Problems with your ex-husband during a mortgage: how to solve them and what to do

What the law says

The Family Code closely monitors the legal relationship between wife and husband. It details how to pay a mortgage in a divorce and what each party can expect.

Chapter 7 of the RF IC is entirely devoted to the regulatory regime for the real estate of spouses. The terms of the marriage contract are described in Chapter 8, and Chapter 9 deals with the responsibility of the parties for their debt obligations.

The Civil Code did not spare the parties either, since it also includes rules relating to property law, namely parts 1 and 2.

Issues of a mortgage agreement are described in the Federal Law “On Mortgage (Pledge of Real Estate)”. In accordance with the procedure provided for by the Civil Procedure Rules, forced collection of loan debts is carried out.

Fulfillment of other conditions is carried out in accordance with the Federal Law “On Enforcement Proceedings”.

How to get rid of a mortgage after divorce

Spouses who took out a loan together wonder how to get out of a mortgage during a divorce. It all depends on what kind of relationship people remain in after the divorce. After a divorce, the following solutions are possible:

continue to repay the loan as it happened before (the spouses are in full agreement with everything);
engage in the division of property and obligations to pay the loan obligation - voluntarily or by court decision;
return the apartment (if the lender allows it).

Not everything is simple, and several legal points should be taken into account.

If housing was purchased in the official marriage of a husband and wife (it does not matter - immediately or on credit), it belongs to the category of jointly acquired property.
If the property is equated to property acquired during the years of official marriage, then the obligations to the bank are divided in half.
It does not matter to whom the mortgaged apartment is registered and who took out the loan - payments are made by both spouses after the divorce.

A prenuptial agreement is one of the best ways to organize a happy life. A “contract” is an agreement that spells out all the responsibilities of a couple – legal and material (“your” and “my” responsibilities). It also details nuances that will make it easier to solve future problems. The document can be drawn up before or after marriage.

With the birth of children, the situation with living space becomes more complicated. If a childless couple could divorce and divide everything in half, then the actions here are aimed at respecting the rights of the child. This cannot be done without the help of a lawyer: a specialist must focus on the comfort and safety of younger family members.

A verdict is often made: whoever the child (or several children) stays with will get the largest area of the purchased apartment. Both spouses pay in half, regardless of the circumstances.

After a divorce, the mother has the right to submit documents to review the payment. A woman raising children may have her rate changed for many reasons:

reduction in wages (most of the money goes to raising a child and providing him with necessities);
parental leave;
dismissal from employment;
pregnancy or maternity leave;
temporary or permanent disability.

A labor-intensive procedure that requires time and effort. First, you should rewrite the share/housing of one of the spouses, in which case you need to provide a notarized statement that the person will not forget about the obligations.

Actions are consistent with the consent of the bank that provided the loan for living space. Otherwise, it won’t be possible to just go out and it won’t be profitable for the financial institution. The main thing is the wealth and financial independence of each of the couple. If everything goes well, the bank will issue a special permit.

During a divorce, the principle of dividing mortgage property is that it is divided in half between the former spouses. This also applies to an apartment purchased during marriage.

In this case, it does not matter at all to whom the loan is issued. Financial obligations to the credit institution are assigned equally to both spouses, and they must fulfill them even after the divorce.

Divorcing spouses have only a few options for resolving the problem of an outstanding mortgage:

continue to repay the loan on the same terms;
divide the apartment and debts;
repay the mortgage early and sell the apartment;
stop paying the loan and wait until the bank itself sells the apartment at auction.

And if everything seems clear with the first option, then the second one causes difficulties. What is the right thing to do when, during a divorce, it is necessary to divide an apartment encumbered with a mortgage?

A borrower should think carefully before deciding to cancel a mortgage. The thing is that in the future it will be quite difficult to get re-approval for a mortgage. It is necessary to think about alternative options for solving problems with a mortgage in the form of refinancing in another bank with more favorable conditions or the possibility of renting out the collateral apartment.

The easiest way for a borrower to refuse a mortgage is if the contract has not yet been signed. To do this, he needs to go to the bank and write a statement to cancel the agreement or verbally inform that plans have changed and the money is no longer needed.

In this case, the bank cancels the agreement, but the borrower’s credit history does not change.

The borrower’s actions to formalize a mortgage refusal will depend on the following cases:

If the mortgage loan agreement has not yet been signed, it is important to officially notify the bank of the refusal of the service. In this case, you will need to visit the financial institution and, if necessary, sign the appropriate application.
If contractual obligations have already occurred and the document is officially signed, but the bank has not yet transferred the funds, in this case Article 807 of the Civil Code applies, on the basis of which the borrower’s credit obligations begin only from the moment the funds are transferred from the banking organization to his personal account. In this case, you need to contact the credit institution and terminate the agreement with the bank. Employees of a financial institution may argue that termination of the contract is impossible - in this case, it is always important to remember that the law is on the side of the borrower and you can safely go to court, since the bank is violating its obligations.
If the agreement is signed and the funds have already been transferred to the borrower’s account, the bank has the right to refuse the client to terminate the agreement. In this situation, it is important to negotiate with the bank or try to repay the mortgage loan early by selling the mortgaged property. In this case, the bank may impose additional penalties.

To officially cancel a mortgage, it is important for the client to complete several standard step-by-step actions:

Collect all necessary documentation for the loan, as well as additional certificates confirming the occurrence of circumstances due to which the client cannot continue to pay the mortgage loan;
Contact a banking institution for advice;
Draw up an official application for mortgage refusal.

If the situation is successfully resolved, the collateral property will be sold and the mortgage funds will be repaid.

Division of mortgage in divorce

When deciding on the division of property, you first need to soberly assess all the intricacies of the process. Usually, the solution to the problem is delayed for a long time.

During this time, the spouses decide with whom the children will remain, sign all certificates and documents regarding the divorce process, and agree on the payment of the loan.

It is important during this difficult period not to forget about repaying the loan, since here the interests of the spouses come to the fore.

If the spouses make 3 delays in a row, the bank has the right to dispose of the apartment as it sees fit.

In the process of dividing an apartment, a whole list of factors is taken into account that may affect the ratio in which the division of property will be carried out.

The division of real estate taken under the classic mortgage program differs from military lending. If in the first case the spouse can count on receiving her share, then in the second, she is completely deprived of this opportunity.

A military mortgage implies only one owner, regardless of the presence of a wife and children. In this case, one can only hope for a return of invested personal savings, and only after proof of the fact of the investment.

If the former spouses are co-borrowers

In most cases, ex-spouses act as co-borrowers. In such a situation, you should carefully consider ways to resolve the problem peacefully in order to avoid legal proceedings.

This can be achieved in several ways:

continue to jointly pay off the mortgage;
one of the parties may end up giving up the apartment in favor of the other;
spouses have the right to sell the apartment and equally divide the proceeds, but only with the consent of the bank;
The parties can initially repay the loan, after which they can sell the apartment and divide the money.

To make it easier to resolve a mortgage divorce, legal advice is limited to the last option, since it is more profitable and does not require lengthy proceedings. But in practice this method is used much less frequently.

If the former spouses wish to continue paying the mortgage, they also need to contact the bank branch. This is necessary to sign a new contract, the terms of which will make payments a little easier. As a result, each party will pay the debt separately.

However, not all banks are ready to split the loan itself, as this entails additional difficulties.

Registered for one of the spouses

If at the time of registration of the marriage the parties did not draw up a marriage contract, then on the basis of paragraph 1, article 38 of the RF IC it is clear that the property in this case will be considered jointly acquired. Consequently, the spouses will have equal rights to the apartment.

As for the mortgaged apartment, the spouse’s debt obligations correspond to their shares in the apartment. There is no difference in who these valuables were registered to.

This legislative process for dividing property remains unchanged, even in cases where only the husband or wife earned money in the family. This is what paragraph 3 of Article 39 of the Family Code is devoted to.

Registered before marriage

The real estate that belonged to the parties even before the registration of the marriage relationship is still the personal property of each.

Here the legislation offers 2 solutions:

the owner claims a share in the apartment, the cost of which is equal to the payments made;
Once the parties register the marriage, all payments act as joint expenses, so their responsibility is divided equally between the spouses.

If the husband and wife have not yet managed to take out a mortgage on the apartment, but are trying in every possible way to avoid possible disagreements, it is worth concluding a prenuptial agreement.

How much a divorce lawyer costs is shown in the article: divorce lawyer.
What is the state fee for divorce through court, read here.

If you have minor children

Often, if a family is raising a minor child, the apartment is divided into unequal shares. In this case, the advantage is given to the party with whom the child will live after the divorce. But the debt itself is divided into equal parts.

If the spouse decided to pay off the debt with the help of maternity capital, this indicates that the child has personal property, which is due to him by law.

This part is conditionally added to the share of the adult, while the child’s share cannot be divided between spouses, but is only added to the share of the parent with whom he will live.

It is important to consider that when putting an apartment up for sale, parents should try to get their child out of the apartment as soon as possible. Otherwise, representatives of the guardianship authorities may be interested in them.

There are cases when this resulted in deprivation of parental rights. The main reason for this is the inability of parents to provide their child with decent living conditions.

Mortgage waiver options in case of divorce

Having an outstanding mortgage upon divorce makes the divorce process somewhat more complicated. Ex-husbands and wives have many questions regarding mortgage housing: how to divide an apartment or house that officially still belongs to the borrower, who will pay the remaining amount, etc. The situation is complicated by the presence of a third party - the borrower represented by the bank, which is not interested in incurring losses.

One way out of this situation would be to sell the home and pay off the balance of the mortgage loan. The spouses sell the apartment, part of the amount from the sale goes to the bank, and the remainder is divided into joint property. This procedure requires the lender's permission. In most cases, the creditor bank agrees to the sale of the pledged property, reducing the risk of non-repayment. If the divorcing couple was able to obtain the bank's consent, then the next step is to find a buyer for the home.

A buyer who agrees to buy a mortgaged apartment from a married couple will have to face some nuances: before receiving papers for housing, he is obliged to pay the outstanding loan amount to the bank and wait for the completion of all bureaucratic processes. Not every person will agree to such conditions, and only a significant discount can interest him.

It is also necessary to remember that while the process of selling an apartment is underway, mortgage payments must be made in accordance with the agreement. Otherwise, the bank has the right to sell the property through an auction, the cost of which is significantly reduced. In addition, from the amount received from the sale of housing, the lender will retain the principal debt, fines for late payments, penalties, interest that was not paid, and all expenses for the sale of the apartment (house). As a result, borrowers represented by spouses may not only lose their housing, but also not receive financial compensation due to fines and other things (there simply won’t be enough funds left). But sometimes this option remains the only possible one.

At the moment, most credit institutions, when concluding a mortgage agreement, try to make the husband and wife co-borrowers. This allows you to receive a larger amount due to the pooling of income. However, the numerous practice of divorces with an outstanding loan has led to the fact that financial institutions began to include an important clause in the contract, which does not allow changing the loan conditions when family ties are dissolved.

This condition gives the lender an additional guarantee that in the event of a divorce and one of the borrowers refuses to pay the mortgage, all responsibility will fall on the shoulders of the remaining spouse. This significantly increases the bank's guarantees, but does not take into account the interests of other parties. Therefore, it is extremely important to pay attention to all points when concluding a mortgage agreement.

If a married couple filing for divorce agrees to continue paying the mortgage, there are two options:

Submit a corresponding application to the bank, which involves dividing the shares of the apartment (house) and dividing the remaining mortgage. As a result, the consolidated loan will be divided into two personal ones. Banks do not always cooperate with such a request; they may not be satisfied with the income level of one of the former spouses. And if the mortgaged housing is a one-room apartment, the refusal will be guaranteed due to the relevant federal law.
The second option involves formalizing the refusal of one of the spouses to share in the mortgaged housing, relieving themselves of all credit obligations. The other spouse obligatorily undertakes to make payments on the loan, upon repayment of which he receives the sole right to own the home. If the lender is satisfied with all the nuances (solvency, etc.), then the territorial body responsible for registration must register ownership of the mortgaged apartment.

It must be remembered that for changing the mortgage agreement, the lender must pay a fee, which ranges from half to one percent of the remaining loan amount. The refusal of a credit institution to re-issue an agreement can be challenged in the courts.

Can a bank take it away during a divorce?

The bank does not have the right to take away the mortgage only if there is a divorce proceeding. For this to happen, the spouses must be habitual offenders to financial institutions.

Therefore, someone who pays a mortgage after a divorce must not make payments for several months. But even in this case, the will of the bank alone will not be enough. The decision to deprive an apartment must be made by a bailiff.

Lawyers still recommend informing the credit company about the incident as soon as possible. The only thing the bank may require is early repayment of the loan.

Military mortgage in marriage: how to divide it in case of divorce

A mortgage loan for military personnel is issued through a savings system with the participation of a targeted housing loan provided by the state. Money is given to a specific military man free of charge. According to the law, real estate acquired by a military personnel is not recognized as joint property.

After a divorce, the legal spouse of a military serviceman cannot receive a share in the apartment. A military mortgage is divided during a divorce in extremely rare cases, if the second spouse proves the contribution of his personal funds on top of the targeted loan and provides documentary evidence.

A serviceman who has received an apartment on a mortgage is required to register the children in the apartment if the second spouse remains with the children without living space. Registration is possible after the bank's encumbrance is lifted and payments are completed. A child can receive an apartment or a share only after the death of the owner (parent) through the rights of direct inheritance.

How to protect yourself during a divorce with a home loan

Most married couples prefer to draw up a mortgage loan agreement in such a way that one of the spouses is a borrower and the other is a co-borrower.

However, in practice these two concepts do not play a big role. In any case, both parties bear a debt obligation to the creditor.

If divorce proceedings are already underway, the parties are required to notify the financial institution. Bank employees will certainly offer a more convenient option for dividing property, and offer more convenient conditions for paying off debt obligations.

It is possible to protect yourself with the help of a marriage contract. In it, the spouses first clarify all the details and protect themselves from fraud. In addition to the conditions for the division of property, there are often cases when spouses stipulate other conditions.

For example, a husband can indicate the amount that he will pay for the maintenance of his wife, for the birth of a child, etc.

Russian legislation allows the registration of marriage contracts both before registering a relationship and during family life.

An additional guarantee to protect your rights is a mortgage agreement. The document is drawn up at the bank’s office, but its terms are primarily beneficial to the lender.

How to get out of a mortgage after divorce

In order to formalize a complete relinquishment of property after a divorce, it is not enough to simply say it orally. Everything needs to be documented and certified by a lawyer. In such cases, a receipt is drawn up, which must be certified by a lawyer.

Receipt for waiver of claims to joint property

You can formalize a waiver of your rights to common property both during the marriage and during the process of its dissolution.

You can draw up a marriage contract. This document will allow for the distribution of certain rules for the disposal of real estate and other property after a divorce. A prenuptial agreement typically sets out each spouse's ownership shares after a divorce.

If, during a divorce, a wife or husband wants to give up property, then this document can be drawn up in two ways:

signing a voluntary agreement, which is confirmed by a notary;
drawing up a settlement agreement - a document that is confirmed by representatives of the court.

If in this way the spouse is trying to avoid mortgage debt, then the agreement is considered illegal. Debts must be paid by both spouses in equal proportions.

If you follow the law, then abandoning your own or an adopted child is not as easy as it might seem at first glance. In fact, the law does not accept voluntary refusal. One way or another, you will still have to pay alimony.

In some cases, one of the parents bullies the child, beats him and insults him. In such situations, the second parent has every right to deprive the second parent of parental rights, and if he manages to prove this, he will achieve his goal: the child will not see his father or mother, but at the same time, child support will be issued on a monthly basis.

An official document renouncing the rights to a child can only be signed by the mother and only before the birth of the baby. If it has already been registered in the registry office, then such a document is already considered invalid.

If the child has already been registered with the registry office, but for certain reasons the mother or father or both parents want to throw off the burden of responsibility in the form of a child, then they must write an application to the court with a request to deprive them of parental rights on a voluntary basis.

After this, court staff review the case and determine the amount of future alimony. It is very important to understand that it will not be possible to avoid monthly alimony payments in any case. After the verdict is passed in court, within 3 working days you should contact the registry office and change the information about the origin of the child.

After abandoning the child, the parent cannot claim to raise the child, inherit his property after death, to keep the child from being raised by other persons (adoption), or to the right to receive benefits, allowances and other privileges from the state.

Not all couples register their relationship. They believe that the stamp in the passport will not change anything, everything will remain as it is. The guy or girl already considers himself a “spouse”. Such couples, just like married couples, think about the future. The thought of taking out a mortgage often comes to mind.

But lawyers strongly recommend: before you take out a mortgage loan and deal with the purchased apartment, it is necessary to legalize the relationship. Then the spouses will be confident in each other. You won’t have to run around and demand repayment of part of your debts - the Law will oblige you to pay them.

What to do if there is no payment after divorce

Sometimes taking a joint mortgage during a divorce can cause a lot of trouble. If, after a divorce, the husband or wife refuses to fulfill their debt obligations to the bank, the agreement is registered in the name of the solvent person. The violator is relieved of all responsibilities, but at the same time he is deprived of his share.

If one of the spouses refuses to pay the loan for 3 months, but is also in no hurry to give up his part, the legislation offers two ways to resolve the conflict:

the debt is repaid by one of the parties;
The apartment is put up for sale by the lender, with the proceeds going to pay the mortgage. Often, real estate is sold at a low market value, which makes the payment procedure significantly faster.

How a mortgage loan is divided during a divorce: other solutions

The question of how a mortgage is divided during a divorce with children has several possible solutions. Each spouse has the right to receive their share of the funds spent on the apartment or to live in the purchased apartment.

Additional agreement with the bank . If both spouses want to keep the apartment and agree to continue making mortgage payments, it is necessary to draw up separate agreements for each borrower. In rare cases, the bank agrees to share the responsibilities of each payer. Two agreements are drawn up for each borrower, which detail the terms of payment for each. Each spouse is responsible for paying their share of the debt. Provided that the bank refuses the transaction, there is the possibility of such an agreement through the court. The share of each spouse will be determined in court. The spouse remaining with the child has the right to receive a larger share or reduce the amount of payments.
Property For Sale . It is possible to sell a mortgaged apartment if the spouses could not reach an agreement. The property will be divided in court. The bank gives its consent to the sale of the collateralized property, provided that the seller transfers the balance of the debt to the bank account. The remaining amount is divided among the borrowers. It should be taken into account that there is a possibility of being left without an apartment, money and with debt, since the value of real estate changes, interest remains, and after the sale the debt may not be repaid.

Agreement between spouses . The simplest solution to how a mortgage is divided in the event of a divorce. The spouses can come to an agreement, discuss all the conditions for further payments and not make any further transactions with the bank. The credit institution will not make claims if payments are received regularly.

Examples from judicial practice

Unfortunately, judicial practice does not even have approximate guidelines on which bailiffs can rely to make a verdict.

There are often cases when, when considering similar situations, different judicial authorities made completely opposite decisions. For example, it is enough to pay attention to real judicial practice.

Citizen V.V. Antonov filed a cassation appeal to the bailiffs. He claimed that after the divorce, he and his ex-wife Antonova L.P. according to the verdict of the first instance, it was assessed subjectively, as a result of which, as a result of the dissolution of the marriage, the shares turned out to be unequal.

In his opinion, this action violated the principle specified in Article 39 of the Russian IC on equality of shares of the parties in common real estate.

The court considered the case for the second time based on the cassation appeal of V.V. Antonov, and decided that the apartment was divided by the judicial authorities according to the assessment of L.P. Antonova. For this reason, the cost of the apartment transferred to V.V. Antonov’s ex-wife was significantly underestimated.

As for V.V. Antonov’s share, the valuation was determined based on the market value of similar things. The claim was sent for re-examination, and after a merchandising examination was carried out, it was revised.

Initially, the court is guided only by the market value, which, in turn, is found after conducting an examination of the valuation to be divided for the division of the apartment.

Exceptions include cases with the establishment of common shared ownership, and division in kind.

Divorce is not a basis for changing the credit obligations of spouses. In order for the mortgage division to go smoothly, the former spouses must approach the task with all responsibility. It is better if the parties try to resolve it peacefully, as this will significantly save effort and time.

If an agreement cannot be reached, the parties will have to arm themselves with the necessary documents and do not skimp on a good lawyer.

How to indicate the reasons for divorce in a divorce application is described in the article: application for divorce.
How to file a divorce through the registry office unilaterally, see the page.
What documents are needed for a divorce through court if there is a child, find out from this information.