in common shared ownership (shares are distributed equally for each spouse). But in both cases, both spouses are responsible for the debts, according to the terms of the loan agreement.

Therefore, when it comes to divorce, the spouses have to decide what to do with the apartment purchased on credit, which can be issued to both co-borrowers, and to one of them. This issue is especially painful for those from whom the apartment was purchased in the name of one, and the actual payments were made by the other spouse. Other controversial situations may arise in which it will be very difficult for divorcing spouses to come to a consensus. Another typical disputable situation: one of the spouses made a down payment from his own funds, for example, by selling an apartment that he inherited. “Accordingly, in the event of a divorce, the dispute is obvious: the main funds were contributed by the spouse from personal funds, that is, his share should be larger, and the newly acquired apartment is legally jointly owned by the spouses,” says the lawyer of the Academic office of the Inkom-Nedvizhimost company Natalya Kiseleva.

The situation looks different if the spouses are not officially registered, and the apartment is not registered to the one who made the down payment at their own expense. The money invested in the purchase of an apartment in the event of a break in relations will almost never be returned. In any case, if it is not possible to reach an agreement on your own, only the court can decide the situation.

"According to the experience of Raiffeisenbank, the most common variant of the division of a mortgage apartment is the re-registration of credit obligations and the object of collateral for a loan to one of the borrowers," Aleksey Popovich, Deputy Head of the Mortgage Lending Development Department of Raiffeisenbank, shares his experience.

However, regardless of the decision of the former spouses, it is possible to do what they want only by agreement with the bank. “If one of the spouses decides to completely re-register ownership of real estate, he must obtain the consent of the bank to complete this transaction, go through a second solvency analysis procedure and settle the issue of compensation with the other party,” says the director of the retail business department SB-bank German Belous.

It will not be so easy to do this, because the creditor does not intend to bear the costs of re-registration of the pledgers. Moreover, even a marriage contract in this matter may be powerless. "When dividing the property of the spouses, the Agency for Housing Mortgage Lending (AHML) is ready to provide consent to amending the USRR information, provided that such a division is carried out on the basis of a court decision or a settlement agreement approved by the court, and not on the basis of a simple agreement, even if it is a marriage agreement,” says Anna Volkova, director of the legal department of AHML. The fact is that the spouses can change the marriage contract several times, and each time the creditor would have to make changes to the USRR.

Who pays and how much

One of the most difficult questions when divorcing a mortgage is who and how will continue to service the remaining loan. "In the event of a divorce of officially registered spouses, they bear the obligation to pay the mortgage loan in a timely manner and in full, regardless of who paid the loan earlier and made the down payment when making a mortgage transaction," recalls Herman Belous.

Moreover, the bank has the right to demand the fulfillment of obligations from both spouses-co-borrowers, regardless of whether they are officially married or not. “Banks do not take into account divorces, this does not affect the validity of loan agreements and guarantees,” says Ivan Minakov, Deputy Chairman of the Board of the International Development Bank. who has liquid property. Due to the complexity of the procedures, foreclosure on mortgaged property will be the last to be carried out. "

Moreover, it will not work to appeal to the fact that the apartment went to another spouse or most of the funds were contributed by one of the parties. "The co-borrower undertakes, in the event of non-fulfillment or improper fulfillment of obligations by the borrower, to be liable to the creditor jointly with the borrower in an amount equal to the sum of all obligations, both in terms of fulfilling obligations to make monthly payments, and in terms of fulfilling the obligation to fully repay the loan, including obligations for early full repayment of the loan with interest," says Andrey Vladykin, head of the department of mortgages and loans at NDV-Nedvizhimost.

Moreover, even if you have already agreed with the bank on making changes to the composition of property owners, this does not mean that the composition of debtors has also changed. "In a divorce, not only the apartment is divided into two, but also the balance of the debt on the loan in the appropriate shares," adds Mr. Vladykin. “Legally, both spouses (even former ones) continue to be debtors to the creditor, who does not care which of them actually makes payments,” Anna Volkova continues. “If the spouse who actually pays the loan stops paying, the creditor has the right to demand performance of obligations from both borrowers and collect the debt from all debtors, as well as foreclose on the pledge.

For borrowers, the danger lies in the fact that the second party is unlikely to want to repay the loan that has become unnecessary. For example, in the same situation, when one of the spouses made a down payment, “in the event of a divorce, he can theoretically tell his former half that he has had enough and will not pay the remaining interest on the mortgage,” says Rustam Azizov, head of the RDI mortgage center. Moreover, if one of the parties refused to pay the loan, and the loan is paid to the end by the other party, then it will not be easy to get rid of the second owner.

In the event of such a situation, the issue is resolved jointly with the bank. There are several solutions. For example, one of the spouses can transfer the balance of the debt to himself and pay the former spouse his initial share, thereby leaving the apartment to himself. To do this, first of all, it is necessary to notify the bank about the current situation, collect a complete package of documents to assess solvency and the ability to transfer the entire balance of the debt to one of the former spouses.

Thus, the bank will have to separately negotiate a change in the composition of owners and debtors. “Separation of the debt and property of the collateral object is impossible, because if one of the borrowers ceases to be responsible for its obligations, it will be quite problematic to realize its part of the collateral for the loan,” explains Aleksey Popovich, deputy head of the Mortgage Lending Development Department at Raiffeisenbank. "We managed to agree on the division of property, the bank is ready to consider the possibility of withdrawing one of the spouses from the list of borrowers. This is possible when obligations and ownership of the entire facility are transferred to one of the borrowers. In addition, the issue of division of property and credit obligations is considered in court."

We sell unnecessary

If the divorcing spouses fail to agree with each other on the transfer of ownership of the apartment purchased on credit, and the parties do not want to go to court, all that remains is to sell the disputed property. “For example, you can put up an apartment for sale, pay off the debt to the bank, divide the balance according to the initial financial contribution and disperse,” Andrey Vladykin suggests. “In this case, you also need to notify the bank. Usually there are no particular difficulties. that the sale transaction will take place in the creditor bank with the participation of a bank employee.Part of the cost of the apartment, equal to the amount of the debt on the loan, will be pledged either in a separate depository box at the time of registration of the transfer of ownership, or in a special account - a letter of credit from which the bank itself will take the money to repay the loan after registration.When the debt is repaid, the bank issues a certificate stating that the loan has been repaid and the bank allows the encumbrance to be removed from the apartment."

True, before selling an apartment, you need to agree with each other. "The bank may agree to the sale of the mortgaged real estate, but a prerequisite for this is that the former spouses reach an agreement on the distribution of funds," adds Ivan Minakov.

Regardless of the presence or absence of an agreement between the spouses, who can resolve this issue, including in court, "you can sell the mortgaged apartment only with the consent of the mortgagee / creditor," says Anna Volkova: "If the creditor is ready to provide such consent, then he may demand so that the proceeds from the sale will be used to repay the loan, and what remains will be transferred to borrowers who can divide the amount received at their discretion.The lender may not require early repayment of the loan during the sale, but such conditions of sale are extremely rare , since it is unlikely that anyone will agree to buy an apartment with the preservation of collateral to secure other people's debts. Accordingly, even if the bank agreed to the sale, it will require, first of all, to fully repay the loan from the proceeds."

Prepare for Divorce

In general, market participants agree that it is possible to avoid controversial situations in a divorce with a mortgage only by planning everything in advance, no matter how sad it may sound at the moment of family prosperity. "In order to protect the spouses before a mortgage transaction, it is necessary to decide in advance who and to what extent will own the ownership of the acquired property in the event of a possible dissolution of the marriage, and confirm the agreements by concluding a marriage contract in a notarial form," Herman Belous is sure. In Russia, this document establishes only the property division regime. It can indicate who will get common expensive gifts, jewelry, movable and immovable property. It is important that this agreement can be drawn up both before marriage and at any stage of it. "Most often, a marriage contract for a mortgage deal is made by those spouses who already have some kind of common property (an apartment in which the family lives) and one of them wants to buy an apartment only for himself (for example, as an alternate airfield or for children from another marriage),” says Maria Litinetskaya, CEO of Metrium Group.

In addition to concluding a preliminary agreement on the division of property, it is important to keep documentary evidence of all the important stages of obtaining and servicing a loan: any of these papers can decide the case in court in one direction or another. “You need to keep the loan agreement, all documents on all payments, the mortgage agreement (if any), the apartment purchase and sale agreement, the seller’s receipt or other document on the transfer of money to the seller,” Anna Volkova points out. “These documents can also be used to obtain property tax deductions provided for by tax legislation. You must also keep insurance contracts, as well as documents on payment of the insurance premium. Documents on ownership, the seller's receipt or a document on the receipt of funds by the seller must be kept indefinitely. "

Particularly noteworthy are transactions for the purchase of an apartment in a new building under the terms of an equity participation agreement (DDU), when the procedure for entering into ownership takes place after the house has been handed over. “If you are going to buy an apartment and get married at the same time, but at the same time keep the apartment for yourself, it makes sense to first take ownership of the apartment, and then get married,” suggests Rustam Azizov. “If you first signed the DDU, then got married, then they waited two years for the registration of property (and during this time it is possible to get a divorce), then in the event of a divorce, the wife may well demand from you not only half of all payments paid for the period of family life (which are considered joint property), but also half of the down payment, because that formally the contract for the sale of an apartment was concluded during the period of marriage.

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Mortgages for spouses: what are the options?

Mortgages are eminently a family affair. Elementary common sense suggests that it is easier to decide on a long-term financial "bondage" when there is a person nearby who has sworn to be with you "in sorrow and in joy." The statistics of real estate companies confirms that about 70% of mortgage holders are married people. And of the remaining 30%, about half are in long-term relationships. Those. also seems to be married, only without a stamp in the passport, “civilian”.

What options the law and market realities give for potential mortgage borrowers - Sob.ru dealt with this issue.

The most common option is for spouses who take out a mortgage to become co-borrowers. According to statistics, this happens in 95% of cases (not all mortgage lenders in general are accepted as 100%, but only those who are married). Moreover, if you, being married, come to a bank or a real estate agency and ask to arrange a mortgage for you, they will prepare documents for you exactly according to this scheme. So to speak, "by default".

“In most cases, spouses automatically become co-borrowers in a mortgage transaction and are equally responsible for repaying the loan,” notes Tatyana Guseva, Director of the Mortgage Center of MIEL-Novostroyki . “At the same time, both must submit the same package of documents to the bank.”

In addition to "automatism", traditions and laws (and equality, including property, of spouses is the cornerstone thesis of many serious documents, including the Civil Code), there are other reasons here. For example, the loan amount is calculated depending on the income of the borrower. If both spouses work, their total income will certainly be greater than the income of one of them - therefore, you can apply for more favorable lending conditions.

A fundamentally important point - the co-borrowers will have "everything in half." They will equally have to confirm their income, take out insurance, and pay off the loan together. And - after the happy end of the whole epic - they will become full co-owners of the apartment.

... In principle, the situation is not prohibited by law when people who have not officially formalized relations (that is, the very “civil marriage”) can become co-borrowers. However, in practice this almost never occurs - probably because couples who have matured to the idea of ​​\u200b\u200bjoint ownership of an apartment in the future still enter into an official marriage union.

Guarantee

This scheme is based on articles 361-367 of the Civil Code. In fact, a guarantor is a person who is a guarantor of the fulfillment by the borrower of his obligations. While the borrower pays accurately, the lender (bank) does not contact the guarantor at all. But if problems begin with payments, the relevant services of the bank immediately begin to “shake” it.

A seemingly simple question, “can a wife become a guarantor for her husband’s mortgage loan?” caused controversy. Some of our experts considered that there is nothing terrible here - in any case, no prohibitions on this subject could be found in the laws. Others, on the contrary, felt that this was impossible. “If we analyze the situation when official spouses participate in the mortgage, then the concept of “guarantor” is lost,” Tatyana Guseva is categorical. The truth is probably, as always, in the middle: some banks are ready to consider such an application, while others believe that there is something incomprehensible, suspicious here - in general, it is better to immediately refuse, just in case.

... Concluding the conversation on this topic, we should mention Art. 256 of the Civil Code - it says that "property acquired by spouses during marriage is their joint property, unless a different regime for this property is established by an agreement between them." In other words, the apartment acquired by the husband (albeit with a mortgage, and even if only for himself) becomes joint property. In order to establish a different “ownership regime” (that is, to make the apartment the property of only one of the spouses, not subject to division in the event of a divorce), the parties must conclude a prenuptial agreement.

As a result, the scheme with a guarantor turns out to be really quite cumbersome, and in reality, married borrowers are not used.

Sole Loan

In this case, one of the spouses takes a mortgage on their own, and the second is completely excluded from the process. Reasons for such a decision may be different:

The desire to "not mix" property - in order to avoid its division in case of a possible divorce. While such thoughts may seem too cynical to some (how is it to “plan” for a divorce in the future ?!), they come to the mind of an increasing number of citizens. Especially those for whom the current marriage is not the first in a row;

The wife does not work and has no officially confirmed income. From the point of view of a bank that analyzes the solvency of the family, such a woman becomes a burden - she does not bring money, but only spends it. It is easier to remove it from the loan application process;

One of the spouses has a bad credit history. In such a situation, notes Alexander Moskatov, Managing Director of the Brokerage Department, MIEL-Network of Real Estate Offices , it is also reasonable to "cut off" such a person from checking by the bank.

Despite the fact that in this case the wife seems to be excluded from the process, some participation from her will still be required. She will have to give her spouse a notarized consent to purchase an apartment.

And one moment. Even if we have completed all the above formalities and issued a loan exclusively to the husband, and the apartment is also purchased only in his name, this property will still be considered “jointly acquired property”. By virtue of Art. 256 of the Civil Code of the Russian Federation. And in order for the property to really belong to one of the spouses alone, it is necessary to conclude a prenuptial agreement.

Equal, but not quite...

Above, we considered situations where a married man takes a mortgage. Of course, a “mirror” option is also possible: a woman who has a husband enters into credit relations with the bank. Are there any differences here?

At first glance, none - gender equality is enshrined not only in the Civil Code, but even in the Constitution (clause 2, article 19). In practice, however, some "nuances" come out.

So, when applying for a mortgage loan, the fact that women retire five years earlier than men may affect - so (ceteris paribus) the bank will assume that they will work and earn less time. On the other hand, life and health insurance for women is cheaper - the fair sex lives longer, gets sick less, and generally tends to take better care of themselves.

And quite radical differences are found if there is a marriage contract, which - after a divorce - one of the parties is trying to challenge. On the grounds that the document was “enslaving”, that “I didn’t quite understand what I was signing”, etc. According to court statistics, a woman (especially if there are children who, of course, remain with her during a divorce) is much more likely to succeed. However, this is a topic for a separate discussion ...

"Replay" won't work

And the last thing we would like to say. If a situation arises when a loan was issued in one way (say, the first one, in which the husband and wife became co-borrowers), and then they suddenly wanted to change this - to become, say, a borrower and a guarantor? According to our consultants, this is almost impossible. “Replaying” turns out to be extremely difficult, very few people go for it, - says Alexander Moskatov . - This means a new financial audit, analysis of all documents. In practice, banks never do this.”

In a word, here you first need to pay the bank a loan, remove the encumbrance from the apartment - and only after that begin to make any manipulations with the ownership of real estate.

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The fate of a mortgage during a divorce depends primarily on how it is issued: for one of the spouses or for two, before or after the wedding, and therefore you need to think about this in advance, before marriage and before applying for a loan. If a divorce is inevitable, it is always better to try to resolve the issue out of court. Going to court is a measure that should be resorted to as a last resort.

Most often, a mortgage is taken on by one of the spouses, and the other “helps” him pay the loan. What will happen to the mortgage in case of divorce?

Julius Rovinsky, jchrist of the bar association "Yukov and partners":

In this case, the debt between the spouses can be divided by the court, but the situation does not change for the bank. That is, if the second spouse (who is not a party to the agreement) does not pay the amounts due from him, the bank will still file a claim against the spouse who is a party to the agreement, and the latter, in turn, has a recourse claim against the other spouse, who evaded payment. The apartment will be jointly acquired property even if the contract is concluded with only one of the spouses.

What happens during a divorce with an apartment if one of the spouses bought it on a mortgage in his name before the wedding?

Pavel Ivchenkov, lawyer at Delovoy Farvater:

Mortgage payments and the apartment itself, bought on credit, remain after the divorce to the spouse who took it in his name before the wedding. Everything that was bought and registered before the wedding is not considered jointly acquired property and after the divorce remains with the spouse who acquired and registered it. The second spouse has no right to claim this. But if he proves that he contributed a significant part to such a mortgage apartment, he will be able to claim a share in it through the court. An essential part is, for example, paying for expensive repairs or paying part of the mortgage. But it is necessary to prove that the second spouse spent his personal money on this, and not from the family budget. This requires documentary evidence (payment documents: checks, receipts, bank statements on accounts).

Can, in this case, one of the spouses, for whom a mortgage agreement has not been issued, count on the reimbursement of part of the payments?

Julius Rovinsky: There are two opposing opinions on this matter: some lawyers believe that the spouse can claim part of the payments, others that they cannot. On the one hand, we can say that the second spouse is not entitled to claim part of the payments under the loan agreement. This is explained by the following: payments are made from the total income of the spouses, and it is problematic to divide the total expenses. On the other hand, in judicial practice there are isolated cases of such compensation, but the motivation seems doubtful. In positive cases, the courts argue their decisions in a rather ornate way, but this does not affect the final result. The argument in favor of such a “deprived” spouse is that the rights of claim for obligations arising in the interests of the family are taken into account when dividing property. Thus, in this case, much depends on the specific situation.

As for judicial practice, there is not much of it on this issue. I have found only one decision recently, and in this decision the court came to the conclusion that the spouse is entitled to payments. It must be remembered that judicial practice, although it demonstrates the general approach of the courts to the consideration of a group of similar cases, is not binding on them: only the explanations of the Supreme Court are binding. Therefore, even where the practice has been formed, there are radically different solutions on the same issue, and even where it has not been formed, it is very, very difficult to predict anything at all.

What do you need to think about "on the coast" before taking a mortgage for two?

Julius Rovinsky: Before becoming co-borrowers, it is worth thinking about the consequences that may occur in the event of a divorce of the spouses. In our opinion, the main risk of each of the borrowers is the fact that he [the borrower] remains a solidary debtor on the loan to the bank, regardless of what rights to the apartment he has retained. In other words, even if the apartment after the divorce became the property of one of the spouses, there is still a risk that, in case of non-payment, the bank may file a claim against the other spouse, who no longer has the right to own the property.

Pavel Ivchenkov: To avoid problems, you need to draw up an agreement in writing on what to do with the mortgage and apartment in the event of a divorce. It should specify who will have the apartment (one of the spouses or will be divided into shares), who will receive compensation (if one of the spouses refuses his share), who will then pay the mortgage. This agreement must be notarized. It is also worth negotiating with the bank and prescribing in the mortgage agreement what will happen to the mortgage and the apartment in the event of a divorce of the borrowers. Some banks agree to include these items in the mortgage agreement.

How to get a civilized divorce if the mortgage is for two?

Julius Rovinsky: If the concept of "civilized" implies the ability to divide property and debts without going to court, then this is quite problematic. However, when an agreement is reached between the spouses on property issues, there are ways that will make it possible to get by with “little blood”. If the spouses have agreed that during the division, each receives 1/2 of the ownership of the apartment, then after completing the relevant procedures with the registrar's authorities, you should apply to the court for the division of the amount of debt and interest on the loan. The practice of the courts on this issue is ambiguous, but the most recent decisions give a positive answer.

Pavel Ivchenkov: A “civilized” divorce can only be achieved through a peaceful pre-trial agreement. It is better to involve lawyers for this and make all agreements in writing and notarize. The spouses can either divide the apartment and the mortgage payment into parts (equal or whatever they want), or one of the spouses will give up his share in the apartment in favor of the second, but then the mortgage will be paid by the spouse who receives the entire apartment. In the second option, the spouse who refuses the apartment can do it for free or receive compensation for his share from the second spouse (the so-called "compensation") - this is at the discretion of the person himself. In case of refusal of his share in the apartment, the spouse must apply to the bank so that he re-registers his part of the mortgage debt for the second spouse, who will remain with the apartment. There is also a third option - the spouses can sell the apartment bought with a mortgage, pay the remaining debt to the bank from the amount received, and divide the rest of the money at their discretion. For any of the actions described above, you need permission from the bank, because with a mortgage, the apartment is pledged. Thus, Article 391 of the Civil Code of the Russian Federation stipulates that the transfer of a debt from a debtor to another person can be made by agreement between the original debtor and the new debtor. At the same time, the transfer by the debtor of his debt to another person is allowed with the consent of the creditor and, in the absence of such consent, is void. And the mortgage law prohibits any actions with the pledge without the permission of the pledgee, that is, in this case, the bank.

What to do if a civilized divorce did not work out?

Pavel Ivchenkov: If a civilized divorce did not work out when the mortgage was issued for two spouses, then there is only one option left - going to court. In this case, each of the parties will state their claims and their justifications in court, and the court will decide how to divide the apartment bought on a mortgage, and who will pay it in what shares. True, in such cases, the court always involves a third party - the bank. As a rule, the court makes one of the following decisions:

The apartment becomes the property of one of the spouses together with obligations to pay the rest of the mortgage. At the same time, the court exacts compensation from the wife in favor of the husband in the amount of half of the paid mortgage value. That is, for example, the apartment goes to the wife along with the mortgage debt, and compensation to the husband.

The apartment is divided between the spouses into shares (most often equal, but they can increase the share of the spouse who will directly live with minor children), and each of the spouses pays the mortgage for their share independently. Compensation is not awarded to either spouse.

How will the paid and remaining payments be divided in the event of a divorce?

Pavel Ivchenkov: If during a divorce one of the spouses gives up the apartment in favor of the other, then he can claim compensation, usually in the form of half the cost of the apartment. In this case, the spouses can agree among themselves on the amount of compensation on their own, they know better who is owed what.

There are cases when the second spouse receives compensation in the amount of the mortgage debt already paid at the time of the divorce (i.e. the first spouse redeems the mortgage from the second or redeems the part that the second paid from his income), and the remaining part of the debt is paid by the one to whom got the whole apartment. If the spouses cannot agree, then the amount of compensation is determined by the court. As a rule, the court simply halves the market value of the apartment or halves the value of the mortgage (finds it from the bank).

If, during a divorce, neither of the spouses gives up the apartment in favor of the other, then each receives his share in it (they agree on their own or through the court). In this case, the remaining part of the mortgage not paid at the time of the divorce is also divided into shares, which are equal to the shares in the apartment. And each spouse pays their share of the remaining debt. Previous payments (the debt already paid at the time of the divorce) are not taken into account, and in this case no compensation is due to anyone.

Were there cases in your practice when people changed their minds about getting a divorce because of a mortgage?

Pavel Ivchenkov: No, there were no such cases. But I can say that everything here depends on the reasons for the divorce and the financial condition of people: if these are petty quarrels, domestic disagreements that one of the spouses can no longer tolerate, then the mortgage can “save” the family, since too large sums of money are at stake . If the reason for the divorce is some difficult circumstances, then the mortgage will not save the marriage.

Family law lawyers in St. Petersburg

Divorce and division of property in court,
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: the procedure for dividing the shares of the apartment and obligations between the former spouses. Our office is often called and visited by couples, for whom mortgage issue became a real life test. The fact is that the division of debts in this case also involves a third party in the dispute: the bank that gave the mortgage loan.

To clearly illustrate the risks and problems, read the main questions of citizens and the lawyer's answers to them. Contact our mortgage lawyers for legal advice. Legal advice is free.

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Frequently Asked Lawyers About Divorce Mortgages

1. Mortgage during divorce: section of the apartment

   

   Before marriage, I bought an apartment in St. Petersburg. Only then did he meet his future wife. They got married, had a baby, lived together for 3 years. During the marriage, I sold my odnushka and invested the money from the sale in the mortgage of a three-room apartment in Shushary. Now the mortgage is paid off by 45 percent, but the marriage has fallen apart. How can we divide the apartment, given that the wife has not invested a single ruble in the mortgage? Semyon.

   According to the law, when dividing the property that the spouses have jointly acquired, they are allocated 1/2 of the share, if there was no marriage contract that dictates other conditions for the division.

   But the court may, at its discretion, increase the share of one of the spouses to the detriment of the other. This will happen if evidence is presented to the court that most of the money was invested by the spouse (you) from the sale of property acquired in the property before marriage. It also matters which of the spouses will raise the child and the presence of other factors.

7 (812) 925-39-24

2. Divorce Mortgage: Get a Mortgage and Divorce

   My husband and I are planning to file for divorce. To support myself while I'm still married, I want to get a mortgage. I, as a woman with her husband, will approve her 100%. After that, we'll get divorced. How to do it right? Is it true that divorce mortgage and the apartment will remain to me? Inga, St. Petersburg.

   After a divorce, the mortgage is divided equally between the former spouses. If your husband does not pay his share, then the interest for the delay is also divided between two borrowers. But after a divorce, even if your husband doesn't pay the mortgage, he doesn't have to give up his share of the apartment. He will have the opportunity to take ownership of 1/2 of the apartment and live in it.

   If your spouse refuses his share, you will be required to pay him 1/2 of the money that was paid on the mortgage during the period of the marriage.

3. Mortgage during divorce: husband demands to give a share in the apartment

   My husband and I are divorcing. In marriage, they bought a one-room apartment. My husband wants to completely take away my apartment. But I don't want to give him my share. He threatens that if I don’t give him 1/2 of the share for free, he will stop paying the loan and all divorce mortgage lay down on me. Can he do that, is he right? Katerina.

   Your husband is violating your rights. Don't let him do it. Since the apartment was purchased during the marriage, it is joint matrimonial property. In a divorce, it is divided between you in 1/2 shares.

   In a divorce, you will be required to pay the mortgage on your share of the apartment, and your husband on his share. You cannot be deprived of the right to this share in any way, except by order of the court. But you can refuse it and receive compensation: 1/2 of the money that was paid on the mortgage while you were married.

4. Mortgage during divorce: how to divide the house

   My wife and I took a mortgage on a plot of land and a house. Issued in equal shares in the property. We're getting divorced in five years. The wife either wants to sell me her share for twice what she's worth, or wants me to give her my share. Moreover, for an insignificant amount, several times lower than what it costs. Is it possible somehow, through the court or in some other way, to force her to sell me a share of the house for the real value? Is it possible to order an appraisal, expertise, and buy its share exactly for the cost that the appraisal will show? Pavel, St. Petersburg

   No, the court does not have the right to oblige your wife to set a lower price for her property. Exit: you sell your share. You can set any price and offer her to buy your share (she has the pre-emptive right to buy your share). If she refuses, you can sell your share of the house to a third party, but for a price no lower than what you offered your spouse. You also have the same right if she offers you to buy a share. If she sells her share to a third party for less than what was offered to you, this transaction may be invalidated by you.

5. Mortgage during divorce: 1/2 each

   My husband and I lived in a civil marriage before marriage. Then we bought an apartment in a mortgage for 1/2 share for each. A year later, the relationship was officially registered. We had a girl and had a daughter from our first marriage. We get divorced because of his drunkenness. You need to share an apartment, but it's still in the mortgage. I have unrealized maternity capital. Maybe it’s more profitable for me to invest it in a mortgage so that my share in the apartment is larger? Anna.

   Anna, do not rush to invest maternity capital in the mortgage of this apartment. If you do this, you will have to allocate a share to the children. Talk to your spouse, maybe he will agree to donate his share to the children.

6. Mortgage during divorce: mortgage section with a parasite

   She took out a mortgage before she got married. Before marriage, I paid off half of the mortgage. The rest of the money was paid after the wedding. There was no marriage contract. But my husband did not earn much, I alone pulled the mortgage. He did not work for several months, got a job for a short time and quit. Again, at home, he lay on the couch and lapped up beer. When I got tired of it, I filed for divorce. He filed a counterclaim for the division of property - he wants half of the apartment. What right does he have to my lawful property? Irina, St. Petersburg

   Irina, if during the period of marriage you paid off half of the mortgage, the husband puts forward his demands partly justified. But he was mistaken in the amount of his claims.

   He is entitled to 1/2 of the money that you contributed to the mortgage during the period of marriage or cohabitation and common household. That is, of course, he will not receive half of the apartment, but half of the money that was paid "jointly" is quite possible.

   If you prove in court that you repaid the loan from the money that you received under the donation agreement, that's another matter. This money is not jointly acquired, only yours. In this case, he is not entitled to compensation.

7. Divorce Mortgage: Can't Pay Mortgage After Divorce

   We are getting divorced. I don’t want to pay a mortgage after a divorce, I don’t have such an opportunity. If I give up my half, and my wife agrees to take it and pay the mortgage after the divorce in full, will the obligation to pay contributions be removed from me? And is it true that if I give up ownership of my share, my wife will pay me compensation for the apartment? Ilya, St. Petersburg.

   Yes, you are entitled to compensation when divorcing a mortgage.

8. Divorce Mortgage and Ownership

   I have a mortgage on an apartment. The mortgage is not paid yet, but I want to get married. What are my risks in the event of a broken marriage? What difference does it make if I register an apartment as a property before marriage or married? Sasha.

   In the event that you register the apartment as a property before marriage, and you repay the mortgage in marriage, your wife will be entitled to 1/2 of the money that you pay in marriage for the apartment. It doesn’t matter if you registered the apartment as a property before marriage or during marriage.

9. Mortgage during divorce: prenuptial agreement

   My wife and I are divorcing and dividing property. We took out a mortgage for our life together. Now we are trying to negotiate: draw up a marriage contract. Is it possible to write in it that I compensate my wife for the cost of 1/3 of the cost of the apartment and give the right to live in the apartment for 1 year after the divorce? Nikolay.

   Yes, in your case, you need to sign an agreement on the division of property. It is necessary to specify all the conditions and terms as detailed and accurate as possible and to certify your contract with a notary.



10. Mortgage during divorce: how to get your money?

    My parents sold our apartment and divided the money between themselves and me. I received 2,000,000 rubles. My husband and I invested this money in a mortgage on an apartment as a down payment. Now we are getting divorced. I want my money back, how do I confirm that my parents gave me two million? Polina, St. Petersburg.

    Have your parents write you a donation agreement to give you money to buy an apartment. Let them indicate the exact address of the apartment. In the case of a convincing donation agreement, the court will not consider this money to be common property. They will not participate in the division of property.

    If your husband will receive something during the division, but already a much smaller amount.

    But you can in court and offer to leave the apartment and loan obligations to your husband. Your conditions - payment of compensation to you in the amount of 1/2 of the money deposited in the credit account during the marriage.

11. Mortgage during divorce: going to court?

    Two years ago, my husband and I took out a mortgage, he is a borrower, I am a co-borrower. Mortgages to pay another 13 years, but we are getting divorced. How can we be? How to separate a mortgage and an apartment? Natalia, St. Petersburg.

    Mortgage during divorce is divided through the court. Moreover, it is necessary to bring the bank to court as a third party. This process concerns the bank directly, since the apartment is owned by the bank until the loan is repaid. With the consent of the bank, you can re-register the contract for one of the spouses directly in court. In this case, the court will decide on compensation to the second spouse.

12. Mortgage during divorce: what to do?

    In marriage, we issued a mortgage for 1/2 for my husband and me for 15 years. There is a small child. I want to get my share of the apartment, but I can't even pay half the mortgage. Mortgage paid only for a year. Another 14 years to pay, but nowhere to live and still need to find a job. What to do? Olesya, St. Petersburg.

    The owner of the apartment until the mortgage debt is paid off is a bank. He needs to be brought to trial. During a divorce, the mortgage apartment is divided between the spouses in equal parts. Or transferred to one spouse, while the second receives compensation. If you can't pay the mortgage, choose the option where the ownership and obligation of the mortgage passes to your ex-husband and you get compensation.

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7 (812) 925-39-24 Section of the mortgage in case of divorce of spouses in St. Petersburg

13. Mortgage during divorce: how to share an apartment?

    My husband and I bought an apartment with a mortgage. I contributed 60% for it from my money from the sale of an apartment in Moscow. After that, the husband did not work anywhere, he received income from rare odd jobs. We're getting divorced in a month. I am ready to pay the mortgage further, he does not agree to leave me an apartment, he is trying to get a half, 1/2 share. We will sue. I have a question: can the court award me an apartment in full? Nina, Gatchina.

    And the obligations under the loan occurs only with the participation of the court of the bank. If the bank in a lawsuit agrees to the division of the apartment and the renewal of the loan agreement, you can set the amount of monetary compensation to your spouse through the court and resolve the issue with the division of the mortgage. But, in order to prove to the court that you paid off the mortgage from your own funds, and not from family money, you will have to show the relevant documents to the court.

    For such a process, we recommend that you hire an experienced property division lawyer. Chapter divorce mortgages has a number of complex nuances. A good negotiator and specialist with experience in such matters will help you. In the end, they will pay for themselves.

14. Mortgage during divorce: bank against court decision

    During the divorce, there was a court for the division of property and the division of the mortgage. The court decision said that the apartment and credit obligations were awarded to me. The ownership of the apartment was awarded to me and Rosreestr registered it. In the process, the bank was a third party. But his representatives did not come to the court. The bank did not remake the loan agreement, although a written request and a court decision were sent to it. I pay the mortgage without violations. How to force the bank to correct the contract in accordance with the court decision? Kirill, St. Petersburg.

    If you already have a court decision, all parties to the case, including the bank, are required to comply with it. Contact the bailiff service, which is obliged to monitor and facilitate the implementation of the court decision. In order to force all participants in the case to take action, get a court decision on the case and take it to the bailiffs. Then - just control the progress of execution.

15. Mortgage during divorce without a marriage contract

    We bought a married apartment with a mortgage. My salary is much more than my wife's salary. I paid the mortgage in full, which I have the relevant documents: receipts for payment of mortgage payments. On this basis, I would like to obtain ownership of the apartment, or at least 3/4 of the share of the apartment. Tamir, St. Petersburg.

    By law, even if you and your spouse do not have equal income, or one of you did not work at all, the entire income of the husband and wife is common (unless there is a prenuptial agreement that states different conditions). In your case, most likely you will remain a borrower in a mortgage by a court decision. If the apartment at the same time passes to you by a court decision, you will be obliged to pay compensation to your wife: 1/2 of the money from those that were transferred on the mortgage for the entire time of the marriage.

16. Mortgage during divorce: section on consent

    My wife and I are getting a divorce, we have a joint child, we paid a mortgage. She agreed to leave the apartment to me. What documents should we sign so that she does not apply for an apartment in the future? Dmitry E., St. Petersburg.

    First, you need to re-register a mortgage loan in a bank only for you. If the bank refuses you this requirement, you will have to resolve the issue in court. If you are able to pay your mortgage and can prove your ability to pay, you can count on a positive court decision.

    Secondly, if the apartment and the loan are re-registered for you, set the amount and pay your spouse monetary compensation.

17. Mortgage in case of divorce and fictitious marriage

    After the wedding, we lived in the apartment of my wife and her parents. Then I rented an apartment and took out a mortgage. The co-borrower was my wife, although I asked the bank to designate someone else as a co-borrower. My wife and I did not live together in a rented apartment. There were no common households. The money for the down payment was given to me by relatives. Divorced a year later. After the divorce and before him, the wife did not take part in repaying the loan debt. How can I get the whole apartment, not allocate a share to my ex-wife? Michael, Vyborg.

    Case by divorce mortgage decided by the court. It is necessary to file a lawsuit in court for the division of property and the division of mortgages in a divorce. If you can prove that the money was donated, your share in the apartment will be increased. If you can prove that they did not run a joint household and had a different budget, it is possible that the share in the apartment will be increased. Depending on the decision of the court, compensation to the ex-wife may be assigned.

18. Mortgage during divorce: mortgage debt, what to do?

    I'm divorced. Have a baby. The mortgage was taken in marriage with her husband. When dividing the property, they signed an agreement that he pays half divorce mortgages. I am the main borrower. I regularly pay the mortgage, but he doesn’t - he has a big debt. In principle, I am ready to pay my share in full ahead of schedule, but I am afraid that the bank will force me to pay also the share of my husband and his delays, fines. Elena P., Agalatovo.

    We need to act quickly, without delay. File a lawsuit for division of matrimonial property. Otherwise, the bank has the right to present you with requirements for the payment of the debt.

    To protect your interests, contact and find a good lawyer.

19. Mortgage during divorce: what percentage?

    My wife and I bought a three-room apartment with a mortgage. In order to make the first installment - 3,000,000 rubles, I sold my apartment. The rest (two million) - took a mortgage on 1/2 share. What percentage of the mortgage will I pay in a divorce? Oleg, Petersburg.

    Through the court, you can achieve a fair division of property. Prove to the court that you invested in the apartment the money received from the sale of your personal apartment. The court will not include this money in the section.

20. Mortgage during divorce: how to refuse a mortgage?

    We got a mortgage while we were married. We are getting divorced and would like to get out of the mortgage agreement, especially since I am a co-borrower. Can the option of replacing a co-borrower be approved through a court or otherwise? Ivan.

    The issue is decided in court. But it is likely that the court will not exclude you from co-borrowers. But you can sign an agreement with your spouse to waive the right to an apartment and pay you compensation. Compensation can be assigned arbitrarily or as 50% of the mortgage funds paid in marriage.

21. Divorce mortgage: Husband lost his job

    We took out a mortgage six years ago. I am the wife - the main borrower, the husband - the co-borrower. After the divorce, they paid the mortgage on an equal footing. Now the husband has lost his job and cannot pay. The property was not divided, my daughter and I live in another region. He doesn't pay child support either. What to do? Alina, St. Petersburg

    Divide the property through the court. In court, you can either claim a debt from your spouse or transfer all obligations to yourself, transfer the right to an apartment to yourself, determine the amount of compensation to your ex-husband. Demand a separate claim from him.

22. Mortgage during divorce: how to divide if there is a child?

    The husband is demanding compensation for the mortgage apartment. I am ready to take over the mortgage after the divorce. My husband is ready to give it up if I pay him compensation. But we have a child who, in the event of a divorce, will live with me. How does the fact that I am raising our common child affect, is there an option to pay compensation less than it would be without a child? Catherine

    As a rule, the presence of children does not affect the division of property between spouses. Regardless of who the child stays with, your share in the apartment is 50%. An exception is if you invested maternity capital in paying a mortgage, there is a child's share in the apartment. In this case, the division will take place in different shares.