Divorce or termination of marriage, as the Family Code calls this procedure, is just a fixation of the fact of dissolution of family ties. But the relationship does not always end at the time of receiving the “Certificate of Divorce”. There are also common children, common property, common obligations.
And if there is at least some clarity in the minds of former spouses regarding jointly acquired property and raising children (property is divided, alimony and communication are divided into children), then with respect to debts existing at the time of divorce, there is often not even the most primitive understanding. But the division of property implies the distribution between the former spouses of not only available household items, furniture, household appliances and real estate, but also debt obligations.
Who will have to pay a mortgage to the bank for another twenty years, who has more rights to a car or a refrigerator bought on credit? We need to figure it out.
The most general answers to these and similar questions are given by the civil and family codes of Russia. The general principle, although not without reservations, is this: one half of all property acquired in marriage belongs to the husband, the other to the wife. The same principle applies to debt. The fact of termination of marital relations does not cancel the joint obligations of the former spouses to pay loans. They took it together, they must return it together.
Moreover, in no case should one confuse debts with those who received credit property during the division. In other words, if the credit refrigerator goes to the wife, then the husband's obligations to repay the loan received for the purchase are preserved.
Here, as they say, flies - separately, cutlets - separately. First, the court will divide all movable property available at the time of the trial: it will be valued and divided in half. For example, if the court valued all property at one million rubles, then each of the former spouses will receive beds, sofas, refrigerators in the amount of five hundred thousand rubles. If “in kind” it is impossible to divide the property equally, then the court will simply determine who gets the car and who gets the TV with the dishwasher. The court will decide who should compensate the difference in the value of the property to whom, so that, as a result of the division, each of the parties receives half of the jointly acquired property. In real estate, shares belonging to former spouses are allocated.
Absolutely the same approach will be applied to the division of debts. The court will divide the balance of the principal debt in half, obliging each of the former spouses to fulfill their part of the loan obligations. The decision on the ownership of credit property is taken separately, and on the payment of the loan - separately.
Often, when applying for a loan, one of the spouses is the borrower, and the other is the guarantor. Husband and wife can be co-borrowers. One of them may be the mortgagor, and the other - the recipient of the loan. All these obligations, which both spouses voluntarily assumed at the conclusion, remain with each of them even after the dissolution of the marriage. You should not hope that the bank will replace the borrower, mortgagee or guarantor just because capable adults have changed their minds about living together. The court won't do it either.
If the loan was received by one of the spouses, and the other spouse learns about this fact only at a court session dedicated to the division of property, then in this case he risks receiving his half of the obligations to repay such a debt. In any case, it will not be easy to prove that the loan was received without the knowledge of one of the spouses, especially if the opposite party in the process insists that this was done by mutual agreement.
After the dissolution of the marriage, the one of the spouses who is the borrower under the agreement will have to make monthly payments to the account. In this case, the court will determine the amount of the debt of the second spouse: he can either pay off his half of the debt on his own, or transfer these funds to the borrower so that he himself makes the necessary payments.
What to do if the "former" does not comply with the court decision
This is ideal. But in reality, not everyone has the opportunity to implement such a decision at a time. Yes, and they take a loan precisely because there is no money in order to immediately pay a significant part of the purchase price. What should the recipient of the loan do in this case?
The borrower can apply to the court with a demand to recover half of the amount that was spent on repaying the loan from his former spouse: both in terms of paying the principal debt and in terms of paying interest.
The statute of limitations for such claims is three years, and you should not forget about this if you have to go to court to protect your violated rights. Since any lawsuit requires time and money, it makes no sense to demand a refund after each payment. But it is also not necessary to postpone the limitation period until the last day: you never know what problems can prevent you from filing it on time!
So, it is necessary to understand and remember. Credit property is included in the total property mass subject to division. Obligations for the unpaid balance of the principal are borne by both spouses even after the dissolution of the marriage. Even if the court decides that the loan property after the division will belong to one of the spouses, since it cannot be divided into parts (for example, a car), this does not cancel the obligation of the other spouse to fulfill their part of the obligations to repay the loan. If, after the division, the value of the property of one of the former spouses turns out to be greater, he will have to compensate for this difference either in money or in any other way.
Is it possible to change the share in credit obligations
The size of the share in the balance of credit obligations can be changed by the court if it is proved that one of the former spouses paid part of the loan or the down payment with their own personal money, for example, received as a gift. The court may deviate from the principle of equality of the shares of spouses in common family property (and hence in debts!), If certain other circumstances are established: the interests of minor children, the disability of one of the spouses, and so on.
So it is hardly possible to predict the results of the trial with absolute certainty: in the process of considering the case, the court will try to identify circumstances that could seriously violate the expectations of the parties. And any argument in court will have to be not only expressed, but also proved: documentary and witness testimony. Therefore, if the divorce itself is inevitable, you must first try to agree on options for resolving all contentious and complex issues. Indeed, in court, a case can be considered for months, or even years, turning into a sluggish and exhausting process. And not everyone is ready for it.